BARRICK GOLD CORPORATION — and — NEWMONT MINING CORPORATION IMPLEMENTATION AGREEMENT

Exhibit 2.1

▇▇▇▇▇▇▇ GOLD CORPORATION

— and —

NEWMONT MINING CORPORATION

IMPLEMENTATION AGREEMENT

March 10, 2019

TABLE OF CONTENTS

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IMPLEMENTATION AGREEMENT

THIS AGREEMENT made the 10th day of March, ▇▇▇▇,

▇ ▇ ▇ ▇ ▇ ▇ ▇:

WHEREAS Barrick and Newmont desire to form a joint venture to own, manage and operate the Barrick Properties and the Newmont Properties as a single complex;

AND WHEREAS in furtherance of the foregoing, Barrick wishes to contribute the Barrick Contributed Assets, and Newmont wishes to contribute the Newmont Contributed Assets, to the JV Company on the terms and conditions set forth herein; and

AND WHEREAS concurrently with the transfer of the Barrick Contributed Assets and the Newmont Contributed Assets to the JV Company, Barrick and Newmont (together with certain of their respective Affiliates) shall enter into the JV Agreement to govern their respective rights, interests and obligations with respect to the JV Company and the Properties.

NOW THEREFORE THIS AGREEMENT 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
INTERPRETATION

1.1                                                                               Definitions

In this Agreement (including the recitals and the Schedules hereto), the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have the corresponding meanings:

(a)                                 “Affiliate” means, with respect to any Person, any Person which directly or indirectly Controls, or is Controlled by, or is under common Control with, that Person;

(b)                                 “Agreement” means this Implementation Agreement (including the Schedules hereto, the Barrick Disclosure Letter and the Newmont Disclosure Letter), as the same may be amended from time to time in accordance herewith;

(c)                                  “Alternative Reorganization Steps” has the meaning set out in Section 2.4(a);

(d)                                 “Antitrust and Trade Laws” means all Laws, including any antitrust, competition, foreign investment or trade regulation Laws, that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization, restraint of trade or lessening or preventing competition through merger, joint venture or acquisition;

(e)                                  “Area of Interest” means all lands that lie within the area depicted as the “Area of Interest” on the map attached in Schedule 1.1(e);

(f)                                   “Arrangement Agreement” means that certain Arrangement Agreement, dated as of January 14, 2019, between Newmont and Goldcorp Inc., as amended from time to time;

(g)                                  “Barrick” has the meaning set out in the preamble;

(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) and shareholder loans for borrowed money;

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(i)                                     “Barrick Contributed Assets” has the meaning set out in Section 3.1;

(j)                                    “Barrick Disclosure Letter” means the disclosure letter provided by Barrick to Newmont on or prior to the date hereof;

(k)                                 “Barrick Excluded Assets” means: all (i) Excluded Inventory; (ii) cash and cash equivalents; (iii) insurance claims or proceeds; (iv) indebtedness owing by Barrick or an Affiliate of Barrick to a Barrick Party; and (v) Tax refunds and rights to Tax refunds of the Barrick Parties;

(l)                                     “Barrick Fundamental Representations” has the meaning set out in Section 9.1(a);

(m)                             “Barrick Holdco” means an indirect wholly-owned subsidiary of Barrick determined by Barrick in its discretion;

(n)                                 “Barrick Indemnified Parties” has the meaning set out in Section 9.3;

(o)                                 “Barrick Material Contract” means any Contract included in the Barrick Contributed Assets that has a payment obligation in excess of $100 million per annum for purposes of Section 6.4 and otherwise $25 million per annum;

(p)                                 “Barrick Parties” means, collectively, Barrick, Barrick Holdco, ▇▇▇▇▇▇▇ Gold Exploration Inc., Barrick Turquoise Ridge, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇ Gold Finance Inc., ▇▇▇▇▇▇▇ Gold U.S. Inc., Barrick Goldstrike Mines Inc. and each other Affiliate of Barrick that holds properties located in the Area of Interest;

(q)                                 “Barrick Pre-Closing Transactions” has the meaning set out in Section 2.1;

(r)                                    “Barrick Properties” means all of the properties of the Barrick Parties located in the Area of Interest other than the Fourmile Project and the Bullfrog, McDermitt, Buckhorn, Wood Gulch and ▇▇▇▇▇▇ closure properties;

(s)                                   “Barrick Public Record” means all forms, reports, schedules, statements and other documents which are publicly filed by Barrick pursuant to Canadian securities Laws;

(t)                                    “Barrick Transferred Employees” has the meaning set out in Section 5.14(a);

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(u)                                 “Business Day” means any day, other than a Saturday, Sunday or statutory holiday in Toronto, Ontario or Denver, Colorado, on which commercial banks in Toronto and Denver are open for business;

(v)                                 “Claim” has the meaning set out in Section 9.5(a);

(w)                               “Closing” means the closing of the transactions contemplated hereby;

(x)                                 “Closing Date” has the meaning set out in Section 4.1;

(y)                                 “Confidential Information” has the meaning set out in Section 5.7(a);

(z)                                  “Constating Documents” means articles and notice of articles, certificates of formation, articles of incorporation, amalgamation, arrangement or continuation, as applicable, by- laws, partnership agreements, limited liability company agreements, and all amendments to such articles, by-laws or agreements;

(aa)                          “Contract” means any legally binding agreement, indenture, contract, lease, deed of trust, royalty, licence, option, instrument, arrangement, understanding or other commitment, whether written or oral;

(bb)                          “Control” means possession, directly or indirectly, of the power to direct or cause the direction of management and policies through ownership of voting shares, interests or securities, or by contract, voting trust or otherwise; and “Controlled” and “Controlling” shall have corresponding meanings;

(cc)                            “Customary Post-Closing Consents” has the meaning set out in Section 5.12(a);

(dd)                          “Deed” means any and all deeds required to convey the Barrick Contributed Assets and the Newmont Contributed Assets, as applicable, which deeds shall be in a form agreed by the Parties, acting reasonably, provided however, that (a) any deed for the conveyance of ranch property shall be substantially in the form of the Ranch Deed attached in Schedule 1.1(dd)(i); (b) any deed for the conveyance of mining property shall be substantially in the form of the Mining Deed attached in Schedule 1.1(dd)(ii); (c) any deed for the conveyance of water rights shall be substantially in the form of the Water Rights Deed in the form attached as Schedule 1.1(dd)(iii); and (d) any fee properties deed shall be in

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substantially the form of the Fee Properties Deed in the form attached as Schedule 1.1(dd)(iv);

(ee)                            “Direct Claim” has the meaning set out in Section 9.5(a);

(ff)                              “Employment Expenses” has the meaning set out in Section 5.14(e);

(gg)                            “Encumbrance” means any hypothecs, mortgages, pledges, assignments, liens, charges, security interests, statutory or deemed trusts, encumbrances and adverse rights or claims, other third party interest or encumbrance of any kind, whether contingent or absolute, and any agreement, option, right or privilege (whether by Law, Contract or otherwise) capable of becoming any of the foregoing;

(hh)                          “Environmental Liabilities” means any and all Liabilities and Proceedings of any nature or kind whatsoever (whether known or unknown, fixed or contingent), whether initiated by or owing to Governmental Authorities or any other Persons, to the extent relating to, arising from or connected with the Barrick Properties (in the case of Barrick) and the Newmont Properties (in the case of Newmont), and instituted, required, made, imposed, rendered, issued or in any way arising out of or under or pursuant to environmental Laws;

(ii)                                  “Exchange Act” means the Securities Exchange Act of 1934, as amended;

(jj)                                “Excluded Employees” has the meaning set out in Section 5.14(a);

(kk)                          “Excluded Inventory” means (i) doré, bullion, unrefined gold and refined gold on site or in transit to a smelter or refiner or held by a smelter or refiner for the account of a Barrick Party or a Newmont Party, as the case may be, or (ii) any finished inventory or inventory available for sale (including Phoenix concentrate and cathode finished goods inventory);

(ll)                                  “Fiberline Project” has the meaning given to that term in the JV Agreement;

(mm)                  “Fourmile Project” has the meaning given to that term in the JV Agreement;

(nn)                          “Good Mining Practice” means the application of those methods and practices customarily used in good and prudent International mining practice with that degree of diligence and prudence reasonably and ordinarily exercised by

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capable, experienced mining operators engaged in similar activity under similar circumstances and conditions;

(oo)                          “Governmental Authority” means any: (i) multinational, national, federal, provincial, state, territorial, municipal, local or other government (whether domestic or foreign), (ii) governmental or quasi-governmental authority of any nature, including any stock exchange or any governmental ministry, regulator, agency, branch, department, commission, commissioner, board, tribunal, bureau or instrumentality (whether domestic or foreign), or (iii) body exercising or entitled to exercise any administrative, executive, judicial, legislative, regulatory or taxing authority or power under or for the account of any of the foregoing, including any court, judicial authority, arbitrator or arbitration tribunal;

(pp)                          “Indemnified Party” has the meaning set out in Section 9.5(a);

(qq)                          “Indemnifying Party” has the meaning set out in Section 9.5(a);

(rr)                                “Indemnity Cap” means $500,000,000;

(ss)                              “Inventory” means inventories, ore stockpiles, ore on ▇▇▇▇▇ pads or in ▇▇▇▇▇ circuits, loaded carbon, doré or other minerals in process, but shall not include Excluded Inventory;

(tt)                                “Intellectual Property” means all trade or brand names, business names, trade-marks (including logos), trade-▇▇▇▇ registrations and applications, service marks, service ▇▇▇▇ registrations and applications, copyrights, copyright registrations and applications, issued patents and pending applications and other patent rights, industrial design registrations, pending applications and other industrial design rights, trade secrets, proprietary information and know-how (whether owned or leased), together with all rights under licences, registered user agreements, technology transfer agreements and other agreements or instruments relating to any of the foregoing;

(uu)                          “Interim Period” means the period from and after the date hereof until the earlier of (i) the Closing, and (ii) the date on which this Agreement is terminated in accordance with its terms;

(vv)                          “JV Agreement” means the operating agreement, substantially in the form attached hereto as Schedule 1.1(vv), to be entered into between the JV

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Company, Barrick, Barrick Holdco, Newmont, and Newmont Holdco at the Time of Closing to govern their respective rights, interests and obligations with respect to the JV Company and the operation of the Properties;

(ww)                      “JV Company” means the limited liability company to be formed under the laws of the State of Delaware pursuant to this Agreement that will own, directly or indirectly, the Barrick Contributed Assets and the Newmont Contributed Assets at the Time of Closing as a result of the transactions contemplated by this Agreement;

(xx)                          “Laws” means international, national, provincial, state, municipal and local laws (including common and civil law), treaties, statutes, acts, codes, ordinances, judgements, decrees, directives, resolutions (ministerial or other), injunctions, writs, certificates and Orders, by-laws, rules, regulations, implementing rules or regulations, ordinances, or other requirements enacted, adopted, promulgated, applied or interpreted by any Governmental Authority in each case having the force of law, and the term “applicable” with respect to such Laws and in a context that refers to one or more Parties, means such Laws as are applicable to such Party or its business, undertaking, property or securities and emanate from a person having jurisdiction over the Party or Parties or its or their business, undertaking, property or securities in the circumstances;

(yy)                          “Liabilities” means, as to any Person, adverse claims, Proceedings, liabilities, commitments, responsibilities, and obligations of any kind or nature whatsoever, direct or indirect, absolute or contingent, whether accrued, vested or otherwise, whether known or unknown and whether or not actually reflected, or required to be reflected, in such Person’s balance sheet or other books and records;

(zz)                            “Loss” or “Losses” means all claims, demands, proceedings, fines, losses, damages, liabilities, deficiencies, costs and expenses (including all reasonable legal and other professional fees and disbursements, interest, penalties, judgments and amounts paid in settlement) and diminution of value of interests in the JV Company arising directly or indirectly as a consequence of the matter giving rise to such Loss or Losses; provided that “Loss” and “Losses” shall not include consequential, punitive or indirect damages (other than consequential, punitive or indirect damages paid to a third party in respect of a Third Party Claim);

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(aaa)                   “Management Employee” means, in respect of Newmont and its Affiliates, an employee who is in pay grade 109 or above;

(bbb)                   “Members” means, collectively, Barrick Holdco and Newmont Holdco;

(ccc)                      “▇▇▇▇ Project” has the meaning given to that term in the JV Agreement;

(ddd)                   “Mining Rights” means mining rights, claims, concessions, leases, surface leases and similar rights owned or leased by any of the Barrick Parties or the Newmont Parties, as the context may require;

(eee)                      “Newmont” has the meaning set out in the preamble;

(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) and shareholder loans for borrowed money;

(ggg)       “Newmont Contributed Assets” has the meaning set out in Section 3.3;

(hhh)                   “Newmont Disclosure Letter” means the disclosure letter provided by Newmont to Barrick on or prior to the date hereof;

(iii)          “Newmont Excluded Assets” means all (i) Excluded Inventory, (ii) cash and cash equivalents; (iii) insurance claims or proceeds, (iv) indebtedness owing by Newmont or an Affiliate of Newmont to a Newmont Party; and (v) Tax refunds and rights to Tax refunds of the Newmont Parties;

(jjj)                            “Newmont Fundamental Representations” has the meaning set out in Section 9.1(a);

(kkk)                   “Newmont Holdco” means a direct or indirect wholly-owned subsidiary of Newmont determined by Newmont in its discretion;

(lll)                               “Newmont Indemnified Parties” has the meaning given to it in Section 9.2;

(mmm)       “Newmont Interests” has the meaning given to it in Section 3.5;

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(nnn)                   “Newmont Material Contract” means any Contract included in the Newmont Contributed Assets that has a payment obligation in excess of $100 million per annum for purposes of Section 7.3 and otherwise $25 million per annum;

(ooo)                   “Newmont Parties” means, collectively, Newmont, Newmont Holdco, Pittston Nevada Gold Company, West Pequop LLC, Newmont USA Limited, Newmont Nevada Energy Investment LLC, Newmont GTR LLC, Elko Land & Livestock Company, ELLC Grazing Membership LLC and each other Affiliate of Newmont that holds properties located in the Area of Interest;

(ppp)                   “Newmont Pre-Closing Transactions” has the meaning set out in Section 2.2;

(qqq)                   “Newmont Properties” means all of the properties of the Newmont Parties located in the Area of Interest other than the Fiberline Project and the ▇▇▇▇ Project, and Sandman, Mule Canyon, Buffalo Valley, Copper Basin, Golden Eagle, Ivanhoe-Hollister, Northumberland and Trenton Canyon closure properties;

(rrr)                            “Newmont Public Record” means all forms, reports, schedules, statements and other documents which are publicly filed by Newmont pursuant the Exchange Act;

(sss)                         “Newmont Transferred Employees” has the meaning set out in Section 5.14(b);

(ttt)           “Notice of Claim” has the meaning set out in Section 9.5(a);

(uuu)        “Order” means orders, injunctions, judgments, decisions, administrative complaints, decrees, rulings, awards, assessments, directions, instructions, penalties or sanctions issued, filed or imposed by any Governmental Authority or arbitrator;

(vvv)                   “Ordinary Course” means, with respect to an action taken by a Party or its Affiliates, that such action is consistent with the past practices of such Party or such Affiliate over the preceding 12-month period, and is taken in the ordinary course of the normal day-to-day operations of the business of such Party or such Affiliate;

(www)             “Outside Date” means 12 months after the date hereof, provided that either Party may extend such date by successive 30 day periods if Closing has not

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occurred solely as a result of the condition in Section 8.1(b) not being satisfied, or such other date that Barrick and Newmont may agree in writing; provided that, notwithstanding the foregoing, a Party shall not be able to postpone the Outside Date if the failure to satisfy such condition is the result of such Party’s deliberate breach of its obligations hereunder with respect to the obtaining of Required Regulatory Approvals;

(xxx)                   “Parties” means, collectively, Barrick and Newmont, and “Party” means any one of them;

(yyy)        “Permits” means permits, licences, approvals, registrations, consents, certificates, clearances and other similar authorizations issued by any Governmental Authority;

(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) obligations arising under and pursuant to Contracts (other than Contracts relating exclusively to debt for borrowed money) to which any of the Barrick Parties or the Newmont Parties is a party or by which the Barrick Contributed Assets or the Newmont Contributed Assets, as applicable, are bound or affected; (viii) the paramount title of the United States of America or any other Governmental Authority; (ix) 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; (x) 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); (xi) present or future obligations arising under applicable Law or any permit; and (xii) the terms and conditions of any instrument of title in respect of the assets and

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properties forming part of the Barrick Contributed Assets or the Newmont Contributed Assets, as applicable;

(aaaa)                  “Person” includes any individual, corporation or other body corporate, partnership, trustee, trust or unincorporated association, joint venture, syndicate, sole proprietorship, other form of business enterprise, executor, administrator or other legal representatives, regulatory body or agency or Governmental Authority, however designated or constituted;

(bbbb)                  “Pre-Closing Transactions” means, collectively, the Barrick Pre-Closing Transactions and the Newmont Pre-Closing Transactions;

(cccc)                “Proceeding” means any action, investigation, claim, demand, lawsuit, administrative proceeding, assessment, hearing, arbitration, judgment, award, decree, Order, injunction and prosecution, or other similar proceeding;

(dddd)            “Properties” means, collectively, the Barrick Properties and the Newmont Properties;

(eeee)                “Proportionate Interest” has the meaning given to that term in the JV Agreement;

(ffff)                    “Proposed Transferred Employees” has the meaning set out in Section 5.14(b);

(gggg)                “Receiving Party” has the meaning set out in Section 5.7(a);

(hhhh)            “Required Regulatory Approvals” means any approval, clearance, filing or expiration or termination of a waiting period in relation to the transactions contemplated hereby under any Antitrust and Trade Law of any country or jurisdiction that the Parties agree, acting reasonably, is required;

(iiii)                            “Surety Instrument” means any letter of credit, indemnity agreement, surety bond or other similar agreement of any Barrick Party or of any Newmont Party in respect of the ownership, operation, maintenance, reclamation, restoration or closure of the Barrick Contributed Assets or the Newmont Contributed Assets, as applicable;

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(jjjj)                        “Tax” or “Taxes” means all foreign, federal, national, provincial, state, city or municipal taxes, levies, duties, assessments, reassessments and other charges of any nature whatsoever, including income tax, franchise tax, profits tax, capital gains tax, gross receipts tax, corporation tax, mining tax, royalties, sales and use tax, wage tax, payroll tax, workers’ compensation levy, capital tax, stamp duty, real and personal property tax, land transfer tax, customs or excise duty, excise tax, turnover or value added tax on goods sold or services rendered, goods and services tax, withholding tax, social security, and any interest, penalties or other additions to tax;

(kkkk)            “Threshold Amount” has the meaning set out in Section 9.4;

(llll)       “Third Party” has the meaning set out in Section 9.7(e);

(mmmm)        “Third Party Claim” has the meaning set out in Section 9.5(a);

(nnnn)                        “Time of Closing” means 10:00 am (Toronto time) on the Closing Date or such other time on the Closing Date as agreed in writing by Barrick and Newmont;

(oooo)            “Transaction Documents” means this Agreement and the JV Agreement, together with all other agreements, documents and instruments required to be delivered by any Barrick Party or Newmont Party pursuant to this Agreement, and any other agreements, documents or instruments entered into at or prior to the Closing in connection with this Agreement or the transactions contemplated hereby; and

(pppp)            “Water Rights” means water rights owned or leased by any of the Barrick Parties or any of the Newmont Parties, as the context may require.

1.2                                                                               Rules of Construction

In this Agreement:

(a)                                 the terms “Agreement”, “this Agreement”, “the Agreement”, “hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions refer to this Agreement in its entirety and not to any particular provision hereof;

(b)                                 references to an “Article”, “Section” or “Schedule” followed by a number or letter refer to the specified Article or Section of or Schedule to this Agreement;

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(c)                                  the division of this Agreement into articles and Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement;

(d)                                 words importing the singular number only shall include the plural and vice versa and words importing the masculine gender shall include the feminine and neuter genders and vice versa;

(e)                                  unless otherwise indicated, any reference to a statute, regulation or rule shall be construed to be a reference thereto as the same may from time to time be amended, re-enacted or replaced, and any reference to a statute shall include any regulations or rules made thereunder;

(f)                                   the words “include”, “includes” and “including” mean “include”, “includes” or “including”, in each case, “without limitation”;

(g)                                  reference to any agreement or other instrument in writing means such agreement or other instrument in writing as amended, modified, replaced or supplemented from time to time;

(h)                                 unless otherwise indicated, time periods within which a payment is to be made or any other action is to be taken hereunder shall be calculated excluding the day on which the period commences and including the day on which the period ends; and

(i)                                     whenever any payment to be made or action to be taken hereunder is required to be made or taken on a day other than a Business Day, such payment shall be made or action taken on the next following Business Day.

1.3                                                                               Currency

Unless otherwise indicated, all dollar amounts referred to in this Agreement are expressed in United States dollars.

1.4                                                                               Time of Essence

Time shall be of the essence of this Agreement.

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1.5                                                                               Schedules

The following Schedules are attached to and form part of this Agreement:

ARTICLE 2
PRE-CLOSING TRANSACTIONS

2.1                                                                               Barrick Pre-Closing Transactions

(a)                                 Subject to the terms and conditions of this Agreement, including the requirements of this Section 2.1, prior to Closing, the Barrick Parties shall execute the transactions described in Schedule 2.1 (the “Barrick Pre-Closing Transactions”).

(b)                                 Barrick shall cause the Barrick Parties to provide Newmont with copies of all documentation to effect the Barrick Pre-Closing Transactions and shall provide Newmont with a reasonable advance opportunity to review and comment upon all such documentation, and shall consider in good faith any comments received from Newmont, provided that Newmont shall provide such comments no later than five Business Days following receipt by Newmont of such documentation.  For the avoidance of doubt, none of the Barrick Parties shall be obligated to make any changes requested by Newmont if it determines in good faith not to do so.

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2.2                                                                               Newmont Pre-Closing Transactions

(a)                                 Subject to the terms and conditions of this Agreement, including the requirements of this Section 2.2, prior to Closing the Newmont Parties shall execute the transactions described in Schedule 2.2 (the “Newmont Pre-Closing Transactions”).

(b)                                 Newmont shall cause the Newmont Parties to provide Barrick with copies of all documentation to effect the Newmont Pre-Closing Transactions and shall provide Barrick with a reasonable advance opportunity to review and comment upon all such documentation, and shall consider in good faith any comments received from Barrick, provided that Barrick shall provide such comments no later than five Business Days following receipt by Barrick of such documentation.  For the avoidance of doubt, none of the Newmont Parties shall be obligated to make any changes requested by Barrick if it determines in good faith not to do so.

2.3                                                                               Information Regarding Pre-Closing Transactions

With respect to the Barrick Pre-Closing Transactions and the Newmont Pre-Closing Transactions, as applicable, each Party shall: (i) keep the other Party promptly and fully apprised as to all material matters in connection therewith; (iii) provide the other Party with all information reasonably requested in connection therewith; (iv) promptly notify the other Party upon becoming aware of any issue therewith or impediment to completion thereof; and (v) promptly notify the other Party of the due completion thereof.

2.4                                                                               Alternative Reorganization Steps

(a)                                 If, between the date of this Agreement and the Closing Date, either Barrick or Newmont identify pre-closing steps which, if implemented prior to Closing, will improve the tax efficiency of the transactions contemplated herein, or would otherwise facilitate or expedite Closing (including the contribution to the JV Company of the Barrick Contributed Assets and the Newmont Contributed Assets) (“Alternative Reorganization Steps”), it shall notify the other Party in writing of such Alternative Reorganization Steps.

(b)                                 Each of Barrick and Newmont agree to consider in good faith any Alternative Reorganization Steps proposed by the other.  If Barrick and Newmont agree, acting reasonably, that the Alternative Reorganization Steps can be completed in a manner that does not adversely impact the other Party in any material respect,

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they shall work together in good faith to implement the Alternative Reorganization Steps, and such Alternative Reorganization Steps shall be deemed for purposes of this Agreement to be the Barrick Pre-Closing Transactions and/or the Newmont Pre-Closing Transactions, as applicable, and this Agreement shall be amended to reflect any such steps.  If Barrick and Newmont are, for any reason, unable to agree on whether to implement the Alternative Reorganization Steps, the status quo shall prevail, the Alternative Reorganization Steps shall not be implemented, and the Barrick Pre-Closing Transactions and Newmont Pre-Closing Transactions shall be implemented pursuant to Section 2.1 and Section 2.2, respectively.

ARTICLE 3
JOINT VENTURE FORMATION

3.1                                                                               Transfer of Barrick Contributed Assets to the JV Company

(a)                                 On the terms and subject to the conditions set out in this Agreement (including Section 3.1(b)), including the completion of the Barrick Pre-Closing Transactions, as of and with effect from the Time of Closing, Barrick shall cause the Barrick Parties to sell, assign and transfer to the JV Company, and the Parties shall cause the JV Company to purchase from the Barrick Parties, free and clear of all Encumbrances other than Permitted Encumbrances, all of the Barrick Parties’ right, title and interest in, to or under any assets, properties or rights located in the State of Nevada and relating primarily to the Barrick Properties, in each case, in which the Barrick Parties have any right, title or interest as of the date of this Agreement or in which the Barrick Parties acquire any right, title or interest on or before Closing, including all interests in Sliver LLC and ▇▇▇▇▇▇ LLC, as described in Schedule 2.1 (collectively, the “Barrick Contributed Assets”), including:

(i)                                     all Mining Rights relating to the Barrick Properties, together with (X) all the immovable property, easements and rights of way related thereto, and (Y) all plant, buildings, structures, improvements and fixtures (including fixed machinery and fixed equipment) located thereon or forming part thereof, including but not limited to those plants, buildings, structures, improvements and fixtures listed on Schedule 3.1;

(ii)                                  all Water Rights relating to the Barrick Properties;

(iii)                               all ranches situated in the State of Nevada;

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(iv)                              all power assets situated in the State of Nevada;

(v)                                 all machinery, equipment, parts, furniture, furnishings, accessories and other fixed assets (whether owned or leased) used or held for use in respect of the Barrick Properties;

(vi)                              those Contracts relating primarily to the Barrick Properties (subject to the obtaining of any necessary consents to assignment or transfer as may be necessary or advisable);

(vii)                           the full benefit of all of the Permits relating to the Barrick Properties;

(viii)                        all Inventories relating to the Barrick Properties;

(ix)                              accounts receivable related to the Barrick Contributed Assets;

(x)                                 all deposits and prepaid expenses paid by the Barrick Parties in connection with the Barrick Properties;

(xi)                              a non-exclusive licence to use Intellectual Property of Barrick or any Affiliate of Barrick currently used in connection with mining (but not exploration) of any of the Barrick Properties and the business and operations related thereto;

(xii)                           all books and records and computer hardware and software (including related rights and licences) relating primarily to the Barrick Properties and the business and operations related thereto;

(xiii)                        all of the Barrick Parties’ rights under any warranties, indemnities and similar arrangements against third parties to the extent relating to the Barrick Properties; and

(xiv)                       such other assets, properties and rights as may relate primarily to the Barrick Properties.

(b)                                 For the avoidance of doubt, the Barrick Contributed Assets shall exclude all Barrick Excluded Assets.

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(c)                                  If during the Interim Period, Barrick determines that there was inadvertently included in the Barrick Contributed Assets an asset that relates primarily to a closure property that is not a part of one of the Barrick Properties, such asset shall be excluded from the Barrick Contributed Assets.

3.2                                                                               Assumption of Barrick Assumed Liabilities by the JV Company

Subject to the terms and conditions of this Agreement, including the completion of the Barrick Pre-Closing Transactions, at the Time of Closing, the Parties shall cause the JV Company to assume, and agree to perform and discharge when due the Barrick Assumed Liabilities and to indemnify and save harmless the Barrick Indemnified Parties and the Newmont Indemnified Parties (in each case other than the JV Company) from and against all Losses suffered or incurred by any of the them as a result of or arising directly or indirectly out of or in connection with the Barrick Assumed Liabilities.

3.3                                                                               Transfer of Newmont Contributed Assets to the JV Company

(a)                                 On the terms and subject to the conditions set out in this Agreement (including Section 3.3(b)), including the completion of the Newmont Pre-Closing Transactions, as of and with effect from the Time of Closing, Newmont shall cause the Newmont Parties to sell, assign and transfer to the JV Company, and the Parties shall cause the JV Company to purchase from the Newmont Parties, free and clear of all Encumbrances other than Permitted Encumbrances, all of the Newmont Parties’ right, title and interest in, to or under any assets, properties or rights located in the State of Nevada and relating primarily to the Newmont Properties, in each case, in which the Newmont Parties have any right, title or interest as of the date of this Agreement or in which the Newmont Parties acquire any right, title or interest on or before the Closing (collectively, the “Newmont Contributed Assets”), including:

(i)                                     all Mining Rights relating to the Newmont Properties, together with (X) all the immovable property, easements and rights of way related thereto, and (Y) all plant, buildings, structures, improvements and fixtures (including fixed machinery and fixed equipment) located thereon or forming part thereof, including but not limited to those plants, buildings, structures, improvements and fixtures listed on Schedule 3.3;

(ii)                                  all Water Rights relating to the Newmont Properties;

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(iii)                               all ranches situated in the State of Nevada;

(iv)                              all power assets situated in the State of Nevada;

(v)                                 all machinery, equipment, parts, furniture, furnishings, accessories and other fixed assets (whether owned or leased) used or held for use in respect of the Newmont Properties;

(vi)                              those Contracts relating exclusively to the Newmont Properties (subject to the obtaining of any necessary consents to assignment or transfer as may be necessary or advisable);

(vii)                           the full benefit of all of the Permits relating to the Newmont Properties;

(viii)                        all Inventories relating to the Newmont Properties;

(ix)                              accounts receivable related to the Newmont Contributed Assets;

(x)                                 all deposits and prepaid expenses paid by the Newmont Parties in connection with the Newmont Properties;

(xi)                              a non-exclusive licence to use Intellectual Property of Newmont or any Affiliate of Newmont currently used in connection with mining (but not exploration) of any of the Newmont Properties and the business and operations related thereto;

(xii)                           all books and records and computer hardware and software (including related rights and licences) relating primarily to the Newmont Properties and the business and operations related thereto;

(xiii)                        all of the Newmont Parties’ rights under any warranties, indemnities and similar arrangements against third parties to the extent relating to the Newmont Properties; and

(xiv)                       such other assets, properties and rights as may relate primarily to the Newmont Properties.

(b)                                 For the avoidance of doubt, the Newmont Contributed Assets shall exclude all Newmont Excluded Assets.

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(c)                                  If during the Interim Period, Newmont determines that there was inadvertently included in the Newmont Contributed Assets an asset that relates primarily to a closure property that is not a part of one of the Newmont Properties, such asset shall be excluded from the Newmont Contributed Assets.

3.4                                                                               Assumption of Newmont Assumed Liabilities by the JV Company

Subject to the terms and conditions of this Agreement, including the completion of the Newmont Pre-Closing Transactions, at the Time of Closing, the Parties shall cause the JV Company to assume, and agree to perform and discharge when due the Newmont Assumed Liabilities and to indemnify and save harmless the Barrick Indemnified Parties and the Newmont Indemnified Parties (in each case other than the JV Company) from and against all Losses suffered or incurred by any of the them as a result of or arising directly or indirectly out of or in connection with the Newmont Assumed Liabilities.

3.5                                                                               Purchase Price

At the Time of Closing: (a) the Barrick Parties shall receive, in the aggregate, a 61.5% membership interest in the JV Company (the “Barrick Interests”) free and clear of all Encumbrances in consideration for the contribution of the Barrick Contributed Assets to the JV Company; and (b) Newmont Parties shall receive, in the aggregate, a 38.5% membership interest (the “Newmont Interest”) in the JV Company free and clear of all Encumbrances in consideration for the contribution of the Newmont Contributed Assets to the JV Company.  For the avoidance of doubt, at the Closing Time, the Members shall be the sole members of the JV Company.

3.6                                                                               Contribution of Barrick and Newmont Interests

Immediately after the transfer of the Barrick Contributed Assets and the Newmont Contributed Assets and the Assumption of the Barrick Assumed Liabilities and the Newmont Assumed Liabilities, Barrick shall, and shall cause the other Barrick Parties to, contribute the Barrick Interests to Barrick Holdco in exchange for interests in Barrick Holdco and Newmont shall, and shall cause the other Newmont Parties to, contribute the Newmont Interests to Newmont Holdco in exchange for interests in the Newmont Holdco.

3.7                                                                               Transfer Taxes

The JV Company shall be liable for, and shall pay directly to the appropriate Governmental Authority all transfer Taxes and all other duties, fees or other like charges payable by the

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Parties in connection with the Barrick Pre-Closing Transactions, the Newmont Pre-Closing Transactions, and the transfer of the Barrick Contributed Assets and the Newmont Contributed Assets to the JV Company.  Barrick Holdco and Newmont Holdco will each contribute cash to the JV Company equal to their respective Proportionate Interests of the Transfer Taxes at or before the Time of Closing.

3.8                                                                               JV Agreement

At the Time of Closing, the Parties shall, and shall cause their respective Members and the JV Company to, enter into the JV Agreement and shall take all actions and steps necessary to ensure that the Constating Documents and other corporate records of the JV Company are consistent with and reflect the ownership structure of the JV Company contemplated by this Agreement.

ARTICLE 4
CLOSING ARRANGEMENTS

4.1                                                                               Closing Date

Subject to compliance with the terms and conditions of this Agreement, the transfer of the Barrick Contributed Assets and the Newmont Contributed Assets to the JV Company in return for limited liability company interests in the JV Company, and the assumption by the JV Company of the Barrick Assumed Liabilities and the Newmont Assumed Liabilities, in each case, as contemplated by Article 3 shall be deemed to take effect as at the Time of Closing (a) on the date that is five Business Days after the date on which the last of the conditions set forth in Article 8 (other than any such conditions which by their terms are not capable of being satisfied until the Closing Date, but subject to the satisfaction or waiver of those conditions at Closing) is satisfied or waived, or (b) on such other date as Barrick and Newmont may mutually determine, provided that the Closing Date shall occur no later than the Outside Date.  The date on which the Closing actually occurs is referred to herein as the “Closing Date”.

4.2                                                                               Place of Closing

The Closing shall take place at the offices of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, or at such other location as may be agreed upon by the Parties.

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4.3                                                                               Delivery of Closing Documentation to Barrick

At the Time of Closing, Newmont shall deliver or cause to be delivered the following to Barrick:

(a)                                 a certificate of status or equivalent for each of Newmont and Newmont Holdco;

(b)                                 a certificate from a senior officer of Newmont certifying (i) the Constating Documents of Newmont, (ii) the incumbency of certain officers of Newmont, and (iii) the resolutions of the Board of Directors of Newmont approving the Transaction Documents and the transactions contemplated hereby and thereby;

(c)                                  a certificate from a senior officer of Newmont Holdco certifying (i) the Constating Documents of Newmont Holdco, (ii) the incumbency of certain senior officers of Newmont Holdco, (iii) any applicable corporate authorizations of Newmont Holdco approving the Transaction Documents and the transactions contemplated hereby and thereby;

(d)                                 the certificates contemplated by Section 8.2(a) and Section 8.2(b);

(e)                                  the JV Agreement, duly executed and delivered by each of Newmont and Newmont Holdco;

(f)                                   the Deeds necessary to convey the Newmont Contributed Assets; and

(g)                                  such other agreements, instruments of transfer and assignment, certificates, resolutions and other closing documents giving effect to the transactions contemplated herein as of the Time of Closing as are customary for similar transactions or as may be required by Barrick, acting reasonably, all in form satisfactory to Barrick, acting reasonably.

4.4                                                                               Delivery of Closing Documentation to Newmont

At the Time of Closing, Barrick shall deliver or cause to be delivered the following to Newmont:

(a)                                 a certificate of status or equivalent for each of Barrick and Barrick Holdco;

(b)                                 a certificate from a senior officer of Barrick certifying (i) the Constating Documents of Barrick, (ii) the incumbency of certain officers of Barrick, and (iii)

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the resolutions of the Board of Directors of Barrick approving the Transaction Documents and the transactions contemplated hereby and thereby;

(c)                                  a certificate from a senior officer of Barrick Holdco certifying (i) the Constating Documents of Barrick Holdco, (ii) the incumbency of certain senior officers of Barrick Holdco, (iii) any applicable corporate authorizations of Barrick Holdco approving the Transaction Documents and the transactions contemplated hereby and thereby;

(d)                                 the certificates contemplated by Section 8.3(a) and Section 8.3(b);

(e)                                  the JV Agreement, duly executed and delivered by each of Barrick, Barrick Holdco and the JV Company;

(f)                                   the Deeds necessary to convey the Barrick Contributed Assets; and

(g)                                  such other agreements, instruments of transfer and assignment, certificates, resolutions and other closing documents giving effect to the transactions contemplated herein as of the Time of Closing as are customary for similar transactions or as may be required by Newmont, acting reasonably, all in form satisfactory to Newmont, acting reasonably.

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 of the cash needed to fund Cash Requirements of the joint venture for the first 90 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 share 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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ARTICLE 5
COVENANTS OF THE PARTIES

5.1                                                                               Notice of Certain Events

Barrick and Newmont agree that, subject to applicable Laws, each shall provide the other with prompt notice in writing (together with copies of all related documents) of:

(a)                                 any notice or communication from any person alleging that the consent of such person is or may be required in connection with the transactions contemplated by this Agreement or the Pre-Closing Transactions;

(b)                                 any material notice or communication from any applicable Governmental Authority in connection with the transactions contemplated by this Agreement or the Pre-Closing Transactions;

(c)                                  any material Proceeding commenced or threatened against it or the JV Company which relates to the consummation of the transactions contemplated by this Agreement or the Pre-Closing Transactions;

(d)                                 the occurrence of any matter or event that has a material and adverse effect on the Barrick Contributed Assets and Barrick Assumed Liabilities, taken as a whole, or the Newmont Contributed Assets and Newmont Assumed Liabilities, taken as a whole, respectively; and

(e)                                  any failure by it or its Affiliates to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied under this Agreement,

provided that the giving of any such notice shall not in any way change or modify the representations and warranties of Barrick or Newmont, or any conditions in favour of Barrick or Newmont, contained in this Agreement or otherwise affect the remedies available to Barrick and Newmont under this Agreement.

5.2                                                                               Access to Information

(a)                                 Except to the extent prohibited by applicable Law, during the Interim Period, each of Barrick and Newmont shall continue providing each other, and their respective officers, directors, employees, consultants and advisors:

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(i)                                     reasonable access to the Barrick Properties and the Newmont Properties, respectively, at mutually agreeable times during regular business hours, subject to applicable health and safety rules, regulations and protocols;

(ii)                                  reasonable access to their respective books, contracts (except as restricted by confidentiality obligations to the other party or parties thereto), commitments, reports and records related to the Barrick Properties and the Newmont Properties, respectively, including the right to inspect any information systems and other assets;

(iii)          true and complete copies of all title documents to all of the Barrick Properties and Newmont Properties, respectively; and

(iv)                              such financial and operating data and other information as each of Barrick and Newmont may from time to time reasonably request with respect to the Barrick Contributed Assets and the Newmont Contributed Assets, respectively.

(b)                                 Each of Barrick and Newmont, and their respective officers, directors, employees, consultants and advisors shall conduct all such inspections in a manner that will minimize disruptions to the business and operations of the other.

(c)                                  The information received by a Party pursuant to this Section 5.2 shall be deemed to be Confidential Information subject to the requirements of Section 5.7.

5.3                                                                               Parties to Work Constructively to Facilitate Closing

During the Interim Period, subject to applicable Laws, the Parties agree to cooperate to constructively take such steps as are reasonably necessary so that the JV Company is in a position to seamlessly begin operating the Barrick Contributed Assets and the Newmont Contributed Assets as a unified operation from and after Closing.  During the Interim Period, the Parties agree to cooperate to refine and add further specificity to the descriptions of the properties identified as being excluded from the definitions of Barrick Properties and Newmont Properties, including the boundaries thereof.

5.4                                                                               Efforts to Close

Each Party shall take all such actions as are within its power and otherwise use its best efforts to satisfy (or cause the satisfaction of) the Closing Conditions in Article 8 to the extent that such

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is within its control, and to take, or cause to be taken, all other reasonable action and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to complete the transactions contemplated hereby as soon as reasonably practicable following the date hereof, and not to take or agree to take any action that would reasonably be expected to delay or prevent the consummation of the transactions contemplated by this Agreement, including taking all such actions as are necessary in respect of the following:

(a)                                 the establishment of the JV Company by Barrick;

(b)                                 the execution and delivery of the JV Agreement;

(c)                                  completion of the Barrick Pre-Closing Transactions and the Newmont Pre-Closing Transactions;

(d)                                 during the Interim Period, causing the JV Company to do all such things as may be necessary or advisable in order to give effect to the transactions contemplated in this Agreement;

(e)                                  obtaining or cooperating in obtaining all necessary waivers, consents and approvals required to be obtained to consummate the transactions contemplated hereby;

(f)                                   effecting or cooperating in effecting all necessary registrations and filings and submissions of information requested by Governmental Authorities required to be effected by it in connection with the transactions contemplated hereby and participating and appearing in any required proceeding before Governmental Authorities in connection herewith;

(g)                                  opposing, lifting or rescinding or cooperating in opposing, lifting or rescinding any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated under this Agreement;

(h)                                 (i) cooperating to split, replace or otherwise modify Contracts applicable to the operations of both the Newmont Contributed Assets and other operations of Newmont, and (ii) if requested by Newmont, negotiating in good faith to implement a toll milling arrangement with the JV Company in respect of Newmont’s Cripple Creek and ▇▇▇▇▇▇ mine on terms mutually acceptable to Barrick and Newmont;

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(i)                                     cooperating to obtain any necessary third party valuations of the Newmont Contributed Assets and of the Barrick Contributed Assets for ▇▇▇▇▇▇▇’▇ use and Newmont’s use, in recording the accounting impacts associated with the transaction contemplated by this Agreement and the joint venture formed in connection herewith; and

(j)                                    otherwise cooperating with the other Party in connection with the performance by such other Party of its obligations hereunder.

For greater clarity, the foregoing shall in no way condition or qualify the covenants of the Parties set out herein and the Parties’ respective obligations to perform such covenants.

5.5                                                                               Formation of JV Company

The JV Company shall be formed by Barrick prior to the Closing as a limited liability company under the laws of the State of Delaware. Barrick shall consult with Newmont with respect to the Constating Documents of the JV Company prior to its formation.

5.6                                                                               Required Regulatory Approvals

(a)                                 Barrick and Newmont shall make, as promptly as reasonably practicable and in any event within 15 Business Days after the date hereof (or such longer period as the Parties may agree), all necessary or advisable filings, notifications and other submissions, including in draft where required, with respect to the transactions contemplated in this Agreement as are required to commence the process to obtain the Required Regulatory Approvals.  In the event that any Governmental Authority requests any additional information from a Party pursuant to its review of this Agreement, such Party shall respond to that information request as promptly as reasonably practicable. Each of Barrick and Newmont shall use its best efforts to obtain and maintain the Required Regulatory Approvals as promptly as reasonably practicable.

(b)                                 Barrick and Newmont shall cooperate with one another in connection with obtaining the Required Regulatory Approvals and shall:

(i)                                     give each other reasonable advance notice of all meetings or other oral communications with any Governmental Authority relating to the Required Regulatory Approvals;

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(ii)                                  not participate independently in any such meeting or other oral communication without first giving the other Party (or the other Party’s outside counsel) an opportunity to attend and participate in such meeting or other oral communication, unless otherwise required or requested by such Governmental Authority;

(iii)                               if any Governmental Authority initiates an oral communication regarding the Required Regulatory Approvals, promptly notify the other Party of the substance of such communication;

(iv)                              subject to applicable Laws relating to the exchange of information, provide each other with a reasonable advance opportunity to review and comment upon and consider in good faith the views of the other in connection with all written communications (including any filings, notifications, submissions, analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party hereto) with a Governmental Authority regarding the Required Regulatory Approvals; and

(v)                                 promptly provide each other with copies of all written communications to or from any Governmental Authority relating to the Required Regulatory Approvals.

(c)                                  Each of the Parties shall promptly notify the other Party upon:

(i)                                     becoming aware of any Order or any complaint requesting an Order restraining or enjoining the execution of this Agreement or the consummation of the transactions contemplated under this Agreement; or

(ii)                                  receiving any notice from any Governmental Authority of its intention:

A.                                    to institute a suit or proceeding to restrain or enjoin the execution of this Agreement or the consummation of any of the transactions contemplated by this Agreement; or

B.                                    to nullify or render ineffective this Agreement or any such transactions if consummated.

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(d)                                 Barrick and Newmont shall each pay an equal share of any requisite filing fees and applicable Taxes in relation to any filing or application required in respect of the Required Regulatory Approvals.

(e)                                  Notwithstanding any requirement in this Section 5.6 in connection with obtaining the Required Regulatory Approvals, where a Party is required under this Section 5.6 to provide information to another Party that the disclosing Party deems to be competitively sensitive information, the disclosing Party may restrict the provision of such competitively sensitive information only to the external legal counsel of the receiving Party, provided that the disclosing Party also provides a redacted version to the receiving Party.

5.7                                                                               Confidentiality

(a)                                 Each Party (a “Receiving Party”) agrees that it shall maintain as confidential and shall not disclose, and shall cause its Affiliates, employees, officers, directors, advisors, agents and representatives to maintain as confidential and not to disclose, the terms contained in this Agreement and all information (whether written, oral or in electronic format) received or reviewed by it as a result of or in connection with this Agreement (“Confidential Information”), except that a Receiving Party may disclose Confidential Information:

(i)                                     to its auditors, legal counsel, lenders, brokers, underwriters, bankers and investment bankers and to Persons with whom it is considering or intends to enter into a transaction for whom such Confidential Information would be relevant, provided that such Persons are advised of the confidential nature of the Confidential Information, undertake to maintain the confidentiality of it and are strictly limited in their use of the Confidential Information to those purposes necessary for such Persons to perform the services for which they were, or are proposed to be, retained by the Receiving Party or to consider or effect the applicable transaction, as applicable;

(ii)                                  subject to Section 5.8, where that disclosure is necessary to comply with any applicable Law, court Order, its disclosure obligations and requirements under any securities law, rules or regulations or stock exchange listing agreements, provided that such disclosure is limited to only that Confidential Information so required to be disclosed and that the Receiving Party will have availed itself of the full benefits of any laws,

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rules, regulations or contractual rights as to disclosure on a confidential basis to which it may be entitled including, to the extent permitted by applicable Laws, redacting all proprietary, structural or other Confidential Information of any Party prior to making such disclosure and, where practicable, only following prior review of the disclosing Party;

(iii)                               where such information is already widely known by the public other than by a breach of the confidentiality terms of this Agreement or is known by the Receiving Party prior to the entry into of this Agreement or obtained independently of this Agreement and the disclosure of such information would not breach any other confidentiality obligations;

(iv)                              as permitted by Section 5.8;

(v)                                 with the approval of the disclosing Party;

(vi)                              in connection with any legal proceeding arising in connection with this  Agreement, subject to such confidentiality procedures as may be reasonably requested by the disclosing Party and approved by the court; and

(vii)                           to those of its and its Affiliates’ directors, officers, employees, representatives and agents who need to have knowledge of the Confidential Information.

(b)                                 Each Party shall ensure that its and its Affiliates’ employees, directors, officers, representatives and agents and those persons listed in Section 5.7(a)(i) are made aware of, and comply with the provisions of, this Section 5.7.  Each Party shall be liable to the other Parties for any improper use or disclosure of such terms or information by such persons.

5.8                                                                               Public Announcements

(a)                                 Each Party shall, in advance of making, or any of its Affiliates making, a public announcement pursuant to applicable securities legislation, stock exchange rules or otherwise concerning this Agreement or the transactions contemplated hereby, advise the other Party of the text of the proposed public announcement and provide such other Party with reasonable prior notice (as the requesting party has determined to be necessary in the circumstances, acting reasonably

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and in good faith, having consideration to applicable laws and stock exchange requirements) to make comment on the content thereof. If a Party does not respond to a request for comments within such reasonable notice period, the Party making the announcement shall be entitled to issue the announcement without the input of the other Party.

(b)                                 The requirements in Section 5.8(a) shall be subject to each Party’s overriding obligation to make any disclosure in accordance with applicable Laws, and if such disclosure is required and the other Party has not had an opportunity to review or comment on the disclosure, the Party making such disclosure shall use commercially reasonable efforts to give prior notice to the other Party, and if such prior notice is not possible, to give such notice immediately following the making of such disclosure.

(c)                                  Nothing in this Section 5.8 shall prevent either Party from making internal announcements to employees and having discussions with shareholders and financial analysts and other stakeholders so long as the content of such statements and announcements are consistent with and limited in all material respects to the content contained in the most recent press releases, public disclosures or public statements made by the Parties.  The restrictions set forth in this Section 5.8 shall not apply to any release or public statement in connection with any dispute regarding this Agreement or the transactions contemplated hereby.

5.9                                                                               Conduct of Operations

(a)                                 During the Interim Period, other than (i) as expressly required or permitted by this Agreement, (ii) as required pursuant to applicable Laws, (iii) actions reasonably required to respond appropriately and prudently to an emergency or a disaster, or (iv) as expressly consented to in writing by the other Party (such consent not to be unreasonably withheld, conditioned or delayed), each of the Parties shall, and shall cause each of the Barrick Parties or Newmont Parties, as applicable, to: (X) conduct its business, operations and affairs in respect of its Properties (including with respect to capital expenditures, sales, inventory management (including gold in circuit), and cash distributions) only in the Ordinary Course and in accordance with Good Mining Practice.

(b)                                 Without limiting the generality of Section 5.9(a), during the Interim Period, other than (i) as expressly required or permitted by this Agreement, (ii) as required

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pursuant to applicable Laws, (iii) actions reasonably required to respond appropriately and prudently to an emergency or a disaster, or (iv) as expressly consented to in writing by the other Party (such consent not to be unreasonably withheld, conditioned or delated), neither of the Parties shall, and each Party shall procure that none of the Barrick Parties or Newmont Parties shall, as applicable, directly or indirectly:

(i)                                     amend or propose to amend the Constating Documents of any Person owning Barrick Contributed Assets or Newmont Contributed Assets in a manner that would impair the ability of that Person to consummate the Closing in accordance with the terms hereof or otherwise delay such consummation;

(ii)                                  acquire any Person, business or assets, other than in the Ordinary Course, or otherwise undertake acquisitions, in the Area of Interest except as set out in Section 5.9(b)(ii) of the Barrick Disclosure Letter or the Newmont Disclosure Letter, as applicable;

(iii)                               sell, transfer, dispose of, lease, encumber, relinquish or abandon any Barrick Contributed Assets or Newmont Contributed Assets, except (i) in the Ordinary Course, or (ii) as disclosed in Section 5.9(b)(iii) of the Barrick Disclosure Letter or Newmont Disclosure Letter, as applicable;

(iv)                              enter into any Contract which would be a Barrick Material Contract or a Newmont Material Contract, as the case may be, if entered into as of the date hereof, or amend any Contract that constitutes a Barrick Material Contract  or a Newmont Material Contract

(v)                                 make or change any material Tax election, adopt or change any method of Tax accounting, enter into any closing agreement with respect to a material amount of Taxes or settle any material Tax claim, audit or assessment, in each case, with respect to the Barrick Contributed Assets or the Newmont Contributed Assets, as applicable;

(vi)                              (A) incur any indebtedness for borrowed money or other Liability that will constitute a Barrick Assumed Liability or Newmont Assumed Liability, as applicable, other than short-term indebtedness, Liabilities that are incurred in the Ordinary Course (and which are not indebtedness for borrowed money), letters of credit or sureties in the Ordinary Course, and

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as set out in Section 5.9(b)(vi) of the Disclosure Letter, (B) for each Barrick Party or Newmont Party that owns Barrick Contributed Assets or Newmont Contributed Assets, respectively, assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person if such obligation will constitute a Barrick Assumed Liability or a Newmont Assumed Liability, as applicable, or (C) modify the terms of any indebtedness or liability relating to Barrick Contributed Assets or Newmont Contributed Assets other than in the Ordinary Course;

(vii)                           extend any loans or advances that will be a Barrick Contributed Asset or a Newmont Contributed Asset, as applicable, to any Person or assume or guarantee the liabilities of any person that will constitute a Barrick Assumed Liability or Newmont Assumed Liability, as applicable, other than in the Ordinary Course;

(viii)                        except in the Ordinary Course, settle, offer or propose to settle, compromise, assign or release any material Proceeding brought against any Barrick Party or Newmont Party, as applicable, in respect of or in connection with the Properties, if the obligations in respect of such settlement, compromise, assignment or release will constitute a Barrick Assumed Liability or Newmont Assumed Liability, as applicable

(ix)                              waive, release or assign any rights or claims material to the Barrick Properties or the Newmont Properties, as applicable, except in the Ordinary Course;

(x)                                 grant to any third party any right or interest in, or Encumbrance (other than a Permitted Encumbrance) over, the Barrick Contributed Assets or the Newmont Contributed Assets;

(xi)                              enter into any agreement creating a joint venture or partnership or effecting a business combination or other similar arrangement with another person in respect of any of the Barrick Contributed Assets or the Newmont Contributed Assets, as applicable;

(xii)                           dispose of or permit to lapse any material rights to any Intellectual Property that would be included in the Barrick Contributed Assets or the Newmont Contributed Assets, as applicable;

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(xiii)                        take any action or agree to take any actions that would make any of the representations and warranties contained herein inaccurate in any material respect at, or as of any time prior to, the Closing Date, or that would impair its ability to consummate the Closing in accordance with the terms hereof or delay such consummation;

(xiv)                       cause the JV Company to (A) take any action, or engage in any activities, other than those activities that are necessary to consummate the transaction consummated by this Agreement, or (B) incur or assume any Liabilities, other than the Barrick Assumed Liabilities and the Newmont Assumed Liabilities; or

(xv)                          attempt, resolve or agree to do any of the matters listed in the foregoing paragraphs, as applicable.

(c)                                  Notwithstanding the provisions of this Section 5.9, it is understood and agreed that the Barrick Parties shall be permitted to carry out the Barrick Pre-Closing Transactions and the Newmont Parties shall be permitted to carry out the Newmont Pre-Closing Transactions, in each case, in accordance with the terms of this Agreement.

5.10                                                                        “As-Is, Where-Is” Condition of Assets; Non-Reliance

Each of the Parties acknowledges, covenants and agrees that, absent fraud, at the Time of Closing the JV Company shall purchase the Barrick Contributed Assets and the Newmont Nevada Assets, and assume the Barrick Assumed Liabilities and the Newmont Assumed Liabilities, on an “as-is, where-is” basis as they exist as of the Time of Closing without any representations or warranties from the other Party, including with respect to Environmental Liabilities, closure, land title, post-closure monitoring and maintenance, rehabilitation, remediation, reclamation or restoration matters, other than the express representations and warranties set out in Article 6 (in the case of Barrick) and Article 7 (in the case of Newmont). Each of the Parties specifically disclaims that it is relying upon or has relied upon any representations or warranties, other than the express representations and warranties set out in Article 6 (in the case of Barrick) and Article 7 (in the case of Newmont), that may have been made by any Person.

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5.11                                                                        Branding

Barrick and Newmont agree that their representatives will, as soon as practicable following the date hereof, meet to discuss the name, branding, logos and marks to be used by the JV Company following the Time of Closing, which shall be subject to agreement of Newmont and Barrick, both acting reasonably.

5.12                                                                        Non-Assignable Assets

(a)                                 To the extent that (i) the rights under any Contract or Permit cannot be conveyed to the JV Company on Closing without the prior consent or approval of any Person or Governmental Authority, or (ii) in the case of Permits, the consent or approval of any Person or Governmental Authority is, in connection with transactions of the type contemplated by this Agreement, customarily obtained following consummation of the transaction (“Customary Post-Closing Consents”), the Barrick Party or the Newmont Party that is party to or otherwise holds such Contract or Permit shall use its commercially reasonable efforts to ensure that consents or approvals to the assignment of such Contract or Permit (each, a “Non-Assignable Asset”) to the JV Company are obtained within 90 days following the Closing.  Notwithstanding any provision to the contrary, the obtaining of any such consents or approvals is not a condition precedent to Closing in favour of either Party.

(b)                                 Until such time as any Non-Assignable Assets have been assigned to the JV Company, to the greatest extent permitted by Law, the Barrick Party or the Newmont Party that is party to or otherwise holds such Contract or Permit shall continue to hold such Non-Assignable Assets in trust for the benefit of the JV Company and to provide the benefit of such Non-Assignable Assets to the JV Company.  To the greatest extent permitted by Law, all liabilities associated with any Non-Assignable Assets shall be, and shall for all purposes be deemed to be, transferred to the JV Company as of the Closing Date and the JV Company shall thereafter be fully responsible and liable therefor, and the Parties shall cause the JV Company to indemnify and save harmless the Barrick Party or the Newmont Party that is party to or otherwise holds such Non-Assignable Asset.

5.13                                                                        Improper or Unintended Transfers

If, during the 12-month period following Closing:

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(a)                                 Barrick or Newmont determine that there was inadvertently transferred to the JV Company one or more assets (including Contracts) or Liabilities that does not relate primarily to a Barrick Property or a Newmont Property, such assets or Liabilities shall be transferred and conveyed by the JV Company to the applicable Barrick Party or Newmont Party; and

(b)                                 Barrick or Newmont determine that there was inadvertently excluded from the Barrick Contributed Assets, the Newmont Contributed Assets, the Barrick Assumed Liabilities or the Newmont Assumed Liabilities one or more assets (including Contracts) or Liabilities that relates primarily to a Barrick Property or a Newmont Property, such assets or Liabilities shall be transferred and conveyed to the JV Company by Barrick (or the applicable Barrick Affiliate) or Newmont (or the applicable Newmont Affiliate), as applicable.

5.14                                                                        JV Company Employees

(a)                                 The Barrick Parties shall identify current employees of the Barrick Parties who shall be offered employment by the JV Company effective as at and from the Closing Date (“Barrick Transferred Employees”).

(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

(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 offered employment with the JV Company (“Newmont Transferred Employees”).  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 Transferred Employees”), excluding any Management Employees that Newmont intends to employ at locations other than those included in the Barrick

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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 who will not be made offers of employment by the JV Company (the “Excluded Employees”).  All Management Employees on the list of Proposed Transferred Employees that are not Excluded Employees will receive offers of employment from the JV Company and, if those offers are accepted, will be considered Newmont Transferred Employees for purposes of this Agreement.

(c)                                  The Parties recognize that the 2019 Agreement between Newmont USA Limited and Operating Engineers Local Union #3 of the International Union of Operating Engineers AFL-CIO (“2019 Agreement”) shall remain in full force and effect from and after the Closing with the JV Company as the transferee of the 2019 Agreement. The Parties shall cause the JV Company to recognize Operating Engineers Local Union #3 of the International Union of Operating Engineers AFL-CIO as the proper bargaining representative of the “Employees at the facility,” as defined in the 2019 Agreement.

(d)                                 The Barrick Transferred Employees and the Newmont Transferred Employees shall be offered employment with the JV Company on terms substantially identical to their existing terms of employment, and each of the Barrick Transferred Employees’ and the Newmont Transferred Employees’ service with the Barrick Parties and the Newmont Parties, respectively, 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.

(e)                                  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 Barrick Transferred Employees and

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Newmont Transferred Employees. For all Excluded Employees 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 Employees that are Management Employees.

(f)                                   Following the Closing Date, the JV Company shall assume responsibility for all Employment Expenses accrued after the close of business on the Closing Date related to the Barrick Transferred Employees and the Newmont Transferred Employees who have accepted offers of employment from, and commence employment with, the JV Company.

5.15                                                                        Replacement of Surety Instruments

From and after the date of this Agreement, the Parties shall each use their reasonable best efforts to cause the JV Company to arrange for and substitute, on or prior to the Closing, each Surety Instrument with a letter of credit, indemnity agreement, surety bond or other similar agreement made or delivered by the JV Company on substantially the same terms as such Surety Instrument or in such other form or amount as is reasonably acceptable to the Governmental Authority or other Person that holds or is benefited by such Surety Instrument. If the JV Company is unable or is not permitted under applicable Law to effectuate such substitution on or prior to Closing, the Parties shall continue to use their reasonable best efforts to cause the JV Company to effectuate such substitution as soon as practicable following the Closing. If after a period of one year from the date of the Closing the JV Company has not, for any reason, successfully provided a substitute to each Surety Instrument acceptable to the Governmental Authority or other Person that holds or is benefited by such Surety Instrument, the Members shall undertake obligations, or enable the JV Company to undertake obligations, required to provide such financial sureties, such as paying premiums for and satisfying other requirements in respect of surety bonds, providing letters of credit or corporate guarantees and/or putting up cash, as determined by the board of directors of the JV Company, in their respective Proportionate Interests. The portion of the financial surety underwritten or provided by each Member shall be adjusted to reflect any changes in the Proportionate Interests of the Members and to enable substitution of the JV Company as the obligor to the extent permitted by applicable Law, and each Member agrees to cooperate and take such actions as are necessary to enable and ensure the same.  Upon substitution of any Surety Instrument, any collateral furnished by a Party or its Affiliate in respect of such substituted Surety Instrument shall be returned to such Party or its Affiliate.

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5.16                                                                        Performance of Obligations by Affiliates

To the extent applicable, each of the Parties hereby covenants and agrees to cause each of its Affiliates to duly and punctually perform and observe all of its respective obligations, commitments, undertakings, warranties, indemnities and covenants which may be necessary or advisable to consummate the transactions contemplated by this Agreement.

ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BARRICK

As of the date hereof and again as of the Closing Date, Barrick represents and warrants to Newmont that, except as set forth in the Barrick Disclosure Letter:

6.1                                                                               Existence

Barrick is a corporation validly existing under the laws of the Province of British Columbia.  Each of the Barrick Parties has (and, in the case of Barrick Holdco, will have) the corporate power or other organization powers to execute, deliver and perform its obligations under this Agreement and the other Transaction Documents to which it is a party.

6.2                                                                               Existence and Capitalization of the JV Company

(a)                                 As of the Closing, the JV Company will (i) be a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, (ii) have all necessary limited liability company power and authority to hold the Barrick Contributed Assets and the Newmont Contributed Assets to be conveyed to it pursuant to Article 3, and to assume, pay, discharge and perform the Barrick Assumed Liabilities and the Newmont Assumed Liabilities to be assumed by it pursuant to Article 3, and (iii) be duly qualified to do business as a foreign limited liability company and in good standing in each jurisdiction where such qualification shall be necessary based on the operation of its business and the ownership of its assets except where the failure to be so qualified or in good standing would not have a material adverse effect on the Barrick Contributed Assets and the Newmont Contributed Assets, taken as a whole.

(b)                                 Prior to the Closing, the JV Company will not have conducted any activities other than in connection with its formation and the consummation of the transactions contemplated by this Agreement.  As of immediately prior to the Closing, Barrick Holdco will be the sole owner of the JV Company and there will not be

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outstanding any limited liability company interest held by any other Person, or except as contemplated by this Agreement, any options, warrants, subscriptions or other rights of any Person to acquire, or any instruments that are convertible into, any limited liability company interest in the JV Company.

6.3                                                                               Execution, Delivery and Enforceability

The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which it is or will be a party has been (and, in the case of Barrick Holdco and the JV Company, will be) duly authorized by all necessary corporate action on the part of each of the Barrick Parties and the JV Company, and constitutes, or, in the case of such other Transaction Documents, will constitute, a legal, valid and binding obligation of each of the Barrick Parties and the JV Company enforceable by Newmont in accordance with its terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency and other rights of creditors generally and except that equitable remedies may be granted only in the discretion of a court of competent jurisdiction.

6.4                                                                               No Conflict

The entering into of this Agreement and the other Transaction Documents to which it is a party and the performance by each of the Barrick Parties of its obligations hereunder and thereunder, including the completion of the Barrick Pre-Closing Transactions and the sale, assignment and transfer of the Barrick Contributed Assets to the JV Company, will not: (i) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under any provision of its Constating Documents or any Barrick Material Contract to which it is a party or by which it or any of the Barrick Contributed Assets is bound, or (ii) subject to obtaining Required Regulatory Approvals and Customary Post-Closing Consents, result in a violation in any material respect of any Law applicable to it.

6.5                                                                               No Other Agreements to Purchase; No Options

Except as specifically set out herein or as set forth in the Barrick Disclosure Letter, no Person has any written or oral agreement or option or any right or privilege (whether by Law, pre-emptive or contractual) capable of becoming an agreement or option for the purchase or acquisition from Barrick or its Affiliates of the Barrick Contributed Assets (other than immaterial assets in the Ordinary Course).

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6.6                                                                               Ownership of the Barrick Contributed Assets

Subject to Permitted Encumbrances and except as set out in the Barrick Disclosure Letter, immediately before the Time of Closing, the Barrick Parties will be the sole beneficial (and, where its interests are registered, the sole registered) owner, or, in the case of leases or licenses, lessee or licensee, respectively, of all of the Barrick Contributed Assets to be conveyed by it to the JV Company pursuant to this Agreement.

6.7                                                                               Undisclosed Liabilities

Other than as disclosed in the Barrick Public Record or as set forth in the Barrick Disclosure Letter, and except for(i) Environmental Liabilities and (ii) obligations under Contracts included in the Barrick Contributed Assets, to ▇▇▇▇▇▇▇’▇ knowledge there are no material Liabilities in respect of the Barrick Contributed Assets.

ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF NEWMONT

As of the date hereof and again as of the Closing Date, Newmont represents and warrants to Barrick that, except as set forth in the Newmont Disclosure Letter:

7.1                                                                               Existence

Newmont is a corporation validly existing under the laws of the State of Delaware.  Each of the Newmont Parties has (and, in the case of Newmont Holdco, will have) the corporate power or other organization powers to execute, deliver and perform its obligations under this Agreement and the other Transaction Documents to which it is a party.

7.2                                                                               Execution, Delivery and Enforceability

The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which it is or will be a party has been (and, in the case of Newmont Holdco, will be) duly authorized by all necessary corporate action on the part of each of the Newmont Parties, and constitutes, or, in the case of such other Transaction Documents, will constitute, a legal, valid and binding obligation of each of the Newmont Parties enforceable by Barrick in accordance with its terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency and other rights of creditors generally and except that equitable remedies may be granted only in the discretion of a court of competent jurisdiction.

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7.3                                                                               No Conflict

The entering into of this Agreement and the other Transaction Documents to which it is a party and the performance by each of the Newmont Parties of its obligations hereunder and thereunder, including the completion of the Newmont Pre-Closing Transactions and the sale, assignment and transfer of the Newmont Contributed Assets to the JV Company, will not: (i) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under any provision of its Constating Documents or any Newmont Material Contract to which it is a party or by which it or any of the Newmont Contributed Assets is bound, (ii) subject to obtaining Required Regulatory Approvals and Customary Post-Closing Consents, result in a violation in any material respect of any Law applicable to it or (iii) violate, conflict with, or result in a breach of any provision of any provision of the Arrangement Agreement.

7.4                                                                               No Other Agreements to Purchase; No Options

Except as specifically set out herein or as set forth in the Newmont Disclosure Letter, no Person has any written or oral agreement or option or any right or privilege (whether by Law, pre-emptive or contractual) capable of becoming an agreement or option for the purchase or acquisition from Newmont or its Affiliates of the Newmont Contributed Assets (other than immaterial assets in the Ordinary Course).

7.5                                                                               Ownership of the Newmont Contributed Assets

Subject to Permitted Encumbrances and except as set out in the Newmont Disclosure Letter, immediately before the Time of Closing, the Newmont Parties will be the sole beneficial (and, where its interests are registered, the sole registered) owner, or, in the case of leases or licenses, lessee or licensee, respectively, of all of the Newmont Contributed Assets to be conveyed by it to the JV Company pursuant to this Agreement.

7.6                                                                               Undisclosed Liabilities

Other than as disclosed in the Newmont Public Record or as set forth in the Newmont Disclosure Letter, and except for(i) Environmental Liabilities and (ii) obligations under Contracts included in the Newmont Contributed Assets, to Newmont’s knowledge there are no material Liabilities in respect of the Newmont Contributed Assets.

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ARTICLE 8
CLOSING CONDITIONS

8.1                                                                               Mutual Conditions of Closing

The obligations of Barrick and Newmont to consummate the transactions contemplated by this Agreement, including the Pre-Closing Transactions, shall be subject to the fulfilment on or before the Time of Closing of each of the following conditions:

(a)                                 no preliminary or permanent injunction or other Order, decree or ruling issued by a Governmental Authority having jurisdiction, and no statute, rule, regulation or executive order promulgated or enacted by a Governmental Authority having jurisdiction, which restrains, enjoins, prohibits or otherwise makes illegal the consummation of the transactions contemplated by this Agreement, shall be in effect; and

(b)                                 the Required Regulatory Approvals shall have been obtained and remain in full force and effect.

The foregoing conditions are for the exclusive benefit of Barrick and Newmont and any such condition may be waived in whole or in part by Barrick and Newmont at or prior to the Time of Closing by each delivering to the other a written waiver to that effect.  Delivery of any such waiver shall be without prejudice to any rights and remedies at law and in equity Barrick or Newmont may have, including any claims Barrick or Newmont may have for breach of covenant, representation or warranty by the other Party, and also without prejudice to ▇▇▇▇▇▇▇’▇ and Newmont’s respective rights of termination in the event of non-performance of any other conditions in whole or in part.

8.2                                                                               Closing Conditions in Favour of Barrick

The obligations of Barrick to consummate, or cause the consummation of, the transactions contemplated by this Agreement shall be subject to the fulfilment on or before the Time of Closing of each of the following conditions:

(a)                                 the representations and warranties made by Newmont in this Agreement shall be true and correct in all respects, in each case as of the Closing Date as if made on and as of such date (except to the extent such representations and warranties speak as of an earlier date, then as of such date), except where the failure of such representations and warranties to be true and correct in all respects would

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not, individually or in the aggregate, have a material and adverse effect on the Newmont Contributed Assets and Newmont Assumed Liabilities taken as a whole, and Newmont shall have provided Barrick a certificate dated the Closing Date executed by a senior officer of Newmont to such effect;

(b)                                 Newmont shall have performed and complied in all material respects with all covenants, conditions and agreements required by this Agreement to be performed or complied with by Newmont on or prior to the Time of Closing other than immaterial breaches or breaches of immaterial covenants, and Newmont shall have provided Barrick a certificate dated the Closing Date executed by a senior officer to the foregoing effect;

(c)                                  all deliveries contemplated by Section 4.3 shall have been delivered; and

(d)                                 the Newmont Pre-Closing Transactions shall have occurred.

The foregoing conditions are for the exclusive benefit of Barrick and any such condition may be waived in whole or in part by Barrick at or prior to the Time of Closing by delivering to Newmont a written waiver to that effect executed by Barrick.  Delivery of any such waiver shall be without prejudice to any rights and remedies at law and in equity Barrick may have, including any claims Barrick may have for breach of covenant, representation or warranty by Newmont, and also without prejudice to ▇▇▇▇▇▇▇’▇ rights of termination in the event of non-performance of any other conditions in whole or in part.

8.3                                                                               Closing Conditions in Favour of Newmont

The obligations of Newmont to consummate, or cause the consummation of, the transactions contemplated by this Agreement shall be subject to the fulfilment on or before the Time of Closing of each of the following conditions:

(a)                                 the representations and warranties made by Barrick in this Agreement shall be true and correct in all respects, in each case as of the Closing Date as if made on and as of such date (except to the extent such representations and warranties speak as of an earlier date, then as of such date), except where the failure of such representations and warranties to be true and correct in all respects would not, individually or in the aggregate have a material and adverse effect on the Barrick Contributed Assets and Barrick Assumed Liabilities taken as a whole, and Barrick shall have provided Newmont a certificate dated the Closing Date executed by a senior officer of Barrick to such effect;

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(b)                                 Barrick shall have performed and complied in all material respects with all covenants, conditions and agreements required by this Agreement to be performed or complied with by Barrick on or prior to the Time of Closing other than immaterial breaches or breaches of immaterial covenants, and Barrick shall have provided Newmont a certificate dated the Closing Date executed by a senior officer to the foregoing effect;

(c)                                  all deliveries contemplated by Section 4.4 shall have been delivered; and

(d)                                 the Barrick Pre-Closing Transactions shall have occurred.

The foregoing conditions are for the exclusive benefit of Newmont and any such condition may be waived in whole or in part by Newmont at or prior to the Time of Closing by delivering to Barrick a written waiver to that effect executed by Newmont.  Delivery of any such waiver shall be without prejudice to any rights and remedies at law and in equity Newmont may have, including any claims Newmont may have for breach of covenant, representation or warranty by Barrick, and also without prejudice to Newmont’s rights of termination in the event of non-performance of any other conditions in whole or in part.

ARTICLE 9
SURVIVAL AND INDEMNIFICATION

9.1                                                                               Survival of Representations, Warranties and Covenants

(a)                                 The representations and warranties of Barrick in Sections 6.1, 6.2, 6.3, 6.5 and 6.6 (the “Barrick Fundamental Representations”) and of Newmont in Sections 7.1, 7.2, 7.4 and 7.5 (the “Newmont Fundamental Representations”) shall survive the Closing and continue in full force and effect without limitation of time subject only to applicable Laws.  All other representations and warranties in this Agreement shall survive the Closing until the date that is 18 months following the Closing Date.  Each period of survival stated in this Section 9.1(a) and the period of time referred to in Section 9.1(b) is referred to as the applicable “Survival Period”.

(b)                                 To the extent that any covenant contained in this Agreement has not been fully performed at or prior to the Time of Closing, such covenant shall survive the Closing until it is fully performed in accordance with the terms hereof.

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9.2                                                                               Indemnification by Barrick

Subject to the limitations set out elsewhere in this Article 9, from and after Closing, Barrick shall indemnify and save harmless the JV Company, Newmont and Newmont’s Affiliates and their respective officers, directors, managers, employees, agents, representatives, successors and assigns (the “Newmont Indemnified Parties”) from and against all Losses suffered or incurred by any of the foregoing as a result of or arising directly or indirectly out of or in connection with:

(a)                                 any inaccuracy or breach by Barrick as of the date of this Agreement or as of the Closing Date of any representation or warranty of Barrick contained in this Agreement; and

(b)                                 any breach or non-performance by Barrick of any covenant contained in this Agreement.

9.3                                                                               Indemnification by Newmont

Subject to the limitations set out elsewhere in this Article 9, from and after Closing, Newmont shall indemnify and save harmless the JV Company, Barrick and ▇▇▇▇▇▇▇’▇ Affiliates and their respective officers, directors, managers, employees, agents, representatives, successors and assigns (the “Barrick Indemnified Parties”) from and against all Losses suffered or incurred by any of the foregoing as a result of or arising directly or indirectly out of or in connection with:

(a)                                 any inaccuracy or breach by Newmont as of the date of this Agreement or as of the Closing Date of any representation or warranty of Newmont contained in this Agreement; and

(b)                                 any breach or non-performance by Newmont of any covenant contained in this Agreement.

9.4                                                                               Limitation of Liability

(a)                                 A Notice of Claim under this Article 9 based on any inaccuracy or breach of a representation or warranty must be given prior to the expiration of the Survival Period, and any claim not made within such period shall be of no force or effect and shall not give rise to any obligation of the Indemnifying Party to indemnify or save harmless any Indemnified Party. Notwithstanding the foregoing, if, before the close of business on the last day of the Survival Period, an Indemnifying Party shall have been notified in writing of a claim for indemnity hereunder in

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accordance with the terms hereof and such claim shall not have been finally resolved or disposed of at such date, such claim shall continue to survive and shall remain a basis for indemnity hereunder until such claim is finally resolved or disposed of in accordance with the terms hereof.

(b)                                 No Newmont Indemnified Party shall be entitled to require payment in respect of any Loss pursuant to the indemnities contained in Section 9.2(a), excluding any such indemnification in respect of Barrick Fundamental Representations, and Barrick shall not be liable for any indemnity payment thereunder unless:

(i)            the aggregate amount finally agreed or adjudicated of any such individual loss exceeds $25,000,000 (the “Minimum Loss Amount”); and

(ii)           either alone or together with the amount finally agreed or adjudicated to be payable in respect of other Losses for which a Newmont Indemnified Party would otherwise be entitled to require payment under such indemnities, such Loss exceeds $100,000,000 (the “Threshold Amount”), provided that any individual amount used to calculate the Threshold Amount shall be no less than the Minimum Loss Amount.

Once the Threshold Amount has been exceeded, the Newmont Indemnified Parties shall only be entitled to require payment on such indemnities on the portion of Losses that exceeds the Threshold Amount.

(c)                                  No Barrick Indemnified Party shall be entitled to require payment in respect of any Loss pursuant to the indemnities contained in Section 9.3(a), excluding any such indemnification in respect of Newmont Fundamental Representations, and Newmont shall not be liable for any indemnity payment thereunder unless:

(i)            the aggregate amount finally agreed or adjudicated of any such individual loss exceeds the Minimum Loss Amount; and

(ii)           either alone or together with the amount finally agreed or adjudicated to be payable in respect of other Losses for which a Barrick Indemnified Party would otherwise be entitled to require payment under such indemnities, such Loss exceeds the Threshold Amount, provided that any individual amount used to calculate the Threshold Amount shall be no less than the Minimum Loss Amount.

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Once the Threshold Amount has been exceeded, the Barrick Indemnified Parties shall only be entitled to require payment on such indemnities on the portion of Losses that exceeds the Threshold Amount.

(d)                                 Notwithstanding anything to the contrary herein, except in cases of fraud, the maximum aggregate liability of Barrick, on the one hand, and Newmont, on the other hand, in respect of the indemnities contained in Section 9.2(a) and Section 9.3(a), other than indemnification thereunder in respect of the Barrick Fundamental Representations and the Newmont Fundamental Representations, respectively, shall not exceed the Indemnity Cap.

(e)                                  For purposes of Sections 9.4(b) and 9.4(c):

(i)            Losses arising out of separate sets of facts, matters or circumstances will not be treated as an individual Loss, even if each set of facts, matters or circumstances may be a breach of the same representation and warranty; and

(ii)           Losses of the same or similar nature arising out of the same or similar facts, matters and circumstances will be treated as an individual Loss.

9.5                                                                               Notice of Claim

(a)                                 A Party that may be entitled to make a claim for indemnification (a “Claim”) under this Agreement (the “Indemnified Party”) shall give written notification to the other Party (the “Indemnifying Party”) of such Claim (a “Notice of Claim”) promptly upon becoming aware of the Claim, but in no event later than the last day of the Survival Period.  The Notice of Claim shall specify whether the Claim arises as a result of a claim by a Third Party against the Indemnified Party (a “Third Party Claim”) or whether the Claim does not so arise (a “Direct Claim”), and shall also specify with reasonable particularity, to the extent that the information is available, the factual basis for the Claim and the amount of the Claim.

Each of Newmont and Barrick shall be entitled to provide a Notice of Claim on behalf of the JV Company in respect of a Claim for indemnification under Section 9.2 and Section 9.3, respectively, and shall be entitled to make elections on behalf of and otherwise control any such Claim on behalf of the JV Company as the Indemnified Party in respect of such Claim under this Article 9.

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(b)                                 If an Indemnified Party fails to provide the Indemnifying Party with a Notice of Claim promptly as required by Section 9.5(a), the Indemnifying Party shall be relieved of the obligation to pay damages to the extent it can show that it was prejudiced in its defence of the Claim or in proceeding against a Third Party who would have been liable to it by the fact of the delay, but the failure to provide such Notice of Claim promptly shall not otherwise release the Indemnifying Party from its obligations under this Article 9.

(c)                                  If the date by which a Notice of Claim must be given as provided for herein has passed without any Notice of Claim having been given to the Indemnifying Party, then the related Claim shall be forever extinguished, notwithstanding that by the last day of the Survival Period the Indemnified Party did not know, and in the exercise of reasonable care could not have known, of the existence of the Claim.

9.6                                                                               Direct Claims

With respect to any Direct Claim, following receipt of a Notice of Claim from the Indemnified Party, the Indemnifying Party shall have 45 days to make such investigation of the Claim as is considered necessary or desirable.  For the purpose of such investigation, the Indemnified Party shall make available to the Indemnifying Party the information relied upon by the Indemnified Party to substantiate the Claim, together with all such other information as the Indemnifying Party may reasonably request.  If both parties agree at or prior to the expiration of such 45-day period (or any mutually agreed upon extension thereof) to the validity and amount of such Claim, the Indemnifying Party shall immediately pay to the Indemnified Party the full agreed-upon amount of the Claim, failing which the Indemnified Party is free to pursue all rights and remedies available to it, subject to this Agreement.

9.7                                                                               Third Party Claims

(a)                                 Subject to Section 9.7(d), upon receiving a Notice of Claim, the Indemnifying Party may participate in the investigation and defence of the Third Party Claim, and may also elect to assume the investigation and defence of the Third Party Claim with counsel satisfactory to the Indemnified Party, acting reasonably; provided that the Indemnifying Party shall not have the right to assume such investigation and defense, and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the Third Party Claim involves a claim that, in the good faith judgment of the Indemnified Party, the Indemnifying Party failed or is failing to vigorously prosecute or defend. The Indemnified Party shall cooperate in good faith in any such defense. The Indemnified Party shall have

49

the right, at its own cost and expense, to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof.

(b)                                 In order to assume the investigation and defence of a Third Party Claim, the Indemnifying Party must give the Indemnified Party written notice of its election within 20 days of the Indemnifying Party’s receipt of the Notice of Claim.

(c)                                  Subject to Section 9.7(d), if the Indemnifying Party assumes the investigation and defence of a Third Party Claim:

(i)                                     the Indemnifying Party will pay for all reasonable costs and expenses of the investigation and defence of the Third Party Claim except that the Indemnifying Party will not, so long as it diligently conducts such defence, be liable to the Indemnified Party for any fees of other counsel or any other expenses with respect to the defence of the Third Party Claim, incurred by the Indemnified Party after the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim;

(ii)           the Indemnifying Party will reimburse the Indemnified Party for all reasonable costs and expenses incurred by the Indemnified Party in connection with the investigation and defence of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defence of the Third Party Claim; and

(iii)          if the Indemnifying Party thereafter fails to defend the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such defense and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Third Party Claim.

(d)                                 Where the named parties to any Third Party Claim include the Indemnified Party as well as the Indemnifying Party and the Indemnified Party determines in good faith, based on advice from its legal counsel, that joint representation would be inappropriate due to the actual or potential differing interests between them or there may be one or more legal defences available to the Indemnified Party which are different from or in addition to those available to the Indemnifying Party, and the Indemnified Party notifies the Indemnifying Party in writing that it

50

elects to retain separate counsel, the Indemnifying Party shall not have the right to assume the defence of such Third Party Claim on behalf of the Indemnified Party and shall be liable to pay the reasonable fees and expenses of counsel of the Indemnified Party.

(e)                                  If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable Law to incur losses or make a payment to any person (a “Third Party”) with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may incur such Losses or make such payment and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment.  If the amount of any liability of the Indemnified Party under such Third Party Claim, as finally determined, is less than the amount that was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, forthwith after the receipt of the difference from the Third Party, pay the amount of such difference, together with any interest thereon paid by the Third Party to the Indemnified Party, to the Indemnifying Party.  In addition, the Indemnifying Party shall post all security required by any court, regulatory body or other authority having jurisdiction, including without limitation, for purposes of enabling the Indemnifying Party to contest any Third Party Claim.

(f)                                   If the Indemnified Party undertakes the defence of the Third Party Claim, the Indemnifying Party will not be bound by any compromise or settlement of the Third Party Claim effected without the consent of the Indemnifying Party (which consent may not be unreasonably withheld or delayed).

(g)                                  The Indemnifying Party will not be permitted to compromise and settle or to cause a compromise and settlement of a Third Party Claim without the prior written consent of the Indemnified Party, which consent may not be unreasonably withheld or delayed, unless:

(i)                                     the terms of the compromise and settlement require only the payment of money for which the Indemnified Party is entitled to full indemnification under this Agreement and the Indemnifying Party agrees to timely pay such amount in full; and

(ii)           the Indemnified Party is not required to admit any wrongdoing, take or refrain from taking any action, acknowledge any rights of the Person

51

making the Third Party Claim or waive any rights that the Indemnified Party may have against the Person making the Third Party Claim.

(h)                                 The Indemnified Party and the Indemnifying Party shall co-operate fully with each other with respect to Third Party Claims, and shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available).

9.8                                                                               One Recovery

No party shall be liable to pay any amount in discharge of a claim under this Agreement unless and until the liability in respect of which the claim is made has become due and payable.

9.9                                                                               Duty to Mitigate

Nothing in this Agreement in any way restricts or limits the general obligation at Law of an Indemnified Party to take reasonable steps to mitigate any loss which it may suffer or incur by reason of the breach or failure to perform of any representation, warranty, covenant or obligation of the Indemnifying Party under this Agreement. If any claim can be reduced by any recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other Person, the Indemnified Party shall take all reasonable steps to enforce such recovery, settlement or payment and the amount of any Losses of the Indemnified Party will be reduced by the amount actually recovered by the Indemnified Party (net of collection expenses). If necessary to mitigate any withholding Taxes that would otherwise apply to any payments for indemnification under this Agreement, the Parties shall cooperate in good faith to cause such payments to be made by a United States subsidiary of the Indemnifying Party to a United States subsidiary of the Indemnified Party.

9.10                                                                        Adjustments

(a)                                 The amount of any Loss for which indemnification is provided in this Article 9 will be adjusted to take into account any Tax benefit or other benefit realized by the Indemnified Party by reason of the Loss for which indemnification is so provided.  Any such Tax benefit or other benefit will be taken into account at such time as it is realized by the Indemnified Party.

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(b)                                 In determining the amount of any Losses under this Article 9, such Losses will be increased to take into account any Tax actually incurred by the Indemnified Party as a result of the matter giving rise to such Losses.

(c)                                  Where an Indemnified Party is, or would be likely to be, entitled to recover or be compensated or indemnified by another person, whether by way of contract, indemnity or otherwise (including under a policy of insurance), any amount in respect of a Claim made by the Indemnified Party, the Indemnified Party shall promptly notify the Indemnifying Party of such right or entitlement, take all reasonable steps to seek recovery of that amount and keep the Indemnifying Party at all times fully and promptly notified of the status of such recovery.  The amount of the Claim by the Indemnified Party shall be reduced by any amount actually recovered by the Indemnified Party (net of all reasonable out of pocket costs and expenses incurred in doing so and any Tax paid or payable on the amount recovered).

9.11                                                                        Exclusivity

Subject to Section 10.4, except in cases of fraud, if the Closing shall occur, no Party may make any claim for damages in respect of this Agreement or any other Transaction Document delivered pursuant hereto (excluding the JV Agreement), or in respect of any breach or termination thereof, against any other Party except by making a Claim pursuant to and in accordance with this Article 9.

ARTICLE 10
TERMINATION

10.1                                                                        Termination

This Agreement may be terminated at any time prior to the Closing Date:

(a)                                 by mutual written agreement of Newmont and Barrick;

(b)                                 by either Barrick or Newmont, if:

(i)                                     the Closing has not occurred on or prior to the Outside Date, except that the right to terminate this Agreement under this Section 10.1(b)(i) shall not be available to a Party whose failure to fulfill any of its covenants or obligations or breach of any of its representations and warranties under

53

this Agreement has been the cause of, or resulted in, the failure of the Closing to occur by the Outside Date; or

(ii)           after the date hereof, there shall be enacted or made any applicable Law, or a Governmental Authority having jurisdiction shall have issued any Order (which Order is final and non-appealable, unless such Order has been withdrawn, reversed or otherwise made inapplicable), permanently restraining or enjoining or otherwise prohibiting the transactions contemplated herein;

(c)                                  by Barrick by written notice to Newmont, if (i) any of the conditions in Section 8.1 or Section 8.2 has not been satisfied or waived by the Outside Date or is incapable of satisfaction by the Outside Date, provided that Barrick is not then in breach of this Agreement so as to cause any of the conditions in Section 8.1 or Section 8.2 not to be satisfied, or (ii) any representation or warranty of Newmont contained in Article 7 is untrue or incorrect or shall have become untrue or incorrect such that the condition contained in Section 8.2(a) would be incapable of satisfaction, or Newmont is in default in any material respect of any of its covenants or obligations herein such that the condition in Section 8.2(b) would be incapable of satisfaction; or

(d)                                 by Newmont by written notice to Barrick, if (i) any of the conditions in Section 8.1 or Section 8.3 has not been satisfied or waived by the Outside Date or is incapable of satisfaction by the Outside Date, provided that Newmont is not then in breach of this Agreement so as to cause any of the conditions set forth in Section 8.1 or Section 8.3 not to be satisfied, or (ii) any representation or warranty of Barrick contained in Article 6 is untrue or incorrect or shall have become untrue or incorrect such that the condition contained in Section 8.3(a) would be incapable of satisfaction, or Barrick is in default in any material respect of any of its covenants or obligations herein such that the condition in Section 8.3(b) would be incapable of satisfaction.

10.2                                                                        Effect of Termination

(a)                                 Notwithstanding the termination of this Agreement by Barrick pursuant to Section 10.1(b) or Section 10.1(c), Barrick may bring an action against Newmont for Losses suffered by Barrick where the event giving rise to the right of termination is a result of a breach of covenant, representation or warranty by Newmont.

54

(b)                                 Notwithstanding the termination of this Agreement by Newmont pursuant to Section 10.1(b) or Section 10.1(d), Newmont may bring an action against Barrick for Losses suffered by Newmont where the event giving rise to the right of termination is a result of a breach of covenant, representation or warranty by Barrick.

10.3                                                                        Surviving Provisions on Termination

Notwithstanding any other provisions of this Agreement, if this Agreement is terminated (whether by a Party or automatically or otherwise), the provisions of Sections 5.7 (Confidentiality), 10.3 (Surviving Provisions on Termination), 10.4 (Remedies), 11.1 (Notices), 11.2 (Governing Law) and 11.11 (Fees and Commissions) (subject to any time limitations referred to therein) shall survive such termination and remain in full force and effect, along with any other provisions of this Agreement which expressly or by their nature survive the termination hereof.

10.4                                                                        Remedies

Barrick and Newmont acknowledge and agree that an award of money damages would be inadequate for any breach of this Agreement by any Party or its representatives and any such breach would cause the non-breaching Party irreparable harm.  Accordingly, Barrick and Newmont agree that, in the event of any breach or threatened breach of this Agreement by a Party and provided this Agreement shall not have been terminated pursuant to Section 10.1, the non-breaching Party shall also be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance to the extent applicable.  Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available hereunder.

ARTICLE 11
GENERAL PROVISIONS

11.1                                                                        Notices

(a)                                 Any notice or other communication that is required or permitted to be given hereunder shall be in writing and shall be validly given if delivered in person (including by courier service) or transmitted by email with confirmation receipt requested as follows:

(i)                                     in the case of Barrick:

▇▇

▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇

P.O. Box 212

Toronto Ontario, Canada  M5J 2S1

Attention:                             Office of the General Counsel

Email:                                                ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

with a copy to:

Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP

▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇  ▇▇▇ ▇▇▇

Attention:                             ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Email:                                                ▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇

(ii)                                  in the case of Newmont:

▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇’s Green Circle, Suite 800
Greenwood Village, Colorado 80111

Attention:                             ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Executive Vice President and General Counsel

Email:                                                ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

with a copy to:

▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

Attention:                             ▇▇▇▇▇ Stocks and ▇▇▇▇ ▇▇▇▇▇▇

Email:                                                ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇

and with a copy to:

Goodmans LLP
Bay-Adelaide Centre, West Tower

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▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇  ▇▇▇ ▇▇▇

Attention:                             ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Neill May and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Email:                                                ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇, ▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇ and ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇

(b)                                 Any such notice or other communication shall be deemed to have been given and received on the day on which it was delivered or transmitted by email (or, if such day is not a Business Day or such notice or other communication was delivered or transmitted after 5:00 p.m. (Toronto time), on the next following Business Day).

(c)                                  Any Party may at any time change its address for service from time to time by giving notice to the other Parties in accordance with this Section 11.1.

11.2                                                                        Governing Law

(a)                                 This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the Parties shall be governed by, the Laws of the Province of Ontario and the federal Laws of Canada applicable therein.

(b)                                 Each of the Parties irrevocably and unconditionally: (i) submits to the non-exclusive jurisdiction of the courts of the Province of Ontario over any action or proceeding arising out of or relating to this Agreement; (ii) waives any objection that it might otherwise be entitled to assert to the jurisdiction of such courts; and (iii) agrees not to assert that such courts are not a convenient forum for the determination of any such action or proceeding.

11.3                                                                        Waiver of Jury Trial

To the extent not prohibited by applicable law, each Party hereby waives, and covenants that such Party will not assert (whether as plaintiff, defendant or otherwise), any right to trial by jury in any forum in respect of any issue, claim or proceeding arising out of this Agreement or the subject matter hereof or in any way connected with the dealings of any Party in connection with the transactions set out herein, in each case whether now existing or hereafter arising and whether in contract, tort or otherwise.

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11.4                                                                        Entire Agreement

This Agreement, and any dispute arising out of or in connection with this Agreement along with the other Transaction Documents, constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings, negotiations and discussions, whether written or oral.  There are no conditions, covenants, agreements, representations, warranties or other provisions, express or implied, collateral, statutory or otherwise, relating to the subject matter hereof and thereof except as provided herein or therein.

11.5                                                                        Severability

If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party hereto.

11.6                                                                        No Waiver

The failure of any Party to insist upon strict adherence to any provision of this Agreement on any occasion shall not be considered a waiver or deprive that Party of the right thereafter to insist upon strict adherence to such provision or any other provision of this Agreement.  No purported waiver shall be effective as against any Party unless consented to in writing by such Party.  The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach.

11.7                                                                        Further Assurances

(a)                                 Each of the Parties shall, from time to time hereafter, do all such acts and execute and deliver all such further certificates or other documents, and will cause the doing of all such acts and will cause the execution of all such further certificates or other documents as are within its power as any other Party may in writing at any time and from time to time reasonably request be done and or executed in order to give full effect to the provisions of this Agreement.

(b)                                 Without limiting the generality of the foregoing, the Parties agree to review the form of JV Agreement attached hereto in good faith during the Interim Period with a view to making such modifications thereto as the parties may mutually agree in

58

order to better give effect to their mutual intentions as evidenced by this Agreement; provided, however, that in the absence of such mutual agreement, the Parties will execute and deliver the JV Agreement in the form attached hereto at the time of closing, as contemplated herein.

11.8                                                                        Amendments

No term or provision of this Agreement may be amended except by an instrument in writing signed by all the Parties to this Agreement.

11.9                                                                        Assignment

No Party shall assign any of its rights or benefits under this Agreement, or delegate any of its duties or obligations, except with the prior written consent of the other Parties.

11.10                                                                 Enurement

This Agreement will enure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.

11.11                                                                 Fees and Commissions

Except as expressly provided in this Agreement, each Party will pay its respective legal and accounting costs and expenses incurred in connection with the negotiation, preparation, execution and delivery of this Agreement and all documents and instruments executed pursuant to this Agreement and any other costs and expenses whatsoever and howsoever incurred and will indemnify and save harmless the other from and against any Claim for or Loss resulting from any broker’s, finder’s or placement fee or commission alleged to have been incurred as a result of any action by it in connection with the transactions under this Agreement.

11.12                                                                 Counterparts

(a)                                 This Agreement 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 Agreement by any Party by electronic transmission will be as effective as delivery of a manually executed copy of this Agreement by such Party.

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[Signature Page Follows]

60

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

SCHEDULE 1.1(E)

AREA OF INTEREST

SCHEDULE 1.1(DD)(i)

TO

IMPLEMENTATION AGREEMENT

RANCH DEED

APN #s:  See Exhibit A

Recorded at the request of, and

when recorded, return to:

Mail Tax Statement to:

Space above for County Recorder’s Use

Affirmation Statement:  The undersigned affirms that this document does not contain any social security numbers or other personal information of any person (Per NRS 239B.030).

DEED

(Ranch Properties)

This Deed (this “Deed”), entered into to be effective as of              , 2009, is from [Barrick Entity or Newmont Entity], a           corporation whose address is                            (“Grantor”), to [Nevada JV Company], a Delaware limited liability company, whose address is                               (“Grantee”).

Recitals

1.                                      Grantor owns the real property described in Exhibit A to this Deed (the “Properties”).  The Properties are located in                County, Nevada.

2.                                      Grantor’s parent, [▇▇▇▇▇▇▇ Gold Corporation or Newmont Mining Corporation], and [Newmont Mining Corporation or ▇▇▇▇▇▇▇ Gold Corporation] are parties to that certain Implementation Agreement dated              , 2019 (the “Agreement”).  Pursuant to the Agreement, Grantor agreed, among other things, to convey to Grantee all of its right, title and interest in and to the Properties.

3.                                      Grantor executes this Deed with respect to the Properties in order to fulfill, in

part, its obligations under the Agreement.

Conveyance

For good and valuable consideration, the receipt and sufficiency of which are acknowledged, Grantor quitclaims to Grantee, all of Grantor’s right, title and interest in and to the Properties and all and singular the tenements, hereditaments, appurtenances, fixtures, buildings and improvements thereon or thereunto belonging to or in anywise appertaining, the reversion and reversions, remainder and remainders, rents, issues, and profits thereof.

To have and to hold unto Grantee, its successors and assigns forever.

This Deed incorporates by reference the representations and warranties, and associated limitations and disclaimers, made in the Agreement with respect to the Properties.  This Deed incorporates the Permitted Encumbrances set out in the Agreement.

This Deed and the covenants contained herein shall extend to and be binding upon and every benefit hereof shall inure to the parties hereto, their respective successors and assigns.  This Deed is intended to and does convey any after acquired title or interest in and to the Properties that Grantor may hereafter acquire.

This Deed is executed and delivered effective on the date first written above.

This instrument was acknowledged before me on            , 2019, by              , as                  of                     .

2

Attachment 1

To

Deed (Ranch Properties)

RANCH PROPERTIES DESCRIPTION

3

SCHEDULE 1.1(DD)(ii)

TO

IMPLEMENTATION AGREEMENT

MINING DEED

APN #s:  See Exhibit A

Recorded at the request of, and

when recorded, return to:

Mail Tax Statement to:

Space above for County Recorder’s Use

Affirmation Statement:  The undersigned affirms that this document does not contain any social security numbers or other personal information of any person (Per NRS 239B.030).

DEED

(Mining Properties)

This Deed (this “Deed”), entered into to be effective as of              , 20  , is from [Barrick Entity or Newmont Entity], a                        corporation whose address is                            (“Grantor”), to [Nevada JV Company], a Delaware limited liability company, whose address is                               (“Grantee”).

Recitals

1.             Grantor owns the real property described in [Part I (Fee Property), Part II (Patented Mining Claims), Part III (Unpatented Mining Claims) and Part IV (Mining Leases)] of Exhibit A to this Deed (the “Properties”).  The Properties are located in                County, Nevada.

2.             Grantor’s parent, [▇▇▇▇▇▇▇ Gold Corporation or Newmont Mining Corporation], and [Newmont Mining Corporation or ▇▇▇▇▇▇▇ Gold Corporation] are parties to that certain Implementation Agreement dated                 , 2019 (the “Agreement”).  Pursuant to the Agreement, Grantor agreed, among other things, to convey to Grantee all of its right, title and interest in and to the Properties.

3.             Grantor executes this Deed with respect to the Properties in order to fulfill, in part, its obligations under the Agreement.

Conveyance

For good and valuable consideration, the receipt and sufficiency of which are acknowledged, Grantor grants, bargains and sells to Grantee, all of Grantor’s right, title and interest in and to the Properties and all and singular the tenements, hereditaments, appurtenances, fixtures, buildings and improvements thereon or thereunto belonging to or in anywise appertaining, the reversion and reversions, remainder and remainders, rents, issues, and profits thereof and including, with respect to all patented and unpatented mining claims include in the Properties, ll of the lodes, ledges, veins and mineral-bearing rock, both known and unknown, intralimital and extralateral, lying within or extending beyond the boundaries of such mining claims, and all dips, spurs and angles, and all the ores, mineral bearing-quartz, rock and earth or other mineral deposits therein or thereon, and all and singular tenements, hereditaments, appurtenances, fixtures, buildings, and improvements thereon or thereunto belonging to or in anywise appertaining, the reversion and reversions, remainder and remainders, rents, issues, and profits thereof.

To have and to hold unto Grantee, its successors and assigns forever.

This Deed incorporates by reference the representations and warranties, and associated limitations and disclaimers, made in the Agreement with respect to the Properties, provided further that nothing herein represents that a “discovery” under the General Mining Law exists on any unpatented mining claim.  This Deed incorporates the Permitted Encumbrances set out in the Agreement.

This Deed and the covenants contained herein shall extend to and be binding upon and every benefit hereof shall inure to the parties hereto, their respective successors and assigns.  This Deed is intended to and does convey any after acquired title or interest in and to the Properties that Grantor may hereafter acquire.

This Deed is executed and delivered effective on the date first written above.

2

This instrument was acknowledged before me on            , 2019, by              , as                  of                     .

Attachment 1

To

Deed (Mining Properties)

MINING PROPERTIES DESCRIPTION

Part I (Fee Property)

Part II (Patented Mining Claims)

Part III (Unpatented Mining Claims)

Part IV (Mining Leases)

3

SCHEDULE 1.1 (DD)(iii)

TO

IMPLEMENTATION AGREEMENT

WATER RIGHTS DEED

APN #s:  N/A

Recorded at the request of, and

when recorded, return to:

Mail Tax Statement to:

N/A

Space above for County Recorder’s Use

Affirmation Statement:  The undersigned affirms that this document does not contain any social security numbers or other personal information of any person (Per NRS 239B.030).

DEED

(Water Rights)

This Deed (this “Deed”), entered into to be effective as of              , 2009, is from [Barrick Entity or Newmont Entity], a           corporation whose address is                            (“Grantor”), to [Nevada JV Company], a Delaware limited liability company, whose address is                               (“Grantee”).

Recitals

1.                                      Grantor owns the water rights described in Exhibit A to this Deed (the “Water Rights”).  The Water Rights are located in                County, Nevada.

2.                                      Grantor’s parent, [▇▇▇▇▇▇▇ Gold Corporation or Newmont Mining Corporation], and [Newmont Mining Corporation or ▇▇▇▇▇▇▇ Gold Corporation] are parties to that certain Implementation Agreement dated            , 2019 (the “Agreement”).  Pursuant to the Agreement, Grantor agreed, among other things, to convey to Grantee all of its right, title and interest in and to the Water Rights.

3.                                      Grantor executes this Deed with respect to the Water Rights in order to fulfill, in part, its obligations under the Agreement.

Conveyance

For good and valuable consideration, the receipt and sufficiency of which are acknowledged, Grantor grants, bargains and sells to Grantee, all of Grantor’s right, title and interest in and to the Water Rights and all and singular the tenements, hereditaments, appurtenances, fixtures, buildings, ▇▇▇▇▇, pipelines, ditches and improvements thereunto belonging or in anywise appertaining.

To have and to hold unto Grantee, its successors and assigns forever.

This Deed incorporates by reference the representations and warranties, and associated limitations and disclaimers, made in the Agreement with respect to the Water Rights. Grantor makes no representation regarding the quantity of water associated with any Water Right.  This Deed incorporates the Permitted Encumbrances set out in the Agreement.

This Deed and the covenants contained herein shall extend to and be binding upon and every benefit hereof shall inure to the parties hereto, their respective successors and assigns.  This Deed is intended to and does convey any after acquired title or interest in and to the Water Rights that Grantor may hereafter acquire.

This Deed is executed and delivered effective on the date first written above.

This instrument was acknowledged before me on            , 2019, by              , as                  of                     .

2

Attachment 1

To

Deed (Water Rights)

WATER RIGHTS DESCRIPTION

3

SCHEDULE 1.1(DD)(iv)

TO

IMPLEMENTATION AGREEMENT

FEE PROPERTIES DEED

APN #s:  See Exhibit A

Recorded at the request of, and

when recorded, return to:

Mail Tax Statement to:

Space above for County Recorder’s Use

Affirmation Statement:  The undersigned affirms that this document does not contain any social security numbers or other personal information of any person (Per NRS 239B.030).

DEED

(Fee Properties)

This Deed (this “Deed”), entered into to be effective as of              , 2009, is from [Barrick Entity or Newmont Entity], a           corporation whose address is                            (“Grantor”), to [Nevada JV Company], a Delaware limited liability company, whose address is                               (“Grantee”).

Recitals

1.                                      Grantor owns the real property described in Exhibit A to this Deed (the “Properties”).  The Properties are located in                County, Nevada.

2.                                      Grantor’s parent, [▇▇▇▇▇▇▇ Gold Corporation or Newmont Mining Corporation], and [Newmont Mining Corporation or ▇▇▇▇▇▇▇ Gold Corporation] are parties to that certain Implementation Agreement dated              , 2019 (the “Agreement”).  Pursuant to the Agreement, Grantor agreed, among other things, to convey to Grantee all of its right, title and interest in and to the Properties.

3.                                      Grantor executes this Deed with respect to the Properties in order to fulfill, in

part, its obligations under the Agreement.

Conveyance

For good and valuable consideration, the receipt and sufficiency of which are acknowledged, Grantor grants, bargains and sells to Grantee, all of Grantor’s right, title and interest in and to the Properties and all and singular the tenements, hereditaments, appurtenances, fixtures, buildings and improvements thereon or thereunto belonging to or in anywise appertaining, the reversion and reversions, remainder and remainders, rents, issues, and profits thereof.

To have and to hold unto Grantee, its successors and assigns forever.

This Deed incorporates by reference the representations and warranties, and associated limitations and disclaimers, made in the Agreement with respect to the Properties.  This Deed incorporates the Permitted Encumbrances set out in the Agreement.

This Deed and the covenants contained herein shall extend to and be binding upon and every benefit hereof shall inure to the parties hereto, their respective successors and assigns.  This Deed is intended to and does convey any after acquired title or interest in and to the Properties that Grantor may hereafter acquire.

This Deed is executed and delivered effective on the date first written above.

This instrument was acknowledged before me on            , 2019, by              , as                  of                     .

(Seal)

2

Attachment 1

To

Deed (Fee Properties)

FEE PROPERTIES DESCRIPTION

3

SCHEDULE 1.1(VV)

JV AGREEMENT

▇▇▇▇▇▇▇ GOLD CORPORATION

- and -

[BARRICK MEMBER]

- and -

NEWMONT MINING CORPORATION

- and -

NEWMONT USA LIMITED

- and -

[NEVADA JV]

OPERATING AGREEMENT OF NEVADA JV

·, 2019

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