UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
No. R-1
$275,000,000 CUSIP No. 651639 AD 8
NEWMONT MINING CORPORATION
8 5/8% Notes due 2011
Newmont Mining Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of $275,000,000 on May 15, 2011 , and to pay interest thereon
semi-annually on May 15th and November 15th (the "Interest Payment Dates") in
each year, commencing November 15, 2001, at the rate of 8 5/8% per annum until
the principal hereof is paid or made available for payment. Notwithstanding the
foregoing, this Security shall bear interest from the most recent Interest
Payment Date to which interest in respect hereof has been paid or duly provided
for, unless (i) the date hereof is such an Interest Payment Date, in which case
from the date hereof, or (ii) no interest has been paid on this Security, in
which case from May 14, 2001 provided, however, that if the Issuer shall default
in the payment of interest due on the date hereof, then this Security shall bear
interest from the next preceding Interest Payment Date to which Interest has
been paid or, if no interest has been paid on this Security from May 14, 2001.
Notwithstanding the foregoing, if the date hereof is after April 30th or October
31st (whether or not a Business Day) (the "Record Date"), next preceding an
Interest Payment Date and before such Interest Payment Date, this Security shall
bear interest from such Interest Payment Date; provided, however, that if the
Issuer shall default in the payment of interest due on such Interest Payment
Date, then this Security shall bear interest from the next preceding Interest
Payment Date to which interest has been paid or, if no interest has been paid on
this Security, from May 14, 2001. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the Person in whose name this Security is registered at the close of business
on the Record Date next preceding such Interest Payment Date. Interest on this
Security will be computed and paid on the basis of a 360-day year of twelve
30-day months.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Issuer maintained for that purpose in New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Issuer payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
NEWMONT MINING CORPORATION
By:
-----------------------------------------
Name:
Title:
Attest:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein and
referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
Dated: May 14, 2001 as Trustee
By:
----------------------------------
Authorized Signatory
Reverse of Security
NEWMONT MINING CORPORATION
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of May 1, 2001 (herein called the
"Indenture"), between the Issuer and Citibank, N.A., as Trustee (herein called
the "Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, obligations, duties and immunities thereunder of the Issuer, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof limited in aggregate principal
amount to $275,000,000. The separate series of Securities may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest, if any, at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking or purchase funds (if
any), may have different conversion provisions (if any), may be subject to
different repayment provisions (if any), may be subject to different covenants
and Events of Default and may otherwise vary as in the Indenture provided. The
Indenture further provides that the Securities of a single series may be issued
at various times, with different maturity dates, may bear interest, if any, at
different rates, may be subject to different redemption provisions (if any), may
be subject to different sinking or purchase funds (if any) and may be subject to
different repayment provisions (if any).
The Securities of this series are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, in whole or in part, at the
election of the Issuer at any time or from time to time, at a redemption price
equal to the greater of the following amounts:
(i) 100% of the principal amount of the Securities being redeemed; or
(ii) the sum of the present values of the remaining scheduled payments
of principal and interest on the Securities being redeemed on the
redemption date (not including any portion of any payments of
interest accrued to the redemption date) discounted to the
redemption date on a semiannual basis at the Treasury Rate (as
defined below), as determined by the Reference Treasury Dealer
(as defined below) plus 45 basis points;
plus, in each case, accrued and unpaid interest on the Securities to
the redemption date.
Notwithstanding the foregoing, installments of interest on Securities
that are due and payable on interest payment dates falling on or prior to a
redemption date will be payable on the interest payment date to the registered
holders as of the close of business on the relevant record date according to the
Securities and the Indenture. The redemption price will be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
Once notice of redemption is mailed, the Securities called for
redemption will become due and payable on the redemption date and at the
applicable redemption price, plus accrued and unpaid interest to the redemption
date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the securities.
"Comparable Treasury Price" means, with respect to any redemption
date, (A) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations, or (C) if only
one Reference Treasury Dealer Quotation is received, such Quotation.
"Reference Treasury Dealer" means (A) Xxxxxxx Xxxxx Xxxxxx Inc. or
X.X. Xxxxxx Securities Inc. (or their respective affiliates which are Primary
Treasury Dealers), and their respective successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company will
substitute therefor another Primary Treasury Dealer; and (B) any other Primary
Treasury Dealer(s) selected by the Company.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York
City time) on the third business day preceding such redemption date.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment or supplementing thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Issuer and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount (calculated as provided in the Indenture) of the Securities at
the time Outstanding of all series to be affected (all such series voting as a
single class). The Indenture also contains provisions permitting the Holders of
not less than a majority in aggregate principal amount (calculated as provided
in the Indenture) of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive certain past
defaults or Events of Default under the Indenture and the consequences of any
such defaults or Events of Default. Any such consent or waiver by the Holder of
this Security (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest, if any, on
this Security at the times, place and rate, if any, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
register, upon due presentment of this Security for registration of transfer at
the office or agency of the Issuer in any place where the principal of and
interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
having the same interest rate and maturity and bearing interest from the same
date as this Security, of any authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination having the
same interest rate and maturity and bearing interest from the same date as such
Securities, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue and notwithstanding
any notation of ownership or other writing thereon, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary. All
payments made to or upon the order of such registered Holder, shall, to the
extent of the sum or sums paid, effectually satisfy and discharge liability for
monies payable on this Security.
No recourse for the payment of the principal of or interest, if any,
on this Security, or for any claim based hereon or otherwise in respect hereof,
and no recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, official or director, as
such, past, present or future, of the Issuer or of any successor entity, either
directly or through the Issuer or any successor entity, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
All terms used in this Security and not otherwise defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
This Security shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of laws
principles thereof.
