as imprecision in
drafting, any provision of this program and/or any such plan or agreement does
not accurately reflect its intended establishment of an exemption from (or
compliance with) Code Section 409A, as demonstrated by consistent
interpretations or other evidence of intent, such provision shall be considered
ambiguous as to its exemption from (or compliance with) Code Section 409A and
shall be interpreted by Newmont Mining in a manner consistent with such intent,
as determined in the discretion of Newmont Mining. None of Newmont Mining nor
any other Participating Employer shall be liable to any eligible Employee or any
other person (i) if any provisions of this program do not satisfy an exemption
from, or the conditions of, Code Section 409A, or (ii) as to any tax consequence
expected, but not realized, by any eligible Employee or other person due to the
receipt or payment of any award under this program.
APPENDIX A
Targeted Payout Percentages
Grade
Payout Percentage
E-5
60%
E-6
40%
APPENDIX A-1
EBITDA Payout Percentage
Actual EBITDA Performance
Compared to Target EBITDA
Performance
EBITDA Payout Percentage
112.5% and above
150% payout
100%-112.5% of target
100% payout plus an increase of
4% of target payout for every
percent above 100% of target
EBITDA performance
75%-100% of target
50% payout plus an increase of 2%
of target payout for every percent
above 75% of target EBITDA
performance.
Below 75% of target
No payout