EXHIBIT 4.67
STRICTLY CONFIDENTIAL
SERVICE AGREEMENT
between
DRD (ISLE OF MAN), LIMITED
and
MARK WELLESLEY-WOOD
CONTENTS
NO CLAUSE PAGE NO
- -- ------------------------------------------------------------------------- -------
1 RECORDAL................................................................. 1
2 DEFINITIONS.............................................................. 1
3 TERM OF EMPLOYMENT....................................................... 3
4 DUTIES................................................................... 3
5 REMUNERATION PACKAGE..................................................... 5
6 EXPENSES AND REIMBURSEMENTS.............................................. 5
7 BONUS AND INCENTIVES..................................................... 6
8 INSURANCE COVER.......................................................... 10
9 LEAVE.................................................................... 11
10 TERMINATION.............................................................. 11
11 ELIGIBLE TRANSACTIONS.................................................... 13
12 SHARE OPTIONS............................................................ 15
13 BENEFITS PAYABLE FOR AN ELIGIBLE TERMINATION............................. 16
14 NOTICES.................................................................. 17
15 THE RIGHT OF THE COMPANY TO ASSIGN THIS AGREEMENT........................ 17
16 DISCIPLINARY RULES AND GRIEVANCE PROCEDURE............................... 18
17 DISPUTES................................................................. 18
18 GENERAL.................................................................. 18
ANNEXURES :
ANNEXURE A: EXECUTIVE'S DUTIES AND RESPONSIBILITIES
ANNEXURE B: EXECUTIVE'S ACCOUNT PARTICULARS
ANNEXURE C: DISCIPLINARY RULES
ANNEXURE D: GRIEVANCE PROCEDURE
i
SERVICE AGREEMENT
between
DRD (ISLE OF MAN) LIMITED
(a company duly incorporated under the company laws of the Isle of Man under
Registration Number 94445C)
("the Company")
and
MARK WELLESLEY-WOOD
(Passport Number 025253496)
("the Executive")
1 RECORDAL
1.1 The parties record that:
1.1.1 the Company wishes to engage the services of the Executive and
the Executive wishes to render such services to the Company;
and
1.1.2 the terms on which this engagement takes place are set out in
this Agreement.
1.2 The parties further record that the Executive has been
appointed as a Director of the Company, which appointment
shall continue in effect.
2 DEFINITIONS
For the purposes of this Agreement unless the context indicates otherwise,
the Parties defined in the heading of this Agreement shall retain such
definitions and the words and expressions set out below shall have the
meanings assigned to them and cognate expressions shall have a
corresponding meaning, namely :
2.1 "this Agreement" means this agreement and all its Annexures;
2.2 "Auditors" means the auditors of the Company for the
time being;
2.3 "Board" means the board of directors of the Company
for the time being;
2.4 "Code" means the Securities Regulation Code
promulgated in terms of section 440(C)(5)
of the South African Companies Act, 1973,
as amended from time to time;
2.5 "Commencement Date" means 1 December 2003;
2.6 "Documents" means documents of any nature, disks,
notebooks, tapes or any medium whether or
not eye-readable on which information may
be recorded from time to time;
2.7 "Engagement Date" means the date on which the Executive
commenced his employment with the Group,
namely 1 July 2000. Employment from the
Engagement Date does not count as
continuous employment for the purposes of
Section 1 of the Employment Act
1991.xxContinuous employment runs from the
Commencement Date;
2.8 "Group" means Durban Roodepoort Deep, Limited, a
company incorporated in the Republic of
South Africa and all its subsidiaries and
affiliated companies;
2.9 "Group Remuneration
Committee" means the committee of directors of the
Company or of Companies within the Group
which considers and determines the
remuneration payable to executives employed
by companies within the group;
2.10 "Parties" means the Parties to this Agreement;
2.11 "Remuneration Package" means the remuneration package as set out
in CLAUSE 5.1; and
2
2.12 "Share Option Scheme" means the Durban Roodepoort Deep (1996)
Share Option Scheme or any other scheme of
the same or similar kind in which the
Executive is an eligible participant.
3 TERM OF EMPLOYMENT
3.1 This Agreement shall be deemed to have commenced on 1 December 2003
and, subject to CLAUSE 10, shall continue in force for a period of
two years until 30 November 2005.
3.2 On the expiry of this Agreement on 30 November 2005 the Executive
shall be paid an amount equal to half his Remuneration Package
calculated on the basis of the Remuneration Package payable to the
Executive on the date of termination of employment.
3.3 The parties envisage the possibility that this Agreement may be
extended for a further period of time, or that a new agreement may
be entered into between them in terms of which the Executive
continues to be employed by the Company. Should this Agreement be
extended or should a new agreement be entered into, the payment
referred to in CLAUSE 3.2 shall not be made but shall be made on the
termination of the new agreement or on the termination of the
extended period.
4 DUTIES
4.1
The Executive shall:
4.1.1 perform such duties and exercise such responsibilities as set
out in Annexure A hereto as amended from time to time, and
such other duties as are determined from time to time by the
Board;
4.1.2 comply with all reasonable instructions given to him from time
to time by the Board;
3
4.1.3 carry out his duties in a proper, loyal and efficient manner
and use his best endeavours to properly conduct, improve,
extend, develop, promote, protect and preserve the business
interests, reputation and goodwill of the Company and the
Group;
4.1.4 comply with all the Company's reasonable rules, regulations,
policies, practices and procedures laid down and amended from
time to time for the efficient and harmonious operation of the
Company's business; and
4.1.5 not be in the employment of any other employer other than
within the Group, throughout the duration of this Agreement.
4.2 Unless otherwise agreed, the Executive's normal hours of work will
be from 09h00 until 17h00, Mondays to Fridays. However, as senior
member of management the Executive shall be required to work such
additional hours as are necessary to perform his duties effectively.
4.3 The Executive shall not, either during his employment by the Company
or thereafter, use or disclose to any third parties, or attempt to
use or disclose to any third parties, any Confidential Information.
For the purposes of this Agreement confidential information includes
information which is of a confidential nature relating to the
Company and the Group, including without being limited to, business
plans, trade secrets, financial information, technical information
and/or commercial information.
4.4 Upon the termination of his employment with the Company, and if so
requested by the Company during employment, the Executive shall
deliver to the Company all lists of clients or customers,
correspondence and all other Documents, papers and records which may
have been prepared by him or have come into his possession in the
course of his employment
4
with the Company, and the Executive shall not be entitled to retain
any copies thereof. The Executive acknowledges that all title and
copyright in the Confidential Information and Documents shall vest
in the Company.
5 REMUNERATION PACKAGE
5.1 The Executive shall be paid an annual all-inclusive Remuneration
Package amounting to US$250 000.00 (two hundred and fifty thousand
United States dollars) paid in 12 equal amounts.
5.2 Payment shall be made monthly in arrears by bank credit transfer
into the Executive's Account, which Account Particulars are more
fully set out in Annexure B hereto, on or about the 24th day of each
month.
5.3 The Executive has elected, and the Company has agreed that, this
amount be paid in Great British Pounds (pounds sterling), in
accordance with the exchange rate in effect on 1 December 2003.
Accordingly, the Executive shall receive an amount of 145,000 (One
Hundred and Forty Five Thousand) Great British Pounds (pounds
sterling).
5.4 The Executive will be responsible for all personal tax obligations.
5.5 The Remuneration Package referred to in clause 5.1 above shall
include contributions made to a retirement fund of the Executive's
choice,
6 EXPENSES AND REIMBURSEMENTS
The Company will refund, or will procure the refunding, to the
Executive of all reasonable expenses properly incurred by him in
performing his duties under this Agreement in accordance with
Company policy. This will include expenses relating to entertainment
and traveling. The Company requires the Executive to submit official
receipts or other documents as proof that he has incurred any
expenses he claims.
5
7 BONUS AND INCENTIVES
7.1 In addition to the Executive's Remuneration Package and other
benefits stipulated in this Agreement, the Executive shall be
entitled to the bonuses and incentives set out in this clause,
subject to the conditions set out herein.
7.2 The Executive shall be entitled to bonuses to be determined with
reference to targets set in terms of key performance indicators as
agreed between the Executive and the Group Remuneration Committee.
7.2.1 Bonuses shall be calculated and be payable in respect of 4
(four) bonus cycles. The first cycle shall be deemed to have
commenced on 1 January 2004 and shall terminate on 30 June
2004. The second bonus cycle shall commence on 1 July 2004 and
shall terminate on 31 December 2004.xxThe third bonus cycle
shall commence on 1 January 2005 and terminate on 30 June
2005.xxThe fourth bonus cycle shall commence on 1 July 2005
and terminate on 30 November 2005. Should the Executive meet
all the targets set in terms of the key performance indicators
agreed to in respect of a specific bonus cycle he shall be
entitled to a bonus of 40 (forty) per cent of his Remuneration
Package. Should the Executive not fully meet all the targets
set in terms of the key performance indicators as agreed, he
shall be entitled to such lesser bonus as determined by the
Group Remuneration Committee. This bonus will be determined
with reference to the extent that the targets have been met.
7.2.2 The bonuses referred in CLAUSE 7.2.1 will be paid to the
Executive by the Company within 30 (thirty) business days of
the end of each bonus cycle.
6
7.2.3 The bonuses referred to in CLAUSE 7.2.1 will be paid in the
following manner:
7.2.3.1 the Company shall pay to the Executive the amount due to
the Executive in terms of CLAUSE 7.2.1 less 25% (twenty
five per cent) of that amount;
7.2.3.2 an amount equivalent to the amount deducted in terms of
CLAUSE 7.2.3.1 shall be retained by the Company for the
benefit of the Executive (excluding interest);
7.2.3.3 the Executive shall, provided that the Executive meets
the performance criteria determined by the Group
Remuneration Committee and accordingly qualifies for a
bonus during the next bonus cycle, be entitled to
receive payment of the amount retained by the Company
during the previous bonus cycle.
7.2.4 Notwithstanding the above, if this Agreement is not extended
or a further agreement is not entered into as envisaged in
CLAUSE 3.3, any bonus payable in respect of the final bonus
cycle shall be payable in full within 30 (thirty) business
days of the end of the final bonus cycle.
7.2.5 The provisions of this CLAUSE 7.2 shall be applicable to each
bonus cycle.
7.3 Subject to the provisions set out below, and as consideration for
agreeing to remain in the employment of the Company for the periods
set out below, the Executive shall be issued or provided with up to
210,000 (two hundred and ten thousand) ordinary shares in Durban
Roodepoort Deep, Limited in the tranches set out below. The 210,000
(two hundred and ten thousand)
7
shares represent an amount equal to 240 (two hundred and forty) per
cent of the Executive's Remuneration Package based on the closing
price of the Company's shares as quoted on NASDAQ on 1 December
2003. If the Executive becomes entitled to shares in terms of this
clause 7.3, the Company shall procure that these shares are issued
to the Executive by Durban Roodepoort Deep, Limited or shall take
all such other steps at its own cost as are necessary to provide the
Executive with these shares. If these shares are not issued or
provided the Company shall pay the Executive the monetary value
thereof.
7.3.1 The shares shall be issued or provided to the Executive in
four equal tranches. The Executive shall become entitled to,
and shall be issued or provided with, the first tranche on 30
November 2004, provided that he is still in the employment of
the Company on this date.
7.3.2 The Executive shall become entitled to, and shall be issued or
provided with, the second tranche on 30 November 2005,
provided that he is still in the employment of the Company on
this date.
7.3.3 The Executive shall become entitled to, and shall be issued or
provided with, the third tranche on 30 November 2006, provided
that he is still in the employment of the Company on this
date.
7.3.4 The Executive shall become entitled to, and shall be issued or
provided with, the final tranche on 30 November 2007, provided
that he is still in the employment of the Company on this
date.
7.3.5 Should this agreement automatically terminate in accordance
with the provisions of CLAUSE 3.1 read with CLAUSE 10.1.1, and
should there be no extension of this Agreement or the
conclusion of
8
an other agreement as envisaged in CLAUSE 3.3, the Board may,
at its discretion, award the Executive all or some of the
shares to which the Executive would have become entitled in
terms of CLAUSE 7.3.3 and CLAUSE 7.3.4 if he had remained in
the employment of the Company. In this event the Company shall
procure that these shares are issued to the Executive by
Durban Roodepoort Deep, Limited or shall take all such other
steps as are necessary to provide the Executive with these
shares.
7.3.6 The Executive shall be entitled to elect not to be issued a
portion of any of the shares to which he becomes entitled in
terms of CLAUSES, 7.3.1, 7.3.2, 7,3.3, 7.3.4 OR 7.3.5 but
rather to receive a monetary amount in lieu of such shares
from the Company, calculated at the share price as set out in
CLAUSE 7.3 above.
7.3.7 If, on a date that shares should be issued or provided in
terms of this clause, the Executive is prohibited, in terms
any legal provision and/or any rule or directive of any
applicable Stock Exchange or Securities Regulation Authority,
from being issued or provided with these shares, these shares
shall be issued or provided on the first date on which such
prohibition is no longer in effect.
7.3.8 The parties record that the coming into effect of CLAUSE 7.3
is subject to the shareholders of Durban Roodepoort Deep,
Limited granting the necessary approval in terms of the South
African Companies Act, 1973 (if applicable) and the Isle of
Man Companies Legislation (if applicable). The parties further
record that if such approval is not granted, the Executive
shall be eligible for shares in terms of the rules of the
Share Option Scheme.
9
8 INSURANCE COVER
8.1 The Company shall apply for and maintain a reasonable level of
Directors' and Officers' Liability Insurance, with the Executive
covered as an insured and the Company will maintain at its expense
the same cover for the Executive for a period of 7 (seven) years
after termination of this Agreement by either party for any reason
whatsoever.
8.2 The Company undertakes to pay on the behalf of the Executive the
premiums payable by the Executive under the Group Life Scheme of the
Company. The cover under the Group Life Scheme shall include
temporary and permanent disability and trauma insurance. The life
assurance cover for the Executive will be an amount equivalent to 4
(four) years' of the gross annual remuneration package paid to the
Executive calculated on the basis of the remuneration package
payable to the Executive at the date of his death.
8.3 On termination of this Agreement by either party for any reason
whatsoever the Executive shall, subject to the rules of the Group
Life Scheme, be entitled to remain a member of the Group Life Scheme
and to enjoy the same benefits and coverage as those he enjoyed
immediately prior to the termination of employment. The benefits and
coverage shall be based on the remuneration package the Executive
was entitled to immediately prior to the date of termination of
employment. The Company shall pay all premiums and contributions
payable to maintain such membership and coverage for a period of 5
(five) years calculated from the date of termination of employment.
Should the Executive, as a result of the termination of his
employment, not be entitled to retain the benefits and coverage
contained in the Group Life Scheme, and he decides to exercise the
right to effect whole life or endowment insurance as envisaged in
Clause 4 of the Group Life Scheme, all premiums and contributions
for such benefits and
10
coverage shall be borne by the Company for a period of 5
(five) years calculated from the date of the termination of
his employment. The Company shall take all such steps, and
provide all such assistance, as may be necessary to ensure
that the Executive is entitled to exercise his rights in terms
of this clause. For the purposes of this CLAUSE 8.3 the Group
Life Scheme is the Sanlam Scheme No 18740 (Policy No.
18681100X6) or any other similar scheme that is in effect at
the date of termination of employment.
9 LEAVE
9.1 The Executive shall be entitled to 30 (thirty) working days' paid
leave in each successive period of 12 (twelve) months of work
commencing on the Commencement Date.
9.2 The Executive shall be entitled to an additional 21 (twenty-one)
working days' paid leave during the period of the 60 (sixty) months
commencing on the Commencement Date and an additional 21
(twenty-one) working days' paid leave every successive cycle of 60
(sixty) months thereafter.
9.3 The Executive shall not be entitled to accumulate any leave set out
in CLAUSE 9.1 which has not been taken, unless the Board has
specifically requested the Executive in writing not to take leave in
such year. Any leave not taken will be converted into cash annually
on 30 November each year and be payable to the Executive.
9.4 Leave provided for in CLAUSE 9.2, which is not taken in a particular
cycle of 60 (sixty) months will not be forfeited but must be taken
in the next cycle of 60 (sixty) months.
10 TERMINATION
10.1 This agreement will terminate in the circumstances set out below.
11
10.1.1 This Agreement will terminate automatically on 30 November
2005 when the 2-year period referred to in CLAUSE 3.1 expires.
10.1.2 The Company may terminate this Agreement with or without
notice if the Executive -
10.1.2.1 commits any serious or persistent breach of any of the
provisions contained in this Agreement, provided that
the inability of the Executive to perform his duties due
to incapacity shall not constitute a breach of contract
for the purposes of this Agreement;
10.1.2.2 is found guilty of theft, fraud or any gross
irregularity; or
10.1.2.3 is found guilty of gross misconduct, serious
malperformance or willful neglect in the discharge of
his duties, whether in terms of this Agreement or in
terms of any other agreement between the Executive and a
member of the Group.
10.1.3 If the Executive is at any time prevented by illness, injury,
accident or any other circumstances beyond his control from
discharging his full duties under this Agreement (hereafter
referred to as "incapacity") for a total of 180 (one hundred
and eighty) or more days in any 12 (twelve) consecutive
calendar months' cycle commencing at the Commencement Date,
the Company may, by giving one month's written notice of
termination to the Executive, terminate this Agreement, in
which event he shall be paid an amount equal to half his
Remuneration Package calculated on the basis of the
Remuneration Package payable to the Executive on the date of
termination of employment. Notwithstanding the incapacity and
12
absence from work, the Company shall be required to pay the
Executive his full remuneration during any period of absence
from work prior to termination of employment in terms of this
clause.
10.1.4 The Executive may terminate this Agreement by reason of an
Eligible Transaction in accordance with the provisions of
CLAUSE 11 below.
10.2 Should this Agreement terminate in terms of any of the provisions
thereof, the Executive shall resign his directorship within 2 days
of the termination of this Agreement unless the Board agrees in
writing to the Executive continuing to act as a director.
10.3 Nothing contained in this Agreement shall be construed as according
the Executive any entitlement to compensation for loss of office as
a director of the Company or any company within the Group.
11 ELIGIBLE TRANSACTIONS
11.1 For the purposes of this Agreement an "Eligible Transaction" means
any agreement, including any agreement forming part of a series of
other agreements, which either by itself or together with any of the
other agreements, constitutes or results in a transaction involving
a change of control of Durban Roodepoort Deep, Limited of a kind
which falls within the ambit of clause (a) of the definition of
"affected transaction" in Section B of the Code, read with clause 5
of the same Section of the Code.
11.2 If an Eligible Transaction is entered into, the Executive shall be
entitled to terminate this Agreement, subject to the following
provisions:
11.2.1 the Executive may exercise this right of termination by giving
written notice to this effect to the Company at any time from
the date on which the announcement of a firm intention to make
an offer in
13
respect of the Eligible Transaction, as contemplated in Rule
2.3 of Section D of the Code ("the Announcement Date"), is
made in accordance with the requirements of the Code, until
the Closing Date of that Eligible Transaction;
11.2.2 if the Executive gives written notice of termination in terms
of CLAUSE 11.2.1 he may at the same time, or at any time
before the Closing Date, or in the circumstances envisaged in
CLAUSE 11.2.6, any time before the Extended Date as defined in
CLAUSE 11.2.6, and notwithstanding the rules of the Share
Option Scheme or any other directive of the Board, exercise
all options granted to him in terms of the Share Option
Scheme, read with CLAUSE 12.2;
11.2.3 if the Executive gives written notice of termination in terms
of CLAUSE 11.2.1 he shall become entitled to, and shall be
issued, all the shares referred to in CLAUSE 7.3 which have
not yet been issued to the Executive in terms of that clause
notwithstanding that the dates referred to in CLAUSES 7.3.1,
7.3.2, 7.3.3 and 7.3.4 have not yet arrived. The Company shall
procure that these shares are issued by Durban Roodepoort
Deep, Limited, or shall take all such other steps as are
necessary to provide the Executive with these shares. If the
shares are not issued or are not provided the Executive shall
be paid the full value of the shares by the Company;
11.2.4 any notice of termination given by the Executive in terms of
CLAUSE 11.2.1, any exercise of his rights under the Share
Option Scheme in terms of CLAUSE 11.2.2, and any right to be
issued shares in terms of CLAUSE 11.2.3 shall be conditional
upon, and shall therefore take effect only if, the Eligible
Transaction itself becomes wholly unconditional and is
actually carried into effect and implemented in accordance
with its terms and accordingly ceases to be executory;
14
11.2.5 any notice of termination given in terms of CLAUSE 11.2.1, any
rights exercised in terms of CLAUSE 11.2.2 and any entitlement
to shares in terms of CLAUSE 11.2.3 may not be withdrawn or
revoked by the Executive, without the written consent of the
Company; and
11.2.6 if any notice of termination given by the Executive in terms
of CLAUSE 11.2.1 takes effect in terms of CLAUSE 11.2.4, this
Agreement shall terminate on the Closing Date of the Eligible
Transaction; provided that if the Executive is prohibited, in
terms any legal provision, and/or rule or directive of any
applicable Stock Exchange or Security Regulation Authority,
from exercising any right under the Share Option Scheme, or
from being issued with shares in terms of CLAUSE 11.2.3, for
any period of time during the period between the Announcement
Date and the Closing Date, this Agreement will not terminate
on the Closing Date but will continue in existence until a
period of 30 days has elapsed, calculated from the date on
which the prohibition ceased to be of effect (the "extended
date"), provided further that if the Closing Date is a date
later than the Extended Date this Agreement shall terminate on
the Closing Date.
12 SHARE OPTIONS
12.1 All existing share options granted to the Executive in terms of the
Share Option Scheme will be honoured and the Company shall procure,
as far as is necessary, that they are so honoured.
12.2 In the event of the Executive giving notice of termination of
employment in terms of CLAUSE 11.2.1 the Company shall procure that
all shares allocated to the Executive in terms of the Share Option
Scheme will not lapse
15
but shall become exercisable by him within the time periods set out
in CLAUSES 11.2.1 or 11.2.6 whichever is applicable.
12.3 In the event that the Company is unable to procure that the shares
become exercisable, the Company shall indemnify the Executive for
any losses suffered as a result thereof.
12.4 Notwithstanding anything to the contrary in this Agreement, the
Company shall be entitled to suspend the Executive during the
periods referred to in CLAUSES 11.2.1 or 11.2.6, provided that all
amounts and benefits which otherwise accrue to the Executive during
those periods shall continue to accrue as if he were not suspended.
13 BENEFITS PAYABLE FOR AN ELIGIBLE TERMINATION
13.1 In the event of the Executive giving notice of termination in terms
of clause 11.2.1 the Executive shall, subject to compliance with the
relevant company laws, be entitled to receive payment from the
Company as a termination benefit an amount equal to:
TS x TE
--------
12
Where:
TS = means the period (in completed calendar months) served
by the Executive as an employee of the Group from the
engagement date to the date of termination of this
Agreement, provided that such period shall not be less
than 12 (twelve) calendar months nor more than 48
(forty-eight) calendar months; and
TE = means the remuneration package as set out in CLAUSE 5.1.
16
13.2 The total amount which becomes payable to the Executive in terms of
this clause shall accrue to him on the date on which the termination
takes effect, and be payable to him within 30 (thirty) days after
the amount has been determined by the Auditors in accordance with
CLAUSE 13.3.
13.3 The total amount, and all the separate amounts making up the total
amount payable to the Executive in terms of CLAUSE 13.1 including
any pro-rata adjustments made, shall be determined by the Auditors
as soon as possible after the date of termination, and their
certificate as to each of those amounts shall, in the absence of
manifest or clerical error, be final and binding on all the Parties.
14 NOTICES
14.1 Any notices given under this Agreement must be given by letter or
fax. Notices to the Company must be addressed to its registered
office at the time the notice is given. Notices to the Executive
must be given to him personally or sent to his last known address.
14.2 Except for notices given by hand, notices will be deemed to have
been given at the time at which the letter or fax would be delivered
in the ordinary course of post or transmission.
15 THE RIGHT OF THE COMPANY TO ASSIGN THIS AGREEMENT
15.1 The Company shall be entitled, without the consent of the Executive,
to assign all its rights and all its obligations under this
Agreement to any company, which, at the time of the assignment, is a
member of the Group.
15.2 For the avoidance of any doubt it is expressly recorded that the
provisions of CLAUSE 15.1 shall apply mutatis mutandis to any succeeding
assignee of this Agreement.
17
16 DISCIPLINARY RULES AND GRIEVANCE PROCEDURE
16.1 The Disciplinary Rules attached hereto as Annexure C shall apply to
the Executive's Employment. These rules constitute guidelines as to
the Executive's Conduct rather than binding contractual obligations.
In the event of disciplinary action being taken against the
Executive he shall be entitled to take the matter up with Geoffrey
Campbell ("the Senior Independent Non Executive Director").
16.2 The Grievance Procedure attached hereto as Annexure D shall apply to
the Executive. This procedure sets out guidelines rather than
binding contractual obligations. In the event of a grievance
arising, the Executive shall be entitled to approach the Senior
Independent Non Executive Director to deal with the issue.
16.3 In the event of a conflict between the provisions of this Agreement
on the one hand and the disciplinary rules and grievance procedure
on the other, this agreement shall take precedence.
17 DISPUTES
17.1 In the event of any dispute arising out of this Agreement the matter
shall be referred to a single arbitrator agreed by the parties and
in the absence of any such agreement such arbitrator shall be
appointed by the President for the time being, or in his absence the
Vice President for the time being, of the Isle of Man Law Society.
17.2 This Agreement shall be governed by and construed in accordance with
the law of the isle of Man.
18 GENERAL
18.1 This document contains the entire agreement between the Parties in
regard to its subject matter.
18
18.2 No Party shall have any claim or right of action arising from any
undertaking, representation or warranty not included in this
Agreement.
18.3 No failure by a Party to enforce any provision of this Agreement
shall constitute a waiver of such provision or affect in any way a
Party's right to require performance of any such provision at any
time in the future, nor shall the waiver of any subsequent breach
nullify the effectiveness of the provision itself.
18.4 No agreement to vary, add to or cancel this Agreement shall be of
any force or effect unless reduced to writing and signed by or on
behalf of the Parties to this Agreement.
18.5 This Agreement is governed by, and will be interpreted in accordance
with, the laws of the Isle of Man.
SIGNED at on 2004
For: DRD (ISLE OF MAN) LIMITED
/s/ P.F. Matthews
-----------------------------------------
Signatory:
Capacity:
Authority:
SIGNED at on 2004
/s/ M.M. Wellesley-Wood
-----------------------------------------
MARK MICHAEL WELLESLEY-WOOD
19
ANNEXURE A
DURBAN ROODEPOORT DEEP, LIMITED
(REG NO 1895/000926/06)
ROLE AND FUNCTION OF THE CHAIRPERSON (EXECUTIVE CHAIRMAN)
In accordance with King II, the Chairperson's primary function is to preside
over meetings of the directors and to ensure the smooth functioning of the Board
in the interest of good corporate governance.
The role of the Chairperson is influenced by such matters as the size of the
company, the complexity of its operations, the qualities of the Chief Executive
Officer, the management team and the skills and experience of each board member.
The core functions performed by the Chairman include:
- - Providing overall leadership to the board without limiting the principles
of collective responsibility for board decisions;
- - Actively participating in the selection of board members as well as
overseeing a formal succession plan for the board, Chief Executive Officer
and senior management;
- - Arranging for new directors to the board to be properly inducted and
oriented;
- - Addressing the development needs of the board as a whole and individual
directors;
- - Monitoring and evaluating board and director performance appraisals;
- - Determining the formulation of an annual work plan for the board against
agreed objectives and goals, as well as playing an active part in setting
the agenda for board meetings;
- - Acting as the main information link between the board and management, and
particularly between the board and the Chief Executive Officer;
A-1
- - Assist In maintaining relations with the company's shareowners and more
important stakeholders;
- - Ensuring that all directors play a full and constructive role in the
affairs of the company and taking a leading role in removing
non-performing or unsuitable directors from the board;
- - Ensuring that all relevant information and facts, objectively speaking,
are placed before the board to enable directors to reach informed
decisions;
- - Upholds the highest standards of integrity and probity;
- - Sets the agenda style and tone of board discussions to promote effective
decision-making and constructive debate;
- - Ensuring that the board has sufficient time to discuss issues;
- - Promotes effective relationships and open communication, both inside and
outside the boardroom, between non-executive directors and the executive
team;
- - Promotes the highest standards of corporate governance and seeks
compliance with the provisions of the Code wherever possible;
- - Ensures a clear structure for and the effective running of board
committees;
- - Ensures effective implementation of board decisions;
- - Establishes a close relationship of trust with the chief executive,
providing support and advice while respecting executive responsibility;
and
- - Provides coherent leadership of the company, including representing the
company and understanding the view of the shareholders.
A-2
ROLE AND FUNCTION OF THE CHIEF EXECUTIVE OFFICER
In accordance with King II, the Chief Executive Officer's primary function is to
run the business and to implement the policies and strategies adopted by the
board. The Chief Executive Officer also provides leadership, strategic
provision, high-level business judgement and wisdom, and the ability to meet
immediate performance targets without neglecting longer-term growth
opportunities. The Chief Executive Officer therefore plays a critical and
strategic role In the operational success of the company's business.
The core functions performed by the Chief Executive Officer:
- - Develop and recommend to the board the long-term strategy and vision for
the company that will generate satisfactory levels of shareowner value and
positive, reciprocal relations with relevant stakeholders;
- - Develop and recommend to the board annual business plans and budgets that
support the company's long-term strategy;
- - Strive consistently to achieve the company's financial and operating goals
and objectives, and ensure that the day-to-day business affairs of the
company are appropriately monitored and managed;
- - Ensure continuous improvement in the quality and value of the products and
services provided by the company, and that the company achieves and
maintains a satisfactory competitive position within its industry;
- - Ensure that the company has an effective management team that actively
participate in the development of management and succession planning;
- - Formulate and oversee the implementation of major corporate policies;
- - Serve as the chief spokesperson for the company;
- - Maintain a positive and ethical work climate that is conducive to
attracting, retaining and motivating a diverse group of employees at all
levels of the company; and
A-3
- - Foster a corporate culture that promotes ethical practices, encourages
individual integrity and fulfils social responsibility objectives and
imperatives.
A-4
ANNEXURE B
BANKING DETAILS - M M WELLESLEY-WOOD
B-1
ANNEXURE B
EXECUTIVE'S ACCOUNT PARTICULARS
BANK: DUNCAN LAWRIE (ISLE OF MAN) LTD
ADDRESS: 14/15 MOUNT HAVELOCK
DOUGLAS
ISLE OF MAN
1M1 2QG
FOR THE ATTENTION OF KAREN KARRAN
B-2
ANNEXURE C
DISCIPLINARY PROCEDURE
This disciplinary procedure provides for warnings to be given for failure
to meet the Company's standards of job performance, conduct (whether during
working hours or not) and attendance, or for breach of any of the terms and
conditions of employment. The procedure is not contractual but applies to the
Executive as an employee of the Company and the Executive should familiarise
himself with its provisions.
1. In the first instance the Senior Independent Non Executive Director
(Geoffrey Campbell) ("Senior independent Non Executive Director") will establish
the facts surrounding the complaint if necessary taking into account the
statements of any available witnesses.
2. If the Senior Independent Non Executive Director considers that it is
not necessary to resort to the formal warning procedure, he will discuss the
matter with the Executive suggesting areas for improvement. The discussion will,
insofar as is possible, be in private and the Executive will be informed that no
formal disciplinary action is being taken.
3. If the Senior Independent Non Executive Director considers that it is
necessary to invoke the formal warning procedure they will inform the Executive.
The following procedure will then apply, but, depending upon the seriousness of
the offence, may be invoked at any level including summary dismissal.
3.1 IN THE CASE OF MINOR OFFENCES THE EXECUTIVE WILL BE GIVEN A
FORMAL ORAL WARNING. THE EXECUTIVE WILL BE ADVISED THAT THE
WARNING CONSTITUTES THE FIRST FORMAL STAGE OF THE DISCIPLINARY
PROCEDURE AND THAT A NOTE WILL BE PLACED ON HIS PERSONAL FIFE.
THE NATURE OF THE OFFENCE AND THE LIKELY CONSEQUENCES OF
FURTHER OFFENCES OR A FAILURE TO IMPROVE WILL BE EXPLAINED TO
THE EXECUTIVE.
3.2 IN THE CASE OF SERIOUS OFFENCES OR A REPETITION OF EARLIER
MINOR OFFENCES THE EXECUTIVE WILL BE GIVEN A WRITTEN WARNING,
SETTING OUT THE PRECISE NATURE OF THE OFFENCE, THE LIKELY
CONSEQUENCES OF FURTHER OFFENCES AND SPECIFY ING, IF
APPROPRIATE, THE IMPROVEMENT REQUIRED AND OVER WHAT PERIOD.
3.3 IN THE CASE OF A FURTHER REPETITION OF EARLIER OFFENCES, IF
THE EXECUTIVE STILL FALLS TO IMPROVE OR IF THE OFFENCE, WHILST
FALLING SHORT OF GROSS MISCONDUCT, IS SERIOUS ENOUGH TO
WARRANT ONLY ONE WRITTEN WARNING, THE EXECUTIVE WILL BE GIVEN
A FINAL WRITTEN WARNING SETTING OUT THE PRECISE NATURE OF THE
OFFENCE, CONTAINING A STATEMENT THAT ANY RECURRENCE WILL LEAD
TO DISMISSAL OR WHATEVER OTHER PENALTY IS CONSIDERED
APPROPRIATE AND SPECIFYING,
C-1
IF APPROPRIATE, THE IMPROVEMENT REQUIRED AND OVER WHAT PERIOD.
3.4 DEPENDING UPON THE SERIOUSNESS OF THE MATTER AND ALL THE
CIRCUMSTANCES, ANY OF THE ABOVE STAGES MAY BE OMITTED.
3.5 IN THE CASE OF GROSS MISCONDUCT OR IF ALL OR THE APPROPRIATE
STAGES OF THE WARNING PROCEDURE HAVE BEEN EXHAUSTED THE
EXECUTIVE WILL NORMALLY BE DISMISSED, BUT ONLY AFTER
CONSIDERATION OF OTHER POSSIBLE DISCIPLINARY ACTION INCLUDING
(BUT WITHOUT LIMITATION): DEMOTION OR TRANSFER; LOSS OF
SENIORITY OR SALARY INCREMENT; SUSPENSION WITH OR WITHOUT PAY.
4. Where the Executive is accused of an act of gross misconduct he may be
suspended from work for on full pay pending the outcome of investigation into
the alleged offence.
5. In all cases before any disciplinary action (including warnings) is
taken the Executive will be interviewed by the Senior Independent Non Executive
Director and will be informed of the allegations made against him. The Executive
will be given the opportunity to state his case and at the interview may be
accompanied by a colleague of his choice. If the complaint is upheld he will be
informed of the disciplinary action to be taken; the stage in the disciplinary
procedure to be adopted depending upon the seriousness of the offence, and of
the right to appeal.
6. If the Executive is dissatisfied with the outcome of any stage of the
above procedure he may appeal either orally or in writing within 7 days to any
other independent Non Executive Director as agreed by the Board from time to
time.
7. The following are non-exhaustive examples of the sort of offences
which, if committed, will normally lead to formal disciplinary action being
taken:
7.1 MINOR OFFENCES (ORAL WARNING): POOR JOB PERFORMANCE INVOLVING
SUB-STANDARD WORK, UNPUNCTUALITY, ABSENTEEISM OR ANY MINOR
BREACH OF THE COMPANY'S REGULATIONS.
7.2 SERIOUS OFFENCES (WRITTEN WARNING): NEGLIGENCE RESULTING IN
MINOR LOSS, DAMAGE OR INJURY; FAILURE TO COMPLY WITH A
SPECIFIC INSTRUCTION; IRRESPONSIBILITY IN RELATION TO THE
COMPANY'S EMPLOYEES, ACTIVITIES OR IMPROPRIETY IN RELATION TO
THE EXECUTIVE'S TASKS FOR THE COMPANY, WHETHER OR NOT WITHIN
WORKING HOURS, WHICH THE COMPANY REASONABLY CONSIDERS TO BE
DETRIMENTAL TO OR CONFLICTING WITH THE INTERESTS OF THE
COMPANY OR ITS CLIENTS OR CUSTOMERS, OR LIKELY TO AFFECT THE
STANDARD OF WORK; FAILURE TO DISCLOSE ANY PERSONAL INTEREST
THE EXECUTIVE HAS WHICH CONFLICTS WITH ANY MATTER OF A CLIENT
OR CUSTOMER WITH WHICH HE IS
C-2
ENGAGED, OR ANY BREACH OF CONFIDENCE RELATING TO THE COMPANY
OR ITS CLIENT'S OR CUSTOMER'S AFFAIRS.
7.3 GROSS MISCONDUCT (DISMISSAL): NEGLIGENCE RESULTING IN SERIOUS
LOSS, DAMAGE OR INJURY; ASSAULT OR ATTEMPTED ASSAULT; THEFT;
MALICIOUS DAMAGE TO PROPERTY; WILLFUL DISREGARD OF DUTIES OR
OF INSTRUCTIONS RELATING TO THE EMPLOYMENT; DELIBERATE AND
SERIOUS BREACH OF CONFIDENCE RELATING TO THE COMPANY'S OR ITS
CLIENT'S OR CUSTOMER'S AFFAIRS; THE USE FOR PERSONAL ENDS OF
CONFIDENTIAL INFORMATION OBTAINED BY THE EXECUTIVE IN THE
COURSE OF HIS EMPLOYMENT; FALSIFICATION OF RECORDS; CONDUCT
VIOLATING COMMON DECENCY, OR CONVICTION ON A CRIMINAL CHARGE
RELEVANT TO THE EXECUTIVE'S EMPLOYMENT. (IN SERIOUS CASES,
DISMISSAL WILL NORMALLY BE WITHOUT NOTICE.)
C-3
ANNEXURE D
DISCIPLINARY PROCEDURE
This disciplinary procedure provides for warnings to be given for failure
to meet the Company's standards of job performance, conduct (whether during
working hours or not) and attendance, or for breach of any of the terms and
conditions of employment. The procedure is not contractual but applies to the
Executive as an employee of the Company and the Executive should familiarise
himself with its provisions.
1. In the first instance the Chairman of the Board (Mark Wellesley-Wood)
("the Chairman") will establish the facts surrounding the complaint if necessary
taking into account the statements of any available witnesses.
2. If the Chairman considers that it is not necessary to resort to the
formal warning procedure, he will discuss the matter with the Executive
suggesting areas for improvement. The discussion will, insofar as is possible,
be in private and the Executive will be informed that no forma! disciplinary
action is being taken.
3. If the Chairman considers that it is necessary to invoke the formal
warning procedure they will inform the Executive. The following procedure will
then apply, but, depending upon the seriousness of the offence, may be invoked
at any level including summary dismissal.
3.1 IN THE CASE OF MINOR OFFENCES THE EXECUTIVE WILL BE GIVEN A
FORMAL ORAL WARNING. THE EXECUTIVE WILL BE ADVISED THAT THE
WARNING CONSTITUTES THE FIRST FORMAL STAGE OF THE DISCIPLINARY
PROCEDURE AND THAT A NOTE WILL BE PLACED ON HIS PERSONAL FILE.
THE NATURE OF THE OFFENCE AND THE LIKELY CONSEQUENCES OF
FURTHER OFFENCES OR A FAILURE TO IMPROVE WILL BE EXPLAINED TO
THE EXECUTIVE.
3.2 IN THE CASE OF SERIOUS OFFENCES OR A REPETITION OF EARLIER
MINOR OFFENCES THE EXECUTIVE WILL BE GIVEN A WRITTEN WARNING,
SETTING OUT THE PRECISE NATURE OF THE OFFENCE, THE LIKELY
CONSEQUENCES OF FURTHER OFFENCES AND SPECIFYING, IF
APPROPRIATE, THE IMPROVEMENT REQUIRED AND OVER WHAT PERIOD.
3.3 IN THE CASE OF A FURTHER REPETITION OF EARLIER OFFENCES, IF
THE EXECUTIVE STILL FAILS TO IMPROVE OR IF THE OFFENCE, WHILST
FALLING SHORT OF GROSS MISCONDUCT, IS SERIOUS ENOUGH TO
WARRANT ONLY ONE WRITTEN WARNING, THE EXECUTIVE WILL BE GIVEN
A FINAL WRITTEN WARNING SETTING OUT THE PRECISE NATURE OF THE
OFFENCE, CONTAINING A STATEMENT THAT ANY RECURRENCE WILL LEAD
TO DISMISSAL OR WHATEVER OTHER PENALTY IS CONSIDERED
APPROPRIATE AND SPECIFYING, IF APPROPRIATE, THE IMPROVEMENT
REQUIRED AND OVER WHAT PERIOD.
D-1
3.4 DEPENDING UPON THE SERIOUSNESS OF THE MATTER AND ALL THE
CIRCUMSTANCES, ANY OF THE ABOVE STAGES MAY BE OMITTED.
3.5 IN THE CASE OF GROSS MISCONDUCT OR IF ALL OR THE APPROPRIATE
STAGES OF THE WARNING PROCEDURE HAVE BEEN EXHAUSTED THE
EXECUTIVE WILL NORMALLY BE DISMISSED, BUT ONLY AFTER
CONSIDERATION OF OTHER POSSIBLE DISCIPLINARY ACTION INCLUDING
(BUT WITHOUT LIMITATION): DEMOTION OR TRANSFER; LOSS OF
SENIORITY OR SALARY INCREMENT; SUSPENSION WITH OR WITHOUT PAY.
4. Where the Executive is accused of an act of gross misconduct he may be
suspended from work for on full pay pending the outcome of investigation into
the alleged offence.
5. In all cases before any disciplinary action (including warnings) is
taken the Executive will be interviewed by the Chairman and will be informed of
the allegations made against him. The Executive will be given the opportunity to
state his case and at the interview may be accompanied by a colleague of his
choice. If the complaint is upheld he will be informed of the disciplinary
action to be taken; the stage in the disciplinary procedure to be adopted
depending upon the seriousness of the offence, and of the right to appeal.
6. If the Executive is dissatisfied with the outcome of any stage of the
above procedure he may appeal either orally or in writing within 7 days to
Geoffrey Campbell ("the Senior Independent Non-Executive Director).
7. The following are non-exhaustive examples of the sort of offences
which, if committed, will normally lead to formal disciplinary action being
taken:
7.1 MINOR OFFENCES (ORAL WARNING): POOR JOB PERFORMANCE INVOLVING
SUB-STANDARD WORK, UNPUNCTUALITY, ABSENTEEISM OR ANY MINOR
BREACH OF THE COMPANY'S REGULATIONS.
7.2 SERIOUS OFFENCES (WRITTEN WARNING): NEGLIGENCE RESULTING IN
MINOR LOSS, DAMAGE OR INJURY; FAILURE TO COMPLY WITH A
SPECIFIC INSTRUCTION; IRRESPONSIBILITY IN RELATION TO THE
COMPANY'S EMPLOYEES, ACTIVITIES OR IMPROPRIETY IN RELATION TO
THE EXECUTIVE'S TASKS FOR THE COMPANY, WHETHER OR NOT WITHIN
WORKING HOURS, WHICH THE COMPANY REASONABLY CONSIDERS TO BE
DETRIMENTAL TO OR CONFLICTING WITH THE INTERESTS OF THE
COMPANY OR ITS CLIENTS OR CUSTOMERS, OR LIKELY TO AFFECT THE
STANDARD OF WORK; FAILURE TO DISCLOSE ANY PERSONAL INTEREST
THE EXECUTIVE HAS WHICH CONFLICTS WITH ANY MATTER OF A CLIENT
OR CUSTOMER WITH WHICH HE IS ENGAGED, OR ANY BREACH OF
CONFIDENCE RELATING TO THE COMPANY OR ITS CLIENT'S OR
CUSTOMER'S AFFAIRS.
D-2
7.3 GROSS MISCONDUCT (DISMISSAL): NEGLIGENCE RESULTING IN SERIOUS
LOSS, DAMAGE OR INJURY; ASSAULT OR ATTEMPTED ASSAULT; THEFT;
MALICIOUS DAMAGE TO PROPERTY; WILLFUL DISREGARD OF DUTIES OR
OF INSTRUCTIONS RELATING TO THE EMPLOYMENT; DELIBERATE AND
SERIOUS BREACH OF CONFIDENCE RELATING TO THE COMPANY'S OR ITS
CLIENT'S OR CUSTOMER'S AFFAIRS; THE USE FOR PERSONAL ENDS OF
CONFIDENTIAL INFORMATION OBTAINED BY THE EXECUTIVE IN THE
COURSE OF HIS EMPLOYMENT; FALSIFICATION OF RECORDS; CONDUCT
VIOLATING COMMON DECENCY, OR CONVICTION ON A CRIMINAL CHARGE
RELEVANT TO THE EXECUTIVE'S EMPLOYMENT. (IN SERIOUS CASES,
DISMISSAL WILL NORMALLY BE WITHOUT NOTICE.)
D-3
ANNEXURE E
MODEL GRIEVANCE PROCEDURE
1. PROCEDURE
If the Executive has any questions or grievances relating to his
employment, he may seek redress orally or in writing in the following manner:
1.1 In the first instance should refer the grievance to Mark
Wellesley-Wood ("Chairman of the Board") and the matter will be discussed
informally with him.
1.2 If the grievance is not thereby resolved or the Executive considers
that he has not been fairly treated, he may apply formally in writing to the
Chairman of the Board within 7 days.
1.3 If the grievance is still not resolved or if the Executive still
considers that he has not been fairly treated, he may appeal to Geoffrey
Campbell, Senior Non Executive Director within 7 days.
E-1