EXHIBIT 4.69
SERVICE AGREEMENT
between
DRD (ISLE OF MAN) LIMITED
and
IAN LOUIS MURRAY
.
.
.
CONTENTS
NO CLAUSE PAGE NO
1 RECORDAL............................................................................... 3
2 DEFINITIONS............................................................................ 3
3 TERM OF EMPLOYMENT..................................................................... 5
4 DUTIES................................................................................. 5
5 REMUNERATION PACKAGE................................................................... 6
6 EXPENSES AND REIMBURSEMENTS............................................................ 6
7 BONUS AND INCENTIVES................................................................... 6
8 INSURANCE COVER........................................................................ 9
9 LEAVE.................................................................................. 10
10 TERMINATION............................................................................ 11
11 ELIGIBLE TRANSACTIONS.................................................................. 12
12 SHARE OPTIONS.......................................................................... 13
13 BENEFITS PAYABLE FOR AN ELIGIBLE TERMINATION........................................... 14
14 NOTICES................................................................................ 14
15 THE RIGHT OF THE COMPANY TO ASSIGN THIS AGREEMENT...................................... 15
16 DISCIPLINARY RULES AND GRIEVANCE PROCEDURE............................................. 15
17 DISPUTES............................................................................... 15
18 GENERAL................................................................................ 15
ANNEXURES:
Annexure A: Executive's Duties and Responsibilities
Annexure B: Executive's Account Particulars
Annexure C: Disciplinary Rules
Annexure D: Grievance Procedure
2
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
IAN LOUIS MURRAY
(Identity Number 6608185124009)
("the Executive")
1 RECORDAL
1.1 The parties record that -
1.1.1 the Executive commenced employment with the Company
on the Engagement date and has been continuously
employed by the Company since that date;
1.1.2 the Executive is currently employed by the Company in
terms of a contract of employment dated 26 March 2002
("the Previous Agreement");
1.1.3 the parties hereby enter into this Agreement to
replace the Previous Agreement; and
1.1.4 the Executive has been appointed as an alternative
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;
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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 means 26 March 2002;
Date"
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 and from which he
has had continuous service with the Group,
namely 1 October 1997;
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 means the committee of directors of the
Committee" 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 means the remuneration package as set out
Package" in CLAUSE 5.1; and
2.12 "Share Option means the Durban Roodepoort Deep (1996)
Scheme" Share Option Scheme or any other scheme of
the same or similar kind in which the
Executive is, or may be, an eligible
participant.
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3 TERM OF EMPLOYMENT
3.1 This Agreement shall be deemed to have commenced on the
Commencement Date and, subject to CLAUSE 10, shall continue in
force for a further period of two years, which period shall be
deemed to have commenced on 1 December 2003 and will terminate
on 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 is appointed as Chief Executive Officer and
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;
4.1.3 carry out his duties in a proper, loyal and efficient
manner and use his best endeavors 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 9h00 until 17h00, Mondays to Fridays. However, as
senior member
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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 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$200 000.00 (two hundred
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 24 day of each month.
5.3 The Executive will be responsible for all personal tax
obligations.
5.4 The Remuneration Package referred to in CLAUSE 5.1 shall
include contributions made to a retirement fund of the
Executor'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.
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
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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. The third bonus cycle shall
commence on 1 January 2005 and terminate on 30 June
2005. The fourth bonus cycle shall commence on 1 July
2005 and terminate on 30 November 2005. Should the
Executive _____________ indicators agreed to in
respect of a specific bonus cycle he shall be
entitled to a bonus of 50 (fifty) 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.
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,
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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.
7.2.6 Any bonus payable in terms of the Previous Agreement
shall continue to accrue and be payable in terms of
the Previous Agreement.
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 168 000 (one hundred and sixty-eight
thousand) ordinary shares in Durban Roodepoort Deep, Limited
in the tranches set out below. The 168 000 (one hundred and
sixty-eight) thousand 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 as are necessary, at its own
cost, 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
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another 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, Ltd 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
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 the premiums payable in respect
of 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.
9
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
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. ____________________ 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 and thereafter
commencing on 1 July of each following year.
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 Engagement 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 1 July 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.
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10 TERMINATION
10.1 This agreement will terminate in the circumstances set out
below.
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.
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
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.
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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
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 anytime 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 _______ 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
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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;
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 honored and the Company
shall procure, as far as is necessary, that they are so
honored.
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 eme will not lapse but shall become exercisable
by him within the time periods set out in CLAUSE 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
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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 of
employment 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
-------
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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.
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.
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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.
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 the Board.
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 Board 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 to 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.
18.2 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
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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.
SIGNED at on 2004
For: DRD (ISLE OF MAN) LIMITED
/s/ P.F. Mathews
------------------------------------
Signatory:
Capacity:
Authority:
SIGNED at on 2004
/s/ I.L.Murray
-------------------------------------
IAN LOUIS MURRAY
16
DURBAN ROODEPOORT DEEP, LIMITED
(Reg No 1895/000926/06)
[LOGO]
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 property 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;
- - Assist in maintaining relations with the company's shareowners and more
important stakeholders;
- - Ensuring that all directors play a fun 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.
ROLE AND FUNCTION OF THE CHIEF EXECUTIVE OFFICER
In accordance with King II, the Chief Executive Officers 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 judgment 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;
2
- - 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
- - Foster a corporate culture that promotes ethical practices, encourages
individual integrity and fulfils social responsibility objectives and
imperatives.
3
ANNEXURE B
BANKING DETAILS - I L MURRAY
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
familiarizes 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 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.
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 ENGAGED, OR ANY BREACH OF CONFIDENCE RELATING TO
THE COMPANY OR ITS CLIENT'S OR CUSTOMER'S AFFAIRS.
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.)
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
familiarizes 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 formal 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.
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.
7.3 GROSS MISCONDUCT (DISMISSAL): NEGLIGENCE RESULTING IN
SERIOUS LOSS, DAMAGE OR INJURY; ASSAULT OR ATTEMPTED
ASSAULT; THEFT;
2
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.)
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.