Exhibit 4.17
NOTARIAL CERTIFICATE
I, NEIL DAVID RISSIK, of Sandton, in the Gauteng Province, Republic of South
Africa, a duly sworn and admitted Notary Public, certify that the attached copy
of a SALE OF BUSINESS AGREEMENT entered into on 24 December 2001 between
AngloGold Limited, Clidet No. 383 (Proprietary) Limited, Harmony Gold Mining
Company Limited and African Rainbow Minerals (Proprietary) Limited, is a true
copy of the original thereof.
SANDTON, 7 January 2002
/s/ N D Rissik
- -----------------------
N D RISSIK
NOTARY PUBLIC
BOWMAN GILFILLAN INC
SANDTON
SALE OF BUSINESS AGREEMENT
between
ANGLOGOLD LIMITED
and
CLIDET NO. 383 (PROPRIETARY) LIMITED
and
HARMONY GOLD MINING COMPANY LIMITED
and
AFRICAN RAINBOW MINERALS (PROPRIETARY) LIMITED
[CLIFFE DEKKER FULLER MOORE LOGO]
CLIFFE DEKKER FULLER MOORE INC
ATTORNEYS NOTARIES CONVEYANCERS TRADEMARK ATTORNEYS
ESTABLISHED 1853
TABLE OF CONTENTS
1 INTERPRETATION 1
2 PREAMBLE 9
3 CONDITIONS PRECEDENT 9
4 SALE 12
5 CONSIDERATION AND PAYMENT 12
6 VALUE-ADDED TAX 13
7 INTERIM PERIOD 14
8 STOCKTAKING 19
9 LIABILITIES 20
10 ENVIRONMENTAL MANAGEMENT FUND 21
11 CONTRACTS 23
12 LICENSES 24
13 ERNEST OPPENHEIMER HOSPITAL 25
14 EMPLOYEES 25
15 PROVISION OF SERVICES AND ACCESS 28
16 IMPLEMENTATION 29
17 APPLICATIONS FOR MINING AUTHORISATIONS 29
18 WARRANTIES BY ANGLOGOLD 30
19 PUBLICATION IN TERMS OF INSOLVENCY ACT 31
20 SURETYSHIP 31
21 BREACH 32
22 DISPUTES 32
23 CO-OPERATION 33
24 NOTICES AND DOMICILIUM 34
25 GENERAL 35
26 BENEFIT OF THE AGREEMENT 36
27 APPLICABLE LAW AND JURISDICTION 36
28 COSTS 37
SALE OF BUSINESS AGREEMENT
between
ANGLOGOLD LIMITED
and
CLIDET NO. 383 (PROPRIETARY) LIMITED
and
HARMONY GOLD MINING COMPANY LIMITED
and
AFRICAN RAINBOW MINERALS (PROPRIETARY) LIMITED
WHEREBY THE PARTIES AGREE AS FOLLOWS
1 INTERPRETATION
1.1 In this agreement-
1.1.1 clause headings are for convenience only and are not to be used in its
interpretation;
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1.1.2 an expression which denotes -
1.1.2.1 any gender includes the other genders;
1.1.2.2 a natural person includes a juristic person and vice versa;
1.1.2.3 the singular includes the plural and vice versa.
1.2 In this agreement, unless the context indicates a contrary intention, the
following words and expressions bear the meanings assigned to them and
cognate expressions bear corresponding meanings -
1.2.1 "ACQUISITION" means the acquisition by Freegold of the businesses in
terms of this agreement;
1.2.2 "ANGLOGOLD" means ANGLOGOLD LIMITED, Registration No. 1944/017354/06,
a public company incorporated in the Republic of South Africa;
1.2.3 "ARM" means AFRICAN RAINBOW MINERALS (PROPRIETARY) LIMITED,
Registration No. 1997/020158/07, a private company incorporated in the
Republic of South Africa;
1.2.4 "ASSOCIATED COMPANIES" means AngloGold Health Services (Proprietary)
Limited and, where applicable, Metisella Investments Limited;
1.2.5 "BUSINESSES" means the gold mining businesses known as the Bambanani,
Joel, Matjhabeng and Tshepong mines and the Ernest Oppenheimer
Hospital business, together with all their associated assets and
infrastructure, as carried on by AngloGold and its associated
companies as at the signature date, as going concerns, and includes
the business assets, the specified liabilities and any other
liabilities specifically provided for herein;
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1.2.6 "BUSINESS ASSETS" means all assets used in or in connection with the
businesses and all assets necessary for the continuation of the
businesses' mining, ore treatment, gold extraction, hospital and other
operations, excluding the excluded assets but including, without
limitation, the following assets --
1.2.6.1 the immovable property;
1.2.6.2 all slimes dams, waste rock dumps and other surface sources situated
on the immovable property and to which AngloGold or any of its
associated companies has title;
1.2.6.3 all surface right uses used for mining purposes (and, without
limitation, all purposes incidental thereto) in or in connection with
the businesses and to which AngloGold or any of its associated
companies has title;
1.2.6.4 all equipment and other assets used in the Ernest Oppenheimer
Hospital;
1.2.6.5 the mineral rights and mining leases;
1.2.6.6 all of the shares in and claims on loan account against Jeannette
Gold Mines Limited ("JEANNETTE") held by AngloGold or its associated
companies on the signature date;
1.2.6.7 all underground and surface infrastructure and equipment used
primarily in or in connection with the businesses, save for the
consumable and capital stores and group spares referred to in clause
1.2.6.18, Freegold acknowledging, for the purposes of the Mine Health
and Safety Act, 1996 (Act No. 29 of 1996), that the equipment is
reasonably practicably safe and that employees of Freegold are aware
of the proper use and mining operation of such equipment;
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1.2.6.8 the businesses' metallurgical plants and tailings disposal facilities
including all such plants and facilities previously belonging to FSC
and Joel and to which AngloGold or any of its associated companies
has title;
1.2.6.9 all assets which are owned by AngloGold or its associated companies
and which are used primarily in or in connection with the businesses;
1.2.6.10 all assets which form part of AngloGold's head office which are
integral to the day to day operations of the businesses, save for any
assets which are integral to the day to day operations of any of
AngloGold's other businesses;
1.2.6.11 the vehicles owned by AngloGold and its associated companies which
are used primarily in connection with the businesses;
1.2.6.12 all time and attendance hardware and software, it being agreed that,
if neither Freegold, ARM nor Harmony has at any time any further use
for such hardware and software, AngloGold will be entitled to
purchase it for R1.00 (One Rand);
1.2.6.13 all computer hardware and software and other technology and all other
intellectual property of every description (including but not limited
to all geological cores) currently being used by AngloGold primarily
in relation to the operations of the businesses;
1.2.6.14 all information relating primarily to the businesses in whatever
format and whether recorded in writing, on any electronic medium or
otherwise, including details of the deep mine research project
insofar as it relates exclusively to the businesses, it being agreed
that AngloGold shall have reasonable access to the environmental
research project and related data compiled by it in respect of the
businesses;
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1.2.6.15 all dressing stations, clinics,hospitals and other medical
facilities situated on the immovable property, and all equipment
used in such stations, clinics, hospitals and facilities;
1.2.6.16 all deposits in respect of the provision of services to the
businesses and payments made in advance by AngloGold in respect
of the businesses, it being agreed that AngloGold shall be
entitled to retain all such deposits and payments made in advance
in respect of services not taken over by Freegold.
1.2.6.17 all capital items forming part of any capital development program
in respect of the businesses which have been delivered to the
relevant site; and
1.2.6.18 all stock in trade of AngloGold (including gold work in progress
and all of the businesses stocks of refrigerant (as at the
signature date) for the cooling plant) relating to the businesses
on the effective date, whether recorded as assets or not, but
excluding --
1.2.6.18.1 all consumable stores;
1.2.6.18.2 all group spares; and
1.2.6.18.3 those capital stores which have not been specifically allocated
to the businesses or which were not purchased exclusively for the
businesses.
1.2.7 "BUSINESS DAY" means a day other than a Saturday, a Sunday or a day
which is a statutory public holiday in the Republic of South Africa;
1.2.8 "CALL RATE" means the basic rate of interest (percent, per annum,
compounded monthly in arrear and calculated on a 365 day year
irrespective of whether or not the year is a leap year) from time to
time quoted by ABSA Bank Limited as being its call deposit rate,
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as certified by any manager of that bank, whose appointment and
designation need not be proved;
1.2.9 "CONDITIONS PRECEDENT" means the conditions precedent set out in
clause 3;
1.2.10 "CONTRACTS" means the contracts to be listed in the schedule referred
to in clause 3.1.6;
1.2.11 "EFFECTIVE DATE" means 1 January 2002;
1.2.12 "EMPLOYEES" means, save as otherwise agreed, --
1.2.12.1 all employees of AngloGold and its associated companies who are
employed in respect of the businesses and are listed on the payrolls
of the businesses, excluding the employees listed in annexe "A" to the
initial sale of business agreement; and
1.2.12.2 all of AngloGold's employees employed in its "business services"
division and who render services primarily in connection with the
businesses;
1.2.13 "EXCLUDED ASSETS" means those assets listed in annexe "B" to the
initial sale of business agreement;
1.2.14 "FSC" means Free State Consolidated Gold Mines (Operations) Limited,
Registration No. 1937/009266/06, a public company incorporated in the
Republic of South Africa;
1.2.15 "FREEGOLD" means CLIDET NO. 383 (PROPRIETARY) LIMITED, Registration
No. 2001/029602/07, a private company incorporated in the Republic of
South Africa, the name of which will be changed to Freegold
(Proprietary) Limited or such other name as may be acceptable to the
parties an the Registrar of Companies;
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1.2.16 "HARMONY" means HARMONY GOLD MINING COMPANY LIMITED, Registration No.
1950/038232/06, a public company incorporated in the Republic of South
Africa;
1.2.17 "IMMOVABLE PROPERTY" means the immovable property more fully described
in a separate sale of property agreement to be signed simultaneously
with this agreement;
1.2.18 "IMPLEMENTATION DATE" means the 10th (Tenth) business day after the
date of fulfilment of the last of the conditions precedent;
1.2.19 "INITIAL SALE OF BUSINESS AGREEMENT" means the notarial sale of
business agreement entered into between AngloGold and Biprops 76
(Proprietary) Limited on 29 November 2001;
1.2.20 "JOEL" means H J Joel Gold Mining Company Limited, Registration No.
1985/001995/06, a public company incorporated in the Republic of South
Africa;
1.2.21 "MINERAL RIGHTS" means all of AngloGold and its associated companies'
mineral rights (including participation rights and options) in the
Welkom Goldfield as more fully described in annexes "D1" (description)
and/or "D2" (plan) to the initial sale of business agreement and as
may be identified by Freegold. ARM or Harmony, using their best
endeavours, prior to the implementation date (or such later date as
may be agreed by AngloGold, which agreement shall not be unreasonably
withheld), it being recorded that it is the intention of the parties
that AngloGold and its associated companies will, as at the
implementation date, no longer hold any mineral rights whatsoever in
the Welkom Goldfield;
1.2.22 "MINING LEASES" means the mining leases more fully described in annexe
"E1" (description) and/or "E2" (plan and co-ordinates) to the initial
sale of business agreement;
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1.2.23 "PARTIES" means the parties to this agreement;
1.2.24 "PRIME RATE" means the rate (per cent, per annum) from time to
time charged by ABSA Bank Limited for similar amounts on
unsecured overdraft to its prime customers in good standing in
the private sector, as certified by any manager of that bank
whose appointment it will not be necessary to prove, calculated
on a daily basis and compounded monthly in arrear;
1.2.25 "SALE OF PROPERTY AGREEMENT" means the sale of property
agreement referred to in clause 1.2.17;
1.2.26 "SIGNATURE DATE" means the date of signature of the memorandum
of understanding entered into between AngloGold, ARM and Harmony,
being 21 November 2001;
1.2.27 "SPECIFIED LIABILITIES" means --
1.2.27.1 AngloGold's rehabilitation liability in respect of the
businesses as at the effective date; and
1.2.27.2 AngloGold's liability in respect of the claims listed in
annexe "F" to the initial sale of business agreement and any
other similar environmental claims, the cause of action of
which arose prior to the effective date ("THE ADDITIONAL
CLAIMS").
1.3 Any substantive provision conferring rights or imposing
obligations on any party in the interpretation clause shall be
given effect to as if it were a substantive provision in the body
of this agreement.
1.4 Words and expressions defined in any clause shall, unless the
application of any such word or expression is specifically limited
to that clause, bear the meaning assigned to such word or
expression throughout this agreement.
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1.5 No provision herein shall be construed against or interpreted to the
disadvantage of any party by reason of such party having or being deemed to
have structured, drafted or introduced such provision.
1.6 The eiusdem generis rule shall not apply and whenever the term "including"
is used followed by specific examples, such examples shall not be construed
so as to limit the meaning of that term.
1.7 Unless specifically otherwise provided, any number of days prescribed shall
be determined by excluding the first and including the last day or, where
the last day falls on a Saturday, a Sunday or public holiday, the next
succeeding business day.
1.8 A reference to any statutory enactment shall be construed as a reference to
that enactment as at the signature date and as amended or re-enacted from
time to time.
1.9 In this agreement the word "AGREEMENT" refers to this agreement and the
words "CLAUSE" or "CLAUSES" refer to clauses of this agreement.
2. PREAMBLE
2.1 AngloGold owns and carries on the businesses.
2.2 Freegold wishes to purchase the businesses as going concerns and AngloGold
is prepared to sell the businesses to Freegold on the terms and conditions
herein contained.
3. CONDITIONS PRECEDENT
3.1 Save for the provisions of this clause 3 and clauses 7, 8, 20 to 25, 27 and
28 which will become effective immediately, this agreement is subject to
the fulfilment of the following conditions precedent --
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3.1.1 the conclusion of a joint venture agreement between ARM and Harmony in
respect of their shareholding in Freegold;
3.1.2 the section 39 relief referred to in clause 3.1.1 of the initial sale
of business agreement is not granted;
3.1.3 the consent of the Minister of Minerals and Energy to the cession of
the mining leases to Freegold on terms and conditions reasonably
acceptable to Freegold;
3.1.4 the granting of a temporary mining authorisation in terms of section
10 of the Minerals Act, 1991 (Act No. 50 of 1991) ("THE MINERALS ACT")
to Freegold in respect of the businesses, it being recorded for the
avoidance of doubt that Freegold shall be obliged to, and shall
forthwith and at its own cost, apply for such mining authorisation;
3.1.5 the granting of all necessary authorisations to Freegold in terms of
the National Nuclear Regulator Act, 1999 (Act No. 47 of 1999);
3.1.6 AngloGold and Freegold reaching agreement on the contracts to be ceded
and assigned to Freegold and listing such contracts in a schedule
initialled by both parties;
3.1.7 the unconditional approval of the acquisition in terms of the
Competition Act, 1998 (Act No. 89 of 1998), or the conditional
approval on terms and conditions acceptable to the parties; and
3.1.8 the obtaining of Harmony shareholders' approval, if necessary.
3.2 Each of the parties will use its best endeavours (and the parties will
co-operate in good faith) to procure the fulfilment of such of the
conditions precedent as are within its control as soon as reasonably
possible after the signature date.
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3.3 The conditions precedent will only be capable of being waived by agreement
between the parties.
3.4 Unless the conditions precedent referred to in _____
3.4.1 clause 3.1.1 is fulfilled by not later than 21 January 2002;
3.4.2 clause 3.1.2 is fulfilled by not later than 31 January 2002; and
3.4.3 clauses 3.1.3 to 3.1.8 are fulfilled by not later than 30 April 2002,
or such later date as may be agreed in writing between the parties then
_____
(a) the acquisition will lapse and no longer be of any force or effect;
(b) the parties will negotiate in good faith so as to ensure that they
are placed in the same position as they were prior to the entering
into of this agreement, having regard to the negotiations leading up
to the entering into this agreement and all other relevant factors;
and
(c) Freegold, ARM and Harmony will have a continuing obligation to
preserve the confidentiality of AngloGold's proprietary information
relating to the businesses.
3.5 Notwithstanding anything to the contrary herein contained, the provisions
of this clause 3 and clauses 20 to 25, 27 and 28 will survive the failure
of this agreement to become unconditional.
3.6 It is agreed that the terms and conditions referred to in clause 15 are
subject to the fulfilment of the condition precedent that this agreement is
entered into and becomes unconditional in accordance with its terms.
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4 SALE
4.1 AngloGold hereby sells to Freegold which hereby purchases the businesses
as going concerns.
4.2 Notwithstanding the signature and implementation dates and subject to the
fulfilment of the conditions precedent, risk in and to and benefit of the
businesses shall pass to Freegold on the effective date.
4.3 Notwithstanding the signature or implementation dates, the sale will be
deemed to have taken place on the effective date and, subject to the
fulfilment of the conditions precedent and the provisions of clause 4.4
ownership of the businesses will be deemed to have passed to Freegold on
the effective date.
4.4 Ownership of the immovable property, the surface right permits and the
mineral rights shall pass to Freegold on registration of transfer and
registration of cession of those rights, as the case may be, into the name
of Freegold in the appropriate Registry and, in the case of the immovable
property, on the basis set out in the sale of property agreement.
5 CONSIDERATION AND PAYMENT
5.1 The consideration payable for the businesses by Freegold to AngloGold is an
amount which will ensure that AngloGold receives an aggregate consideration
of R2,200,000,000.00 (Two thousand two hundred million Rands) after tax
payable in respect of the disposal of the businesses; plus interest on the
amount of R1,800,000,000.00 (One thousand eight hundred million Rands) at
the call rate from the effective date to the day immediately preceding the
implementation date ("THE CONSIDERATION").
5.2 The consideration will be paid by Freegold as follows --
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5.2.1 an amount of R1,800,000,000.00 (One thousand eight hundred million
Rands) plus the interest referred to in clause 5.1 on the
implementation date;
5.2.2 R400,000,000.00 (Four hundred million Rands) on 1 January 2005; and
5.2.3 the balance of the consideration 5 (Five) business days before
AngloGold is obliged to pay recoupment tax, capital gains tax and
any other income taxes ("the taxes") on the disposal of the
businesses, it being agreed that AngloGold will notify Freegold in
writing as soon as it becomes aware of the date on which it is
obliged to pay the taxes.
5.3 It is agreed that Freegold will be entitled to allocate the
consideration to the business assets in its discretion, provided that
AngloGold is guaranteed to receive an amount equal to the
consideration and provided further that AngloGold has approved such
allocation, which approval shall not be unreasonably withheld.
5.4 Should any portion of the consideration not be paid on the due date
of payment thereof, then such overdue amount will bear interest at the
prime rate, from the due date of payment thereof to the date of actual
payment, both dates inclusive.
5.5 All payments to be made in terms of this agreement will be made by
electronic transfer of immediately available and freely transferable
funds to such account as the payee may reasonably designate, free of
any deductions or set-off whatsoever, in the currency of the Republic
of South Africa.
6 VALUE-ADDED TAX
6.1 The parties have agreed that -
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6.1.1 the sale in terms hereof constitutes the sale of separately identifiable
enterprises forming part of the enterprises of AngloGold and its
associated companies;
6.1.2 such enterprises are sold as going concerns;
6.1.3 at the signature, effective and implementation dates, such enterprises
will be income earning activities and will be transferred as such;
6.1.4 all the assets of such enterprises necessary for its continued operation
are being sold in terms hereof;
6.1.5 the consideration for the businesses is inclusive of value-added tax at
the rate of zero percent.
6.2 AngloGold warrants that it and its associated companies are registered as
vendors in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991)
and that Freegold will be so registered, retrospectively to the effective
date, prior to the implementation date.
6.3 AngloGold shall, if so requested by Freegold, furnish to Freegold the
appropriate VAT invoice (on a zero rated basis) by not later than the
implementation date. Should for any reason value-added tax be payable by
AngloGold, then Freegold shall be obliged, on written demand from
AngloGold, to pay in addition to the purchase consideration the amount of
such value-added tax to AngloGold against delivery by AngloGold to
Freegold of an appropriate VAT invoice.
7 INTERIM PERIOD
7.1 For the purposes of this clause --
7.1.1 "THE FIRST INTERIM PERIOD" shall mean the period commencing on 21
November 2001 and terminating on the effective date; and
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7.1.2 "THE SECOND INTERIM PERIOD" shall mean the period commencing on the
effective date and terminating on the implementation date or, in the
event that this agreement does not become unconditional, on the date on
which this agreement lapses.
7.2 It is agreed that AngloGold will manage the businesses in accordance with
the provisions of clause 7.12 during the first interim period, subject to
Freegold having the right to reasonable access to designated personnel of
the businesses for planning purposes; it being agreed that all profits
and losses during the first interim period will be for AngloGold's
account.
7.3 AngloGold will be entitled to continue with its voluntary separation
programme in respect of the employees up to 31 December 2001, provided
that it shall be obliged to pay all amounts due in terms of such
programme and it shall not be entitled to offer voluntary separation to
any geologists or mine captains without the prior written consent of
Freegold.
7.4 AngloGold shall be entitled, during the first and second interim periods,
to transfer certain of the employees to its other operations with the
prior written consent of Freegold.
7.5 It is agreed that Freegold will manage the businesses in accordance with
the provisions of clauses 7.9 and 7.12 during the second interim period,
it being agreed that all profits and losses during the second interim
period will be for the account of Freegold in the event that this
agreement becomes unconditional, or for the account of AngloGold in the
event that this agreement does not become unconditional.
7.6 During the second interim period, all of AngloGold's head
office/off-region costs shall be excluded for the purposes of calculating
the profits and losses of the businesses unless Freegold requires
AngloGold's head office/regional services, in which event such
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services will be supplied at cost. For the avoidance of doubt, it is agreed
that all of such head office/off-region costs shall, unless required by
Freegold, be for AngloGold's account.
7.7 Freegold shall be obliged to refund AngloGold for all costs justifiably
incurred by it on behalf of Freegold during the second interim period in
the event that this agreement becomes unconditional.
7.8 AngloGold shall be obliged to refund Freegold for all costs justifiably
incurred by them on behalf of AngloGold during the second interim period
in the event that this agreement does not become unconditional.
7.9 During the second interim period, Freegold shall act in accordance with
AngloGold's mining authorisation applicable to the businesses and any
approved Environmental Management Program in respect of the businesses as a
contractor, and Freegold, ARM and Harmony hereby jointly and severally
indemnify and hold AngloGold harmless, subject to the remaining provisions
of this clause 7, against any claims, damages, loss and/or expense arising
from and/or connected to any act or omission on the part of Freegold, ARM
or Harmony, arising from and/or connected with its management of the
businesses in terms of this clause 7.
7.10 AngloGold shall continue to insure the businesses and the business assets
at its cost until 28 February 2002. Freegold shall reimburse AngloGold for
the cost of such insurance for the period from the effective date to the
expiry of the second interim period provided this agreement becomes
unconditional. ARM and Harmony shall procure that Freegold insures the
businesses and the business assets at its cost from 1 March 2002 until the
expiry of the second interim period, provided that AngloGold shall assist
and co-operate with ARM and Harmony in obtaining the most cost effective
insurance for such
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period. The parties shall procure the necessary endorsements on the
insurance policies recording their respective interests.
7.11 ARM and Harmony hereby undertake to nominate suitably qualified
persons to be appointed as managers of the businesses in terms of the
Mine Health and Safety Act, 1996 (Act No. 29 of 1996) during the
second interim period.
7.12 Save as otherwise agreed between the parties or provided in this
memorandum, the party/ies managing the businesses ("MANAGING PARTY")
hereby undertakes --
7.12.1 to inform the other of them of all material decisions regarding the
management of the businesses;
7.12.2 to continue to carry on the businesses in the ordinary and regular
course and in accordance with current plans and capital programs (to
the extent possible) and the trading style presently used;
7.12.3 that there will be no material adverse change in the financial
position of the businesses other than as a result of circumstances,
including but not limited to fluctuations in the gold price, beyond
the managing party's control;
7.12.4 not, without the prior written consent of the other party, to enter
into any transaction, incur any liability, acquire any asset or
dispose of any asset of or relating to the businesses save in the
ordinary and regular course of conduct of the businesses;
7.12.5 not to do anything or omit to do anything which could --
7.12.5.1 materially prejudice the goodwill of the businesses;
7.12.5.2 reduce the scope of the businesses;
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7.12.5.3 result in any third party varying the terms on which it
transacts business with AngloGold in respect of the businesses;
7.12.6 not to vary the terms and conditions of employment or working
conditions of any of the employees nor agree to any compensation
or benefit for the termination of the employment of any such
employees, save as otherwise provided herein or in respect of
normal increases and bonuses and any retrenchment programme
implemented by Freegold in accordance with applicable
legislation, it being agreed that all retrenchments shall be
subject to AngloGold's prior written consent, which consent shall
not be unreasonably withheld;
7.12.7 not, without the prior written consent of the other party/s, to
terminate or transfer the employment of any of the senior
employees or any other employees who are not on the businesses'
payroll but nevertheless dedicate all or substantially all of
their time to the businesses; and
7.12.8 to maintain normal and adequate levels of gold work in progress
and dedicated capital equipment relating to the businesses.
7.13 In the event that any dispute shall arise between the parties in
respect of the management of the businesses (or the calculation of
the profits and losses referred to in clauses 7.2 and 7.5), during
the first or the second interim period, such dispute will be
referred for joint resolution to an executive officer of AngloGold
and an executive nominated by Freegold, associated on a daily basis
with the businesses. In the event that the said executives are
unable to resolve the issue within 3 (Three) business days after
the referral, the provisions of clause 7.14 will apply.
7.14 Any issue which is not resolved in terms of clause 7.13 will be
referred to the chief operating officer of AngloGold and a senior
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executive nominated by Freegold for joint resolution. In the event that the
said persons are unable jointly to resolve the issue within 3 (Three)
business days after the referral, the decision of the person representing
the party who is managing the businesses at that point in time shall,
subject to the provisions of clause 7.12, be final and binding on the
parties in respect of the relevant issue.
8 STOCKTAKING
8.1 AngloGold shall as near as possible to the effective date cause a
stocktaking to be commenced, and to be continued until the completion
thereof, of all the consumable stores of the businesses ("THE STOCKS") on
the same basis as applied by it in the past but in any event in accordance
with the following provisions -
8.1.1 each of the parties will be entitled to be represented at the
stocktaking;
8.1.2 after the stocktaking has been completed a schedule reflecting the
description, quantity and location of the stocks will be prepared and
initialled by the parties;
8.1.3 the stocks as reflected in the schedule referred to in clause 8.1.2
will be adjusted for any stock movements between the date of
stocktaking and the effective date;
8.1.4 any stocks which are -
8.1.4.1 materially damaged; or
8.1.4.2 unusable as being incomplete, redundant, slow moving or obsolete,
will be valued at Nil unless the parties agree in writing on the
value thereof.
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8.2 Should there be any dispute as to whether any item of stock falls within
any category set out in clause 8.1.4 the dispute will be determined by
AngloGold's auditors --
8.2.1 whose decision will be made within 5 (Five) business days of their
appointment;
8.2.2 who will act as experts and not as arbitrators;
8.2.3 whose decision will, in the absence of manifest error, be final and
binding on the parties; and
8.2.4 who will determine the liability for their charges which will be paid
accordingly.
8.3 Upon completion of the schedule referred to in clause 8.1.2, the parties
will agree the value of the stocks on the basis of the lower of cost or net
realisable value, and failing agreement the stocks referred to will be
valued at the lower of cost or net realisable value by AngloGold's
auditors, subject mutatis mutandis to the provisions of clause 8.2.
8.4 Freegold shall acquire the stocks with effect from the effective date and
shall pay the lower of the cost or net realisable value of the stocks in 12
(Twelve) equal monthly instalments, the first instalment being payable on
31 January 2002.
9 LIABILITIES
9.1 AngloGold hereby delegates to Freegold which assumes the specified
liabilities with effect from the effective date. Freegold hereby
indemnifies AngloGold and holds it harmless against all or any losses,
liabilities, damages, expenses, costs and/or claims which AngloGold may
suffer as a result of Freegold failing to comply fully or timeously with
its obligations under the specified liabilities.
Page 21
9.2 Save for the specified liabilities and as otherwise provided herein, all
liabilities of businesses arising prior to the effective date are retained
by AngloGold for its own account. AngloGold hereby indemnifies Freegold and
holds it harmless against all or any losses, liabilities, damages,
expenses, costs and/or claims which Freegold may suffer as a result of
AngloGold failing to comply fully or timeously with its obligations under
any such liabilities.
9.3 It is recorded for the avoidance of doubt that all liabilities of the
businesses, including any environmental claims, the cause of action of
which arises after the effective date, shall be for Freegold's account.
9.4 Freegold's liability in respect of the claims referred to in clause
1.2.27.2 shall be subject to an aggregate maximum liability of
R10,000,000.00 (Ten million Rands). AngloGold shall manage any opposition
to such claims and Freegold shall be entitled to be fully involved in any
such opposition. Neither AngloGold nor Freegold shall be entitled to settle
any claims without the other's prior written consent, which consent shall
not be unreasonably withheld. AngloGold hereby warrants that it is not
aware of the existence of any additional claims as at the signature date.
10 ENVIRONMENTAL MANAGEMENT FUND
10.1 AngloGold will, on the implementation date, pay into a trust fund
specifically established for this purpose ("THE FUND") an amount equal to
AngloGold's funded rehabilitation liability in respect of the businesses as
at the effective date (being an amount equal to the current funded amount
of approximately R190,000,000.00 (One hundred and ninety million Rands)
plus interest accrued thereon, and an additional amount of R250,000,000.00
(Two hundred and fifty million Rands)).
Page 22
10.2 The fund will be established by AngloGold prior to the implementation
date subject to the following --
10.2.1 the fund shall be a separate fund for the businesses and shall not be
used for any other purpose without AngloGold's prior written approval,
which approval shall not be unreasonably withheld;
10.2.2 the principal terms and conditions of the trust deed of the fund will
be as set out in annexe "G" of the initial sale of business agreement;
10.2.3 the trust deed of the fund shall be approved by the South African
Revenue Service prior to the implementation date;
10.2.4 the trustees of the fund shall initially be AngloGold nominees but
shall be replaced by nominees of Freegold on the implementation date
or as soon as possible thereafter;
10.2.5 the trust deed of the fund will not be amended without AngloGold's
prior written approval, which approval shall not be unreasonably
withheld;
10.2.6 Freegold shall deposit amounts into the fund as agreed between
Freegold, the Department of Minerals and Energy and the South African
Revenue Service;
10.2.7 Freegold will provide AngloGold, on an annual basis, with an estimate
of the rehabilitation liability, details of all amounts paid into or
by the fund and the accounts of the fund; and
10.2.8 Freegold shall, on an on-going basis, contribute to the fund such
amounts as shall be required in order to ensure that the total of all
contributions to the fund at any point in time shall be not less than
the total amount which it is obliged to hold in the fund at that point
in time, as agreed with the Department of Minerals and Energy and the
South African Revenue Service, from time to time ("THE
Page 23
TOTAL OBLIGATION''), in respect of the businesses relating to
rehabilitation and/or any other environmental matter.
10.3 If the amount of the total contributions to the fund shall be less
at any time than the total obligation, Freegold shall, save only
for debt repayments and interest payments required in respect of
the financing of the acquisition, not distribute any cash other
than by way of contribution to the fund until any such shortfall
shall have been extinguished.
10.4 ARM and Harmony hereby -
10.4.1 jointly and severally indemnify and hold AngloGold harmless in
respect of any claim, loss, damage or expense which AngloGold may
suffer and/or incur in connection with and/or arising from the
specified liabilities; and
10.4.2 undertake that Freegold shall, on an on-going basis, contribute to
the fund such amounts as shall be required in order to ensure that
the total of all contributions to the fund at any point in time
shall be not less than the total obligation, in respect of the
businesses relating to rehabilitation and/or any other
environmental matter.
10.5 ARM and Harmony hereby undertake to ensure that, if the amount of
the total contributions to the fund shall be less at any time than
the total obligation, Freegold shall, save only for debt repayments
and interest payments required in respect of the financing of the
acquisition, not distribute any cash other than by way of
contribution to the fund until any such shortfall shall have been
extinguished.
11. CONTRACTS
11.1 AngloGold hereby cedes and assigns all of its right, title and
interest in and to the contracts to Freegold, which will take over
and complete all the contracts for its own account.
Page 24
11.2 Freegold will ensure that all of the contracts will be fully complied with
by Freegold at its cost.
11.3 AngloGold hereby indemnifies and holds Freegold harmless against all claims
which may be made against Freegold under any of the contracts arising out
of any act or omission of AngloGold prior to the implementation date in
respect of such contract. Freegold hereby agrees that the indemnity
contained in this clause 11.3 shall not apply in respect of any act or
omission of AngloGold which is as a direct or indirect result of any act or
omission of Freegold in managing the businesses during the second interim
period.
11.4 AngloGold undertakes to use its best endeavours to procure the consent of
all third parties to the contracts to the cession and assignment of such
contracts to Freegold, if possible, with effect from the implementation
date.
11.5 Should any such other parties fail or refuse to give its consent as
aforesaid where such consent is a requirement for such cession and
assignment, AngloGold will appoint Freegold as its sub-contractor on the
basis that Freegold indemnifies and holds AngloGold harmless against all
and any claims which may be made against AngloGold arising from any act or
omission of Freegold in respect of such sub-contracted work. Any work so
performed by Freegold shall be for the profit or loss of Freegold.
11.6 Should it not be possible for the parties to implement the provisions of
clause 11.5 for any reason, the parties shall forthwith meet and in good
faith agree an alternative solution which will achieve the same or
substantially the same result.
12 LICENCES
AngloGold shall grant or procure the granting of licences to Freegold to
use all the computer and other technology and intellectual property
Page 25
referred to in clause 1.2.6.13, free of any additional charge, save for
licence fees payable to third parties for the period after the effective
date, in perpetuity or for so long as legally possible, it being noted that
Freegold will not be entitled to grant any rights allowing third parties to
use any of the above mentioned-computer software, unless the licensor
consents thereto.
13 ERNEST OPPENHEIMER HOSPITAL
Freegold will use commercially reasonable endeavors to ensure that the
Ernest Oppenheimer Hospital remains in operation and shall be obliged to
offer AngloGold a right of first refusal to acquire the Hospital and all
major equipment should it wish to dispose of the Hospital or such
equipment, which right must be exercised within a period of not more than
30 (Thirty) days after such offer has been communicated to AngloGold in
writing;
14 EMPLOYEES
14.1 The contracts of employment of each of the employees will be transferred
to Freegold in accordance with the provisions of section 197 of the Labour
Relations Act, 1995 (Act No. 66 of 1995)("THE LRA"), it being recorded for
the avoidance of doubt that in terms of section 197 of the LRA the period
of service of each employee with AngloGold shall be recognised by Freegold
and shall be deemed, for the purposes of the agreement of employment
between such employee and Freegold, to be the period of service of such
employee with Freegold.
14.2 Subject to the provisions of clauses 14.5, 14.6 and 14.10, Freegold shall
be liable for all employee related costs in respect of all periods after
the effective date.
14.3 Freegold will not assume employee related liabilities in respect of any
period prior to the effective date save for liabilities in respect of the
Page 26
accumulated leave and bonus pay referred to in clause 14.14 and, subject to
the provisions of clauses 14.9 and 14.10, the post retirement medical
funding liability in respect of the employees.
14.4 Save as otherwise provided herein, all employee related liabilities, the
cause of action of which arises prior to the effective date, are retained
by AngloGold for its own account. AngloGold hereby indemnifies Freegold and
holds it harmless against all or any losses, liabilities, damages,
expenses, costs and/or claims which Freegold may suffer as a result of
AngloGold failing to comply fully or timeously with its obligations under
any such liabilities.
14.5 AngloGold shall remain liable for the medical related liabilities of
persons who became continuation and widowed members' (Cawms) prior to the
effective date.
14.6 In the event that any of the employees is dismissed prior to the effective
date and is thereafter reinstated, Freegold shall be obliged to offer
employment to such employee and AngloGold shall be obliged to pay all
amounts due to such employee for all periods prior to the reinstatement
date.
14.7 Freegold shall be obliged to take delivery of all employee related records,
provided that such records will be made available to AngloGold at all
reasonable times for the purposes of any outstanding labour disputes and
provided further that Freegold will provide AngloGold with reasonable
assistance in regard to such disputes.
14.8 The employees shall remain as members of the Goldmed medical scheme
("GOLDMED") until not later than 2 (Two) months after the implementation
date or such other date as the parties may agree, whereafter the employees
will become members of a medical scheme nominated by Freegold ("THE
NOMINATED MEDICAL SCHEME")
Page 27
it being agreed that Freegold will, subject to the provisions of
clauses 14.9 and 14.10, be responsible for payment of the employers'
portion of the contribution to Goldmed medical scheme in respect of the
employees from the effective date until the employees become members of
the nominated medical scheme as aforesaid.
14.9 Freegold shall reimburse AngloGold for all employer post retirement
medical aid contributions which AngloGold is obliged to pay, in terms
of the applicable employment terms and conditions, in respect of all
employees not employed at the Joel or Matjhabeng mines whose employment
is terminated at any time after the effective date but before they
become members of the nominated medical scheme.
14.10 AngloGold shall be responsible for all employer post retirement medical
aid contributions which it is obliged to pay, in terms of the
applicable employment terms and conditions, in respect of all employees
employed at the Joel or Matjhabeng mines whose employment is terminated
at any time after the effective date but prior to the earlier of the
date on which they become members of the nominated medical scheme and
the expiry of a period of 2 (Two) months after the implementation date.
14.11 Save as set out in clauses 14.5 and 14.10, AngloGold shall have no
liability in regard to the post retirement medical expenses of the
employees.
14.12 FreeGold shall be obliged, within 2 (Two) months of the implementation
date, to secure alternative retirement fund arrangements for all of the
employees who are members of AngloGold's retirement fund/s (as opposed
to industry retirement funds) on the basis that such employees' fully
funded entitlement under the AngloGold retirement fund/s will be
transferred to such alternative fund.
Page 28
14.13 AngloGold and its associated companies will not be entitled, without
Freegold's prior written consent to employ any of the employees for a
period of 6 (Six) months from the implementation date.
14.14 On the implementation date AngloGold shall pay to Freegold an amount
equal to AngloGold's liability in respect of the accumulated leave as
at the effective date, and accumulated bonus pay up to and including
the last measuring cycle immediately prior to the effective date, in
respect of the employees.
14.15 It is agreed that registered dependants of the employees who are
resident in the Lusikisiki area shall, at the election of Freegold, be
entitled to make use of AngloGold's medical centre in the area
provided that Freegold shall be obliged to subsidise the cost of
treatment of such dependants to the same extent that they are
currently subsidised by AngloGold. The provisions of this clause shall
not be construed as constituting a stipulatio alteri in favour of the
said dependants.
15 PROVISION OF SERVICES AND ACCESS
15.1 The parties agree that AngloGold will provide the following services
to Freegold in regard to the businesses --
15.1.1 the existing information technology services upon the terms and
conditions contained in annexe "H" to the initial sale of business
agreement;
15.1.2 the existing payroll, time and attendance records and
administration service (including access to data processing
required for these purposes) upon the terms and conditions
contained in annexe "I" to the initial sale of business agreement;
and
Page 29
15.1.3 the existing financial and commercial services upon the terms and
conditions contained in annexe "J" to the initial sale of business
agreement.
15.2 AngloGold hereby agrees to grant Freegold reasonable access to the
Gyromat survey instrument, which forms part of the excluded assets, at
the same rates as paid by AngloGold's associated companies.
15.3 AngloGold hereby agrees to grant Freegold access to its "group spares
pool" subject to the operating procedures contained in the agreements
currently in existence, between AngloGold on the one hand and Harmony or
ARM on the other, in respect of group spares.
16 IMPLEMENTATION
16.1 Implementation of the sale will take place on the implementation date, on
which date AngloGold will place Freegold in control and possession of the
businesses and the business assets.
16.2 AngloGold hereby undertakes to sign and execute upon request by Freegold
all such documents as may reasonably be required to procure, at the cost
of Freegold, the transfer to Freegold and, to the extent possible, the
registration of transfer into the name of Freegold, of the business
assets.
16.3 Transfer of the immovable property shall be effected by Freegold's
attorneys upon the terms and conditions contained in the sale of property
agreement.
16.4 Cession of the mining leases and mineral rights and transfer of the
surface right permits, shall be effected by Freegold's attorneys as soon
as possible after the implementation date.
17 APPLICATIONS FOR MINING AUTHORISATIONS
17.1 Freegold will, within 8 (Eight) months of the implementation date --
Page 30
17.1.1 apply for the granting of a mining authorisation in terms of section 9
of the Minerals Act; and
17.1.2 submit its Environmental Management Program in respect of the
businesses for approval,
and will expeditiously and diligently pursue the said granting and
approval;
17.2 Should it for any reason become impossible or impractical to give effect to
clause 17.1, the parties will use their best endeavours to reach agreement
on alternative arrangements which will have as near as possible the same
effect.
18 WARRANTIES BY ANGLOGOLD
18.1 AngloGold hereby unconditionally warrants to and in favour of Freegold
that -
18.1.1 save as disclosed in annexe "K" to the initial sale of business
agreement, it is the sole and beneficial owner of the business assets
and has the right and is able to sell and give free and unencumbered
title to the business assets to Freegold;
18.1.2 save as disclosed in annexe "K" to the initial sale of business
agreement, none of the business assets are subject to any reservation
of ownership, lease, lien, hypothec, mortgage, notarial bond, pledge
or other encumbrance whatsoever;
18.1.3 save as disclosed in annexe "K" to the initial sale of business
agreement, no person has any right (whether pursuant to any option,
right of first refusal or otherwise) to purchase or acquire (whether
as security or otherwise) any of the business assets;
18.1.4 it has the legal capacity and has taken all necessary corporate action
required to empower and authorise it to enter into and
Page 31
implement this agreement on the terms and conditions herein set out.
18.2 Save for those warranties and representations expressly given or made in
this agreement, no warranties or representations are given or made, whether
express or implied, and the business assets are being sold on a voetstoots
basis.
19 PUBLICATION IN TERMS OF INSOLVENCY ACT
19.1 The parties agree that notice of the sale of the businesses pursuant to
this agreement will not be published as contemplated in Section 34 of the
Insolvency Act, 1936.
19.2 Freegold will have no duty to resist any proceedings to attach or to take
possession of any of the business assets instituted by any person in
consequence of notice of this transaction not being published. AngloGold
hereby indemnifies Freegold against any loss or damage which Freegold may
suffer as a result of notice of this transaction not being published as
aforesaid.
19.3 AngloGold hereby assumes the risk of attachment of any of the business
assets as a result of such notice not being published and undertakes to
compensate Freegold on demand in the event of any such attachment in an
amount equal to the replacement value of such business asset.
20 SURETYSHIP
Subject to the provisions of clause 10.4, ARM and Harmony shall be jointly
and severally liable for any amounts due by Freegold to AngloGold pursuant
to the provisions of this agreement or the initial sale agreement for a
period of 12 (Twelve) months from the effective date.
Page 32
21 BREACH
21.1 Should any party commit a breach of this agreement, any aggrieved party
will be entitled to terminate this agreement only if such breach
constitutes a material breach. A breach will not be deemed to be a material
breach if -
21.1.1 it is capable of being remedied within a reasonable time and is so
remedied after written notice calling upon the defaulting party to do
so within 10 (Ten) business days of such notice; or
21.1.2 it is incapable of being remedied or is not remedied within the period
set out in 21.1.1 above, if payment in money will compensate for such
breach and such payment is made within 10 (Ten) business days after
written request for such payment.
21.2 Subject to the provisions of 21.1 above, if a party commits a breach of
this agreement and fails to remedy such breach within 10 (Ten) business
days of written notice requiring the breach to be remedied, then the party
giving the notice will be entitled, at its option, either to cancel this
agreement and claim damages or alternatively to claim specific performance
of all the defaulting party's obligations, together with damages, if any,
whether or not such obligations have fallen due for performance.
22 DISPUTES
22.1 Save as otherwise provided herein, in the event of any dispute or
difference arising between the parties hereto relating to or arising out of
this agreement, including the validity, implementation, execution,
interpretation, rectification, termination or cancellation of this
agreement, the parties shall forthwith meet to attempt to settle such
dispute or difference, and failing such settlement within a period of 10
(Ten) business days, the said dispute or difference shall on written demand
by any party to the dispute be submitted to arbitration in
Page 33
Johannesburg in accordance with the rules of the Arbitration
Foundation of Southern Africa ("THE FOUNDATION").
22.2 Should the parties fail to agree an arbitrator within 10 (Ten)
business days after arbitration has been demanded, the arbitrator
shall be nominated at the request of any party to the dispute by the
Foundation.
22.3 The parties irrevocably agree that the submission to arbitration in
terms of this clause is subject to the parties' rights of appeal set
out hereunder.
22.4 Any party to the arbitration may appeal the decision of the
arbitrator within a period of 20 (Twenty) business days after the
arbitrator's ruling has been handed down by giving written notice to
that effect to the other party/ies to the arbitration. The appeal
shall be dealt with in accordance with the rules of the Foundation
by a panel of 3 (Three) arbitrators appointed by the Foundation.
22.5 The decision of the arbitrator shall be final and binding on the
parties to the arbitration after the expiry of the period of 20
(Twenty) business days from the date of the arbitrator's ruling if
no appeal has been lodged by any party. A decision which becomes
final and binding in terms of this clause 22.5 may be made an order
of court at the instance of any party to the arbitration.
22.6 Nothing herein contained shall be deemed to prevent or prohibit any
party from applying to the appropriate court for urgent relief.
22.7 The provisions of this clause will continue to be binding on the
parties notwithstanding any termination or cancellation of the
agreement.
23 CO-OPERATION
The parties undertake at all times to do all such things, perform all
such actions and take all such steps and to procure the doing of all
such
Page 34
steps as may be open to them and necessary for or incidental to the
fulfilment of the conditions precedent and the putting into effect or
maintenance of the terms, conditions and/or import of this agreement.
24 NOTICES AND DOMICILIUM
24.1 The parties hereto select as their respective domicilia citandi et
executandi the following physical addresses, and for the purposes of giving
or sending any notice provided for or required hereunder, the following -
<Table>
NAME PHYSICAL ADDRESS TELEFAX
---- ---------------- -------
AngloGold 11 Diagonal Street (011) 637-6108
Johannesburg
2000
For the attention of the Company Secretary
<Table>
NAME PHYSICAL ADDRESS TELEFAX
---- ---------------- -------
Freegold Block 27 (011) 692-3879
Cnr Main Reef Road & Ward Avenue
Randfontein
For the attention of the Company Secretary
<Table>
NAME PHYSICAL ADDRESS TELEFAX
---- ---------------- -------
Harmony Block 27 (011) 692-3879
Randfontein Office Park
Cnr Main Reef Road & Ward Avenue
Randfontein
For the attention of the Company Secretary
<Table>
NAME PHYSICAL ADDRESS TELEFAX
---- ---------------- -------
ARM ARM House (011) 883-5609
29 Impala Road
Chislehurston
Sandton
or such other address or telefax number as may be substituted by notice
given as herein required. Each of the parties shall be entitled from time
to time by written notice to the other parties, to vary its
Page 35
domicilium to any other address which is not a post office box or post
restante.
24.2 Any notice addressed to a party at its physical address shall be
delivered by hand or sent by telefax.
24.3 Any notice shall be deemed to have been given -
24.3.1 if hand delivered during business hours on a business day, on the
day of delivery;
24.3.2 if sent by telefax, on the date of sending such telefax.
24.4 Notwithstanding the above, any notice actually received by the party to
whom the notice is addressed and will be deemed to have been properly
given and received, notwithstanding that such notice has not been given
in accordance with the provisions of this clause.
25 GENERAL
25.1 This agreement constitutes the whole of the agreement between the
parties hereto relating to the matters dealt with in this agreement
and save to the extent otherwise provided herein no undertaking,
representation, term or condition relating to the subject matter of
this agreement not incorporated in this agreement shall be binding on
any of the parties.
25.2 No variation, addition, deletion, or agreed cancellation will be of any
force or effect unless in writing and signed by or on behalf of the
parties hereto.
25.3 No waiver of any of the terms and conditions of this agreement will be
binding or effectual for any purposes unless in writing and signed by or
on behalf of the party giving the same. Any such waiver will be
effective only in the specific instance and for the purpose given. No
failure or delay on the part of any party hereto in exercising any
right,
Page 36
power or privilege hereunder will constitute or be deemed to be a waiver
thereof, nor will any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
25.4 Save as otherwise herein provided, neither this agreement nor any part,
share or interest therein nor any rights or obligations hereunder may be
ceded, assigned, or otherwise transferred without the prior written
consent of the other parties.
25.5 This agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which together shall
constitute one and the same agreement as at the date of signature of the
party last signing one of the counterparts. The parties undertake to
take whatever steps may be necessary to ensure that both counterparts
are duly signed by each of them without delay.
26 BENEFIT
This agreement will inure for the benefit of and be binding upon the
successors in title and permitted assigns of the parties hereto or any of
them.
27 APPLICABLE LAW AND JURISDICTION
27.1 This agreement will in all respects be governed by and construed under
the laws of the Republic of South Africa.
27.2 Subject to the provisions of this agreement, the parties hereto hereby
consent and submit to the non-exclusive jurisdiction of the
Witwatersrand Local Division of the High Court of the Republic of South
Africa in any dispute arising from or in connection with this agreement.
Page 37
28 COSTS
28.1 Each party will bear and pay its own legal costs and expenses of and
incidental to the negotiation, drafting, preparation and implementation
of this agreement and the merger notices required for the approval
referred to in clause 3.1.7.
28.2 The fee payable to the Competition Commission shall be borne in
equal shares by AngloGold and Freegold.
28.3 All costs of and associated with the transfer of the business assets to
Freegold shall be for Freegold's account.
SIGNED at Sandton on this 24th day of December 2001
For and on behalf of
CLIDET NO. 383 (PROPRIETARY)
LIMITED
/s/
------------------------
who warrants that he is duly
authorised
SIGNED at Sandton on this 24th day of December 2001
For and on behalf of
ANGLOGOLD LIMITED
/s/
------------------------
who warrants that he is duly
authorised
/s/
------------------------
who warrants that he is duly
authorised
Page 38
SIGNED at Sandton on 24th December 2001.
For and on behalf of
HARMONY GOLD MINING
COMPANY LIMITED
/s/
------------------------
who warrants that he is duly
authorised
SIGNED at Sandton on 24th December 2001.
For and on behalf of
AFRICAN RAINBOW MINERALS
(PROPRIETARY) LIMITED
/s/
------------------------
who warrants that he is duly
authorised