EXECUTION COPY
EXHIBIT 4.16
COVENANTS AGREEMENT
between
GOLD FIELDS LIMITED
MVELAPHANDA RESOURCES LIMITED
LEXSHELL 579 INVESTMENTS (PROPRIETARY) LIMITED
(the name of which is to be changed to "Mvelaphanda Gold (Proprietary) Limited"
or such other name as it may select which is acceptable to the Registrar of
Companies)
and
NEWSHELF 706 LIMITED
(which is to be converted into a private company and the name of which is to
be changed to "GFl Mining South Africa (Proprietary) Limited" or such other
name as it may select which is acceptable to the Registrar of Companies)
TABLE OF CONTENTS
1 INTERPRETATION.................................................................. 1
2 INTRODUCTION.................................................................... 13
3 SUSPENSIVE CONDITION............................................................ 14
4 COMMENCEMENT AND DURATION....................................................... 15
5 MEMORANDA AND ARTICLES OF ASSOCIATION........................................... 15
6 GOLD FIELDS' AND THE COMPANY'S WARRANTIES....................................... 16
7 MVELA RESOURCES' WARRANTIES..................................................... 19
8 DIRECTORS....................................................................... 20
9 MATERIAL MATTERS................................................................ 21
10 RESTRICTIONS ON DISPOSAL OF EMPOWERMENT INTEREST AND SHARES .................... 24
11 DEEMED OFFERS................................................................... 27
12 PRE-EMPTIVES ON MVELA GOLD SHARES............................................... 29
13 FUNDING......................................................................... 34
14 GUARANTEES...................................................................... 35
15 REFERRAL OF OPPORTUNITIES....................................................... 36
16 DIVIDENDS AND OTHER DISTRIBUTIONS TO SHAREHOLDERS............................... 40
17 PARTIES' RIGHTS TO INFORMATION AND TO EXAMINE BOOKS AND
ACCOUNTS........................................................................ 41
18 INCREASES IN HDSA INTEREST IN THE GFI GROUP..................................... 41
19 DELISTING OF GOLD FIELDS........................................................ 45
20 CONFIDENTIALITY................................................................. 50
21 DISPUTES........................................................................ 51
22 CO-OPERATION.................................................................... 54
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23 DOMICILIUM AND NOTICES.......................................................... 54
24 RELATIONSHIP OF THE PARTIES..................................................... 56
25 BREACH.......................................................................... 56
26 CANCELLATION.................................................................... 56
27 GENERAL......................................................................... 56
28 COSTS........................................................................... 58
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COVENANTS AGREEMENT
between
GOLD FIELDS LIMITED
MVELAPHANDA RESOURCES LIMITED
LEXSHELL 579 INVESTMENTS (PROPRIETARY) LIMITED
(the name of which is to be changed to "Mvelaphanda Gold (Proprietary) Limited"
or such other name as it may select which is acceptable to the Registrar of
Companies)
and
NEWSHELF 706 LIMITED
(which is to be converted into a private company and the name of which is to be
changed to "GFI Mining South Africa (Proprietary) Limited" or such other name as
it may select which is acceptable to the Registrar of Companies)
1 INTERPRETATION
Clause headings in this agreement are inserted for convenience only and
shall not be used in its interpretation. In this agreement, unless the
context clearly indicates a contrary intention -
1.1 a word or an expression which denotes -
1.1.1 any gender shall include the other genders;
1.1.2 a natural person shall include an artificial or juristic person
and vice versa;
1.1.3 the singular shall include the plural and vice versa;
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1.2 the following words and expressions shall bear the meanings assigned
to them below and cognate words and expressions shall bear
corresponding meanings -
1.2.1 "AFSA" - the Arbitration Foundation of Southern Africa (or its
successor-in-title);
1.2.2 "THIS AGREEMENT" - this agreement;
1.2.3 "BANK LENDERS" - collectively -
1.2.3.1 Barclays Bank plc, a public limited company duly
incorporated according to the company laws of England,
acting through its South African branch; and
1.2.3.2 INdwa Investments Limited;
1.2.4 "BANK LENDERS CESSION IN SECURITATEM DEBITI" - the agreement
between Mvela Gold and the bank lenders (as amended from time to
time) in terms of which Mvela Gold will cede in securitatem
debiti to and in favour of the bank lenders all of its rights In
respect of the collection account and its rights against the
company and the GF guarantors under the Mvela Gold loan agreement
as security for Mvela Gold's obligations under the bank loan
agreement;
1.2.5 "BANK LOAN AGREEMENT" - the loan agreement between the bank
lenders and Mvela Gold (as amended from time to time) in terms of
which the bank lenders will lend and advance approximately R1 349
000 000 to Mvela Gold;
1.2.6 "BOARD" - the board of directors of the company as constituted
from time to time;
1.2.7 "BUSINESS DAY" - a calendar day which is not a Saturday, a Sunday
or an official public holiday in South Africa;
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1.2.8 "CLAIMS ON LOAN ACCOUNT" - all claims in respect of unsecured
loans made by a shareholder (and by Mvela Gold until the
subscription date) to the company on loan account (but
specifically excluding, for the avoidance of doubt, the Mvela
Gold loan capital, the interest payable from time to time by the
company to Mvela Gold under the Mvela Gold loan agreement and all
claims in respect of loans made to the company on trading
account);
1.2.9 "COLLECTION ACCOUNT" - the bank account in the name of Mvela Gold
opened with RMB into which payments by the company or the GF
guarantors under the Mvela Gold loan agreement will be made;
1.2.10 "COMMENCEMENT DATE" - the business day succeeding the date of
fulfilment of the suspensive condition;
1.2.11 "COMPANIES ACT"- Companies Act No. 61 of 1973, as amended;
1.2.12 "COMPANY" - Newshelf 706 Limited (Registration No.
2002/031431/06), a public company duly incorporated according to
the company laws of South Africa, which is to be converted into a
private company and the name of which is to be changed to "GFI
Mining South Africa (Proprietary) Limited" or such other
name as it may select which is acceptable to the Registrar of
Companies;
1.2.13 "CONCERT PARTY" of a specific person ("PRESCRIBED PERSON") and in
relation to a specific purpose ("PRESCRIBED PURPOSE") - any
person acting in pursuance of an agreement, transaction,
undertaking, arrangement or understanding (whether formal or
informal, oral, in writing or otherwise) with the prescribed
person pursuant to which they co-operate or act together for or
in relation to the prescribed purpose. Without limiting the
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aforegoing, the persons referred to in section 440A(2) of the
Companies Act as at the signature date shall be deemed to be
concert parties unless the contrary is established;
1.2.14 "CONFIDENTIALITY AGREEMENT" - the confidentiality and
exclusivity agreement between Mvela Resources and Gold Fields
dated 10 June 2003, as amended from time to time;
1.2.15 "CONTROL" of the company - any of the following -
1.2.15.1 the direct or indirect beneficial ownership, whether solely,
jointly or with concert parties, of 50% or more of the
issued equity shares, or of any class of issued equity
shares, of the company; or
1.2.15.2 the direct or indirect beneficial ownership, whether solely,
jointly or with concert parties, of issued equity shares of
the company entitling the beneficial owner thereof, directly
or indirectly, whether contingently or otherwise and whether
solely, jointly or with concert parties, to -
1.2.15.2.1 exercise 50% or more of the votes attaching to all the
issued equity shares, or of any class of issued equity
shares, of the company; or
1.2.15.2.2 participate in 50% or more of all dividends and other
distributions on all the issued equity shares, or on
any class of issued equity shares, of the company
(whether such dividends or distributions are out of
profits, reserves, capital, share premium or
otherwise); or
1.2.15.3 the right or ability, through shareholding or otherwise, to
determine, whether solely, jointly or with concert parties,
the composition of the board of directors or
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other governing body of the company and, without prejudice
to the generality of the aforegoing, the composition of such
board or other governing body shall be deemed to be so able
to be determined if the person holding such right or ability
may, by the exercise of such right or ability, directly or
indirectly and whether solely, jointly or with concert
parties, appoint or remove 50% or more of the directors or
other members of such board or other governing body; or
1.2.15.4 the de facto control of the company, whether solely, jointly
or with concert parties, and whether at shareholder level,
board of directors or other governing body level or
management level;
1.2.16 "DIRECTORS" - the directors of the company from time to time;
1.2.17 "DISPOSE" - includes, without limitation, sell, donate, exchange,
unbundle, distribute, alienate, cease to hold or to beneficially
own or otherwise transfer or dispose of (and "DISPOSAL" and
"DISPOSED" shall have corresponding meanings);
1.2.18 "EMPOWERMENT INTEREST" - Mvela Gold's right under the Mvela Gold
subscription agreement to require the allotment and issue to it,
and registration in its name of the empowerment shares;
1.2.19 "EMPOWERMENT SHARES" - that number of shares in the issued equity
share capital of the company which rank pari passu with the other
issued equity shares in the capital of the company on the
subscription date and which, immediately after issue thereof,
will equate to 15% of the issued equity share capital of the
company;
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1.2.20 "ENCUMBER" - includes, without limitation, pledge, cede, encumber
or otherwise create or allow to come into existence any lien,
hypothec, bond or other form of security rights;
1.2.21 "EQUITY SHARE" of any company - a share, instrument or right in
the capital of that company which -
1.2.21.1 entitles the holder thereof to participate in the
distribution of profits, reserves, capital, share premium or
any other dividend or distribution which is based upon, or
linked to, the profitability of that company or which
otherwise entitles the holder thereof to any such
distribution beyond a specified amount; and
1.2.21.2 carries voting rights at meetings of ordinary shareholders
of that company; or
1.2.21.3 is convertible, exchangeable or exercisable, whether
contingently, conditionally, voluntarily, compulsorily or
otherwise, into a share, instrument or right which falls
within 1.2.21.1 and 1.2.21.2;
1.2.22 "EQUITY SHARE CAPITAL" in relation to a person - that portion of
that person's issued share capital consisting of equity shares;
1.2.23 "FIRSTRAND BANK" - Firstrand Bank Limited (Registration No.
1929/001225/06), a public company with limited liability duly
incorporated according to the company laws of South Africa;
1.2.24 "GF GUARANTORS" - collectively, Gold Fields, Gold Fields Guernsey
Limited (Registration No. 24457) and Gold Fields Australia
Proprietary Limited (Registration No. ABN : 91 098 385 285);
1.2.25 "GFI ARTICLES" - the articles of association of the company from
time to time;
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1.2.26 "GFI GROUP" - the company and its subsidiaries from time to time;
1.2.27 "GFI MEMORANDUM" - the memorandum of association of the company
from time to time;
1.2.28 "GFI ORDINARY SHARES" - ordinary shares in the capital of the
company with a par value of R1 each;
1.2.29 "GFLM" - GFL Mining Services Limited, a wholly-owned subsidiary
of Gold Fields;
1.2.30 "GF REORGANISATION AGREEMENT" - the agreement (as amended from
time to time) in terms of which, inter alia, the company will
acquire the South African gold mining businesses and related
assets of the Gold Fields group from, inter alia, the reorg
sellers;
1.2.31 "GOLD FIELDS" - Gold Fields Limited (Registration No.
1968/004880/06), a public company duly incorporated according to
the company laws of South Africa, the issued ordinary shares of
which are presently listed on, inter alia, the JSE;
1.2.32 "GOLD FIELDS GROUP" - collectively, Gold Fields and its
subsidiaries from" time to time;
1.2.33 "GOLD FIELDS SHARES" - ordinary shares in the capital of Gold
Fields with a par value of R0,50 each as at the signature date;
1.2.34 "GUARANTEE" - includes, without limitation, a guarantee,
suretyship or any other form of intercession;
1.2.35 "HDSA COMPANY" - an "HDSA company" as contemplated in the Mining
Charter;
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1.2.36 "HDSAS" - Historically Disadvantaged South Africans, as defined
in the Mining Charter (including, without limitation, HDSA
companies);
1.2.37 "HOLDING COMPANY" - a "holding company" as defined in the
Companies Act;
1.2.38 "IDC" - Industrial Development Corporation of South Africa
Limited a corporation constituted by the Industrial Development
Act No. 22 of 1940, as amended;
1.2.39 "IFC" - International Finance Corporation, an international
organisation established by articles of agreement amongst its
member countries;
1.2.40 "JSE" - JSE Securities Exchange South Africa;
1.2.41 "LISTING DATE" - the date upon which any of the issued equity
shares of the company are first listed on the JSE;
1.2.42 "MEZZ SPV" - Micawber 325 (Proprietary) Limited (Registration No.
2003/013950/07), a private company duly incorporated according to
the company laws of South Africa;
1.2.43 "MEZZ SPV CESSION IN SECURITATEM DEBITI" - the agreement between
Mvela Gold and Mezz SPV (as amended from time to time) in terms
of which Mvela Gold will cede in securitatem debiti to and in
favour of Mezz SPV all of its -
1.2.43.1 reversionary rights -
1.2.43.1.1 in respect of the collection account; and
1.2.43.1.2 against the company and the GF guarantors under the
Mvela Gold loan agreement; and
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1.2.43.2 rights against the company under the Mvela Gold subscription
agreement,
as security for Mvela Gold's obligations under the loan agreement
between Mezz SPV and Mvela Gold (as amended from time to time) in
terms of which Mezz SPV will lend and advance approximately R1
100 000 000 to Mvela Gold;
1.2.44 "MEZZ SPV FUNDERS" - collectively, GFLM, IFC, IDC, PIC, RMB and
XX Xxxxxx;
1.2.45 "MINING CHARTER" - the Broad-Based Socio-Economic Empowerment
Charter for the South African Mining Industry;
1.2.46 "MVELA GOLD" - Lexshell 579 Investments (Proprietary) Limited
(Registration No. 2003/013950/07), a private company duly
incorporated according to the company laws of South Africa, the
name of which is to be changed to "Mvelaphanda Gold (Proprietary)
Limited" or such other name as it may select which is acceptable
to the Registrar of Companies;
1.2.47 "MVELA GOLD LOAN AGREEMENT" - the loan agreement (as amended from
time to time) between Mvela Gold and the company (as amended from
time to time) which stipulates the terms upon which the Mvela
Gold loan capital will be lent and advanced by Mvela Gold to the
company;
1.2.48 "MVELA GOLD LOAN CAPITAL" - an amount of approximately R4 139 000
000 to be lent and advanced by Mvela Gold to the company under
the Mvela Gold loan agreement;
1.2.49 "MVELA GOLD SUBSCRIPTION AGREEMENT" - the agreement between Gold
Fields, Mvela Gold and the company (as amended from time to time)
in terms of which, inter alia -
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1.2.49.1 Mvela Gold will be entitled or obliged (as the case may be)
to subscribe for the empowerment shares; and
1.2.49.2 Mvela Gold will be entitled to sell the empowerment shares
to Gold Fields, and Gold Fields will be entitled to purchase
the empowerment shares from Mvela Gold, in consideration for
the issue to Mvela Gold of new Gold Fields shares;
1.2.50 "MVELA RESOURCES" - Mvelaphanda Resources Limited (Registration
No. 1980/001395/06), a public company with limited liability duly
incorporated in South Africa, the issued ordinary shares of which
are listed on the JSE;
1.2.51 "MVELA RESOURCES GROUP" - collectively, Mvela Resources and its
subsidiaries from time to time;
1.2.52 "PARTIES" - collectively, Gold, Fields, Mvela, Resources, Mvela
Gold and the company;
1.2.53 "PERSON" - includes, without limitation, any association,
business, close corporation, company, concern, enterprise, firm,
foundation, partnership, joint venture, person, trust,
undertaking, voluntary association, body corporate, juristic
person and any other entity or association of persons;
1.2.54 "PIC" - Public Investment Commissioners constituted in terms of
the Public Investment Commissioners Act No. 45 of 1984, as
amended;
1.2.55 "PRIME RATE" - the publicly quoted basic rate of interest (per
centum, 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 published by FirstRand Bank (or its
successor-in-title) as being its prime
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overdraft rate as certified by any manager of FirstRand Bank
whose appointment need not be proved;
1.2.56 "RELATED PARTIES" - each member of the Gold Fields group and each
"related party" as defined in the Listings Requirements of the
JSE as at the signature date of any member of the Gold Fields
group;
1.2.57 "REORG SELLERS" - collectively, GFLM, Kloof Gold Mining Company
Limited (Registration No. 1964/004462/06), Driefontein
Consolidated (Proprietary) Limited (Registration No.
1993/002956/07) and Beatrix Mining Ventures Limited (Registration
No. 1946/020743/06);
1.2.58 "REPAYMENT DATE" - the date upon which the Mvela Gold loan
capital becomes due and repayable in terms of the Mvela Gold loan
agreement (including, without limitation, pursuant to a decision
by the company to prepay the Mvela Gold loan capital);
1.2.59 "RMB" - Rand Merchant Bank, a division of FirstRand Bank;
1.2.60 "SHAREHOLDERS" - the beneficial holders of equity shares or other
shares in the capital of the company from time to time and
"SHAREHOLDER" means any one of them;
1.2.61 "SIGNATURE DATE" - the date upon which this agreement is signed
by the party last signing it;
1.2.62 "SOUTH AFRICA" - the Republic of South Africa;
1.2.63 "STAKEHOLDERS" - collectively, Mvela Resources, Mvela Gold and
Gold Fields;
1.2.64 "SUBSIDIARY" - a "subsidiary" as defined in the Companies Act;
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1.2.65 "SUBSCRIPTION DATE" - IF -
1.2.65.1 the company discharges in full, on the repayment date, all
of its obligation under the Mvela Gold loan agreement, the
subscription date is the "REPAYMENT DATE";
1.2.65.2 the company fails to discharge in full, on the repayment
date, all of its obligations under the Mvela Gold loan
agreement the "SUBSCRIPTION DATE" is the date on which Mvela
Gold subscribes for, and is issued, the empowerment shares
in terms of the Mvela Gold subscription agreement;
1.2.66 "SUSPENSIVE CONDITION" - the suspensive condition stipulated in
3.1;
1.2.67 "TRANSACTION DOCUMENTS" - the documents defined as the
"TRANSACTION DOCUMENTS" in the GFI-SA loan agreement (but only to
the extent to which the terms and conditions of such agreements
are approved in writing by Gold Fields and Mvela Resources on
signature thereof);
1.2.68 "VALUATION METHODOLOGY" - the valuation methodology annexed to
the Mvela Gold subscription agreement;
1.3 any reference to any statute, regulation or other legislation shall be
a reference to that statute, regulation or other legislation as at the
signature date, and as amended or substituted from time to time;
1.4 if any provision in 1.2 is a substantive provision conferring a right
or imposing an obligation on any party then, notwithstanding that it
appears in 1.2, effect shall be given to it as if it were a
substantive provision in the body of this agreement;
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1.5 where any term is defined within a particular clause other than in
1.2, that term shall bear the meaning ascribed to it in that clause
wherever it is used in this agreement;
1.5 where any number of days is to be calculated from a particular day,
such number shall be calculated as excluding such particular day and
commencing on the next day. If the last day of such number so
calculated falls on a day which is not a business day, the last day
shall be deemed to be the next succeeding day which is a business day;
1.7 any reference to days (other than a reference to business days),
months or years shall be a reference to calendar days, months or
years, as the case may be;
1.8 the use of a specific example shall not be construed as limiting the
meaning of the general wording preceding it (whether or not the
specific examples succeed the word "including") and the eiusdem
generis rule shall not be applied in the interpretation of such
general wording or such specific example,
The terms of this agreement having been negotiated, the contra proferentem
rule shall not be applied in the interpretation of this agreement.
2 INTRODUCTION
2.1 Gold Fields is the holding company of a group of companies engaged,
inter alia, in mining and prospecting. The issued ordinary shares of
Gold Fields are presently listed, inter alia, on the JSE and the New
York Stock Exchange,
2.2 Mvela Resources is an investment holding company which engages in the
business of investing in mining companies. The issued ordinary shares
of Mvela Resources are presently listed on the JSE.
2.3 The entire issued share capital of -
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2.3.1 the company presently consists of 850 GFI ordinary shares all of
which are presently registered in the name of, and are presently
beneficially owned by, Gold Fields;
2.3.2 Mvela Gold presently consists of 100 ordinary shares with a par
value of R1 each, all of which are presently beneficially owned
by Mvela Resources.
2.4 The GFI group will conduct the business of operating precious metal
mines and exploring for, and marketing, distributing, and selling,
precious metals in South Africa.
2.5 The parties have entered into, or are about to enter into, the
transaction documents.
2.6 The stakeholders have agreed to regulate their relationship in respect
of the company upon implementation of the transaction documents, and
the company has agreed to same, in accordance with the terms and
conditions stipulated in this agreement.
3 SUSPENSIVE CONDITION
3.1 The whole of this agreement (other than this 3, 20 and 22 to 24 (both
inclusive) and 26 to 28 (both inclusive), all read with 1, which shall
become effective on the signature date) is subject to the fulfilment
of the suspensive condition that the whole of the Mvela Gold loan
capital is actually advanced to the company on or before 30 June 2004.
3.2 Each of Gold Fields and Mvela Resources is entitled, on one or more
occasions, by notice in writing to the other, to extend the date for
fulfilment of the suspensive condition beyond the date stated in 3.1
(as extended from time to time in terms of this 3.2) by not more than
180 days In the aggregate (which shall include all such extensions,
whether by Gold Fields or Mvela Resources).
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3.3 Notwithstanding the date stated in 3.1 (as extended in terms of 3.2,
If applicable), each of the parties shall use its reasonable
commercial endeavours to procure the fulfilment of the suspensive
condition as soon as reasonably possible after the signature date.
3.4 If the suspensive condition is not timeously fulfilled, this agreement
(other than 3.2, this 3.4, 20, 22 to 24 (both inclusive) and 26 to 28
(both inclusive), all read with 1, by which the parties shall remain
bound) shall be of no force or effect and the parties shall be
restored as near as may be possible to the positions in which they
were immediately prior to the signature date. No party shall have any
claim against any other as a result of, or arising out of or pursuant
to, such non-fulfilment save if it deliberately frustrates the
fulfilment thereof or breaches 3.3.
4 COMMENCEMENT AND DURATION
This agreement shall commence on the commencement date and each provision
hereof shall thereafter, save as stated to the contrary in 12 and 19.3.3,
continue to bind each party only if and for so long as -
4.1 Gold Fields is a shareholder; and
4.2 Mvela Gold either holds or beneficially owns the empowerment interest
or is a shareholder,
but in any event, save as stated to the contrary in 12 and 19.3.3, only
until the listing date,
5 MEMORANDA AND ARTICLES OF ASSOCIATION
5.1 If any of the provisions of the GFI memorandum and/or GFI articles
and/or the memorandum and/or articles of association of any other
company forming part of the GFI group conflict with any of the
provisions of this agreement, any party may require the GFI memorandum
and/or GFI articles and/or the memorandum and/or
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articles of association of any other company forming part of the GFI
group to be amended accordingly. The parties shall vote in favour,
and/or procure that the shareholders of any other company forming
part of the GFI group vote in favour, of all resolutions necessary to
amend such memorandum and/or articles.
5.2 Without detracting from 5.1, if any provision of this agreement
conflicts with any provision of the GFI memorandum and/or GFI articles
and/or the memorandum and/or articles of association of any other
company forming part of the GFI group, the provisions of this
agreement shall take precedence and shall be given effect to by the
parties if legally possible.
6 GOLD FIELDS' AND THE COMPANY'S WARRANTIES
6.1 Each of Gold Fields and the company warrants in favour of each of
Mvela Resources and Mvela Gold -
6.1.1 that, to the best of Gold Fields' and the company's knowledge,
the audited consolidated and separate financial statements of the
Gold Fields group as at 30 June 2003 ("June 2003 accounts") were
prepared -
6.1.1.1 in accordance with International Financial Reporting
Standards, the Companies Act and all other applicable laws;
6.1.1.2 subject to 6.1.1.1, in a manner such as to fairly present
the state of affairs, operations and results of the Gold
Fields group as at, and in respect of the twelve month
period ended, 30 June 2003; and
6.1.1.3 unless inconsistent with 6.1.1.1, or as otherwise disclosed
by Gold Fields to Mvela Resources in writing prior to the
signature date, upon the same bases and applying the same
criteria as were applied in the
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preparation of the audited financial statements of the Gold
Fields group in previous financial years;
6.1.2 that, immediately prior to the implementation of the GF
reorganisation agreement ("REORG IMPLEMENTATION DATE") -
6.1.2.1 and as at the commencement date -
6.1.2.1.1 there will be 850 GFI ordinary shares, and no other
equity shares or other shares in the capital of the
company, in issue;
6.1.2.1.2 Gold Fields will be the sole registered and beneficial
owner of all the issued GFI ordinary shares;
6.1.2.1.3 no person will have any right (including, without
limitation, any option or right of first refusal) to
subscribe for or acquire any GFI ordinary shares or any
other equity shares or other shares in the capital of
the company;
6.1.2.1.4 the company will have no subsidiaries;
6.1.2.2 the company will have no assets (other than those arising on
the issue of its ordinary shares) and no liabilities (other
than audit and company secretarial fees);
6.1.3 subject to 6.2, that from (and including) the reorg
implementation date and thereafter, for such period/s as Mvela
Gold holds or beneficially owns the empowerment interest and for
such periods ("LATER PERIOD") as Mvela Gold holds or beneficially
owns at least 10% of the issued equity share capital of the
company (but in respect of the later period, only to the extent
to which it carries on business with related
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parties), the company will, and Gold Fields and the company will
procure that each of the company's subsidiaries will, unless
otherwise agreed in writing in advance by Mvela Resources carry
on its business in a manner not likely to materially adversely
affect its financial position or solvency.
6.1.4 subject to 6.2, from (and including) 30 June 2003 until (and
including) the reorg implementation date -
6.1.4.1 the reorg sellers have carried on, and will carry on, their
businesses in the ordinary, normal and regular course;
6.1.4.2 none of the material assets of the reorg sellers have been,
or will be, disposed of;
6.1.4.3 the reorg sellers have not concluded, and will not conclude,
any material agreements or material transactions outside the
ordinary, normal and regular course of their businesses; and
6.1.4.4 the reorg sellers have not incurred, and will not incur, any
material liabilities (whether actual, contingent,
conditional or otherwise) outside the ordinary, normal and
regular course of their businesses;
6.1.5 that, save as a result of factors which have been made public
prior to the signature date (including, without limitation, in
the June 2003 accounts and the Gold Fields group's quarterly
results announcements) or factors beyond the control of Gold
Fields including, without limitation, changes in the Dollar-
denominated gold price and the Rand/Dollar exchange rate, there
will be no material adverse difference between the financial
position, assets and liabilities of the reorg sellers, as
reflected in the audited consolidated and separate financial
statements of the Gold Fields group as at 30 June 2003 and
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the financial position, assets and liabilities of the GFI group
as at the commencement date;
6.1.6 that from (and including) the commencement date until (and
including) the subscription date, there will only be one class of
equity shares in the capital of the company, being the GFI
ordinary shares.
6.2 The conclusion and implementation by Gold Fields and the company of
the transaction documents shall be deemed not to constitute a breach
of any warranty in 6.1.
7 MVELA RESOURCES' WARRANTIES
7.1 Mvela Resources warrants in favour of Gold Fields that, as at the
signature date and until the repayment date.
7.1.1 at least 26% of its issued equity share capital is, and will
remain, held by HDSAs; and
7.1.2 both management control and board control of Mvela Resources
vests, and will be vested, in HDSAs. For purposes of this 7.1.2.
7.1.2.1 "BOARD CONTROL" means having such number of nominee
directors of Mvela Resources as constitutes a majority of
the directors thereof; and
7.1.2.2 "MANAGEMENT CONTROL" means control, subject to the
overriding control and authority of its board of directors,
of the day to day management and operations of Mvela
Resources in the ordinary course.
7.2 if it comes to the knowledge of Mvela Resources at any time prior to
the repayment date that it has ceased to comply with 7.1 for any
reason, it shall -
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7.2.1 notify Gold Fields thereof as soon as reasonably possible after
becoming aware thereof; and
7.2.2 notwithstanding 7.1, be deemed not to be in breach of 7.1 if it
procures within ninety days after it acquires such knowledge that
it once again complies with 7.1.
7.3 Subject to signature of a confidentiality agreement on such terms as
Mvela Resources may reasonably require, Gold Fields shall be entitled
from time to time, on reasonable notice, to request access to such
information as it may reasonably require in order to verify whether
Mvela Resources is in compliance with its warranty in 7.1 or
constitutes an HDSA company. If Mvela Resources and/or Gold Fields
becomes aware at any time prior to the repayment date that Mvela
Resources is for any reason not an HDSA company, then, without
prejudice to Gold Fields' rights (if any) arising on any breach of
7.1, Mvela Resources and/or Gold Fields (as the case may be) shall
notify one another thereof and endeavour (without any obligation to
actually reach agreement) in good faith to agree on how best to
procure that Mvela Resources will be an HDSA company; provided that
nothing in this 7.3 shall place any obligation on Gold Fields to
endsavour to reach any such agreement with Mvela Resources if Mvela
Resources is in breach of its warranty in 7.1.
8 DIRECTORS
8.1 There shall be a maximum of seven directors.
8.2 Gold Fields shall be entitled to nominate for appointment the majority
of the directors to the board.
8.3 Mvela Gold shall be entitled to nominate for appointment two
directors. The appointment of each Mvela Gold nominee to the board
shall be subject to the prior written approval of Gold Fields not to
be unreasonably withheld. If Gold Fields reasonably withholds its
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consent to a nominee, Mvela Gold shall be entitled to nominate
someone else and this process shall continue until a nominee of
Mvela Gold is approved by Gold Fields or until Gold Fields
unreasonably withholds its consent to a nominee.
8.4 Each of Gold Fields and Mvela Gold shall have the right from time to
time to appoint an alternate to each director nominated by it and to
remove any director (or alternate) nominated by it and to nominate for
appointment a replacement director; provided that each nominee of
Mvela Gold shall be subject to the prior approval of Gold Fields (not
to be unreasonably withheld) mutatis mutandis in accordance with the
provisions of 8.3.
8.5 Mvela Gold shall be entitled, on notice to the company, mutatis
mutandis in accordance with 8.3 to appoint two members to each of
the -
8.5.1 operations committee of the board and/or such other committees of
the board and/or the company which have operational functions;
8.5.2 transformation sub-committee of the board.
8.6 Mvela Gold shall be entitled, in respect of each of the company's
subsidiaries and on notice to the company and the relevant subsidiary,
mutatis mutandis in accordance with 8.3, to appoint.
8.6.1 two directors on the board of directors of such subsidiary; and
8.6.2 a member on each committee of such subsidiary which has
operational functions.
9 MATERIAL MATTERS
The company undertakes that -
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9.1 it will not commit itself to or implement any of the following
matters, resolutions or transactions (and the stakeholders undertake
that they will not take any steps of any nature to approve, authorise,
assist or permit the company to become bound or committed to or
implement any such matter, resolution or transaction), unless such
matter, resolution or transaction has been approved in writing in
advance by Mvela Resources -
9.1.1 the disposal (in one or more or a series of transactions) of -
9.1.1.1 the whole, or substantially the whole, of the undertaking of
the company as constituted on the reorg implementation date,
the commencement date or any other date; or
9.1.1.2 any of the material assets of the company as at the reorg
implementation date, the commencement date or any other date
including, without limitation, material intangible assets,
and the terms and conditions of any such restricted disposal. All
disposals falling within the ambit of 9.1.1.1 and 9.1.1.2 are
referred to hereinafter collectively as the "restricted
disposals";
9.1.2 the entering into, conclusion, amendment, novation or
cancellation (whether consensual or unilateral cancellation) of
any material undertaking, agreement, transaction, understanding,
arrangement or the like between the company and any related party
other than -
9.1.2.1 the transaction documents;
9.1.2.2 the movement of cash between the company and any other
company forming part of the Gold Fields group;
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9.1.2.3 the granting by the company of any guarantee for the
obligations of any other company in the Gold Fields group;
9.1.2.4 an agreement between the company and any other company
forming part of the Gold Fields group for the provision of
services in the ordinary, normal and regular course of
business and on arms-length terms (for purposes of which the
ordinary, normal and regular course of business will be
determined with reference to the manner in which the reorg
sellers carried, and carry, on their businesses prior to the
disposal thereof under the GF reorganisation agreement),
and the terms and conditions of such material undertakings,
agreements, transactions, understandings and arrangements (other
than those referred to in 9.1.2.1 to 9.1.2.4 (both inclusive));
9.1.3 any material amendment or material addition to, material deletion
from, or supercession or replacement of, the GFl memorandum
and/or GFl articles;
9.1.4 the voluntary liquidation of the company, whether by
shareholders' resolution or otherwise.
9.2 The provisions of 9.1 shall apply, mutatis mutandis, to each material
subsidiary of the company from time to time. For the avoidance of
doubt, Gold Fields and the company shall procure that no material
subsidiary of the company shall become bound or committed to any of
the matters, resolutions or transactions set out in 9.1 unless such
matter, resolution or transaction (as the case may be) shall have been
approved in writing in advance by Mvela Resources. The parties
irrevocably and unconditionally undertake to use their reasonable
commercial endeavours to procure that the -
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9.2.1 directors, officers and employees of all material subsidiaries of
the company from time to time comply with this 9.2; and
9.2.2 persons who are authorised from time to time by the company
and/or any of its subsidiaries from time to time to attend and
vote at meetings of shareholders of material subsidiaries comply
with this 9.2.
9.3 The provisions of 9.1 and 9.2 shall apply over such period/s in which
Mvela Gold holds or beneficially owns the empowerment interest and
such periods ("SUBSEQUENT PERIODS") in which Mvela Gold holds or
beneficially owns at least 10% of the issued equity share capital of
the company; provided that the provisions of 9.1.1 shall only apply in
the subsequent period in respect of restricted disposals to related
parties.
10 RESTRICTIONS ON DISPOSAL OF EMPOWERMENT INTEREST AND SHARES
10.1 RESTRICTIONS ON DISPOSALS AND ENCUMBRANCES BY MVELA GOLD
10.1.1 Save as expressly stated to the contrary in this agreement or the
transaction documents, Mvela Gold shall not dispose of or
encumber all or any part of the empowerment interest or all or
any part of its claims on loan account until the repayment date;
provided that it may in the period up to (and including) the
repayment date encumber all or any part of the empowerment
interest or all or any part of its claims on loan account in
order to settle or roll-over all or any of its obligations to its
financiers in respect of the acquisition of the empowerment
interest (but then subject, mutatis mutandis, to Gold Fields'
pre-emptive rights contained in the Mvela Gold subscription
agreement).
10.1.2 Save as expressly stated to the contrary in this agreement or the
transaction documents, Mvela Gold may not dispose of or encumber
all or any part of the empowerment interest, all or any of its
equity shares or other shares in the capital of the company or
all or any or part of its claims on loan account or
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all or any of its rights or interests therein or thereto after
the repayment date unless it complies with the pre-emptive rights
provisions in favour of Gold Fields contained in the Mvela Gold
subscription agreement.
10.2 RESTRICTION ON DISPOSALS BY GOLD FIELDS
10.2.1 Save for a disposal under 10.2.3, Gold Fields shall not dispose
of all or any of its equity shares or other shares in the capital
of the company (or any rights or interests therein or thereto) or
all or any part of its claims on loan account (or any rights or
interests therein or thereto) -
10.2.1.1 until the subscription date without the prior written
consent of Mvela Gold; and
10.2.1.2 on or after the subscription date unless it first complies
with 10.2.2 (if applicable).
10.2.2 Save for a disposal under 10.2.3, if Gold Fields intends to
dispose, at any time on or after the subscription date when Mvela
Gold holds or beneficially owns at least 10% of the issued equity
share capital of the company, of all or any of its equity shares
or other shares in the capital of the company to any person
("PROPOSED PURCHASER") which disposal, if implemented, will
result in Gold Fields ceasing to control the company and/or any
person acquiring control of the company, Gold Fields shall give
prior written notice of its intention to do so ("TAG ALONG
NOTICE") to Mvela Gold. The tag along notice shall contain all
the terms and conditions upon which Gold Fields intends to effect
such disposal including, without limitation, the name of the
proposed purchaser ("THIRD PARTY") (and if the third party is a
nominee, subsidiary or agent of another person, the name of that
other person), the purchase consideration and the method of
discharge thereof. If Mvela Gold, within thirty days after
receipt by it of the tag along
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notice, gives written notice to Gold Fields requiring it to do
so, Gold Fields shall not implement such disposal unless it
procures that the third party purchases all of Mvela Gold's
equity shares and other shares in the capital of the company and
all of Mvela Gold's claims on loan accounts at the same price per
equity share and other share in the capital of the company and on
the same terms, mutatis mutandis, as those on which Gold Fields
intends to dispose of its equity shares and other shares in the
capital of the company and claims on loan account to the third
party.
10.2.3 Gold Fields shall be entitled at any time to dispose of all (but
not some) of its equity shares and other shares in the capital of
the company to a wholly-owned subsidiary of Gold Fields; provided
that -
10.2.3.1 Gold Fields shall give prior written notice of such proposed
transfer to Mvela Gold, which notice shall include the
identity of the proposed transferee and a written
undertaking by the proposed transferee in favour of Mvela
Gold to be bound by the terms of this agreement and the
transaction documents, in which it selects a domicilium for
purposes of this agreement;
10.2.3.2 prior to the proposed transferee ceasing to be a
wholly-owned subsidiary of Gold Fields, Gold Fields shall
procure that the proposed transferee shall transfer all the
equity shares and other shares held by it in the capital of
the company to another wholly-owned subsidiary of Gold
Fields, failing which it shall be deemed to have sold and
transferred these shares to Gold Fields at book value with
effect from the day preceding the date upon which it ceases
to be a wholly-owned subsidiary of Gold Fields;
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10.2.3.3 all references in this agreement to Gold Fields (other than
in this 10.2.3) shall be deemed to include the proposed
transferee; and
10.2.3.4 Gold Fields hereby as co-principal debtor with the proposed
transferee jointly and severally guarantees the obligations
of the proposed transferee under this agreement.
11 DEEMED OFFERS
11.1 If either Mvela Gold or Mvela Resources -
11.1.1 becomes subject to any provisional or final order for its
winding-up, liquidation or judicial management or is made subject
to any similar legal disability; or
11.1.2 voluntarily, whether by way of a shareholders' resolution or
otherwise, places itself under winding-up or in liquidation other
than for the purposes of a bona fide group reorganisation; or
11.1.3 compromises with its creditors generally,
then Mvela Gold shall be deemed, on the day prior to that on which an
event referred to in 11.1 ("EVENT") takes place, to have offered
("DEEMED OFFER") to sell the empowerment interest or its equity shares
or other shares in the capital of the company (as the case may be)
("DEEMED OFFER SHARES") and all its claims on loan account (if any)
("DEEMED OFFER CLAIMS") to Gold Fields.
11.2 For the avoidance of doubt, the provisions of this 11 and any
disposal under this 11 shall not adversely affect the rights of the -
11.2.1 bank lenders under the bank lenders cession in securitatem
debiti; or
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11.2.2 Mezz SPV funders under the Mezz SPV cession in securitatem
debiti.
11.3 The deemed offer shall be subject to the following terms and
conditions -
11.3.1 the price of the deemed offer shares and the deemed offer claims
("DEEMED OFFER PRICE") (which shall be expressed and payable in
South African Rands) shall be the fair market value thereof as at
the date of the deemed offer. Such fair market value shall-
11.3.1.1 be determined by an independent merchant bank ("DEEMED OFFER
EXPERT") agreed to by the parties, or failing agreement by
them within three business days of the one requesting the
others to so agree, selected by AFSA. The deemed offer
expert shall act as an expert and not an arbitrator and its
determination shall, in the absence of manifest error or
failure to comply with this 11, be final and binding on the
parties and shall be carried into effect without delay;
11.3.1.2 notwithstanding the aforegoing, disregard the fact that the
shares concerned (or the shares into which the empowerment
interest will effectively convert, as the case may be)
constitute either a majority or a minority holding;
11.3.2 the parties shall use their reasonable endeavours to procure that
the deemed offer expert makes his determination within thirty
days after being instructed to do so. The costs of the deemed
offer expert shall be borne and paid by Mvela Gold;
11.3.3 the deemed offer shall be irrevocable and open for acceptance by
written notice thereof delivered to Mvela Gold within a period
("ACCEPTANCE PERIOD") of thirty days commencing on
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the date of receipt by Gold Fields of the deemed offer expert's
written determination in terms of 11.3.1.1;
11.3.4 the deemed offer shall be subject to the suspensive condition
("DEEMED OFFER CONDITION") that all regulatory approvals (if any)
which are necessary for the implementation of the sale arising
from the acceptance of the deemed offer are obtained within
ninety days after the date of acceptance of the offer. Mvela Gold
shall use its reasonable commercial endeavours to procure the
obtaining of any required regulatory approvals as expeditiously
as possible;
11.3.5 the deemed offer price shall be payable within seven days of the
date of acceptance of the offer or date of fulfilment of the '
deemed offer condition (as the case may be) in cash in Rands,
free of exchange, withholding, set-off, contribution or
deduction, against delivery to Gold Fields of the share
certificates in respect of the deemed offer shares, duly signed
and currently dated share transfer forms in respect thereof and a
written cession of the deemed offer claims.
11.4 The provisions of this 11 shall apply for so long as Gold Fields
controls the company.
12 PRE-EMPTIVES ON MVELA GOLD SHARES
12.1 Subject to the transaction documents, Mvela Resources may not dispose
of any of its equity shares in Mvela Gold and/or its claims on loan
accounts against Mvela Gold (an "EQUITY INTEREST") save in accordance
with the following provisions of this 12 and shall further procure
that no further equity shares in Mvela Gold are issued to any party
other than Mvela Resources without the prior written approval of Gold
Fields.
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12.2 If Mvela Resources receives an offer (a "THIRD PARTY OFFER") for an
equity interest from a bona fide third party (the "THIRD PARTY
OFFEROR") or otherwise wishes to dispose of an equity interest (in
each case the "OFFER INTEREST") it shall first offer in writing to
sell the offer interest to Gold Fields.
12.3 Any offer (the "OFFER") in terms of 12.2 shall-
12.3.1 be in writing and delivered to Gold Fields;
12.3.2 remain open for acceptance for a period of ten business days
after receipt;
12.3.3 be accompanied, in the case of a third party offer by -
12.3.3.1 a written memorandum of the consideration and all the other
terms and conditions that have been offered to Mvela
Resources orally; or
12.3.3.2 a true and complete copy of any written offer made to Mvela
Resources (which sets out the consideration and all other
terms and conditions of such third party offer),
by the third party offeror in respect of the offer interest which
Mvela Resources wishes to accept, and which in either case must
contain the name of the third party offeror, and in the case
where the third party offeror is an agent, the name of his
ultimate principal (if any);
12.3.4 in the case of a third party offer, be deemed to be for the
consideration and subject to, mutatis mutandis the terms and
conditions set out in the memorandum or written offer referred to
in 12.3;
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12.3.5 if there is no third party offer, state that fact and shall state
the consideration and full terms and conditions upon which Mvela
Gold wishes to sell the offer interest;
12.3.6 be subject to the conditions that -
12.3.6.1 Mvela Gold's offer may be accepted by Gold Fields only on
the basis that all of the offer interest offered is to be
purchased;
12.3.6.2 the consideration shall be for cash and be expressed only in
the currency of South Africa;
12.3.6.3 all regulatory approvals required to implement the sale
resulting from an acceptance of the offer are obtained
within ninety days of the date upon which the offer is
accepted by Gold Fields ("OFFER CONDITION");
12.3.6.4 not be subject to any other terms and conditions.
12.4 Should Gold Fields wish to accept any offer, Gold Fields shall provide
Mvela Gold with written notice (the "ACCEPTANCE NOTICE") to that
effect within the period referred to in 12.3.2.
12.5 If the offer is duly accepted by Gold Fields in terms of 12.4 and the
offer condition is fulfilled within the ninety day period referred to
in 12.3.6.3, then there shall be an agreement of purchase and sale of
the offer interest between Mvela Resources and Gold Fields on the
terms and conditions of the offer provided that -
12.5.1 payment of the purchase price shall be made within ten business
days after the acceptance of the offer referred to in 12.4 or
fulfilment of the offer condition (as the case may be) against
compliance by Mvela Resources with 12.5.3;
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12.5.2 should payment for the offer interest occur after the payment
date specified in 12.5,1, then without prejudice to Mvela
Resources' other rights in law or in terms of this agreement Gold
Fields shall pay interest on the purchase price at the prime rate
from the payment date specified in 12.5.1 until the date of
payment;
12.5.3 Mvela Gold shall -
12.5.3.1 against compliance by Gold Fields with 12.5.1 -
12.5.3.1.1 deliver the relevant share certificate(s) to Gold
Fields together with duly signed share transfer forms
blank as to transferee and if applicable a duly signed
deed of cession of the claims on loan account forming
part of the offer interest;
12.5.3.1.2 Mvela Resources shall do all such other things and
execute all such other documents as Gold Fields may
reasonably require to give effect to the sale and
purchase of the offer interest.
12.5.3.2 Should the offer not be accepted by Gold Fields within the
period applicable under 12.3.2, then Mvela Resources shall
be entitled to dispose of the offer interest to any third
party provided that -
12.5.3.2.1 the disposal is entered into within thirty days from
the date on which Mvela Resources receives written
notification from Gold Fields of its rejection of the
offer or the offer expires, whichever is the earlier;
provided that it may be subject to the suspensive
condition that all regulatory approvals required to
implement the disposal are obtained within ninety days
after such thirty day period;
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12.5.3.2.2 the sale is not effected at a price and on terms and
conditions which are more favourable than those first
offered to Gold Fields in terms of the offer;
12.5.3.2.3 should such agreement not be entered into within the
thirty days referred to in 12.5.3.2.1, or should the
regulatory approvals not be obtained within the ninety
day period referred to in 12.5.3.2.1 all the provisions
of this clause shall apply de novo to the offer
interest.
12.6 Notwithstanding anything else in this 12 it shall not apply to and
therefore not preclude -
12.6.1 any transfer of any equity interest by Mvela Resources to a bona
fide nominee of Mvela Resources or from any such bona fide
nominee back to Mvela Resources or from any one such bona fide
nominee to any other such bona fide nominee, where there is no
change of beneficial ownership of the equity interest in
question;
12.6.2 any transfer of any equity interest by Mvela Resources to any
other company which is a wholly owned subsidiary of Mvela
Resources, provided that the transferee continues to be a wholly
owned subsidiary of Mvela Resources. Mvela Resources shall
continue to be bound by the provisions of this agreement and
undertakes that if the transferee, after having taken transfer of
the equity interest in question, ceases to be a wholly owned
subsidiary of Mvela Resources, it will prior to so ceasing
transfer all equity interest it may then be holding back to Mvela
Resources or its nominee in accordance with the requirements of
12.6.1.
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13 FUNDING
13.1 All funds which are required to finance the day to day operations and
activities of the GFI group shall be sourced, at the company's
election, from the GFI group's retained earnings and cash-flow, from
borrowings from third party financiers and from shareholders' loans on
terms no more onerous to the company than those upon which the amount
concerned can be borrowed from independent third party financiers.
13.2 The provisions of 13.1 shall apply until the subscription date.
13.3 For purposes of clarity and notwithstanding anything to the contrary
in this agreement, no company forming part of the Gold Fields group or
the Mvela Resources group shall be under any obligation to lend and
advance any amounts or otherwise provide any funding to any company
forming part of the GFI group.
13.4 It is recorded and agreed that the purchase price payable in terms of
the GF reorganisation agreement has been credited to special loan
accounts of the reorg sailers and of the other sellers under that
agreement against the company in the books of the company. After
application of the proceeds of the advance of the Mvela Gold loan
capital, a balance of approximately R550 000 000 shall still remain
owing on such loan accounts, which balance shall then be subject to
the following terms and conditions -
13.4.1 they bear interest at a market-related interest rate as
determined by an investment bank to be agreed between the parties
to the GF reorganisation agreement, and failing agreement between
them on the identify of such investment bank within ten business
days from the effective date thereof, then an investment bank
appointed by the chief executive for the time being of the South
African Institute of Chartered Accountants, acting as an expert
and not as an arbitrator and
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whose determination shall be final and binding on the parties
thereof;
13.4.2 the interest thereon shall, unless otherwise agreed, be
calculated and payable six-monthly in arrears;
13.4.3 they shall be repayable in whole or in part from time to time on
the giving of not less than twelve months (or a shorter period
agreed to by Mvela Resources) written notice; provided that they
shall immediately become due and payable on the happening of
either of the following -
13.4.3.1 the granting of an order, whether provisional or final,
placing the company under liquidation or judicial
management;
13.4.3.2 the company making a compromise offer in general to its
creditors;
13.4.4 to the extent that the company raises finance from any third
party, the company is obliged to apply such funds to
proportionally reduce those loan accounts.
14 GUARANTEES
14.1 No company forming part of the GFI group shall enter into any
undertaking, agreement, transaction, understanding or arrangement or
the like which requires any guarantee to be furnished by any company
("RELEVANT COMPANY") forming part of the Gold Fields group or the
Mvela Resources group unless (and then only to the extent) the
relevant company agrees thereto in writing in advance.
14.2 No company forming part of the Gold Fields group or the Mvela
Resources group shall be obliged to give any guarantee for the
obligations of any company forming part of the GFI group.
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15 REFERRAL OF OPPORTUNITIES
15.1 Gold Fields warrants and undertakes in favour of each of Mvela
Resources and Mvela Gold, and Mvela Resources warrants in favour of
Gold Fields that -
15.1.1 for so long as Gold Fields controls the company; and
15.1.2 for such period/s as Mvela Gold holds or beneficially owns the
empowerment interest or at least 10% of the issued equity share
capital of the company,
Gold Fields and Mvela Resources respectively will procure that, save
through the GFI group, none of the members of the Gold Fields group or
the Mvela Resources group respectively shall, save as otherwise stated
in this 15, directly or indirectly, acquire, invest in, acquire any
interest in, take advantage of, be concerned, engaged or interested in
or derive any benefit from, any person or opportunity which directly
or indirectly involves, includes, carries on, incorporates, comprises,
relates to, or is engaged, concerned or interested in, the gold mining
business (collectively, "OPPORTUNITY").
15.2 For purposes of this 15, "gold mining business" refers to -
15.2.1 the operation of gold mines and exploration for, and mining,
marketing and selling of, gold, in South Africa and all
activities comprised thereby or ancillary or analogous thereto;
and
15.2.2 any other activity or business in South Africa which is
substantially the same as any of the activities or the business
referred to in 15.2.1.
15.3 Upon Gold Fields or Mvela Resources ("FURNISHING PARTY") becoming
aware of an opportunity (and Gold Fields and Mvela Resources shall
procure that if any other member of the Gold Fields group or the Mvela
Resources group respectively becomes aware of an
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opportunity) it shall forthwith notify the other of them ("RECEIVING
PARTY") and the company in writing of the opportunity ("OPPORTUNITY
NOTICE") and furnish the receiving party and the company with all
information known by it in relation thereto (subject, to the extent
required, to signature of a confidentiality undertaking).
15.4 After receipt by the receiving party of the opportunity notice, the
parties shall procure that a meeting of the board is held as soon as
reasonably possible thereafter for purposes of considering whether the
company should investigate, evaluate, pursue and/or acquire the
opportunity.
15.5 If the board resolves that the company should investigate, evaluate,
pursue and/or acquire the opportunity then -
15.5.1 subject to any provision to the contrary in this 15, neither Gold
Fields nor Mvela Resources shall (and Gold Fields and Mvela
Resources shall procure that no other member of the Gold Fields
group and the Mvela Resources group respectively shall) itself
investigate, evaluate, pursue and/or acquire the opportunity; and
15.5.2 the stakeholders shall provide or procure the provision of all
assistance which the company may reasonably require in respect of
the investigation, evaluation, pursuance and/or acquisition of
the opportunity (at the company's cost).
15.6 Any resolution of the board referred to in 15.5 shall not be deemed to
constitute, or be construed as constituting, a binding undertaking of
any nature by the company in relation to the subject matter of such
opportunity other than an undertaking to endeavour, in good faith -
15.6.1 to reach agreement with the beneficial owners and holders of the
opportunity on the viability of the company exploiting such
opportunity; and
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15.6.2 if such agreement is reached, to reach agreement on the terms and
conditions upon which such opportunity is to be taken, acquired
or entered into.
Accordingly, the company shall not be obliged to agree to the
acquisition thereof or the investment therein nor shall any
stakeholder have the right to require the company to so agree. Failure
by the company to reach agreement as aforesaid shall, without
prejudice to Mvela Resources' rights under 15.7.1.1, not affect or
prejudice in any way any restriction on the investigation, evaluation,
pursuit and/or acquisition of an such opportunity which is imposed on
Gold Fields or Mvela Resources in terms of this 15.
15.7 Notwithstanding 15.5 and 15.6, Mvela Gold shall, if it is the -
15.7.1 furnishing party, be entitled (either itself or through another
member of the Mvela Resources group), to investigate, evaluate,
pursue and/or acquire an opportunity if -
15.7.1.1 the board resolves that the company should investigate,
evaluate, pursue and/or acquire the opportunity but
thereafter the company fails to unconditionally acquire the
opportunity within 360 days after the date of such board
resolution; or
15.7.1.2 the board -
15.7.1.2.1 resolves that the company should not investigate,
evaluate, pursue and/or acquire that opportunity; or
15.7.1.2.2 fails to hold a meeting of the board thereon or fails
to vote thereon within sixty days after the date upon
which Gold Fields receives the opportunity notice;
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15.7.2 receiving party, be entitled (either itself or through another
member of the Mvela Resources group) to investigate, evaluate,
pursue and/or acquire an opportunity if the board -
15.7.2.1 resolves that the company should not investigate, evaluate,
pursue and/or acquire that opportunity; or
15.7.2.2 fails to hold a meeting of the board thereon or fails to
vote thereon within sixty days after the date upon which
Gold Fields receives the opportunity notice.
15.3 Whether it is the furnishing shareholder or the receiving shareholder,
Gold Fields shall only be entitled to investigate, evaluate, pursue
and/or acquire opportunities through the company. Accordingly, Gold
Fields shall not be entitled to, and shall procure that no other
member of the Gold Fields group other than the company shall,
investigate, evaluate, pursue and/or acquire any opportunity (even if
the provisions of 15.7.1.1, 15.7.1.2.1 or 15.7.1.2.2 are applicable).
15.9 Each of Gold Fields and Mvela Resources acknowledges that -
15.9.1 the limitations imposed upon it in terms of this 15 are fair and
reasonable as to subject matter, area and duration and are
reasonably necessary to protect the proprietary interests of the
GFI group, the Gold Fields group and the Mvela Resources group
and to maintain the goodwill of the GFI group, the Gold Fields
group and the Mvela Resources group;
15.9.2 the provisions of this 15 shall be construed as imposing a
separate and independent limitation, severable from the rest of
them, in respect of -
15.9.2.1 each calendar month;
15.9.2.2 every locality falling within South Africa; and
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15.9.2.3 every activity falling within the ambit of the gold mining
business.
15.10 Nothing in this 15 shall preclude either Gold Fields or Mvela
Resources and/or any member of the respective groups of which they
form part from collectively acquiring -
15.10.1 an aggregate of not more than 5% of the issued equity share
capital of any person, the shares or other equity interests of
which are listed on a recognised stock exchange, even if it falls
within, or conducts any activity falling within, the gold mining
business; or
15.10.2 any asset which does not fall within the ambit of the gold mining
business.
16 DIVIDENDS AND OTHER DISTRIBUTIONS TO SHAREHOLDERS
16.1 Dividends, and other distributions shall be declared and made at the
discretion of, and at such rate and at such times as may be determined
by, the board from time to time; provided that -
16.1.1 Gold Fields and the company shall procure that each company
forming part of the GFI group shall manage its cash flows and
resources from time to time in a manner which is not likely to
materially adversely affect the financial position and/or
solvency of the GFI group;
16.1.2 Gold Fields and the company shall procure that GFI group
borrowings from time to time to finance dividends and other
distributions shall not exceed such levels as are likely to
materially adversely affect the financial position and/or
solvency of the GFI group.
16.2 The provisions of this 16 shall apply over the period/s in which Mvela
Gold holds or beneficially owns the empowerment interest or at least
10% of the issued equity share capital of the company.
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17 PARTIES' RIGHTS TO INFORMATION AND TO EXAMINE BOOKS AND ACCOUNTS
Gold Fields and the company shall procure that subject to the signature of
a confidentiality agreement on such terms as the company may reasonably
require -
17.1 the respective directors nominated by Gold Fields (on the one hand)
and Mvela Gold (on the other) are entitled to disclose to Gold Fields
and to Mvela Gold and Mvela Resources (respectively) all information
which they receive in their capacity as directors and to furnish Gold
Fields and each of Mvela Gold and Mvela Resources (respectively) with
copies of all documents containing any such information; and
17.2 each of Gold Fields, Mvela Gold and Mvela Resources is -
17.2.1 furnished, in such format and in such manner as it may
reasonably require from time to time, all such further
information concerning the affairs of any of the entities forming
part of the GFI group; and
17.2.2 entitled to examine all books, records and financial statements
of any of the entities forming part of the GFI group,
as it may reasonably require to protect, enforce, give effect to or
preserve its rights or interests under this agreement or any other
transaction document or in the GFI group.
18 INCREASES IN HDSA INTEREST IN THE GFI GROUP
18.1 Save under a bona-fide GFI group employee share incentive scheme, if
Gold Fields or the company wishes to increase the HDSA interest in
equity shares and/or other shares in the capital of the company and/or
in the equity or non-equity share capital of a subsidiary of the
company and/or in any business or assets of the GFI group
("ADDITIONAL HDSA INTEREST"), neither Gold Fields nor the company
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shall be entitled to do so (and Gold Fields and the company shall
procure that the subsidiary concerned shall not do so) unless Gold
Fields or the company (as the case may be) has first offered the
additional HDSA interest to Mvela Gold in writing ("HDSA OFFER"). The
HDSA offer shall -
18.1.1 be in writing;
18.1.2 be irrevocable and open for acceptance by Mvela Resources (or a
wholly-owned subsidiary of Mvela Resources selected by Mvela
Resources) ("MVELA RESOURCES GROUP MEMBER") for a period of fifty
days (or such other period as Gold Fields or the company, as the
case may be, and Mvela Resources may agree in writing) following
the date of receipt by Mvela Resources of the HDSA offer ("HDSA
OFFER PERIOD");
18.1.3 if 18.1.4 is not applicable, stipulate in writing all the
material terms and conditions upon which the additional HDSA
interest is offered to Mvela Resources;
18.1.4 if there is an offer by a bona fide third party to acquire the
additional HDSA interest ("THIRD PARTY OFFER"), furnish a copy of
the written or electronic third party offer or deliver a written
memorandum to Mvela Resources stipulating all the material terms
and conditions upon which the third party has verbally offered to
acquire the additional HDSA interest (on the basis that the
additional HDSA offer shall be deemed to be made on the terms and
conditions contained in the written or electronic offer or
written memorandum (as the case may be). The written or
electronic offer or written memorandum shall stipulate the name
of the third party (and, if it is agent, nominee or subsidiary of
another person, the name of that person);
18.1.5 be capable of acceptance only -
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18.1.5.1 in whole and not in part; and
18.1.5.2 by the Mvela Resources group member delivering written
notice to that effect to Gold Fields or the company, as the
case may be, within the HDSA offer period;
18.1.5.3 not be subject to any other term or condition except the
condition precedent ("CONDITION PRECEDENT") that all
regulatory approvals (if any) which are necessary for the
implementation of the transaction resulting from the
acceptance of the additional HDSA offer are obtained within
ninety days after the date of acceptance of the HDSA offer.
18.1.6 If Mvela Resources accepts the HDSA offer in whole and the
condition precedent is fulfilled within the time period
stipulated in 18.1.5.3, then the purchase price payable therefor
shall be paid by the Mvela Resources group member to Gold Fields
or the company, as the case may be, on the twentieth business day
after the later of the date of acceptance of the additional HDSA
offer and the date of fulfilment of the condition precedent at
the company's registered office, against delivery of the
additional HDSA interest, certificates or other evidence of
ownership of the additional HDSA interest and duly executed
transfer forms In respect thereof.
18.1.7 If Mvela Resources
18.1.7.1 does not accept the offer in whole; or
18.1.7.2 does accept the offer in whole but the condition precedent
is not fulfilled within the ninety day period stipulated in
18.1.5.3,
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then Gold Fields, the company and/or the subsidiary of the
company concerned (as the case may be) shall be entitled -
18.1.7.3 in the circumstances referred to in 18.1.7.1, within ninety
days after the earlier of the date upon which Mvela
Resources advises Gold Fields or the company (as the case
may be) in writing that it does not accept the HDSA offer
and the date of expiry of the HDSA offer period;
18.1.7.4 in the circumstances referred to in 18.1.7.2, within ninety
days after the expiry of the ninety day period referred to
in 18.1.5.3,
to issue and/or dispose of all (and not some only) of the is
additional HDSA interest to a bona fide third party at a xxxxx
not lower than that in the HDSA offer; provided that the is
material terms and conditions thereof are not more favourable to
such third party than any of the material terms and conditions of
the HDSA offer. If Gold Fields or the company, as the case may
be, does not unconditionally so issue, sell and/or cede the
additional HDSA interest to a bona fide third party within the
ninety day period stated in 18.1.7.3 or 18.1.7.4 (as the case may
be), all of the aforegoing provisions of this 18 shall apply de
novo to the additional HDSA interest.
18.2 The provisions of 18.1 shall apply for such period/s as Mvela Gold
holds or beneficialy owns the empowerment interest or at least 10% of
the issued equity share capital of the company.
18.3 This 18 constitutes a stipulation for the benefit of the Mvela
Resources group member, which may accept same at any time.
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19 DELISTING OF GOLD FIELDS
19.1 In order to enable Mvela Gold to realise its investment in the company
if the issued ordinary shares of Gold Fields are delisted, or are to
be delisted, from the JSE, Gold Fields shall procure the happening of
one of the following events or actions (for avoidance of doubt, Gold
Fields may at its election determine which it shall procure, which it
shall do by delivering written notice of its election ("ELECTION
NOTICE") to Mvela Resources within thirty days of the first public
announcement of the transactions which may result in such delisting) -
19.1.1 if an offer is made, a scheme of arrangement is proposed or any
other transaction is made, proposed or entered into which, if
implemented or accepted, will result in the delisting of Gold
fields' shares on the JSE (collectively "OUTSIDE OFFER") and the
shares of the offeror or proposer in terms of the outside offer
are listed on a recognised stock exchange on which Mvela
Resources is permitted to trade shares, Gold Fields shall procure
that, prior to the last date ("LDR") upon which a person must be
registered as a Gold Fields shareholder to participate in the
outside offer, the offeror or proposer delivers a notice to Mvela
Gold in which it undertakes in writing in favour of Mvela Gold to
assume all of Gold Fields' rights and obligations under this 19
and under the share exchange provisions in the Mvela Gold
subscription agreement and to timeously perform the obligations
so assumed. Without limiting the aforegoing, the written notice
from the offeror or proposer shall confirm that each reference to
Gold Fields in this 19 and in such share exchange provisions
shall be deemed to refer to the offeror or proposer and that the
implementation of the share exchange will result in the
acquisition by Mvela Gold of listed shares of the offeror or
proposer mutatis mutandis in accordance with the valuation
methodology; or
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19.1.2 Gold Fields shall procure that the repayment date is accelerated
to a date ("ACCELERATION DATE") prior to the LDR and that the
whole of the Mvela Gold loan capital (and all interest owing) is
paid to Mvela Gold on the acceleration date on the basis that and
such that -
19.1.2.1 Mvela Gold shall be obliged to subscribe for, and the
company shall be obliged to issue, the empowerment shares on
the acceleration date;
19.1.2.2 Mvela Gold's right to sell the empowerment shares to Gold
Fields in terms of the share exchange provisions contained
in the Mvela Gold subscription agreement shall be capable of
exercise, and Mvela Gold shall be entitled to require the
implementation thereof, on or after the acceleration date in
accordance with such share exchange provisions; and
19.1.2.3 the Gold Fields shares to which Mvela Gold is entitled in
terms of the share exchange provisions shall on the
acceleration date be capable of allotment, and issue, and on
the exercise of the share exchange provisions by Mvela Gold,
shall immediately be allotted and issued to, and registered
in the name of, Mvela Gold (on the basis that Mvela Gold
becomes a registered holder of Gold Fields shares prior to
the LDR); or
19.1.3 Gold Fields shall procure that within six months of the date upon
which the shares of Gold Fields are delisted from the JSE
("DELISTING DATE") that the issued equity shares of the company
are listed on the JSE; or
19.1.4 in the election notice, Gold Fields shall grant an option ("PUT
OPTION") to Mvela Gold to require, by giving written notice ("PUT
NOTICE") of at least ten days to Gold Fields to such effect, that
Gold Fields purchases Mvela Gold's equity shares and
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47
other shares in the capital of the company or the empowerment
interest (as the case may be) and its claims on loan account on
the terms and conditions stipulated in this 19.1.4. The put
option shall be subject to the following terms and conditions -
19.1.4.1 the price at which the option may be exercised ("PUT PRICE")
shall be the aggregate of the -
19.1.4.1.1 fair market value of the empowerment interest or Mvela
Gold's equity shares and other shares in the capital of
the company (as the case may be) determined mutatis
mutandis in accordance with 11.3.1.1 and 11.3.1.2, as
adjusted to take account of the principles contained in
the valuation methodology; and
19.1.4.1.2 face value of (plus all accrued but unpaid interest on)
Mvela Gold's claims on loan account;
19.1.4.2 the put option may only be exercised by Mvela Gold on one
occasion and within ninety days after the repayment date;
19.1.4.3 the put option may only be exercised in respect of all (and
not part of) Mvela Gold's equity shares and other shares in
the capital of the company or its empowerment interest and
the whole of its claims on loan account;
19.1.4.4 the sale agreement arising on the exercise of the put option
shall be subject to the obtaining by Mvela Gold of all
necessary regulatory approvals (at its cost);
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19.1.4.5 if the put option is exercised, the risk and benefit in
Mvela Gold's equity shares and other shares in the capital
of the company or its empowerment interest (as the case may
be) and its claims on loan account shall pass to Gold Fields
on the delivery date (as defined in 19.1.4.6.4.1);
19.1.4.6 subject to the transaction documents, Mvela Gold warrants in
favour of Gold Fields that, on the delivery date (as defined
in 19.1.4.6.4,1) -
19.1.4.6.1 it shall be entitled and able to give free and
encumbered title to its equity shares and other shares
in the capital of the company or its empowerment
interest (as the case may be) and its claims on loan
account;
19.1.4.6.2 it shall be the sole and beneficial owner of its equity
shares and other shares in the capital of the company
or its empowerment interest (as the case may be) and
Its claims on loan account;
19.1.4.6.3 no other person shall have any right or interest in or
to, or option or right of first refusal to acquire,
whether present or future, all or any of its equity
shares and other shares in the capital of the company
or its empowerment interest (as the case may be) and
Its claims on loan account;
19.1.4.6.4 should the put option be exercised and, if applicable,
all necessary regulatory approvals are obtained -
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19.1.4.6.4.1 Mvela Gold shall, on the third business day
("DELIVERY DATE") after the later of the date of
exercise of the put option and the date upon which
the regulatory approvals are obtained (if
applicable) against compliance by Gold Fields with
19.1.4.6.4.2, transfer its equity shares and other
shares in the capital of the company or its
empowerment interest to Gold Fields, and deliver
the relevant share certificates in respect of the
empowerment interest or its equity shares and
other shares in the capital of the company or its
empowerment interest (as the case may be) signed
and blank as to transferee, to Gold Fields and a
written cession of Mvela Gold's claims on loan
account;
19.1.4.6.4.2 Gold Fields shall, on the delivery date against
compliance by Mvela Gold with 19.1.4.6.4.1, pay
the put price to Mvela Gold.
19.2 If Gold Fields fails to deliver the election notice to Mvela Gold
within the thirty day period referred to in 19.1 or so delivers the
election notice but thereafter fails to -
19.2.1 procure a written undertaking in accordance with 19.1.1 by the
offeror or proposer in favour of Mvela Gold to assume Gold
Fields' rights and obligations under 19.1.1 prior to the LDR (if
Gold Fields elects to follow 19.1.1); or
19.2.2 procure the implementation of the provisions of 19.1.2 prior to
the LDR (if Gold Fields elects to follow 19.1.2); or
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19.2.3 procure the listing referred to in 19.1.3 within the six month
period referred to therein (if Gold Fields elects to follow
19.1.3),
then Gold Fields shall be deemed to have granted the put option to
Mvela Gold mutatis mutandis on the terms of 19.1.4.
19.3 The provisions of this 19 shall, notwithstanding 4 or any other
provision to the contrary in this agreement, continue until the
earlier of the -
19.3.1 date of implementation of the share exchange provisions contained
in clause 10 of the subscription agreement (ie, transfer of Mvela
Gold's shares in the company to Gold Fields and the allotment and
issue to, and registration in the name of, Mvela Gold of the Gold
Fields shares issued in exchange);
19.3.2 expiry of the "SHARE EXCHANGE PERIOD" (as defined in the Mvela
Gold subscription agreement) without the delivery of notice of
exercise of the share exchange provisions by Mvela Gold or Gold
Fields respectively;
19.3.3 listing date; provided that if the shares of the company are
thereafter delisted prior to the subscription date, Gold Fields
shall be deemed to have granted the put option to Mvela Gold
mutatis mutandis on the terms of 19.1.4.
20 CONFIDENTIALITY
For purposes of clarity, the provisions of the confidentiality agreement
shall, notwithstanding the cancellation or termination of this agreement
for any reason, continue to be of full force and effect and shall apply to
all "confidential information" and "confidential records" (as defined
therein), which shall, without limitation, be deemed to include the
existence and contents of this agreement. References in the confidentiality
agreement to -
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20.1 Mvela Resources shall be deemed to include Mvela Gold;
20.2 Gold Fields shall be deemed to include the company.
21 DISPUTES
21.1 Save as otherwise expressly provided in this agreement, any dispute of
whatever nature which arises between all or any of the parties out of
or in connection with this agreement including, without limitation,
any dispute in regard to -
21.1.1 the interpretation or effect of;
21.1.2 the existence, validity, enforceability or rectification (whether
in whole or in part) of;
21.1.3 the respective rights or obligations of all or any of the parties
under;
21.1.4 a breach including, without limitation, any breach regarding any
warranty or representation and/or the amount of compensation
payable or the actions (including specific performance) required
in order to remedy such breach of;
21.1.5 the termination or cancellation of; or
21.1.6 the materiality of any matter referred to in,
this agreement (collectively referred to hereinafter as a "DISPUTE")
shall be dealt with in accordance with the succeeding provisions of
this 21. The parties to the dispute shall use all reasonable
endeavours to resolve such dispute as amicably and expeditiously as
possible. The parties furthermore acknowledge and agree that, save as
otherwise expressly provided in this agreement, the provisions of
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this 21 constitute the sole and exclusive remedies of the parties to
resolve any dispute.
21.2 If a dispute arises, then the following procedure shall be followed -
21.2.1 written notice of such dispute ("dISPUTE NOTICE") shall be given
by a party to all the directors. The board shall, as soon as
possible but in any event within ten business days after receipt
by all the directors of the dispute notice, constitute a dispute
committee on which Gold Fields and Mvela Resources shall be
equally represented ("DISPUTE COMMITTEE"). The dispute committee
shall meet as soon as possible but in any event by not later than
ten business days after the constitution thereof, in order to
attempt to negotiate an amicable settlement of such dispute. Such
meeting shall be held at such time and place as is determined by
the dispute committee or, failing such determination by 17:00 on
the last business day of the aforementioned ten business day
period, at the registered office of the company. Such meeting
shall be conducted in good faith;
21.2.2 if the dispute committee does not meet within the applicable ten
business day period referred to in 21.2.1 or if it does meet but
is unable to resolve the dispute within ten business days of the
commencement of such meeting (or within such further period as
the representatives on the dispute committee may agree), then the
company secretary shall forthwith give written notice that such
dispute has arisen to the respective chief executive officers of
Gold Fields and Mvela Resources ("CHIEF EXECUTIVE OFFICERS"), if
the company secretary fails to give such notice for any reason,
then Gold Fields or Mvela Resources shall be entitled to give
such notice to the chief executive officers;
21.2.3 the chief executive officers shall meet as soon as possible after
receipt of the written notice referred to in 21.2.2 in order
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to attempt to negotiate an amicable settlement of such dispute.
Such meeting shall be held at such time and place as is agreed
upon by the chief executive officers or, failing such agreement
by 17:00 on the tenth business day after receipt by each of them
of the written notice referred to in 21.2.2, at the registered
office of the company at 17:00 on the tenth business day after
receipt by each of them of such notice. Such negotiations shall
be conducted in good faith;
21.2.4 if the chief executive officers do not meet within the applicable
ten business day period referred to in 21.2.3 or if they do meet
but are unable to resolve the dispute within ten business days
after the commencement of such meeting (or within such further
period as they may agree), then the dispute shall be referred to
and finally resolved in accordance with the rules of AFSA by an
arbitrator or arbitrators appointed by AFSA. There shall be a
right of appeal as provided for in rule 22 of such rules. For the
purposes of 21.3 and for the purposes of having any award made by
the arbitrator/s being made an order of court, each of the
parties hereby submits itself to the non-exclusive jurisdiction
of Witwatersrand Local Division of the High Court of South
Africa.
21.3 Notwithstanding anything to the contrary contained in this 21, any
party shall be entitled to apply for, and if successful, be granted,
an interdict from any competent court having jurisdiction.
21.4 This 21 is severable from the rest of this agreement and shall remain
in full force and effect notwithstanding any termination of this
agreement.
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22 CO-OPERATION
The parties undertake to -
22.1 exercise good faith in their dealings with each other in regard to all
matters relating to the GFI group and in carrying out and giving
effect to the provisions of this agreement;
22.2 exercise all their voting rights at meetings of shareholders and to
use their reasonable commercial endeavours to procure that their
respective nominees to the board exercise their voting rights at
meetings of the board and the boards of directors of companies forming
part of the GFI group in such manner as may be required from time to
time to carry out and give effect to the provisions of this agreement
and the transaction documents; and
22.3 do or to use their reasonable commercial endeavours to procure the
doing by other entities or persons, and to refrain from doing or use
their reasonable endeavours to procure that other persons refrain from
doing, all acts and to pass or to use their reasonable commercial
endeavours to procure the passing of all resolutions of directors or
shareholders or of any other decision making body or entity forming
part of the group which may be required to give effect to the terms of
this agreement.
23 DOMICILIUM AND NOTICES
23.1 The parties choose domicilium citandi et executandi ("DOMICILIUM") for
all purposes relating to this agreement, including without limitation
the giving of any notice, the payment of any sum or the serving of any
process, as follows -
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23.1.1 Gold Fields physical 00 Xx. Xxxxxxx Xxxx
Xxxxxxxx
facsimile (011)484-5342
(marked : Attention : The Company
Secretary")
23.1.2 Mvela Resources physical First Floor
and Mvela Gold South Wing
0 Xxxxxx Xxxx
Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxxxxxx
0000
facsimile (011)325-5320
(marked : Attention : The Company
Secretary")
23.1.3 company physical and sent c/o Gold Fields and
facsimile Mvela Resources to the
physical addresses or
facsimile numbers (as the
case may be) in each of
23.1.1 and 23.1.2
23.2 Any party shall be entitled from time to time, by giving written
notice to the others, to vary its physical domicilium to any other
physical address (not being a post office box or poste restante)
within South Africa and to vary its facsimile domicilium to any other
facsimile number.
23.3 Any notice given or payment made by any party to another ("ADDRESSEE")
which is delivered by hand between the hours of 09:00 and 17:00 on any
business day to the addressee's physical domicilium for the time being
shall be deemed to have been received by the addressee at the time of
delivery.
23.4 Any notice given by any party to another which is successfully
transmitted by facsimile to the addressee's facsimile domicilium for
the time being shall be deemed (unless the contrary is proved by the
addressee) to have been received by the addressee on the business
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day immediately succeeding the date of successful transmission
thereof.
23.5 This 23 shall not operate so as to invalidate the giving or receipt of
any written notice which is actually received by the addressee other
than by a method referred to in this 23.
23.6 Any notice in terms of or in connection with this agreement shall be
valid and effective only if in writing and if received or deemed to be
received by the addressee.
24 RELATIONSHIP OF THE PARTIES
No party shall be entitled or empowered to represent or hold out to any
third party that the relationship between them is that of a partnership or
the like or that it has the right to bind, represent or act for any other
party.
25 BREACH
Should any party ("BREACHING PARTY") breach any provision of this agreement
and fail to remedy such breach within twenty one days after receiving
written notice requiring it to do so from any party ("AGGRIEVED PARTY")
aggrieved thereby, then the breaching party shall be entitled, without
prejudice to its other rights in law including any right to claim damages,
to claim immediate specific performance.
26 CANCELLATION
Notwithstanding anything to the contrary in this agreement, the agreement
may not be cancelled for any reason whatsoever save by mutual written
agreement between the parties.
27 GENERAL
27.1 Subject to 20, this agreement (read with the transaction documents)
constitutes the sole record of the agreement between the parties in
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relation to the subject matter hereof. No party shall be bound by any
express, tacit or implied term, representation, warranty, promise or
the like not recorded herein. This agreement supersedes and replaces
all prior commitments, undertakings or representations, whether oral
or written, between the parties in respect of the subject matter
hereof.
27.2 No addition to, variation, novation or agreed cancellation of any
provision of this agreement shall be binding upon the parties unless
reduced to writing and signed by or on behalf of the parties.
27.3 No indulgence or extension of time which any party ("GRANTOR") may
grant to any other shall constitute a waiver of or, whether by
estoppel or otherwise, limit any of the existing or future rights of
the grantor in terms hereof, save in the event and to the extent that
the grantor has signed a written document expressly waiving or
limiting such right.
27.4 Without prejudice to any other provision of this agreement, any
successor-in-title, including any heir, liquidator, judicial manager,
curator or trustee, of any party shall be bound by this agreement.
27.5 The signature by any party of a counterpart of this agreement shall be
as effective as if that party had signed the same document as all of
the other parties.
27.6 Save as expressly provided for herein, no party shall be entitled to
cede, assign, transfer, encumber or delegate any of its rights,
obligation and/or interest in, under or in terms of this agreement to
any third party without the prior written consent of all the other
parties.
27.7 Wherever in this agreement (other than 1.2.67, 10.2.1.1 and 27.8) the
consent or approval of a party is required, that consent or approval
shall not be unreasonably withheld.
27.8 The parties hereby irrevocably and unconditionally agree that the
provisions of the GFl articles (on terms and conditions approved in
writing by Gold Fields and Mvela Resources prior to the adoption
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58
thereof) constitute stipulations for the benefit of Mvela Gold. Mvela
Gold hereby accepts such stipulations.
28 COSTS
Each party shall bear and pay its own costs of and incidental to the
negotiation, drafting and execution of this agreement.
Signed at JOHANNESBURG on 26 NOVEMBER 2003
for Gold Fields Limited
---------------------------------
who warrants that he is duly
authorised hereto
Signed at JOHANNESBURG on 26 NOVEMBER 2003
for Mvelaphanda Resources Limited
---------------------------------
who warrants that he is duly
authorised hereto
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59
Signed at JOHANNESBURG on 26 NOVEMBER 2003
for Lexshell 579 Investments (Proprietary)
Limited
---------------------------------
who warrants that he is duly
authorised hereto
Signed at JOHANNESBURG on 26 NOVEMBER 2003
for Newshelf 706 Limited
---------------------------------
who warrants that he is duly
authorised hereto
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