EXHIBIT 4.47
MANAGEMENT SERVICES AGREEMENT
between
DURBAN ROODEPOORT DEEP LIMITED
(REGISTRATION NO. 1895/000926/06)
("DRD")
and
KHUMO BATHONG HOLDINGS (PTY) LIMITED
(REGISTRATION NO. 1998/007546/07)
("KBH")
and
CROWN GOLD RECOVERIES (PTY) LTD
(REGISTRATION NO. 88/05115/07)
("CROWN")
WHEREAS Crown and DRD entered into a services agreement on 4 May 2000 and wish
to amend the terms and conditions thereof.
AND WHEREAS Crown, DRD and KBH agree to the following new terms and conditions
of the services agreement.
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1. DURATION
1.1 This agreement shall commence on 1 July 2002 and endure for an
initial fixed period of 12 (twelve) months, whereafter it will
be automatically renewed for further annual periods until
terminated either:
1.1.1 by any party on 3 (three) months written notice given
prior to the expiry of any annual period;
or
1.1.2 upon the final cessation by Crown of mining and related
activities (including, in amplification and not in
limitation, reclamation and dump recovery operations and
the like, realisation of assets).
1.2 Prior to each annual renewal date, DRD and KBH agree to review
the specific services and remuneration charges for the following
year.
2. NOW THEREFORE IT IS AGREED:
2.1 That DRD and KBH shall provide to Crown the services set out in
paragraph 3, for which they will be remunerated on the basis of
this agreement.
2.2 Crown acknowledges that it is aware that DRD acts in the same or
similar capacity for other companies and agrees that DRD shall
be entitled to continue to do so and, accordingly, that the
services will not be available to Crown on an exclusive
full-time basis.
3. SPECIFIC SERVICES TO BE RENDERED
DRD and KBH shall provide Crown with the following specific services:
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DRD KBH
--- ---
3.1 Executive services Executive services
(2 Executives) (1 Executive)
3.2 Financial management
3.3 Gold administration and hedging
3.4 Engineering services
3.5 Metallurgical services
3.6 Public relations services
3.7 Mineral resource services
3.8 Critical equipment pool services
3.9 Human resources strategic direction Human resources strategic
direction
3.10 Industrial relations, training Industrial relations, training
3.11 Legal services Legal services
3.12 Environmental services
3.13 Payroll administration and consultation
3.14 Contracts and insurance services
3.15 Secretarial services
3.16 Treasury services.
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4. REMUNERATION CHARGE
4.1 The monthly charge payable by Crown to DRD and KBH for the
specific services rendered and to be rendered by DRD and KBH to
Crown in terms of the agreement shall be:
R700 000 (seven hundred thousand Rand) per month to DRD
R300 000 (three hundred thousand Rand) per month to KBH.
4.2 The charge for each month shall be payable monthly in arrears on
the last working day of each month. The amounts payable as per
4.1 are exclusive of VAT.
4.3 Should Crown request DRD or KBH to provide:
4.3.1 services other than those specifically set out in
paragraph 3; or
4.3.2 services which may fall within the general categories
set out in paragraph 3 but which go beyond those
required in the ordinary and normal course of Crown's
business or are of an extraordinary nature, then the
fees payable to DRD or KBH shall be that amount as may
be agreed upon between DRD or KBH and Crown when those
services are requested.
5. LIMITATION OF LIABILITY
Neither DRD nor KBH nor their directors or employees shall be
responsible for any liability, loss or damage suffered or incurred by
Crown, its employees, agents, contractors, invitees, guests or any other
persons whosoever, whether or not such liability, loss or damage is
caused or incurred through or as a result of any act or omission or the
negligence of DRD or KBH, their employees or agents, or otherwise
howsoever, and Crown hereby indemnifies and holds harmless DRD or KBH
against any claim by any such employee, agent, contractor, invitee,
guest or other person and all legal costs which may be incurred by or
awarded against DRD or KBH in respect of or arising out of such claim.
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6. FORCE MAJEURE
6.1 If either DRD or KBH is rendered unable, wholly or in part, by
"force majeure" to carry out any obligation under this
agreement, DRD or KBH shall give prompt notice to Crown of such
force majeure with full particulars thereof and insofar as known
the probable extent to which it will be unable to perform or be
delayed in performing such obligation, whereupon such obligation
of DRD or KBH shall be suspended so far as it is affected by
such force majeure during but not longer than the continuance
thereof. In the event of a substantial and material portion of
the obligations of DRD or KBH being so suspended for a period
exceeding 6 (six) months, either party shall be entitled to
terminate this agreement upon 30 (thirty) days' written notice.
6.2 For the purpose of 6.1, "force majeure" shall mean an act of
God, strike, lock-out, act of public enemy, war (declared or
undeclared), blockade, revolution, riot, insurrection, civil
commotion, lightning, fire, storm, flood, explosion,
governmental act or restraint, embargo, unavailability of
equipment or transport and other cause whether of a kind
specifically set out above or otherwise, which is not reasonably
within the control of DRD or KBH and whether of a temporary or
permanent nature.
7. ARBITRATION
7.1 Any dispute arising out of this Agreement or the interpretation
thereof, both while in force and after its termination, shall be
submitted to and determined by arbitration. Any party may demand
arbitration by notice in writing to the other parties. Such
arbitration shall be held in Johannesburg unless otherwise
agreed to in writing and shall be held in summary manner with a
view to it being completed as soon as possible.
7.2 There shall be 1 (one) arbitrator who shall be, where the
question and issue is:
7.2.1 primarily an accounting matter, an independent chartered
accountant of 10 (ten) years standing;
7.2.2 primarily a legal matter, a practising Senior Counsel;
or
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7.2.3 primarily a technical matter, a suitably qualified
person.
7.3 The appointment of the arbitrator shall be agreed upon between
the parties in writing but, failing agreement between them,
within a period of 14 (fourteen) days after the arbitration has
been demanded in terms of clause 7.1, any party shall be
entitled to request the President for the time being of the Law
Society of the Northern Provinces to make the appointment and,
in making his appointment, to have regard to the nature of the
dispute.
7.4 The arbitrator shall have the powers conferred upon an
arbitrator under the Arbitration Act, 1965 (as amended) but
shall not be obliged to follow the procedures prescribed in that
Act and shall be entitled to decide on such procedures as he may
consider desirable for the speedy determination of the dispute,
and in particular, he shall have the sole and absolute
discretion to determine whether and to what extent it shall be
necessary to file pleadings, make discovery of documents or hear
oral evidence.
7.5 the decision of the arbitrator shall be final and binding on the
parties and may be made an order of any court of competent
jurisdiction. The parties hereby submit themselves to the
non-exclusive jurisdiction of the Witwatersrand Local Division
of the High Court of South Africa, or any successor thereto,
should any Party wish to make the arbitrator's decision an order
of that Court.
8. DOMICILIA
The parties choose as their respective DOMICILIA CITANDI ET EXECUTANDI
for all purposes connected with this agreement, the following addresses,
namely:
8.1 DRD: Physical Address: DRD Building
45 Empire Road
Parktown
Johannesburg
Postal Address: P O Xxx 000
Xxxxxxxxxx, 0000
Fax no: 482-1022
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8.2 KBH: Physical Address: ERPM Main Office
Corner Main Reef and Pretoria Roads
Boksburg
Postal Address: P O Box 11200
Rynfield
Benoni 1514
Fax no: 917-2542
8.3 Crown: Physical Address: Off Crownwood Road
Crown Mines
Postal Address: Private Bag X9
Crown Mines 2025
Fax no: 835-2922
9. CONFIDENTIALITY
9.1 No party shall make any announcement or statement regarding this
agreement or its content without first having obtained the
others' approval and prior written consent to such announcement
or statement and its terms.
9.2 The provisions of 9.1 shall not apply in respect of any
announcement or statement which any of the parties is legally
obliged to make by virtue of its shares being listed on either
the JSE Securities Exchange, South Africa or any other exchange,
provided that the party concerned shall consult with the other
parties prior to making any announcement or statement
contemplated in this clause 9.2.
9.3 No party to this agreement shall disclose the contents of this
agreement to any person other than its bankers and to those of
its employees who need to have such knowledge for the proper
performance of their duties.
SIGNED at Johannesburg on this 30th day of August 2002.
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For: DURBAN ROODEPOORT DEEP, LIMITED
/s/ Xxxx Wellesley-Wood
--------------------------------------
Director
SIGNED at Johannesburg on this 1st day of October 2002.
For: KHUMO BATHONG HOLDINGS (PTY) LIMITED
/s/ M.P.M. Ncholo
--------------------------------------
Director
SIGNED at Johannesburg on this the 26th day of September 2002.
For: CROWN GOLD RECOVERIES (PTY) LTD
/s/ M.P. Ncholo
--------------------------------------
Director
[LAST SIGNED ON 1 OCTOBER 2002]
