EXHIBIT 4.64
STRICTLY CONFIDENTIAL
[insert graphic here]
AGREEMENT
BETWEEN
DURBAN ROODEPOORT DEEP LIMITED
AND
XXXXXXX XXXX XXXXXXX XXXXXXXX
AGREEMENT:-DJM BLACKMUR
CONTENTS
1. DEFINITIONS .......................................................................... 1
2. APPOINTMENT/EMPLOYMENT ............................................................... 4
3. DUTIES ............................................................................... 4
4. DIRECTORS' FEES ...................................................................... 5
5. INSURANCE COVER ...................................................................... 6
6. DISPUTES ............................................................................. 7
7. APPLICATION OF PROVISIONS OF COMPANY PROCEDURES ...................................... 8
8. TERMINATION .......................................................................... 8
9. ELIGIBLE TRANSACTION ................................................................. 9
10. THE RIGHT OF THE NON-EXECUTIVE TO TERMINATE THIS AGREEMENT FOR AN
ELIGIBLE TRANSACTION ................................................................. 9
11. ELIGIBLE TERMINATION ................................................................. 10
12. BENEFITS PAYABLE FOR AN ELIGIBLE TERMINATION ......................................... 10
13. SHARE OPTION SCHEME PROVISIONS ....................................................... 11
14. THE RIGHT OF THE COMPANY TO ASSIGN THIS AGREEMENT .................................... 11
15. GENERAL .............................................................................. 11
16. DOMICILIUM CITANDI ET EXECUTANDI ..................................................... 12
AGREEMENT:-DJM BLACKMUR
AGREEMENT
BETWEEN
DURBAN ROODEPOORT DEEP LIMITED
(A COMPANY DULY INCORPORATED UNDER THE COMPANIES ACT, 1973,
REGISTRATION NUMBER 1901/00926/06)
(HEREINAFTER CALLED "THE COMPANY")
AND
XXXXXXX XXXX XXXXXXX XXXXXXXX
(IDENTITY NUMBER 9564938 AUSTRALIAN PASSPORT)
(HEREINAFTER CALLED 'THE NON EXECUTIVE")
PREAMBLE
THE NON-EXECUTIVE and THE COMPANY wish to enter into an agreement to regulate
the relationship between THE NON-EXECUTIVE and THE COMPANY.
NOW THEREFORE THE PARTIES AGREE THAT:-
1. DEFINITIONS
For the purposes of this Agreement and the preamble above, unless the
context requires otherwise:
1.1 "Auditors" Means the auditors of THE COMPANY for the
time being;
1.2 "Board" Means the board of directors of THE COMPANY
for the time being;
AGREEMENT:-DJM BLACKMUR
1.3 "Business" Means the business of the Group of mining
and exploration of gold and other minerals
and metals;
1.4 "Closing Date" In relation to an Eligible Transaction,
means the date on which the Eligible
Transaction, having become wholly
unconditional, is actually carried into
effect and implemented in accordance with
its terms so that the Eligible Transaction
ceases to be executory;
1.5 "Code" Means the Securities Regulation Code
promulgated in terms of section 440(C)(5)
of the Companies Act;
1.6 "Commencement Date" Means the 21ST OF OCTOBER 2003;
1.7 "Companies Act" Means the Companies Act, 1973 (as amended);
1.8 "Articles" Means the articles of association of THE
COMPANY for the time being;
1.9 "the Company" Means Durban Roodepoort Deep, Limited, a
company duly incorporated under the
Companies Xxx, 0000, registration number
1901/00926/06;
1.10 "Confidential Information" Means all information which may be imparted
in confidence or is of a confidential
nature relating to the Group, including
without being limited to business plans,
trade secrets, financial information,
technical information and/or commercial
information;
1.11 "Documents" Means documents of any nature, including
disks, notebooks, tapes or any other
medium, whether or not eye-readable, on
which information may be recorded from time
to time;
1.12 "Eligible Termination" Means a termination of this Agreement as
contemplated in clause 11;
1.13 "Eligible Transaction"" Means an "Eligible Transaction" as defined
in clause 9;
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AGREEMENT:-DJM BLACKMUR
1.14 "the NON-EXECUTIVE" Means XXXXXXX XXXX XXXXXXX XXXXXXXX with
Identity Number AUSTRALIAN PASSPORT
9564938;
1.15 "Financial Year" Means the financial year of THE COMPANY as
determined by it from time to time;
1.16 "Group Life Assurance Scheme" Means the "Group Life Assurance Scheme" as
defined in clause 5;
1.17 "Labour Laws" Means the Labour Relations Act, 1995 and
the Basic Conditions of Employment Act,
1997, as amended from time to time, and the
South African common law;
1.18 "Group" Means THE COMPANY and all its Subsidiaries;
1.19 "Parties" Means the Parties to this Agreement;
1.20 "Directors' Fees" In relation to each year, the aggregate of
all amounts payable by THE COMPANY to and
on behalf of THE NON-EXECUTIVE for the
calendar year in question as a fee for all
the services rendered by THE NON-EXECUTIVE
to THE COMPANY and the Group during the
calendar year in question as is more fully
set out in Clause 4;
1.21 "Review Date" Means 1 July of each year;
1.22 "Share Option Scheme" Means the Durban Roodepoort Deep (1996)
Share Option Scheme or any other scheme of
the same or similar kind in which THE
NON-EXECUTIVE is an eligible participant;
1.23 "Subsidiary" Shall have the meaning assigned to it in
the Companies Act, 1973;
1.24 "Termination Effective Date" Means the date on which this Agreement
terminates pursuant to an Eligible
Termination; and
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AGREEMENT:-DJM BLACKMUR
1.25 "this Agreement" Includes all its Appendices, which shall
form part of it.
2. APPOINTMENT/EMPLOYMENT
2.1 THE NON-EXECUTIVE is appointed as a NON-EXECUTIVE DIRECTOR.
2.2 Notwithstanding the date of signature of the Agreement, this Agreement
shall be deemed to have commenced on the Commencement Date.
2.3 Subject to the other provisions of this Agreement, the Companies Act
and the Articles, shall continue for an indefinite period until
terminated by either party on not less than 3 (three) months' prior
written notice.
3. DUTIES
3.1 THE NON-EXECUTIVE shall:-
3.1.1 carry out such duties and exercise such powers in relation to THE COMPANY
and the Group as the Board shall from time to time assign to or vest in
him/her;
3.1.2 in the discharge of such duties and in the exercise of such powers
referred to in clause 3.1.1, observe and comply with all rules,
regulations and policies of THE COMPANY;
3.1.3 use his/her reasonable endeavours properly to conduct, improve, extend,
develop, promote, protect and preserve the business interests, reputation
and goodwill of THE COMPANY and the Group and not do anything which is
harmful to it; and
3.1.4 carry out his/her obligations as a director in terms of the Companies Act
and the Articles.
3.2 It is specifically recorded and agreed that due to the changing nature of
the Group and the evolving nature of its business interests, it may be
necessary to assign additional duties to THE NON-EXECUTIVE as envisaged in
clause 3.1 above or to re-assign those duties from THE NON-EXECUTIVE to
other persons from time to time and to add to and delete responsibilities
of THE NON-EXECUTIVE from time to time. The Parties agree that this
flexible work requirement is part of the Agreement and amendments as
envisaged can be made within the terms of the Agreement without
constituting a breach.
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AGREEMENT:-DJM BLACKMUR
3.3 THE NON-EXECUTIVE shall not, use or disclose or attempt to use or disclose
to any third parties any Confidential Information.
3.4 THE NON-EXECUTIVE shall promptly whenever so requested by THE COMPANY and,
in any event, upon the termination of his/her appointment with THE
COMPANY, deliver to THE COMPANY all lists of clients or customers,
correspondence and all other documents, papers and records which may have
been prepared by him/her or have come into his possession in the course of
his/her affiliation with THE COMPANY, and THE NON-EXECUTIVE shall not be
entitled to and shall not retain any copies thereof. THE NON-EXECUTIVE
acknowledges that all title and copyright in the Confidential Information
and Documents shall vest in THE COMPANY.
3.5 Notwithstanding the provisions of this Clause 3, the parties agree with
each other than THE NON-EXECUTIVE is not an employee of THE COMPANY and
THE NON-EXECUTIVE shall, accordingly, not be bound to render exclusive
services to THE COMPANY.
4. DIRECTORS' FEES
4.1 THE NON-EXECUTIVE shall, with effect from the Commencement Date, be
entitled to a gross all-inclusive directors' fee of $US 24,000 (TWENTY
FOUR THOUSAND UNITED STATES DOLLARS) per annum, for all the services to be
rendered by him/her in terms of this Agreement.
4.2 The directors' fees will be reviewed annually on the Review Date, the
first review being on 1 JULY 2004.
4.3 The directors' fees Package referred to in clause 4.1 above, includes any
allowance that THE NON-EXECUTIVE may choose to structure as part of
his/her all-inclusive remuneration package in accordance with the policies
of THE COMPANY from time to time and as agreed with THE COMPANY from time
to time, including any business travel in a private vehicle.
4.4 The directors' fees referred to in Clause 4.1 above, excludes all
allowances for entertainment, travel, subsistence and accommodation to
which THE NON-EXECUTIVE is entitled in accordance with the policies of THE
COMPANY from time to time and as agreed with THE COMPANY from time to
time.
4.5 Notwithstanding anything to the contrary, the payment by THE COMPANY of
the premiums on behalf of THE NON-EXECUTIVE for the Group Life Assurance
Scheme and the payment by
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AGREEMENT:-DJM BLACKMUR
THE COMPANY of the Share Option Scheme for any of the share options to
which THE NON-EXECUTIVE is entitled in terms of clause 9 and 13 shall not
constitute part of the directors' fees.
4.6 THE NON-EXECUTIVE shall be entitled to use any travel miles allocated on
any business credit cards and flying membership cards issued to him/her by
THE COMPANY for his/her family and personal use.
4.7 THE COMPANY will require THE NON-EXECUTIVE to undergo a medical
examination at the cost of THE COMPANY on an annual basis and THE
NON-EXECUTIVE agrees to give effect to this requirement.
4.8 The date of payment of the salary portion of the directors' fees of THE
NON-EXECUTIVE shall be the 25th day of each calendar month.
5. INSURANCE COVER
5.1 THE COMPANY undertakes to pay on the behalf of THE NON-EXECUTIVE the
premiums payable by THE NON-EXECUTIVE under the Group Life Assurance
Scheme of THE COMPANY which, as at the Commencement Date, is provided by
Sanlam. The Life Assurance cover for THE NON-EXECUTIVE will be an amount
equivalent to 2 (two) years directors' fees of THE NON-EXECUTIVE.
5.2 THE COMPANY will apply and maintain a reasonable level of Directors and
Officers Liability Insurance, with THE NON-EXECUTIVE covered as an insured
and THE COMPANY will maintain, at its expense, the same cover for THE
NON-EXECUTIVE for a period of 7 (seven) years after termination of this
Agreement.
5.3 THE COMPANY undertakes:-
5.3.1 in the event of THE NON-EXECUTIVE not being a xxxxxxx as defined in the
Compensation for Occupational Injuries and Diseases Act 130 of 1993 (as
amended), to insure THE NON-EXECUTIVE with the Rand Mutual Assurance
Limited or any other insurance company against risk, death, permanent
disablement or temporary disablement caused by an accident arising out of
and in the course of his/her employment; and
5.3.2 to keep the policy of insurance referred to in clause 5.3.1 in force and
pay the premiums thereon on time, and THE NON-EXECUTIVE agrees that the
amount payable under the said policy of
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AGREEMENT:-DJM BLACKMUR
insurance shall be taken and deemed to be and represent the total and
entire claim, demand and right of action of THE NON-EXECUTIVE, his/her
executors or administrators or legal representatives or assigns against
THE COMPANY or its NON-EXECUTIVE's for damages or compensation for injury
suffered by THE NON-EXECUTIVE as a result of the negligence of THE COMPANY
or its NON-EXECUTIVE's or otherwise and the payment of the said
compensation in terms of the said policy of insurance shall free and
discharge any claim or liability in respect of THE COMPANY and its
NON-EXECUTIVE's of and from all and any claim of liability in respect of
such injury, and to waive any right of claiming on THE COMPANY or its
NON-EXECUTIVE's for any compensation other than that which he/she is
entitled to recover under the said policy of insurance effected by THE
COMPANY.
6. DISPUTES
6.1 In the event that any dispute arises out of the interpretation,
application or termination of this Agreement or in the event that any
dispute arises out of any alleged unfair dismissal or unfair labour
practice as defined in the Labour Laws, the Parties shall refer such
dispute to private arbitration in accordance with the provisions of clause
6.2.
6.2 The arbitration shall be conducted by an arbitrator selected by agreement
from the panel of arbitrators of AMSSA (The Arbitration and Mediation
Services of South Africa) or the labour panel of AFSA (Arbitration
Foundation of Southern Africa). The date of the arbitration will be
mutually agreed upon by the Parties. In the event that the Parties are
unable to mutually agree upon the arbitrator and a date for the
arbitration within 10 (ten) days of the dispute arising, then the director
of AMSSA will be asked to appoint a suitable arbitrator and nominate a
date for the hearing of the arbitration.
6.3 The arbitrator will be entitled to determine the appropriate procedure for
determining the dispute.
6.4 The costs of the arbitrator will be borne equally by THE NON-EXECUTIVE and
THE COMPANY.
6.5 The finding of the arbitrator will be final and binding on the Parties.
6.6 The Parties record that:-
6.6.1 it is the desire of both parties that any dispute which may arise as
envisaged in clause 6.1 is to be determined by private arbitration;
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AGREEMENT:-DJM BLACKMUR
6.6.2 neither party will refer any such dispute to arbitration or adjudication
before the CCMA; and
6.6.3 the jurisdiction of the CCMA to adjudicate any such dispute is by mutual
agreement between the parties expressly concluded.
7. APPLICATION OF PROVISIONS OF COMPANY PROCEDURES
7.1 THE NON-EXECUTIVE's entitlement to any benefit other than those recorded
in this Agreement shall be governed by the appropriate Company procedure
manuals of THE COMPANY for the time being.
7.2 THE COMPANY is entitled from time to time to amend the terms and
conditions of its company procedure manuals.
7.3 In the event of a conflict between the provisions of company procedure
manuals and the provisions of this Agreement, the provisions of this
Agreement shall prevail.
8. TERMINATION
8.1 Notwithstanding any provision to the contrary, this Agreement may be
terminated by THE COMPANY with or without notice if THE NON-EXECUTIVE:-
8.1.1 commits any serious and/or persistent breach of any of the provisions
contained in this Agreement;
8.1.2 is found guilty of theft, fraud or any gross irregularities; or
8.1.3 is found guilty of gross misconduct or wilful neglect in the discharge of
his/her duties.
8.2 If THE NON-EXECUTIVE:-
8.2.1 resigns as an NON-EXECUTIVE of THE COMPANY, this Agreement may be
terminated by THE COMPANY and the normal rules of resignation applicable
to NON-EXECUTIVE's of THE COMPANY will apply;
8.2.2 is sequestrated, this Agreement shall be terminated by THE COMPANY and the
normal rules of THE COMPANY applicable to retrenchments will apply; or
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AGREEMENT:-DJM BLACKMUR
8.2.3 dies, this Agreement may be terminated subject to the provisions of clause
9 and any other applicable provision of this Agreement.
8.3 THE COMPANY's right to terminate this Agreement shall be subject to the
applicable provisions in the Labour Laws as may apply from time to time.
9. ELIGIBLE TRANSACTION
For the purposes of this Agreement an "Eligible Transaction" means any
agreement, including any agreement forming part of a series of other
agreements, which either by itself or together with any of the other
agreements, constitutes or results in a transaction involving a change of
control of THE COMPANY, of a kind which falls within the ambit of clause
1(a) of the definition of "affected transaction" in Section B of the Code,
read with clause 5 of the same Section of the Code.
10. THE RIGHT OF THE NON-EXECUTIVE TO TERMINATE THIS AGREEMENT FOR AN ELIGIBLE
TRANSACTION
If an Eligible Transaction is duly entered into, THE NON-EXECUTIVE shall
be entitled to terminate this Agreement, subject to the following
provisions:-
10.1 THE NON-EXECUTIVE may exercise that right by written notice given to THE
COMPANY at any time from the date on which the announcement of a firm
intention to make an offer in respect of the Eligible Transaction, as
contemplated in Rule 2.3 of Section D of the Code, is made in accordance
with the requirements of the Code, until the Closing Date of that Eligible
Transaction;
10.2 if THE NON-EXECUTIVE gives written notice of termination in terms of
clause 10.1, he/she may at the same time, or at any time before the
Closing Date of the Eligible Transaction, but subject to the provisions of
clause 10.3, exercise any right he/she may have under the Share Option
Scheme;
10.3 any notice of termination given by THE NON-EXECUTIVE in terms of clause
10.2, and any exercise of his/her rights under the Share Option Scheme in
terms of clause 10.2, shall be conditional upon, and shall therefore take
effect only if, the Eligible Transaction itself becomes wholly
unconditional and is actually carried into effect and implemented in
accordance with its terms and accordingly ceases to be executory;
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AGREEMENT:-DJM BLACKMUR
10.4 any notice of termination given in terms of clause 10.1 and any rights
exercised in terms of clause 10.2 may not be withdrawn or revoked by THE
NON-EXECUTIVE, even before the notice or the exercise of those rights
takes effect in terms of clause 10.3, without the written consent of THE
COMPANY;
10.5 if any notice of termination given by THE NON-EXECUTIVE in terms of clause
10.1 takes effect in terms of clause 10.3, this Agreement shall terminate
on the Closing Date of the Eligible Transaction.
11. ELIGIBLE TERMINATION
This Agreement shall be regarded as having been terminated pursuant to an
Eligible Termination if THE NON-EXECUTIVE exercises his/her right in terms
of clause 10.1 to terminate this Agreement, for an Eligible Transaction,
and the termination duly takes effect as contemplated in clause 10.3.
12. BENEFITS PAYABLE FOR AN ELIGIBLE TERMINATION
12.1 If this Agreement is terminated pursuant to an Eligible Termination, THE
NON-EXECUTIVE shall, subject to compliance with the relevant company laws,
be entitled to receive payment from THE COMPANY as a termination benefit
an amount equal to:
TS X TE
-------
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Where:
TS = means the period (in completed calendar months) served by THE
NON-EXECUTIVE as an employee of THE COMPANY from the Commencement Date to
the date of termination of this Agreement in terms of clause 11 provided
that such period shall not be less than 12 (twelve) calendar months nor
more than 48 (forty-eight) calendar months; and
TE = means the directors' fees as set out in clause 4.1.
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AGREEMENT:-DJM BLACKMUR
12.2 The total amount which becomes payable to THE NON-EXECUTIVE in terms of
clause 12.1 shall accrue to him/her on the Termination Effective Date or
the date on which the termination in terms of clause 12.1 takes effect,
and be payable to him/her within 30 (thirty) days after the amount has
been determined by the Auditors in accordance with clause 12.2.
12.3 The total amount and all the separate amounts making up that total amount,
payable to THE NON-EXECUTIVE in terms of clause 12.1 including any pro
rata adjustments made shall be determined by the Auditors as soon as
possible after the Termination Effective Date, and their certificate as to
each of those amounts shall, in the absence of manifest or clerical error,
be final and binding on all the Parties.
13. SHARE OPTION SCHEME PROVISIONS
It is recorded that THE NON-EXECUTIVE is eligible for share options under
the Share Option Scheme of the Company, which shall be governed by the
provisions of "The Rules of the Share Options Scheme" of THE COMPANY as
amended from time to time.
14. THE RIGHT OF THE COMPANY TO ASSIGN THIS AGREEMENT
14.1 THE COMPANY shall be entitled, without the consent of THE NON-EXECUTIVE,
to assign all its rights and all its obligations under this Agreement to
any company which, at the time of the assignment, is a member of the
Group.
14.2 For the avoidance of any doubt it is expressly recorded that the
provisions of clause 14.1 shall apply mutatis mutandis to any succeeding
assignee of this Agreement.
15. GENERAL
15.1 This document contains the entire agreement between the Parties in regard
to its subject matter.
15.2 No party shall have any claim or right of action arising from any
undertaking, representation or warranty not included in this Agreement.
15.3 No failure by a party to enforce any provision of this Agreement shall
constitute a waiver of such provision or affect in any way a party's right
to require performance of any such provision at any time in the future,
nor shall the waiver of any subsequent breach nullify the effectiveness of
the provision itself.
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AGREEMENT:-DJM BLACKMUR
15.4 No agreement to vary, add to or cancel this Agreement shall be of any
force or effect unless reduced to writing and signed by or on behalf of
the Parties to this agreement.
15.5 Save as permitted in terms of clause 14, no party may cede any of its
rights or delegate any of its obligations under this Agreement.
15.6 If any of the clauses of this Agreement are found to be unenforceable,
contra bona mores or void, that clause shall be deemed to be severable
from this Agreement. The enforceability of the remainder of the Agreement
shall be unaffected by the exclusion of such clause.
16. DOMICILIUM CITANDI ET EXECUTANDI
16.1 The parties choose as their domicilium citandi et executandi for all
purposes under this agreement the following addresses:-
THE COMPANY:- THE NON-EXECUTIVE:-
Durban Roodepoort Deep Limited DJM Blackmur
DRD Building IB Xxx Xxxxx Xxxxxx Xxxxx
00 Xxxxxx Xxxx Sunset Links
Parktown Cape Town
Johannesburg 7441
16.2 THE NON-EXECUTIVE is obliged to advise THE COMPANY of his/her address upon
commencement of employment and again within 7 (seven) days of any change
of address.
16.3 Each of the parties shall be entitled from time to time, by written notice
to the other, to vary its domicilium to any other address which is not a
post office box or poste restante.
16.4 Any notice or communication required or permitted to be given by either
party to the other in terms of this Agreement shall be valid and effective
only if in writing.
16.5 A written notice or communication actually received by either party from
the other shall be valid and effective notwithstanding that it was not
sent to or delivered at the chosen domicilium address.
16.6 Any communication or notice required to be given or made under this
Agreement between the parties shall be deemed to have been received by the
intended addressee:
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AGREEMENT:-DJM BLACKMUR
16.6.1 On the day of delivery if delivered by hand, facsimile, telex or
telegram; or
16.6.2 On the tenth day after posting, if mailed by prepaid registered post.
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AGREEMENT:-DJM BLACKMUR
THUS DONE AND SIGNED AT JOHANNESBURG
ON THE 21ST DAY OF OCTOBER, 2003.
For:- DURBAN ROODEPOORT DEEP LIMITED
/s/ Xxxx Wellesley Wood
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SIGNATORY:- Xxxx Wellseley Wood
CAPACITY:- Chairman
AUTHORITY:- By Resolution
THUS DONE AND SIGNED AT CAPE TOWN
ON THE 28TH DAY OF OCTOBER 2003.
/s/ X.X. Xxxxxxxx
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XXXXXXX XXXX XXXXXXX BLACKMUR
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