EXHIBIT 4.38
SHAREHOLDERS' AGREEMENT
between:
THE INDUSTRIAL DEVELOPMENT CORPORATION OF SOUTH AFRICA LIMITED
and
KHUMO BATHONG HOLDINGS (PROPRIETARY) LIMITED
and
CROWN CONSOLIDATED GOLD RECOVERIES LIMITED
and
CROWN GOLD RECOVERIES (PROPRIETARY) LIMITED
and
DURBAN ROODEPOORT DEEP, LIMITED
XXXXXX XXXXXXXXX INC.
0xx Xxxxx, Xxxx Xxxxxx Xxxx
Xxxxxxx Xxxx
Xxxxxxx, 0000
Telephone : (000) 000 0000
Fax : (000) 000 0000
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TABLE OF CONTENTS
1. INTERPRETATION........................................................3
2. CONDITION PRECEDENT..................................................11
3. COMPANY BUSINESS.....................................................11
4. CORPORATE REQUIREMENTS...............................................11
5. DIVIDEND POLICY......................................................12
6. CAPITAL AND FURTHER FINANCE..........................................13
7. WAREHOUSING ARRANGEMENT..............................................15
8. OBLIGATIONS OWED TO DRD..............................................20
9. OBLIGATIONS OWED BY DRD..............................................21
10. DIRECTORS AND MANAGEMENT.............................................21
11. RESERVED MATTERS.....................................................23
12. FINANCIAL MATTERS....................................................26
13. INFORMATION AND REPORTING............................................27
14. CONFIDENTIALITY......................................................28
15. REGULATORY MATTERS...................................................30
16. TRANSFER OF SHARES...................................................31
17. FURTHER ASSURANCES...................................................37
18. ANNOUNCEMENTS........................................................37
19. ENTIRE AGREEMENT.....................................................38
20. CONFLICT WITH MEMORANDUM AND ARTICLES................................38
21. DURATION.............................................................39
22. NOTICES..............................................................40
23. ARBITRATION..........................................................42
24. GENERAL..............................................................43
SCHEDULES
1. SCHEDULE 1: DEFINITION OF "IRR"
2. SCHEDULE 2: BASIS OF INTEREST COVER
3. SCHEDULE 3: PROPOSED BUSINESS PLAN
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WHEREAS:
A. The IDC and KBH are desirous of purchasing 57% (fifty seven per cent) and
3% (three per cent), respectively, of the issued share capital of the
Company and CCGR is desirous of selling 57% (fifty seven per cent) of the
issued share capital of the Company to the IDC and 3% (three per cent) of
the issued share capital of the Company to KBH, in terms of the Share
Purchase Agreement. CCGR intends retaining 40% (forty per cent) of the
issued share capital of the Company upon completion of the Share Purchase
Agreement.
B. The Parties are entering into this Agreement in order to establish the
manner in which the Company is to be managed and to set out the terms
governing the relationship of the IDC, KBH and CCGR as shareholders in the
Company.
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
For the purposes of this Agreement, and the preamble, unless the
context requires otherwise, the words and expressions set out below
shall have the meanings assigned to them, namely:
1.1.1 "this Agreement" means this shareholders' agreement and all
its Schedules;
1.1.2 "Affiliate" means with respect to any person, any
other person directly or indirectly
holding at least 30% (thirty per cent) of
the ordinary issued share capital of that
person;
1.1.3 "Board" means the board of Directors or any duly
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appointed committee thereof from time to
time;
1.1.4 "Budget" means a budget for the Company for a
particular Financial Year in a format
approved from time to time by the Board;
1.1.5 "Business Day" means any day other than a Saturday,
Sunday or statutory holiday in South
Africa;
1.1.6 "Business Plan" means an ongoing business plan for the
Company commencing with the Initial
Business Plan, including the business
plans of the Company drawn by the
Directors for the succeeding Financial
Years;
1.1.7 "CCGR" means Crown Consolidated Gold Recoveries
Limited, a company registered in
accordance with the laws of South Africa
under Registration Number 1997/007865/06;
1.1.8 "CCGR Directors" means the Directors appointed by CCGR from
time to time;
1.1.9 "CCGR Loan" means all the non-interest bearing loans
made by the Company to DRD and thus owing
by DRD to the Company as at the Completion
Date;
1.1.10 "CCGR's Shares" means the 40 (forty) Shares, constituting
40% (forty per cent) of the issued share
capital of the Company, held by CCGR as at
the Completion Date, together with any
other Shares held by CCGR from time to
time;
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1.1.11 "Cession Agreement" means the cession agreement as defined in
the Share Purchase Agreement;
1.1.12 "Chairman" means the chairman from time to time of
the Board;
1.1.13 "Companies Act" means the Companies Xxx, 0000, as amended;
1.1.14 "the Company" means Crown Gold Recoveries (Proprietary)
Limited, a company registered in
accordance with the laws of South Africa
under Registration Number 1988/005115/07;
1.1.15 "Completion Date" means the date on which the condition
precedent referred to in clause 2.1 is
fulfilled;
1.1.16 "Directors" means directors of the Company from time
to time;
1.1.17 "DRD" means Durban Roodepoort Deep, Limited, a
company registered in accordance with the
laws of South Africa under Registration
Number 1895/000926/06;
1.1.18 "DRD Loan" means the unsecured loan note, which as at
the Signature Date has a face value of R37
716 875 (thirty seven million seven
hundred and sixteen thousand and eight
hundred and seventy five Rand), which was
issued by the Company to CCGR (evidencing
the indebtedness of the Company to CCGR)
and ceded to DRD and bears interest at the
Prime Rate plus 25% (twenty five per cent)
of the Prime Rate;
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1.1.19 "Executive Directors" means any of the Directors who are
employed by the Company or seconded to the
Company, as the case may be, in a
managerial capacity;
1.1.20 "Existing GNB" means the general notarial covering bond
registered on 13 September 1999 under
registration number BN25326/1999 by the
Company in favour of the IDC in the amount
of R25 000 000 (twenty five million Rand)
over the assets of the Company;
1.1.21 "Fair Price" means the open market value of the
relevant Shares between a willing seller
and a willing third party buyer at the
date of the Transfer Notice (as defined in
clause 16.6) without any premium or
discount by reference to the percentage of
the Shares being sold or transferred;
1.1.22 "Financial Year" means a financial period of the Company
(commencing, other than in the case of its
initial financing period, on 1 July and
ending on 30 June of each year);
1.1.23 "the IDC" means The Industrial Development
Corporation of South Africa Limited, a
company registered in accordance with the
company laws of South Africa under
Registration Number 1940/014201/06;
1.1.24 "IDC Directors" means the Directors appointed by the IDC
from time to time;
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1.1.25 "IDC Investment" means the IDC Shares and the IDC Loan from
time to time;
1.1.26 "IDC Loan" means the IDC's shareholder loan against
the Company as set out in clause 6.3.1;
1.1.27 "IDC Shares" means the 57 (fifty seven) Shares,
constituting 57% (fifty seven per cent) of
the issued share capital of the Company,
held by the IDC as at the Completion Date,
together with any other Shares held by the
IDC from time to time;
1.1.28 "Initial Business Plan" means the proposed business plan attached
to this Agreement as Schedule 3;
1.1.29 "IRR" means the real after tax internal rate of
return calculated in accordance with the
methodology contained in Schedule 1 to
this Agreement;
1.1.30 "IRR Certificate" means the certificate furnished by the IDC
to the other Parties in terms of clause
7.3.3.6;
1.1.31 "KBH" means Khumo Bathong Holdings (Proprietary)
Limited, a company registered in
accordance with the laws of South Africa
under Registration Number 1998/007564/07;
1.1.32 "KBH Directors" means the Directors appointed by KBH from
time to time;
1.1.33 "KBH Shares" means the 3 (three) Shares, constituting
3% (three per cent) of the issued share
capital of the Company, held by KBH as at
the
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Completion Date together with any other
Shares held by KBH from time to time;
1.1.34 "Loan Account" in relation to a Shareholder, means its
loan account for shareholder loans made to
the Company by it and by any company which
is a Member of the Same Group as it;
1.1.35 "Member of the Same Group" means in relation to any Party, any
company which is its subsidiary company,
holding company or Affiliate;
1.1.36 "Memorandum and Articles" means the memorandum and articles of
association of the Company for the time
being and as amended from time to time;
1.1.37 "Non-Executive Directors" means any of the Directors who are not
employed by the Company or seconded to the
Company, as the case may be, in a
managerial capacity;
1.1.38 "Parties" means the IDC, KBH, CCGR and the Company
and "Party" means any one of them;
1.1.39 "Prime Rate" shall mean the publicly quoted basic rate
of interest generally charged by The
Standard Bank of South Africa Limited from
time to time in South Africa on overdraft
to its first class corporate borrowers,
calculated on a 365 (three hundred and
sixty five) day factor, irrespective of
whether or not the year in question is a
leap year, it being recorded that a
certificate signed by any manager of The
Standard Bank of South Africa Limited
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(whose appointment it shall not be
necessary to prove) shall constitute prima
facie proof of the ruling prime rate at
the relevant time in the event of there
being a dispute in relation thereto;
1.1.40 "Reserved Matters" means the matters set out in clause 11.2;
1.1.41 "Security Interest" means any mortgage, pledge, lien (other
than a lien arising by operation of law),
right of set-off, encumbrance or any
security interest whatsoever, howsoever
created or arising, including any
analogous security interest under the law
of South Africa;
1.1.42 "Share Purchase Agreement" means the share purchase agreement entered
into between the IDC, KBH, CCGR and DRD
simultaneously with the signing of this
Agreement and to which this Agreement is
attached as Schedule 3;
1.1.43 "Shareholders" means the IDC, KBH and CCGR (and
"Shareholder" shall mean any one of them)
and any other party which holds Shares and
has become a signatory to this Agreement;
1.1.44 "Shares" means the ordinary shares of R1 (one Rand)
each in the issued share capital of the
Company;
1.1.45 "Signature Date" means the last date on which this
Agreement is signed by the Parties; and
1.1.46 "South Africa" means the Republic of South Africa as
constituted from time to time.
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1.2 GENERAL INTERPRETATION
In addition to the definitions in clause 1.1, unless the context
requires otherwise:
1.2.1 the singular shall include the plural and vice versa;
1.2.2 a reference to any one gender, whether masculine, feminine or
neuter, includes the other two;
1.2.3 any reference to a natural person includes an artificial person
and vice versa;
1.2.4 a cognate word or expression shall have a corresponding meaning;
1.2.5 words and expressions defined in the Companies Act, which are not
defined in this Agreement, shall bear the same meanings in this
Agreement as those ascribed to them in the Companies Act;
1.2.6 references to a statutory provision include any subordinate
legislation made from time to time under that provision, and
include that provision as from time to time modified or
re-enacted as far as such modification or re-enactment applies,
or is capable of applying, to this Agreement or any transaction
entered into in accordance with this Agreement;
1.2.7 references to "this Agreement" include its Schedules, and
references in this Agreement to "clauses" and "Schedules" are to
clauses and schedules of this Agreement; and
1.2.8 where an obligation pursuant to this Agreement is expressed to be
undertaken or assumed by any Party, such obligation shall be
construed as requiring the Party concerned to exercise all rights
and powers of control over the affairs of any other person which
that Party is able to exercise (whether directly or indirectly)
in order to secure performance of that obligation.
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2. CONDITION PRECEDENT
2.1 The whole of this Agreement (except for this clause 2 and clauses 1,
14, 18, 22, 23 and 24) shall be subject to the condition precedent that
the Share Purchase Agreement is duly entered into by all the parties to
that agreement and that all the conditions precedent to which it is
subject are fulfilled, or deemed to be fulfilled, and that it
accordingly takes effect and is duly carried into effect and completed
in accordance with its terms.
2.2 If the condition precedent referred to in clause 2.1 is not fulfilled,
then this Agreement (except for this clause 2 and clauses 1, 14, 18,
22, 23 and 24) shall not take effect unless otherwise agreed upon in
writing by the Parties. If this Agreement (except for this clause 2 and
clauses 1, 14, 18, 22, 23 and 24) does not take effect in accordance
with the provisions of this clause 2, no Party shall have any claim
against any other of any nature whatsoever arising from the provisions
of this Agreement.
2.3 The Parties shall use their reasonable endeavours to do whatever may be
necessary to procure the fulfilment of the condition precedent and
shall co-operate fully with each other for that purpose.
3. COMPANY BUSINESS
The business of the Company is the re-treatment of sand dumps, slime dumps
and archive material deposits.
4. CORPORATE REQUIREMENTS
4.1 The Parties agree that:
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4.1.1 the name of the Company shall remain Crown Gold Recoveries
(Proprietary) Limited;
4.1.2 the Company's auditors are Deloitte & Touche;
4.1.3 the bankers of the Company are the Standard Bank of South Africa
Limited;
4.1.4 the registered office of the Company shall be at 00 Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxxx, Xxxxx Xxxxxx;
4.1.5 the Company's financial year end shall be 30 June in each year;
and
4.1.6 the secretary of the Company shall be Xxxxxx Xxxxx or such other
person as may be nominated by DRD from time to time in accordance
with the provisions of the management services agreement referred
to in clause 8.4.
4.2 Each of the Parties undertakes to the other that it will do everything
within its powers to carry out all the matters referred to in clause
4.1, including the convening and holding of all the necessary meetings
of the Board and the Company, the passing of all necessary resolutions
at those meetings and the filing of all documents and forms which are
required to be filed with the Registrar of Companies in terms of the
Companies Act for the purposes of or to give effect to those
resolutions and the Shareholders shall exercise their votes as
shareholders in the Company to that end.
5. DIVIDEND POLICY
The Company and each of the Shareholders acknowledge to one another that
the Company shall, unless otherwise decided by the Board, and provided
that the majority shall always include the IDC Director for so long as the
IDC is a Shareholder, and subject to applicable laws, declare an annual
dividend of a minimum of 30% (thirty per cent) of the net profits of the
Company after interest and tax.
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6. CAPITAL AND FURTHER FINANCE
6.1 The authorised share capital of the Company as at the Signature Date is
R4 000 (four thousand Rand) comprising 4 000 (four thousand) ordinary
par value shares of R1 (one Rand) each and the initial issued share
capital of the Company as at the Completion Date shall be R100 (one
hundred Rand) comprising 100 (one hundred) Shares of which:
6.1.1 40% (forty per cent) will be held by CCGR;
6.1.2 3% (three per cent) will be held by KBH; and
6.1.3 57% (fifty seven per cent) will be held by the IDC.
6.2 The issued share capital of the Company may from time to time be
increased to such an extent as shall be mutually agreed between the
Parties in accordance with this clause 6.
6.3 The Parties record that, as at the Completion Date, the Shareholders
will have the following claims against the Company:
6.3.1 a shareholder loan by the IDC to the Company of R108 360 486.00
(one hundred and eight million three hundred and sixty thousand
and four hundred and eighty six Rand), bearing interest at the
Prime Rate plus 15% (fifteen per cent) of the Prime Rate
calculated monthly in arrear with effect from the Completion Date
and repayable over 60 (sixty) months in equal monthly instalments
on the 15th (fifteenth) day of each month commencing on 15 August
2002, but subject to the warehousing arrangements set out in
clause 7. This shareholder loan shall be secured by the Existing
GNB and, as further security for this shareholder loan, the
Company shall register a general notarial covering bond in favour
of the IDC, on terms acceptable to the IDC, up to the amount of
R45 000 000.00 (forty five million Rand) over all the
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movable assets of the Company as contemplated in the Share
Purchase Agreement;
6.3.2 a shareholder loan by CCGR to the Company of R76 042 446.40
(seventy six million forty two thousand and four hundred and
forty six Rand and forty cents), bearing interest at the Prime
Rate plus 25% (twenty five percent) of the Prime Rate calculated
monthly in arrear with effect from the Completion Date and
repayable over 84 (eighty four) months in equal monthly
instalments on the 15th (fifteenth) day of each month commencing
on 15 August 2002. The Parties record that the payment of
interest shall be subject to the Company maintaining a monthly
interest cover ratio on the basis set out in Schedule 2 failing
which the Company shall not be liable to make the interest
payment for that month and the accrued interest will not be
capitalised but will be carried over into and be payable in the
subsequent month or months, as the case may be, subject to the
provisions of Schedule 2; and
6.3.3 KBH shall have a shareholder loan against the Company of R5 703
183.00 (five million seven hundred and three thousand one hundred
and eighty three Rand). This shareholder loan shall bear interest
at the Prime Rate and has no fixed repayment terms and is
repayable on demand.
6.4 The Parties agree that, in the event of any conflict between the terms
of the shareholder loans set out in clause 6.3, and any agreement
entered into by the Company prior to the Completion Date for the
purposes of borrowing such shareholder loans, the terms set out in
clause 6.3 shall prevail.
6.5 Notwithstanding anything to the contrary anywhere else in this
Agreement, none of the Shareholders undertake to provide any loan or
share capital to the Company nor to give any guarantee or indemnity in
respect of any of the Company's liabilities or obligations. Without
detracting from this clause in any way, the Shareholders record that
any further capital required by the Company from time to time and which
they may agree to provide, will be provided by them as agreed between
them.
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6.6 Where the Shareholders agree to provide any further capital by way of a
loan then, unless otherwise agreed in writing by the Shareholders, the
indebtedness of the Company incurred in respect of the loans shall be
subject to terms as approved by the Board.
7. WAREHOUSING ARRANGEMENT
7.1 The Parties record that it is their intention that the IDC shall not
remain a Shareholder of the Company indefinitely but shall transfer the
IDC Investment to KBH, simultaneously with the discharge of the IDC
Loan by KBH to the IDC, in accordance with the provisions of this
clause 7. Accordingly, the Parties agree with each other that KBH
shall, at all times, have the right to repay to the IDC, the IDC Loan
on behalf of the Company subject to the provisions of this clause 7 and
the Company shall be deemed to have discharged all its obligations to
the IDC in this regard upon such repayment of the IDC Loan. A
certificate issued by an authorised officer of the IDC shall be prima
facie evidence of the amount owing under the IDC Loan and the Early
Purchase Amount (as defined in 7.4), and shall be provided by the IDC
to KBH within 10 (ten) Business Days of receipt of written notice to do
so, prior to the exercise of the KBH Special Option referred to in
clause 7.2. If any Party disputes the amount owing under the IDC Loan
and/or the Early Purchase Amount, such dispute shall be referred, at a
cost to be shared equally between KBH and the IDC, to a firm of
independent auditors to be agreed by the IDC, KBH and the Company
within 3 (three) Business Days of the dispute so arising, failing which
an internationally recognised independent firm of auditors nominated by
the president for the time being of the South African Institute of
Chartered Accountants upon request by any of the IDC, KBH or the
Company. Any firm of auditors appointed in terms of this clause 7.1
shall make its determination acting as experts and its determination
shall be final and binding on the Parties.
7.2 Notwithstanding any provision to the contrary in this Agreement, the
IDC hereby grants to KBH, which hereby accepts, a call option to
purchase the
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entire IDC Investment (hereinafter referred to as the "KBH Special
Option") upon the terms and subject to the conditions set out in
clauses 7.3 to 7.5.9 below and each of the other Parties, other than
the IDC and KBH, hereby consents to the IDC granting to KBH the KBH
Special Option and waives any pre-emptive rights which it may have in
regard to the Shares which constitute the subject matter of the KBH
Special Option.
7.3 The KBH Special Option may be exercised by KBH by notice in terms of
clause 7.4 at any time but not later than 16h00 of the last Business
Day of the 60th (sixtieth) month from the Completion Date whereafter
the KBH Special Option will lapse.
7.4 KBH shall exercise the KBH Special Option by written notice (the "KBH
Election Notice") to the IDC, with a copy to the other Parties, at any
time and on any day but always in accordance with the time period set
out in clause 7.3 above, specifying the number of IDC Shares (which
shall be equivalent to all the Shares then held by the IDC) and the
amount of the IDC Loan (which shall be equivalent to the amount then
outstanding on the IDC Loan in terms of clause 7.1) which KBH wishes to
discharge on behalf of the Company in terms of clause 7.1, plus the
amount payable by KBH to the IDC, which is equivalent to an IRR of 15%
(fifteen per cent) on the IDC Investment which will be payable by KBH
to the IDC if the IDC Investment has not yielded an IRR of 11% (eleven
per cent) prior to the repayment of the IDC Loan ("Early Purchase
Amount").
7.5 If KBH exercises the KBH Special Option to purchase all of the IDC
Shares and the balance of the IDC Loan in terms of this clause 7, then
the sale and purchase of the IDC Investment to KBH, which would result,
shall be on the following terms and conditions:
7.5.1 the IDC Investment shall be sold and purchased free from all
claims, liens, pledges and other hypothecations and encumbrances;
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7.5.2 the purchase price payable by KBH for the IDC Shares shall be the
par value for each of the IDC Shares and shall be payable in
South African Rand only;
7.5.3 the effective date of the purchase and sale of the IDC Investment
shall be the date and time specified by KBH and the Company under
clause 7.5.5;
7.5.4 the consideration for the IDC Loan shall be the face value of the
IDC Loan as at the date referred to in clause 7.5.3 and, if
applicable, the Early Purchase Amount;
7.5.5 completion of the sale and purchase of the IDC Investment shall
be effected within 10 (ten) Business Days of receipt by the IDC
of the KBH Election Notice (or as soon thereafter as any
necessary regulatory consents have been obtained and subject to
compliance by the IDC with its obligations under this clause 7),
at a meeting to be held at such reasonable time, date and place
as KBH and the Company may specify by not less than 36 (thirty
six) hours' prior written notice to the IDC and the other Parties
and at which meeting:
7.5.5.1 the IDC shall deliver the relevant share certificate(s) to
KBH or any nominee(s) for KBH, together with such duly
executed transfer forms as may be required by law for the
transfer of the IDC Shares to KBH or any nominee(s) for KBH,
and a power of attorney in such form and in favour of such
person as KBH may nominate so as to enable KBH to exercise
all rights of ownership in respect of the IDC Shares,
including, without limitation, the voting rights thereto;
7.5.5.2 KBH shall pay the purchase price for the IDC Investment to
the IDC by a telegraphic transfer for value on the date of
completion, in terms of this clause 7.5.5, but only against
such delivery of the IDC Shares and a letter of cession by
the IDC to
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KBH of all of the IDC's claims against the Company in
respect of the IDC Loan;
7.5.5.3 the IDC and KBH shall procure (insofar as they are able)
that such transfer or transfers are duly registered;
7.5.5.4 the IDC shall do all such other things and execute all such
other documents as KBH may require to give effect to the
sale and purchase of the IDC Shares; and
7.5.5.5 the IDC shall, simultaneously with the completion of the
sale and purchase of the IDC Shares, remove the Directors
appointed by it and such removal shall take effect without
any liability to the Company for compensation for loss of
office, loss of employment or otherwise; and
7.5.5.6 the IDC shall furnish KBH and the other Parties with a
certificate ("the IRR Certificate") which shall:
7.5.5.6.1 state the IRR yielded by the IDC Investment and
received by the IDC as at the date of the issuance of
the IRR Certificate;
7.5.5.6.2 confirm the Early Purchase Amount, if any, which KBH is
to pay to the IDC and which was stated in the
certificate issued by an authorised officer of the IDC
in terms of clause 7.1,
which IRR Certificate shall be prima facie evidence of the
Early Purchase Amount;
7.5.6 each of KBH and the IDC use their reasonable endeavours (costs to
be shared equally by both these Parties) to obtain any regulatory
consents that are required by law to enable the sale and purchase
of the IDC Shares to be completed; if such consents are refused
the
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purchase and sale shall become void and the IDC and KBH shall be
released from their obligations under this clause 7 but they
shall negotiate with each other in good faith with a view to
achieving an alternative solution;
7.5.7 simultaneously with the completion of a sale and purchase of the
IDC Shares:
7.5.7.1 the IDC shall procure that the IDC's obligations for all
loans, loan capital, borrowings and indebtedness in the
nature of borrowings owed to the Company by the IDC
(together with any accrued interest) are either delegated by
the IDC to KBH at such value as may be agreed between the
IDC and KBH, or failing agreement between them, are repaid
by the IDC to the Company;
7.5.7.2 KBH shall agree to the assignment to it of all rights and
obligations under any guarantees or indemnities given by the
IDC to or in respect of the Company and, pending such
assignment and consequent release of the IDC, shall
indemnify the IDC in respect thereof.
7.5.8 the IDC's obligation to transfer the IDC Shares to KBH in terms
of this clause 7 shall be conditional on the compliance by KBH
with its obligations under clause 7.5.7.2; and
7.5.9 notwithstanding anything to the contrary anywhere else in this
clause 7, the IDC shall be obliged to cede to KBH, and KBH shall
be obliged to acquire from the IDC, the whole of the IDC Loan at
the same time as the IDC Shares are transferred to KBH.
7.6 If any dispute arises in respect of the amounts stated in the IRR
Certificate under clause 7.5.5.6, the Party raising the dispute shall
deal with such dispute in accordance with the dispute resolution
mechanism set out in clause 7.1.
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8. OBLIGATIONS OWED TO DRD
8.1 The Company and each of the Shareholders acknowledge to one another and
to DRD and hereby record that the Company is indebted to DRD to the
extent of the DRD Loan.
8.2 The Parties agree that from the Completion Date, the DRD Loan will bear
interest at the Prime Rate plus 25% (twenty five per cent) of the Prime
Rate, which interest will be payable annually in arrear on each
anniversary of the Completion Date and the DRD Loan will be repayable
within 7 (seven) years of the Completion Date.
8.3 The Company and each of the Shareholders acknowledge to one another and
to DRD and record that the agreement between DRD and Rand Refinery
Limited dated 12 October 2001 will not be affected by this Agreement.
8.4 The Company and each of the Shareholders acknowledge to one another and
to DRD and record that the existing management services agreement
between the Company and DRD is being renegotiated and amended on terms
and conditions which are satisfactory to all the Parties and will be
concluded within 60 (sixty) days of the Completion Date.
8.5 Each of the Parties acknowledge the existence of a loan owed by the
Company to DRD in the capital amount of R875 000 (eight hundred and
seventy five thousand rands) which loan is unsecured, has been bearing
interest from 13 November 2001 at the Prime Rate plus 15% (fifteen
percent) of the Prime Rate payable annually in arrears on the 3rd
(third) Business Day after each anniversary of that date, and the
capital amount of which is repayable within 3 (three) years of that
date.
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9. OBLIGATIONS OWED BY DRD
The Company hereby cedes, assigns and makes over to CCGR all the rights
against DRD owing from the CCGR Loan for a total consideration of R1 (one
Rand) with effect from the Completion Date in accordance with the Cession
Agreement.
10. DIRECTORS AND MANAGEMENT
10.1 From the Completion Date until such date as the Shareholders will
determine, the Board shall consist of 5 (five) Directors. Subject to
the foregoing and the rights of IDC, KBH and CCGR under this Agreement,
the number of Non-Executive Directors and Executive Directors shall be
determined from time to time by the Shareholders.
10.2 From the Completion Date until such time as IDC ceases to be a
Shareholder, the IDC shall have the right to appoint 1 (one) IDC
Director, KBH shall have the right to appoint 2 (two) KBH Directors and
CCGR shall have the right to appoint 2 (two) CCGR Directors. If IDC
ceases to be a Shareholder, as soon as reasonably possible after the
event, the Board shall be reconstituted so that it comprises 3 (three)
KBH Directors and 2 (two) CCGR Directors appointed by the remaining
Shareholders in terms of this clause 10.2.
10.3 Any appointment or removal of a Director appointed by a Shareholder
shall be effected by notice in writing to the Company signed by or on
behalf of the Shareholder in question and shall take effect, subject to
any contrary intention expressed in the notice, when the notice
effecting the same is delivered to the Company. Any such removal shall
be without prejudice to any claim which a Director so removed may have
under any contract between him and the Company, provided that (in the
case of a claim made by a Director in respect of such removal) the
Shareholder so removing such Director shall indemnify the Company in
respect of any liability arising in respect of such removal. Each
Shareholder shall consult with the other Shareholders prior to any
appointment or removal of a Director.
Page 22
10.4 The quorum for the transaction of business at any meeting of the Board
(other than an adjourned meeting) shall be at least the IDC Director
(for so long as the IDC is a Shareholder), 1 (one) KBH Director and at
least 1 (one) CCGR Director present at the time when the relevant
business is transacted. If such a quorum is not present within 30
(thirty) minutes from the time appointed for the meeting or if during
the meeting such a quorum ceases to be present, the meeting shall be
adjourned for 7 (seven) Business Days and at that adjourned meeting any
Director shall be regarded as present for the purposes of a quorum if
represented by an alternate director in accordance with clause 10.6.
Directors may participate in a meeting of the Board by means of
conference telephone or similar equipment by means of which all persons
participating in the meeting can hear each other, and any such
participation in a meeting shall constitute presence in person at the
meeting.
10.5 At least 7 (seven) days' written notice shall be given to each of the
members of the Board of any meeting of the Board, provided always that
a shorter period of notice may be given with the written approval of at
least the IDC Director, 1 (one) KBH Director (or his alternate) and at
least 1 (one) CCGR Director (or his alternate). Any such notice shall
contain, inter alia, an agenda identifying in reasonable detail the
matters to be discussed at the meeting and shall be accompanied by
copies of any relevant papers to be discussed at the meeting. Any
matter which is to be submitted to the Board for a decision and which
is not identified in reasonable detail as aforesaid shall not be
decided upon, unless otherwise agreed in writing by all of the members
of the Board.
10.6 Matters for decision by the Board shall (subject to clause 10.4) be
decided by simple majority vote. Each Director shall have 1 (one) vote.
Any KBH Director or CCGR Director who is absent from any meeting may
nominate any other KBH Director or CCGR Director, as the case may be,
to act as his alternate and to vote in his place at the meeting. If KBH
or CCGR is not represented at any meeting of the Board by all the
Directors appointed by it (whether present in person or by alternate so
nominated by it to the Board), then 1 (one) of the Directors so present
appointed by it shall be entitled at that meeting to such additional
vote or votes as shall result in the Directors so
Page 23
present representing it having, subject to clause 10.4, in aggregate
such number of votes as will be equal to the number of votes such
Directors would have had, had such absent Directors been present. The
IDC Director, if absent from any meeting, may nominate any person
(including another Director) to act as his alternate and to vote in his
place at the meeting.
10.7 Any decision required or permitted to be taken at any meeting of the
Board, or any committee thereof, may be taken without a meeting if all
Directors consent thereto in writing.
11. RESERVED MATTERS
11.1 The Parties shall use their respective powers to procure, in so far as
they are legally able to do so, that no action or decision relating to
any of the Reserved Matters shall be taken, whether by the Board, the
Company or any subsidiary of the Company or any of the officers or
managers within the Company (as the case may be), without the prior
approval of CCGR (for Shareholder matters) or a CCGR Director (for
Board matters) for so long as CCGR is a Shareholder.
11.2 The Reserved Matters are the following:
11.2.1 MEMORANDUM AND ARTICLES - the adoption of or any alteration to
the Memorandum and Articles or other constitutional documents of
the Company;
11.2.2 CHANGES IN SHARE CAPITAL - any increase, alteration or reduction
in the authorised or issued share capital of the Company or any
increase or reduction by the Company in its shareholding in any
other company;
11.2.3 CHANGE IN THE NATURE OF BUSINESS - any material change in the
nature or scope of the business as set out in the memorandum of
association of the Company;
Page 24
11.2.4 BORROWINGS - after the expiry of the 7 (seven) year period from
the Completion Date, the borrowing or raising of money by the
Company or any of its subsidiary companies (which shall include
the entry into of any finance lease but shall exclude normal
trade credit) which would result in the aggregate borrowing of
the Company exceeding R500 000 (five hundred thousand Rand) or
such other amount as the Shareholders shall from time to time
agree;
11.2.5 CAPITAL EXPENDITURE - capital expenditure by the Company or any
of its subsidiary companies in respect of any item or project in
excess of R500 000 (five hundred thousand Rand) or such other
amount as the Shareholders shall from time to time agree;
11.2.6 ACQUISITIONS AND SHARE PURCHASES - any acquisition or share
purchase (whether in a single transaction or a series of
transactions) by the Company or any of its subsidiary companies
of any business or any material part of any business or of any
shares in any company where the value of the acquisition or share
purchase exceeds R100 000 (one hundred thousand Rand);
11.2.7 MATERIAL LITIGATION - major decisions relating to the conduct
(including the settlement) of legal proceedings to which the
Company or any of its subsidiary companies is a party where the
potential liability or claim is in excess of R100 000 (one
hundred thousand Rand);
11.2.8 MANAGEMENT SERVICES AGREEMENT - cancellation by the Company of
the management agreement entered into between DRD and the Company
in accordance with clause 8.4.
11.2.9 ENCUMBRANCES - the creation of a mortgage, charge, encumbrance or
other Security Interest of whatever nature in respect of all or
any material part of the undertaking, property or assets of the
Company or any of its subsidiary companies;
Page 25
11.2.10 WINDING-UP - any proposal that the Company or any of its
subsidiary companies be wound-up;
11.2.11 AUDITORS - a change in the auditors of the Company;
11.2.12 SHARE SCHEME - any proposal that any bonus or profit-sharing
scheme or any share option or share incentive scheme or employee
share trust or share ownership plan be adopted;
11.2.13 PARTNERSHIP OR JOINT VENTURE - any proposal that the Company
enters into any partnership or joint venture with any third
party, excluding (in so far as it may be necessary to do so)
joint working arrangements with third parties for the provision
of the Company's services for a particular contract or project in
the ordinary and regular course of its business;
11.2.14 MERGER - any proposal that the Company merges with any other
company or corporate body or merge the Company's business with
that of any other person;
11.2.15 DISPOSAL OR DILUTION - any proposal that there be a disposal of
or dilution of the Company's interests, directly or indirectly,
in any subsidiary companies it may have from time to time;
11.2.16 LISTING - any proposal that a listing be obtained for the Shares
on any stock exchange;
11.2.17 PREJUDICIAL TRANSACTIONS - anything which to the knowledge of any
Shareholder would prejudice or could be reasonably expected to
prejudice, to a material extent, any benefits available to a
Shareholder.
11.3 The approval by CCGR of any of the Reserved Matters or to any variation
thereof shall be given either in writing by the authorised
representative of CCGR for this purpose or by the representatives of
CCGR at a general meeting of the Company.
Page 26
11.4 General meetings of Shareholders shall take place in accordance with
the applicable provisions of the Memorandum and Articles on the basis,
inter alia, that:
11.4.1 a quorum shall be the duly authorised representative of the IDC
(for so long as the IDC is a Shareholder), 1 (one) duly
authorised representative of KBH and 1 (one) duly authorised
representative of CCGR;
11.4.2 the notice of meeting shall, unless otherwise agreed by each of
the Shareholders, set out an agenda identifying in reasonable
detail the matters to be discussed;
11.4.3 the chairman of any such meeting shall not have a casting vote;
and
11.4.4 subject to the provisions of clause 11.1, a decision to approve
any of the Reserved Matters shall require the vote of CCGR.
11.5 Any matters requiring a general meeting of or approval by the
Shareholders under relevant corporate laws, but not covered by the
Reserved Matters, shall be dealt with in accordance with the Memorandum
and Articles.
11.6 If a deadlock arises by reason of failure by the Shareholders to reach
agreement on any of the Reserved Matters or any other management matter
requiring decision by the Shareholders, the procedure set out in clause
23 shall be followed by the Shareholders. Each Shareholder shall
endeavour to resolve any disagreements in the best interests of the
Company.
12. FINANCIAL MATTERS
12.1 The Company shall, in relation to its financial statements, continue
with the accounting principles applied by the Company as at the
Completion Date.
Page 27
12.2 The auditors of the Company shall be Deloitte & Touche or such other
firm of chartered accountants of recognised international standing as
may be agreed between the Parties from time to time.
12.3 The financial year of the Company shall commence on 1 July and
terminate on 30 June of each year, unless otherwise agreed by the
Parties.
13. INFORMATION AND REPORTING
13.1 Each of the Shareholders shall be entitled to examine the separate
books, records and accounts kept by the Company and to be supplied with
all information, including monthly management accounts and operating
statistics and other trading and financial information, to keep each
Shareholder properly informed about the business and affairs of the
Company.
13.2 The Company shall supply each of the Shareholders in any event and
without prejudice to the generality of clause 13.1 with copies of:
13.2.1 audited consolidated accounts for the Company complying with all
relevant legal requirements;
13.2.2 a Business Plan and itemised revenue and capital Budgets for each
Financial Year covering each principal division of the Company
and showing proposed trading and cash flow figures, xxxxxxx
levels and all material proposed acquisitions and other
commitments for such Financial Year; and
13.2.3 monthly management accounts of each principal division of the
Company, such accounts to include, inter alia, a consolidated
profit and loss account, balance sheet and cash flow statement
broken down according to the principal divisions of the Company
including a statement of progress against the relevant Business
Plan, a statement of variation from the quarterly revenue Budget
and up to date forecasts for the balance of the relevant
Financial Year and itemising all
Page 28
transactions referred to in the capital Budget entered into by
each principal division of the Company during that period.
14. CONFIDENTIALITY
14.1 Each Shareholder undertakes to the other Shareholders that it shall use
(and shall procure that any Member of the Same Group as it shall use)
all reasonable endeavours to keep confidential (and to ensure that its
officers, employees, agents and professional and other advisers keep
confidential) any information:
14.1.1 which it may have or acquire (whether before or after the date of
this Agreement) in relation to the customers, suppliers,
contractors, business, assets or affairs of the Company
including, without limitation, any information provided pursuant
to clause 13, unless otherwise required by the policies of the
holding company of any of the Shareholders;
14.1.2 which, in consequence of the negotiations relating to this
Agreement, or being a Shareholder, or having appointees on the
Board, or the exercise of its rights, or performance of its
obligations under this Agreement, it may have or acquire (whether
before or after this Agreement) in relation to the customers,
suppliers, contractors, business, assets or affairs of the
Company; or
14.1.3 which relates to the contents of this Agreement or any agreement
or arrangement entered into pursuant to this Agreement.
14.2 None of the Shareholders shall use for its own business purposes or
disclose to any third party any such information (collectively
"Confidential Information") without the written consent of the other
Shareholders. In performing its obligations under this clause 14, each
Shareholder shall apply such confidentiality standards and procedures
as it applies generally in relation to its own confidential
information.
Page 29
14.3 The obligation of confidentiality under clause 14.1 shall not apply to:
14.3.1 the disclosure on a "need to know" basis to a company which is a
Member of the Same Group as the IDC, KBH or CCGR (as the case may
be) where such disclosure is for a purpose reasonably incidental
to this Agreement;
14.3.2 information which is independently developed by the relevant
Party or acquired from a third party to the extent that it is
acquired with the right to disclose the same;
14.3.3 the disclosure of information to the extent required to be
disclosed by law, any stock exchange regulation or any binding
judgment, order or requirement of any court or other competent
authority;
14.3.4 the disclosure of information to any tax authority to the extent
reasonably required for the purposes of the tax affairs of the
Party concerned or any Member of the Same Group as it;
14.3.5 the disclosure (subject to clause 14.4) in confidence to a
Shareholder's professional advisors of information reasonably
required to be disclosed for a purpose reasonably incidental to
this Agreement;
14.3.6 information which becomes is in the public domain (otherwise than
as a result of breach of this clause 14); or
14.3.7 any announcement made in accordance with the terms of clause 18.
14.4 Each Shareholder shall inform (and shall procure that any Member of the
Same Group as it shall inform) any of its officers, employees or agents
or any professional or other advisor advising it in relation to the
matters referred to in this Agreement, to whom it discloses
Confidential Information, that such information is confidential and
shall instruct the person to whom the Confidential Information is
disclosed:
Page 30
14.4.1 to keep it confidential; and
14.4.2 not to disclose it to any third party (other than those persons
to whom it has already been disclosed in accordance with the
terms of this Agreement).
The party disclosing the Confidential Information shall remain
responsible for any breach of this clause 14 by the person to whom it
is disclosed.
14.5 Upon termination of this Agreement, either Party may demand from the
other the return of the other Party's Confidential Information by
notice in writing; whereupon the other party shall (and shall ensure
that the Members of the Same Group as it shall):
14.5.1 return all documents containing Confidential Information which
have been provided by or on behalf of the Party demanding the
return of Confidential Information; and
14.5.2 destroy any copies of such documents and any document or other
record reproducing, containing or made from or with reference to
the Confidential Information,
save in each case, for any submissions to or filings with governmental,
tax or regulatory authorities. Such return or destruction shall take
place as soon as practicable after the receipt of any such notice.
14.6 The provisions of this clause 14 shall survive any termination of this
Agreement for a period of 5 (five) years from such termination.
15. REGULATORY MATTERS
15.1 The Parties shall respectively co-operate with each other to ensure
that all information necessary or desirable for the making of (or
responding to any
Page 31
requests for further information consequent upon) any notification or
filings made in respect of this Agreement, or the transactions
contemplated by this Agreement, is supplied to the Party dealing with
such notifications and filings and that they are properly, accurately
and promptly made.
15.2 Notwithstanding any other provisions of this Agreement, each Party
declares that it will not give effect to any restriction or
restrictions contained in this Agreement (or any such other agreement),
which would cause this Agreement to contravene any relevant
anti-competition laws, regulations and directives.
16. TRANSFER OF SHARES
16.1 The provisions of this clause 16 shall apply in relation to any
transfer, or proposed transfer, of Shares or any interest in such
Shares, save for the transfer of the Shares from the IDC to KBH in
terms of the arrangements set out in clause 7.
16.2 Except with the prior written consent of the other Shareholders and in
accordance with the provisions of this clause 16, no Shareholder shall:
16.2.1 transfer any of its Shares; or
16.2.2 grant, declare, create or dispose of any right or interest in any
of its Shares; or
16.2.3 create or permit to exist any pledge, lien, charge (whether fixed
or floating) or other encumbrances over any of its Shares.
16.3 No Shares held by a Shareholder may be transferred otherwise than
pursuant to a transfer by that party (the "Seller") of all (and not
some only) of the Shares then held by it (the "Seller's Shares").
16.4 Subject to clause 7, no Shareholder shall transfer any Shares during a
period of 2 (two) years from the Completion Date.
Page 32
16.5 The Company and each of the Shareholders acknowledge to each other and
record that KBH shall not be entitled to transfer the KBH Shares until
the IDC Loan has been repaid in full.
16.6 After the expiry of the initial period referred to in clause 16.4 and
before the Seller makes any transfer of the Seller's Shares, the Seller
shall first give to the other Shareholders (the "Continuing Party/ies")
notice in writing (a "Transfer Notice") of any proposed transfer
together with details of the proposed third party purchaser thereof
(the "Third Party Purchaser"), the purchase price and other material
terms agreed between the Seller and the Third Party Purchaser. A
Transfer Notice shall, except as hereinafter provided, be irrevocable.
16.7 The Seller shall be deemed to have offered the Seller's Shares to the
Continuing Party/ies in proportion to their then shareholdings in the
Company. Each Shareholder to whom such Seller's Shares are offered
shall have the right to purchase all (but not some only) of the
Seller's Shares offered to it and the Seller's Shares offered to the
other Continuing Party/ies and not taken up by the other Continuing
Party/ies;
16.8 The Continuing Party/ies shall, subject to clause 16.11, have the right
to purchase the Seller's Shares at the purchase price specified in the
Transfer Notice (or at such other price as shall be agreed between the
Seller and the Continuing Party/ies) by giving written notice to the
Seller within 60 (sixty) days of the receipt of the Transfer Notice
(the "Acceptance Period"). The obligations of the Parties to complete
such purchase shall be subject to the provisions of clause 16.12.
16.9 If any Continuing Party wishes to purchase the Seller's Shares but is
unwilling to accept the price specified in the Transfer Notice and
fails to agree a price with the Seller within the Acceptance Period,
then the Continuing Party shall be entitled to refer the question of
the purchase price to an independent investment bank (the "Expert")
agreed upon by the IDC (for so long as it is a
Page 33
Shareholder), KBH and CCGR to certify the Fair Price thereof. The
following principles shall apply:
16.9.1 the Expert shall, unless otherwise agreed between the Parties, be
an independent investment bank which is independent of all
Parties and the Third Party Purchaser and which shall not have
acted for any Party in any material capacity for a period of at
least 2 (two) years preceding the date of the Transfer Notice;
16.9.2 if the Seller and the Continuing Party/ies are unable to agree
upon such independent investment bank within a period of 40
(forty) days of the receipt of the Transfer Notice, then the
Expert shall be appointed by the head for the time being of
Standard Corporate and Merchant Bank (or its successor in title)
or, in the head's absence or otherwise at his request, by one of
the deputy heads;
16.9.3 the Parties shall procure that there is made available to the
Expert such information relating to the Company as it reasonably
requires in order to determine the Fair Price;
16.9.4 in certifying the Fair Price, the Expert shall take into account
all factors it considers to be relevant, including the purchase
price and other material terms agreed between the Seller and the
Third Party Purchaser;
16.9.5 the Expert shall be deemed to be acting as an expert and not an
arbitrator and its decision shall be final and binding on the
Parties; and
16.9.6 the cost of obtaining the Expert's certificate (the
"Certificate") shall be borne equally between the Seller and the
Continuing Party/ies who wish to purchase the Seller's Shares
unless the Seller shall give notice of revocation pursuant to
clause 16.10, in which case the Seller shall bear the said cost.
Page 34
16.10 If the Seller is not willing to accept the Fair Price determined by the
Expert, then it shall be entitled to revoke the Transfer Notice by
notice in writing given within a period of 30 (thirty) days after the
date of the issue of the Certificate (which, for the avoidance of
doubt, shall be issued to the Seller and the Continuing Parties). In
the event of such revocation, the Seller shall not be entitled to
transfer the Seller's Shares or any of them without first serving a
further Transfer Notice and otherwise complying with this clause 16.
16.11 If the Transfer Notice shall not have been duly revoked under clause
16.10, the Continuing Party/ies shall have the right to purchase from
the Seller the Seller's Shares at the Fair Price by giving written
notice to the Seller within 30 (thirty) days of the expiry of the
period of 30 (thirty) days mentioned in clause 16.10. Notwithstanding
anything to the contrary in this clause 16.11, in the event that an
Expert is required to determined the Fair Price of the Seller's Shares,
pursuant to the provisions of clause 16.9, the Fair Price of the
Seller's Shares so determined shall be the purchase price of the
Seller's Shares for the purposes of this clause 16, irrespective of
whether or not the Fair Price of the Seller's Shares so determined is
higher or lower than the purchase price specified in the Transfer
Notice or than such other price as may have been agreed upon between
the Seller and any Continuing Party.
16.12 The Continuing Party/ies shall become bound (subject only to necessary
approvals of its shareholders in general meeting and any regulatory
approvals) to purchase the Seller's Shares on giving written notice to
the Seller to exercise its rights under clause 16.8 or 16.11. In such
event, completion of the sale and purchase of the Seller's Shares shall
take place within 30 (thirty) days after the giving of such notice.
Notwithstanding the foregoing, such notice and right of the Continuing
Party/ies to acquire the Seller's Shares shall cease to have effect if
(i) any necessary approval of any Continuing Party's shareholders in
general meeting has not been obtained within the said period of 30
(thirty) days or if (ii) any necessary regulatory approval has not been
obtained within 180 (one hundred and eighty) days after the giving of
such notice or (iii) if earlier than the expiry of such latter period,
any relevant authority has conclusively refused to grant any such
regulatory approval.
Page 35
16.13 If any Continuing Party does not exercise its rights of purchase under
clauses 16.8 or 16.11 or any notice given thereunder ceases to have
effect pursuant to clause 16.12, and the other Continuing Party has not
exercised its rights of purchase to take up the Seller's Shares offered
to the declining Continuing Party, the Seller shall (subject to clause
16.14 below) be entitled to transfer the Seller's Shares on a bona fide
arm's length sale to the Third Party Purchaser with the consent of the
Continuing Parties (which shall not be unreasonably withheld) at a
price being not less than the purchase price specified in the Transfer
Notice or, if lower, any Fair Price determined by the Expert provided
that such transfer shall have been completed within a period of 180
(one hundred and eighty) days after the latest of (i) the date of
Transfer Notice or (ii) if the question of the purchase price shall
have been referred to the Expert, the issue of the Certificate or (iii)
if any notice given by any Continuing Party shall have ceased to have
effect pursuant to clause 16.12, the date on which such notice ceased
to have effect. The Parties undertake to (or procure that any
shareholders in Members of the Same Group as it) give such approvals as
may be required under the provisions of the Memorandum and Articles to
any transfer of Shares permitted by the terms of this clause 16.
16.14 Completion of any transfer of Shares to the Third Party Purchaser shall
be subject to the conditions that:
16.14.1 the Third Party Purchaser shall first have entered into an
agreement with the Continuing Party/ies whereby it agrees to be
bound by the provisions of this Agreement binding upon the
Seller;
16.14.2 any claim on Loan Account (but excluding, for the avoidance of
doubt, any debts incurred in the ordinary course of trade which
are at the relevant time outstanding on inter company account)
owing at that time from the Company to the Seller shall first
have been assigned to, or equivalent finance made available by,
the Third Party Purchaser; and
16.14.3 if and insofar as the Seller requires the Third Party Purchaser
to assume the obligations of the Seller under any guarantees
and/or
Page 36
counter-indemnities to third parties in relation to the business
of the Company, such assumption shall first have taken place
(provided that any assumption is without prejudice to the right
of the Continuing Party/ies to receive a contribution from the
Seller for its share of any claims attributable to any
liabilities arising in respect of the period during which the
Seller held Shares).
16.15 Notwithstanding anything to the contrary anywhere else in this clause
16, a Seller which has a Loan Account for which the Company is indebted
to it shall be bound by the following provisions:
16.15.1 it may not transfer all of the Seller's Shares without
transferring the whole of its Loan Account at the same time;
16.15.2 a Transfer Notice given by the Seller shall specify, in addition
to the particulars required in terms of clause 16.6, the amount
of its Loan Account that it is required to transfer in terms of
clause 16.15.1 above;
16.15.3 the consideration for such Loan Account shall be the face value
of the Loan Account as at the date of completion of the sale and
purchase of the Seller's Shares;
16.15.4 all the provisions of this clause 16 shall apply to the Seller's
Shares and the Seller's Loan Account as one indivisible
transaction, and all references in these provisions to the
"Seller's Shares" shall be deemed to be references to the
Seller's Shares and the Loan Account together, as specified in
the Transfer Notice, so far as those provisions can apply to the
Seller's Loan Account.
Page 37
17. FURTHER ASSURANCES
17.1 Each Shareholder undertakes with the other Shareholders that (so far as
it is legally able) it will exercise all voting rights and powers,
direct and indirect, available to it in relation to any person and to
the Company so as to ensure the complete and punctual fulfilment,
observance and performance of the provisions of this Agreement (and the
other agreements referred to in this Agreement) and generally that full
effect is given to the principles set out in this Agreement.
17.2 Each Shareholder shall procure the performance by each Member of The
Same Group as it of all obligations under this Agreement, which are
expressed to relate to Members of the Same Group as it (whether as
Shareholders or otherwise) and of all obligations under any agreement
entered into by any Member of the Same Group pursuant as it to this
Agreement. The liability of a Party under this clause 17.2 shall not be
discharged or impaired by any release of or granting of time or other
indulgence to any Party or any other act, event or omission which but
for this clause would operate to impair or discharge the liability of
such Party under this clause 17.2.
18. ANNOUNCEMENTS
18.1 No formal public announcement or press release in connection with the
signature or subject matter of this Agreement shall (subject to clause
18.2) be made or issued by or on behalf of any Party without the prior
written approval of the other Parties (such approval not to be
unreasonably withheld or delayed).
18.2 If a Party has an obligation to make or issue any announcement required
by law or by any stock exchange or by any governmental authority, the
relevant Party shall give the other Parties every reasonable
opportunity to comment on any such announcement or release before it is
made or issued (provided
Page 38
always that this shall not have the effect of preventing the Party
making the announcement or release from complying with its legal and
stock exchange obligations).
19. ENTIRE AGREEMENT
This Agreement, together with its Schedules, sets out the entire agreement
and understanding between the Parties with respect to the subject matter
hereof and save as otherwise expressly provided no modification, amendment
or waiver of any of the provisions of this Agreement or any agreement to
cancel or terminate it shall be effective unless made in writing
specifically referring to this Agreement and duly signed by the Parties.
It is agreed that no Party has entered into this Agreement in reliance
upon any representation, warranty or undertaking of another Party which is
not expressly set out or referred to in this Agreement.
20. CONFLICT WITH MEMORANDUM AND ARTICLES
20.1 In the event of any conflict between the provisions of this Agreement
and the Memorandum and Articles or other constitutional document of the
Company, the provisions of this Agreement shall prevail as between the
Parties. The Parties shall exercise all voting and other rights and
powers available to them so as to give effect to the provisions of this
Agreement and shall further (if necessary) procure any required
amendment to the Memorandum and Articles or other constitutional
document of the Company or any member of the Company as may be
necessary and without undue delay.
20.2 Without prejudice to the generality of clause 20.1, the Parties confirm
their intention that the provisions of this Agreement shall prevail in
relation to the transfer of Shares.
20.3 The Company shall not be bound by any provision of this Agreement to
the extent that it would constitute an unlawful xxxxxx on any statutory
power of the Company (but this shall not affect the validity of the
relevant provision as
Page 39
between the other Parties or the respective obligations of such other
Parties as between themselves under clause 20.1).
21. DURATION
21.1 This Agreement shall continue in full force and effect for so long as
KBH and CCGR, and/or their successors in title, each hold Shares in the
Company.
21.2 Notwithstanding the provisions of clause 21.1 above, this Agreement
shall terminate upon a resolution being passed for the winding-up of
the Company. In such event, the IDC (if it is still a shareholder in
the Company), KBH, CCGR and the Company shall endeavour to agree on a
suitable basis for dealing with the interests and assets of the Company
but subject thereto:
21.2.1 the IDC, KBH and CCGR shall co-operate, but without any
obligation to provide any additional finance, with a view to
enabling all existing trading obligations of the Company to be
completed insofar as its resources allow. The IDC, KBH and CCGR
shall consult together with a view to outstanding contracts
within the usiness of the Company being novated or re-allocated
in a suitable manner;
21.2.2 no new contractual obligation for the supply of products or
services shall be issued by the Company;
21.2.3 unless otherwise agreed between the IDC, KBH and CCGR, the
Parties shall procure that the Company shall as soon as
practicable be wound up;
21.2.4 the IDC, KBH and CCGR shall be free to compete in any way within
the field of the business of the Company;
21.2.5 each Shareholder shall, as soon as reasonably practicable,
deliver up to the other Shareholders all drawings, notes, copies
or other representations of Confidential Information proprietary
to and/or
Page 40
originating from that other Party or any Member of the Same Group
as it. Termination shall nevertheless not affect the obligations
of the Parties under clause 14, which shall remain in full force
and effect;
21.2.6 each Member of the Same Group of the IDC, KBH and CCGR shall have
free access to and use of any technology or products developed by
the Company (whether by transfer of design and manufacturing
rights or by appropriate non-exclusive licences) and the Company
shall deliver to each of the IDC, KBH and CCGR, and not to any
third party, copies of drawings, notes or other representations
of confidential information proprietary to and/or originating
from the Company.
21.3 After termination of this Agreement and if the Company is not placed
into liquidation, or upon any of the IDC, KBH or CCGR ceasing or being
about to cease to be a Shareholder, each of the remaining Shareholders
undertake to the departing Shareholder that upon request by the
departing Shareholder, it will exercise its powers with a view to
procuring that the name of the Company (and any other relevant member
of the Company) is changed so as no longer to include the name,
initials or trademark or any reference to the name, initials or
trademark of the departing Shareholder.
22. NOTICES
22.1 Any notice or other formal communication to be given under this
Agreement shall be in writing and signed by or on behalf of the Party
giving it and may be served by sending it by fax, delivering it by hand
or sending it by registered mail with acknowledgement of receipt to the
address and for the attention of the relevant Party set out in clause
22.2 (or as otherwise duly notified from time to time). Any notice so
served by hand, fax or post shall be deemed to have been received:
22.1.1 in the case of delivery by hand or mail, when delivered;
22.1.2 in the case of fax, 12 (twelve) hours after the time of dispatch,
Page 41
provided that, where (in the case of delivery by hand or by fax) such
delivery or transmission occurs after 18h00 on a Business Day or on a
day which is not a Business Day, service shall be deemed to occur at
09h00 on the next following Business Day.
22.2 The Parties choose for the purposes of this Agreement the following
addresses:
22.2.1 the IDC: 00 Xxxxxxx Xxxxx
Xxxxxxx
Xxxxxxxxxxxx
Attn: The Chief Legal Advisor
Fax No: 000 000 0000
22.2.2 KBH: ERPM
Main Office
Cnr Main Reef and Pretoria Road
Boksburg
Attn: The Chief Executive Officer
Fax No: 000 0000000
22.2.3 CCGR: 00 Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxx
Xxxxx Xxxxxx
Attn: The Company Secretary
Fax No: 000 0000000
22.2.4 the Company: 00 Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxx
Xxxxx Xxxxxx
Attn: The Company Secretary
Fax No: 000 0000
Page 42
22.3 In proving such service it shall be sufficient to prove that the
envelope containing such notice was properly addressed and delivered to
the address shown thereon or that the fax was sent after obtaining in
person or by telephone appropriate evidence of the capacity of the
addressee to receive the same, as the case may be.
23. ARBITRATION
23.1 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 shall 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 a summary manner with a view to it being completed as
soon as possible.
23.2 There shall be 1 (one) arbitrator who shall be, where the question and
issue is:
23.2.1 primarily an accounting matter, an independent chartered
accountant of 10 (ten) years standing;
23.2.2 primarily a legal matter, a practising Senior Counsel; or
23.2.3 primarily a technical matter, a suitably qualified person.
23.3 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 23.1, 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 who, in making his appointment, shall have regard to
the nature of the dispute.
Page 43
23.4 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.
23.5 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.
24. GENERAL
24.1 COMMUNICATIONS BETWEEN THE PARTIES
24.1.1 All notices and demands given by or on behalf of any Party to the
other shall be in English or accompanied by a certified
translation into English.
24.1.2 The Parties shall procure that all notices, demands and other
oral or written communications given or made by or on behalf of
the Company to the Shareholders or the Directors in their
capacity as such shall also be in English or accompanied by a
certified translation into English. All meetings of the Board and
any committees of the Board shall be conducted in English.
24.2 REMEDIES
No remedy conferred by this Agreement is intended to be exclusive of
any other remedy which is otherwise available at law, by statute or
otherwise. Each remedy shall be cumulative and in addition to every
other remedy given
Page 44
hereunder or now or hereafter existing at law, by statute or otherwise.
The election of any one or more remedy by any of the Parties shall not
constitute a waiver by such Party of the right to pursue any other
remedy.
24.3 SEVERANCE
If any provision of this Agreement, which is not material to its
efficacy as a whole, is rendered void, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby and the Parties shall endeavour in good faith to agree an
alternative provision to the void, illegal or unenforceable provision.
24.4 SURVIVAL OF RIGHTS, DUTIES AND OBLIGATIONS
Termination of this Agreement for any cause shall not release a Party
from any liability which at the time of termination has already accrued
to such Party or which thereafter may accrue in respect of any act or
omission prior to such termination.
24.5 COSTS
Each Party shall bear its own costs incurred by it to its attorneys and
other professional advisors for the preparation and signing of this
Agreement and the Schedules.
24.6 ASSIGNMENT
None of the Parties may assign this Agreement or any of its rights and
obligations under it except, in the case of a Party which is a
Shareholder, to a transferee of that Shareholder's Shares, when the
transfer is permitted in terms of this Agreement or the Articles, who
has complied with clause 16.4.
Page 45
24.7 NO PARTNERSHIP
Nothing in this Agreement shall be deemed to constitute a partnership
between the Parties (or any of them) or constitute any Party the agent
of any other Party for any purpose.
24.8 FURTHER ASSURANCE
Each Party shall co-operate with the other Parties and execute and
deliver to the other Parties such other instruments and documents and
take such other actions as may be reasonably requested from time to
time in order to carry out, evidence and confirm their rights and the
intended purpose of this Agreement.
24.9 COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any
Party may enter into this Agreement by signing any such counterpart.
24.10 SUCCESSORS BOUND
This Agreement shall be binding on and shall inure for the benefit of
the successors and assigns and personal representatives (as the case
may be) of each of the Parties.
24.11 GOOD FAITH
Each of the Parties undertakes with each of the others to do all things
reasonably within its power which are necessary or desirable to give
effect to the spirit and intent of this Agreement.
Page 46
SIGNED at Sandton on 14 June 2002.
For: THE INDUSTRIAL DEVELOPMENT
CORPORATION OF SOUTH AFRICA
LIMITED
/s/ Nam Tshivhase
------------------------------------
Signatory: Nam Tshivhase
Capacity: General Counsel
Authority: Resolution
and
/s/ M. Netshitangani
------------------------------------
Signatory: M. Netshitangani
Capacity: Head of department
Authority: Resolution
SIGNED at Sandton on 12 June 2002.
For: KHUMO BATHONG HOLDINGS
(PROPRIETARY) LIMITED
/s/ M.P. Ncholo
------------------------------------
Signatory: M.P. Ncholo
Capacity: CEO
Authority: Resolution
Page 47
SIGNED at Johannesburg on 12 June 2002.
For: CROWN GOLD RECOVERIES
(PROPRIETARY) LIMITED
/s/ Xxxx Wellesley-Wood
------------------------------------
Signatory: Xxxx Wellesley-Wood
Capacity: Director
Authority: Resolution
SIGNED at Johannesburg on 12 June 2002.
For: CROWN CONSOLIDATED GOLD
RECOVERIES LIMITED
/s/ Xxxx Wellesley-Wood
------------------------------------
Signatory: Xxxx Wellesley-Wood
Capacity: Director
Authority: Resolution
SIGNED at Johannesburg on 12 June 2002.
For: DURBAN ROODEPOORT DEEP,
LIMITED
/s/ Xxxx Wellesley-Wood
------------------------------------
Signatory: Xxxx Wellesley-Wood
Capacity: Director
Authority: Resolution
Page 48
SCHEDULE 1
DEFINITION OF IRR
CALCULATION OF THE INTERNAL RATE OF RETURN
The real internal rate of return ("IRR") referred to in the Agreement to which
this Schedule is annexed shall, for the purposes of the Agreement, be
calculated -
1. on the total of the IDC's Investment;
2. after taking into account any amounts received by the IDC by virtue of its
holding any shares in the share capital of the Company, including, but not
limited to, any dividend received on such shares as well as any interest
received on the IDC Loan;
3. on the basis that any amounts received by the IDC or paid by the IDC,
excluding payment of the purchase price paid by IDC in acquiring any class
of shares in the share capital of the Company, will be recognised as a
receipt or payment on the last day of the month during which such receipt
or payment took place, and that the return will be compounded on a monthly
basis;
4. on the basis that any amounts received in terms of paragraph 2 above, where
applicable, be adjusted to be after tax cash flow by reference to the
relevant tax rate applicable at the time,
by adjusting the nominal return to a real return by reference to core overall
Consumer Price Index ("CPI") as defined below as published by Statistics South
Africa or its successor.
For these purposes the CPI means the annual change in the Core Consumer Price
Index of the RSA as published by Statistics South Africa or its successor, which
for the purposes hereof is defined as - "Headline CPI excluding : 1) interest
rates on Mortgage Bonds, overdrafts and personal loans 2) changes in VAT 3)
Assessment rates and 4) Fresh and frozen meat, fish, vegetables and fresh fruit
and nuts"
Page 49
provided that -
- if the basis of computation of that CPI is at any time changed so as to result
in comparisons of that index for period before and after the introduction of
that change not truly reflecting the core rate of inflation required to be
used herein, in the whole of South Africa, or if that index as previously
adjusted in terms of this paragraph is further changes so as to have that
result, that index shall be adjusted or further adjusted in such manner as
will be determined by an independent firm of auditors appointed by the
Registrar in order to ensure as far as possible consistency and a true
reflection of the core rate of inflation in the whole of South Africa in the
application of the CPI in respect of periods both before and after
introduction of that change; and
- if publication of that CPI ceases at any time, a substitute index shall be
applied to reflect that rate of inflation over periods commencing prior to and
ending after the date upon which such publication ceases, which substitute
index shall be an index which reflects the core rate of inflation South Africa
and which will have been published prior to the cessation of the publication
of the index referred to in this paragraph and shall be determined by the
auditors referred to above who shall have the right to use or adapt any then
published index of that rate of inflation for that purpose.
The IRR shall be calculated by the Company's auditors who shall act at the
expense of the Company and as experts and not as arbitrators and their decision
shall be final and binding on all the Shareholders and the Company, save in the
case of manifest arithmetic error or fraud.
Page 50
SCHEDULE 2
BASIS OF INTEREST COVER
CCGR is to hold the remaining 40 (forty) Shares in the Company, and the
remaining shareholders' loan of R76 042 446.40 (seventy six million forty two
thousand and four hundred and forty six Rand and forty cents). This
shareholders' loan will be unsecured, will bear interest at 125% (one hundred
and twenty five per cent) of the Prime Rate and will be repayable over 84
(eighty four) months subject to maintenance of an interest cover in the Company
of 2.5 (two point five) times.
The 2.5 (two point five) times interest cover will, however, be waived for as
long as:
- the 60 (sixty) day moving average gold price (determined by the London PM US$
fix and the Reuters closing R/US$ rate) is below R100 000/kg (one hundred
thousand Rand per kilogram) for the Financial Years 2001/02 and 2002/03,
whereafter the amount of R100 000/kg (one hundred thousand Rand per kilogram)
referred to in this paragraph shall be increased by 7% (seven per cent) per
annum commencing on 1 July 2003, and
- the previous quarter cash operating costs of the Company (namely, the total
costs associated with production, including corporate costs and ongoing
rehabilitation costs, but excluding capital expenditure and depreciation as
reflected in the quarterly results of the Company) are less than R67 500/kg
(sixty seven thousand and five hundred Rand per kilogram) for the 2001/02
Financial Year, whereafter the amount of R67 500/kg (sixty seven thousand and
five hundred Rand per kilogram) referred to above shall be increased at the
end of every 3 (three) month period commencing on 1 July 2002 in accordance
with the following formula, which is based on the pro-rata change in the
overall producer price index per quarter (as published by Statistics South
Africa) ("PPI"):
Page 51
CALCULATION OF CHANGE IN PPI PER QUARTER
Pro-rata per quarter change in PPI =
pa % change (Month 1)/12 + pa % change (Month 2)/12 + pa % change (Month 3)/12
For as long as all conditions for waiving of the 2.5 (two point five) times
interest cover ratio on the CCGR shareholders' loan apply, interest payments on
all shareholders' loans in the Company for that period are to be subject to
maintenance of a 1.0 (one point zero) times interest cover ratio in the Company.
Page 52
SCHEDULE 3
PROPOSED BUSINESS PLAN
CROWN GOLD RECOVERIES (PTY) LTD
LIFE OF MINE
2002/2003
-----------------------------------------------------------------------------------------------------------
Total
Crown R/Leases City Deep Knights Crown
------------ ----------- ----------- ------------ -----------
TONS RECLAIMED 000's 5355 120 2471 3634 11580
HEAD GRADE g/t 0.571 3 0.641 0.556 0.611
RESIDUE g/t 0.20 1.00 0.21 0.26 0.24
RECOVERY GRADE g/t 0.37 2.00 0.43 0.30 0.38
RECOVERY % 64.3 66.67 66.99 53.8 61.54
GOLD DISPATCHED Kgs 1966 240 1061 1087 4354
GOLD REVENUE R/Ton 37.65 205.1 44.04 30.68 38.56
W/COSTS R/Ton 25.94 128.86 35.58 26.82 29.34
W/PROFIT R/Ton 11.76 76.54 8.51 3.89 9.27
W/COSTS incl CAPEX R/Ton 27.42 128.86 39.09 33.01 32.72
GOLD REVENUE R/Kg 102562 102550 102562 102561 102561
W/COSTS R/Kg 70659 64429 82863 89665 78034
W/PROFIT R/Kg 32025 38271 19811 13006 24645
W/COSTS incl CAPEX R/Kg 74689 64429 91043 110361 87014
Gold Revenue 201636 24612 108818 111484 446550
Silver Revenue 240 36 120 120 516
Total Working Costs 138915 15463 87918 97466 339762
------------ ----------- ----------- ------------ -----------
Gold Working Profit/(Loss) 62961 9185 21020 14138 107304
Total Capex 7923 0 8679 22496 39098
------------ ----------- ----------- ------------ -----------
Cash profit after capex 55038 9185 12341 -8358 68206
--------------------------------------------- ------------ ----------- ----------- ------------ -----------
2003/2004
-----------------------------------------------------------------------------------------------------------
Total
Crown R/Leases City Deep Knights Crown
------------ ----------- ----------- ------------ -----------
TONS RECLAIMED 000's 5355 120 2555 4017 12047
HEAD GRADE g/t 0.594 3 0.622 0.539 0.576
RESIDUE g/t 0.22 1.05 0.20 0.29 0.22
RECOVERY GRADE g/t 0.37 1.95 0.42 0.25 0.36
RECOVERY % 62.25 65 67.45 46.65 61.91
GOLD DISPATCHED Kgs 1980 234 1072 1010 4296
GOLD REVENUE R/Ton 41.71 220 47.33 28.37 40.23
W/COSTS R/Ton 28.53 143.7 39.12 27.1 31.45
W/PROFIT R/Ton 13.23 76.6 8.26 1.3 8.83
W/COSTS incl CAPEX R/Ton 30.26 143.7 40.67 27.1 32.54
GOLD REVENUE R/Kg 112816 112821 112816 112818 112818
W/COSTS R/Kg 77160 73692 93237 107782 88182
W/PROFIT R/Kg 35778 39282 19691 5154 24755
W/COSTS incl CAPEX R/Kg 81846 73692 96922 107782 91261
Gold Revenue 223376 26400 120939 113946 484661
Silver Revenue 240 36 120 120 516
Total Working Costs 152776 17244 99950 108860 378830
------------ ----------- ----------- ------------ -----------
Gold Working Profit/(Loss) 70840 9192 21109 5206 106347
Total Capex 9279 0 3950 0 13229
------------ ----------- ----------- ------------ -----------
Cash profit after capex 61561 9192 17159 5206 93118
--------------------------------------------- ------------ ----------- ----------- ------------ -----------
2004/2005
-----------------------------------------------------------------------------------------------------------
Total
Crown R/Leases City Deep Knights Crown
------------ ----------- ----------- ------------ -----------
TONS RECLAIMED 000's 5355 120 2555 4020 12050
HEAD GRADE g/t 0.631 3 0.622 0.572 0.603
RESIDUE g/t 0.26 1.05 0.20 0.26 0.23
RECOVERY GRADE g/t 0.37 1.95 0.42 0.31 0.38
RECOVERY % 58.69 65 67.2 54.8 62.55
GOLD DISPATCHED Kgs 1983 234 1068 1260 4545
GOLD REVENUE R/Ton 45.95 241.99 51.87 38.9 46.81
W/COSTS R/Ton 30.96 155.91 42.45 29.4 34.12
W/PROFIT R/Ton 14.99 86.08 9.42 9.5 12.69
W/COSTS incl CAPEX R/Ton 31.61 155.91 43.98 29.4 34.73
GOLD REVENUE R/Kg 124098 124098 124098 124098 124098
W/COSTS R/Kg 83606 79953 101554 93800 90462
W/PROFIT R/Kg 40492 44145 22544 30298 33636
W/COSTS incl CAPEX R/Kg 85371 79953 105206 93800 92090
Gold Revenue 246086 29039 132537 156363 564025
Silver Revenue
Total Working Costs 165791 18709 108460 118188 411148
------------ ----------- ----------- ------------ -----------
Gold Working Profit/(Loss) 80295 10330 24077 38175 152877
Total Capex 3500 0 3900 7400
------------ ----------- ----------- ------------ -----------
Cash profit after capex 76795 10330 20177 38175 145477
--------------------------------------------- ------------ ----------- ----------- ------------ -----------
CROWN GOLD RECOVERIES (PTY) LTD
LIFE OF MINE
2005/2006
-------------------------------------------------------------
Total
Crown R/Leases City Deep Knights Crown
------------ ----------- ----------- ------------ -----------
TONS PROCESSED 000's 5355 120 2460 4020 11955
HEAD GRADE g/t 0.608 3 0.624 0.514 0.574
RESIDUE g/t 0.24 1.05 0.21 0.28 0.23
RECOVERY GRADE g/t 0.36 1.95 0.41 0.23 0.35
RECOVERY % 59.95 65 65.86 45.54 60.3
GOLD DISPATCHED Kgs 1952 234 1011 941 4138
REVENUE R/Ton 49.76 266.18 56.1 31.95 47.25
W/COSTS R/Ton 33.59 169.16 46.06 31.9 36.95
W/PROFIT R/Ton 16.17 97.02 10.04 0.05 10.3
W/COSTS incl CAPEX R/Ton 34.24 169.16 46.67 31.9 37.37
REVENUE R/Kg 136499 136499 136499 136499 136499
W/COSTS R/Kg 92149 86748 112075 136278 106747
W/PROFIT R/Kg 44350 49752 24423 221 29752
W/COSTS incl CAPEX R/Kg 93942 86748 113559 136278 107955
Gold Revenue 266446 31941 138000 128446 564833
Silver Revenue
Total Working Costs 179874 20299 113308 128238 441719
------------ ----------- ----------- ------------ -----------
Gold Working Profit/(Loss) 86572 11642 24692 208 123114
Total Capex 3500 0 1500 5000
------------ ----------- ----------- ------------ -----------
Cash profit after capex 83072 11642 23192 208 118114
--------------------------------------------- ------------ ----------- ----------- ------------ -----------
2006/2007
-------------------------------------------------------------
Total
Crown R/Leases City Deep Knights Crown
------------ ----------- ----------- ------------ -----------
TONS PROCESSED 000's 5355 334 2460 4020 12169
HEAD GRADE g/t 0.574 0.665 0.702 0.514 0.564
RESIDUE g/t 0.23 0.27 0.26 0.28 0.23
RECOVERY GRADE g/t 0.35 0.40 0.45 0.23 0.33
RECOVERY % 60.38 59.43 63.47 45.54 58.65
GOLD DISPATCHED Kgs 1856 132 1096 941 4025
REVENUE R/Ton 52.03 59.33 66.88 35.14 49.65
W/COSTS R/Ton 36.45 0 49.98 34.61 37.58
W/PROFIT R/Ton 15.58 59.33 16.9 0.53 12.07
W/COSTS incl CAPEX R/Ton 37.1 0 50.59 34.61 37.99
REVENUE R/Kg 150112 150112 150112 150112 150112
W/COSTS R/Kg 105167 0 112182 147855 113608
W/PROFIT R/Kg 44945 150114 37931 2256 36504
W/COSTS incl XXXXX X/Xx 000000 0 113550 147855 114850
Gold Revenue 278608 19815 164523 141255 604201
Silver Revenue 0 0 0 0 0
Total Working Costs 195190 0 122951 139132 457273
------------ ----------- ----------- ------------ -----------
Gold Working Profit/(Loss) 83418 19815 41572 2123 146928
Total Capex 3500 0 1500 0 5000
------------ ----------- ----------- ------------ -----------
Cash profit after capex 79918 19815 40072 2123 141928
--------------------------------------------- ------------ ----------- ----------- ------------ -----------
2007/2008
-------------------------------------------------------------
Total
Crown R/Leases City Deep Knights Crown
------------ ----------- ----------- ------------ -----------
TONS PROCESSED 000's 4253 0 2460 2260 8973
HEAD GRADE g/t 0.446 0 0.702 0.437 0.514
RESIDUE g/t 0.18 0.00 0.26 0.23 0.21
RECOVERY GRADE g/t 0.27 0.00 0.45 0.21 0.30
RECOVERY % 60.57 0 63.47 47.08 58.76
GOLD DISPATCHED Kgs 1149 0 1096 465 2710
REVENUE R/Ton 44.61 0 73.57 33.97 49.87
W/COSTS R/Ton 39.55 0 54.23 37.55 43.07
W/PROFIT R/Ton 5.06 0 19.34 -3.58 6.8
W/COSTS incl CAPEX R/Ton 40.37 0 54.84 37.55 43.63
REVENUE R/Kg 165123 0 165123 165123 165123
W/COSTS R/Kg 146393 0 121721 182501 142611
W/PROFIT R/Kg 18729 0 43402 -17378 22512
W/COSTS incl XXXXX X/Xx 000000 0 123089 182501 144456
Gold Revenue 189726 0 180975 76782 447483
Silver Revenue 0 0 0 0 0
Total Working Costs 168206 0 133406 84863 386475
------------ ----------- ----------- ------------ -----------
Gold Working Profit/(Loss) 21520 0 47569 -8081 61008
Total Capex 3500 0 1500 0 5000
------------ ----------- ----------- ------------ -----------
Cash profit after capex 18020 0 46069 -8081 56008
--------------------------------------------- ------------ ----------- ----------- ------------ -----------
