EXHIBIT 4.68
AGREEMENT OF EMPLOYMENT
BETWEEN
DURBAN ROODEPOORT DEEP, LIMITED
AND
IAN XXXXX XXXXXX
.
.
.
Page 2
CONTENTS
NO CLAUSE PAGE NO
1 RECORDAL.............................................................................. 3
2 DEFINITIONS........................................................................... 4
3 EMPLOYMENT............................................................................ 6
4 DUTIES................................................................................ 6
5 REMUNERATION PACKAGE.................................................................. 9
6 HOME WORKING AREA, TELEPHONES AND SECURITY............................................ 10
7 BONUS AND INCENTIVES.................................................................. 11
8 LEAVE................................................................................. 15
9 SICK LEAVE AND INCAPACITY............................................................. 15
10 INSURANCE COVER....................................................................... 16
11 BREACH................................................................................ 18
12 RESTRAINT AGREEMENT................................................................... 18
13 DISPUTES.............................................................................. 18
14 APPLICATION OF PROVISIONS OF COMPANY PROCEDURES....................................... 19
15 ELIGIBLE TRANSACTION.................................................................. 19
16 THE RIGHT OF THE EXECUTIVE TO TERMINATE THIS AGREEMENT FOR AN ELIGIBLE TRANSACTION.... 20
17 ELIGIBLE TERMINATION.................................................................. 21
18 BENEFITS PAYABLE FOR AN ELIGIBLE TERMINATION.......................................... 21
19 SHARE OPTION SCHEME PROVISIONS........................................................ 22
20 THE RIGHT OF THE COMPANY TO ASSIGN THIS AGREEMENT..................................... 23
21 DIRECTORSHIPS......................................................................... 23
22 GENERAL............................................................................... 24
23 STATUS OF THIS AGREEMENT.............................................................. 25
APPENDICES:
A. A COPY OF THE CURRENT EMPLOYMENT AGREEMENT.
B. THE EXECUTIVE'S DUTIES AND RESPONSIBILITIES
C. A COPY OF THE RESTRAINT AGREEMENT.
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AGREEMENT OF EMPLOYMENT
BETWEEN
DURBAN ROODEPOORT DEEP, LIMITED
(a company duly incorporated under the Companies Xxx, 0000, registration number
1901/00926/06)
("the Company")
AND
IAN XXXXX XXXXXX
(Identity No. 0000000000000)
("the Executive")
1 RECORDAL
1.1 The Parties record that -
1.1.1 The Executive is employed by the Company as Chief Financial
Officer in terms of the Current Employment Agreement, a copy
of which is attached to this Agreement as Appendix "A". The
parties record that, as from 1 December 2003, the Executive
has also been employed as Chief Executive Officer.
1.1.2 The Parties now wish to enter into a new employment agreement
to replace the Current Employment Agreement.
1.1.3 The Parties are accordingly replacing the Current Employment
Agreement with this Agreement to give effect to CLAUSE 1.1.2
above.
1.2 The Parties further record that the Executive has been appointed as
a Director of the Company which appointment shall continue in
effect.
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2 DEFINITIONS
For the purposes of this Agreement, unless the context indicates
otherwise, the Parties defined in the heading of this Agreement shall
retain such definitions and the words and expressions set out below shall
have the meaning assigned to them, namely:
2.1 "Auditors" means the auditors of the Company for the
time being;
2.2 "Board" means the board of directors of the
Company for the time being;
2.3 "Business" means the business of the Group of the
mining and exploration of gold and other
minerals and metals;
2.4 "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;
2.5 "Code" means the Securities Regulation Code
promulgated in terms of section 440(C)(5)
of the Companies Act, 1973, as amended
from time to time;
2.6 "Commencement Date" means 1 November 2000;
2.7 "Confidential Information" means all information which 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;
2.8 "Current Employment means the current employment agreement
Agreement referred to in CLAUSE 1.1.1 of this
Agreement.
2.9 "Documents" means documents of any nature, disks,
notebooks, tapes or any other medium,
whether or not eye-readable, on which
information may be recorded from time to
time;
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2.10 "Eligible Termination" means a termination of this Agreement as
contemplated in CLAUSE 17;
2.11 "Eligible Transaction" means an "Eligible Transaction" as defined
in CLAUSE 15;
2.12 "Engagement Date" means the date on which the Executive
commenced his employment with the Company,
namely 1 June 1997;
2.13 "Financial Year" means the financial year of the Company as
determined by it from time to time;
2.14 "Group" means the Company and all its
Subsidiaries;
2.15 "Group Renumeration means the committee of directors of the
Committee" Company or of directors of companies
within the Group who constitute a
committee for the purposes of determining
the renumeration of executives employed by
companies within the Group;
2.16 "Parties" means the Parties to this Agreement;
2.17 "Remuneration Package" in relation to each year, the aggregate of
all amounts payable by the Company to and
on behalf of the Executive as is more
fully set out in clause 5 and as amended
from time to time;
2.18 "Restraint Agreement" means the Restraint of Trade Agreement
entered into between the Parties, a copy
of which is attached to this Agreement as
Appendix C;
2.19 "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
Executive is, or may be, an eligible
participant;
2.20 "Subsidiary" shall have the meaning assigned to it in
the Companies Act, 1973, as amended from
time to time; and
2.21 "this Agreement" means this agreement and includes all its
Appendices, which shall form part of it.
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3 EMPLOYMENT
3.1 Notwithstanding the provisions of this Agreement or any other
agreement entered into between the parties, the employment of the
Executive as an employee of the Company shall be deemed to have
commenced on the Engagement Date.
3.2 Subject to CLAUSES 9, 11 AND 16, this Agreement shall remain in
force for a period of 2 (two) years, which period shall be deemed to
have commenced on 1 December 2003. On the expiry of this period this
Agreement shall expire automatically.
3.3 On the expiry of this Agreement in terms of CLAUSE 3.2, the
Executive shall be paid an amount equal to half his Remuneration
Package calculated on the basis of the Remuneration Package payable
to the Executive on the date of termination of employment.
3.4 Notwithstanding CLAUSE 3.2, the parties envisage the possibility
that this Agreement may be extended for a further period of time, or
that a further agreement may be entered into between them in terms
of which the Executive shall continue to be employed by the Company.
Negotiations for the extension of this Agreement or the entering
into of a new agreement shall commence at least 6 (six) months prior
to the termination of this agreement as envisaged in CLAUSE 3.2.
Should this Agreement be extended or should a further agreement be
entered into, the payment referred to in CLAUSE 3.3 shall not be
made but shall be made at the termination of the new agreement or on
the termination of the extended agreement.
4 DUTIES
4.1 The Executive shall:
4.1.1 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, including those set out in Appendix
B to this Agreement;
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4.1.2 in the discharge of such duties and in the exercise of such
powers referred to in CLAUSE 4.1.1, observe and comply with
all resolutions, regulations and directives from time to time
made or given by the Board;
4.1.3 use his best endeavours property 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
4.1.4 not be in the employment of any other employer other than
within the Group.
4.2 It shall be part of the normal duties of the Executive at all times
to consider in what manner and by what new methods or devices the
products, services, processes, equipment or systems of the Company
or Group might be improved, and promptly to give to the company
secretary of the Company full details of any invention or
improvement which he may from time to time make or discover in the
course of his duties, and to further the interests of the Company
and the Group in this regard. The Executive acknowledges that any
invention or improvement referred to in this CLAUSE 4.2 shall be the
property of the Company or the relevant entity within the Group and
the Executive shall take all steps as may be necessary and
reasonably required by the Company or relevant entity within the
Group, at the sole expense of the Company or relevant entity within
the Group, to procure that the Company or relevant entity obtains
complete and exclusive legal title to any such invention or
improvement.
4.3 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 duties to the Executive or
to re-assign those duties from the Executive to other persons from
time to time as well as to add to and delete from the
responsibilities of the Executive from time to time. The Parties
agree that this flexible work requirement is part of the agreement
of employment and amendments as
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envisaged can be made within the terms of this agreement without
constituting a breach.
4.4 The Executive shall not, either during his employment with the
Company and within the Group or thereafter, use or disclose to any
third parties, or attempt to use or to disclose to any third parties
any Confidential Information. The Executive shall promptly whenever
so requested by the Company and, in any event, upon the termination
of his employment 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 or
have come into his possession in the course of his employment with
the Company, and the Executive shall not be entitled to retain any
copies thereof. The Executive acknowledges that all title and
copyright in the Confidential Information and Documents shall vest
in the Company.
4.5 The Executive shall, with immediate effect, take all reasonable
steps to recruit and employ a person who is suitable to succeed to
the Executive's position as Chief Financial Officer. It is envisaged
that this shall be done within a period of 12 (twelve) months from
the date of signature of this Agreement.
4.6 At such time as the Executive, after consultation with Xx. Xxx Xxxx
or such other person who may have been nominated by the Company, is
satisfied that the person so employed is in a position to accept the
responsibilities of Chief Financial Officer, and in any event not
later than 12 (twelve) months after the appointment of such
successor in terms of CLAUSE 4.5, the Executive shall relinquish his
duties as Chief Financial Officer. However, he shall continue to
perform his duties as Chief Executive Officer.
4.7 On him relinquishing his duties as Chief Financial Officer the
Company shall pay the Executive an amount equal to 93 (ninety-three)
per cent of his Remuneration Package calculated on the basis of the
Remuneration Package received by the Executive on the date that he
relinquishes his duties as Chief Financial Officer.
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5 REMUNERATION PACKAGE
5.1 The Executive shall receive an annual all-inclusive Remuneration
Package of R1 500 000.00 (one million five hundred thousand rand).
The Remuneration Package will be paid in 12 equal monthly
instalments.
5.2 The Remuneration Package referred to in CLAUSE 5.1, includes:
5.2.1 all contributions to the Pension or Provident Fund of which
the Executive is a member, made in accordance with the
relevant rules of the fund in question;
5.2.2 all contributions to the Medical Aid Scheme of which the
Executive and his dependants are members; and
5.2.3 all allowances for vehicles, water, electricity,
entertainment, subsistence and accommodation to which the
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.
5.3 Notwithstanding anything to the contrary in this Agreement, the
payment by the Company of the premiums on behalf of the Executive to
the Group Life Scheme as referred to in CLAUSE 10, and the payment
by the Company of any monies payable in terms of the rules of the
Share Option Scheme for any of the share options to which the
Executive may be entitled in terms of CLAUSE 19, shall not
constitute part of the Remuneration Package.
5.4 The Company will refund, or will procure the refunding, to the
Executive of all reasonable expenses properly incurred by him in
performing his duties under this Agreement in accordance with
Company policy. This will include expenses relating to entertainment
and traveling. The Company requires the Executive to submit official
receipts or other documents as proof that he has incurred any
expenses he claims.
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5.5 The Company undertakes to reimburse the following costs to be
incurred by the Executive for the benefit of the Company:
5.5.1 in light of the Company requiring the Executive to be a member
of one or more clubs, the annual membership fees payable by
the Executive for membership of any 2 (two) of such clubs;
5.5.2 membership subscriptions, payable by the Executive for
membership of relevant work related associations and/or
societies approved in writing in advance by the Company and of
which the Executive is a member by virtue of his employment
with the Company;
5.5.3 any cost of insurance cover for any 2 (two) of the motor
vehicles owned by the Executive during the term of this
Agreement.
5.6 The Executive shall be entitled to use any travel miles allocated on
any business credit cards and flying membership cards issued to him
by the Company for his family and personal use.
5.7 The Company will require the Executive to undergo a medical
examination at the cost of the Company on an annual basis and the
Executive agrees to give effect to this requirement.
5.8 The date of payment of the salary portion of the Remuneration
Package of the Executive shall be the 24th day of each calendar
month.
6 HOME WORKING AREA, TELEPHONES AND SECURITY
6.1 It is recorded that the Company requires that the Executive maintain
an adequately furnished study or work area at his residences for the
purposes of business meetings, out of hours work and work
preparation, reading and study. It is further recorded that the
Executive is, at all times, required to maintain contact with his
office, other offices of the Company world wide, colleagues, stock
exchanges on which the Company is listed and shareholders.
Accordingly, the Company undertakes that:
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6.1.1 it shall provide and bear all costs of telephones at the
residences of the Executive;
6.1.2 the Executive will be issued with a cellular telephone which
can be used for personal and business purposes and the monthly
costs of this cellular phone and the installation of car kits
and other costs incurred on this cellular telephone, shall be
for the account of the Company; and
6.1.3 the Company shall at its own cost provide appropriate security
and security services at at least 2 (two) residential premises
within or outside South Africa nominated by the Executive from
time to time. The Company shall continue to provide such
security and security services at its own cost for a period of
5 (five) years after the date of termination of the
Executive's employment, by either party for any reason
whatsoever.
6.2 For the purposes of this clause "appropriate security" shall include
at least an appropriate alarm, motion detectors, lighting, electric
fencing, gates, provision of 24 hour a day (seven days a week) armed
security at the premises, alarm monitoring with armed response and a
close protection officer available at all hours.
7 BONUS AND INCENTIVES
7.1 In addition to the Remuneration Package and other benefits
stipulated in this Agreement, the Executive shall be eligible for
the bonuses and incentives set out in this clause subject to the
conditions set out herein.
7.1.1 The Executive shall be entitled to bonuses to be determined
with reference to targets set in terms of key performance
indicators as agreed between the Executive and the Group
Remuneration Committee.
7.1.2 Bonuses shall be calculated and be payable in respect of 4
(four) bonus cycles. The first cycle shall be deemed to have
commenced on 1 January 2004 and shall terminate on 30 June
2004. The second bonus cycle shall
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commence on 1 July 2004 and shall terminate on 31 December
2004. The third bonus cycle shall commence on 1 January 2005
and terminate on 30 June 2005. The fourth bonus cycle shall
commence on 1 July 2005 and terminate on 30 November 2005.
Should the Executive meet all the targets set in terms of the
key performance indicators agreed to in respect of a specific
bonus cycle he shall be entitled to a bonus of 50 (fifty) per
cent of his Remuneration Package. Should the Executive not
fully meet all the targets set in terms of the key performance
indicators as agreed, he shall be entitled to such lesser
bonus as determined by the Group Remuneration Committee. This
bonus will be determined with reference to the extent that the
targets have been met.
7.1.3 The Company will pay any bonus payable in terms of this CLAUSE
7 to the Executive within 30 (thirty) business days of the end
of each bonus cycle.
7.1.4 The bonus referred to in CLAUSES 7.1.1 and 7.1.2 shall be paid
in the following manner:
7.1.4.1 the Company shall pay to the Executive the amount due to
the Executive in respect of each bonus cycle less 25%
(twenty five per cent) of that amount;
7.1.4.2 an amount equivalent to the amount deducted in terms of
CLAUSE 7.1.4.1 shall be retained by the Company for the
benefit of the Executive (excluding interest);
7.1.4.3 the Executive shall, provided that the Executive meets
the targets agreed with the Group Remuneration Committee
and accordingly qualifies for a bonus during the next
bonus cycle, be entitled to receive payment of the
amount retained by the Company during the previous bonus
cycle.
7.1.5 Notwithstanding the above, if this Agreement is not extended
or renewed as envisaged in CLAUSE 3.4, any bonus payable in
respect of the final bonus
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cycle shall be payable in full within 30 (thirty) business
days of the end of the final bonus cycle.
7.1.6 The provisions of this CLAUSE 7 shall be applicable to each
bonus cycle.
7.2 Any bonus to which the Executive has become entitled in terms of the
Current Employment Agreement shall continue to accrue and be payable
in terms of that Agreement.
7.3 Subject to the provisions set out below, the Executive, as
consideration for agreeing to remain in the employment of the
Company for the respective periods set out below, will be entitled
to be issued up to 198,000 (one hundred and ninety eight thousand)
ordinary shares in the Company in the tranches set out below. The
198,000 (one hundred and ninety eight thousand) ordinary shares
referred to in this CLAUSE 7.3 represent an amount equal to 240 (two
hundred and forty) per cent of the Executive's Remuneration Package
based on the closing price of the Company's shares on the JSE
Securities Exchange of South Africa on 1 December 2003. The Company
shall upon issue of such shares transfer to its stated capital
account a sum equal to the value of such consideration as determined
by the directors of the Company, which value shall not be higher
than the above amount. This entitlement is subject to the following
principles and conditions -
7.3.1 The shares shall be issued to the Executive in four equal
tranches. The Executive shall become entitled to, and shall be
issued, the first tranche on 30 November 2004, provided that
he is still in the employment of the Company on this date.
7.3.2 The Executive shall become entitled to, and shall be issued,
the second tranche on 30 November 2005, provided that he is
still in the employment of the Company on this date.
7.3.3 The Executive shall become entitled to, and shall be issued,
the third tranche on 30 November 2006, provided that he is
still in the employment of the Company on this date.
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7.3.4 The Executive shall become entitled to, and shall be issued,
the final tranche on 30 November 2007, provided that he is
still in the employment of the Company on this date.
7.4 Should this Agreement automatically terminate in accordance with the
provisions of CLAUSE 3.2 and should there be no extension of this
Agreement or the conclusion of another agreement as envisaged in
CLAUSE 3.4, the Board shall, at its discretion, be entitled to issue
to the Executive all or some of the shares to which the Executive
has not become entitled in terms of CLAUSE 7.3.3 and CLAUSE 7.3.4.
7.5 The parties record that upon the Executive becoming entitled to any
of the shares referred to in CLAUSES 7.3 or 7.4, the Company will be
obliged to deduct employees' tax from the amount accruing to the
Executive in terms of the Fourth Schedule of the Income Tax Act,
1962. Accordingly, within 7 (seven) days of becoming entitled to the
shares, the Executive will notify the Company in writing:
7.5.1 whether he wishes to receive the full allocation of shares, in
which event he will pay to the Company an amount equal to the
employee's tax payable in respect of those shares; or
7.5.2 whether he wishes to receive shares to the value of an amount
equal to the total value of shares to which he is entitled,
less the employee's tax payable.
7.6 If, on the date that shares should be issued in terms of CLAUSE 7.3
or 7.4 the Executive is prohibited, in terms any legal provision
and/or any rule or directive of any applicable Stock Exchange or
Securities Regulation Authority, from being issued with such shares,
these shares shall be issued on the first date on which such
prohibition is no longer in effect.
7.7 The parties record that the coming into effect of CLAUSE 7.3 is
subject to the Company's shareholders granting the necessary
approval in terms of the Companies Act, 1973. The parties further
record that if such approval is not
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granted, the Executive shall be eligible for shares in terms of the
rules of the Share Option Scheme.
8 LEAVE
8.1 The Executive shall be entitled to 30 (thirty) working days' paid
leave in each successive period of 12 (twelve) months of work
commencing on the Commencement Date and thereafter commencing on 1
July of each following year.
8.2 The Executive shall be entitled to an additional 21 (twenty one)
working days' paid leave during the period of the 60 (sixty) months
commencing on the Engagement Date and an additional 21 (twenty one)
working days' paid leave every successive cycle of 60 (sixty) months
thereafter.
8.3 With effect from the Commencement Date, the Executive shall not be
entitled to accumulate any further working days' leave as provided
for in CLAUSE 8.1 which has not been taken, unless the Board has
specifically requested the Executive in writing not to take leave in
such year. Any leave not taken will be converted into cash annually
on 1 July each year and be payable to the Executive.
8.4 Leave provided for in CLAUSE 8.2, which is not taken in a particular
cycle of 60 (sixty) months will not be forfeited but must be taken
in the next cycle of 60 (sixty) months.
9 SICK LEAVE AND INCAPACITY
If the Executive is at any time prevented by illness, injury, accident or
any other circumstances beyond his control from discharging his full
duties under this agreement (hereafter referred to as "incapacity") for a
total of 180 (one hundred and eighty) or more, days in any 12 (twelve)
consecutive calendar months' cycle commencing at the Commencement Date,
the Company may, by giving one month's written notice of termination to
the Executive, terminate this Agreement, in which event he shall be paid
an amount equal to half his Remuneration Package calculated on the basis
of the Remuneration Package payable to the Executive on the date of
termination of
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employment. Notwithstanding the incapacity and absence from work, the
Company shall be required to pay the Executive his full remuneration
during any period of absence from work prior to termination of employment
in terms of this clause.
10 INSURANCE COVER
10.1 The Company will apply for and maintain a reasonable level of
Directors' and Officers' Liability Insurance, with the Executive
covered as an insured and the Company will maintain at its expense
the same cover for the Executive for a period of 7 (seven) years
after termination of this Agreement by either party for any reason
whatsoever.
10.2 The Company undertakes to pay on the behalf of the Executive the
premiums payable by the Executive under the Group Life Scheme of the
Company. The cover under the Group Life Scheme shall include
temporary and permanent disability and trauma insurance. The life
assurance cover for the Executive will be an amount equivalent to 4
(four) years' gross annual Remuneration Package of the Executive
calculated on the basis of the Remuneration Package payable to the
Executive at the date of his death.
10.3 On termination of this Agreement, for whatsoever reason by either
the Company or the Executive, the Executive shall, subject to the
rules of the Group Life Scheme, be entitled to remain a member of
the Group Life Scheme and to enjoy the same benefits and coverage as
those he enjoyed immediately prior to the termination of employment.
The benefits and coverage shall be based on the Remuneration Package
that the Executive received immediately prior to the date of
termination of employment. The Company shall pay all premiums and
contributions payable to maintain' such membership and coverage for
a period of 5 (five) years calculated from the date of termination
of this Agreement. Should the Executive, as a result of the
termination of his employment, not be entitled to retain the
benefits and coverage contained in the Group Life Scheme, and he
decides to exercise the right to effect whole life or endowment
insurance as envisaged in Clause 4 of the Group Life Scheme, all
premiums and contributions
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for such benefits and coverage shall be borne by the Company for a
period of 5 (five) years calculated from the date of the termination
of this Agreement. The Company shall take all such steps, and
provide all such assistance, as may be necessary to ensure that the
Executive is entitled to exercise his rights in terms of this
clause. For the purposes of this CLAUSE 10.3 the Group Life Scheme
is the Sanlam Scheme No 18740 (Policy No. 18681100X6) or any other
similar scheme that is in effect at the date of termination of
employment.
10.4 The Company undertakes -
10.4.1 in the event of the Executive not being an employee as defined
in the Compensation for Occupational Injuries and Diseases
Act, 1993, to insure the Executive with the Rand Mutual
Assurance Limited or any other assurance company against risk
of death, or permanent disablement or temporary disablement
caused by an accident arising out of or in the course of his
employment with the Company or any member of the Group;
10.4.2 to keep the policy of insurance referred to in CLAUSE 10.4.1
in force and to pay the premiums thereon on time, and the
Executive agrees that the amount payable under the said policy
of insurance shall be taken and deemed to be and represent the
total and entire claim, demand and right of action of the
Executive, his executors or administrators or legal
representatives or assigns against the Company or its
employees for damages or compensation for injury suffered by
the Executive as a result of the negligence of the Company or
its employees 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 employees of and from all and any claim or
liability in respect of such injury and to waive any right of
claiming on the Company or its employees for any compensation
other than that which he is entitled to recover under the said
policy of insurance effected by the Company.
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11 BREACH
11.1 Notwithstanding any provision to the contrary, this Agreement may be
terminated by the Company with or without notice if the Executive:
11.1.1 commits any serious or persistent breach of any of the
provisions contained in this Agreement, provided that the
inability of the Executive to perform his duties due to
incapacity as envisaged in CLAUSE 9 shall not constitute a
breach of contract for the purposes of this Agreement;
11.1.2 is found guilty of theft, fraud or any gross irregularity; or
11.1.3 is found guilty of gross misconduct, serious malperformance or
wilful neglect in the discharge of his duties whether in terms
of this Agreement or in terms of any other agreement between
the Executive and a member of the Group.
12 RESTRAINT AGREEMENT
It is recorded that the Parties have entered into a Restraint Agreement a
copy of which is attached hereto as Appendix C.
13 DISPUTES
13.1 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 Relations Act, 1995, the
Parties will refer such dispute to private arbitration in accordance
with the provisions of this clause.
13.2 A senior counsel selected by agreement from the labour panel of the
Arbitration Foundation of Southern Africa (AFSA) will conduct the
arbitration.
13.3 The Parties will agree upon the date of the arbitration. In the
event that the Parties are unable to agree upon the arbitrator
and/or a date for the arbitration within 10 (ten) days of the
dispute arising, then the director of AFSA may be
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requested by either party to appoint a suitable arbitrator and to
nominate a date for the hearing of the arbitration.
13.4 The arbitrator will be entitled to determine the appropriate
procedure for determining the dispute.
13.5 The costs of the arbitrator will be borne equally by the Executive
and the Company.
13.6 The finding of the arbitrator will be final and binding on the
Parties.
14 APPLICATION OF PROVISIONS OF COMPANY PROCEDURES
14.1 The Executive's entitlement to any benefit other than those recorded
in this Agreement shall be governed by the appropriate procedure
manuals of the Company in force at any given time.
14.2 The Company is entitled from time to time to amend the terms and
conditions of its Company procedure manuals.
14.3 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.
15 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 fails within the ambit of clause
(a) of the definition of "affected transaction" in Section B of the Code,
read with clause 5 of the same Section of the Code.
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16 THE RIGHT OF THE EXECUTIVE TO TERMINATE THIS AGREEMENT FOR AN ELIGIBLE
TRANSACTION
16.1 If an Eligible Transaction is entered into, the Executive shall be
entitled to terminate this Agreement, subject to the following
provisions:
16.1.1 the Executive may exercise this right of termination by giving
written notice to this effect 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 ("the
Announcement Date"), is made in accordance with the
requirements of the Code, until the Closing Date of that
Eligible Transaction;
16.1.2 if the Executive gives written notice of termination in terms
of CLAUSE 16.1.1 he may at the same time, or at any time
before the Closing Date, or in the circumstances envisaged in
CLAUSE 16.1.6, any time before the extended date as defined in
CLAUSE 16.1.6, and notwithstanding the rules of the Share
Option Scheme or any directive of the Board, exercise all the
share options granted to him in terms of the Share Option
Scheme read with CLAUSE 19.2;
16.1.3 if the Executive gives written notice of termination in terms
of CLAUSE 16.1.1 he shall become entitled to, and shall be
issued, all the shares referred to in CLAUSE 7.3 which have
not yet been issued to the Executive in terms of that clause
notwithstanding that the dates referred to in CLAUSES 7.3.1,
7.3.2, 7.3.3 and 7.3.4 have not yet arrived;
16.1.4 any notice of termination given by the Executive in terms of
CLAUSE 16.1.1, any exercise of his rights under the Share
Option Scheme in terms of CLAUSE 16.1.2, and any right to be
issued shares in terms of CLAUSE 16.1.3 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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16.1.5 any notice of termination given in terms of CLAUSE 16.1.1, any
rights exercised in terms of CLAUSE 16.1.2 and any entitlement
to shares in terms of CLAUSE 16.1.3 may not be withdrawn or
revoked by the Executive, without the written consent of the
Company; and
16.1.6 if any notice of termination given by the Executive in terms
of CLAUSE 16.1.1 takes effect in terms of CLAUSE 16.1.4, this
Agreement shall terminate on the Closing Date of the Eligible
Transaction; provided that if the Executive is prohibited, in
terms any legal provision, and/or rule or directive of any
applicable Stock Exchange or Security Regulation Authority
from exercising any right under the Share Option Scheme, or
from being issued with shares in terms of CLAUSE 16.1.3, for
any period of time during the period between Announcement Date
and the Closing Date, this Agreement will not terminate on the
Closing Date but will continue in existence until a period of
30 days has elapsed, calculated from the date on which the
prohibition ceased to be of effect (the(0)extended date"),
provided further that if the Closing Date is a date later than
the Extended Date this Agreement shall terminate on the
Closing Date.
17 ELIGIBLE TERMINATION
This Agreement shall be regarded as having been terminated pursuant to an
Eligible Termination if the Executive exercises his right in terms of
CLAUSE 16 to terminate this Agreement as an employee of the Company, as a
result of the occurrence of an Eligible Transaction, and the termination
duly takes effect as contemplated in CLAUSE 16.
18 BENEFITS PAYABLE FOR AN ELIGIBLE TERMINATION
18.1 If this Agreement is terminated pursuant to an Eligible Termination,
the Executive shall, subject to compliance with the relevant company
laws, be entitled to receive payment from the Company as a
termination of employment benefit an amount equal to:
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TS x TE
12
Where:
TS = means the period (in completed calendar months) served
by the Executive as an employee of the Company from the
Engagement Date to the date of termination of this
Agreement as envisaged in CLAUSE 17, 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 Remuneration Package as set out in CLAUSE 5.
18.2 The total amount which becomes payable to the Executive in terms of
CLAUSE 18.1 shall accrue to him on the date that employment
terminates, and shall be payable to him within thirty days after the
amount has been determined by the Auditors in accordance with CLAUSE
18.3.
18.3 The total amount, and all the separate amounts making up the total
amount payable to the Executive in terms of CLAUSE 18.1 including
any pro rata adjustments made, shall be determined by the Auditors
as soon as possible after the date of termination, 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.
19 SHARE OPTION SCHEME PROVISIONS
19.1 All existing share options issued to the Executive since the
Engagement Date in terms of the rules of the Share Option Scheme
will be honoured.
19.2 If notice of termination of this Agreement is given pursuant to an
Eligible Termination then, notwithstanding anything to the contrary
under this Agreement the following provisions shall apply:
19.2.1 all share options granted to the Executive in terms of the
Share Option Scheme will not lapse but will vest in the
Executive with immediate effect
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and the Board will pass a resolution to this effect
simultaneously with or soon after the signature of this
Agreement;
19.2.2 the Company shall in any event procure, notwithstanding
anything to the contrary in the Share Option Scheme, that any
options granted to the Executive to acquire shares under the
Share Option Scheme shall immediately become exercisable by
him;
19.2.3 the Executive shall be entitled to exercise these options
during the period referred to in CLAUSE 16.1.1 or 16.1.6,
whichever is applicable, and;
19.2.4 notwithstanding anything to the contrary in this Agreement,
the Company shall be entitled to suspend the Executive during
the periods referred to in CLAUSE 19.2.3; provided that all
amounts and benefits which otherwise accrue to the Executive
during those periods shall continue to accrue as if he were
not suspended.
20 THE RIGHT OF THE COMPANY TO ASSIGN THIS AGREEMENT
20.1 The Company shall be entitled, without the consent of the 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.
20.2 For the avoidance of any doubt it is expressly recorded that the
provisions of CLAUSE 20.1 shall apply mutatis mutandis to any
succeeding assignee of this Agreement.
21 DIRECTORSHIPS
21.1 Should this Agreement terminate in terms of any of the provisions
thereof, the Executive shall resign his directorship within 2 days
of the termination of this Agreement unless the Board agrees in
writing to the Executive continuing to act as a director.
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21.2 Nothing contained in this Agreement shall be construed as according
the Executive any entitlement to compensation for loss of office as
a director of the Company or any company within the Group.
22 GENERAL
22.1 This document contains the entire agreement between the Parties in
regard to its subject matter.
22.2 No Party shall have any claim or right of action arising from any
undertaking, representation or warranty not included in this
Agreement.
22.3 No failure by either Party to enforce any provision of this
Agreement shall constitute a waiver of such provision or affect in
any way that 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.
22.4 No agreement to vary, add to or cancel this Agreement shall be of
any force or effect unless reduced to writing and signed on behalf
of all the Parties to this Agreement.
22.5 Save as permitted in terms of CLAUSE 20, no party may cede any of
its rights or delegate any of its obligations under this Agreement.
Page 25
23 STATUS OF THIS AGREEMENT
If there is any conflict between the provisions of this Agreement and
those of the Restraint Agreement, then the provisions of this Agreement
shall prevail.
SIGNED at London on 7th May 2004
For: DURBAN ROODEPOORT DEEP LIMITED
/s/ G Xxxxxxxx
---------------------------------
Signatory: Xxxxxxxx Xxxxxxxx
Capacity: Chairman of REMCO/Director
Authority: Chairman of REMCO
SIGNED at on 2004
/s/ I.L.Xxxxxx
---------------------------------
IAN XXXXX XXXXXX
