EXHIBIT 4.53
MANAGEMENT SERVICES AGREEMENT
between
DURBAN ROODEPORT DEEP, LIMITED
(REGISTRATION NO 1895/000926/06)
("DRD")
and
EAST RAND PROPRIETARY MINES LIMITED
(REGISTRATION NO. 1893/00773/06)
("ERPM")
WHEREAS ERPM and DRD wish to enter into a management services agreement on the
terms and conditions recorded herein.
1. DURATION
This agreement shall commence on 8 October 2002 and endure for an initial fixed
period of 2 (two) years, until 2 October 2004, whereafter it will be
automatically renewed for further annual periods until terminated either:
1.1. by either party on 6 (six) months written notice given prior to 7
October 2004 or on the expiry of any annual period thereafter; or
1.2. upon the final cessation by ERPM of mining and related activities,
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provided that ERPM shall not be entitled to terminate this agreement foras long
as ERPM is indebted to DRD for any cause of indebtedness whatsoever; and
(a) as long as it is a wholly owned subsidiary of Crown Gold Recoveries
(Pty) Ltd ("CROWN") and DRD has a 40% shareholding in the latter company
through Crown Consolidated Gold Recoveries Ltd; and
(b) for as long as DRD is financially committed to ERPM or on behalf of ERPM
or on behalf of ERPM to third parties.
In the event of the proposed sale agreement of shares in ERPM to CROWN not being
implemented, ERPM shall be entitled to cancel this agreement at any time on 3
(three) months written notice, provided that ERPM repays DRD all outstanding
amounts owed to DRD and, If required by CROWN, accepts cession and assignment
from CROWN of all hedging commitments put in place for gold production of ERPM.
2. NOW THEREFORE IT IS AGREED:
2.1. That DRD shall provide to ERPM the services set out in paragraph 3, for
which DRD will be remunerated on the basis of this agreement.
2.2. ERPM acknowledges that it is aware that DRD acts in the same or similar
capacity for other companies and agrees that DRD shall be entitled to
continue to do so and, accordingly, that the services will not be
available to ERPM on an exclusive full-time basis.
3. SPECIFIC SERVICES TO BE RENDERED
DRD shall provide ERPM with the following specific services:
3.1. Executive services;
3.2. Financial management;
3.3. Gold administration and hedging;
3.4. Treasury services;
3.5. Engineering services;
3.6. Metallurgical services;
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3.7. Public relations services;
3.8. Mineral resource services;
3.9. Critical equipment pool services;
3.10. Human resources strategic direction;
3.11. Legal services;
3.12. Environmental services;
3.13. Contracts and insurance services;
3.14. Company secretarial services.
4. REMUNERATION CHARGE
4.1. The monthly charge payable by ERPM to DRD for the specific services
rendered and to be rendered in terms of this agreement shall be R1 443
500,00 per month calculated in terms of Annexure A for the first two
years, escalating by the September CPI inflation rate (all indexes) per
annum compounded on 8 October 2004 and annually thereafter.
4.2. DRD shall be entitled to second certain employees to ERPM on a full time
basis from time to time and the costs of such employees shall be payable
by ERPM in addition to the fee in 4.1.
4.3. The charge far each month shall be payable monthly in arrears on the
last working day of each month. The amounts payable as per 4.1 are
exclusive of VAT.
4.4. Should ERPM request DRD to provide:
4.4.1. services other than those specifically set out in paragraph 3; or
4.4.2. services which may fall within the general categories set out in
paragraph 3 but which go beyond those required in the ordinary
and normal course of ERPM's business or are of an extraordinary
nature, then the fees payable by DRD shall be that amount as may
be agreed upon between DRD and ERPM when those services are
requested.
5. LIMITATION OF LIABILITY
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Xxxxxxx XXX nor its directors or employer shall be responsible for any
liability, loss or damage suffered or incurred by ERPM, its employees,
agents, contractors, invitees, guests or any other persons whosoever, whether
or not such liability, loss or damage is caused or incurred through or as a
result of any act or omission or the negligence of DRD, its employees or
agents, or otherwise howsoever, and ERPM hereby indemnifies and holds
harmless DRD against any claim by any such employee, agent, contractor,
invitee guest or other person and all legal costs which may be incurred by or
awarded against DRD in respect of or arising out of such claim.
6. FORCE MAJEURE
6.1. If DRD is rendered unable, wholly or in part, by "force majeure" to
carry out any obligation under this agreement, DRD shall give prompt
notice to ERPM of such force majeure with full particulars thereof and
insofar as known the probable extent to which it will be unable to
perform or be delayed in performing such obligation, whereupon such
obligation of DRD shall be suspended so far as it is affected by such
force majeure during but not longer than the continuance thereof. In the
event of a substantial and material portion of DRD's obligations being
so suspended for a period exceeding 6 (six) months, either party shall
be entitled to terminate this agreement upon 30 (thirty) days written
notice.
6.2. For the purpose of 6.1, "force majeure" shall mean an act of God,
strike, lock-out, act of public enemy, war (declared or undeclared),
blockade, revolution, riot, insurrection, civil commotion, lightning,
fire, storm, flood, explosion, governmental act or restraint, embargo,
unavailability of equipment or transport and other cause whether of a
kind specifically set out above or otherwise, which is not reasonably
within the control of DRD and whether of a temporary or permanent
nature.
7. ARBITRATION
7.1. Any dispute arising out of this Agreement or the interpretation thereof,
both while in force and after its termination, shall be submitted to and
determined by arbitration. Any party may demand arbitration by notice in
writing to the other parties. Such arbitration shall be held in
Johannesburg unless otherwise agreed to in writing and shall be held in
a summary manner with a view to it being completed as soon as possible.
7.2. There shall be 1 (one) arbitrator who shall be, where the question and
issue is:
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7.2.1. primarily an accounting matter, an Independent chartered
accountant of 10 (ten) years standing;
7.2.2. primarily a legal matter, a practising Senior Counsel; or
7.2.3. primarily a technical matter, a suitably qualified person.
7.3. The appointment of the arbitrator shall be agreed upon between the
parties in writing but, failing agreement between them, within a period
of 14 (fourteen) days after the arbitration has been demanded in terms
of clause 7.1, any party shall be entitled to request the President for
the time being of the Law Society of the Northern Provinces to make the
appointment and, in making his appointment, to have regard to the nature
of the dispute.
7.4. The arbitrator shall have the powers conferred upon an arbitrator under
the Arbitration Xxx 0000 (as amended), but shall not be obliged to
follow the procedures prescribed in that Act and shall be entitled to
decide on such procedures as he may consider desirable for the speedy
determination of the dispute, and in particular he shall have the sole
and absolute discretion to determine whether and to what extent it shall
be necessary to file pleadings, make discovery of documents or hear oral
evidence.
7.5. The decision of the arbitrator shall be final and binding on the parties
and may be made an order of any court of competent jurisdiction. The
parties hereby submit themselves to the non-exclusive jurisdiction of
the Witwatersrand Local Division of the High Court of South Africa, or
any successor thereto, should any Party wish to make the arbitrator's
decision an order of that Court.
8. DOMICILIA
The parties choose as their respective domicilia citandi et executandi for
all purposes connected with this agreement, the following addresses, namely:
DRD Physical Address: DRD Building
00 Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxx
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Postal Address: P O Xxx 000
Xxxxxxxxxx, 0000
Fax No: 482-1022
ERPM: Physical Address: Xxxxxx Xxxx Xxxx & Xxxxxxxx Xxxxx
Xxxxxxxx
Postal Address: P O Box 2227
Xxxxxxxx, 0000
Fax No: 892-4650
9. CONFIDENTIALITY
9.1. No party shall make any announcement or statement regarding this
agreement or its content without first having obtained the others'
approval and prior written consent to such announcement or statement and
its terms.
9.2. The provisions of 9.1 shall not apply in respect of any announcement or
statement which any of the parties is legally obliged to make by virtue
of its shares being listed on either the JSE Securities Exchange, South
Africa or any other exchange, provided that the party concerned shall
consult with the other parties prior to making any announcement or
statement contemplated in this clause 9.2
9.3. No party to this agreement shall disclose the contents of this agreement
to any person other than its bankers and to those of its employees who
need to have such knowledge for the proper performance of their duties.
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SIGNED at Boksburg on this 10th day of October 2002.
For: DURBAN ROODEPORT DEEP, LIMITED
Witness: /s/ X. Xxxxxxxx /s/ X.X. Xxxxxxx
---------------------- --------------------------------
DIRECTOR
SIGNED at Boksburg on this 10th day of October 2002.
For: EAST RAND PROPRIETARY MINES
LIMITED
Witness: /s/ X. Xxxxxxxx /s/ X. Xxxxxx
------------------------ -------------------------------
DIRECTOR
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ANNEXURE A
MANAGEMENT FEE
TIME RATE BENCHMARK Allocation
SERVICE PERSON (HOURS) DRD RATE(*) DRD
------------------------------------ ------------------------ ----------- ----------- -------------- ----------
Executive services MWW 39 6,000 234,000
FC 155 3,000 468,000
ILM 39 3,000 117,000
BB 39 1,500 58,500
Financial management K Dissel 20 1,500 1,600 30,000
Gold admin and treasury A Xxxxxx 20 1,000 1,350 20,000
Engineering service G Xxxxxxx 146 1,500 1,800 219,000
Metallurgical services B Ebell 39 1,000 1,350 38,000
Public relations Russels 39 1,500 1,800 58,500
MRM D xx Xxxxx 20 1,500 1,800 30,000
HR training and IR J Xxxxxx 39 2,000 1,800 40,000
Environmental M Marais 39 1,000 1,350 39,000
Contracts and Insurance K Hall 39 1,000 1,350 39,000
Secretarial M Eloff 20 1,500 1,800 30,000
Legal B Xxxxxx 39 1,000 1,350 21,500
---------
1,443,500
*Benchmark rates based on one of the big five auditing firms
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RESOLUTION OF DIRECTORS OF EAST BAND PROPRIETARY MINES LIMITED ("THE
COMPANY") PASSED AT JOHANNESBURG ON 10 OCTOBER 2002
RESOLVED:
That the Memorandum of Agreement between the present shareholders of the
company and Crown Gold Recoveries (Pty) Limited ("the Agreement'), whereby
such shareholders sell to Crown their shares in and shareholders' claims
against the company, be and is hereby noted and approved by the company;
that the company acknowledges, notes, and agrees as it hereby does, to the
cessions by those present shareholders of the company who have shareholders'
claims against the company, as defined in clause 1.1.6 of the Agreement, of
such claims to Crown Gold Recoveries (Pty) Limited, and the pledge by all the
shareholders of the company, of their shares to Crown, all IN SECURITUM
DEBITI in terms of clause 5.3 of the Agreement.
CERTIFIED A TRUE AND CORRECT COPY OF THIS RESOLUTION
---------------------------------
SECRETARY 0F THE COMPANY
