**Exhibit 4.25**

 

 

**  FINALEXECUTION VERSION**

 

 

**THEGOLD FIELDS LIMITED 2005 SHARE PLAN**

 

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**TABLE OF CONTENTS**

 
| **PART 1 - INTRODUCTION**                                | 1                                                                           |
|-------------------------------------------------------------------------|-----------------------------------------------------------------------------|
|                                                                    | ** **                                                                  |   |
| 1                                                                       | **DEFINITIONS  AND INTERPRETATION**                                         | 1 |
|                                                                    | ** **                                                                  |   |
| 2                                                                       | **PURPOSE**                                                                 | 12 |
|                                                                    | ** **                                                                  |   |
| **PART 2 - THE TRUST**                                   | 12                                                                          |
|                                                                    | ** **                                                                  |   |
| 3                                                                       | **CONSTITUTION  OF TRUST**                                                  | 12 |
|                                                                    | ** **                                                                  |   |
| 4                                                                       | **TRUSTEES**                                                                | 12 |
|                                                                    | ** **                                                                  |   |
| 5                                                                       | **POWERS  OF TRUSTEES**                                                     | 14 |
|                                                                    | ** **                                                                  |   |
| 6                                                                       | **SECURITY**                                                                | 16 |
|                                                                    | ** **                                                                  |   |
| 7                                                                       | **REMUNERATION  OF TRUSTEES**                                               | 16 |
|                                                                    | ** **                                                                  |   |
| 8                                                                       | **DUTIES  OF TRUSTEES**                                                     | 16 |
|                                                                    | ** **                                                                  |   |
| 9                                                                       | **INDEMNITY  AND LEGAL PROCEEDINGS**                                        | 17 |
|                                                                    | ** **                                                                  |   |
| 10                                                                      | **ACQUISITION  OF SHARES BY THE TRUSTEES**                                  | 17 |
|                                                                    | ** **                                                                  |   |
| 11                                                                      | **FUNDING  OF THE TRUST**                                                   | 18 |
|                                                                    | ** **                                                                  |   |
| 12                                                                      | **MAXIMUM  NUMBER OF SHARES WHICH MAY BE ACQUIRED BY PARTICIPANTS**    | 19 |
|                                                                    | ** **                                                                  |   |
| **PART 3 – THE PERFORMANCE VESTING RESTRICTED SHARE  METHOD** | 20                                                                          |
|                                                                    | ** **                                                                  |   |
| 13                                                                      | **GRANT  OF AWARDS**                                                        | 20 |
|                                                                    | ** **                                                                  |   |
| 14                                                                      | **SETTLEMENT  OF PERFORMANCE VESTING RESTRICTED SHARES**                    | 22 |
|                                                                    | ** **                                                                  |   |
| 15                                                                      | **LIMITATIONS  ON THE SETTLEMENT OF PERFORMANCE VESTING RESTRICTED SHARES** | 23 |
|                                                                    | ** **                                                                  |   |
| 16                                                                      | **TIME  FOR THE SETTLEMENT OF PERFORMANCE VESTING RESTRICTED SHARES**       | 24 |
|                                                                    | ** **                                                                  |   |
| 17                                                                      | **TERMINATION  OF EMPLOYMENT**                                              | 25 |

 

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| 18                                                                                    | **EXTENT  TO WHICH PERFORMANCE VESTING RESTRICTED SHARES UNDER AN AWARD ARE AVAILABLE  FOR SETTLEMENT ON TERMINATION OF EMPLOYMENT**             | 26     |
|---------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------|--------|
|                                                                                  | ** **                                                                                                                                       |   |
| **PART 4 – THE PERFORMANCE ALLOCATED SHARE  APPRECIATION METHOD** | 27                                                                                                                                               |
|                                                                                  | ** **                                                                                                                                       |   |
| 19                                                                                    | **ALLOCATION  OF PERFORMANCE ALLOCATED SHARE APPRECIATION RIGHTS**                                                                               | 27     |
|                                                                                  | ** **                                                                                                                                       |   |
| 20                                                                                    | **VESTING  OF PERFORMANCE ALLOCATED SHARE APPRECIATION RIGHTS**                                                                                  | 28     |
|                                                                                  | ** **                                                                                                                                       |   |
| 21                                                                                    | **TIME  FOR VESTING OF PERFORMANCE ALLOCATED SHARE APPRECIATION RIGHTS**                                                                         | 28     |
|                                                                                  | ** **                                                                                                                                       |   |
| 22                                                                                    | **TERMINATION  OF EMPLOYMENT**                                                                                                                   | 29     |
|                                                                                  | ** **                                                                                                                                       |   |
| 23                                                                                    | **EXTENT  TO WHICH PERFORMANCE ALLOCATED SHARE APPRECIATION RIGHTS UNDER AN ALLOCATION  ARE AVAILABLE FOR VESTING ON TERMINATION OF EMPLOYMENT** | 30     |
|                                                                                  | ** **                                                                                                                                       |   |
| 24                                                                                    | **CONSEQUENCES  OF VESTING**                                                                                                                     | 31     |
|                                                                                  | ** **                                                                                                                                       |   |
| **PART 5 - GENERAL**                                                   | 33                                                                                                                                               |
|                                                                                  | ** **                                                                                                                                       |   |
| 25                                                                                    | **ADJUSTMENTS**                                                                                                                                  | 33     |
|                                                                                  | ** **                                                                                                                                       |   |
| 26                                                                                    | **REACQUISITION**                                                                                                                                | 36     |
|                                                                                  | ** **                                                                                                                                       |   |
| 27                                                                                    | **TAX  LIABILITY**                                                                                                                               | 37     |
|                                                                                  | ** **                                                                                                                                       |   |
| 28                                                                                    | **LISTING  AND LEGAL REQUIREMENTS**                                                                                                              | 38     |
|                                                                                  | ** **                                                                                                                                       |   |
| 29                                                                                    | **AMENDMENT  OF THE PLAN**                                                                                                                       | 38     |
|                                                                                  | ** **                                                                                                                                       |   |
| 30                                                                                    | **ADMINISTRATION**                                                                                                                               | 39     |
|                                                                                  | ** **                                                                                                                                       |   |
| 31                                                                                    | **ANNUAL  ACCOUNTS**                                                                                                                             | 40     |
|                                                                                  | ** **                                                                                                                                       |   |
| 32                                                                                    | **STRATE**                                                                                                                                       | 40     |
|                                                                                  | ** **                                                                                                                                       |   |
| 33                                                                                    | **DISPUTES**                                                                                                                                     | 41     |
|                                                                                  | ** **                                                                                                                                       |   |
| 34                                                                                    | **PROFITS  AND LOSSES AND TERMINATION OF THE PLAN**                                                                                              | 44     |
|                                                                                  | ** **                                                                                                                                       |   |
| 35                                                                                    | **DOMICILIUM  AND NOTICES**                                                                                                                      | 44     |
|                                                                                  | ** **                                                                                                                                       |   |
| 36                                                                                    | **COMPLIANCE**                                                                                                                                   | 46     |

 

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| 37 | **GENERAL  PROVISIONS** | 46 |
|----|-------------------------|----|

 

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**THEGOLD FIELDS LIMITED 2005 SHARE PLAN**

** **

**PART 1 - INTRODUCTION**

 

1                                          **DEFINITIONS AND INTERPRETATION**

 

1.1                                                                                 In this Deed, unless expressly stipulated to the contrary or unlessthe context clearly indicates a contrary intention, the following words andexpressions shall bear the following meanings (and cognate words andexpressions shall bear corresponding meanings) -

 

1.1.1                                                                                                                        “**Act**” - theCompanies Act 61 of 1973;

 

1.1.2                                                                                                                        “**Allocation**” – theallocation of Performance Allocated Share Appreciation Rights to an EligibleEmployee in terms of 19.1 (read with 19.2) and the words “**allocated**” and “**allocate**” shall be construed accordingly;

 

1.1.3                                                                                                                        “**Allocation Date**” – thedate on which the Board resolves to make an Allocation to an Eligible Employee;

 

1.1.4                                                                                                                        “**Allocation Letter**” – aletter containing the information specified in 19.2 sent by the Trustees to aParticipant informing the Participant of the making of an Allocation to him;

 

1.1.5                                                                                                                        “**Allocation Price**” – theprice attributable to a Performance Allocated Share Appreciation Right, being aprice equal to the Fair Market Value of a Share on the Allocation Date;

 

1.1.6                                                                                                                        “**Any Other Plan**” - anyshare plan or scheme approved by the members of the Company in general meeting(other than the Plan) which provides for the acquisition of, or subscriptionfor, shares in the Company by, or on behalf of, employees, directors (whetherexecutive or non-executive) or other officers of the members of the Group;provided that such plan or scheme is in operation;

 

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1.1.7                                                                                                                        “**Applicable Laws**” – inrelation to any person or entity, all and any -

 

1.1.7.1                                                                                                                                                               statutes, subordinate legislation and common law;

 

1.1.7.2                                                                                                                                                               regulations;

 

1.1.7.3                                                                                                                                                               ordinances and by-laws;

 

1.1.7.4                                                                                                                                                               directives, codes of practice, circulars, guidance notices,judgments and decisions of any competent authority,

 

compliance with which is mandatory for that person orentity;

 

1.1.8                                                                                                                        “**Arbitration Act**” - theArbitration Act 42 of 1965;

 

1.1.9                                                                                                                        “**Award**” - the award to anEligible Employee of Performance Vesting Restricted Shares in terms of 13.1(read with 13.2) and the word “**awarded**”shall be construed accordingly;

 

1.1.10                                                                                                                  “**Award Date**” – the dateon which the Board resolves to make an Award to an Eligible Employee;

 

1.1.11                                                                                                                  “**Award Letter**” – aletter containing the information specified in 13.2 sent by the Trustees to aParticipant informing the Participant of the grant of an Award to him;

 

1.1.12                                                                                                                  “**Board**” - the board ofdirectors for the time being of the Company, acting either through itself orthrough any committee of its members appointed by it from time to time, whichis charged with the administration of the Plan;

 

1.1.13                                                                                                                  “**Change of Control**” – means -

 

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1.1.13.1                                                                                                                                                         all circumstances where a party (or parties acting in concert),directly or indirectly, obtains -

 

1.1.13.1.1                                                                                                                                                beneficial ownership of the specified percentage or more of theCompany’s issued Shares; or

 

1.1.13.1.2                                                                                                                                                control of the specified percentage or more of the voting rights atmeetings of the Company; or

 

1.1.13.1.3                                                                                                                                                the right to control the management of the Company or thecomposition of the Board; or

 

1.1.13.1.4                                                                                                                                                the right to appoint or remove directors holding a majority ofvoting rights at Board meetings; or

 

1.1.13.2                                                                                                                                                         the approval by the Company’s shareholders of, or the consummationof, a merger or consolidation of the Company with any other business or entity,or upon a sale of the whole or a major part of the Company’s assets orundertaking.

 

For the purposes of this 1.1.13 the expression “**specified percentage**” shall bear themeaning assigned to it from time to time in the Code read with the Act,presently being 35%;

 

1.1.14                                                                                                                  “**Code**” – theSecurities Regulation Code and Rules of the Securities Regulation Panel,promulgated under section 440C of the Act;

 

1.1.15                                                                                                                  “**Company**” – GoldFields Limited (registration number 1968/04880/06), a company incorporated inaccordance with the laws of the RSA;

 

1.1.16                                                                                                                  “**Date of Termination of Employment**” – thedate upon which a Participant is no longer employed by, or ceases to holdsalaried office in, any Employer Company; provided that,

 

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where a Participant’s employment is terminated without notice or onterms in lieu of notice, the Date of Termination of Employment shall be deemedto occur on the date on which the termination takes effect, and where suchemployment is terminated with notice, the Date of Termination of Employmentshall be deemed to occur upon the date on which that notice expires;

 

1.1.17                                                                                                                  “**Deed**” – thisDeed, as amended from time to time;

 

1.1.18                                                                                                                  “**Eligible Employee**” – aperson eligible for participation in the Plan, namely a senior employee of anymember of the Group who is not a Trustee, including any present or futuredirector holding salaried employment or office which employee shall be selectedby the Board from time to time in its discretion;

 

1.1.19                                                                                                                  “**Employer Company**” – thatmember of the Group that is the employer of a particular Participant;

 

1.1.20                                                                                                                  “**Fair Market Value**” – inrelation to a Share on any particular day, shall be the volume weighted averageprice of a Share on the JSE over either (a) the twenty Trading Daysimmediately prior to the day in question; (b) such shorter period, beingless than twenty Trading Days immediately prior to the day in question, as theBoard may determine;

 

1.1.21                                                                                                                  “**Family Company**” – anycompany or close corporation, the entire issued share capital or member’sinterest of which is held and beneficially owned by all or any of aParticipant, his lawful spouse, his lawful children and/or his Family Trust;

 

1.1.22                                                                                                                  “**Family Entity**” - aFamily Company or a Family Trust;

 

1.1.23                                                                                                                  “**Family Trust**” – atrust constituted solely for the benefit of all or any of a Participant, hislawful spouse and/or his lawful children;

 

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1.1.24                                                                                                                  “**Full Performance Criteria**” – thePerformance Criteria set at the level at which, if met, would indicateexceptional performance over any given period;

 

1.1.25                                                                                                                  “**Group**” - the Company andany other company, body corporate or other undertaking which is or would bedeemed to be a subsidiary of the Company in terms of the Act, and theexpression “**member of the Group**”shall be construed accordingly;

 

1.1.26                                                                                                                  “**Implementation Date**” – inrelation to a Change of Control, the date upon which such Change of Controlbecomes effective;

 

1.1.27                                                                                                                  “**JSE**” - thesecurities exchange operated by the JSE Limited, or its successor;

 

1.1.28                                                                                                                  “**LRA**” – theLabour Relations Act 66 of 1995;

 

1.1.29                                                                                                                  “**Maximum Period” - **theperiod commencing on an Allocation Date and expiring on the earlier of either (a) onthe sixth anniversary of that Allocation Date; or (b) in the case ofPerformance Allocated Share Appreciation Rights vesting in a Participantpursuant to his employment being terminated for any reason contemplated in 22,12 months after the Date of Termination of Employment; provided that -

 

1.1.29.1                                                                                                                                                         the Board shall extend the Maximum Period on written notice toParticipants if and to the extent necessary to take account of the fact thatthe last day of the Maximum Period falls on a date on which, or during a periodin which, -

 

1.1.29.1.1                                                                                                                                                                                                by virtue of any Applicable Law or any policy of the Group(including any corporate governance

 

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policy) it is not permissible to Settle aPerformance Allocated Share Appreciation Right; or

 

1.1.29.1.2                                                                                                                                                                                                by virtue of any Applicable Law or any policy of the Group(including any corporate governance policy) a Participant would be precludedfrom receiving or otherwise dealing/trading in Shares; or

 

1.1.29.2                                                                                                                                                         the Board may, in its sole discretion, extend the Maximum Period onwritten notice to Participants if and to the extent necessary to take accountof the fact that any category of Participants has, in any 12 month periodpreceding the last day of the Maximum Period, been precluded from receiving orotherwise dealing/trading in Shares for five or more months;

 

1.1.30                                                                                                                  “**Participant**” – in thecase of -

 

1.1.30.1                                                                                                                                                         the Performance Vesting Restricted Share Method, an EligibleEmployee to whom an Award has been made and who has accepted same in terms of 13.6;and

 

1.1.30.2                                                                                                                                                         the Performance Allocated Share Appreciation Method, an EligibleEmployee to whom an Allocation of Performance Allocated Share AppreciationRights has been made and who has accepted same in terms of 19.5;

 

1.1.31                                                                                                                  “**Performance Allocated ShareAppreciation Method**” – the method of participation in thisPlan detailed in Part 4 of this Deed;

 

1.1.32                                                                                                                  “**Performance Allocated ShareAppreciation Right**” – a Performance Allocated ShareAppreciation Right awarded to

 

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an Eligible Employee in terms of 19.1 (read with 19.2).  For the avoidance of doubt it is recordedthat Performance Allocated Share Appreciation Rights do not constitute equityin the Company;

 

1.1.33                                                                                                                  “**Performance Criteria**” – theperformance criteria as determined by the Board from time to time;

 

1.1.34                                                                                                                  “**Performance Vesting RestrictedShare Method**” – the method of participation in this Plandetailed in Part 3 of this Deed;

 

1.1.35                                                                                                                  “**Performance Vesting RestrictedShares**” – Shares which have been conditionally awarded toan Eligible Employee in terms of an Award Letter as described in 13.2.1;

 

1.1.36                                                                                                                  “**Plan**” – TheGold Fields Limited 2005 Share Plan the terms of which are embodied in thisDeed and which entails participation therein through the Performance AllocatedShare Appreciation Method and/or the Performance Vesting Restricted ShareMethod;

 

1.1.37                                                                                                                  “**Release Date**” - inrelation to (a) an Award, the date on which Performance Vesting RestrictedShares shall be Settled to a Participant as described in 14, which date shall,subject to 14, 17 and 25, be three years from the Award Date and (b) anAllocation, the date from which Performance Allocated Share Appreciation Rightsmay be exercised by Participants as described in 20, which date shall, subjectto 20, 22 and 25, be three years from the Allocation Date; provided that ifsuch date falls on a date which, or during a period in which, -

 

1.1.37.1                                                                                                                                                         by virtue of any Applicable Law or any policy of the Group(including any corporate governance policy) it is not permissible to SettleShares to a Participant; or

 

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1.1.37.2                                                                                                                                                         by virtue of any Applicable Law or any policy of the Group(including any corporate governance policy) it is not permissible for aParticipant to receive or otherwise deal/trade in Shares,

 

the Release Date shall be the fifth Trading Day afterthe date on which it becomes permissible to Settle Shares to a Participantand/or for the Participant to receive or deal/trade in Shares (as the case maybe);

 

1.1.38                                                                                                                  “**Retirement Date**” - theearliest date on which, or age at which, an Eligible Employee can be requiredto retire by any Employer Company or, if sooner, the date on which or age atwhich he has agreed to take early retirement;

 

1.1.39                                                                                                                  “**RSA**” – theRepublic of South Africa;

 

1.1.40                                                                                                                  “**Secretary**” – thecompany secretary for the time being of the Company;

 

1.1.41                                                                                                                  “**Settled**” – inrelation to a Share, shall mean either -

 

1.1.41.1                                                                                                                                                         the allotment and issue by the Company of such Share into the nameof a Participant; or

 

1.1.41.2                                                                                                                                                         if the Company so elects at any time prior to the Release Date, theprocuring by the Company of the transfer of such Share into the name of a Participantthrough the acquisition thereof on behalf of a Participant or otherwise,

 

and the words “**Settlement**”and “**Settle**” shall be construedaccordingly.  It is recorded that anyShares which have been Settled to a Participant in terms of this Plan shallrank pari passu with Shares in all respects;

 

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1.1.42                                                                                                                  “**Shares**” - ordinaryshares of a par value of R0,50 each in the capital of the Company (or suchother class of shares as may represent the same as a result of anyreorganisation, reconstruction or other variation of the share capital of theCompany to which the provisions of the Plan may apply from time to time);

 

1.1.43                                                                                                                  “**Target Performance Criteria**” – thePerformance Criteria set at the level at which performance is expected over anygiven period;

 

1.1.44                                                                                                                  “**Tax - **anypresent or future tax or other charge of any kind or nature whatsoever imposed,levied, collected, withheld or assessed by any competent authority, andincludes all income tax (whether based on or measured by income/revenue orprofit or gain of any nature or kind or otherwise and whether levied under theTax Act or otherwise), capital gains tax, value-added tax and any charge in thenature of taxation, and any interest, penalty, fine or other payment on, or inrespect thereof but specifically excluding issue duty, stamp duty, marketablesecurities tax and uncertificated securities tax;

 

1.1.45                                                                                                                  “**Tax Act**” - theIncome Tax Act 58 of 1962;

 

1.1.46                                                                                                                  “**Trading Day**” – anyday on which the Shares are capable of being traded on the JSE;

 

1.1.47                                                                                                                  “**Trust**” - TheGold Fields Limited 2005 Share Trust, constituted in terms of 3.1;

 

1.1.48                                                                                                                  “**Trust Act**” – theTrust Property Control Act 57 of 1988;

 

1.1.49                                                                                                                  “**Trustees**” – thepersons who are, from time to time, the Trustees of the Trust, initially beingthose persons referred to in 4.2.

 

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1.2                                                                                 In this Deed -

 

1.2.1                                                                                                                        clause headings are used for convenience only and shall be ignoredin its interpretation;

 

1.2.2                                                                                                                        unless the context clearly indicates a contrary intention, anexpression which denotes -

 

1.2.2.1                                                                                                                                                               any gender includes the other genders;

 

1.2.2.2                                                                                                                                                               a natural person includes an artificial person (whether corporate orunincorporate) and vice versa;

 

1.2.2.3                                                                                                                                                               the singular includes the plural and vice versa;

 

1.2.3                                                                                                                        unless the context clearly indicates a contrary intention, words andexpressions defined in the Act shall bear the meanings therein assigned tothem;

 

1.2.4                                                                                                                        any reference to any statute shall be to that statute, as amendedfrom time to time and to any statutory substitution of that statute; and

 

1.2.5                                                                                                                        the use of the word “**including**”or “**includes**” or “**include**” followed by a specific exampleshall not be construed as limiting the meaning of the general wording precedingit and the eiusdem generis rule shall not be applied in the interpretationof such general wording or such specific example/s;

 

1.2.6                                                                                                                        the word “**reacquired**”when used in relation to an Allocation, an Award, Performance Allocated ShareAppreciation Rights or Performance Vesting Restricted Shares shall mean theacquisition of such Allocation, Award, Performance Allocated Share AppreciationRights or Performance Vesting Restricted Shares (as the case may be) from aParticipant by the Trust or

 

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the Company (whichever Allocated the Performance Allocated ShareAppreciation Rights or Awarded the Performance Vesting Restricted Shares, asthe case may be) for a total consideration of R0,01;

 

1.2.7                                                                                                                        the words “**vest**”, “**vesting**” and “**vested**” when used in relation to a Performance Vesting ShareAppreciation Right shall mean that such Performance Vesting Share AppreciationRight shall become exercisable in accordance with 24;

 

1.2.8                                                                                                                        a Participant who ceases to be employed by an Employer Company onthe basis that he is -

 

1.2.8.1                                                                                                                                                               immediately thereafter employed by another Employer Company;

 

1.2.8.2                                                                                                                                                               thereafter re-employed by such Employer Company pursuant to it beingdetermined that his employment was terminated on a basis which was not lawfulin terms of the LRA;

 

shall be deemed not to have terminated his employmentfor the purposes of the Plan and his rights shall be deemed to be unaffected;

 

1.2.9                                                                                                                        a Participant who is a director of any Employer Company who retiresand/or resigns on the basis that he is immediately re-elected in accordancewith the articles of association or other constitutional documents of thatEmployer Company shall be deemed not to have terminated his employment withthat Employer Company.

 

1.3                                                                                 If any provision in 1.1 is a substantive provision conferring anyright or imposing any obligation on anyone, effect shall be given to it as ifit were a substantive provision in the body of this Deed.

 

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1.4                                                                                 When any number of days is prescribed in this Deed, same shall bereckoned exclusively of the first and inclusively of the last day unless thelast day falls on a Saturday, Sunday or official public holiday, in which casethe last day shall be the next succeeding day which is not a Saturday, Sundayor official public holiday.

 

2                                          **PURPOSE**

 

The purpose of the Plan shall be to attract, retain,motivate and reward Eligible Employees who are able to influence theperformance of the Group, on a basis which aligns their interests with those ofthe Company’s shareowners.

 

**PART 2 - THETRUST**

 

3                                          **CONSTITUTION OF TRUST**

 

3.1                                                                                 There is hereby constituted a trust for the benefit of Participants,to be known as “The Gold Fields Limited 2005 Share Trust”, on the terms andconditions of this document.

 

3.2                                                                                 The Company shall irrevocably donate R100 to the Trustees on behalfof the Trust.

 

4                                          **TRUSTEES**

 

4.1                                                                                 There shall at all times be a minimum of two Trustees in office;provided that if for any reason whatever one or more Trustees ceases and/orfails to act as such, the other Trustee/s in office shall, until the Board hasmade a further appointment/s in terms of 4.3, be entitled to continue toadminister the Trust and to act to protect and preserve the Trust’s assets.

 

4.2                                                                                 Messrs A J Wright and T M G Sexwaleare appointed to be, and by their signatures hereto accept appointment as, theinitial Trustees of the Trust.

 

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4.3                                                                                 Subject to 4.5 and the provisions of the Trust Act, if any Trusteeshall cease to hold office for any reason the Board shall appoint a person,willing to act as such, as Trustee in his place.

 

4.4                                                                                 The Board shall have the right to appoint any person qualified forappointment as a Trustee as an additional Trustee.

 

4.5                                                                                 No person shall be entitled to participate under the Plan for aslong as he holds office as a Trustee of the Trust.  Furthermore, no executive director of theCompany may at any time hold office as a Trustee of the Trust.

 

4.6                                                                                 A Trustee shall cease to hold office as such if he -

 

4.6.1                                                                                                                        is removed by resolution of the Board; or

 

4.6.2                                                                                                                        resigns upon giving the Company and his co-Trustees not less thanone calendar month’s prior written notice to that effect; or

 

4.6.3                                                                                                                        becomes disqualified from holding an appointment as a director ofany company.

 

4.7                                                                                 Subject to 4.13, all decisions of the Trustees shall be taken by aresolution which is unanimously passed at a meeting of such Trustees.

 

4.8                                                                                 A quorum for any meeting of Trustees shall, subject to the provisoin 4.1, be two Trustees.

 

4.9                                                                                 Subject to the Trustees giving effect to the terms and conditions ofthis Deed, the Trustees shall, in administering the Trust and its affairs,adopt such procedures and take such administrative steps as they from time totime deem necessary and advisable.  Theyshall meet together for the dispatch of the business of the Trust, adjourn andotherwise regulate their meetings as they, in their discretion, deem fit.

 

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Any Trustee shall be entitled to summon a meeting of the Trustees bygiving written notice to that effect to the other Trustee/s.

 

4.10                                                                           At all meetings of Trustees, each Trustee shall have one vote.

 

4.11                                                                           The Trustees shall have the power to delegate -

 

4.11.1                                                                                                                  any of their powers and duties to any one or more of their number;and

 

4.11.2                                                                                                                  the day to day administration of the Trust to any officer oremployee of any Group Member, which officer or employee shall perform all ofhis duties in accordance with the instructions of the Trustees and subject tothe provisions of this Deed.

 

4.12                                                                           The Trustees shall procure that minutes of their meetings are takenand shall, if appropriate, certify same as correct.

 

4.13                                                                           A resolution which has been signed by all of the Trustees shall bevalid and effective as if it had been adopted at a duly convened meeting of theTrustees.  Unless the contrary is statedtherein, any resolution shall be deemed to have been passed on the date onwhich it was signed by the Trustee who signed it last.  Further, any such resolution may consist ofone or more documents each signed by one or more Trustees.

 

5                                          **POWERS OF TRUSTEES**

 

TheTrustees shall have plenary powers to enable them to carry out and give effectto the intent, purposes and provisions of the Plan, including all the powersset out in Schedule 2 of the Act and such powers as may be expresslyconferred on them by the Board.  Withoutderogating from the generality of the aforegoing, the Trustees shall have thepower, inter alia, to -

 

 

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5.1                                                                                 borrow moneys and/or to raise funding strictly for the purpose ofgiving effect to the Plan;

 

5.2                                                                                 make Awards and Allocations subject to the provisions of 13.1 or 19.1(as the case may be);

 

5.3                                                                                 open and operate banking accounts, savings accounts or otheraccounts appropriate to the business of the Trust, to draw and issue chequesand to receive cheques, promissory notes and/or bills of exchange, and toendorse any of the same for collection by any bank or other deposit-takinginstitution at which an account has been opened;

 

5.4                                                                                 invest any surplus moneys of the Trust (if any) in Shares or othersecurities of the Company or in such other manner as the Board may from time totime approve;

 

5.5                                                                                 employ and act on the advice of and pay out of the funds of theTrust the reasonable fees and disbursements of auditors, attorneys, counsel andother professional consultants in connection with the affairs of the Trust;

 

5.6                                                                                 exercise such further rights, powers and authorities as may fromtime to time be conferred upon them by resolution of the Board;

 

5.7                                                                                 subject to 12 and the Listings Requirements of the JSE (including Schedule 14,paragraph 14.12), purchase and sell Shares and/or to dispose of the Trust’sassets and/or to transfer or deliver Shares to Participants;

 

5.8                                                                                 reacquire (if applicable) Allocations, Awards, Performance AllocatedShare Appreciation Rights and Performance Vesting Restricted Shares;

 

5.9                                                                                 subject to the provisions of the Act, enter into any one or moretransactions to hedge against or otherwise protect the assets of the

 

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Trust and/or the Trust itself from incurring any losses of whatevernature.

 

6                                          **SECURITY**

 

No Trustee shall be required to furnish any security of any nature tothe Master of the High Court or to any other official or officer, nor shall anysecurity be required for the due performance of any duty under the Trust Act orunder any other statutory provision of the RSA or elsewhere.

 

7                                          **REMUNERATION OF TRUSTEES**

 

7.1                                                                                 The remuneration, if any, payable to the Trustees in theircapacities as such shall be determined from time to time by the Board.  The Trustees shall, in addition, be entitledto reimbursement from the Trust for all expenses properly incurred by them inand about the execution of their duties as Trustees.  Such remuneration and reimbursement ofexpenditure shall be borne and paid by the Company if the Trust is unable topay these amounts from its own resources.

 

7.2                                                                                 No Trustee or firm or company of which such Trustee is a member ordirector shall be disqualified from acting as adviser, agent, banker, broker orattorney to, or contracting with, the Trust, nor from recovering any reasonableremuneration in respect of any services performed as such on behalf of thetrust by such Trustee or his firm or company.

 

8                                          **DUTIES OF TRUSTEES**

 

The duties ofthe Trustees in relation to the Trust shall be those prescribed by this Deedand shall include, without limitation, the duty to -

 

8.1                                                                                 subscribe for or purchase Shares in accordance with the provisionsof this Deed and subject to the provisions of the Act and the ListingsRequirements of the JSE;

 

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8.2                                                                                 make Awards and Allocations subject to the provisions of 13.1 or 19.1(as the case may be);

 

8.3                                                                                 invest the funds of the Trust in such form as is permitted by thisDeed;

 

8.4                                                                                 administer the Plan in order to achieve and maintain the purpose setout in 2;

 

8.5                                                                                 without derogating from their obligations in terms of 4.12, causeproper records and books of account to be kept of the affairs of the Trust andtheir administration thereof and to cause financial statements to be made up toaccord with the financial year end of the Company or such other date as may bedetermined by the Board; and

 

8.6                                                                                 carry out such other duties as may, consistent with their offices asTrustees and in terms of the provisions of this Deed, be delegated to them fromtime to time by resolution of the Board.

 

9                                          **INDEMNITY AND LEGAL PROCEEDINGS**

 

9.1                                                                                 None of the Trustees shall be liable for, and the Companyindemnifies each of them against, any loss sustained out of whatever causearising if he has performed his duties and exercised his powers in compliancewith section 9(1) of the Trust Act.

 

9.2                                                                                 Legal proceedings instituted by or against the Trust may beinstituted or defended in its name.

 

10                                    **ACQUISITION OF SHARES BY THE TRUSTEES**

 

10.1                                                                           Subject to the Act, the Listings Requirements of the JSE (includingthose contained in Schedule 14, paragraph 14.12) and 12, the Trusteesshall be entitled, for the purposes of the Plan, to subscribe for or purchaseon the JSE (or from such other sources as the Trustees may be able to purchaseShares), or be given options to purchase or subscribe for, such numbers ofShares at such prices as

 

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may be agreed from time to time by the Trustees and the Board,including any Shares that may be required pursuant to any adjustment in termsof 25.

 

10.2                                                                           The Company shall at all times reserve and keep available, free frompre-emptive rights, out of its authorised but unissued share capital, suchnumber of shares as may be required to enable the Company to procure thefulfilment by the Trustees of their obligations to transfer or deliver Sharesto Participants.

 

11                                    **FUNDING OF THE TRUST**

 

11.1                                                                           Other than any Tax/Social Liability as defined in 27.1, theconsideration for Shares (if any) acquired by the Trust in terms of 10 orotherwise under the Plan, the costs incurred in the acquisition thereof, anyadministration or other expenses or administration fees properly incurred by oron behalf of the Trustees in the performance of their duties in terms of or inorder to give effect to the Plan (including in terms of 30.2.2) and any dutiespayable upon the Settlement of Shares to Participants including issue duty,stamp duty, marketable securities tax and uncertificated securities tax (all ofthe aforegoing costs, expenses and duties hereinafter referred to as “**Participation Costs**”) shall be funded, asthe Board may from time to time direct, out of -

 

11.1.1                                                                                                                  the Trust’s own resources, if any, including money raised by anycompany or companies incorporated by the Trust for the purpose of raisingfunding through the issue of preference shares or other securities, whetherconvertible or otherwise, on such terms and conditions as the Trustees maydecide; and/or

 

11.1.2                                                                                                                  loans to be made to the Trust by members of the Group in accordancewith the provisions of section 38(2)(b) of the Act;

 

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11.1.3                                                                                                                  loans by third parties to the Trust to be procured, subject to 38(2)(b) ofthe Act, by the Company on such terms as the Company is able to arrange; and/or

 

11.1.4                                                                                                                  any other resource which is available to the Trust from time totime.

 

11.2                                                                           The Trust shall recover from each Employer Company, and the Companyshall procure that each Employer Company pays to the Trust, such ParticipationCosts as may be attributable to the participation of any of its employees inthe Plan.

 

12                                    **MAXIMUM NUMBER OF SHARES WHICH MAY BEACQUIRED BY PARTICIPANTS**

 

12.1                                                                           Subject to 12.3, 12.4, 12.5 and the prior approval, if required, ofany securities exchange on which Shares are listed, the prior authority of theshareholders of the Company in general meeting shall be required if theaggregate number of Shares which may be acquired by Participants under the Plantogether with Shares which may be acquired by participants under Any Other Planis to exceed 5% of the Company’s issued ordinary share capital, being24 564 711 Shares as at 19 August 2005.

 

12.2                                                                           Subject to 12.3, 12.4, 12.5 and the prior approval, if required, ofany securities exchange on which Shares are listed, the prior authority of theShareholders of the Company in general meeting shall be required if theaggregate number of Shares that may be acquired by any one Participant in termsof the Plan together with Any Other Plan is to exceed 0,5% of the Company’sissued ordinary share capital, being 2 456 471 Shares as at 19 August 2005.

 

12.3                                                                           The number of Shares referred to in 12.1 and 12.2 shall be increasedor reduced in direct proportion to any increase or reduction of the Shares inthe Company’s issued share capital on any conversion, redemption,consolidation, sub-division and/or any rights or capitalisation issue ofShares; provided that the provisions of this

 

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Deed shall be deemed not to have been breached if, as a result of apurchase or repurchase (as the case may be) of Shares by any company in theGroup, the percentages referred to in 12.1 and/or 12.2 are exceeded but thenumber of Shares referred to in 12.1 and/or 12.2 is not exceeded.

 

12.4                                                                           In the determination of the number of Shares which may be acquiredby Participants in terms of 12.1 and/or 12.2, Shares shall not be taken intoaccount which have been acquired by a Participant -

 

12.4.1                                                                                                                  in terms of the Plan; and/or

 

12.4.2                                                                                                                  in terms of Any Other Plan, which in accordance with the provisionsof such plan need not be taken into account in the determination of the numberof Shares which may be acquired by a Participant in terms of such plan.

 

12.5                                                                           Without derogating from the aforegoing provisions of this 12, theTrust shall not at any time hold in excess of 20% of the Company’s issued sharecapital.

 

**PART 3 – THE PERFORMANCE VESTING RESTRICTED SHARE METHOD**

 

13                                    **GRANT OF AWARDS**

 

13.1                                                                           The Board may, in its sole and absolute discretion, resolve todirect the Trustees to make Awards to Eligible Employees.

 

13.2                                                                           The Trustees shall, as soon as reasonably practicable on or afterthe Award Date, notify the Eligible Employee of the grant of the Award by themin an Award Letter.  The Award Lettershall be in the form prescribed by the Board and shall specify -

 

13.2.1                                                                                                                  the maximum number of Shares conditionally awarded to the EligibleEmployee or the formula by which such number may be found;

 

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13.2.2                                                                                                                  the Award Date;

 

13.2.3                                                                                                                  the Release Date;

 

13.2.4                                                                                                                  the Performance Criteria imposed by the Board for the purpose of 15which must be satisfied before the Settlement of any Performance VestingRestricted Shares under an Award to the Participant and the manner in which thenumber of Performance Vesting Restricted Shares referred to in 13.2.1 shall beadjusted if the Performance Criteria are not satisfied (whether in whole or inpart); and

 

13.2.5                                                                                                                  the Target Performance Criteria and the Full Performance Criteria.

 

13.3                                                                           Subject to 17.1 and 13.8, an Award is (and Performance VestingRestricted Shares are) personal to a Participant and shall not be capable ofbeing ceded, assigned, transferred or otherwise disposed of or encumbered by aParticipant.

 

13.4                                                                           There shall be no consideration payable for the grant of an Award.

 

13.5                                                                           A Participant shall not be entitled to any dividends (or otherdistributions made) and shall have no right to vote in respect of PerformanceVesting Restricted Shares awarded to him in his Award, unless and until thePerformance Vesting Restricted Shares under his Award are Settled to him inaccordance with the provisions of this Plan.

 

13.6                                                                           Acceptance by an Eligible Employee of an Award shall be communicatedto the Trustees, in writing and in such form as the Board may from time to timeprescribe, by not later than thirty days after the date of delivery of therelevant Award Letter to such Eligible Employee; provided that such acceptanceshall embody therein the provisions of 26 and 27.2.  An Award which is not accepted by an EligibleEmployee as aforesaid shall automatically be deemed to have

 

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been reacquired, subject to re-instatement or extension by the Board inits discretion.

 

13.7                                                                           An Award may be reacquired at any time after the date of acceptancethereof in terms of 13.6 if the Trustees (acting on the direction of the Board)and Participants so agree in writing.

 

13.8                                                                           A Participant may, with the prior written consent of the Board andsubject to such conditions as the Board may in its discretion determine, cede,assign or transfer his rights in and to an Award (or Performance VestingRestricted Shares) to a Family Entity. Without derogating from the generality of the aforegoing, the Board mayimpose a condition that the Participant bind himself as surety for, and co-principaldebtor in solidum with, the Family Entity for the fulfilment of its obligationsin terms of this Plan.

 

14                                    **SETTLEMENT OF PERFORMANCE VESTING RESTRICTEDSHARES**

 

14.1                                                                           The Board shall meet before the Release Date in respect of an Awardin order to assess the extent to which the Performance Criteria imposed on thegrant of the Award have been satisfied.

 

14.2                                                                           On the Release Date in respect of an Award, if and to the extent theBoard has determined that the Performance Criteria imposed on the grant of theAward have been satisfied, and subject to 14.3, 16 and 27, the number ofPerformance Vesting Restricted Shares available to be Settled to a Participantunder the Award determined in accordance with 15 and/or 18 (if applicable)shall be Settled to the Participant.

 

14.3                                                                           Notwithstanding 14.2, -

 

14.3.1                                                                                                                  the Participant shall pay, in such manner as the Board may from timeto time prescribe, any such additional amount of which the Board may notify theParticipant in respect of any deduction on account of Tax as may be required byApplicable

 

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Laws which may arise on the Settlement of Performance VestingRestricted Shares to him;

 

14.3.2                                                                                                                  the Company may, on the Release Date, discharge, in whole or inpart, its obligation to Settle Performance Vesting Restricted Shares by paying,or procuring the payment by the relevant Employer Company, to the Participant acash bonus equal to the Fair Market Value of the Shares to which a Participantbecomes entitled in terms of 14.2, calculated on the Release Date.

 

14.4                                                                           For the sake of clarity and the avoidance of any doubt, it isrecorded that until the Release Date such Participant shall not -

 

14.4.1                                                                                                                  have any ownership interest in; or

 

14.4.2                                                                                                                  receive any dividends and/or exercise any voting rights attached to;or

 

14.4.3                                                                                                                  have acquired,

 

such Performance Vesting Restricted Shares.

 

15                                    **LIMITATIONS ON THE SETTLEMENT OF PERFORMANCEVESTING RESTRICTED SHARES**

 

15.1                                                                           If the Board determines that the Performance Criteria have not beensatisfied or exceeded, the number of Performance Vesting Restricted Shares tobe Settled to a Participant shall be adjusted in the manner set out in theAward Letter.

 

15.2                                                                           Although the extent to which the Performance Vesting RestrictedShares under an Award may be Settled to a Participant shall be conditional on,inter alia, the Board being satisfied that such Performance Criteria as imposedby the Board on the Award Date in accordance with 13.2 have been fulfilled, theBoard may waive such Performance Criteria if they consider in their absolutediscretion that

 

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there are exceptional circumstances which would justify such a waiver.

 

15.3                                                                           Notwithstanding any other provision of this Deed, the Board shall,in its sole and absolute discretion, be entitled to amend the PerformanceCriteria contained in an Award Letter to take account of any change incircumstances which render such Performance Criteria inappropriate orinapplicable; provided that no such amendment shall disadvantage and/orprejudice any Participant.

 

15.4                                                                           A Performance Vesting Restricted Share shall be deemed to have beenreacquired, and accordingly not entitle a Participant to Settlement of anyShares, upon the Participant making an application for the voluntary surrenderof his estate or his estate being otherwise sequestrated or any attachment ofany interest of a Participant under the Plan, unless the Board, in itsdiscretion, determines otherwise and then subject to such terms and conditionsas the Board may determine.

 

15.5                                                                           If the Company is placed in final liquidation, the Secretary shallnotify the Participant thereof in writing and he shall be entitled to requirethat he be Settled all or any of his Performance Vesting Restricted Shareswithin twenty-one days of such notification, failing which such PerformanceVesting Restricted Shares shall be deemed to have been reacquired.

 

16                                    **TIME FOR THE SETTLEMENT OF PERFORMANCE VESTINGRESTRICTED SHARES**

 

Subject to 15, Performance Vesting Restricted Sharesunder an Award may only be Settled on their Release Date.  Any Award in respect of which PerformanceVesting Restricted Shares are not so Settled shall be deemed to have beenreacquired.

 

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17                                    **TERMINATION OF EMPLOYMENT**

 

17.1                                                                           If a Participant dies the Trustee shall, as soon as is reasonablypracticable after his death, Settle to his heirs, executor, trustee or otherrepresentative the Performance Vesting Restricted Shares available forSettlement under his Award in terms of 18 (if any).  Any Award in respect of which PerformanceVesting Restricted Shares are not so Settled shall be deemed to have beenreacquired.

 

17.2                                                                           Subject to 1.2.8, if a Participant ceases to be employed by theGroup by reason of -

 

17.2.1                                                                                                                  injury, disability or ill-health, in each case as certified by aqualified medical practitioner nominated by the relevant Employer Company;

 

17.2.2                                                                                                                  dismissal for operational reasons as contemplated in the LRA;

 

17.2.3                                                                                                                  retirement on or after his Retirement Date;

 

17.2.4                                                                                                                  the company by which he is employed ceasing to be a member of theGroup; or

 

17.2.5                                                                                                                  the undertaking in which he is employed being transferred to atransferee which is not a member of the Group,

 

the Performance Vesting Restricted Shares available tobe Settled to him under his Award in terms of 18 (if any) shall be so Settledto him on the Date of Termination of Employment, unless the Board determinesotherwise.  Any Award in respect of whichPerformance Vesting Restricted Shares are not so Settled shall be deemed tohave been reacquired.

 

17.3                                                                           Subject to 1.2.8, if a Participant ceases to be employed by theGroup for any reason other than one of the events specified in 17.1 or 17.2,his Award shall be deemed to have been reacquired unless the Board

 

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determines otherwise, in which case the Performance Vesting RestrictedShares available to be Settled to him under his Award in terms of 18 (if any)shall be so Settled on the Date of Termination of Employment.

 

18                                    **EXTENT TO WHICH PERFORMANCE VESTING RESTRICTEDSHARES UNDER AN AWARD ARE AVAILABLE FOR SETTLEMENT ON TERMINATION OF EMPLOYMENT**

 

18.1                                                                           Subject to adjustment in terms of 18.2, if pursuant to 17,Performance Vesting Restricted Shares may be Settled to a Participant under hisAward, the maximum number of Performance Vesting Restricted Shares which may beSettled to him is to be calculated in accordance with the following formula(rounded down to the nearest whole Share), unless the Board in its solediscretion, permit him to acquire a greater number of Shares -

 

 

where -

 
| A      | =      | the number of Performance Vesting Restricted Shares originally  conditionally awarded to him in the Award;                                                                         |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                               |
| B      | =      | the lesser of (a) number of completed calendar  months which have elapsed from the Award Date to the Date of Termination of  Employment; and (b) 36 calendar months; and |
|   |   |                                                                                                                                                                               |
| C      | =      | 36 calendar months.                                                                                                                                                                |

 

18.2                                                                           The maximum number of Performance Vesting Restricted Shares to beSettled to a Participant in accordance with 18.1 shall be adjusted as if theGroup had met only the Target Performance Criteria.

 

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**PART 4 – THEPERFORMANCE ALLOCATED SHARE APPRECIATION METHOD**

 

19                                    **ALLOCATION OF PERFORMANCE ALLOCATED SHAREAPPRECIATION RIGHTS**

 

19.1                                                                           The Board may, in its sole and absolute discretion, resolve todirect the Trustees to allocate Performance Allocated Share Appreciation Rightsto Eligible Employees.

 

19.2                                                                           The Trustees shall, as soon as reasonably practicable on or afterthe Allocation Date, notify the Eligible Employee of the Allocation by them inan Allocation Letter.  The AllocationLetter shall be in the form prescribed by the Board and shall specify -

 

19.2.1                                                                                                                  the number of Performance Allocated Share Appreciation Rightsallocated to the Participant;

 

19.2.2                                                                                                                  the Allocation Price per Performance Allocated Share AppreciationRight;

 

19.2.3                                                                                                                  the Allocation Date; and

 

19.2.4                                                                                                                  the Release Date.

 

19.3                                                                           Subject to 22.1 and 19.7, an Allocation is (and PerformanceAllocated Share Appreciation Rights are) personal to a Participant and shallnot be capable of being ceded, assigned, transferred or otherwise disposed ofor encumbered by a Participant.

 

19.4                                                                           There shall be no consideration payable for the granting of anAllocation.

 

19.5                                                                           Acceptance by an Eligible Employee of an Allocation shall becommunicated to the Trustees, in writing in such form as the Board may fromtime to time prescribe, by not later than thirty days after the date ofdelivery of the relevant Allocation to such Eligible Employee; provided thatsuch acceptance shall embody therein the provisions of

 

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26 and 27.2.  An Allocation whichis not accepted by an Eligible Employee as aforesaid shall automatically bedeemed to have been reacquired, subject to re-instatement or extension by the Boardin its discretion.

 

19.6                                                                           An Allocation may be reacquired at any time after the date ofacceptance thereof in terms of 19.5 if the Trustees (acting on the direction ofthe Board) and Participants so agree in writing.

 

19.7                                                                           A Participant may, with the prior written consent of the Board andsubject to such conditions as the Board may in its discretion determine, cede,assign or transfer his rights in and to an Allocation (or Performance AllocatedShare Appreciation Rights) to a Family Entity. Without derogating from the generality of the aforegoing, the Board mayimpose a condition that the Participant bind himself as surety for, and co-principaldebtor in solidum with, the Family Entity for the fulfilment of its obligationsin terms of this Plan.

 

20                                    **VESTING OF PERFORMANCE ALLOCATED SHAREAPPRECIATION RIGHTS**

 

20.1                                                                           On the Release Date in respect of an Allocation and subject to 20.2,21 and 27, the number of Performance Allocated Share Appreciation Rightsavailable for vesting under the Allocation shall vest in a Participant.

 

20.2                                                                           Notwithstanding 20.1 the Participant shall pay in such manner as theBoard may from time to time prescribe any such additional amount of which theBoard may notify the Participant in respect of any deduction on account of Taxas may be required by Applicable Laws which may arise on the vesting ofPerformance Allocated Share Appreciation Rights in him.

 

21                                    **TIME FOR VESTING OF PERFORMANCE ALLOCATED SHAREAPPRECIATION RIGHTS**

 

Performance Allocated Share Appreciation Rights underan Allocation may only vest on their Release Date.  Any Allocation in respect of which

 

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Performance Allocated Share Appreciation Rights arenot so vested shall be deemed to have been reacquired.

 

22                                    **TERMINATION OF EMPLOYMENT**

 

22.1                                                                           If a Participant dies the Trustees shall vest in his heirs,executor, trustee or other representative the Performance Allocated ShareAppreciation Rights available for vesting under his Allocation in terms of 23(if any).  Any Allocation in respect ofwhich Performance Allocated Share Appreciation Rights are not so vested shallbe deemed to have been reacquired.

 

22.2                                                                           Subject to 1.2.8, if a Participant ceases to be employed by theGroup by reason of -

 

22.2.1                                                                                                                  injury, disability or ill-health, in each case as certified by aqualified medical practitioner nominated by the relevant Employer Company;

 

22.2.2                                                                                                                  dismissal for operational reasons as contemplated in the LRA;

 

22.2.3                                                                                                                  retirement on or after his Retirement Date;

 

22.2.4                                                                                                                  the company by which he is employed ceasing to be a member of theGroup; or

 

22.2.5                                                                                                                  the undertaking in which he is employed being transferred to atransferee which is not a member of the Group,

 

the Performance Allocated Share Appreciation Rightsavailable for vesting under his Allocation in terms of 23 (if any) shall vestin the Participant on the Date of Termination of Employment, unless the Boarddetermines otherwise.  Any Allocation inrespect of which Performance Allocated Share Appreciation Rights are not so vestedshall be deemed to have been reacquired.

 

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22.3                                                                           Subject to 1.2.8, if a Participant ceases to be employed by theGroup for any reason other than one of the events specified in 22.1 or 22.2,his Allocation shall, to the extent not yet vested, be deemed to have beenreacquired, unless the Board determines otherwise, in which case thePerformance Vesting Share Appreciation Rights available for vesting under hisAllocation in terms of 23 (if any) shall vest in him on the Date of Terminationof Employment.  Any Allocation in respectof which Performance Allocated Share Appreciation Rights are not so vestedshall be deemed to have been reacquired.

 

23                                    **EXTENT TO WHICH PERFORMANCE ALLOCATED SHAREAPPRECIATION RIGHTS UNDER AN ALLOCATION ARE AVAILABLE FOR VESTING ONTERMINATION OF EMPLOYMENT**

 

If pursuant to 22 Performance Allocated ShareAppreciation Rights vest in a Participant (or any other person or entity) underhis Allocation, the maximum number of Performance Allocated Share AppreciationRights which may vest is to be calculated in accordance with the followingformula (rounded down to the nearest whole Performance Allocated ShareAppreciation Right), unless the Board in its sole discretion, permit a greaternumber of Performance Allocated Share Appreciation Rights to vest -

 

 

where -

 
| A      | =      | the number of Performance Allocated Share Appreciation Rights  originally allocated to him in the Allocation;                                                                           |
|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                    |
| B      | =      | the lesser of (a) number of completed calendar  months which have elapsed from the Allocation Date to the Date of Termination  of Employment; and (b) 36 calendar months; and |
|   |   |                                                                                                                                                                                    |
| C      | =      | 36 calendar months.                                                                                                                                                                     |

 

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24                                    **CONSEQUENCES OF VESTING**

 

24.1                                                                           A Participant shall be entitled, on or after the vesting thereof,and by giving one or more written notices to that effect to the Company (eachan “**Exercise Notice**”), to exerciseone or more of such Performance Allocated Share Appreciation Rights on thebasis that a Participant shall, in respect of each Performance Allocated ShareAppreciation Right exercised as aforesaid, receive, and be Settled, such numberof Shares as is calculated in accordance with 24.6.

 

24.2                                                                           Subject to 24.3 and 25, on the expiry of the Maximum Period in respectof any Performance Allocated Share Appreciation Rights, such PerformanceAllocated Share Appreciation Rights as have vested in a Participant, but havenot yet been exercised by the Participant, shall be deemed to have beenreacquired.

 

24.3                                                                           A Performance Allocated Share Appreciation Right shall be deemed tohave been reacquired, and accordingly not entitle a Participant to Settlementof any Shares, upon the Participant making an application for the voluntarysurrender of his estate or his estate being otherwise sequestrated or anyattachment of any interest of a Participant under the Plan, unless the Board,in its discretion, determines otherwise and then subject to such terms andconditions as the Board may determine.

 

24.4                                                                           If the Company is placed in final liquidation, the Secretary shallnotify the Participant thereof in writing and he shall be entitled to exerciseall or any of his Performance Allocated Share Appreciation Rights within twenty-onedays of such notification, failing which such Performance Allocated ShareAppreciation Rights shall be deemed to have been reacquired.  Upon exercise as aforesaid a Participantshall in respect of each Performance Allocated Share Appreciation Right beentitled to be Settled with the number of Shares calculated in accordance with 24.6.

 

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24.5                                                                           Every exercise of Performance Allocated Share Appreciation Rights inaccordance with the provisions of 24.1 or 24.4 shall be initiated by way of anExercise Notice which shall -

 

24.5.1                                                                                                                  be given by the Participant in the form which the Board may fromtime to time prescribe;

 

24.5.2                                                                                                                  be delivered to the Company (for attention of the Secretary);

 

24.5.3                                                                                                                  specify the number of Performance Allocated Share AppreciationRights in respect of which the Participant is to be Settled in Shares.

 

24.6                                                                           A Participant shall, in respect of each Performance Allocated ShareAppreciation Right exercised in accordance with the provisions of this 24, beentitled to be Settled with such number of Shares as is equal to A where A iscalculated in accordance with the following formula -

 

 

where -

 
| A      | =      | the number of Shares to which a Participant is entitled in respect of  each Performance Allocated Share Appreciation Right which has been exercised  or is deemed to have been exercised in terms of 25.3; |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                       |
| B      | =      | the Fair Market Value of a Share on the date on  which such Performance Allocated Share Appreciation Right is exercised or is  deemed to have been exercised in terms of 25.3;                             |
|   |   |                                                                                                                                                                                                       |
| C      | =      | the Allocation Price of such Performance Allocated  Share Appreciation Right;                                                                                                                              |

 

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24.7                                                                           Notwithstanding 24.6, the Company may, in whole or in part,discharge its obligation to Settle a Performance Allocated Share AppreciationRight on the exercise thereof, by paying, or procuring the payment by therelevant Employer Company, to the Participant a cash bonus equal to the FairMarket Value of Shares to which a Participant is entitled in terms of 24.6.

 

**PART 5 - GENERAL**

 

25                                    **ADJUSTMENTS**

 

25.1                                                                           Notwithstanding anything to the contrary contained herein butsubject to 25.3, if the Company makes a Special Distribution and/or if theCompany restructures its capital in that it -

 

25.1.1                                                                                                                  undertakes a rights offer; or

 

25.1.2                                                                                                                  is placed in liquidation for purposes of reorganisation; or

 

25.1.3                                                                                                                  is party to a scheme of arrangement affecting the structuring of itsshare capital;

 

25.1.4                                                                                                                  undertakes a subdivision or consolidation of its ordinary sharecapital; or

 

25.1.5                                                                                                                  undertakes a bonus or capitalisation issue,

 

such adjustments shall be made to the rights ofParticipants as may be determined to be fair and reasonable to the Participantsconcerned by an independent firm of auditors of international repute or amerchant bank of international repute appointed by the Board; provided that anyadjustments pursuant to this 25.1 should give a Participant the entitlement tothe same proportion of the equity capital as he was previously entitled.  No adjustments shall be required in terms ofthis 25.1 if the provisions of 25.3 to 25.5 are applicable or in the event ofan issue by the Company of any securities or securities convertible into Sharesas consideration for an acquisition.

 

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25.2                                                                           For the purposes of 25.1, the Company shall be deemed to make a “**Special Distribution**” if it distributesShares or any other asset (including cash) to its shareholders -

 

25.2.1                                                                                                                  in the course of, and as part of any unbundling, reorganisation,rationalisation, compromise, arrangement or reconstruction (including theamalgamation of two or more companies or entities);

 

25.2.2                                                                                                                  in the course of, or as part of, a reduction of capital (including ashare repurchase);

 

25.2.3                                                                                                                  as a special dividend or other payment in terms of section 90of the Act; and/or

 

25.2.4                                                                                                                  in the course or in anticipation of the deregistration orliquidation of a company for any of the above purposes;

 

provided that, this 25.2 shall not apply to normalannual interim and final cash or scrip dividends declared by a Company.

 

25.3                                                                           Subject to 25.5, if the Company undergoes a Change of Control afteran Award Date and/or Allocation Date, then -

 

25.3.1                                                                                                                  the Release Date in respect of such Award and/or Allocation shall bedeemed to fall on the Implementation Date of such Change of Control; and

 

25.3.2                                                                                                                  all Performance Allocated Share Appreciation Rights which are orbecome vested in a Participant (including those which vest pursuant to theprovisions of this 25.3 itself) shall be deemed to have been exercised on theImplementation Date,

 

on the basis that the Company shall discharge itsobligation to Settle to a Participant any Shares by either -

 

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25.3.3                                                                                                                  paying to a Participant an amount equal to the Fair Market Value ofthat number of Shares -

 

25.3.3.1                                                                                                                                                         in the case of the Performance Allocated Share Appreciation Method,available for Settlement to the Participant on the Implementation Date ascalculated in accordance with 24.6; and

 

25.3.3.2                                                                                                                                                         in the case of the Performance Vesting Restricted Share Method,available for Settlement to the Participant on the Implementation Date as ifthe Target Performance Criteria had been met; and

 

in each case further adjusted in terms of 25.4; or

 

25.3.4                                                                                                                  if a Participant so elects in writing and giving effect to suchelection is not prohibited by Applicable Laws, Settling to the Participantconcerned, that number of Shares -

 

25.3.4.1                                                                                                                                                         in the case of a Performance Allocated Share Appreciation Right,available for Settlement to the Participant on the Implementation Date ascalculated in accordance with 24.6; and

 

25.3.4.2                                                                                                                                                         in the case of a Performance Vesting Restricted Share, available forSettlement to the Participant on the Implementation Date as if the TargetPerformance Criteria had been met; and

 

in each case further adjusted in terms of 25.4.

 

25.4                                                                           The maximum number of Performance Vesting Restricted Shares orPerformance Allocated Share Appreciation Rights available for Settlement to aParticipant under 25.3 is to be calculated in accordance with the followingformula (rounded down to the nearest

 

35

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whole Share), unless the Board in its sole discretion, permit him toacquire a greater number of Shares -

 

 

where -

 
| A      | =      | the number of Performance Vesting Restricted Shares or Performance  Allocated Share Appreciation Rights originally Awarded or Allocated to him;                                         |
|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                    |
| B      | =      | the lesser of (a) number of completed calendar  months which have elapsed from the Award Date or Allocation Date to the  Implementation Date; and (b) 36 calendar months; and |
|   |   |                                                                                                                                                                                    |
| C      | =      | 36 calendar months.                                                                                                                                                                     |

 

25.5                                                                           If the Company undergoes a Change of Control pursuant to atransaction, the terms of which make provision for Participants’ rights underthis Plan to be accommodated on a basis which is determined by an independentmerchant bank to be fair and reasonable to Participants, the provisions of 25.3shall not apply; provided that, in such an event, if a Participant’s employmentby any member of the Group is terminated for any reason whatsoever (includinghis resignation but excluding the manner contemplated in 1.2.8) within 12months following the Implementation Date he shall be entitled to be Settled onmutatis mutandis the basis of 25.3 had 25.3 been applicable.

 

26                                    **REACQUISITION**

 

If, in terms of any provision of this Plan, any Award,Allocation, Performance Vesting Restricted Share or Performance Allocated ShareAppreciation Right

 

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is deemed to have been reacquired, the Company ishereby irrevocably and in rem suam nominated, constituted and appointed as thesole attorney and agent of the Participant concerned in that Participant’sname, place and stead to sign and execute all such documents and do all suchthings as are necessary for that purpose.

 

27                                    **TAX LIABILITY**

 

27.1                                                                           Notwithstanding any other provision in this Deed (including 14.3 and20.2), if the Company, an Employer Company or the Trustees are obliged (orwould suffer a disadvantage of any nature if they were not) to account for,withhold or deduct any (a) Tax in any jurisdiction which is payable inrespect of, or in connection with, the making of any Award or Allocation, theSettlement to a Participant of Shares, the payment of a cash amount and/orotherwise in connection with the Plan and/or (b) any amount in respect ofany social security or similar contributions which would be recoverable from aParticipant in respect of the making of any Award or Allocation, Settlement toa Participant of Shares, the payment of a cash amount and/or otherwise inconnection with the Plan (the obligations referred to in (a) and (b) hereinafterreferred to as a “**Tax/Social Liability**”),then the Company, the Employer Company or Trustees (as the case may be) shallbe entitled to account for, withhold or deduct such Tax/Social Liability or theCompany, the Employer Company and/or the Trustees shall be relieved from theobligation to Settle any Shares to a Participant or to pay any amount to aParticipant in terms of the Plan until that Participant has either -

 

27.1.1                                                                                                                  made payment to the relevant Employer Company or the Trustees of anamount equal to the Tax/Social Liability; or

 

27.1.2                                                                                                                  entered into an arrangement which is acceptable to the relevantEmployer Company or the Trustees to secure that such payment is made (whetherby authorising the sale of some or all of the Shares to be Settled to him andthe payment

 

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to the relevant person of the relevant amounts out of the proceeds ofthe sale or otherwise).

 

27.2                                                                           The Company is hereby irrevocably and in rem suam nominated,constituted and appointed as the sole attorney and agent of a Participant, inthat Participant’s name, place and stead to sign and execute all such documentsand do all such things as are necessary to give effect to the provisions of 27.1.2.

 

28                                    **LISTING AND LEGAL REQUIREMENTS**

 

Notwithstanding any other provision of thisPlan, -

 

28.1                                                                           no Shares shall be Settled on any Participant or acquired pursuantto this Plan if the Trustees determine, in their sole discretion, that suchSettlement will or may violate any Applicable Laws or the listings requirementsof any securities exchange on which the Shares of the Company are listed; and

 

28.2                                                                           the Company shall apply for the listing of all Shares which areSettled to Participants on the JSE.  Itis recorded that the Company shall not be obliged to apply for, or procure, thelisting of Shares which have been Settled to Participants on any securitiesexchange other than the JSE.

 

29                                    **AMENDMENT OF THE PLAN**

 

29.1                                                                           It shall be competent for the Board and the Trustees to amend any ofthe provisions of the Plan subject to the prior approval (if required) of everystock exchange on which the Shares are for the time being listed; provided thatno such amendment affecting the vested rights of any Participant shall beeffected without the prior written consent of the Participant concerned, andprovided further that no such amendment affecting any of the following mattersshall be competent unless it is sanctioned by the Company in generalmeeting -

 

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29.1.1                                                                                                                  the definition of Eligible Employees;

 

29.1.2                                                                                                                  the definition of Allocation Price;

 

29.1.3                                                                                                                  the definition of Fair Market Value;

 

29.1.4                                                                                                                  the calculation of the total number of Shares which may be acquiredfor the purpose of or pursuant to the Plan;

 

29.1.5                                                                                                                  the calculation of the maximum number of Shares which may beacquired by any Participant in terms of the Plan;

 

29.1.6                                                                                                                  the provisions of this 29.

 

29.2                                                                           Without derogating from the provisions of 29.1, if it should becomenecessary or desirable by reason of the provisions of Applicable Laws at anytime after the signing of this Deed, to amend the provisions of this Deed so asto preserve the substance of the provisions contained in this Deed but to amendthe form so as to achieve the objectives embodied in this Deed in the bestmanner, having regard to such Applicable Laws and without prejudice to theParticipants concerned, then the Board and the Trustees may (with the priorapproval (if required) of every stock exchange on which the Shares are at thetime listed) amend this Deed accordingly.

 

30                                    **ADMINISTRATION**

 

30.1                                                                           Subject to the provisions of the Plan and to the approval of theBoard, the Board shall be entitled to make and establish such rules andregulations, and to amend the same from time to time, as they may deemnecessary or expedient for the proper implementation and administration of thePlan.

 

30.2                                                                           Notwithstanding the provisions of 11, the Company shall and shallprocure, if applicable, that the relevant Employer Company shall -

 

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30.2.1                                                                                                                  bear all costs of and incidental to the implementation andadministration of the Plan and shall, as and when necessary, provide allrequisite funds and facilities for that purpose;

 

30.2.2                                                                                                                  provide all secretarial, accounting, administrative, legal andfinancial advice and services, office accommodation, stationery and so forthfor the purposes of the Plan;

 

30.2.3                                                                                                                  be entitled to recover from the Trust all the abovementioned costsif the Trust is able to pay these costs from its own resources.

 

31                                    **ANNUAL ACCOUNTS**

 

The Board shall ensure thata summary appears in the annual financial statements of the Company of the number of Shares conditionally Awarded to Participants in termsof Awards, the number of Shares that may be utilised for the purposes of thisPlan, any changes in such numbers during the financial year under review, thenumber of Shares held by the Trust which may be acquired by Eligible Employeesand the number of Shares then under the control of the Board for Settlement toParticipants in terms of this Plan.

 

32                                    **STRATE**

 

Notwithstanding any provision in this Deed, theTrustees and/or the Company shall not be obliged to deliver the Participantshare certificates in respect of the Shares settled to him in terms of thisDeed but shall instead be obliged to procure such electronic transactionsand/or entries and to deliver to the Participant such documents (if any) as maybe required to reflect his rights in and to such Shares pursuant to theprovisions of the Act, the Security Services Act 36 of 2004, the Rules ofthe Central Securities Depository (being Share Transactions Totally ElectronicLimited) and the requirements of the JSE.

 

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33                                    **DISPUTES**

 

33.1                                                                           Save as otherwise expressly provided in this Deed (including 33.13),should any dispute of whatever nature arise in regard to the interpretation oreffect, or the validity, enforceability or rectification (whether in whole orin part) of, or the respective rights or obligations of the parties under, or abreach or termination or cancellation of, this Deed, then the dispute shall,unless the parties thereto otherwise agree in writing, be referred fordetermination to an expert (“**Expert**”)in accordance with the remaining provisions of this 33.

 

33.2                                                                           The Expert shall -

 

33.2.1                                                                                                                  if the matter in issue is primarily an accounting matter, be anindependent practising chartered accountant of not less than fifteen yearsstanding;

 

33.2.2                                                                                                                  if the matter in issue is primarily a legal matter, be a practisingsenior counsel of not less than five years’ standing as such and practising atthe Johannesburg bar;

 

33.2.3                                                                                                                  if the matter in issue is any other matter, be an independentaccountant or be a senior counsel as envisaged in 33.2.1 or 33.2.2 or be anyother independent person,

 

agreed upon by the parties to the dispute or, failingagreement within fourteen days after the dispute arises, appointed by thePresident for the time being of the South African Institute of CharteredAccountants or his successor-in-title at the request of any party to thedispute.

 

33.3                                                                           The Expert selected as aforesaid shall in all respects act as an expertand not as an arbitrator.

 

33.4                                                                           The Expert shall be vested with entire discretion as to theprocedure to be followed in arriving at his decision.  It shall not be necessary for the Expert toobserve or carry out either the strict rules of evidence or

 

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any other legal formalities or procedures, but the Expert shall bebound to follow principles of law in deciding matters submitted to him.

 

33.5                                                                           The Expert shall have the power, inter alia, to -

 

33.5.1                                                                                                                  investigate or cause to be investigated any matter, fact or thingwhich he considers necessary or desirable in connection with the dispute and,for that purpose, shall have the widest powers of investigating all the books,records, documents and other things in the possession of any party to thedispute or the Company, the right to take copies and/or make extracts therefromand the right to have them produced and/or delivered at any place reasonablyrequired by him for the aforesaid purposes;

 

33.5.2                                                                                                                  interview and question under oath any of the parties to the disputeor other parties, including the right to cross examine such parties;

 

33.5.3                                                                                                                  summon witnesses;

 

33.5.4                                                                                                                  record evidence;

 

33.5.5                                                                                                                  make an interim award;

 

33.5.6                                                                                                                  make an award regarding legal fees/costs and the Expert’sremuneration.  If he fails or declines todo so, then each of the parties to the dispute shall bear and pay its owncosts.  Until such time as the Expert’sdecision is given, the parties to the dispute shall bear and pay such costs inequal Shares;

 

33.5.7                                                                                                                  call for the assistance of any other person who he may deemnecessary to assist him in arriving at his decision;

 

33.5.8                                                                                                                  exercise any additional powers which may be exercised by anarbitrator in terms of the Arbitration Act as amended.

 

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33.6                                                                           Any hearing by the Expert shall be held in Johannesburg unless theExpert determines that it is more convenient or equitable that the hearing orany part thereof (including, but without limitation, the taking of evidence) beheld elsewhere, in which event the hearing (or the relevant part thereof) shallbe held in the place so determined by the Expert.

 

33.7                                                                           The parties shall use their best endeavours to procure that thedecision of the Expert shall be given within thirty days or so soon thereafteras is possible after it has been demanded.

 

33.8                                                                           The decision of the Expert shall be final and binding on all partiesaffected thereby, shall be carried into effect and may be made an order of anycompetent court at the instance of any party to the dispute.

 

33.9                                                                           This clause constitutes an irrevocable consent by the Company, theTrustees and all Participants and Eligible Employees to any proceedings interms thereof and no such party shall be entitled to withdraw therefrom or toclaim at any such proceedings that it is not bound by this clause.

 

33.10                                                                     This clause shall not preclude any party from obtaining relief byway of motion proceedings on an urgent basis or from instituting any interdict,injunction or any similar proceedings in any court in the RSA (and not in anyother jurisdiction) pending the decision of the Expert.

 

33.11                                                                     Subject to 33.5.8, the provisions of the Arbitration Act as amendedshall not apply in respect of this clause or any other provision of this Deed.

 

33.12                                                                     This clause is severable from the rest of this Deed and shall remainin effect even if this Deed is terminated for any reason.

 

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33.13                                                                     Notwithstanding anything to the contrary contained herein, anydispute as to whether or not a Participant has met the Performance Criteriaspecified in an Award Letter have been met shall be determined by the Board intheir sole and absolute discretion shall not be referred to an expert in terms ofthis 33 and the decision of the Board shall be final and binding

 

34                                    **PROFITS AND LOSSES AND TERMINATION OF THE PLAN**

 

34.1                                                                           The Company shall, to the extent not recovered by the Trust in termsof 11.2, bear any losses sustained by the Trust which are not recovered fromEmployer Companies in terms of 11. Furthermore, the Company shall be entitled to receive and be paid anyprofits made, by the Trust in respect of the purchase, acquisition, sale ordisposal of Shares.

 

34.2                                                                           The Plan shall terminate if the Board so resolves.  Upon such termination, the assets (if any) ofthe Trust shall be realised and any surplus remaining after the discharge ofthe Trust’s liabilities shall be paid over to the Company.  Any deficit arising from the winding up ofthe Trust shall be borne by the Company, to the extent not recovered by theTrust from Employer Companies.

 

35                                    **DOMICILIUM AND NOTICES**

 

35.1                                                                           The parties choose domicilium citandi et executandi for all purposesarising from the Plan, including the giving of any notice, the payment of anysum, the serving of any process, as follows -

 
| 35.1.1 | the Company and the Trustees | :      | The address and telefax number of the Registered Office of the  Company from time to time;                                                      |
|--------|------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                         |   |                                                                                                                                            |
| 35.1.2 | each Participant             | :      | The physical address, telefax number and electronic address from time  to time reflected as being his address, telefax number and/or electronic |

 

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|   |   |   | address in the Group’s payroll system from time to time. |
|--------|--------|--------|---------------------------------------------------------------|

 

35.2                                                                           Each of the parties shall be entitled from time to time, by writtennotice to the other, to vary its domicilium to any other physical addressand/or its facsimile number and/or (in the case of a Participant) hiselectronic address; provided in the case of a Participant such variation isalso made to his details on the Group’s payroll system.

 

35.3                                                                           Any notice given and any payment made by any party to the otherwhich -

 

35.3.1                                                                                                                  is delivered by hand during the normal business hours of theaddressee at the addressee’s domicilium for the time being shall be rebuttablypresumed to have been received by the addressee at the time of delivery;

 

35.3.2                                                                                                                  is posted by prepaid registered post from an address within theRepublic of South Africa to the addressee at the addressee’s domicilium for thetime being shall be rebuttably presumed to have been received by the addresseeon the seventh day after the date of posting.

 

35.4                                                                           Any notice given by any party to any other party which istransmitted by electronic mail and/or facsimile to the addressee at theaddressee’s electronic address and/or facsimile address (as the case may be)for the time being shall be presumed, until the contrary is proved by theaddressee, to have been received by the addressee on the date of successfultransmission thereof.

 

35.5                                                                           For the sake of clarity and the avoidance of any doubt it isrecorded that a Participant shall not be entitled to give any notice or serveany process on the Company and/or the Trustees by electronic mail.

 

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36                                    **COMPLIANCE**

 

36.1                                                                           The Company shall comply with (and procure compliance by all membersof the Group with) all Applicable Laws. The Plan shall at all times be operated and administered subject to allApplicable Laws.

 

36.2                                                                           Without derogating from the generality of the aforegoing, theCompany shall -

 

36.2.1                                                                                                                  appoint the Secretary as Compliance Officer of the Plan in terms of section 144Aof the Act and comply with the provisions of section 144A of the Act;

 

36.2.2                                                                                                                  comply with section 93 of the Act;

 

36.2.3                                                                                                                  ensure compliance with Schedule 14, paragraph 14.13 of theListings Requirements of the JSE.

 

36.3                                                                           The Company, by its signature hereto, undertakes to procurecompliance by every Employer Company with this Deed.

 

37                                    **GENERAL PROVISIONS**

 

37.1                                                                           The rights and obligations of any Participant under the terms of hisoffice or employment with any Employer Company shall not be affected by hisparticipation in the Plan or any right which he may have to participate in it.  The Plan shall not entitle a Participant toany right to continued employment or any additional right to compensation inconsequence of the termination of his employment.

 

37.2                                                                           The Plan shall be governed and construed in accordance with the lawsof the RSA.

 

37.3                                                                           Subject to the provisions of 33, the Company and all EligibleEmployees hereby consent and submit to the jurisdiction of the

 

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WitwatersrandLocal Division of the High Court in respect of any dispute or claim arising outof or in connection with this Plan.

 

 
| Signed  at Johannesburg | on                       | 18 November 2005 |
|-------------------------|--------------------------|-----------------------|
|                    |                     |                  |
|                    | for  Gold Fields Limited |                  |

 

 
|   |   /s/ Ian D. Cockerill                                 |
|--------|-------------------------------------------------------------|
|   |   who warrants that he is duly  authorised hereto |

 

 

We, theundersigned, A J Wright and T M G Sexwale, do herebyaccept our appointment as Trustees of the Gold Fields Limited Share IncentiveTrust.

 

 
| Signed  at Sandton | on     | 18 November 2005 |
|--------------------|--------|-----------------------|
|               |   |                  |
|               |   |                  |

 

 
|   |   /s/ Alan J. Wright |
|--------|---------------------------|
|   |   A J Wright         |

 

 
| Signed  at Sandton | on     | 23 November 2005 |
|--------------------|--------|-----------------------|
|               |   |                  |
|               |   |                  |

 

 
|   |   /s/ Tokyo M. G. Sexwale      |
|--------|-------------------------------------|
|   |   T M G Sexwale |

 

 

This Deed wasduly adopted at a meeting of Gold Fields Limited held at Johannesburg on 17 November 2005.

 

 
|   |   /s/ Christopher M. T. Thompson |
|--------|---------------------------------------|
|   |   Chairman of the Meeting        |

 

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