EXHIBIT 4.14



 








Exhibit 4.14




JOINT VENTURE AGREEMENT




between:




AFRICAN RAINBOW MINERALS GOLD LIMITED




(Registration Number: 1997/015869/06)




and




HARMONY GOLD MINING COMPANY LIMITED




(Registration Number: 1950/038232/06)




and




CLIDET No 383
(PROPRIETARY) LIMITED




(Registration Number: 2001/029602/07)




 









 








CONTENTS



	 	 	 	 	 	 	 
	1.
	 	DEFINITIONS AND INTERPRETATION	 	 	4	 
	2.
	 	SUSPENSIVE CONDITION	 	 	13	 
	3.
	 	THE INTERIM MANAGEMENT OF FREEGOLD	 	 	13	 
	4.
	 	SHAREHOLDINGS IN FREEGOLD	 	 	15	 
	5.
	 	FURTHER FINANCING	 	 	21	 
	6.
	 	FREEGOLD’S BUSINESS	 	 	24	 
	7.
	 	THE BOARD	 	 	24	 
	8.
	 	CHAIRMAN AND DEPUTY CHAIRMAN OF THE BOARD	 	 	31	 
	9.
	 	PROFITS AND DIVIDEND POLICY	 	 	32	 
	10.
	 	GENERAL MEETINGS OF THE COMPANY AND MATTERS REQUIRING BOTH	 	 	 	 
	 
	 	SHAREHOLDERS’ APPROVAL	 	 	33	 
	11.
	 	TRANSFERS OF SHAREHOLDER’S INTEREST	 	 	34	 
	12.
	 	RECIPROCAL RIGHTS OF PRE-EMPTION BETWEEN THE SHAREHOLDERS	 	 	36	 
	13.
	 	COME ALONG	 	 	40	 
	14.
	 	TAG ALONG	 	 	42	 
	15.
	 	HARMONY CALL OPTIONS	 	 	42	 
	16.
	 	MATERIAL BREACH	 	 	44	 
	17.
	 	ARM AND HARMONY’S RECIPROCAL CALL OPTIONS	 	 	46	 
	18.
	 	MARKET VALUE OF THE SHAREHOLDER’S INTEREST	 	 	47	 
	19.
	 	LENDERS’ CTA	 	 	49	 
	20.
	 	WINDING-UP	 	 	50	 
	21.
	 	SHAREHOLDERS CONSENT	 	 	51	 
	22.
	 	PARTIES BOUND	 	 	51	 
	23.
	 	ENFORCEMENT OF THE COMPANY’S RIGHTS	 	 	51	 
	24.
	 	SHAREHOLDERS’ RIGHTS TO INFORMATION	 	 	52	 
	25.
	 	CONFIDENTIALITY	 	 	52	 
	26.
	 	EXPANSION OF THE MINING AND RELATED ACTIVITIES OF FREEGOLD	 	 	54	 
	27.
	 	ARBITRATION AND DISPUTE RESOLUTION	 	 	55	 
	28.
	 	MINE HEALTH AND SAFETY ACT APPOINTMENTS	 	 	57	 
	29.
	 	GENERAL	 	 	57	 
	30.
	 	ADDRESSES FOR LEGAL PROCESSES AND NOTICES	 	 	61	 
	31.
	 	STATUS OF THIS AGREEMENT	 	 	63	 







 









 






PREAMBLE




The definitions of terms contained in clause 1 apply to this preamble.





	A.	 	ARM and Harmony are engaged in the gold mining
industry. On 13 October 2001 they concluded a
Co-operation Agreement (“the Co-operation Agreement”) to
provide for the expansion and development of their
future gold mining operations in the Republic in
conjunction with each other for the period and on the
terms and conditions set out in the Co-operation
Agreement.
	 
	B.	 	In terms of the Co-operation Agreement, each of ARM
and Harmony (“the introducing party”) will, with effect
from the signature date of that agreement, refer to the
other (“the accepting party”), in writing, all gold
mining opportunities in the Republic that it becomes
aware of and wishes to pursue, with a view to pursuing
such gold mining opportunities jointly. The introducing
party shall be obliged to simultaneously provide the
accepting party with all information which it has
relating to such gold mining opportunities.
	 
	C.	 	ARM, Harmony, AngloGold and Freegold concluded

the Sale of Business Agreement on 24 December 2001 in
terms of which inter alia:






	(i)	 	Freegold will manage the Businesses of Freegold
for the period from 1 January 2002 to the
implementation date of the Sale of Business
Agreement in the event that the agreement becomes
unconditional or, in the event that the Sale of
Business Agreement does not become unconditional,
Freegold will cease to manage the Businesses of
Freegold on the date on which the Sale of Business
Agreement lapses due to the non-fulfilment of the
conditions precedent or for any other reason;
	 
	(ii)	 	Freegold will, in the event of the Sale of
Business Agreement becoming unconditional, acquire
from AngloGold with effect from 1 January 2002 the
Businesses of Freegold on the implementation date of
the Sale of Business Agreement; and




 









 












	(iii) 	 	ARM and Harmony are obliged to enter into an
agreement in order to regulate their relationship as
shareholders of Freegold on or before 21 January
2002.






	D.	 	The purchase price for the Businesses of
Freegold will be paid in three instalments, an
initial payment of R1,800,000,000 (one thousand eight
hundred million Rand) plus the interest calculated in
terms of the Sale of Business Agreement on the
implementation date of the Sale of Business Agreement
(“the initial payment”), a second payment of R400,000,000
(four hundred million Rand) on 1 January 2005 (“the
second payment”) and a third payment in respect of any
recoupment tax, capital gains tax and any other income
taxes payable by AngloGold in respect of the disposal of
the Businesses of Freegold so as to ensure that AngloGold
receives an aggregate consideration of R2,200,000,000
(two thousand two hundred million Rand) after the taxes
payable in respect of the disposal (“the tax payment”)
which payment will most probably be made before the
second payment.
	 
	E.	 	On 21 January 2002 ARM and Harmony concluded a joint
venture agreement (“the first joint venture agreement”)
as contemplated in C (iii) above to record and agree the
terms and conditions of their relationship during the
management period referred to in C (i), to regulate the
relationship between them as shareholders of Freegold and
to bind Freegold to comply with those terms and
conditions insofar as they relate to Freegold.
	 
	F.	 	The Parties wish to conclude this Agreement to
regulate the relationship between them as set out in E
and to supersede the first joint venture agreement.





NOW THEREFORE THE PARTIES AGREE THAT.





	1.	 	DEFINITIONS AND INTERPRETATION
	 
	 	 	For the purposes of this Agreement unless the context
requires otherwise, the following terms shall have
the meaning ascribed to them below:
	 
	1.1	 	“this Agreement”
                 
    means this Joint Venture Agreement;




 









 











	 	 	 	 	 
	1.2

	 	“AngloGold”
	 	means Anglogold Limited
(Registration Number: 1944/017354/06);
	 
	 	 	 	 
	1.3

	 	“ARM”
	 	means African Rainbow Minerals Gold
Limited (Registration Number: 1997/015869/06);
	 
	 	 	 	 
	1.4

	 	“the ARM Unsecured Loan”
	 	means the loan of R400,000,000
(four hundred million Rand)
made by ARM to Freegold
on loan account;
	 
	 	 	 	 
	1.5

	 	“the ARM Term Loan”
	 	means the loan of R500,000,000
(five hundred million Rand)
made by ARM to Freegold on
loan account and funded by the BoE Term Loan;
	 
	 	 	 	 
	1.6

	 	“ARM Unsecured Claims on
Loan Account”
	 	means all of ARM’s
Claims on Loan Account excluding the
ARM Term Loan;
	 
	 	 	 	 
	1.7

	 	“the Articles”
	 	means the articles of
association of Freegold in
force from time to time;
	 
	 	 	 	 
	

	 	“the ARM Directors”
	 	means the directors
nominated by ARM and holding office from time
to time in terms of the Articles;
	 
	 	 	 	 
	1.9

	 	“ARM’s Interest”
	 	in relation to any particular
time, means all of ARM’s Shares
and its Claims on Loan Account (if any)
at the time in question;
	 
	 	 	 	 
	1.10

	 	“the Auditors”
	 	means the auditors of Freegold for
the time being;
	 
	 	 	 	 
	1.11

	 	“Board”
	 	means the board of directors of Freegold
as constituted from time to time;







 









 






	 	 	 	 	 
	1.12

	 	“BoE”
	 	means BoE Merchant Bank, a division of
BoE Bank Limited (Registration Number: 1951/000847/06);
	 
	 	 	 	 
	1.13

	 	“BoE Cession and Pledge
in Security”
	 	means the written cession and pledge in
security by ARM in favour of BoE as
security for all of ARM’s obligations under,
inter alia, the Maandagshoek Guarantee;
	 
	 	 	 	 
	1.14

	 	“the BoE Term Loan”
	 	means the term loan of R500,000,000
(five hundred million Rand) made by the
Lenders (but initially only BoE) to ARM
and guaranteed by Freegold pursuant to
the Freegold Guarantee;
	 
	 	 	 	 
	1.15

	 	“Business Day”
	 	means any day other than a Saturday,
Sunday or statutory public holiday in the
Republic;
	 
	 	 	 	 
	1.16

	 	“Businesses of Freegold”
	 	means the gold mining businesses known
as the Bambanani, Joel, Matjhabeng and
Tshepong mines and the Ernest
Oppenheimer Hospital business, together
with all their associated assets and
infrastructure, as carried on by AngloGold
and its associated companies as at
21 November 2001 and as more fully
described in the Sale of Business
Agreement;
	 
	 	 	 	 
	1.17

	 	“Claims on Loan Account”
	 	in relation to either of the Shareholders,
means its claims in respect of loans made
to Freegold by such Shareholder, where
such loans are made with the consent of
or by arrangement with the other
Shareholder or in terms of this Agreement
as well as its claims against Freegold
	 
	 	 	 	 







 









 






	 	 	 	 	 
	

	 	 	 	which have arisen from any other cause;
	 
	 	 	 	 
	1.18

	 	“the Companies Act”
	 	means the Companies Act 1973, as
amended from time to time;
	 
	 	 	 	 
	1.19

	 	“Conditional Subscription
Agreement”
	 	means the written agreement entitled
“Conditional Subscription Agreement”
between BoE and ARM pursuant to which BoE may acquire Shares in Freegold;
	 
	 	 	 	 
	1.20

	 	“Debt Guarantor”
	 	means Micawber 243 (Proprietary) Limited
(Registration Number 2001/021483/07)
which will inter alia guarantee to the
Lenders the obligations of ARM under the
BoE Term Loan and the obligations of
Freegold under the Freegold Guarantee;
	 
	 	 	 	 
	1.21

	 	“the Directors”
	 	means the ARM Directors and the
Harmony Directors;
	 
	 	 	 	 
	1.22

	 	“Financier”
	 	means a bank, financial institution or other
entity which is regularly engaged in or
established for the purpose of making,
purchasing or holding interests in loans,
securities or other financial assets;
	 
	 	 	 	 
	1.23

	 	“Freegold”
	 	means Clidet No 383 (Proprietary) Limited
(Registration Number 2001/029602/07), a
private company incorporated in the
Republic in which both ARM and Harmony
hold 50% (fifty percent) of the issued
share capital, the name of which will as
soon as possible after the implementation
date of the Sale of Business Agreement
be changed to Freegold (Proprietary)
Limited or such other name as may be
acceptable to the Shareholders and the







 









 






	 	 	 	 	 
	

	 	 	 	Registrar of Companies;
	 
	 	 	 	 
	1.24

	 	“Freegold Counter
Indemnity”
	 	means the written agreement entitled
“Freegold Counter Indemnity” between
Freegold and the Debt Guarantor pursuant
to which Freegold indemnifies the Debt
Guarantor against certain costs, losses,
liabilities or expenses it may incur under
the written agreements entitled “Lenders’
Debt Guarantee” and “Harmony Debt
Guarantee”;
	 
	 	 	 	 
	1.25

	 	“Freegold Debt Guarantee”
	 	the written guarantee entitled “Freegold
Debt Guarantee” pursuant to which
Freegold guarantees the obligations of
ARM under the BoE Term Loan;
	 
	 	 	 	 
	1.26

	 	“Harmony”
	 	means Harmony Gold Mining Company
Limited (Registration Number
1950/038232/06);
	 
	 	 	 	 
	1.27

	 	“the Harmony Directors”
	 	means the directors nominated by
Harmony and holding office from time to
time in terms of the Articles;
	 
	 	 	 	 
	1.28

	 	“the Harmony Term Loan”
	 	means the loan of R500,000,000 (five
hundred million Rand) made by Harmony
to Freegold on loan account;







 









 






	 	 	 	 	 
	1.29

	 	“the Harmony Unsecured
Loan”
	 	means the loan of R400,000,000 (four
hundred million Rand) made by Harmony
to Freegold on loan account;
	 
	 	 	 	 
	1.30

	 	“Harmony Unsecured
Claims on Loan Account”
	 	means all of Harmony’s Claims on Loan
Account excluding the Harmony Term
Loan;
	 
	 	 	 	 
	1.31

	 	“Harmony’s Interest”
	 	in relation to any particular time, means all
of Harmony’s Shares and its Claims on
Loan Account (if any) at the time in
question;
	 
	 	 	 	 
	1.32

	 	“Lenders’ CTA”
	 	means the written agreement entitled
“Lenders’ Common Terms Agreement”
between BoE (as Lender and Facility
Agent), ARM, Freegold and the Debt
Guarantor, the terms and conditions of
which apply, inter alia, to the BoE Term
Loan;
	 
	 	 	 	 
	1.33

	 	“Lenders”
	 	means BoE and any Financiers that have
at any time advanced funds to ARM under
the BoE Term Loan;
	 
	 	 	 	 
	1.34

	 	“Maandagshoek
Guarantee”
	 	means the written agreement entitled
“Guarantee” issued by ARM and African
Rainbow Minerals and Exploration
Investments (Proprietary) Limited
(Registration No. 1997/020158/07) in
favour of BoE pursuant to which ARM as
primary obligor guarantees the obligations
of ARM Mining Consortium Limited to BoE
under a subordinated loan agreement in an
amount of R102,500,000 (one hundred and
two million five hundred thousand Rand)
excluding capitalised interest;







 









 






	 	 	 	 	 
	1.35

	 	“Management Period”
	 	means the period from 1 January 2002
until the implementation date of the Sale
of Business Agreement or the date on
which that agreement lapses, as the case
may be, during which period Freegold will
manage the Businesses of Freegold in
terms of the Sale of Business Agreement;
	 
	 	 	 	 
	1.36

	 	“Market Value”
	 	means the combined value of the
Shareholder’s Interest of all Shareholders
determined in accordance with clause 18;
	 
	 	 	 	 
	1.37

	 	“Member of the Same
Group”
	 	in relation to a Shareholder which is a
company, means another company which
is for the time being a holding company of
the Shareholder in question or a
subsidiary of that Shareholder or another
subsidiary of any such holding company of
that shareholder and where applicable,
includes any individual who owns or
otherwise controls, directly or indirectly,
more than 50% (fifty percent) of the total
votes in respect of all the issued ordinary
share capital of the Shareholder in
question, or any company controlled by
that individual or a member of his
immediate family and any trust of which
that individual or his immediate family is a
beneficiary;
	 
	 	 	 	 
	1.38

	 	“Merchant Bank”
	 	means a merchant bank or investment
bank which is a subsidiary or a part or a
division of a registered bank whether such
bank is registered in the Republic or
elsewhere;







 









 






	 	 	 	 	 
	1.39

	 	“Nominee”
	 	means a Shareholder who holds a Share
as a nominee for a Shareholder as
permitted in terms of this Agreement and
the Articles;
	 
	 	 	 	 
	1.40

	 	“the Parties”
	 	means ARM, Harmony and Freegold and
their successors in title and “Party” means
any of them;
	 
	 	 	 	 
	1.41

	 	“Prime Rate”
	 	means the rate (percent per annum) from
time to time charged by ABSA Bank
Limited for similar amounts on unsecured
overdraft to its prime customers in good
standing in the private sector, as certified
by the manager of that bank, whose
appointment it will not be necessary to
prove, calculated on a daily basis and
compounded monthly in arrear;
	 
	 	 	 	 
	1.42

	 	“the Republic”
	 	means the Republic of South Africa;
	 
	 	 	 	 
	1.43

	 	“the Sale of Business
Agreement”
	 	means the sale of business agreement
concluded between ARM, Harmony,
Anglogold and Freegold on 24 December
2001;
	 
	 	 	 	 
	1.44

	 	“Shares”
	 	means the ordinary par value shares of R1
(one rand) each in the issued share capital
of Freegold from time to time;
	 
	 	 	 	 
	1.45

	 	“Shareholders”
	 	means ARM and Harmony and where the
context so requires, includes their
successors in title to any Shares, and
“Shareholder” means any one of them as
the context may require;
	 
	 	 	 	 
	1.46

	 	“Shareholder’s Interest”
	 	in relation to a Shareholder at any







 









 






	 	 	 	 	 
	

	 	 	 	particular time, means all that
Shareholder’s Shares and its Claims on
Loan Account (if any);
	 
	 	 	 	 
	1.47

	 	“Signature Date”
	 	means the date on which this Agreement
is signed by the last Shareholder signing
it;
	 
	 	 	 	 
	1.48

	 	“Stock Exchange”
	 	means The JSE Securities Exchange
South Africa and any stock exchange on
which shares of a company may be listed;
	 
	 	 	 	 
	1.49

	 	“Unsecured Claims on Loan
Account”
	 	means collectively, the ARM Unsecured
Claims on Loan Account and the Harmony
Unsecured Claims on Loan Account;
	 
	 	 	 	 
	1.50	 	words and expressions defined in the Companies Act which are not
defined in this Agreement shall have the same meaning in this Agreement
as those ascribed to them in the Companies Act;
	 
	 	 	 	 
	1.51	 	if any provision in a definition or the preamble contains a substantive
provision conferring rights or imposing obligations on any Party, then
notwithstanding that it is in the definitions clause or preamble, effect shall
be given to it as if it were a substantive provision of this Agreement;
	 
	 	 	 	 
	1.52	 	Unless inconsistent with the context, an expression which denotes:
	 
	 	 	 	 
	1.52.1	 	any
gender includes the other genders;

	 
	 	 	 	 
	1.52.2	 	a
natural person includes an artificial person and vice versa;

	 
	 	 	 	 
	1.52.3	 	the
singular includes the plural and vice versa;

	 
	 	 	 	 
	1.53	 	All the headings and sub-headings in this Agreement are for convenience
only and are not to be taken into account for the purposes of interpreting it.







 









 






2. SUSPENSIVE CONDITION





This Agreement, save for clauses 1, 2, 3, 16, 25, 27,
29 and 30, is subject to the suspensive condition
that the Sale of Business Agreement becomes
unconditional on or before 30 April 2002 or such
later date as may be agreed in writing between the
Shareholders, and is implemented, failing which this
Agreement shall be of no force or effect.



3. THE INTERIM MANAGEMENT OF FREEGOLD





	3.1	 	Freegold is obliged to manage the Businesses of
Freegold in terms of the Sale of Business Agreement
during the Management Period, or should the Sale of
Business Agreement not become unconditional, from 1
January 2002 to the date on which that agreement lapses.
	 
	3.2	 	The Shareholders shall provide human and other
resources required for such management by Freegold free
of charge. Should it be necessary to obtain human or
such other resources from third parties, the Shareholders
shall bear the costs thereof equally, provided that the
necessary approvals in terms of clause 3.12 have been
obtained.
	 
	3.3	 	Freegold has commenced management of the Businesses
of Freegold and an Interim Executive Committee (“Interim
Exco”) has been established which is vested with the
management of Freegold in the same manner, mutatis
mutandis, as if the Interim Exco were the Board.
	 
	3.4	 	The Interim Exco consists of 12 (twelve) representatives.
	 
	3.5	 	Each Shareholder is entitled, by written notice to
the other Shareholder, to appoint 6 (six) representatives
to the Interim Exco and similarly by written notice to
remove any such representative or to replace any
such representative who is so removed or who ceases for
any other reason to be a member of the Interim Exco.
	 
	3.6	 	The quorum for meetings of the Interim Exco is 4
(four) representatives present at the commencement of and
throughout the meeting of whom 2




 









 












	 	 	 	(two) shall be representatives appointed by ARM
and 2 (two) shall be representatives appointed
by Harmony.






	3.7	 	The 6 (six) representatives on the Interim Exco of
each of ARM and Harmony have 1 (one) block vote, which
vote is cast by 1 (one) of their respective
representatives.
	 
	3.8	 	The Interim Exco has established an interim steering
committee which shall report directly to the Interim
Exco. The interim steering committee is responsible
for the day to day running of the Businesses of Freegold
within the powers delegated to it by the Interim Exco.
In particular, the interim steering committee operates
within the constraints of any approved budget and
schedule of authority.
	 
	3.9	 	The interim steering committee consists of that
number of persons deemed necessary by the Interim Exco
for the running of the Businesses of Freegold.
	 
	3.10	 	The interim steering committee ensures that the
Businesses of Freegold are run and managed according to
the highest international standards and operating
procedures relating to health, safety and environment.
	 
	3.11	 	The interim steering committee is empowered to
establish such sub committees as may be necessary for the
running of the Businesses of Freegold.
	 
	3.12	 	All expenditure by either of the Shareholders in
the course of the management of the Businesses of
Freegold during the Management Period in excess of R100,000 (one hundred thousand Rand) may only be incurred with
the prior written approval of the Interim Exco. All
expenditure less than R100,000 (one hundred thousand
Rand) by either of the Shareholders must be approved by
the financial directors of each of the Shareholders.
	 
	3.13	 	Should the Businesses of Freegold not generate
sufficient working capital at any time during the
Management Period, the Shareholders shall provide
bridging finance equally to Freegold which bridging
finance shall be repaid when sufficient capital is
available to make such repayments and after




 









 












	 	 	 	having provided for working capital
requirements. Should the Sale of Business
Agreement lapse for any reason and should one of
the Shareholders have contributed less than 50%
(fifty percent) of such bridging finance that
Shareholder shall compensate the other
Shareholder by making a payment to the extent
and with the effect that such bridging finance
shall have been contributed equally within 3
(three) days of receipt of a written demand to
make such payment.






	3.14	 	All expenses approved in terms of clause 3.12 shall
be borne equally by the Shareholders unless borne by
Freegold. Should the aggregate of payments in respect
of such expenses be disproportionate to the
Shareholder’s Interest that they will hold after the
implementation date of the Sale of Business Agreement and
dilution in terms of clause 4 (if any), then the
Shareholder whose payments are less than its
proportionate share shall compensate the other
Shareholder by making a payment to the extent and
with the effect that such expenses are borne
by the Shareholders in proportion to their
shareholding within 3 (three) days of receipt of a
written demand to make such payment.
	 
	3.15	 	The income of the Businesses of Freegold during the
Management Period shall be applied in the payment
of the costs incurred during the Management
Period dnd the profits of the Businesses of Freegold
shall be retained and shall, after the implementation
date of the Sale of Business Agreement, be dealt with in
terms of clause 9. Should the Sale of Business Agreement
lapse the profits and losses of Freegold shall be for the
account of AngloGold.





4. SHAREHOLDINGS IN FREEGOLD






	4.1	 	It is recorded that the authorised share capital of
Freegold is 100,000 (one hundred thousand) ordinary
shares of R1 (one Rand) each and that the issued share
capital of Freegold, which is held by ARM and Harmony in
equal proportions, is 2 (two) ordinary shares of R1 (one
Rand) each.
	 
	4.2	 	Freegold shall, provided that neither Shareholder
defaults in making its contribution in respect of the
initial payment in terms of clause 4.3, allot and issue 9,999 (nine thousand nine hundred and ninety nine) Shares
to






 








 





	 	 	 
	

	 	each of the Shareholders at par and for cash as soon as possible after the
Signature Date.
	 
	 	 
	4.3

	 	It is recorded that Freegold is obliged to pay the initial payment to
AngloGold on the implementation date of the Sale of Business Agreement,
on which date each Shareholder shall contribute to Freegold, on loan
account, an amount equal to 50% (fifty percent) of the initial payment (“the
initial contribution”) in the following manner:
	 
	 	 







	 	 	 	 	 
	4.3.1

	 	 	 	ARM shall advance the ARM Unsecured Loan to Freegold and
Harmony shall advance the Harmony Unsecured Loan to Freegold;
and
	 
	 	 	 	 
	4.3.2

	 	 	 	ARM shall advance the ARM Term Loan to Freegold and Harmony
shall advance the Harmony Term Loan to Freegold.
	 
	 	 	 	 







	 	 	 
	4.4

	 	Subject to clause 4.6, in the event that for any reason whatsoever either of
the Shareholders (“the defaulting shareholder”) fails to contribute the full
amount of its initial contribution, any such shortfall shall be contributed
to
Freegold by the other Shareholder (“the complying shareholder”) within 10
(ten) Business Days of the date of receipt of the written notice in terms of
clause 21 of the Saw of Business Agreement, and, unless the complying
shareholder elects otherwise in writing, Freegold shall allot and issue to
the
complying shareholder the number of shares necessary so that each
Shareholder holds the percentage of the total number of Shares which is in
proportion to the contribution made by each of them respectively (“the
adjusted Shareholder’s shareholding percentage”).
	 
	 	 
	4.5

	 	The adjusted Shareholder’s shareholding percentage shall be determined
in accordance with the following formula:







	 	 	 	 	 	 	 	 	 
	

	 	A
	 	 	 	 	100	 
	Y=

	 	

	 	X
	 	


	

	 	B
	 	 	 	 	1	 







	 	 	 
	

	 	in which formula: -







	 	 	 	 	 
	

	 	 	 	“Y” is the adjusted Shareholder’s shareholding percentage;







 









 






	 	 	 
	

	 	(ii) “A” is that portion of the initial payment (less the interest thereon)
contributed by the relevant Shareholder;
	 
	 	 
	

	 	(iii) “B” is R1,800,000,000 (one thousand eight hundred million Rand).
	 
	 	 
	

	 	Example 1: For the determination of the adjusted Shareholder’s
shareholding percentage of a Shareholder who contributes
R720,000,000 (seven hundred and twenty million Rand) of the Initial
contribution and assuming that the initial payment is
R1,800,000,000 (one thousand eight hundred million Rand).
	 
	 	 







	 	 	 	 	 	 	 	 	 
	

	 	720,000,000
	 	 	 	 	100	 
	Y =

	 	

	 	 	 	


	

	 	1,800,000,000
	 	X
	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	Y = 40%
	 	 	 	 	 	 	 	 







	 	 	 
	 
	 	 
	

	 	Example 2: For the determination of the adjusted Shareholder’s
shareholding percentage of a Shareholder who pays R1,080,000,000
(one thousand and eighty million Rand) of the initial contribution and
assuming that the initial payment is R1,800,000,000 (one thousand
eight hundred million Rand).
	 
	 	 







	 	 	 	 	 	 	 	 	 
	

	 	1,080,000,000
	 	 	 	 	100	 
	Y =

	 	

	 	 	 	


	

	 	1,800,000,000
	 	X
	 	 	               1	 
	Y = 60%
	 	 	 	 	 	 	 	 







	 	 	 
	4.6

	 	In the event that for any reason whatsoever either of the Shareholders
(“the defaulting shareholder”) fails to contribute any amount at all of its
initial contribution, its initial contribution shall be contributed to
Freegold by
the other Shareholder (“the complying shareholder”) within 10 (ten)
Business Days of the date of receipt of the written notice in terms of clause
21 of the Sale of Business Agreement and the defaulting shareholder shall
be obliged to transfer its 1 (one) Share (“the transfer share”) to the
complying shareholder, for a purchase consideration equal to the transfer
share’s par value of R1 (one Rand), by delivering to the complying
shareholder against payment of the purchase consideration its share







 









 






	 	 	 
	

	 	certificate for the transfer share, together with such duly executed
transfer
form as may be required by law for the transfer of the transfer share to the
complying shareholder or any Nominee for the complying shareholder, and
the provisions of clause 12.3.10 shall apply mutatis mutandis.
	 
	 	 
	4.7

	 	On 1 January 2005, to the extent that Freegold is unable to fund the
second payment from internal cash resources (the amount which Freegold
is unable to fund is hereafter referred to as “the second payment shortfall
amount”), each Shareholder shall contribute on loan account to Freegold
an amount equal to that percentage of the second payment shortfall
amount which is equivalent to their then respective percentage
shareholdings (“the second payment contribution”), which contributions will
form part of the Unsecured Claims on Loan Account.
	 
	 	 
	4.8

	 	Should a Shareholder (“the defaulting shareholder”) not contribute the full
amount due by it in terms of clause 4.7, the other Shareholder (“the
complying shareholder”) shall within 10 (ten) Business Days of the date of
receipt by Freegold of the written notice in terms of clause 21 of the Sale
of
Business Agreement remedy the default of the defaulting shareholder by
contributing as an unsecured loan to Freegold the amount (“the new
unsecured claim on loan account”) which the defaulting shareholder has
failed to contribute in terms of clause 4.7. Thereafter the defaulting
shareholder’s shareholding in Freegold shall be diluted in accordance with
the dilution procedure (“the dilution procedure”) set out in clauses 4.9 to
4.12 (both inclusive).
	 
	 	 
	4.9

	 	The Market Value of the Shareholder’s Interest after the second payment
contribution shall be determined in terms of clause 18. The market value
of the Shares shall be determined by subtracting the Claims on Loan
Account from the Market Value of the Shareholder’s Interest and dividing
the result by the number of Shares.
	 
	 	 
	4.10

	 	Once the market value per Share has been determined, the Auditors shall
determine in terms of this clause 4.10 the percentage of the Shares which
the defaulting shareholder should hold after dilution (“the second adjusted
Shareholder’s shareholding percentage”). The second adjusted
Shareholder’s shareholding percentage shall be determined in the
following manner:







 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	B – (A x C)
	 	 	 	 	100	 
	

	 	 	 	 	 	

	 	 	 	


	Y=

	 	[ A
	 	+
	(	 Market Value ) ]
	 	X
	 	 	1	 






            in which formula:



      



	 	 	 
	

	(i) 	“Y” is the second adjusted Shareholder’s shareholding percentage;
	 
	 	 
	

	(ii) 	“A” is the defaulting shareholder’s attributable share capital (being
the par value of the defaulting shareholder’s Shares plus a
proportionate share of any share premium or the stated capital, as
the case may be) plus the face value of its Claims on Loan
Account, divided by the total share capital of Freegold and the
total
Claims on Loan Account;

	 
	 	 
	

	(iii) 	“B” is that portion of the second payment contribution made by
defaulting shareholder;
	 
	 	 
	

	(iv) 	“C” is the amount of the second payment shortfall amount;
	 
	 	 
	

	(v) 	“Market Value” is the Market Value determined in terms of clause
18.







	 	 	 
	

	 	Example: For the determination of the second adjusted Shareholder’s
shareholding percentage of a Shareholder whose existing Shareholder’s
Interest is 50% (fifty percent) and who contributes R150,000,000 (one
hundred and fifty million Rand) of the second payment contribution
assuming that the Market Value is R3 billion (three thousand million Rand).







	 	 	 	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	150 million –
(0.5
x400 million)
	 	 	 	 	100	 
	

	 	 	 	 	 	

	 	 	 	

	       Y=

	 	[    0.5
	 	+
	(	 3 billion ) ]
	 	X
	 	 	1	 
	 
	Y = 48,3 %
	 	 	 	 	 	 	 	 	 	 	 	 







	 	 	 
	4.11

	 	The Auditors shall determine the number of Shares (“the remedy shares”)
to be allotted and issued to the complying shareholder so that the
defaulting shareholder holds the second adjusted shareholder’s
percentage. The complying shareholder shall subscribe for and Freegold
shall allot and issue to the complying shareholder the remedy shares at the







 









 






	 	 	 
	

	 	market value per Share determined in terms of clause 4.9 (“the
subscription price”).
	 
	 	 
	4.12

	 	The amount of the subscription price shall be set off against the amount of
the new unsecured claim on loan account in partial repayment by Freegold
to the complying shareholder of the new unsecured claim on loan account
(the remaining balance of the new unsecured claim on loan account is
hereafter referred to as “the new claim balance”).
	 
	 	 
	4.13

	 	The defaulting shareholder shall for a period of 60 (sixty) days after the
remedy of the default of the defaulting shareholder by the complying
shareholder, have a call option (“the clawback option”) to require the
complying shareholder to sell to the defaulting shareholder that number of
the remedy shares (“the clawback remedy shares”) and that portion of the
new claim balance that will put the defaulting shareholder back in the
position it would have been in had it not defaulted in respect of the
second
payment contribution (“the clawback new claim balance”). The purchase
price for:







	 	 	 	 	 
	4.13.1

	 	 	 	the clawback remedy shares shall be calculated by multiplying the
number of clawback remedy shares by the market value per Share
which was determined in terms of clause 4.9 and which was used
for the calculation of the number of remedy shares allotted and
issued in terms of clause 4.11;
	 
	 	 	 	 
	4.13.2

	 	 	 	the clawback new claim balance shall be the face value thereof.







	 	 	 
	

	 	The aggregate of the purchase prices for the clawback remedy shares and
the clawback new claim balance is hereafter referred to as “the clawback
price”.
	 
	 	 
	4.14

	 	The clawback option may be exercised by the defaulting shareholder by
way of written notice to the complying shareholder on or before the last
day
of the 60 (sixty) day period. Upon the exercise of the clawback option, the
defaulting shareholder shall pay the clawback price (together with interest
thereon at the Prime Rate from the date of remedy of the default in terms
of clause 4.8 to the date of payment of the clawback price) to the
complying shareholder within 10 (ten) Business Days of the date of








 









 






	 	 	exercise of the clawback option against delivery by the complying
shareholder to the defaulting shareholder of the share certificates and a
share transfer form in respect of the clawback remedy shares signed by
the complying shareholder and blank as to transferee and a written cession
of the clawback new claim balance in favour of the defaulting shareholder.
	 
	4.15	 	The defaulting shareholder shall indemnify the complying shareholder
against any tax incurred by the complying shareholder in respect of the
transfer of the clawback remedy shares contemplated in clause 4.14.
	 
	4.16	 	When Freegold is required to pay the tax payment in terms of the Sale of
Business Agreement and to the extent that Freegold is unable to fund the
tax payment from internal cash resources (the amount which Freegold is
unable to fund is hereafter referred to as “the tax payment shortfall
amount”) each Shareholder shall contribute on loan account to Freegold an
amount equal to that percentage of the tax payment shortfall amount which
is equivalent to their then respective percentage shareholdings (“the tax
payment contribution”), which contributions will form part of the Unsecured
Claims on Loan Account.
	 
	4.17	 	Should a Shareholder not contribute the full amount due by it in terms of
clause 4.16, the dilution procedure and the provisions of clauses 4.8 to
4.15 (both inclusive) shall apply mutatis mutandis except thaf references to
the second payment contribution shall be construed as references to the
tax payment contribution.






	5.	 	FURTHER FINANCING






	5.1	 	Unless otherwise agreed between the Shareholders in writing, neither
Shareholder shall be obliged to give any guarantees or provide any
security in respect of the funding obligations of Freegold.
	 
	5.2	 	Freegold’s future capital requirements shall be provided in the following
manner:






	5.2.1	 	out of Freegold’s own resources; or if this is not possible




 









 






	5.2.2	 	by means of loans from financial institutions and other appropriate
third parties secured by the assets of Freegold without security being provided by the Shareholders; or if this is not possible;

	 
	5.2.3	 	
by means of loans by the Shareholders or, if so agreed between
the Shareholders, by means of share capital, which shall be
contributed (“the capital call contribution”) by the Shareholders pro
rata to their shareholdings at that time; and
	 
	5.2.4	 	combinations of the above.






	5.3	 	Where the Shareholders provide any capital by way of loans, including
without limitation, the loans in respect of the Unsecured Claims on Loan
Account, such loans (other than the ARM Term Loan and the Harmony
Term Loan, the terms and conditions of which are contained in written
agreements concluded between ARM and Freegold and Harmony and
Freegold respectively) shall, unless otherwise agreed in writing between
the Shareholders, be on the following terms and conditions:






	5.3.1	 	such loans shall be interest bearing at the rate agreed between the
Shareholders and Freegold from time to time and failing such
agreement at the Prime Rate;
	 
	5.3.2	 	subject to the provisions of clause 9.1, such loans shall be
repayable to the Shareholders pro rata to their then shareholding
as and when the funds are available;
	 
	5.3.3	 	such loans shall in all other respects be on the terms and conditions
applicable to the existing Unsecured Claims on Loan Account (if
any) at the time in question.






	5.4	 	Should a Shareholder (“the defaulting shareholder”) fail to fulfil any of its
obligations in terms of and in accordance with clause 5.2.3, and should the
defaulting shareholder remain in breach of those obligations for a period of
14 (fourteen) days after receipt of a written notice by the other Shareholder
(“the complying shareholder) calling upon the defaulting shareholder to
remedy such breach, the complying shareholder may, after it has remedied
the default, in its sole discretion, elect to invoke the dilution procedure, in




 









 






	 	 	which event the provisions of clauses 4.8 to 4.15 (both inclusive) shall
apply mutatis mutandis except that:






	5.4.1	 	references to the second payment contribution shall be construed
as references to the capital call contribution; and
	 
	5.4.2	 	the clawback option may be exercised in accordance with clause
4.13 within a period of 180 (one hundred and eighty) days.






	5.5	 	Should the complying shareholder elect not to remedy the default of the
defaulting shareholder and invoke the dilution procedure in accordance
with clause 5.4, it may, in its sole discretion, elect to claim immediate
repayment of the loan advanced by it to Freegold in terms of clause 5.2.3.
	 
	5.6	 	Should AngloGold claim any amount from Freegold in terms of the Sale of
Business Agreement and should Freegold be unable to pay the amount out
of its own resources then the Shareholders shall provide further capital by
way of loans pro rata to their shareholdings at that time to Freegold in
order to enable it to pay such amount to AngloGold. Unless otherwise
agreed in writing between the Shareholders, the indebtedness of Freegold
incurred in respect of such loans shall be on terms and conditions agreed
between the Shareholders and the Board and, failing such agreement shall
be on the terms and conditions applicable to the existing Unsecured
Claims on Loan Account (if any) at the time in question. Should a
Shareholder fail to fulfil any of its obligations in terms of this clause 5.6 the
provisions of clause 5.4 shall apply mutatis mutandis.
	 
	5.7	 	The Shareholders agree that to the extent that any of them suffers any loss
in relation to suretyships and indemnities given on behalf of Freegold, or
loans made or credit given to Freegold pursuant to this Agreement, they
shall compensate each other within 3 (three) days of a written demand to
the extent and with the effect that such losses are borne in proportion to
their then shareholdings in Freegold.




 









 












	6.	 	FREEGOLD’S BUSINESS






	6.1	 	Each of the Shareholders shall use all reasonable and proper means in its
power to maintain, improve and extend the business of Freegold and to
further the reputation and interests of Freegold and any subsidiaries it may
have from time to time, subject to the terms and conditions of the Co -
operation Agreement.
	 
	6.2	 	The business of Freegold shall be that of gold mining, the acquisition and
exploitation of mineral rights and all related operations including, but not
limited to, smelting, refining, beneficiation and marketing of gold and its
associated minerals and by-products, and any other types of business
which the Shareholders may agree upon from time to time subject to the
terms and conditions of the Co-operation Agreement.
	 
	6.3	 	Except as the Shareholders may otherwise agree in writing or save as
otherwise provided for or contemplated in this Agreement, they shall
exercise their powers in relation to Freegold so as to ensure that Freegold
carries on and conducts its business and affairs in a proper and efficient
manner and for its own benefit.
	 
	6.4	 	The expression “Freegold” where used in this clause 6 shall include any
subsidiaries it may have from time to time to the extent and with the effect
that the provisions of this clause 6 shall apply in relation to each such
subsidiary as they apply in relation to Freegold.
	 
	6.5	 	The Shareholders record that Freegold shall be a profit orientated enterprise.






	7.	 	THE BOARD






	7.1	 	Notwithstanding the provisions of the Articles, the Board shall consist of 12
(twelve) directors.
	 
	7.2	 	For as long as ARM and Harmony each hold 50% (fifty percent) of the
Shares, or for so long as ARM and BoE collectively hold (pursuant to an




 









 






	 	 	acquisition of Shares by BoE in terms of the Conditional Subscription
Agreement) 50% (fifty percent) of the Shares and Harmony holds the other
50% (fifty percent) of the Shares:






	7.2.1	 	ARM may nominate 6 (six) persons for appointment as directors;
and
	 
	7.2.2	 	Harmony may nominate 6 (six) persons for appointment as
directors;







	

7.3	 	which persons shall be appointed as directors in terms of the
Articles.

If, and for so long as a Shareholder holds more than 50% (fifty percent) of
the Shares, such Shareholder shall be entitled to nominate 7 (seven)
persons for appointment as directors and the other Shareholder shall be
entitled to nominate 6 (six) persons for appointment as directors, which
persons shall be appointed as directors in terms of the Articles provided
that if and for so long as a Shareholder holds 75% (seventy five percent) or
more of the Shares, the Shareholders shall nominate directors in
proportion to their then shareholdings. Should the application of the
proportionate nomination principle result in a fraction, then that number
shall be rounded off to the nearest whole number.
	 
	7.4	 	Subject to the provisions of the Companies Act, the Shareholder
nominating a director shall be entitled to remove and replace such director
by written notice to Freegold, and in the same manner replace a director
who ceases to be a director for any other reason.
	 
	7.5	 	The Shareholders shall be entitled to nominate alternate directors for the
directors nominated in terms of this clause 7, who shall be appointed in
terms of the Articles. Such alternates need not be directors.
	 
	7.6	 	Subject to the provisions of clause 7.3, the quorum for meetings of the
Board shall be 4 (four) directors present at the commencement of and
throughout the meeting of whom 2 (two) shall be ARM Directors and 2
(two) shall be Harmony Directors.






 









 






	7.7	 	If within 30 (thirty) minutes after the time appointed for the commencement
of any meeting of the Board a quorum is not present, the meeting shall be
adjourned to a day 7 (seven) days after the date of the adjourned meeting
at the same place and time. Should that day not be a Business Day the
meeting shall be adjourned to the next Business Day after the expiry of the
7 (seven) day period.
	 
	7.8	 	Should a quorum not be present at such adjourned meeting within 30
(thirty) minutes after the time appointed for the meeting, the directors
present in person at that adjourned meeting shall constitute a quorum.
	 
	7.9	 	Unless otherwise determined by the Board a director shall receive at least
7 (seven) days notice of directors’ meetings and shall receive at least 48
(forty eight) hours notice of adjourned meetings.
	 
	7.10	 	All nominations of directors and alternate directors in terms of this clause 7
shall be made by written notice given to Freegold by the relevant
Shareholder.
	 
	7.11	 	Each Shareholder shall exercise its votes in respect of any resolution for
the appointment or removal of a director in the same manner as the
Shareholder who nominated such director.
	 
	7.12	 	Where no chairman or deputy chairman of the Board is present at the
commencement of and throughout the meeting the directors nominated by
the Shareholder who appointed the chairman in terms of clause 8 shall
elect from amongst their number a chairman of the meeting.
	 
	7.13	 	So as to effect meaningful black empowerment, transfer of skills and
capacity building, each Shareholder shall be entitled to identify 2 (two)
invitees whose identity shall be provided to Freegold in writing and who
shall be approved by the Board in writing and once so approved shall, in
addition to the directors, except where the Shareholders agree otherwise,
be entitled to attend and speak at meetings of the Board but shall not be
entitled to vote at such meetings.
	 
	7.14	 	The ARM Directors shall collectively have 1 (one) block vote which will be
cast by 1 (one) of the ARM Directors present at the meeting of the Board




 









 






	 	 	and the Harmony Directors shall collectively have 1 (one) block vote which
will be cast by 1 (one) of the Harmony Directors present at the meeting of
the Board.
	 
	7.15	 	If, and for so long as a Shareholder holds more than 50% (fifty percent) of
the Shares, the directors nominated by such Shareholder shall have 2
(two) block votes and the other Shareholder shall have 1 (one) block vote
which will be cast by 1 (one) of their respective directors present at the
meeting of the Board.
	 
	7.16	 	No resolution of the Board shall be regarded as having been passed in
respect of any of the following matters unless it has been passed
unanimously:






	7.16.1	 	save as otherwise provided for in this Agreement, the allotment or
issue of any further shares in Freegold which have been placed
under the control of the directors by Freegold in general meeting
and in respect of which a general authority has been given;
	 
	7.16.2	 	save as otherwise provided for in this Agreement, the consent to
the registration of transfer of Shares otherwise than in terms of this
Agreement, the Articles or any agreement between all the
Shareholders;
	 
	7.16.3	 	the creation or issue of any debentures by Freegold;
	 
	7.16.4	 	the declaration of dividends in excess of that provided for in clause
9 of this Agreement;
	 
	7.16.5	 	the purchase by Freegold of any asset other than in the ordinary,
normal and regular course of business or the entering into of any
lease in terms of which an item will be leased otherwise than in the
ordinary, normal and regular course of business;
	 
	7.16.6	 	the sale or disposal of any fixed assets of Freegold for a total
selling price per transaction of more than R 50,000,000 (fifty million
Rand);




 









 






	7.16.7	 	the conclusion, extension, renewal or modification of any long term
(exceeding 6 (six) months) contract, other than in the normal,
ordinary and regular course of business and any unusual or
onerous contract;
	 
	7.16.8	 	the conclusion of any contract with a Shareholder or Member of the
Same Group as the Shareholder outside the normal, ordinary and
regular course of business;
	 
	7.16.9	 	the conclusion of any other transaction or contract outside the
normal, ordinary and regular course of business;
	 
	7.16.10	 	subject to the provisions of clause 26, the establishment of any new
business including the sinking of any new shafts or the material
expansion of the operations of Freegold other than in accordance
with the budget or business plan;
	 
	7.16.11	 	the suspension or cessation or abandonment of any business or
part thereof carried on by Freegold;
	 
	7.16.12	 	the changing of the main business of Freegold;
	 
	7.16.13	 	save as otherwise provided for in this Agreement or in terms of the
Freegold Debt Guarantee, the mortgage, pledge or hypothecation
in any other manner of any assets or property of Freegold outside
the normal and regular course of business;
	 
	7.16.14	 	save as otherwise provided for in this Agreement or in terms of the
Freegold Debt Guarantee, the giving of any suretyship or guarantee
for the obligations of any person or entity other than a wholly owned
subsidiary;
	 
	7.16.15	 	save as otherwise provided for in this Agreement or in terms of the
Freegold Counter Indemnity, the issuing of any indemnities by
Freegold or the undertaking of any other similar obligations outside
the normal and regular course of business;




 









 






	7.16.16	 	the provision of any finance to any other person or entity whether in
the form of loans or in any other manner of amounts (whether or
not reflected on Freegold’s balance sheet) outside the normal and
regular course of business;
	 
	7.16.17	 	subject to the provisions of clause 26, the authorisation or incurring
of any capital expenditure outside the normal, ordinary and regular
course of business and which is not provided for in the short or long
term budget or business plan;
	 
	7.16.18	 	the change of the basis of accounting used by Freegold for its
previous accounting period unless required by any law, Generally
Accepted Accounting Practice or convention;
	 
	7.16.19	 	the employment or dismissal of all employees who report directly to
the steering committee established in terms of clause 7.19
	 
	7.16.20	 	the adoption, or material variation, of any bonus or profit-sharing
scheme or any share option or share incentive scheme or
employee share trust or share ownership plan;
	 
	7.16.21	 	the variation of any benefits under the pension fund in respect of
Freegold, other than variations of benefits required to be effected
by the pension fund;
	 
	7.16.22	 	the acquisition of any business, whether directly by acquiring the
business itself, or indirectly by acquiring the share capital of any
company owning the business;
	 
	7.16.23	 	the subscription for or the purchase of shares of or stock in or
debentures issued by any company outside the normal and regular
course of business;
	 
	7.16.24	 	the entering into of any partnership or joint venture with any third
party outside the normal and regular course of business;
	 
	7.16.25	 	the disposition or dilution of Freegold’s interests, directly or
indirectly, in any subsidiaries it may have from time to time;




 









 






	7.16.26	 	the merging of Freegold with any other company or corporate body
or the merger of Freegold’s business with that of any other person;
	 
	7.16.27	 	the approval of annual and long term budgets of Freegold from time
to time and deviations therefrom, which vote in favour of such
resolution shall not be unreasonably withheld taking cognisance of
generally accepted mining industry practice, sound economic
principles and the best interests of the Businesses of Freegold
specifically and Freegold generally;
	 
	7.16.28	 	the determination of Freegold’s annual and long term business plan
and investment and financial policies and plans, which vote in
favour of such resolution shall not be unreasonably withheld taking
cognisance of generally accepted mining industry practice, sound
economic principles and the best interests of the Businesses of
Freegold specifically and Freegold generally;
	 
	7.16.29	 	the determination of Freegold’s hedging and associated foreign
exchange policies;
	 
	7.16.30	 	the conclusion, of any contract between Freegold andiany director
or employee of Freegold or any person who is a relative or member
of Freegold as defined in the Estate Duty Act, 1955 (as amended),
or any corporation or company controlled by any Shareholder,
director, Member of the Same Group or relative, directly or
indirectly outside the normal, ordinary and regular course of
business;
	 
	7.16.31	 	the variation of, addition to or cancellation of any terms or
conditions of or the cancellation of any appointment, transaction or
agreement dealt with in this clause 7.16 or to which it applies.






	7.17	 	Should a Shareholder hold 75% (seventy five percent) or more of the
Shares the provisions of clause 7.16 shall not apply and Board resolutions
and resolutions put to the vote of the Board shall be decided by way of a
majority vote.




 









 







	7.18	 	Save as otherwise provided in this Agreement, all resolutions of the Board
shall be decided by way of a majority vote.
	 
	7.19	 	The Board shall establish a steering committee which shall report directly
to the Board. The steering committee shall be responsible for the day to
day running of the Businesses of Freegold within the powers delegated to
it by the Board. In particular, the steering committee shall operate within
the constraints of any approved budget and schedule of authority.
	 
	7.20	 	The steering committee shall ensure that the Businesses of Freegold are
run and managed according to the highest international standards and
operating procedures relating to health, safety and environment.
	 
	7.21	 	The steering committee may establish sub-committees such as financial
committees, empowerment committees, technical committees and human
resources committees.
	 
	8.	 	CHAIRMAN AND DEPUTY CHAIRMAN OF THE BOARD
	 
	8.1	 	In line with the Shareholders’ intention to promote the empowerment image
and profile of Freegold and in order to grow and develop its business, the
chairman of the Board shall, for the first 24 (twenty four) months after the
implementation date of the Sale of Business, be a person nominated by
ARM and appointed in terms of the Articles and the deputy chairman for
that period shall be a person nominated by Harmony. Thereafter,
notwithstanding that Harmony should be entitled to nominate the chairman,
it is the intention of the Shareholders that, for the above reasons, Freegold
should have joint-chairmen, one of whom shall be a person nominated by
ARM and the other shall be a person nominated by Harmony. There shall
accordingly be no deputy chairman.
	 
	8.2	 	The chairman and the deputy chairman shall always be nominated from
amongst the directors of Freegold.
	 
	8.3	 	The chairman and deputy chairman shall not have a casting vote at
meetings of the Board.




 









 







	8.4	 	A chairman, joint-chairman or deputy chairman nominated by a
Shareholder may be removed and may be replaced pursuant to a written
request given to Freegold to that effect by that Shareholder. A chairman
and deputy chairman shall be appointed, removed and replaced by
Freegold in terms of the Articles at a general meeting.
	 
	8.5	 	Each Shareholder shall exercise its votes in respect of any resolution for
the appointment or removal of a chairman, joint-chairman or deputy
chairman in the same manner as the Shareholder nominating such
chairman or deputy chairman or requesting his removal, as the case may
be.
	 
	9.	 	PROFITS AND DIVIDEND POLICY
	 
	9.1	 	The surplus cash after payment of operating costs and current taxes of
Freegold shall be applied in the following manner:






	9.1.1	 	firstly, to fund working capital, capital expenditure and to provide for
taxes;
	 
	9.1.2	 	secondly, to the provision for pro rata repayment and to pro rata
repayment of, the capital and interest on the ARM Term Loan and
the Harmony Term Loan;
	 
	9.1.3	 	thirdly, to the provision for payment and to payment of the second
payment and the tax payment;
	 
	9.1.4	 	fourthly, to the pro rata repayment of the capital and interest on the
ARM Unsecured Loan and the Harmony Unsecured Loan and any
further Unsecured Claims on Loan Account;
	 
	9.1.5	 	fifthly, to the payment of dividends.






	9.2	 	Subject to clause 9.1 and unless otherwise agreed in writing by the
Shareholders, they shall procure that all of Freegold’s profits for each
financial year, which are available for distribution, will, unless otherwise






 









 





	 	 	 
	

	 	agreed, be distributed by the payment of cash dividends at least twice
during each financial year and within 30 (thirty) days of the end of each
period of 6 (six) months during the financial year in question.
	 
	 	 
	10.

	 	GENERAL MEETINGS OF THE COMPANY AND MATTERS
REQUIRING BOTH SHAREHOLDERS’ APPROVAL
	 
	 	 
	10.1

	 	The quorum for general meetings of Freegold shall always include both
Shareholders who shall be present at the commencement of and
throughout the general meeting. The voting and the conduct at
proceedings of general meetings shall in all other respects be governed by
the Articles and the Companies Act.
	 
	 	 
	10.2

	 	Resolutions in respect of the following matters may only be passed with
the approval in writing of a Shareholder or Shareholders, as the case may
be, holding 75% (seventy five percent) or more of the Shares:







	 	 	 	 	 
	10.2.1

	 	 	 	the change of the Auditors;
	 
	 	 	 	 
	10.2.2

	 	 	 	the passing of a resolution as contemplated in Section 228 of the
Companies Act to authorise the sale or disposition of the whole or a
major part of the business or the assets of Freegold;
	 
	 	 	 	 
	10.2.3

	 	 	 	subject to the provisions of this Agreement and save in respect of
Shares which BoE may become entitled to acquire in terms of the
Conditional Subscription Agreement, the creation, allotment or
issue of any shares in the capital of Freegold or any other security
or granting of any option or rights to subscribe in respect thereof or
the conversion of any instrument into such shares;
	 
	 	 	 	 
	10.2.4

	 	 	 	the declaration of a dividend otherwise than in accordance with
clause 9;
	 
	 	 	 	 
	10.2.5

	 	 	 	the bringing of any application for the winding-up of Freegold; or
	 
	 	 	 	 
	10.2.6

	 	 	 	the obtaining of a listing for the Shares on any Stock Exchange.







 









 






	 	 	 
	10.3

	 	The expression “Freegold” where used in clause 10.2 shall Include any
subsidiaries Freegold may have from time to time to the extent and with
the effect that the provisions of clause 10.2 shall apply in relation to each
such subsidiary as they apply in relation to Freegold.
	 
	 	 
	10.4

	 	Should there be an equality of votes in respect of a resolution proposed at
a general meeting the chairman of the general meeting shall not have a
casting vote.
	 
	 	 
	10.5

	 	Save as otherwise provided for in this Agreement, the Articles or the Act,
all resolutions put to the vote of the general meeting shall be decided by
way of a majority vote.
	 
	 	 








	11.	 	TRANSFERS OF SHAREHOLDER’S INTEREST





	 	 	 
	11.1

	 	Neither Shareholder shall, except in accordance with the provisions of this
Agreement or in accordance with the provisions of the Conditional
Subscription Agreement or with the prior written consent of the other
Shareholder:
	 
	 	 







	 	 	 	 	 
	11.1.1

	 	 	 	pledge, mortgage or otherwise hypothecate or encumber its
Shareholder’s Interest or any of the rights attached to its
Shareholder’s Interest; or
	 
	 	 	 	 
	11.1.2

	 	 	 	sell, transfer or otherwise dispose of its Shareholder’s Interest or
any of the rights attached to its Shareholder’s Interest; or
	 
	 	 	 	 
	11.1.3

	 	 	 	enter into any agreement in respect of the votes attached to its
Shareholder’s Interest or any of the other rights attached to its
Shareholder’s Interest.







	 	 	 
	11.2

	 	Any Shareholder shall be entitled to encumber its Shareholder’s Interest in
favour of the Debt Guarantor and/or any Financier that provides funding to
such Shareholder to enable such Shareholder to make contributions







 









 






	 	 	 
	

	 	(whether in the form of loans or share capital) to Freegold; provided that
in granting such security the relevant Shareholder shall ensure that:







	 	 	 	 	 
	11.2.1

	 	 	 	the Debt Guarantor and/or any Financier, as the case may be,
agrees to comply with the provisions of clauses 12.1 to 12.6 (both
inclusive) in favour of the other Shareholder when realising the
relevant Shareholder’s Interest; and
	 
	 	 	 	 
	11.2.2

	 	 	 	the Debt Guarantor and/or any Financier, as the case may be,
agrees to ensure that any person who agrees to acquire the
relevant Shareholder’s Interest shall enter into and sign a deed of
adherence to observe, perform and be bound by all the terms of
this Agreement which are capable of applying to such person.







	 	 	 
	11.3

	 	The Harmony Term Loan shall be secured in the same manner and to the
same extent mutatis mutandis as the security provided to the Lenders
and/or the Debt Guarantor in respect of the assets of Freegold.
	 
	 	 
	11.4

	 	The Parties shall procure that before any person (other than a person who
is already a Shareholder) is registered as a holder of any Share, such
person shall enter into and sign a deed of adherence to observe, perform
and be bound by ail the terms of this Agreement which are capable of
applying to such person. The Parties shall further co-operate in good
faith
so as to amend this Agreement to provide for the additional Shareholder or
Shareholders. Freegold shall not register any such person as the holder of
any Share until such a deed has been executed. Upon being so registered
that person shall be deemed to be a Party to this Agreement.
	 
	 	 
	11.5

	 	Freegold shall not register any transfer of Shares made in breach of this
Agreement and the Shares so transferred shall carry no rights whatsoever
unless and until the breach is rectified.
	 
	 	 
	11.6

	 	No Shareholder shall transfer any Shares unless a proportionate amount of
that Shareholder’s Claims on Loan Account, if any, are transferred
together with such Shares.







 









 







	12.	 	RECIPROCAL RIGHTS OF PRE-EMPTION BETWEEN THE SHAREHOLDERS





	 	 	 
	12.1

	 	Save as otherwise provided in this Agreement, each Shareholder (“the
offerer”) undertakes not to sell or otherwise dispose of or transfer any
Shareholder’s Interest owned by it to anyone (“a third party offer”) other
than the other Shareholder (“the offeree”), without first offering such
Shareholder’s Interest (“the offer Shareholder’s Interest”) to the offeree at
the same price and on the same terms and conditions as those on which
the offerer is prepared to sell the offer Shareholder’s Interest under a bona
fide transaction to such other person.
	 
	 	 
	12.2

	 	Any offer (“the offer”) in terms of clause 12.1 shall:







	 	 	 	 	 
	12.2.1

	 	 	 	be made in writing to the offeree and be delivered to the offeree at
its address set out in clause 30;
	 
	 	 	 	 
	12.2.2

	 	 	 	specify the name of the third party who is the prospective
transferee, the purchase price expressed as an amount in South
African Rands and the terms and conditions of the third party offer;
	 
	 	 	 	 
	12.2.3

	 	 	 	be irrevocable for a period of 30 (thirty) days from its receipt by the
offeree;
	 
	 	 	 	 
	12.2.4

	 	 	 	not be capable of partial acceptance unless otherwise agreed by
the prospective transferee;
	 
	 	 	 	 
	12.2.5

	 	 	 	be accepted by the offeree giving written notice to the offerer’s
address specified in clause 30 within the 30 (thirty) days referred to
in clause 12.2.3.







	 	 	 
	12.3

	 	If the offer is duly accepted by the offeree;







	 	 	 	 	 
	12.3.1

	 	 	 	then the sale and purchase of the offer Shareholder’s Interest
which results shall be on the terms and conditions of the third party
offer provided that payment shall be made within 60 (sixty) days
after the acceptance referred to in clause 12.2.5. Should payment
for the offer Shareholder’s Interest occur after the payment date
specified in the third party offer, the offeree shall pay interest on the







 









 






	 	 	 	 	 
	

	 	 	 	purchase price at the Prime Rate from the payment date specified
in the third party offer until the date of payment;
	 
	 	 	 	 
	12.3.2

	 	 	 	the offerer shall deliver the relevant share certificate(s) to the
offeree or any Nominee(s) for the offeree, together with such duly
executed transfer forms as may be required by law for the transfer
of the Shares forming part of the offer Shareholder’s Interest to the
offeree or any Nominee(s) for the offeree, and a power of attorney
in such form and in favour of such person as the offeree may
nominate so as to enable the offeree to exercise all rights of
ownership in respect of the Shares forming part of the offer
Shareholder’s Interest, including, without limitation, the voting
rights
thereto;
	 
	 	 	 	 
	12.3.3

	 	 	 	the offeror shall deliver the relevant cessions to the offeree in
writing in respect of a proportionate amount of its rights in respect
of its Claims on Loan Account;
	 
	 	 	 	 
	12.3.4

	 	 	 	the offeror and the offeree shall procure (insofar as they are able)
that such transfer or transfers are duly registered;
	 
	 	 	 	 
	12.3.5

	 	 	 	the offeror shall do all such other things and execute all such other
documents as the offeree may require to give effect to the sale and
purchase of the offer Shareholder’s Interest;
	 
	 	 	 	 
	12.3.6

	 	 	 	each of the Shareholders shall use its reasonable endeavours to
obtain any regulatory or other consents that are needed to enable
the sale and purchase of the offer Shareholder’s Interest to be
completed. If such consents are refused the purchase and sale
shall become void and the offeror and the offeree shall be released
from their obligations under this clause 12.3, but they shall
negotiate with each other in good faith with a view to achieving an
alternative solution.
	 
	 	 	 	 
	12.3.7

	 	 	 	the offeree shall within the 60 (sixty) day period referred to in
clause 12.3.1 provide the offeror with a written statement by the
offeree’s Financiers to the effect that they are prepared to lend the







 









 






	 	 	 	 	 
	

	 	 	 	necessary funds to the offeree to enable it to purchase the offer
Shareholder’s Interest at the end of the 60 (sixty) day period;
	 
	 	 	 	 
	

	 	 	 	should the funds referred to in clause 12.3.7 not be available at the
end of the 60 (sixty) day period referred to in clause 12.3.1 then,
provided that the offeree provides proof, to the reasonable
satisfaction of the offeror, before the end of the 60 (sixty) day
period, that payment of the purchase price will be made within a
further 30 (thirty) days from the end of such 60 (sixty) day period,
the offeree shall have an additional 30 (thirty) day period from the
end of such 60 (sixty) day period to pay the purchase price;
	 
	 	 	 	 
	12.3.9

	 	 	 	should the offeree fail to make payment at the end of the 60 (sixty)
day or the additional 30 (thirty) day period, as the case may be, the
offeror shall without prejudice to its other rights in law be entitled to
cancel the agreement of sale and purchase in terms of clause 12.3
and the offeree shall forfeit all its pre-emptive rights in respect of
any proposed future transfers by the offeror of its Shareholder’s
Interest or a portion of its Shareholder’s Interest;
	 
	 	 	 	 
	12.3.10

	 	 	 	if the offeror fails or refuses to transfer any offer Shareholder’s
Interest in accordance with its obligations hereunder) the offeree
shall execute and deliver on behalf of the offeror the necessary
transfer form(s) and other documents required for the transfer of
the offer Shareholder’s Interest. The offeree shall receive the
purchase money in trust for the offeror and in the case of any
Shares forming part of the offer Shareholder’s Interest cause the
offeree to be registered as the holder thereof, whereupon it shall
pay the purchase money so received by it to the offeror and after
the offeree has been registered in exercise of the aforesaid powers
the validity of the proceedings shall not be questioned by any
person.







	 	 	 
	12.4

	 	Should the offer not be accepted by the offeree within the period
applicable
under clause 12.2.6, then the offeror shall be entitled to sell or
otherwise
dispose of and transfer the offer Shareholder’s Interest to the third party
specified as the prospective transferee in the offer, provided that:







 









 






	 	 	 	 	 
	12.4.1

	 	 	 	the sale is entered into within 30 (thirty) days from the date on
which the offerer receives written notification from the offeree of its
rejection of the offer or the offer expires, whichever is the earlier;
	 
	 	 	 	 
	12.4.2

	 	 	 	the sale is not effected at a price and on terms and conditions
which are more favourable to the prospective transferee than those
first offered to the offeree in terms of the offer;
	 
	 	 	 	 
	12.4.3

	 	 	 	no transfer may be effected in terms of this clause 12.4 unless and
until the prospective transferee will have first agreed in writing to
become a party to and be bound as a Shareholder by all the terms
and conditions of this Agreement in accordance with the
requirements of clause 11.4 and the sale or other disposal to the
prospective transferee in question shall not take effect unless and
until the requirements of this clause 12.4.3 have been completed to
the reasonable satisfaction of the offeree;
	 
	 	 	 	 
	12.4.4

	 	 	 	without detracting from the generality of this clause 12.4, no
transfer may be effected in terms of this clause 12.4 to a
prospective transferee who at the time of the proposed transfer is
or would be in breach of any of the obligations to be assumed by
such transferee in terms of the requirements of clause 12.4.3; and
	 
	 	 	 	 
	12.4.5

	 	 	 	should the sale or other disposal to the prospective transferee
named in the offer not be entered into within the 30 (thirty) days
referred to in clause 12.4.1, all the provisions of this clause 12 shall
continue to remain in force.







	 	 	 
	12.5

	 	Notwithstanding anything else in this clause 12 it shall not apply to and
therefore not preclude:







	 	 	 	 	 
	12.5.1

	 	 	 	any transfer of any Shares by a Shareholder to a bona fide
Nominee of that Shareholder or from any such bona fide Nominee
back to that Shareholder or from any one such bona fide Nominee
to any other such bona fide Nominee, where there is no change of
beneficial ownership of the Shares in question, provided that no
such transfer may be effected unless and until such Nominee will
have first agreed in writing to become a party to and be bound as a







 









 






	 	 	 	 	 
	

	 	 	 	Shareholder by all the terms and conditions of this Agreement in
accordance with the requirements of clause 11.4;
	 
	 	 	 	 
	12.5.2

	 	 	 	any transfer of any Shareholder’s Interest by a Shareholder to any
other company which is a wholly owned subsidiary of that
Shareholder, provided that:







	 	 	 	 	 
	12.5.2.1

	 	 	 	the transferee continues to be a wholly owned subsidiary of
such Shareholder for as long as it holds any Shares;
	 
	 	 	 	 
	12.5.2.2

	 	 	 	no transfer may be effected in terms of this clause 12.5.2
unless and until the prospective transferee will have first
agreed in writing to become a party to and be bound as a
Shareholder by all the terms and conditions of this
Agreement in accordance with the requirements of clause
11.4;
	 
	 	 	 	 
	12.5.2.3

	 	 	 	the Shareholder shall continue to be bound by this
Agreement and undertakes that if the transferee, after
having taken transfer of the Shares in question, ceases to
be a wholly owned subsidiary of the Shareholder, it will prior
to so ceasing transfer all Shares it may then be holding
back to that Shareholder in accordance with the
requirements of clause 12.5.2.1.
	 
	 	 	 	 







	 	 	 
	12.6

	 	Any third party who takes transfer of a Shareholder’s Interest in terms of
clause 12 shall comply with the provisions of clause 11.4.
	 
	 	 
	12.7

	 	The provisions of clauses 12.1 to 12.6 (both inclusive) other than clause
12.5.1, shall not apply to any transfer of the whole or any part of ARM’s
Shareholder’s Interest in accordance with the provisions of the
Conditional
Subscription Agreement.








	13.	 	COME ALONG





	 	 	 
	13.1

	 	Should a Shareholder (“the disposing shareholder”) at any time hold 70%
(seventy percent) or more of the Shareholder’s Interest and should an
offer







 









 






	 	 	 
	

	 	to acquire its entire Shareholder’s Interest be received from a third party
(“the third party offer”) the disposing shareholder shall, in the event
that it
wishes to accept the third party offer in respect of its Shareholder’s
Interest, indicate in writing to the other Shareholder (“the remaining
shareholder”) its intention to accept the third party offer insofar as it
relates
to its Shareholder’s Interest.
	 
	 	 
	13.2

	 	The notice in terms of clause 13.1 shall constitute an offer by the
disposing
shareholder to sell its Shareholder’s Interest to the remaining shareholder
on the terms of the third party offer.
	 
	 	 
	13.3

	 	Such offer to the remaining shareholder shall be irrevocable and capable
of acceptance for a period of 30 (thirty) days after the receipt of such
notice.
	 
	 	 
	13.4

	 	Should the offer referred to in clause 13.2 be refused by the remaining
shareholder or expire unaccepted, then the other provisions of this
Agreement or the Articles conferring pre-emptive rights on the
Shareholders shall not apply and the disposing shareholder shall have the
right to immediately require the remaining shareholder to join with the
disposing shareholder in accepting the third party offer and giving effect
to
any sale resulting therefrom.
	 
	 	 
	13.5

	 	If the remaining shareholder fails or refuses to cede and transfer any of
its
Shareholder’s Interest in accordance with its obligations hereunder, the
disposing shareholder shall execute and deliver on behalf of the remaining
shareholder the necessary transfer form(s) and other documents required
for the transfer of the remaining Shareholder’s Interest. The disposing
shareholder shall receive the purchase money in trust for the remaining
Shareholder’s Interest and cause the third party to be registered as the
holder thereof, whereupon it shall pay the purchase money so received by
it to the remaining shareholder and in the case of such registration in
exercise of the aforesaid powers, the validity of any such actions shall
not
be questioned by any person.







 









 






	 	 	 
	14.

	 	TAG ALONG
	 
	 	 
	

	 	Subject to the provisions of clause 12, should either Shareholder hold 70%
(seventy percent) or more of the Shares, such Shareholder shall not enter
into any
transaction for the sale or disposal of more than 49% (forty nine percent)
of the
entire Shareholder’s Interest unless at the same time it procures for the
other
Shareholder an offer by the same purchaser for the purchase of the
Shareholder’s
Interest of the other Shareholder at the same price and upon the same terms
and
conditions.
	 
	 	 
	15.

	 	HARMONY CALL OPTIONS







	 	 	 	 	 
	15.1

	 	 	 	Should the Lenders call up the BoE Term Loan or any part thereof (by the
exercise of any of their rights under clause 12 of the Lenders’ CTA
pursuant to ARM failing to remedy an event of default under that
agreement in the time period allowed therefor), ARM shall forthwith inform
Harmony in writing thereof and such notice shall constitute an offer by
ARM to Harmony to sell that percentage of its Shareholder’s Interest (“the
Sold Interest”), calculated at Market Value, which is equal in value to the
outstanding amount of the BoE Term Loan in respect of which BoE has
called for payment. The purchase price for the Sold Interest shall be:







	 	 	 	 	 
	15.1.1

	 	 	 	in respect of ARM’s Shares (“the Sold Shares”) comprised in the
Sold Interest, the market value thereof (being the Market Value of
the Sold Interest less the face value of ARM’S Claims on Loan
Account comprised in the Sold Interest); and
	 
	 	 	 	 
	15.1.2

	 	 	 	in respect of ARM’S Claims on Loan Account comprised in the Sold
Interest (“the Sold Claims”), the face value thereof.







	 	 	 	 	 
	15.2

	 	 	 	Such offer to Harmony shall be irrevocable and capable of acceptance by
Harmony for a period of 30 (thirty) days after the date of receipt of such
offer by Harmony pursuant to the provisions of clause 15.1 or the date of
receipt by Harmony of a written notice from BoE informing Harmony that
the Lenders have called up the BoE Term Loan or a part thereof,
whichever date is the earlier. Within 30 (thirty) days of the date of







 









 






	 	 	 	 	 
	

	 	 	 	acceptance of the aforesaid offer or, in the event that the Market Value
has
not been determined prior to that date, within 2 (two) Business Days of
the
date on which the Market Value is determined, Harmony shall pay the
purchase price for the Sold Interest to BoE on behalf of ARM against
delivery by ARM (or its nominee) to Harmony of the share certificates and
a share transfer form in respect of the Sold Shares and a written cession
of
the Sold Claims in favour of Harmony.
	 
	 	 	 	 
	15.3

	 	 	 	Should BoE be entitled to exercise its rights, under clause 9 of the BoE
Cession and Pledge in Security pursuant to a breach by ARM of the
Maandagshoek Guarantee and notify ARM in writing that it is so entitled
and is going to exercise such rights, ARM shall forthwith inform Harmony in
writing thereof and such notice shall constitute an offer by ARM to
Harmony to sell that percentage of its Shareholder’s Interest (“the Sold
Interest”), calculated at Market Value, which is equal in value to the
amount outstanding by ARM under the Maandagshoek Guarantee. The
purchase price for the Sold Interest shall be:







	 	 	 	 	 
	15.3.1

	 	 	 	in respect of ARM’S Shares (“the Sold Shares”) comprised in the
Sold Interest, the market value thereof (being the Market Value of
the Sold Interest less the face value of ARM’S Claims on Loan
Account comprised in the Sold Interest); and
	 
	 	 	 	 
	15.3.2

	 	 	 	in respect of ARM’S Claims on Loan Account comprised in the Sold
Interest (“the Sold Claims”), the face value thereof.







	 	 	 	 	 
	15.4

	 	 	 	Such offer to Harmony shall be irrevocable and capable of acceptance by
Harmony for a period of 30 (thirty) days after the date of receipt of such
offer by Harmony pursuant to the provisions of clause 15.3 or the date of
receipt by Harmony of a written notice from BoE informing Harmony that it
is entitled to exercise its rights, under clause 9 of the BoE Cession and
Pledge in Security pursuant to a breach by ARM of the Maandagshoek
Guarantee, whichever date is the earlier. Within 30 (thirty) days of the
date of acceptance of the aforesaid offer or, in the event that the Market
Value has not been determined prior to that date, within 2 (two) Business
Days of the date on which the Market Value is determined, Harmony shall
pay the purchase price for the Sold Interest to BoE on behalf of ARM
against delivery by ARM (or its nominee) to Harmony of the share







 









 






	 	 	 	 	 
	

	 	 	 	certificates and a share transfer form in respect of the Sold Shares and a
written cession of the Sold Claims in favour of Harmony.
	 
	 	 	 	 
	15.5

	 	 	 	If ARM fails or refuses to cede and transfer any of its Shareholder’s
Interest in accordance with its obligations under clause 15.2 or clause
15.4, as the case may be, Harmony shall execute and deliver on behalf of
ARM the necessary transfer form(s) and other documents required for the
transfer of ARM’S Shareholder’s Interest.
	 
	 	 	 	 
	15.6

	 	 	 	The provisions of clauses 15.3 and 15.4 shall be subject to BoE, having
consented in writing to ARM being entitled to offer the Sold Interest to
Harmony under clause 15.3 and to the sale of the Sold Interest to Harmony
pursuant to its acceptance of any such offer.








	16.	 	MATERIAL BREACH





	 	 	 	 	 
	16.1

	 	 	 	For the purposes of this clause 16, the expression “material breach” means
a breach of any of the terms of this Agreement which is material having
regard to all relevant circumstances including, without being limited to, the
nature of the relationship between the Shareholders and the need for each
Shareholder to maintain the confidence of the other, the nature of the
breach (and in particular whether it is intentional, negligent or neither)
and
the consequences of the breach.
	 
	 	 	 	 
	16.2

	 	 	 	If either Shareholder (“the defaulting shareholder”) commits a material
breach which is not capable of being remedied, the following provisions
shall apply:







	 	 	 	 	 
	16.2.1

	 	 	 	the other Shareholder (“the aggrieved shareholder”) shall, without
prejudice to its other rights in law, have the right either to require
Freegold to be wound up in accordance with clause 20 or to require
the defaulting shareholder to sell its Shareholder’s Interest to it, as
the aggrieved shareholder may elect;
	 
	 	 	 	 
	16.2.2

	 	 	 	the aggrieved shareholder’s right in terms of clause 16.2.1 must be
exercised by written notice (“the election notice”) given within 30







 









 






	 	 	 	 	 
	

	 	 	 	(thirty) days from the date on which the aggrieved shareholder
becomes aware of the breach or within a period of 10 (ten) days
after the determination of the Market Value, whichever is the later,
and such notice shall identify the breach, refer to clause 16.2.1 and
specify which of the alternative rights referred to in clause 16.2 is
being elected;
	 
	 	 	 	 
	16.2.3

	 	 	 	if the aggrieved shareholder exercises the right to require Freegold
to be wound up, then the Shareholders shall be bound to take all
such steps as may be necessary to wind up Freegold forthwith by
way of a members voluntary winding up;
	 
	 	 	 	 
	16.2.4

	 	 	 	if the aggrieved shareholder exercises the right to require the
defaulting shareholder to sell its Shareholder’s Interest to it, then
the sale shall be subject to the following terms and conditions :







	 	 	 	 	 
	16.2.4.1

	 	 	 	the effective date of the sale shall be the date on which the
defaulting shareholder receives the election notice;
	 
	 	 	 	 
	16.2.4.2

	 	 	 	the purchase price payable for the defaulting shareholder’s
Shareholder’s Interest shall be the Market Value of such
Shareholder’s Interest;
	 
	 	 	 	 
	16.2.4.3

	 	 	 	completion of the sale shall be effected within 90 (ninety)
days of the expiry of the period specified in clause 16.2.2.







	 	 	 	 	 
	16.3

	 	 	 	If any Shareholder commits a material breach which is capable of being
remedied then, without prejudice to any other rights that the aggrieved
shareholder may have in law, the following provisions shall apply:







	 	 	 	 	 
	16.3.1

	 	 	 	the aggrieved shareholder may give written notice (“the warning
notice”) to the defaulting shareholder identifying the material breach
and referring to this sub-clause, provided that such notice must be
given within 30 (thirty) days from the date on which it becomes
aware of the material breach;
	 
	 	 	 	 
	16.3.2

	 	 	 	if the warning notice is given in terms of clause 16.3.1 and if the
material breach identified in that notice is not remedied by the







 









 






	 	 	 	 	 
	

	 	 	 	defaulting shareholder within a period of 15 (fifteen) days from the
date it receives the warning notice, or such longer period as may be
reasonable in the circumstances provided that the defaulting
shareholder commences the remedial action within the 15 (fifteen)
day period and proceeds with such action expeditiously and in good
faith, then the aggrieved shareholder shall have the same rights as
those set out in clause 16.2, the provisions of which shall apply
mutatis mutandis provided that the aggrieved shareholder shall
have a further 30 (thirty) days within which to give the election
notice.







	 	 	 	 	 
	16.4

	 	 	 	Notwithstanding anything to the contrary contained in this Agreement, no
Party shall be entitled to cancel this Agreement.
	 
	 	 	 	 
	16.5

	 	 	 	Subject to clause 27 and notwithstanding anything to the contrary in this
clause 16, the aggrieved shareholder shall be entitled to exercise its
common law rights in respect of a breach of the terms and conditions of
this Agreement, irrespective of whether such breach is a material breach
capable of remedy or not or whether it is a non-material breach.








	17.	 	ARM AND HARMONY’S RECIPROCAL CALL OPTIONS





	 	 	 	 	 
	17.1

	 	 	 	If either Shareholder (“the affected Shareholder”) is placed under any
provisional or final order of winding-up or judicial management or enters
into any voluntary winding-up other than a voluntary winding-up for the
purposes of a bona fide scheme of arrangement or reconstruction (“an
option event”), then the other Shareholder (“the other Shareholder”) shall
have the option to require the affected Shareholder to sell the affected
Shareholder’s Interest to it.
	 
	 	 	 	 
	17.2

	 	 	 	The other Shareholder’s right to exercise the right referred to in clause
17.1 will lapse if it is not exercised by written notice (“the election
notice”)
given within 60 (sixty) days from the date on which the other Shareholder
becomes aware of the happening of the option event, or within 10 (ten)
days of the date of the determination of the Market Value, whichever is the
later, and such notice shall identify that option event and refer to this
clause 17.







 









 






	 	 	 	 	 
	17.3

	 	 	 	If the other Shareholder exercises the right referred to in clause 17.1 then
the sale shall be on the same terms and conditions mutatis
mutandis as
those set out in clause 12.3, except that:







	 	 	 	 	 
	17.3.1

	 	 	 	the effective date of the sale, shall be the date on which the
affected Shareholder receives the election notice;
	 
	 	 	 	 
	17.3.2

	 	 	 	the purchase price payable for the affected Shareholder’s Interest
shall be the Market Value thereof;
	 
	 	 	 	 
	17.3.3

	 	 	 	completion of the sale shall be effected subject to clause 12.3
within 90 (ninety) days of the expiry of the period of 14 (fourteen)
days after the determination date referred to in clause 17.2.








	18.	 	MARKET VALUE OF THE SHAREHOLDER’S INTEREST





	 	 	 	 	 
	18.1

	 	 	 	Whenever the Market Value is required to be determined for the purposes
of any provision of this Agreement, then failing agreement between the
Shareholders as to the Market Value within 10 (ten) Business Days, the
Market Value shall be determined, at the request of either Shareholder, in
accordance with the following provisions unless otherwise agreed in writing
accordance with the I by the Shareholders:







	 	 	 	 	 
	18.1.1

	 	 	 	the Shareholders shall each appoint 1 (one) Merchant Bank to
value the entire Shareholder’s Interest;
	 
	 	 	 	 
	18.1.2

	 	 	 	for the avoidance of any doubt, each Shareholder shall expressly
instruct the Merchant Bank appointed by it that, in valuing the entire
Shareholder’s Interest, the value of the Claims on Loan Account
shall not be deducted;
	 
	 	 	 	 
	18.1.3

	 	 	 	the Market Value will be the average of the 2 (two) valuations;
	 
	 	 	 	 
	18.1.4

	 	 	 	should the valuations of the 2 (two) Merchant Banks differ by more
than 20% (twenty percent) then the Shareholders will appoint by







 









 







	 	 	 	 	 
	

	 	 	 	agreement between them a third Merchant Bank to carry out a
valuation of the entire Shareholder’s Interest without reference to
the 2 (two) valuations of the Merchant Banks appointed in terms of
clause 18.1.1;
	 
	 	 	 	 
	18.1.5

	 	 	 	failing agreement between the Shareholders as provided for in
clause 18.1.4, on the application of either Shareholder, the third
Merchant Bank will be appointed by the senior partner of the
Auditors;
	 
	 	 	 	 
	18.1.6

	 	 	 	the average of those 2 (two) of the 3 (three) valuations which are
closest to each other will be the Market Value;
	 
	 	 	 	 
	18.1.7

	 	 	 	the Merchant Banks appointed in terms of clause 18.1.1 shall act
as experts and not as arbitrators and will determine and certify the
Market Value as at the effective date of the purchase on the
following assumptions and bases:







	 	 	 	 	 
	18.1.7.1

	 	 	 	valuing the entire Shareholder’s Interest as on an arms-length sale between a willing seller and a willing purchaser;
	 
	 	 	 	 
	18.1.7.2

	 	 	 	if Freegold is then carrying on business as a going concern
on a sustainable basis, on the assumption that it will
continue to do so;







	 	 	 	 	 
	18.1.8

	 	 	 	if any difficulty arises in applying any of these assumptions or
bases then the difficulty shall be resolved by the Merchant Banks
taking all relevant facts, circumstances and information into
account;
	 
	 	 	 	 
	18.1.9

	 	 	 	the Merchant Banks may call upon any professional advisors of
Freegold, including the Auditors or any of their predecessors, for
such documents and information as the Merchant Banks may
reasonably require for the purposes of this determination and the
Parties shall give or, so far as they are able, procure that
appropriate authority is given to those advisers to make the
disclosures required of them and that they as far as they are able,







 









 






	 	 	 	 	 
	

	 	 	 	give the Merchant Banks all such facilities and information as they
may reasonably require for the purposes of their determination;
	 
	 	 	 	 
	18.1.10

	 	 	 	for the purposes of their determination the Merchant Banks shall be
entitled to consult any other valuers and take account of any
valuations obtained from any other valuer, but not necessarily be
bound by them;
	 
	 	 	 	 
	18.1.11

	 	 	 	the Merchant Banks shall afford the Shareholders the opportunity
to make such written and, at their discretion, oral representations
as they or any of them wish, subject to such reasonable time and
other limits as they may prescribe, and they shall have regard to
any such representations but not be bound by them;
	 
	 	 	 	 
	18.1.12

	 	 	 	all the Parties will use their best endeavours to procure that the
Merchant Banks will determine the Market Value within 30 (thirty)
days of being requested to do so.







	 	 	 	 	 
	18.2

	 	 	 	If the determination of the Market Value is referred to the Merchant Banks
in terms of clause 18.1 the date of determination of the Market Value
(“the
determination date”) shall be the date on which both Shareholders receive
the final and binding Merchant Banks’ determination of the Market Value
in writing. If the Market Value is determined by written agreement
between
the Shareholders, the determination date shall be the date on which the
agreement is reached.
	 
	 	 	 	 
	18.3

	 	 	 	The sum of all the costs and expenses of the Merchant Banks appointed in
terms of this clause 18 shall be borne equally by both Shareholders.







	 	 	 
	19.

	 	LENDERS’ CTA
	 
	 	 
	

	 	Each Shareholder undertakes to the other that it shall exercise all the
voting rights
attached to its Shares, and all powers, discretions and authorities
exercisable
directly and indirectly by it in relation to Freegold, so as to procure
that Freegold
complies with its obligations and undertakings under the Lenders’ CTA.







 









 






	 	 	 
	20.

	 	WINDING-UP







	 	 	 	 	 
	20.1

	 	 	 	In the event of Freegold being wound up by way of a members’ voluntary
winding-up, the Shareholders will procure that the liquidator is a member of
The South African Institute of Chartered Accountants acceptable to both
Shareholders, or in default of agreement, nominated at the request of
either Shareholder by the President for the time being of such Institute.
	 
	 	 	 	 
	20.2

	 	 	 	The Shareholders shall prove in the winding-up of Freegold to the
maximum extent permitted by law all sums due or to fall due to them
respectively from Freegold and shall exercise all rights of set-off and
generally do all such other acts and things as may be available to them in
order to obtain the maximum receipts and recoveries.
	 
	 	 	 	 
	20.3

	 	 	 	To the extent that either or both of the Shareholders do not receive
satisfaction in full in the winding-up of Freegold of all sums due or to fall
due to them, then the aggregate shortfall between all sums due or to fall
due to the Shareholders and all amounts actually recovered by the
Shareholders from Freegold or its liquidator (whether by direct payment or
the exercise of any right of set-off or otherwise) shall be calculated and
apportioned between the Shareholders in proportion to their then holdings
of Shares, and the Shareholders shall make contributions within 3 (three)
days of receipt of a written demand to make such payment one to the other
to the extent and with the effect that each Shareholder bears its respective
share of the aggregate amount of such shortfall.
	 
	 	 	 	 
	20.4

	 	 	 	If Freegold enters into a members voluntary winding-up each Shareholder
shall, unless otherwise agreed to in writing, be obliged to continue to
perform and discharge its obligations under any executory contract
between it and Freegold to the full extent required by Freegold to enable it
or any of its assignees to meet all Freegold’s obligations and commitments
to its customers and other third parties (including any obligations and
commitments for ongoing maintenance).







 









 






	 	 	 
	21.

	 	SHAREHOLDERS CONSENT
	 
	 	 
	

	 	Where this Agreement provides that any particular transaction or matter
requires
the consent, approval or agreement of any Shareholder, such consent, approval
or
agreement may be given subject to such reasonable terms and conditions as that
Shareholder may impose and any breach of such terms and conditions by any
person subject to them shall be deemed to be a breach of the terms of this
Agreement.
	 
	 	 
	22.

	 	PARTIES BOUND







	 	 	 	 	 
	22.1

	 	 	 	Freegold undertakes with each of the Shareholders to be bound by and
comply with the terms and conditions of this Agreement insofar as the
same relate to it and to act in all respects as contemplated by this
Agreement.
	 
	 	 	 	 
	22.2

	 	 	 	The Shareholders undertake with each other to exercise their powers in
relation to Freegold so as to ensure that Freegold fully and promptly
observes, performs and complies with its obligations under this Agreement.
	 
	 	 	 	 
	22.3

	 	 	 	Each Shareholder undertakes with each of the other Parties that whilst it
remains a Party to this Agreement it will not (except as expressly provided
for in this Agreement) agree to cast any of the voting rights exercisable in
respect of any of the Shares held by it in accordance with the directions, or
subject to the consent of, any other person.







	 	 	 
	23.

	 	ENFORCEMENT OF THE COMPANY’S RIGHTS







	 	 	 	 	 
	23.1

	 	 	 	If it appears that either Shareholder (“the defaulting Shareholder”) is in
breach of any obligation which it owes to Freegold (whether under this
Agreement or the Articles or under any other agreement, including any
employment agreement, or otherwise) or has misapplied or retained or
become liable or accountable for any money or property of Freegold, or
has been guilty of any misfeasance or breach of any fiduciary or other duty
in relation to Freegold or is under any obligation to indemnify Freegold







 









 






	 	 	 	 	 
	

	 	 	 	against any liability, then it is agreed that the enforcement and prosecution
of any right of action of Freegold in respect thereof shall be passed to the
directors nominated by the other Shareholder alone who shall have full
power and authority on behalf of Freegold to enforce, negotiate, litigate
and settle any claim arising out of any such right of action and the
defaulting Shareholder shall take all steps within its power to give effect to
the provisions of this clause 23.1.
	 
	 	 	 	 
	23.2

	 	 	 	Freegold agrees with each of the Shareholders that any moneys or
property which it may recover or receive as a result of the operation of the
provisions of this clause 23 shall be applied by it in a proper and efficient
manner for its own benefit.







	 	 	 
	24.

	 	SHAREHOLDERS’ RIGHTS TO INFORMATION







	 	 	 	 	 
	24.1

	 	 	 	The ARM Directors shall be entitled to disclose to ARM all information
which they are entitled to receive as directors of Freegold and to furnish to
ARM copies of all documents containing any such information.
	 
	24.2

	 	 	 	The Harmony Directors shall be entitled to disclose to Harmony all
information which they are entitled to receive as directors of Freegold and
to furnish to Harmony copies of all documents containing any such
information.







	 	 	 
	25.

	 	CONFIDENTIALITY







	 	 	 	 	 
	25.1

	 	 	 	All communications between ARM, Harmony, Freegold and/or any of them
and all information and other materials supplied to or received by any of
them from the others which by its nature is intended to be for the
knowledge of the recipient alone, and all information concerning the
business transactions and the financial arrangements of ARM, Harmony or
Freegold with any person with whom any of them is in a confidential
relationship with regard to the matter in question coming to the knowledge
of the recipient, shall be kept confidential by the recipient unless or until
the
recipient can reasonably demonstrate that any such communication,







 









 






	 	 	 	 	 
	

	 	 	 	information and material is, or part of it is, in the public domain through
no
fault of its own. To the extent that it is in the public domain or is
required to
be disclosed by law or in accordance with generally accepted accounting
practice or in compliance with the rules of any Stock Exchange or in
pursuance of employment duties, this obligation shall then cease.
	 
	 	 	 	 
	25.2

	 	 	 	The Shareholders shall use all reasonable endeavours to procure the
observance of such restrictions by Freegold, and shall take all reasonable
steps to minimise the risk of disclosure of confidential information, by
ensuring that only they and such of their employees and directors whose
duties will require them to possess any of such information have access
thereto and instructing such employees and directors to treat such
information as confidential.
	 
	 	 	 	 
	25.3

	 	 	 	The obligation contained in this clause 25 shall endure, even after the
termination of this Agreement, without limit in point of time except and
until
such confidential information enters the public domain as set out in
clause 25.1.
	 
	 	 	 	 
	25.4

	 	 	 	Notwithstanding clauses 25.1 to 25.3, each Shareholder may at any time
disclose any such information and communications to a Member of the
Same Group as in to its own professional advisers (including any
Merchant Bank appointed in terms of clause18) or those of any Member of
the Same Group as it; and, if required to do so by law or any applicable
regulatory requirements or requested to do so by any regulatory body to
whose jurisdiction that Shareholder is subject or with whose instructions it
is customary to comply, to the person(s) to whom the disclosure is required
or requested provided that such Shareholder obtains an undertaking from
such persons to maintain the confidentiality of the information on the same
terms and conditions as apply to the Parties in terms of this clause 25.
	 
	 	 	 	 
	25.5

	 	 	 	Nothing in clauses 25.1 to 25.3 shall preclude either Shareholder at any
time from disclosing to any person any information about the financial
results or the operations of Freegold which is reasonably required to
assess the financial conditions and prospects of that Shareholder and its
subsidiaries provided that such Shareholder obtains a written undertaking
from such persons to maintain the confidentiality of the information on the







 









 






	 	 	 	 	 
	

	 	 	 	same terms and conditions as apply to the Parties in terms of this clause
25.







	 	 	 
	26.

	 	EXPANSION OF THE MINING AND RELATED ACTIVITIES OF FREEGOLD







	 	 	 	 	 
	26.1

	 	 	 	Should either Shareholder (“the proposing shareholder”) propose that
Freegold embark on any new mining operation or an expansion or
reopening of any existing mining operation (“the expansion”) which will
require additional funding which has not been provided for in the budget
and should the other Shareholder not be in favour of the expansion,
Freegold and the proposing shareholder shall apply their best endeavours
to reach agreement on a structure such as a partnership or joint venture by
way of which the proposing shareholder can embark on the expansion and
in terms of which Freegold will contribute ore reserves and the use of its
facilities and personnel on commercial terms.
	 
	 	 	 	 
	26.2

	 	 	 	Should Freegold and the proposing shareholder be unable to reach
agreement on a structure as contemplated in clause 26.1, the proposing
shareholder may proceed with the expansion for its own profit and loss and
shall pay to Freegold an amount to be agreed between the proposing
shareholder and Freegold as compensation for the exploitation of the ore
reserves and the use of Freegold’s facilities and personnel.
	 
	 	 	 	 
	26.3

	 	 	 	Should Freegold and the proposing shareholder be unable to reach
agreement on the amount of such compensation in terms of clause 26.2
the matter shall be referred to arbitration in terms of clause 27 and the
arbitrator shall be instructed that the intention of the Shareholders is that
Freegold receives a market related compensation for the use of its facilities
and personnel and that Freegold be compensated for the exploitation of its
ore reserves at a fair and reasonable market related price.
	 
	 	 	 	 
	26.4

	 	 	 	The provisions of this clause 26 shall not come into effect until 1 January
2005.







 









 






	 	 	 
	27.

	 	ARBITRATION AND DISPUTE RESOLUTION







	 	 	 	 	 
	27.1

	 	 	 	Any dispute between the Parties in regard to any matter arising out of or in
terms of or pursuant to this Agreement shall be resolved in the following
manner:
	 
	 	 	 	 







	 	 	 	 	 
	27.1.1

	 	 	 	matters which cannot be resolved by the general meeting or the
Board, as the case may be, shall be referred for resolution to a
senior executive nominated by each of ARM and Harmony respectively;
	 
	 	 	 	 
	27.1.2

	 	 	 	if the matter referred, to the senior executives of ARM and Harmony
respectively in terms of clause 27.1.1 is not resolved between them
within 14 (fourteen) days after the date on which it is referred to
them, the matter shall be referred for resolution to the most senior
executive at the time of ARM and Harmony respectively;
	 
	 	 	 	 
	27.1.3

	 	 	 	any dispute to which the provisions of this clause 27 apply which is
not resolved in terms of clauses 27.1.1 and 27.1.2 shall be referred
to arbitration in accordance with clauses 27.2 to 27.8;
	 
	 	 	 	 







	 	 	 	 	 
	27.2

	 	 	 	Should any dispute arise between the Parties in regard to:
	 
	 	 	 	 







	 	 	 	 	 
	27.2.1

	 	 	 	the interpretation of; or
	 
	 	 	 	 
	27.2.2

	 	 	 	the carrying into effect of; or
	 
	 	 	 	 
	27.2.3

	 	 	 	any of the Parties’ rights and obligations arising from; or
	 
	 	 	 	 
	27.2.4

	 	 	 	the rectification of; or
	 
	 	 	 	 
	27.2.5

	 	 	 	any matter arising out of or in connection with or pursuant to;







	 	 	 	 	 
	

	 	 	 	this Agreement, then that dispute shall be submitted to and decided by
arbitration, subject to the procedure in 27.1 being
exhausted.
	 
	 	 	 	 
	27.3

	 	 	 	That arbitration shall be held:
	 
	 	 	 	 







	 	 	 	 	 
	27.3.1

	 	 	 	with only the Parties and their legal representatives or advisors
present thereat;








 










 






	27.3.2	 	unless otherwise agreed in writing in Johannesburg,






	 	 	it being the intention that the arbitration
shall, where possible, be held and concluded
within 21 (twenty one) Business Days after it
has been demanded.
	 
	27.4	 	The arbitrator shall be agreed between the Parties
and failing agreement within 7 (seven) days after
the arbitration has been demanded, then the
arbitrator shall:






	27.4.1	 	if the matter is primarily of an accounting
nature, be an independent auditor of not less than
10 (ten) years’ standing, appointed by the senior
partner of the Auditors; or
	 
	27.4.2	 	if the matter is primarily of a legal nature be an
independent attorney of not less than 10 (ten)
years’ standing or an independent advocate of not
less than 15 (fifteen) years’ standing appointed by
the President for the time being of the Johannesburg
Bar Council or its successor body; or.
	 
	27.4.3	 	if the matter is primarily of any other nature, a
suitably qualified person appointed by the senior
partner of the Auditors; or






	27.5	 	If the Parties fail to agree as to whether the
matter is primarily of an accounting, legal or other
nature, the matter shall be deemed to be primarily
of a legal nature.
	 
	27.6	 	The arbitrator shall have the fullest and freest
discretion with regard to the proceedings.
Furthermore the arbitrator:






	27.6.1	 	may dispense wholly or in part with formal
submissions or pleadings;
	 
	27.6.2	 	shall provide written reasons for decisions taken
during the course of the arbitration;
	 
	27.6.3	 	shall include such order as to costs as he deems
just.





 









 











	27.7	 	Any Party shall have the right on written notice to
the other Parties given within 21 (twenty one) days
of receipt of the decision of the arbitrator to
appeal the decision of the arbitrator to a panel of
3 (three) arbitrators to be appointed in the same
manner mutatis mutandis set out in clause 27.4.
	 
	27.8	 	The Parties shall be entitled to have the award
made an order of court of competent jurisdiction.
The Parties record that they consent to the
jurisdiction of the Witwatersrand Local Division of
the High Court of South Africa or its successor in
title.
	 
	27.9	 	This clause shall be binding on the Parties
notwithstanding, and shall survive, the termination
of this Agreement.






	28.	 	MINE HEALTH AND SAFETY ACT APPOINTMENTS






	28.1	 	Subject to the provisions of the Mine, Health and
Safety Act No.29 of 1996 as amended (“the MHS Act”)
and unless otherwise determined by the Board-






	28.1.1	 	ARM and Harmony shall each nominate an ARM
Director and a Harmony Director, respectively, to be
designated in terms of Section 2A.(3) of the MHS
Act as the persons to perform the functions of the
owner in terms of Section 2 of the MHS Act;
	 
	28.1.2	 	ARM and Harmony shall each nominate a person who
may, but need not be, an ARM Director or Harmony
Director, respectively, to be appointed in terms of
Section 4.(1) of the MHS Act to perform the
functions entrusted to the employer by. Sections 2.
and 3. of the MHS Act;






	29.	 	GENERAL






	29.1	 	No Cancellation




 









 












	 	 	No Party shall be entitled to cancel this Agreement.
	 
	29.2	 	Remedies
	 
	 	 	Subject to the provisions of clause 27.1, no
remedy conferred by this Agreement is intended
to be exclusive of any other remedy which is
otherwise available at law, by statute or
otherwise. Each remedy shall be cumulative and
in addition to every other remedy given
hereunder or now or hereafter existing at law,
by statute or otherwise. The election of any
one or more remedy by any of the Parties shall
not constitute a waiver by such Party of the
right to pursue any other remedy.
	 
	29.3	 	Severance
	 
	 	 	If any provision of this Agreement is rendered
void, illegal or unenforceable in any respect
under any law, the validity, legality and
enforceability of the remaining provisions
shall not in any way be affected or impaired
thereby and the Parties shall endeavour in good
faith to agree an alternative provision to the
void, illegal or unenforceable provision.
	 
	29.4	 	Survival of Rights, Duties and Obligations
	 
	 	 	Termination of this Agreement for any cause
shall not release a Party from any liability
which at the time of termination has already
accrued to such Party or which thereafter may
accrue in respect of any act or omission prior
to such termination.
	 
	29.5	 	Costs
	 
	 	 	Each Party shall bear its own costs and
expenses incurred by it in connection with this
Agreement.
	 
	29.6	 	Entire Agreement
	 
	 	 	This Agreement together with the Sale of
Business Agreement constitutes the entire
agreement between the Parties and save as
otherwise expressly provided no modification,
amendment or waiver of any of the provisions of




 









 












	 	 	this Agreement it shall be effective unless made
in writing specifically referring to this
Agreement and duly signed by the Parties.
	 
	29.7	 	Assignment






	29.7.1	 	This Agreement shall be binding on the Parties
hereto and their respective successors and assigns.
	 
	29.7.2	 	None of the Parties may assign this Agreement or
any of its rights and obligations under it except to a
permitted transferee of that Party’s Shareholder’s
Interest who has complied with clause 11.2, save that:






	29.7.2.1	 	ARM shall be entitled to cede its rights under
clause 15 either out and out or as security to any
Financier and/or the Debt Guarantor; and
	 
	29.7.2.2	 	any Shareholder shall be entitled to cede its
rights under clause 17 either out and out or as security
to any Financier and/or the Debt Guarantor.






	 	 	Conflict with the Articles
	 
	 	 	In the event of any ambiguity or discrepancy
between this Agreement and the Articles, this
Agreement shall prevail. Accordingly the
Parties shall exercise all voting and other
rights and powers available to them so as to
give effect to this Agreement and if necessary
shall procure any required amendment to the
Articles.
	 
	29.9	 	No Partnership
	 
	 	 	Nothing in this Agreement shall be deemed to
constitute a partnership between the Parties
(or any of them) or constitute any Party the
agent of any other Party for any purpose.




 









 






	29.10	 	Further Assurance
	 
	 	 	Each Shareholder shall co-operate with the other
Parties and execute and deliver to the other
Parties such other instruments and documents and
take such other actions as may be reasonably
requested from time to time in order to carry
out, evidence and confirm their rights and the
intended purpose of this Agreement.
	 
	29.11	 	Counterparts
	 
	 	 	This Agreement may be signed in any number of
counterparts, all of which taken together shall
constitute one and the same instrument, Any
Party may enter into this Agreement by signing
any such counterpart.
	 
	29.12	 	Successors Bound
	 
	 	 	This Agreement shall be binding on and shall
inure for the benefit or the successors and
assigns and personal representatives (as the
case may be) of each of the Parties.
	 
	29.13	 	Good Faith
	 
	 	 	Each of the Parties undertakes with each of the
others to do all things reasonably within its
power which are necessary or desirable to give
effect to the spirit and intent of this
Agreement.
	 
	29.14	 	Governing law
	 
	 	 	The validity of this Agreement, its
interpretation, the respective rights and
obligations of the parties and all other
matters arising in any way out of it or its
expiration or earlier termination for any
reason shall be determined in accordance with
the laws of the Republic.










 









 












	30.	 	ADDRESSES FOR LEGAL PROCESSES AND NOTICES






	30.1	 	The Parties choose for the purposes of this
Agreement the following addresses, telefax numbers and,
for the purpose of any notices, designated officers:





	 	 	 	 	 
	30.1.1

	 	ARM
	 	ARM House 29
	

	 	 	 	Impala Road
	

	 	 	 	Chislehurston
	

	 	 	 	Sandton
	

	 	 	 	Telefax No: (011) 883 5609 .
	

	 	 	 	For the attention of the Financial Director
	 
	 	 	 	 
	30.1.2

	 	Harmony
	 	Block 27
	

	 	 	 	Randfontein Office Park
	

	 	 	 	Cnr Main Reef Road & Ward Avenue
	

	 	 	 	 Randfontein
	

	 	 	 	Telefax No: (011) 692 3879
	

	 	 	 	For the attention of the Company Secretary
	 
	 	 	 	 
	30.1.3

	 	Freegold
	 	Block 27
	

	 	 	 	Randfontein Office Park
	

	 	 	 	Cnr Main Reef Road & Ward Avenue 
	

	 	 	 	Randfontein
	

	 	 	 	Telefax No: (011) 692 3879
	

	 	 	 	For the attention of the Company Secretary
	 
	 	 	 	 
	

	 	 	 	and


	

	 	 	 	ARM House







 









 






	 	 	 	 	 
	

	 	 	 	29 Impala Road
	

	 	 	 	Chislehurston
	

	 	 	 	Sandton
Telefax No: (011) 883 5609
	

	 	 	 	For the attention of the Financial Director








	30.2	 	Any legal process to be served on any of the
Parties may be served on it at the address
specified for it in clause 30.1 and it chooses that
address as its domicilium citandi et executandi for
all purposes under this Agreement.
	 
	30.3	 	Any notice or other communication to be given to
any of the Parties in terms of this Agreement shall
be valid and effective only if it is given in
writing, provided that any notice given by telefax
shall be regarded for this purpose as having been
given in writing.
	 
	30.4	 	A notice to any Party which is delivered to the
Party by hand at the address specified for it in
clause 30.1 shall be deemed to have been received
on the day of delivery, provided it was delivered
to a responsible person during ordinary business
hours, and the notice and the envelope in which it

is delivered are both marked for the attention of
the Party’s designated officer specified in clause
30.1
	 
	30.5	 	A notice by telefax to a Party at the telefax
number specified for it in clause 30.1 shall be
deemed to have been received (unless the contrary
is proved) within 24 (twenty four) hours of
transmission if it is transmitted during normal
business hours of the receiving Party or within 24
(twenty four) hours of the beginning of the next
Business Day at the destination after it is
transmitted, if it is transmitted outside those
business hours, provided it is marked for the
attention of the Party’s designated officer
specified in clause 30.1
	 
	30.6	 	Notwithstanding anything to the contrary in this
clause 30, a written notice or other communication
actually received by any Party (and for which
written receipt has been obtained) shall be
adequate written notice or communication to it
notwithstanding that the notice was not sent to or
delivered at its chosen address, provided it is
marked for the attention of the Party’s designated
officer specified in clause 29.1.





 









 





65

	30.5 	 	
A notice by telefax to a Party at the telefax number
specified for it in clause 30.1 shall be deemed to have
been received (unless the contrary is proved) within 24
(twenty four) hours of transmission if it is
transmitted during normal business hours of the
receiving Party or within 24 (twenty four) hours of the
beginning of the next Business Day at the destination after it is transmitted, if
it is transmitted outside those business hours,
provided it is marked for the attention of the Party’s
designated officer specified in clause 30.1
	 
	30.6	 	Notwithstanding anything to the contrary in this
clause 30, a written notice or other communication
actually received by any Party (and for which written
receipt has been obtained) shall be adequate written
notice or communication to it notwithstanding that the
notice was not sent to or delivered at its chosen
address, provided it is marked for the attention of the
Party’s designated officer specified in clause 29.1.
	 
	30.7	 	Any Party may by written notice to the other Parties
change its address or telefax number for the purposes
of clause 30.1 to any other address (other than a post
office box number) provided that the change shall
become effective on the seventh day after the receipt
of the notice.






	31.	 	STATUS OF THIS AGREEMENT
	 
	 	 	This Agreement supersedes the first joint venture
agreement and accordingly, with effect on the
Signature Date, the first joint venture agreement
is hereby cancelled.





	 	 	 	 	 
	SIGNED at

	 	SANDTON
	on 5 APRIL 2002.
	 
	 	 	 	 
	

	 	 	For: AFRICAN RAINBOW
	

	 	 	 	MINERALS GOLD LIMITED
	

	 	 	 	 
	

	 	 	 	

	

	 	 	 	Signatory







 









 





66



	 	 	 	 	 
	

	 	 	 	Capacity: DIRECTOR DIRECTOR
	

	 	 	 	Authority: BOARD APPROVAL
	 
	 	 	 	 
	SIGNED at

	 	SANDTON
	 	on 5 April 2002.
	 
	 	 	 	 
	

	 	 	 	For: HARMONY GOLD MINING

COMPANY LIMITED
	 
	 	 	 	 
	

	 	 	 	/s/ Frank
Abbott

	

	 	 	 	Signatory: Frank Abbott
	

	 	 	 	Capacity: Director
	

	 	 	 	Authority: Board Resolution
	 
	 	 	 	 
	SIGNED at

	 	SANDTON
	 	on 5 April 2002.
	 
	 	 	 	 
	

	 	 	 	For: CLIDET NO 383 (PROPRIETARY)
	

	 	 	 	LIMITED
	 
	 	 	 	 
	

	 	 	 	/s/ Frank
Abbott

	

	 	 	 	Signatory: Frank Abbott
	

	 	 	 	Capacity: Director
	

	 	 	 	Authority: Board Resolution