EXHIBIT 4.16



 



EXHIBIT 4.16

SALE OF BUSINESS AGREEMENT

between

ANGLOGOLD LIMITED

and

CLIDET NO. 383 (PROPRIETARY) LIMITED

and

HARMONY GOLD MINING COMPANY LIMITED

and

AFRICAN RAINBOW MINERALS (PROPRIETARY) LIMITED



CLIFFE DEKKER FULLER MOORE INC

ATTORNEYS NOTARIES CONVEYANCERS TRADEMARK ATTORNEYS


ESTABLISHED 1853




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	1
	 	INTERPRETATION	 	 	1	 
	2
	 	PREAMBLE	 	 	9	 
	3
	 	CONDITIONS PRECEDENT	 	 	9	 
	4
	 	SALE	 	 	12	 
	5
	 	CONSIDERATION AND PAYMENT	 	 	12	 
	6
	 	VALUE-ADDED TAX	 	 	13	 
	7
	 	INTERIM PERIOD	 	 	14	 
	8
	 	STOCKTAKING	 	 	19	 
	9
	 	LIABILITIES	 	 	20	 
	10
	 	ENVIRONMENTAL MANAGEMENT FUND	 	 	21	 
	11
	 	CONTRACTS	 	 	23	 
	12
	 	LICENCES	 	 	24	 
	13
	 	ERNEST OPPENHEIMER HOSPITAL	 	 	25	 
	14
	 	EMPLOYEES	 	 	25	 
	15
	 	PROVISION OF SERVICES AND ACCESS	 	 	28	 
	16
	 	IMPLEMENTATION	 	 	29	 
	17
	 	APPLICATIONS FOR MINING AUTHORISATIONS	 	 	29	 
	18
	 	WARRANTIES BY ANGLOGOLD	 	 	30	 
	19
	 	PUBLICATION IN TERMS OF INSOLVENCY ACT	 	 	31	 
	20
	 	SURETYSHIP	 	 	31	 
	21
	 	BREACH	 	 	32	 
	22
	 	DISPUTES	 	 	32	 
	23
	 	CO-OPERATION	 	 	33	 
	24
	 	NOTICES AND DOMICILIUM	 	 	34	 
	25
	 	GENERAL	 	 	35	 
	26
	 	BENEFIT OF THE AGREEMENT	 	 	36	 
	27
	 	APPLICABLE LAW AND JURISDICTION	 	 	36	 
	28
	 	COSTS	 	 	37	 










 



21 December 2001




SALE OF BUSINESS AGREEMENT




between




ANGLOGOLD LIMITED




and




CLIDET NO. 383 (PROPRIETARY) LIMITED




and




HARMONY GOLD MINING COMPANY LIMITED




and




AFRICAN RAINBOW MINERALS (PROPRIETARY) LIMITED




WHEREBY THE PARTIES AGREE AS FOLLOWS





	1	 	INTERPRETATION






	1.1	 	In this agreement –






	1.1.1	 	clause headings are for convenience only and are not to be used in its
interpretation;




 









 











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	1.1.2	 	an expression which denotes –






	1.1.2.1	 	any gender includes the other genders;
	 
	1.1.2.2	 	a natural person includes a juristic person and vice versa;
	 
	1.1.2.3	 	the singular includes the plural and vice versa.






	1.2	 	In this agreement, unless the context indicates a contrary intention,
the following words and expressions bear the meanings assigned to them
and cognate expressions bear corresponding meanings –






	1.2.1	 	“acquisition” means the acquisition by Freegold of the
businesses in terms of this agreement;
	 
	1.2.2	 	“AngloGold” means AngloGold Limited, Registration No. 1944/017354/06, a
public company incorporated in the Republic of South Africa;
	 
	1.2.3	 	“ARM” means African Rainbow Minerals (Proprietary) Limited,
Registration No. 1997/020158/07, a private company incorporated in the
Republic of South Africa;
	 
	1.2.4	 	“associated companies” means AngloGold Health Services (Proprietary)
Limited and, where applicable, Metisella Investments Limited;
	 
	1.2.5	 	“businesses” 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 the signature date, as going concerns, and
includes the business assets, the specified liabilities and any other
liabilities specifically provided for herein;










 









 











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	1.2.6	 	“business assets” means all assets used in or in connection with the
businesses and all assets necessary for the continuation of the
businesses’ mining, ore treatment, gold extraction, hospital and other
operations, excluding the excluded assets but including, without
limitation, the following assets –





	1.2.6.1	 	the immovable property;
	 
	1.2.6.2	 	all slimes dams, waste rock dumps and other surface sources
situated on the immovable property and to which AngloGold or any of
its associated companies has title;
	 
	1.2.6.3	 	all surface right uses used for mining purposes (and, without
limitation, all purposes incidental thereto) in or in connection with
the businesses and to which AngloGold or any of its associated
companies has title;
	 
	1.2.6.4	 	all equipment and other assets used in the Ernest Oppenheimer Hospital;
	 
	1.2.6.5	 	the mineral rights and mining leases;
	 
	1.2.6.6	 	all of the shares in and claims on loan account against
Jeannette Gold Mines Limited (“Jeannette”) held by AngloGold or
its associated companies on the signature date;
	 
	1.2.6.7	 	all underground and surface infrastructure and equipment used
primarily in or in connection with the businesses, save for the
consumable and capital stores and group spares referred to in
clause 1.2.6.18, Freegold acknowledging, for the purposes of the
Mine Health and Safety Act, 1996 (Act No. 29 of 1996), that the
equipment is reasonably practicably safe and that employees of
Freegold are aware of the proper use and mining operation of such
equipment;




 









 



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	1.2.6.8	 	
 the businesses’ metallurgical plants and tailings disposal
facilities including all such plants and facilities previously
belonging to FSC and Joel and to which AngloGold or any of its
associated companies has title;
	 
	1.2.6.9	 	all assets which are owned by AngloGold or its associated companies
and which are used primarily in or in connection with the businesses;
	 
	1.2.6.10	 	all assets which form part of AngloGold’s head office which are
integral to the day to day operations of the businesses, save for any
assets which are integral to the day to day operations of any of
AngloGold’s other businesses;
	 
	1.2.6.11	 	the vehicles owned by AngloGold and its associated companies which
are used primarily in connection with the businesses;
	 
	1.2.6.12	 	all time and attendance hardware and software, it being agreed
that, if neither Freegold, ARM nor Harmony has at any time any further
use for such hardware and software, AngloGold will be entitled to
purchase it for R1.00 (One Rand);
	 
	1.2.6.13	 	all computer hardware and software and other technology and all
other intellectual property of every description (including but not
limited to all geological cores) currently being used by AngloGold
primarily in relation to the operations of the businesses;
	 
	1.2.6.14	 	all information relating primarily to the businesses in whatever
format and whether recorded in writing, on any electronic medium or
otherwise, including details of the deep mine research project insofar
as it relates exclusively to the businesses, it being agreed that
AngloGold shall have reasonable access to the environmental research
project and related data compiled by it in respect of the businesses;




 









 



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	1.2.6.15	 	all dressing stations, clinics, hospitals and other medical
facilities situated on the immovable property, and all equipment used
in such stations, clinics, hospitals and facilities;
	 
	1.2.6.16	 	all deposits in respect of the provision of services to the
businesses and payments made in advance by AngloGold in respect of the
businesses, it being agreed that AngloGold shall be entitled to retain
all such deposits and payments made in advance in respect of services
not taken over by Freegold;
	 
	1.2.6.17	 	all capital items forming part of any capital development program
in respect of the businesses which have been delivered to the relevant
site; and
	 
	1.2.6.18	 	all stock in trade of AngloGold (including gold work in progress
and all of the businesses stocks of refrigerant (as at the signature
date) for the cooling plant) relating to the businesses on the
effective date, whether recorded as assets or not, but excluding -






	1.2.6.18.1	 	all consumable stores;
	 
	1.2.6.18.2	 	all group spares; and
	 
	1.2.6.18.3	 	those capital stores which have not been specifically allocated
to the businesses or which were not purchased exclusively for the
businesses.






	1.2.7	 	“business day” means a day other than a Saturday, a Sunday or a day
which is a statutory public holiday in the Republic of South Africa;
	 
	1.2.8	 	“call rate” means the basic rate of interest (percent, per annum,
compounded monthly in arrear and calculated on a 365 day year
irrespective of whether or not the year is a leap year) from time to
time quoted by ABSA Bank Limited as being its call deposit rate,




 









 



Page 6






	 	 	as certified by any manager of that bank, whose appointment and
designation need not be proved;
	 
	1.2.9	 	“conditions precedent” means the conditions precedent set out in
clause 3;
	 
	1.2.10	 	“contracts” means the contracts to be listed in the schedule
referred to in clause 3.1.6;
	 
	1.2.11	 	“effective date” means 1 January 2002;
	 
	1.2.12	 	“employees” means, save as otherwise agreed, -






	1.2.12.1	 	all employees of AngloGold and its associated companies who are
employed in respect of the businesses and are listed on the payrolls
of the businesses, excluding the employees listed in annexe “A” to the
initial sale of business agreement; and
	 
	1.2.12.2	 	all of AngloGold’s employees employed in its “business services”
division and who render services primarily in connection with the
businesses;






	1.2.13	 	“excluded assets” means those assets listed in annexe “B” to the
initial sale of business agreement;
	 
	1.2.14	 	“FSC” means Free State Consolidated Gold Mines (Operations) Limited,
Registration No. 1937/009266/06, a public company incorporated in the
Republic of South Africa;
	 
	1.2.15	 	“Freegold” means Clidet No. 383 (Proprietary) Limited, Registration
No. 2001/029602/07, a private company incorporated in the Republic of
South Africa, the name of which will be changed to Freegold
(Proprietary) Limited or such other name as may be acceptable to the
parties and the Registrar of Companies;




 









 



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	1.2.16	 	“Harmony” means Harmony Gold Mining Company Limited, Registration
No. 1950/038232/06, a public company incorporated in the Republic of
South Africa;
	 
	1.2.17	 	“immovable property” means the immovable property more fully
described in a separate sale of property agreement to be signed
simultaneously with this agreement;
	 
	1.2.18	 	“implementation date” means the
10th (Tenth) business day after the
date of fulfilment of the last of the conditions precedent;
	 
	1.2.19	 	“initial sale of business agreement” means the notarial sale of
business agreement entered into between AngloGold and Biprops 76
(Proprietary) Limited on 29 November 2001;
	 
	1.2.20	 	“Joel” means H J Joel Gold Mining Company Limited, Registration No.
1985/001995/06, a public company incorporated in the Republic of South
Africa;
	 
	1.2.21	 	“mineral rights” means all of AngloGold and its associated
companies’ mineral rights (including participation rights and options)
in the Welkom Goldfield as more fully described in annexes “D1”
(description) and/or “D2” (plan) to the initial sale of business
agreement and as may be identified by Freegold, ARM or Harmony, using
their best endeavours, prior to the implementation date (or such later
date as may be agreed by AngloGold, which agreement shall not be
unreasonably withheld), it being recorded that it is the intention of
the parties that AngloGold and its associated companies will, as at
the implementation date, no longer hold any mineral rights whatsoever
in the Welkom Goldfield;
	 
	1.2.22	 	“mining leases” means the mining leases more fully described in
annexe “E1” (description) and/or “E2” (plan and co-ordinates) to the
initial sale of business agreement;




 









 



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	1.2.23	 	“parties” means the parties to this agreement;
	 
	1.2.24	 	“prime rate” means the rate (per cent, 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 any manager of that bank whose appointment it
will not be necessary to prove, calculated on a daily basis and
compounded monthly in arrear;
	 
	1.2.25	 	“sale of property agreement” means the sale of property
agreement referred to in clause 1.2.17;
	 
	1.2.26	 	“signature date” means the date of signature of the memorandum of
understanding entered into between AngloGold, ARM and Harmony, being
21 November 2001;
	 
	1.2.27	 	“specified liabilities” means –






	1.2.27.1	 	AngloGold’s rehabilitation liability in respect of the businesses
as at the effective date; and
	 
	1.2.27.2	 	AngloGold’s liability in respect of the claims listed in annexe
“F” to the initial sale of business agreement and any other similar
environmental claims, the cause of action of which arose prior to the
effective date (“the additional claims”).






	1.3	 	Any substantive provision conferring rights or imposing obligations
on any party in the interpretation clause shall be given effect to as
if it were a substantive provision in the body of this agreement.
	 
	1.4	 	Words and expressions defined in any clause shall, unless the
application of any such word or expression is specifically limited to
that clause, bear the meaning assigned to such word or expression
throughout this agreement.




 









 



Page 9





	1.5	 	No provision herein shall be construed against or interpreted to the
disadvantage of any party by reason of such party having or being
deemed to have structured, drafted or introduced such provision.
	 
	1.6	 	The eiusdem generis rule shall not apply and whenever the term
“including” is used followed by specific examples, such examples shall
not be construed so as to limit the meaning of that term.
	 
	1.7	 	Unless specifically otherwise provided, any number of days prescribed
shall be determined by excluding the first and including the last day
or, where the last day falls on a Saturday, a Sunday or public
holiday, the next succeeding business day.
	 
	1.8	 	A reference to any statutory enactment shall be construed as a
reference to that enactment as at the signature date and as amended or
re-enacted from time to time.
	 
	1.9	 	In this agreement the word “agreement” refers to this agreement and
the words “clause” or “clauses” refer to clauses of this agreement.






	2	 	PREAMBLE






	2.1	 	AngloGold owns and carries on the businesses.
	 
	2.2	 	Freegold wishes to purchase the businesses as going concerns and
AngloGold is prepared to sell the businesses to Freegold on the terms
and conditions herein contained.






	3	 	CONDITIONS PRECEDENT






	3.1	 	Save for the provisions of this clause 3 and clauses 7, 8, 20 to 25,
27 and 28 which will become effective immediately, this agreement is
subject to the fulfilment of the following conditions precedent –






 









 




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	3.1.1	 	the conclusion of a joint venture agreement between ARM and
Harmony in respect of their shareholding in Freegold;
	 
	3.1.2	 	the section 39 relief referred to in clause 3.1.1 of the initial sale of
business agreement is not granted;
	 
	3.1.3	 	the consent of the Minister of Minerals and Energy to the cession of
the mining leases to Freegold on terms and conditions reasonably acceptable
to Freegold;
	 
	3.1.4	 	the granting of a temporary mining authorisation in terms of section
10 of the Minerals Act, 1991 (Act No. 50 of 1991) (“the Minerals Act”) to
Freegold in respect of the businesses, it being recorded for the avoidance
of doubt that Freegold shall be obliged to, and shall forthwith and at its
own cost, apply for such mining authorisation;
	 
	3.1.5	 	the granting of all necessary authorisations to Freegold in terms of
the National Nuclear Regulator Act, 1999 (Act No. 47 of 1999);
	 
	3.1.6	 	AngloGold and Freegold reaching agreement on the contracts to be
ceded and assigned to Freegold and listing such contracts in a schedule
initialled by both parties;
	 
	3.1.7	 	the unconditional approval of the acquisition in terms of the
Competition Act, 1998 (Act No. 89 of 1998), or the conditional approval on
terms and conditions acceptable to the parties; and
	 
	3.1.8	 	the obtaining of Harmony shareholders’ approval, if necessary.






	3.2	 	Each of the parties will use its best endeavours (and the parties will
co-operate in good faith) to procure the fulfilment of such of the
conditions precedent as are within its control as soon as reasonably
possible after the signature date.













 





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	3.3	 	The conditions precedent will only be capable of being waived by
agreement between the parties.
	 
	3.4	 	Unless the conditions precedent referred to in -






	3.4.1	 	clause 3.1.1 is fulfilled by not later than 21 January 2002;
	 
	3.4.2	 	
clause 3.1.2 is fulfilled by not later than 31 January 2002; and
	 
	3.4.3	 	
clauses 3.1.3 to 3.1.8 are fulfilled by not later than 30 April 2002,






	 	 	or such later date as may be agreed in writing between the parties
then –






	 	(a)	 	the acquisition will lapse and no longer be of any force or
effect;
	 
	 	(b)	 	the parties will negotiate in good faith so as to ensure that
they are placed in the same position as they were prior to the
entering into of this agreement, having regard to the negotiations
leading up to the entering into of this agreement and all other
relevant factors; and
	 
	 	(c)	 	Freegold, ARM and Harmony will have a continuing obligation to
preserve the confidentiality of AngloGold’s proprietary information
relating to the businesses.






	3.5	 	Notwithstanding anything to the contrary herein contained, the
provisions of this clause 3 and clauses 20 to 25, 27 and 28 will survive
the failure of this agreement to become unconditional.
	 
	3.6	 	It is agreed that the terms and conditions referred to in clause 15 are
subject to the fulfilment of the condition precedent that this agreement is
entered into and becomes unconditional in accordance with its terms.













 





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	4	 	SALE






	4.1	 	AngloGold hereby sells to Freegold which hereby purchases the
businesses as going concerns.
	 
	4.2	 	Notwithstanding the signature and implementation dates and subject to
the fulfilment of the conditions precedent, risk in and to and benefit of
the businesses shall pass to Freegold on the effective date.
	 
	4.3	 	Notwithstanding the signature or implementation dates, the sale will be
deemed to have taken place on the effective date and, subject to the
fulfilment of the conditions precedent and the provisions of clause 4.4,
ownership of the businesses will be deemed to have passed to Freegold on
the effective date.
	 
	4.4	 	Ownership of the immovable property, the surface right permits and the
mineral rights shall pass to Freegold on registration of transfer and
registration of cession of those rights, as the case may be, into the name
of Freegold in the appropriate Registry and, in the case of the immovable
property, on the basis set out in the sale of property agreement.






	5	 	CONSIDERATION AND PAYMENT






	5.1	 	The consideration payable for the businesses by Freegold to AngloGold
is an amount which will ensure that AngloGold receives an aggregate
consideration of R2,200,000,000.00 (Two thousand two hundred million Rands)
after tax payable in respect of the disposal of the businesses, plus
interest on the amount of R1,800,000,000.00 (One thousand eight hundred
million Rands) at the call rate from the effective date to the day
immediately preceding the implementation date (“the consideration”).
	 
	5.2	 	The consideration will be paid by Freegold as follows –













 





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	5.2.1	 	an amount of R1,800,000,000.00 (One thousand eight hundred million
Rands) plus the interest referred to in clause 5.1 on the implementation
date;
	 
	5.2.2	 	R400,000,000.00 (Four hundred million Rands) on 1 January
2005; and
	 
	5.2.3	 	the balance of the consideration 5 (Five) business days before
AngloGold is obliged to pay recoupment tax, capital gains tax and any other
income taxes (“the taxes”) on the disposal of the businesses, it being
agreed that AngloGold will notify Freegold in writing as soon as it becomes
aware of the date on which it is obliged to pay the taxes.






	5.3	 	It is agreed that Freegold will be entitled to allocate the
consideration to the business assets in its discretion, provided that
AngloGold is guaranteed to receive an amount equal to the consideration and
provided further that AngloGold has approved such allocation, which
approval shall not be unreasonably withheld.
	 
	5.4	 	Should any portion of the consideration not be paid on the due date of
payment thereof, then such overdue amount will bear interest at the prime
rate, from the due date of payment thereof to the date of actual payment,
both dates inclusive.
	 
	5.5	 	All payments to be made in terms of this agreement will be made by
electronic transfer of immediately available and freely transferable funds
to such account as the payee may reasonably designate, free of any
deductions or set-off whatsoever, in the currency of the Republic of South
Africa.






	6	 	VALUE-ADDED TAX






	6.1	 	The parties have agreed that –













 





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	6.1.1	 	the sale in terms hereof constitutes the sale of separately
identifiable enterprises forming part of the enterprises of AngloGold and
its associated companies;
	 
	6.1.2	 	such enterprises are sold as going concerns;
	 
	6.1.3	 	at the signature, effective and implementation dates, such
enterprises will be income earning activities and will be transferred as
such;
	 
	6.1.4	 	all the assets of such enterprises necessary for its continued
operation are being sold in terms hereof;
	 
	6.1.5	 	the consideration for the businesses is inclusive of value-added
tax at the rate of zero percent.






	6.2	 	AngloGold warrants that it and its associated companies are registered
as vendors in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991)
and that Freegold will be so registered, retrospectively to the effective
date, prior to the implementation date.
	 
	6.3	 	AngloGold shall, if so requested by Freegold, furnish to Freegold the
appropriate VAT invoice (on a zero rated basis) by not later than the
implementation date. Should for any reason value-added tax be payable by
AngloGold, then Freegold shall be obliged, on written demand from
AngloGold, to pay in addition to the purchase consideration the amount of
such value-added tax to AngloGold against delivery by AngloGold to Freegold
of an appropriate VAT invoice.






	7	 	INTERIM PERIOD






	7.1	 	For the purposes of this clause -






	7.1.1	 	“the first interim period” shall mean the period commencing on 21 November 2001 and terminating on the effective date; and













 





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	7.1.2	 	“the second interim period” shall mean the period commencing on the
effective date and terminating on the implementation date or, in the event
that this agreement does not become unconditional, on the date on which
this agreement lapses.






	7.2	 	It is agreed that AngloGold will manage the businesses in accordance
with the provisions of clause 7.12 during the first interim period, subject
to Freegold having the right to reasonable access to designated personnel
of the businesses for planning purposes; it being agreed that all profits
and losses during the first interim period will be for AngloGold’s account.
	 
	7.3	 	AngloGold will be entitled to continue with its voluntary separation
programme in respect of the employees up to 31 December 2001, provided that
it shall be obliged to pay all amounts due in terms of such programme and
it shall not be entitled to offer voluntary separation to any geologists or
mine captains without the prior written consent of Freegold.
	 
	7.4	 	AngloGold shall be entitled, during the first and second interim
periods, to transfer certain of the employees to its other operations with
the prior written consent of Freegold.
	 
	7.5	 	It is agreed that Freegold will manage the businesses in accordance
with the provisions of clauses 7.9 and 7.12 during the second interim
period, it being agreed that all profits and losses during the second
interim period will be for the account of Freegold in the event that this
agreement becomes unconditional, or for the account of AngloGold in the
event that this agreement does not become unconditional.
	 
	7.6	 	During the second interim period, all of AngloGold’s head office /
off-region costs shall be excluded for the purposes of calculating the
profits and losses of the businesses unless Freegold requires AngloGold’s
head office / regional services, in which event such













 





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	 	 	services will be supplied at cost. For the avoidance of doubt, it
is agreed that all of such head office / off-region costs shall,
unless required by Freegold, be for AngloGold’s account.
	 
	7.7	 	Freegold shall be obliged to refund AngloGold for all costs justifiably
incurred by it on behalf of Freegold during the second interim period in
the event that this agreement becomes unconditional.
	 
	7.8	 	AngloGold shall be obliged to refund Freegold for all costs justifiably
incurred by them on behalf of AngloGold during the second interim period in
the event that this agreement does not become unconditional.
	 
	7.9	 	During the second interim period, Freegold shall act in accordance with
AngloGold’s mining authorisation applicable to the businesses and any
approved Environmental Management Program in respect of the businesses as a
contractor, and Freegold, ARM and Harmony hereby jointly and severally
indemnify and hold AngloGold harmless, subject to the remaining provisions
of this clause 7, against any claims, damages, loss and/or expense arising
from and/or connected to any act or omission on the part of Freegold, ARM
or Harmony, arising from and/or connected with its management of the
businesses in terms of this clause 7.
	 
	7.10	 	AngloGold shall continue to insure the businesses and the business
assets at its cost until 28 February 2002. Freegold shall reimburse
AngloGold for the cost of such insurance for the period from the effective
date to the expiry of the second interim period provided this agreement
becomes unconditional. ARM and Harmony shall procure that Freegold insures
the businesses and the business assets at its cost from 1 March 2002 until
the expiry of the second interim period, provided that AngloGold shall
assist and co-operate with ARM and Harmony in obtaining the most cost
effective insurance for such













 





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	 	 	period. The parties shall procure the necessary endorsements on
the insurance policies recording their respective interests.
	 
	7.11	 	ARM and Harmony hereby undertake to nominate suitably qualified
persons to be appointed as managers of the businesses in terms of the Mine
Health and Safety Act, 1996 (Act No. 29 of 1996) during the second interim
period.
	 
	7.12	 	Save as otherwise agreed between the parties or provided in this
memorandum, the party/ies managing the businesses (“managing party”) hereby
undertakes -






	7.12.1	 	to inform the other of them of all material decisions regarding the
management of the businesses;
	 
	7.12.2	 	to continue to carry on the businesses in the ordinary and regular
course and in accordance with current plans and capital programs (to the
extent possible) and the trading style presently used;
	 
	7.12.3	 	that there will be no material adverse change in the financial
position of the businesses other than as a result of circumstances,
including but not limited to fluctuations in the gold price, beyond the
managing party’s control;
	 
	7.12.4	 	not, without the prior written consent of the other party, to enter
into any transaction, incur any liability, acquire any asset or dispose of
any asset of or relating to the businesses save in the ordinary and regular
course of conduct of the businesses;
	 
	7.12.5	 	not to do anything or omit to do anything which could -






	7.12.5.1	 	materially prejudice the goodwill of the businesses;
	 
	7.12.5.2	 	reduce the scope of the businesses;













 





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	7.12.5.3	 	result in any third party varying the terms on which it transacts
business with AngloGold in respect of the businesses;






	7.12.6	 	not to vary the terms and conditions of employment or working
conditions of any of the employees nor agree to any compensation or benefit
for the termination of the employment of any such employees, save as
otherwise provided herein or in respect of normal increases and bonuses and
any retrenchment programme implemented by Freegold in accordance with
applicable legislation, it being agreed that all retrenchments shall be
subject to AngloGold’s prior written consent, which consent shall not be
unreasonably withheld;
	 
	7.12.7	 	not, without the prior written consent of the other party/s, to
terminate or transfer the employment of any of the senior employees or any
other employees who are not on the businesses’ payroll but nevertheless
dedicate all or substantially all of their time to the businesses; and
	 
	7.12.8	 	to maintain normal and adequate levels of gold work in progress
and dedicated capital equipment relating to the businesses.






	7.13	 	In the event that any dispute shall arise between the parties in
respect of the management of the businesses (or the calculation of the
profits and losses referred to in clauses 7.2 and 7.5), during the first or
the second interim period, such dispute will be referred for joint
resolution to an executive officer of AngloGold and an executive nominated
by Freegold, associated on a daily basis with the businesses. In the event
that the said executives are unable to resolve the issue within 3 (Three)
business days after the referral, the provisions of clause 7.14 will apply.
	 
	7.14	 	Any issue which is not resolved in terms of clause 7.13 will be
referred to the chief operating officer of AngloGold and a senior













 





Page 19


	 	 	executive nominated by Freegold for joint resolution. In the event
that the said persons are unable jointly to resolve the issue within
3 (Three) business days after the referral, the decision of the
person representing the party who is managing the businesses at that
point in time shall, subject to the provisions of clause 7.12, be
final and binding on the parties in respect of the relevant issue.






	8	 	STOCKTAKING






	8.1	 	AngloGold shall as near as possible to the effective date cause a
stocktaking to be commenced, and to be continued until the completion
thereof, of all the consumable stores of the businesses (“the stocks”) on
the same basis as applied by it in the past but in any event in accordance
with the following provisions -






	8.1.1	 	each of the parties will be entitled to be represented at the
stocktaking;
	 
	8.1.2	 	after the stocktaking has been completed a schedule reflecting the
description, quantity and location of the stocks will be prepared and
initialled by the parties;
	 
	8.1.3	 	the stocks as reflected in the schedule referred to in clause 8.1.2
will be adjusted for any stock movements between the date of stocktaking
and the effective date;
	 
	8.1.4	 	any stocks which are -






	8.1.4.1	 	materially damaged; or
	 
	8.1.4.2	 	unusable as being incomplete, redundant, slow moving or obsolete,






	 	 	will be valued at Nil unless the parties agree in writing on the value
thereof.













 





Page 20








	8.2	 	Should there be any dispute as to whether any item of stock falls
within any category set out in clause 8.1.4 the dispute will be determined
by AngloGold’s auditors -






	8.2.1	 	whose decision will be made within 5 (Five) business days of their
appointment;
	 
	8.2.2	 	who will act as experts and not as arbitrators;
	 
	8.2.3	 	whose decision will, in the absence of manifest error, be final and
binding on the parties; and
	 
	8.2.4	 	who will determine the liability for their charges which will be paid accordingly.






	8.3	 	Upon completion of the schedule referred to in clause 8.1.2, the
parties will agree the value of the stocks on the basis of the lower of
cost or net realisable value, and failing agreement the stocks referred to
will be valued at the lower of cost or net realisable value by AngloGold’s
auditors, subject mutatis mutandis to the provisions of clause 8.2.
	 
	8.4	 	Freegold shall acquire the stocks with effect from the effective date
and shall pay the lower of the cost or net realisable value of the stocks
in 12 (Twelve) equal monthly instalments, the first instalment being
payable on 31 January 2002.






	9	 	LIABILITIES






	9.1	 	AngloGold hereby delegates to Freegold which assumes the specified
liabilities with effect from the effective date. Freegold hereby
indemnifies AngloGold and holds it harmless against all or any losses,
liabilities, damages, expenses, costs and/or claims which AngloGold may
suffer as a result of Freegold failing to comply fully or timeously with
its obligations under the specified liabilities.













 





Page 21


	9.2	 	Save for the specified liabilities and as otherwise provided herein,
all liabilities of businesses arising prior to the effective date are
retained by AngloGold for its own account. AngloGold hereby indemnifies
Freegold and holds it harmless against all or any losses, liabilities,
damages, expenses, costs and/or claims which Freegold may suffer as a
result of AngloGold failing to comply fully or timeously with its
obligations under any such liabilities.
	 
	9.3	 	It is recorded for the avoidance of doubt that all liabilities of the
businesses, including any environmental claims, the cause of action of
which arises after the effective date, shall be for Freegold’s account.
	 
	9.4	 	Freegold’s liability in respect of the claims referred to in clause
1.2.27.2 shall be subject to an aggregate maximum liability of
R10,000,000.00 (Ten million Rands). AngloGold shall manage any opposition
to such claims and Freegold shall be entitled to be fully involved in any
such opposition. Neither AngloGold nor Freegold shall be entitled to
settle any claims without the other’s prior written consent, which consent
shall not be unreasonably withheld.
AngloGold hereby warrants that it is not aware of the existence of
any additional claims as at the signature date.






	10	 	ENVIRONMENTAL MANAGEMENT FUND






	10.1	 	AngloGold will, on the implementation date, pay into a trust fund
specifically established for this purpose (“the fund”) an amount equal to
AngloGold’s funded rehabilitation liability in respect of the businesses as
at the effective date (being an amount equal to the current funded amount
of approximately R190,000,000.00 (One hundred and ninety million Rands)
plus interest accrued thereon, and an additional amount of R250,000,000.00
(Two hundred and fifty million Rands)).













 




Page 22








	10.2	 	The fund will be established by AngloGold prior to the
implementation date subject to the following -






	10.2.1	 	the fund shall be a separate fund for the businesses and shall not
be used for any other purpose without AngloGold’s prior written approval,
which approval shall not be unreasonably withheld;
	 
	10.2.2	 	the principal terms and conditions of the trust deed of the fund
will be as set out in annexe “G” of the initial sale of business agreement;
	 
	10.2.3	 	the trust deed of the fund shall be approved by the South African
Revenue Service prior to the implementation date;
	 
	10.2.4	 	the trustees of the fund shall initially be AngloGold nominees but
shall be replaced by nominees of Freegold on the implementation date or as
soon as possible thereafter;
	 
	10.2.5	 	the trust deed of the fund will not be amended without AngloGold’s
prior written approval, which approval shall not be unreasonably withheld;
	 
	10.2.6	 	Freegold shall deposit amounts into the fund as agreed between
Freegold, the Department of Minerals and Energy and the South African
Revenue Service;
	 
	10.2.7	 	Freegold will provide AngloGold, on an annual basis, with an
estimate of the rehabilitation liability, details of all amounts paid into
or by the fund and the accounts of the fund; and
	 
	10.2.8	 	Freegold shall, on an on-going basis, contribute to the fund such
amounts as shall be required in order to ensure that the total of all
contributions to the fund at any point in time shall be not less than the
total amount which it is obliged to hold in the fund at that point in time,
as agreed with the Department of Minerals and Energy and the South African
Revenue Service, from time to time (“the













 





Page 23


	 	 	total obligation”), in respect of the businesses relating to
rehabilitation and/or any other environmental matter.






	10.3	 	If the amount of the total contributions to the fund shall be less at
any time than the total obligation, Freegold shall, save only for debt
repayments and interest payments required in respect of the financing of
the acquisition, not distribute any cash other than by way of contribution
to the fund until any such shortfall shall have been extinguished.






	10.4	 	ARM and Harmony hereby -






	10.4.1	 	jointly and severally indemnify and hold AngloGold harmless in
respect of any claim, loss, damage or expense which AngloGold may suffer
and/or incur in connection with and/or arising from the specified
liabilities; and
	 
	10.4.2	 	undertake that Freegold shall, on an on-going basis, contribute to
the fund such amounts as shall be required in order to ensure that the
total of all contributions to the fund at any point in time shall be not
less than the total obligation, in respect of the businesses relating to
rehabilitation and/or any other environmental matter.






	10.5	 	ARM and Harmony hereby undertake to ensure that, if the amount of the
total contributions to the fund shall be less at any time than the total
obligation, Freegold shall, save only for debt repayments and interest
payments required in respect of the financing of the acquisition, not
distribute any cash other than by way of contribution to the fund until any
such shortfall shall have been extinguished.






	11	 	CONTRACTS






	11.1	 	AngloGold hereby cedes and assigns all of its right, title and
interest in and to the contracts to Freegold, which will take over and
complete all the contracts for its own account.













 




Page 24


	11.2	 	Freegold will ensure that all of the contracts will be fully complied
with by Freegold at its cost.
	 
	11.3	 	AngloGold hereby indemnifies and holds Freegold harmless against all
claims which may be made against Freegold under any of the contracts
arising out of any act or omission of AngloGold prior to the implementation
date in respect of such contract. Freegold hereby agrees that the
indemnity contained in this clause 11.3 shall not apply in respect of any
act or omission of AngloGold which is as a direct or indirect result of any
act or omission of Freegold in managing the businesses during the second
interim period.
	 
	11.4	 	AngloGold undertakes to use its best endeavours to procure the consent
of all third parties to the contracts to the cession and assignment of such
contracts to Freegold, if possible, with effect from the implementation
date.
	 
	11.5	 	Should any such other parties fail or refuse to give its consent as
aforesaid where such consent is a requirement for such cession and
assignment, AngloGold will appoint Freegold as its sub-contractor on the
basis that Freegold indemnifies and holds AngloGold harmless against all
and any claims which may be made against AngloGold arising from any act or
omission of Freegold in respect of such subcontracted work. Any work so
performed by Freegold shall be for the profit or loss of Freegold.
	 
	11.6	 	Should it not be possible for the parties to implement the provisions
of clause 11.5 for any reason, the parties shall forthwith meet and in good
faith agree an alternative solution which will achieve the same or
substantially the same result.






	12	 	LICENCES
	 
	 	 	AngloGold shall grant or procure the granting of licences to Freegold to
use all the computer and other technology and intellectual property













 





Page 25


	 	 	referred to in clause 1.2.6.13, free of any additional charge, save for
licence fees payable to third parties for the period after the
effective date, in perpetuity or for so long as legally possible, it
being noted that Freegold will not be entitled to grant any rights
allowing third parties to use any of the abovementioned computer
software, unless the licensor consents thereto.
	 
	13	 	ERNEST OPPENHEIMER HOSPITAL
	 
	 	 	Freegold will use commercially reasonable endeavours to ensure that the
Ernest Oppenheimer Hospital remains in operation and shall be obliged
to offer AngloGold a right of first refusal to acquire the Hospital and
all major equipment should it wish to dispose of the Hospital or such
equipment, which right must be exercised within a period of not more
than 30 (Thirty) days after such offer has been communicated to
AngloGold in writing;
	 
	14	 	EMPLOYEES






	14.1	 	The contracts of employment of each of the employees will be
transferred to Freegold in accordance with the provisions of section 197 of
the Labour Relations Act, 1995 (Act No. 66 of 1995) (“the LRA”), it being
recorded for the avoidance of doubt that in terms of section 197 of the LRA
the period of service of each employee with AngloGold shall be recognised
by Freegold and shall be deemed, for the purposes of the agreement of
employment between such employee and Freegold, to be the period of service
of such employee with Freegold.
	 
	14.2	 	Subject to the provisions of clauses 14.5, 14.6 and 14.10, Freegold
shall be liable for all employee related costs in respect of all periods
after the effective date.
	 
	14.3	 	Freegold will not assume employee related liabilities in respect of any
period prior to the effective date save for liabilities in respect of
the













 





Page 26

	 	 	accumulated leave and bonus pay referred to in clause 14.14 and,
subject to the provisions of clauses 14.9 and 14.10, the post
retirement medical funding liability in respect of the employees.
	 
	14.4	 	Save as otherwise provided herein, all employee related liabilities,
the cause of action of which arises prior to the effective date, are
retained by AngloGold for its own account. AngloGold hereby indemnifies
Freegold and holds it harmless against all or any losses, liabilities,
damages, expenses, costs and/or claims which Freegold may suffer as a
result of AngloGold failing to comply fully or timeously with its
obligations under any such liabilities.
	 
	14.5	 	AngloGold shall remain liable for the medical related liabilities of
persons who became continuation and widowed members’ (Cawms) prior to the
effective date.
	 
	14.6	 	In the event that any of the employees is dismissed prior to the
effective date and is thereafter reinstated, Freegold shall be obliged to
offer employment to such employee and AngloGold shall be obliged to pay all
amounts due to such employee for all periods prior to the reinstatement
date.
	 
	14.7	 	Freegold shall be obliged to take delivery of all employee related
records, provided that such records will be made available to AngloGold at
all reasonable times for the purposes of any outstanding labour disputes
and provided further that Freegold will provide AngloGold with reasonable
assistance in regard to such disputes.
	 
	14.8	 	The employees shall remain as members of the Goldmed medical scheme
(“Goldmed”) until not later than 2 (Two) months after the implementation
date or such other date as the parties may agree, whereafter the employees
will become members of a medical scheme nominated by Freegold (“the
nominated medical scheme”)













 




Page 27








	 	 	it being agreed that Freegold will, subject to the provisions of
clauses 14.9 and 14.10, be responsible for payment of the employers’
portion of the contribution to Goldmed medical scheme in respect of
the employees from the effective date until the employees become
members of the nominated medical scheme as aforesaid.
	 
	14.9	 	Freegold shall reimburse AngloGold for all employer post retirement
medical aid contributions which AngloGold is obliged to pay, in terms of
the applicable employment terms and conditions, in respect of all employees
not employed at the Joel or Matjhabeng mines whose employment is terminated
at any time after the effective date but before they become members of the
nominated medical scheme.
	 
	14.10	 	AngloGold shall be responsible for all employer post retirement
medical aid contributions which it is obliged to pay, in terms of the
applicable employment terms and conditions, in respect of all employees
employed at the Joel or Matjhabeng mines whose employment is terminated at
any time after the effective date but prior to the earlier of the date on
which they become members of the nominated medical scheme and the expiry of
a period of 2 (Two) months after the implementation date.
	 
	14.11	 	Save as set out in clauses 14.5 and 14.10, AngloGold shall have no
liability in regard to the post retirement medical expenses of the
employees.
	 
	14.12	 	Freegold shall be obliged, within 2 (Two) months of the
implementation date, to secure alternative retirement fund arrangements for
all of the employees who are members of AngloGold’s retirement fund/s (as
opposed to industry retirement funds) on the basis that such employees’
fully funded entitlement under the AngloGold retirement fund/s will be
transferred to such alternative fund.













 





Page 28


	14.13	 	AngloGold and its associated companies will not be entitled, without
Freegold’s prior written consent to employ any of the employees for a
period of 6 (Six) months from the implementation date.
	 
	14.14	 	On the implementation date AngloGold shall pay to Freegold an amount
equal to AngloGold’s liability in respect of the accumulated leave as at
the effective date, and accumulated bonus pay up to and including the last
measuring cycle immediately prior to the effective date, in respect of the
employees.
	 
	14.15	 	It is agreed that registered dependants of the employees who are
resident in the Lusikisiki area shall, at the election of Freegold, be
entitled to make use of AngloGold’s medical centre in the area provided
that Freegold shall be obliged to subsidise the cost of treatment of such
dependants to the same extent that they are currently subsidised by
AngloGold. The provisions of this clause shall not be construed as
constituting a stipulatio alteri in favour of the said dependants.






	15	 	PROVISION OF SERVICES AND ACCESS






	15.1	 	The parties agree that AngloGold will provide the following services
to Freegold in regard to the businesses –






	15.1.1	 	the existing information technology services upon the terms and
conditions contained in annexe “H” to the initial sale of business
agreement;
	 
	15.1.2	 	the existing payroll, time and attendance records and administration
service (including access to data processing required for these purposes)
upon the terms and conditions contained in annexe “I” to the initial sale
of business agreement; and




 









 





Page 29


	15.1.3	 	the existing financial and commercial services upon the terms and
conditions contained in annexe “J” to the initial sale of business
agreement.






	15.2	 	AngloGold hereby agrees to grant Freegold reasonable access to the
Gyromat survey instrument, which forms part of the excluded assets, at the
same rates as paid by AngloGold’s associated companies.
	 
	15.3	 	AngloGold hereby agrees to grant Freegold access to its “group spares
pool” subject to the operating procedures contained in the agreements
currently in existence, between AngloGold on the one hand and Harmony or
ARM on the other, in respect of group spares.






	16	 	IMPLEMENTATION






	16.1	 	Implementation of the sale will take place on the implementation date,
on which date AngloGold will place Freegold in control and possession of
the businesses and the business assets.
	 
	16.2	 	AngloGold hereby undertakes to sign and execute upon request by
Freegold all such documents as may reasonably be required to procure, at
the cost of Freegold, the transfer to Freegold and, to the extent possible,
the registration of transfer into the name of Freegold, of the business
assets.
	 
	16.3	 	Transfer of the immovable property shall be effected by Freegold’s
attorneys upon the terms and conditions contained in the sale of property
agreement.
	 
	16.4	 	Cession of the mining leases and mineral rights and transfer of the
surface right permits, shall be effected by Freegold’s attorneys as soon as
possible after the implementation date.






	17	 	APPLICATIONS FOR MINING AUTHORISATIONS






	17.1	 	Freegold will, within 8 (Eight) months of the implementation date –




 









 










Page 30


	17.1.1	 	apply for the granting of a mining authorisation in terms of section
9 of the Minerals Act ; and
	 
	17.1.2	 	submit its Environmental Management Program in respect of the
businesses for approval,
	 


	 	 	and will expeditiously and diligently pursue the said granting and
approval;






	17.2	 	Should it for any reason become impossible or impractical to give
effect to clause 17.1, the parties will use their best endeavours to reach
agreement on alternative arrangements which will have as near as possible
the same effect.






	18	 	WARRANTIES BY ANGLOGOLD






	18.1	 	AngloGold hereby unconditionally warrants to and in favour of
Freegold that –






	18.1.1	 	save as disclosed in annexe “K” to the initial sale of business
agreement, it is the sole and beneficial owner of the business assets and
has the right and is able to sell and give free and unencumbered title to
the business assets to Freegold;
	 
	18.1.2	 	save as disclosed in annexe “K” to the initial sale of business
agreement, none of the business assets are subject to any reservation of
ownership, lease, lien, hypothec, mortgage, notarial bond, pledge or other
encumbrance whatsoever;
	 
	18.1.3	 	save as disclosed in annexe “K” to the initial sale of business
agreement, no person has any right (whether pursuant to any option, right
of first refusal or otherwise) to purchase or acquire (whether as security
or otherwise) any of the business assets;
	 
	18.1.4	 	it has the legal capacity and has taken all necessary corporate
action required to empower and authorise it to enter into and




 









 





Page 31


	 	 	implement this agreement on the terms and conditions herein set
out.
	 
	18.2	 	Save for those warranties and representations expressly given or made
in this agreement, no warranties or representations are given or made,
whether express or implied, and the business assets are being sold on a
voetstoots basis.






	19	 	PUBLICATION IN TERMS OF INSOLVENCY ACT






	19.1	 	The parties agree that notice of the sale of the businesses pursuant
to this agreement will not be published as contemplated in Section 34 of
the Insolvency Act, 1936.
	 
	19.2	 	Freegold will have no duty to resist any proceedings to attach or to
take possession of any of the business assets instituted by any person in
consequence of notice of this transaction not being published. AngloGold
hereby indemnifies Freegold against any loss or damage which Freegold may
suffer as a result of notice of this transaction not being published as
aforesaid.
	 
	19.3	 	AngloGold hereby assumes the risk of attachment of any of the business
assets as a result of such notice not being published and undertakes to
compensate Freegold on demand in the event of any such attachment in an
amount equal to the replacement value of such business asset.






	20	 	SURETYSHIP
	 
	 	 	Subject to the provisions of clause 10.4, ARM and Harmony shall be
jointly and severally liable for any amounts due by Freegold to
AngloGold pursuant to the provisions of this agreement or the initial
sale agreement for a period of 12 (Twelve) months from the effective
date.




 









 




Page 32


	21	 	BREACH






	21.1	 	Should any party commit a breach of this agreement, any aggrieved
party will be entitled to terminate this agreement only if such breach
constitutes a material breach. A breach will not be deemed to be a material
breach if -






	21.1.1	 	it is capable of being remedied within a reasonable time and is so
remedied after written notice calling upon the defaulting party to do so
within 10 (Ten) business days of such notice; or
	 
	21.1.2	 	it is incapable of being remedied or is not remedied within the
period set out in 21.1.1 above, if payment in money will compensate for
such breach and such payment is made within 10 (Ten) business days after
written request for such payment.






	21.2	 	Subject to the provisions of 21.1 above, if a party commits a breach
of this agreement and fails to remedy such breach within 10 (Ten) business
days of written notice requiring the breach to be remedied, then the party
giving the notice will be entitled, at its option, either to cancel this
agreement and claim damages or alternatively to claim specific performance
of all the defaulting party’s obligations, together with damages, if any,
whether or not such obligations have fallen due for performance.






	22	 	DISPUTES






	22.1	 	Save as otherwise provided herein, in the event of any dispute or
difference arising between the parties hereto relating to or arising out of
this agreement, including the validity, implementation, execution,
interpretation, rectification, termination or cancellation of this
agreement, the parties shall forthwith meet to attempt to settle such
dispute or difference, and failing such settlement within a period of 10
(Ten) business days, the said dispute or difference shall on written demand
by any party to the dispute be submitted to arbitration in




 









 





Page 33

	 	 	Johannesburg in accordance with the rules of the Arbitration
Foundation of Southern Africa (“the Foundation”).
	 
	22.2	 	Should the parties fail to agree an arbitrator within 10 (Ten)
business days after arbitration has been demanded, the arbitrator shall be
nominated at the request of any party to the dispute by the Foundation.
	 
	22.3	 	The parties irrevocably agree that the submission to arbitration in
terms of this clause is subject to the parties’ rights of appeal set out
hereunder.
	 
	22.4	 	Any party to the arbitration may appeal the decision of the arbitrator
within a period of 20 (Twenty) business days after the arbitrator’s ruling
has been handed down by giving written notice to that effect to the other
party/ies to the arbitration. The appeal shall be dealt with in accordance
with the rules of the Foundation by a panel of 3 (Three) arbitrators
appointed by the Foundation.
	 
	22.5	 	The decision of the arbitrator shall be final and binding on the
parties to the arbitration after the expiry of the period of 20 (Twenty)
business days from the date of the arbitrator’s ruling if no appeal has
been lodged by any party. A decision which becomes final and binding in
terms of this clause 22.5 may be made an order of court at the instance of
any party to the arbitration.
	 
	22.6	 	Nothing herein contained shall be deemed to prevent or prohibit any
party from applying to the appropriate court for urgent relief.
	 
	22.7	 	The provisions of this clause will continue to be binding on the parties
notwithstanding any termination or cancellation of the agreement.






	23	 	CO-OPERATION
	 
	 	 	The parties undertake at all times to do all such things, perform all such
actions and take all such steps and to procure the doing of all such




 









 





Page 34

	 	 	steps as may be open to them and necessary for or incidental to the
fulfilment of the conditions precedent and the putting into effect or
maintenance of the terms, conditions and/or import of this agreement.






	24	 	NOTICES AND DOMICILIUM






	24.1	 	The parties hereto select as their respective domicilia citandi et
executandi the following physical addresses, and for the purposes of giving
or sending any notice provided for or required hereunder, the following -





	 	 	 	 	 
	Name
	 	Physical Address
	 	Telefax
	AngloGold

	 	11 Diagonal Street
	 	(011)637-6108
	

	 	Johannesburg	 	 
	

	 	2000	 	 
	 
	 	 	 	 
	

	 	For the attention of the Company Secretary	 	 
	 
	 	 	 	 
	Name

	 	Physical Address
	 	Telefax
	Freegold

	 	Block 27
	 	(011)692-3879
	

	 	Cnr Main Reef Road & Ward Avenue	 	 
	

	 	Randfontein	 	 
	 
	 	 	 	 
	

	 	For the attention of the Company Secretary	 	 
	 
	 	 	 	 
	Name

	 	Physical Address
	 	Telefax
	Harmony

	 	Block 27
	 	(011)692-3879
	

	 	Randfontein Office Park	 	 
	

	 	Cnr Main Reef Road & Ward Avenue	 	 
	

	 	Randfontein	 	 
	 
	 	 	 	 
	

	 	For the attention of the Company Secretary	 	 
	 
	 	 	 	 
	Name

	 	Physical Address
	 	Telefax
	ARM

	 	ARM House
	 	(011)883-5609
	

	 	29 Impala Road	 	 
	

	 	Chislehurston	 	 
	

	 	Sandton	 	 








	 	 	or such other address or telefax number as may be substituted by
notice given as herein required. Each of the parties shall be
entitled from time to time by written notice to the other parties,
to vary its




 









 




Page 35


	 	 	domicilium to any other address which is not a post office box or post
restante.
	 
	24.2	 	Any notice addressed to a party at its physical address shall be
delivered by hand, or sent by telefax.
	 
	24.3	 	Any notice shall be deemed to have been given -






	24.3.1	 	if hand delivered during business hours on a business day, on the
day of delivery;
	 
	24.3.2	 	if sent by telefax, on the date of sending of such telefax.






	24.4	 	Notwithstanding the above, any notice actually received by the party
to whom the notice is addressed will be deemed to have been properly given
and received, notwithstanding that such notice has not been given in
accordance with the provisions of this clause.






	25	 	GENERAL






	25.1	 	This agreement constitutes the whole of the agreement between the
parties hereto relating to the matters dealt with in this agreement and
save to the extent otherwise provided herein no undertaking,
representation, term or condition relating to the subject matter of this
agreement not incorporated in this agreement shall be binding on any of the
parties.
	 
	25.2	 	No variation, addition, deletion, or agreed cancellation will be of
any force or effect unless in writing and signed by or on behalf of the
parties hereto.
	 
	25.3	 	No waiver of any of the terms and conditions of this agreement will be
binding or effectual for any purpose unless in writing and signed by or on
behalf of the party giving the same. Any such waiver will be effective only
in the specific instance and for the purpose given. No failure or delay on
the part of any party hereto in exercising any right,




 









 




Page 36


	 	 	power or privilege hereunder will constitute or be deemed to be a
waiver thereof, nor will any single or partial exercise of any
right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
	 
	25.4	 	Save as otherwise herein provided, neither this agreement nor any
part, share or interest therein nor any rights or obligations hereunder may
be ceded, assigned, or otherwise transferred without the prior written
consent of the other parties.
	 
	25.5	 	This agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which together shall
constitute one and the same agreement as at the date of signature of the
party last signing one of the counterparts. The parties undertake to take
whatever steps may be necessary to ensure that both counterparts are duly
signed by each of them without delay.






	26	 	BENEFIT OF THE AGREEMENT
	 
	 	 	This agreement will inure for the benefit of and be binding upon the
successors in title and permitted assigns of the parties hereto or any
of them.
	 
	27	 	APPLICABLE LAW AND JURISDICTION






	27.1	 	This agreement will in all respects be governed by and construed
under the laws of the Republic of South Africa.
	 
	27.2	 	Subject to the provisions of this agreement, the parties hereto hereby
consent and submit to the non-exclusive jurisdiction of the Witwatersrand
Local Division of the High Court of the Republic of South Africa in any
dispute arising from or in connection with this agreement.




 









 




Page 37








	28	 	COSTS






	28.1	 	Each party will bear and pay its own legal costs and expenses of and
incidental to the negotiation, drafting, preparation and implementation of
this agreement and the merger notices required for the approval referred to
in clause 3.1.7.
	 
	28.2	 	The fee payable to the Competition Commission shall be borne in
equal shares by AngloGold and Freegold.
	 
	28.3	 	All costs of and associated with the transfer of the business assets to
Freegold shall be for Freegold’s account.





SIGNED at Sandton on this          day of December 2001




	 	 	 
	 

	 	For and on behalf of
	

	 	CLIDET NO. 383 (PROPRIETARY)
	

	 	LIMITED
	 
	 	 
	

	 	

	

	 	who warrants that he is duly
	

	 	authorised







SIGNED at Sandton on this          day of December 2001




	 	 	 
	 

	 	For and on behalf of
	

	 	ANGLOGOLD LIMITED
	 
	 	 
	

	 	

	

	 	who warrants that he is duly
	

	 	authorised
	 
	 	 
	

	 	

	

	 	who warrants that he is duly
	

	 	authorised







 









 




Page 38


SIGNED at Sandton on           December 2001.




	 	 	 
	 

	 	For and on behalf of
	

	 	HARMONY GOLD MINING
	

	 	COMPANY LIMITED
	 
	 	 
	

	 	

	

	 	who warrants that he is duly
	

	 	authorised







SIGNED at Sandton on           December 2001.




	 	 	 
	

	 	For and on behalf of
	 

	 	AFRICAN RAINBOW MINERALS
	

	 	(PROPRIETARY) LIMITED
	 
	 	 
	

	 	

	

	 	who warrants that he is duly
	

	 	authorised