EXHIBIT 4.1



 





Exhibit 4.1


EXECUTION COPY




ACQUISITION AND DISPOSAL AGREEMENT




between




AFRICAN RAINBOW MINERALS & EXPLORATION INVESTMENTS (PROPRIETARY) LIMITED




and




ANGLOVAAL MINING LIMITED




Page 1












 








CONTENTS




	 	 	 	 	 
	1
	 	INTERPRETATION	 	  4
	2.
	 	PROVISIONS WHICH TAKE IMMEDIATE EFFECT	 	  9
	3.
	 	SUSPENSIVE CONDITIONS	 	  9
	4.
	 	AVMIN’S PURCHASE OF THE HARMONY SHARES	 	11
	5.
	 	ARMI’S SUBSCRIPTION FOR THE NEW AVMIN SHARES	 	12
	6.
	 	EXCHANGE OF THE ARM PLATINUM SHARES AND ARM CONSORTIUM DEBT FOR NEW AVMIN SHARES	 	13
	7.
	 	CLOSING	 	14
	8.
	 	ASSIGNMENT OF BOE LOAN	 	17
	9.
	 	WARRANTIES AND UNDERTAKINGS BY ARMI	 	18
	10.
	 	WARRANTIES AND UNDERTAKINGS BY AVMIN	 	18
	11.
	 	CHANGE OF NAMES	 	19
	12.
	 	BREACH	 	19
	13.
	 	INDIVISIBILITY	 	20
	14.
	 	CONFIDENTIALITY	 	20
	15.
	 	GENERAL	 	21
	16.
	 	DISPUTE RESOLUTION	 	23
	17.
	 	ADDRESSES FOR LEGAL PROCESS AND NOTICES	 	24
	18.
	 	COSTS	 	25







Appendices





	1	 	Corporate particulars of ARM Consortium and ARM Platinum (clauses 1.1.3 and 1.1.8)
	 
	2	 	List of Modikwa Finance Agreements (clause 1.1 29)
	 
	3	 	Form of application form (clause 7.2.3)
	 
	4	 	Instructions to ARMI’s CSDP (clause 7.2.4)
	 
	5	 	Instructions to Avmin’s CSDP (clause 7.3.2)
	 
	6	 	Warranties and undertakings by ARMI (clause 9)
	 
	7	 	Form of cession by ARMI to Avmin (clause 7.2.2)




Page 2












 











ACQUISITION AND DISPOSAL AGREEMENT




between




AFRICAN RAINBOW MINERALS & EXPLORATION INVESTMENTS (PROPRIETARY) LIMITED




(a private company incorporated in accordance with the laws of South Africa
under Registration No. 1997/020158/07 with its principal office at ARM House,
29 Impala Road, Chislehurston. 2146, South Africa)


(“ARMI”)




and




ANGLOVAAL MINING LIMITED




(a public company incorporated in accordance with the laws of South Africa
under Registration No. 1933/004580/06 with its principal office at 56 Main
Street, Johannesburg, 2001, South Africa)

(“Avmin”)




WHEREAS





	A.	 	ARMI is the owner of the following assets (the “ARMI Assets”) among others:






	 	(a)	 	35,002,396 (thirty five million two thousand three hundred and ninety
six) Harmony Shares;
	 
	 	(b)	 	100% (one hundred per cent) of the issued share capital of ARM
Platinum, which in turn will own 83% (eighty three per cent) of the issued
share capital of ARM
Consortium at the Closing Date, which in turn holds a 50%
(fifty per cent) interest in the Modikwa JV; and






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	(c)

	 	the ARM Consortium Debt.
	 
	 	 
	B.

	 	The Parties, together with Harmony, reached an agreement in principle
regarding a range of indivisible transactions which, if implemented,
will result in the creation of the largest black controlled mineral
resources company in South Africa, and have made a detailed joint
cautionary announcement about those transactions, which was published in
the press on 14 November 2003.
	 
	 	 
	C.

	 	As appears from that announcement the implementation of those
transactions is subject to certain conditions precedent, one of which is
the finalization of the requisite legal agreements for them.
	 
	 	 
	D.

	 	The Parties are accordingly entering into this Agreement for the Avmin
transactions on the basis so finalised by them.







THE PARTIES ACCORDINGLY AGREE THAT:




	 	 	 
	1.

	 	INTERPRETATION
	 
	 	 
	1.1

	 	Definitions
	 
	 	 
	

	 	For the purposes of this Agreement and the preamble above, unless the context requires otherwise:







	 	 	 	 	 
	1.1.1

	 	“this Agreement”
	 	means this acquisition and disposal agreement and
includes its Appendices which shall form part of it;
	 
	 	 	 	 
	1.1.2

	 	“ARMI Assets”
	 	means the ARMI Harmony Shares, the ARM Platinum Shares and the ARM Consortium Debt;
	 
	 	 	 	 
	1.1.3

	 	“ARM Consortium”
	 	means ARM Mining Consortium Limited, a public
company incorporated in South Africa under Registration
No. 2001/001997/06, whose corporate particulars are set out in Appendix 1;
	 
	 	 	 	 
	1.1.4

	 	“ARM Consortium Debt”
	 	means all of ARMI’s rights in and to the debts
owed by ARM Consortium to ARMI at the Closing Date for the ‘shareholder’ loans
made by ARMI to ARM Consortium from time to time, and including the loan of
R102,500,000 originally made by BoE, through its ‘BoE Merchant Bank’ division and
subsequently acquired by ARMI from BoE;







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	1.1.5 

	 	“ARMI Control Transaction”
	 	means the transaction which is being
entered into between ARMI and Harmony about the same time as this Agreement
in terms of which ARMI and Harmony will agree on the basis upon which Harmony’s
Avmin Shares will be voted by ARMI;
	 
	 	 	 	 
	1.1.6

	 	“ARMI’s CSDP”
	 	means ‘Nedcor Securities’;
	 
	 	 	 	 
	1.1.7

	 	“ARMI Harmony Shares”
	 	means the 35,002,396 Harmony Shares
owned by ARMI and referred to in paragraph A of the preamble above;
	 
	 	 	 	 
	1.1.8

	 	“ARM Platinum”
	 	means African Rainbow Minerals Platinum (Proprietary)
Limited, a private company incorporated in South Africa
under Registration No. 1999/018332/07, Whose corporate particulars are set out in
Appendix 1;
	 
	 	 	 	 
	1.1.9

	 	“ARM Platinum Group”
	 	means ARM Platinum and ARM Consortium;
	 
	 	 	 	 
	1.1.10 

	 	“ARM Platinum Shares”
	 	means all of the shares comprising the entire
issued share capital of ARM Platinum at the Closing Date;
	 
	 	 	 	 
	1.1.11

	 	“Avgold”
	 	means Avgold Limited, a public company incorporated
in South Africa under Registration No. 1990/007025/06;
	 
	 	 	 	 
	1.1.12

	 	“Avgold Shares”
	 	means ordinary shares of R0.01 each in Avgold’s share
capital;
	 
	 	 	 	 
	1.1.13

	 	“Avgold Transaction”
	 	means the agreement which is being entered into
between Avmin and Harmony about the same time as this Agreement, in terms of which Avmin
will be disposing of its 286,305,263 Avgold Shares, which are approximately
42.2% of Avgold’s issued share capital, to Harmony, in exchange for the
allotment and issue by Harmony to Avmin of 28,630,526 new Harmony Shares;
	 
	 	 	 	 
	1.1.14

	 	“Avmin Shares”
	 	means ordinary shares of R0.05 each in Avmin’s share capital;
	 
	 	 	 	 
	1.1.15

	 	“BoE”
	 	means Nedbank Limited through its Capital Markets division;
	 
	 	 	 	 
	1.1.16

	 	“BoE Loan Agreement”
	 	means the Term Loan Agreement between BoE and ARMI, which was signed by ARMI
on 23 December 2003 and in terms of which BoE tent and advanced
R40,000,000 to ARMI;







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	1.1.17

	 	“Business Day”
	 	means any day other than a Saturday, Sunday or statutory holiday in South Africa;
	 
	 	 	 	 
	1.1.18 

	 	“Closing Date”
	 	means, the date on which all the matters to be
completed in terms of clause 7 below are duly completed in accordance with the
requirements of that clause;
	 
	 	 	 	 
	1.1.19 

	 	“Closing Meeting”
	 	means the closing meeting to be held in accordance
with the requirements of clause 7.1 below and includes any adjournments of
the meeting as agreed between the Parties;
	 
	 	 	 	 
	1.1.20 

	 	“the Code”
	 	means the Securities Regulation Code on Takeovers
and Mergers and the Rules of the Securities Regulation Panel, promulgated in terms
of the Companies Act;
	 
	 	 	 	 
	1.1.21

	 	“Companies Act”
	 	means the Companies Act, 1973;
	 
	 	 	 	 
	1.1.22

	 	“Harmony”
	 	means Harmony Gold Mining Company Limited, a
public company incorporated in South Africa under Registration No. 1950/038232/06;
	 
	 	 	 	 
	1.1.23

	 	“Harmony Shares”
	 	means ordinary shares of R0.50 each in Harmony’s issued share capital;
	 
	 	 	 	 
	1.1.24

	 	“JSE”
	 	means the JSE Securities Exchange, South Africa;
	 
	 	 	 	 
	1.1.25

	 	“Kalgold”
	 	means Kalahari Goldridge Mining
Company Limited, a public company incorporated in South Africa under
Registration No. 1982/002818/06;
	 
	 	 	 	 
	1.1.26

	 	“Kalplats Transaction”
	 	means the agreement which is being entered into
between Avmin, ARM Platinum, Harmony and Kalgold about the same time as this
Agreement, in terms of which ARM Platinum will be acquiring certain assets from
Kalgold;
	 
	 	 	 	 
	1.1.27

	 	“Merger Transactions”
	 	means this Agreement, the Avgold Transaction,
the Kalplats Transaction and the ARMI Control Transaction;
	 
	 	 	 	 
	1.1.28

	 	“Modikwa Consent Creditor”
	 	means each lender or other counterparty to
ARM Consortium or ARM Platinum, listed in Appendix 2, whose consent to
this Agreement and its implementation (including the implementation of clause
8.2 below) is required under the Modikwa Finance Agreements, and “Modikwa
Consent Creditors” means all of them collectively;
	 
	 	 	 	 
	1.1.29

	 	“Modikwa Finance
Agreements”
	 	means the agreements listed in Appendix 2 in terms of
which monies were made available to ARM Consortium to fund its participation in the Modikwa JV;







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	1.1.30

	 	“Modikwa JV”
	 	means the joint venture between ARM
Consortium Agreement; and Rustenburg Platinum established in terms of the
Modikwa JV Agreement;
	 
	 	 	 	 
	1.1.31

	 	“Modikwa JV Agreement”
	 	means the joint venture agreement between ARM
Consortium, Rustenburg Platinum. ARM Platinum and ARMI for the joint venture
mining operation between ARM Consortium and Rustenburg Platinum which
they carry on at the Modikwa Mine;
	 
	 	 	 	 
	1.1.32

	 	“New Avmin Shares”
	 	means the 87750417 new Avmin Shares
which are to be subscribed for by and allotted and issued to ARMI in terms
of this Agreement;
	 
	 	 	 	 
	1.1.33

	 	“Parties”
	 	means ARMI and Avmin, the parties to this Agreement; and
“Party” means either one of them as the context may require;
	 
	 	 	 	 
	1.1.34

	 	“Rustenburg Platinum”
	 	means Rustenburg Platinum Mines
Limited, a public company incorporated in South Africa under Registration No. 1931/003380/06;
	 
	 	 	 	 
	1.1.35

	 	“Signature Date”
	 	means the last date on which this Agreement is signed by the Parties;
	 
	 	 	 	 
	1.1.36

	 	“SRP”
	 	means the Securities Regulation Panel established in terms of
the Companies Act; and
	 
	 	 	 	 
	1.1.37

	 	“Tax”
	 	means any tax (including but not limited to income tax, capital
gains tax, secondary tax on companies and Value added tax),
duty or levy (including any penalty or interest) imposed by any
law administered by the Commissioner for the South African
Revenue Service or any equivalent or comparable authority
within South Africa.







	 	 	 
	1.2

	 	General interpretation
	 
	 	 
	

	 	For the purposes of this Agreement the following rules of construction shall apply, unless the
context requires otherwise:







	 	 	 
	1.2.1

	 	a reference to any one gender, whether masculine, feminine or neuter, includes
the other two;
	 
	 	 
	1.2.2

	 	any reference to a person includes, without being limited to, any individual, body
corporate, unincorporated association or other entity recognised under any law
as having a separate legal existence or personality;







Page 7












 






	 	 	 
	1.2.3

	 	any word or expression defined in, and for the purposes of, this Agreement shall
if expressed in the singular include the plural and vice versa, and a cognate word
or expression shall have a corresponding meaning;
	 
	 	 
	1.2.4

	 	references to a statutory provision include any subordinate legislation made from
time to time under that provision and references to a statutory provision include
that provision as from time to time modified or re-enacted as far as such
modification or re-enactment applies, or is capable of applying, to this Agreement
or any transaction entered into in accordance with this Agreement;
	 
	 	 
	1.2.5

	 	a “law” shall be construed as any law (including common law), statute,
constitution, decree, judgment treaty, regulation, directive, by-law, order or any
other legislative measure or enactment of any government, local government,
statutory or regulatory body or court and shall be deemed to include the rules and
other requirements of any applicable stock exchange;
	 
	 	 
	1.2.6

	 	references in this Agreement to
“clauses”and “Appendices” are to clauses of, and
appendices to, this Agreement:
	 
	 	 
	1.2.7

	 	any reference in this Agreement to this Agreement or any other agreement,
document or instrument shall be construed as a reference to this Agreement or
that other agreement, document or instrument as amended, varied, novated or
substituted from time to time;
	 
	 	 
	1.2.8

	 	words and expressions defined in the Companies Act which are not defined in this
Agreement shall have the same meanings in this Agreement as those ascribed to
them in the Companies Act;
	 
	 	 
	1.2.9

	 	any word and expression defined in
any clause shall, unless the application of the word or expression is specifically limited to the clause in question, bear the
meaning ascribed to the word or expression throughout this Agreement;
	 
	 	 
	1.2.10

	 	no rule of construction shall be applied to the disadvantage of a Party to this
Agreement because that Party was responsible for or participated in the preparation of this Agreement or any part of it; and







Page 8












 






	 	 	 
	1.2.11

	 	unless 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
day that is not a Business Day, the next succeeding Business Day.







	 	 	 
	1.3

	 	Headings and Sub-headings
	 
	 	 
	

	 	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.

	 	PROVISIONS WHICH TAKE IMMEDIATE EFFECT
	 
	 	 
	

	 	The provisions of this clause 2 and clauses 1, 3, 12, 13, 14, 15, 16, 17 and 18 shall take effect
and become operative immediately upon the Signature Date.
	 
	 	 
	3.

	 	SUSPENSIVE CONDITIONS
	 
	 	 
	3.1

	 	All the provisions of this Agreement, except for those which take effect and become operative
immediately in terms of clause 2 above, shall be subject to the fulfilment of the following
suspensive conditions by 30 April 2004, or such later date as the Parties may agree in writing:







	 	 	 
	3.1.1

	 	that all of the other Merger Transaction are duly entered into and become
unconditional and take effect according to their terms, save in so far as they are
conditional on this Agreement becoming unconditional;
	 
	 	 
	3.1.2

	 	that all regulatory approvals from the JSE and the SRP which are necessary for
the implementation of this Agreement in accordance with its terms are duly
obtained, including without necessarily being limited to an exemption by the SRP
in terms of rule 8.7 of the Code from the requirement for a mandatory offer by
ARMI to the other shareholders of Avmin for the acquisition of their Avmin
Shares;
	 
	 	 
	3.1.3

	 	that the approval of Avmin’s shareholders in general meeting is duly obtained for
the following matters:







Page 9












 






	 	 	 
	3.1.3.1

	 	this Agreement;
	 
	 	 
	3.1.3.2

	 	a waiver by them of the mandatory offer referred in clause 3.12 above;
	 
	 	 
	3.1.3.3

	 	the Avgold Transaction;
	 
	 	 
	3.1.3.4

	 	the Kalplats Transaction;







	 	 	 
	3.1.4

	 	that the approval of Rustenburg Platinum to the disposal of the ARM Platinum
shares is duly obtained in writing, in accordance with the requirements of the
Modikwa JV Agreement;
	 
	 	 
	3.1.5

	 	that the approval of the Modikwa Consent Creditors to this Agreement and its
implementation (including the implementation of clause 8.2 below) is duly
obtained in writing, in accordance with the requirements of the Modikwa Finance
Agreements;
	 
	 	 
	3.1.6

	 	that the approval of the Competition Tribunal to the implementation of the Merger
Transactions is duly obtained in accordance with the requirements of the
Competition Act, 1998;
	 
	 	 
	3.1.7

	 	that the JSE agrees to the listing of the New Avmin Shares with effect from the
Closing Date; and
	 
	 	 
	3.1.8

	 	that the approval of BoE to the assignment of the BoE Loan Agreement to Avmin
in terms of this Agreement is duly obtained in accordance with the requirements
of that agreement.







	 	 	 
	3.2

	 	If any approval required for the fulfilment of any of the suspensive conditions referred to in
clauses 3.1.2, 3.1.4, 3.1.5 and 3.1.6 above is granted subject to any condition which is unusual
or abnormal or outside the contemplation of either of the Parties, and which adversely affects
the Party in question to a material extent, the approval shall be deemed not to have been
granted if that Party so requires.
	 
	 	 
	3.3

	 	If any one of the suspensive conditions referred to in clause 3.1 above is not fulfilled by 30 April
2004 or such later date as may be agreed upon in writing (and such agreement may not be
unreasonably withheld or delayed), then the provisions of this Agreement that are suspended
shall not take effect and those that have taken effect and become operative shall fall away,
unless otherwise provided for in this Agreement.







Page 10












 






	 	 	 
	3.4

	 	If all of those suspensive conditions are fulfilled, then all the provisions of this Agreement which
were suspended in terms of clause 3.1 above shall also take effect and become operative, and
the whole of this Agreement shall accordingly become unconditional.
	 
	 	 
	3.5

	 	Avmin shall be obliged at its cost to convene all the meetings and do everything else that may
be necessary to enable the resolutions which will be required from its shareholders in terms of
clause 3.1.3 above, to be duly passed.
	 
	 	 
	3.6

	 	ARMI shall apply at its cost for any approvals referred to in clause 3.1.4 and 3.1.5 above and
do everything that may reasonably be required of it for that purpose.
	 
	 	 
	3.7

	 	The Parties shall notify the Competition Commission of the Merger Transactions in accordance
with the requirements of the Competition Act, 1998, and shall co-operate with each other and
do everything that may be necessary or reasonably required of them for that purpose.
	 
	 	 
	3.8

	 	Avmin shall be obliged to give an undertaking in writing to BoE in accordance with the
requirements of clause 13.1.6(b)(ii) of the BoE Loan Agreement.
	 
	 	 
	4.

	 	AVMIN’S PURCHASE OF THE HARMONY SHARES AND THE ARM CONSORTIUM DEBT
	 
	 	 
	4.1

	 	Agreement to Sell and Purchase
	 
	 	 
	

	 	ARMI agrees to sell to Avmin, which agrees to purchase from ARMI, upon and subject to the
terms and conditions of this Agreement:







	 	 	 
	4.1.1

	 	all of the ARMI Harmony Shares; and
	 
	 	 
	4.1.2

	 	the ARM Consortium Debt.







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	4.2

	 	Amount of Purchase Price
	 
	 	 
	

	 	The purchase price payable, by Avmin for all of the ARMI Consortium Debt
is R4,086,910,550 (four billion eighty six million nine hundred and ten
thousand five hundred and fifty rands) in the aggregate, allocated as
follows:







	 	 	 
	4.2.1

	 	R3,537,692,147 (three billion five hundred and thirty seven million six
hundred and ninety two thousand one hundred and forty seven rands) for the ARMI Harmony Shares; and
	 
	 	 
	4.2.2

	 	R549,218,403 (five hundred and forty nine million two hundred and
eighteen thousand four hundred and three rands) for the ARM Consortium Debt.







	 	 	 
	4.3

	 	Payment of Purchase Price
	 
	 	 
	

	 	That aggregate purchase price shall be payable by Avmin to ARMI at the
Closing Meeting against delivery of the ARMI Harmony Shares and the ARM
Consortium Debt to Avmin, and the completion of all the other matters to be
completed at the Closing Meeting in accordance with clause 7 below.







5. ARMI’S SUBSCRIPTION FOR 81,738,211 OF THE NEW AVMIN SHARES




	 	 	 
	5.1

	 	Agreement to Subscribe







	 	 	 
	5.1.1

	 	ARMI agrees with Avmin to subscribe for 81,738,211 (eighty one million seven
hundred and thirty eight thousand two hundred and eleven) of the New Avmin
Shares, for a subscription price of R50 (fifty rands) per share (of which R0.05
(five cents) shall be credited to share capital and R49.95 (forty nine rands and
ninety five cents) to share premium), and the total sum of R4,086,910,550 (four
billion eighty six million nine hundred and ten thousand five hundred and fifty
rands) so determined shall be payable against their allotment and issue to ARMI
and against the completion of all the other matters to be completed at the Closing
Meeting in accordance with clause 7 below.







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	5.1.2

	 	Upon the allotment of those 81,738,211 (eighty one million seven hundred and
thirty eight thousand two hundred and eleven Avmin Shares to ARMI. They shall
rank pari passu in all respects with all of the Avmin Shares then in issue.







	 	 	 
	5.2

	 	Allotment and Issue of 31,738,211 of the New Avmin Shares
	 
	 	 
	

	 	Avmin agrees with ARMI to allot and issue those 81,738,211 (eighty one million seven hundred
and thirty eight thousand two hundred and eleven) of the New Avmin Shares to ARMI against
the discharge of their subscription price, and the completion of all the other matters to be
completed at the Closing Meeting in accordance with clause 7 below.







6. EXCHANGE OF THE ARM PLATINUM SHARES FOR NEW AVMIN SHARES




	 	 	 
	6.1

	 	Agreement to Exchange
	 
	 	 
	

	 	Avmin agrees with ARMI to acquire from ARMI the ARM Platinum Shares, in exchange for
6,012,206 (six million and twelve thousand two hundred and six) of the New Avmin Shares upon
and subject to the terms and conditions of this Agreement.
	 
	 	 
	6.2.

	 	ARMI to Subscribe for 6,012,206 of the New Avmin Shares
	 
	 	 
	

	 	ARMI shall apply and subscribe for 6,012,206 (six million and twelve thousand two hundred and
six) of the New Avmin Shares for a consideration comprising the ARM Platinum Shares, which
shall be transferred to Avmin against the allotment and issue to ARMI of those New Avmin
Shares and the completion of the other matters to be completed at the Closing Meeting in
accordance with clause 7 below.







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	6.3

	 	Allotment and Issue of 6,012,206 of the New Avmin Shares







	 	 	 
	6.3.1

	 	Avmin shall, upon the transfer to it of the ARM Platinum Shares and against the
completion of all the other matters to be completed at the Closing Meeting in
accordance with clause 7 below, allot and issue 6,012,206 (six million and twelve
thousand two hundred and six) of the New Avmin Shares to ARMI which, upon
their allotment, shall rank pari passu in all respects with all of the Avmin Shares
then in issue.
	 
	 	 
	6.3.2

	 	Upon the allotment of those 6,012,206 (six million and twelve thousand two
hundred and six) of the New Avmin Shares to ARMI, Avmin’s share capital account
shall be credited with R300,610 (three hundred thousand six
hundred and ten rands) and its share premium account with R300,309,690 (three
hundred million three hundred and nine thousand six hundred and ninety rands).







	 	 	 
	7.

	 	CLOSING
	 

	 	 
	7.1

	 	Closing Meeting







	 	 	 
	7.1.1

	 	Unless otherwise agreed by the Parties and Harmony in writing a closing meeting
shall be held at 14h00 on the 5th (fifth) Business Day after the date on which all
of the suspensive conditions in clause 3.1 above are duly fulfilled and/or waived,
at the offices of Deneys Reitz Inc. at 82 Maude Street, Sandton, or at such other
place as the Parties and Harmony may agree in writing, for the closing of this
Agreement by the completion of all the matters specified in clauses 7.2 and 7.3
below.
	 
	 	 
	7.1.2

	 	The Closing Meeting shall be held together with the closing meetings to be held
at the same time and place in terms of the Avgold Transaction and the Kalplats
Transaction.







	 	 	 
	7.2

	 	Matters to be completed by ARMI
	 
	 	 
	

	 	At the Closing Meeting ARMI shall deliver to Avmin all of the following:







Page 14












 






	 	 	 
	7.2.1

	 	the certificate(s) for the ARM Platinum Shares, together with such transfer forms,
duly executed by ARMI and bearing the true date of execution (which may not be
more than 30 (thirty) days before the date of the Closing Meeting), as may be
required for the lawful registration of the transfer of the ARM Platinum Shares to
Avmin;
	 
	 	 
	7.2.2

	 	a written cession by ARMI to Avmin, of the ARM Consortium Debt, in a form
which is substantially the same as the form attached as Appendix 7;
	 
	 	 
	7.2.3

	 	an application by ARMI for the subscription by it for all of the New Avmin Shares,
which shall be substantially in accordance with the form of application attached
as Appendix 3;
	 
	 	 
	7.2.4

	 	a certified copy of a signed irrevocable and unconditional written instruction to
ARMI’s CSDP, to effect a transfer of the ARM Harmony Shares to Avmin or its
nominee in accordance with the requirements of this Agreement and an
acknowledgement of the instruction by ARMI’s CSDP and an undertaking by
it to give effect to the instruction, all of which shall be substantially in
accordance with the form of Appendix 4;
	 
	 	 
	7.2.5

	 	a certified copy-of a resolution passed by ARM Platinum’s board of directors
approving the following matters and which may be expressed as being subject to
the implementation of this clause 7:







	 	 	 
	7.2.5.1

	 	the transfer from ARMI to Avmin of the ARM Platinum Shares in
accordance with the share transfer forms delivered to Avmin in terms
of clause 7.2.1 above;
	 
	 	 
	7.2.5.2 

	 	the registration in ARM Platinum’s register of members of Avmin as the
holder of the ARM Platinum Shares in accordance with the approval
given in terms of clause 7.2.5.1 above; and
	 
	 	 
	7.2.5.3

	 	the issue of appropriate new share certificates to Avmin for the ARM
Platinum Shares registered in its name in accordance with the
provisions of clause 7.2.5.2 above;







	 	 	 
	7.2.6

	 	a resolution in writing signed by Ubuntu-Ubuntu Commercial Enterprises
(Proprietary) Limited, as the sole member of ARMI, approving the disposal by
ARMI of the ARMI Harmony Shares, the ARM Platinum Shares and the ARM
Consortium Debt to Avmin in terms of this Agreement.







Page 15












 






	 	 	 
	7.3

	 	Matters to be completed by Avmin
	 
	 	 
	

	 	At the Closing Meeting Avmin shall deliver to ARMI all of the following:







	 	 	 
	7.3.1

	 	a certified copy of a resolution passed by Avmin’s board of directors, or any other
valid authority of Avmin, approving the following matters, which may be
expressed as being subject to the implementation of this clause 7:







	 	 	 
	7.3.1.1

	 	 the allotment and issue of all the New Avmin Shares to ARMI in
accordance with the requirements of this Agreement; and
	 
	 	 
	7.3.1.2

	 	 the listing of all of the New Avmin Shares on the JSE;







	 	 	 
	7.3.2

	 	a certified copy of a signed irrevocable written instruction by Avmin to its transfer
secretaries, Computershare Limited, to give effect to the allotment and issue of
the New Avmin Shares to ARMI in accordance with the requirements of this
Agreement and an acknowledgement of the instruction and an
-undertaking [“to”
give effect to it by, Computershare Limited, all of which shall be substantially in
accordance with the form of Appendix 5; and
	 
	 	 
	7.3.3

	 	written confirmation from the JSE that the New Avmin Shares will be listed on the
JSE on the Closing Date.







	 	 	 
	7.4

	 	Deemed Simultaneous Completion
	 
	 	 
	

	 	Notwithstanding anything to the contrary anywhere else in this Agreement the Parties agree
that all the matters to be completed pursuant to clauses 7.2 and 7.3 above shall be deemed to
be have been completed simultaneously, and that none of them shall be deemed to have been
completed unless all of them have been completed, and unless all of the matters to be
completed by Avmin and Harmony at the other closing meetings referred to in clause 7.1.2
above have also all been completed.







Page 16














 






	 	 	 
	7.5

	 	Final Confirmation
	 
	 	 
	

	 	Upon the completion of all the matters to be completed in terms of this clause 7 the Parties
shall be obliged to sign and deliver to ARMPs CSDP and to Avmin’s transfer secretaries a
written final confirmation of that fact as contemplated in Appendices 4 and 5.
	 
	 	 
	8.

	 	ASSIGNMENT OF BOE LOAN AND MODIKWA FINANCE AGREEMENTS
	 
	 	 
	8.1

	 	BoE Loan Agreement
	 
	 	 
	

	 	ARMI hereby assigns all of its rights and obligations under the BoE Loan Agreement to Avmin,
and Avmin accepts that assignment, all with effect from the Closing Date and subject to the
terms and conditions of this Agreement, so that with effect from the Closing Date Avmin will be
substituted in all respects for ARMI as the “Borrower” under the BoE Loan Agreement as if
Avmin had entered into it in the first place.
	 
	 	 
	8.2

	 	Modikwa Finance Agreements
	 
	 	 
	

	 	ARMI hereby assigns to Avmin all of its rights and obligations under each one of the Modikwa
Finance Agreements to which it is a party, and Avmin accepts each such assignment, all with
effect from the Closing Date and subject to the terms and conditions of this Agreement, so that
with effect from the Closing Date Avmin shall be substituted in all respects for ARMI as a party
to each of those agreements as if Avmin had entered into it in the first place.







Page 17












 






	 	 	 
	9.

	 	WARRANTIES AND UNDERTAKINGS BY ARMI
	 
	 	 
	9.1

	 	Warranties and Undertakings
	 
	 	 
	

	 	ARMI agrees to be bound by ail the warranties and undertakings set out in
the attached Appendix 6. ARMI acknowledges that Avmin is entering into this Agreement in
reliance upon the warranties and undertakings set out in Appendix 6. Each warranty given by
ARMI in terms of this Agreement shall be a separate warranty and shall in no way be limited
or restricted by the provisions of any other warranty.
	 
	 	 
	9.2

	 	Limits on ARMI’s Liability
	 
	 	 
	

	 	Notwithstanding anything to the contrary anywhere else in this Agreement, the aggregate
amount of Avmin’s recoverable damages for any breach or breaches of this Agreement by
ARMI, including without being limited to the warranties and undertakings set out in Appendix 6,
shall not in any circumstances exceed R4, 086, 910, 550 (four billion eighty six million nine
hundred and ten thousand five hundred and fifty rands) in the aggregate.
	 
	 	 
	10.

	 	WARRANTIES AND UNDERTAKINGS BY AVMIN
	 
	 	 
	10.1

	 	Warranties and Undertakings
	 
	 	 
	

	 	Avmin agrees to be bound by the following warranties and undertakings:







	 	 	 
	10.1.1

	 	Avmin will have sufficient authorised capital to allot and issue all of the New
Avmin Shares;
	 
	 	 
	10.1.2

	 	Avmin has the power and will have taken all the necessary authorising action to
allot and issue the New Avmin Shares in terms of this Agreement; and
	 
	 	 
	10.1.3

	 	the New Avmin Shares, when allotted and issued, will rank pan passu with all of
the other Avmin Shares then in issue and will be duly listed on the JSE.







Page 18












 






	 	 	 
	10.2

	 	Limits on Avmin’s Liability
	 
	 	 
	

	 	Notwithstanding anything to the contrary anywhere else, in this Agreement the aggregate
amount of ARMI’s recoverable damages for any breach or breaches of this Agreement by
Avmin, including without being limited to the warranties and undertakings set out in clause 10.1
above, shall not in any circumstances exceed R4, 086, 910, 550 (four billion eighty six million nine
hundred and ten thousand five hundred and fifty rands) in the aggregate.
	 
	 	 
	11.

	 	CHANGE OF NAMES
	 
	 	 
	

	 	Avmin’s Name
	 
	 	 
	

	 	Avmin undertakes that subject to the passing of the necessary special
resolution at the general meeting to be convened in terms of clause 3.5 above, it will change its
name to ‘African Rainbow Minerals Limited’, and it shall take all steps and do everything
else to enable that special resolution to be passed and duly registered in accordance with the
requirements of the Companies Act.
	 
	 	 
	12.

	 	BREACH
	 
	 	 
	12.1

	 	Breach by ARMI
	 
	 	 
	

	 	If ARMI commits any breach of this Agreement, then subject to clause
12.3 below, Avmin shall not be entitled to cancel it unless the breach is material and goes to the
root of the contract and cannot be remedied adequately by the payment
of damages and, being such a
breach, it is not remedied or is not capable of being remedied by specific performance
within a reasonable time (which shall not be less than 30 (thirty) days) after ARMI receives
written notice from Avmin to remedy the breach.
	 
	 	 
	12.2

	 	Breach by Avmin
	 
	 	 
	

	 	If Avmin commits any breach of this
Agreement, then, subject to clause
12.3 below, ARMI shall not be entitled to cancel it unless the breach is material and goes to the
root of the contract and cannot be remedied adequately by the payment
of damages and, being such a
breach, it is not remedied or is not capable of being remedied by specific performance
within a reasonable time (which shall not be less than 30 (thirty) days) after Avmin receives
written notice from ARMI to remedy the breach.







Page 19












 






	 	 	 
	12.3

	 	Restriction on Right to Cancel
	 
	 	 
	

	 	Notwithstanding anything to the contrary anywhere else in this Agreement
neither Party shall be entitled to cancel this Agreement after the Closing Date for any breach
of this Agreement by the other Party, and the exclusive remedy for any such breach shall be
limited to a claim for specific performance or such damages as may be recoverable for the breach.
	 
	 	 
	12.4

	 	Subject to clause 12.3 above, the respective remedies of the Parties
in terms of this clause 12 shall not be exhaustive and shall be in addition and without prejudice to
any other remedies they may have under or in consequence of this Agreement.
	 
	 	 
	13.

	 	INDIVISIBILITY
	 
	 	 
	13.1

	 	This Agreement
	 
	 	 
	

	 	This Agreement and the various transactions in it shall be one indivisible
agreement.
	 
	 	 
	13.2

	 	The Merger Transactions
	 
	 	 
	

	 	All of the Merger Transactions shall together form one indivisible
transaction so that if any one of the other Merger Transactions fails to take effect or is cancelled,
rescinded or otherwise falls away for any reason, then either Party shall be entitled to cancel the
whole of this Agreement by written notice given to that effect.
	 
	 	 
	14.

	 	CONFIDENTIALITY
	 
	 	 
	14.1

	 	Announcements
	 
	 	 
	

	 	Neither Party shall publish any announcement of this transaction through
any of the media until the other shall have approved in writing the proposed announcement (which
approval shall not be unreasonably withheld or delayed). Either Party may, however, publish
such announcement (without such approval) if required to do so by law or by any securities
exchange or regulatory or governmental body to which it is subject, wherever situated; provided
only that such Party shall consult the other Party before publishing the announcement and shall
provide the other Party with a copy of the announcement prior to such publication.







Page 20












 






	 	 	 
	14.2

	 	Confidentiality
	 
	 	 
	

	 	All information or documents which may be made available to either Party
by the other for the purposes of this Agreement, whether before or after the Signature Date,
shall be kept in the strictest confidence by the receiving Party.







15. GENERAL




	 	 	 
	15.1

	 	Communications between the Parties
	 
	 	 
	

	 	All notices, demands and other oral or written communications given or
made by or on behalf of either Party to the other Party shall be in English or accompanied by
a certified translation into English.
	 
	 	 
	15.2

	 	Remedies
	 
	 	 
	

	 	Subject to clause 12.3 above, 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
either of the Parties shall not constitute a waiver by such Party of the right to pursue any other
remedy.
	 
	 	 
	15.3

	 	Severance
	 
	 	 
	

	 	If any provision of this Agreement, which is not material to its
efficacy as a whole, 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.







Page 21












 






	 	 	 
	15.4

	 	Entire Agreement
	 
	 	 
	15.4.1

	 	This Agreement (including the Appendices) constitutes the entire agreement
between the Parties in regard to its subject matter.
	 
	 	 
	15.4.2

	 	Neither Party shall have any claim or right of action arising from any undertaking,
 representation or warranty not included in this Agreement or the Appendices.
	 
	 	 
	15.5

	 	Variations
	 
	 	 
	

	 	No agreement to vary, add to or cancel this Agreement shall be of any force or effect unless
recorded in writing and signed by or on behalf of both of the Parties.
	 
	 	 
	15.6

	 	Assignment
	 
	 	 
	

	 	Neither Party may cede any of its rights or delegate any of its obligations under this Agreement.
	 
	 	 
	15.7

	 	General Co-operation
	 
	 	 
	

	 	The Parties shall co-operate with each other and execute and deliver to each other 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.
	 
	 	 
	15.8

	 	Counterparts
	 
	 	 
	

	 	This Agreement may be signed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. Either Party may enter into this Agreement by signing
any such counterpart.







Page 22












 






	 	 	 
	15.9

	 	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 South Africa.







16. DISPUTE RESOLUTION




	 	 	 
	16.1

	 	AFSA Arbitration
	 
	 	 
	

	 	in the event of there being any dispute or difference between the Parties
arising out of this Agreement, or in connection with it, or regarding its
interpretation, validity, execution, implementation, termination or cancellation, the said dispute or
difference shall on written demand by either Party to the dispute be submitted to arbitration in
Johannesburg in accordance with the rules of the Arbitration Foundation of Southern
Africa (“AFSA”).
	 
	 	 
	16.2

	 	Appeals
	 
	 	 
	

	 	Any Party to the arbitration may appeal the decision of the arbitrator or
arbitrators in terms of
the Rules of AFSA.
	 
	 	 
	16.3

	 	Court Relief
	 
	 	 
	

	 	Nothing herein contained shall be deemed to prevent or prohibit a Party to
the arbitration from applying to the appropriate court for urgent relief.
	 
	 	 
	16.4

	 	Proceedings in Camera
	 
	 	 
	

	 	Any arbitration in terms of this clause 16 shall be conducted in camera
and the Parties shall treat as confidential and not disclose to any third party details of the
dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of
the arbitration, without the written consent of all the Parties thereto.







Page 23












 






	 	 	 
	16.5

	 	Survival Beyond Termination or Cancellation
	 
	 	 
	

	 	The provisions of this clause 16 shall remain binding upon the Parties
notwithstanding any termination or cancellation of this Agreement for any reason whatsoever.
	 
	 	 
	16.6

	 	Prescription
	 
	 	 
	

	 	The Parties agree that the written demand by any Party to the dispute in
terms of clause 16.1 that the dispute or difference be submitted to arbitration, is to be
deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the
Prescription Act, No. 68 of 1969.







	 	 	 
	17.

	 	ADDRESSES FOR LEGAL PROCESS AND NOTICES
	 
	 	 
	17.1

	 	The Parties choose for the purposes of this Agreement the following
addresses and telefax numbers:







	 	 	 	 	 
	17.1.1

	 	ARMI
	 	ARM House

29 Impala Road

Chislehurston

Telefax No: (011)883-5609
	 
	 	 	 	 
	17.1.2

	 	Avmin
	 	56 Main Street

Johannesburg

Telefax No. (011) 634-0502







	 	 	 
	17.2

	 	Any legal process to be served on either Party may be served on it at
the physical address specified for it in clause 17.1 and it chooses that address as its
domicilium citandi et executandi for all purposes under this Agreement.
	 
	 	 
	17.3

	 	Any notice or other communication to be given to either Party 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.







Page 24












 






	 	 	 
	17.4

	 	A notice to either Party which is correctly addressed and delivered
to the Party by hand at the physical address specified for it in clause 17.1 shall be deemed to have
been received on the day of delivery, provided it was delivered to a responsible person
during ordinary business hours.
	 
	 	 
	17.5

	 	Each notice by telefax to a Party at the telefax number specified for
it in clause 17.1 shall be deemed to have been received (unless the contrary is proved) within 4
(four) hours of transmission if it is transmitted during normal business hours of the
receiving Party or within 4 (four) hours of the beginning of the next Business Day after it is
transmitted, if it is transmitted outside those business hours.
	 
	 	 
	17.6

	 	Notwithstanding anything to the contrary in this clause
17, a written notice or other communication actually received by either 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.
	 
	 	 
	17.7

	 	Either Party may by written notice to the other Party change its
physical address or telefax number for the purposes of clause 17.1 to any other physical address or
telefax number provided that the change shall become effective on the 7th (seventh) day
after the receipt of the notice.







18. COSTS




	 	 	 
	18.1

	 	Costs of this Agreement
	 
	 	 
	

	 	Each Party shall pay its own costs incurred by it to its attorneys and
other professional advisers for the preparation and signing of this Agreement and its Appendices.
	 
	 	 
	18.2

	 	Issue Duty
	 
	 	 
	

	 	Any stamp duties and uncertificated securities tax payable in connection
with the allotment and issue of the New Avmin Shares and the transfer of the ARMI Harmony
Shares shall be borne and paid by Avmin.







Page 25












 






	 	 	 
	18.3

	 	Filing Fee for Competition Commission
	 
	 

	 	The cost of the filing fee which
will be payable, for the notification of and submissions for the
Merger Transactions, to be filed with the Competition Commission in
terms of the Competition
Act, 1998 shall be borne by the Parties equally with Harmony in accordance with the separate
arrangement made between the Parties and Harmony.







     SIGNED at SANDTON on 16 February 2004.


	 	 	 	 	 
	For: 	AFRICAN RAINBOW MINERALS &

EXPLORATION INVESTMENTS

(PROPRIETARY) LIMITED

 	 
	 	

 	 
	 	who warrants that he is authorised 	 
	 	 	 
	 





     SIGNED at SANDTON on 16 February 2004.


	 	 	 	 	 
	For: 	ANGLOVAAL MINING

LIMITED

 	 
	 	
 	 
	 	Signatory: 	 
	 	Capacity:




Authority: 	 




Page 26












 






	 	 	 	 	 



APPENDIX 1




to the Acquisition and
Disposal Agreement




(Clause 1.1,3)




ARM PLATINUM GROUP’S CORPORATE PARTICULARS




(as at the Signature Date)




	 	 	 	 	 
	1.	 	AFRICAN RAINBOW MINERALS PLATINUM (PROPRIETARY) LIMITED
	 
	 	 	 	 
	1.1

	 	Registered Office
	 	ARM House

Block C

29 Impala Road

Chislehurston

2196
	 
	 	 	 	 
	1.2

	 	Company Number
	 	1999/018332/07
	 
	 	 	 	 
	1.3

	 	Incorporation Date
	 	23 August 1999
	 
	 	 	 	 
	1.4

	 	Authorised Share Capital
	 	R1,000 divided into 1,000 ordinary shares of R1.00 each
	 
	 	 	 	 
	1.5

	 	Issued Share Capital
	 	R1,000 divided into 1,000 ordinary shares of R1.00 each
	 
	 	 	 	 
	1.6

	 	Owner
	 	ARMI
	 
	 	 	 	 
	1.7

	 	Directors
	 	P T Motsepe,

W M Gule,

A J Wilkens,

P Taljaard
	 
	 	 	 	 
	2.	 	ARM MINING CONSORTIUM LIMITED
	 
	 	 	 	 
	2.1

	 	Registered Office
	 	ARM House

Block C

29 Impala Road

Chislehurston

2196
	 
	 	 	 	 
	2.2

	 	Company Number
	 	2001/001997/06
	 
	 	 	 	 
	2.3

	 	Incorporation Date
	 	30 January 2001
	 
	 	 	 	 
	2.4

	 	Authorised Share Capital
	 	R 1,000,000 divided into 50,000,000 ordinary shares of R0.01 each
and 50,000,000 cumulative redeemable, preference shares of R0.01 each







Page 27












 






	 	 	 	 	 
	2.5

	 	Issued Share Capital
	 	R 1.00 divided into 100 ordinary shares of R0.01 each
R500,000 divided into 50,000,000 cumulative redeemable,
convertible preference shares of R0.01 each
	 
	 	 	 	 
	2.6

	 	Owners of the ordinary
shares
	 	83 shares – ARM Platinum
5 shares – Matimatjatji Section 21 Company

12 shares – Mampudima Section 21 Company
	 
	 	 	 	 
	2.7

	 	Owners of the preference
shares
	 	
Industrial Development Corporation of South Africa Limited
	 
	 	 	 	 
	2.8

	 	Directors:
	 	P T Motsepe,

W M Gule,

A J Wilkens,

P Taljaard,

L P le Roux







Page 28












 






APPENDIX 2




to the Acquisition and
Disposal Agreement

(Clause 1.1.29)




MODIKWA FINANCE AGREEMENTS




DOCUMENTS INDEX




Abbreviations




	 	 	 
	“ABSA”

	 	ABSA Bank Limited (acting through its ABSA Corporate and Merchant Bank division)
	 
	 	 
	“ARM”

	 	African Rainbow Minerals (Pty) Limited
	 
	 	 
	“ARM Mining”

	 	ARM Mining Consortium Limited
	 
	 	 
	“ARM Platinum”

	 	African Rainbow Minerals Platinum (Pty) Limited
	 
	 	 
	“ARMI”

	 	African Rainbow Minerals & Exploration Investments (Pty) Limited
	 
	 	 
	“BoE”

	 	BoE Merchant Bank (a division of BoE Bank Limited)
	 
	 	 
	“Citibank"

	 	Citibank N.A.
	 
	 	 
	“IDC”

	 	Industrial Development Corporation of South Africa Limited
	 
	 	 
	“Micawber"

	 	Micawber 237 (Pty) Limited







VOLUME 1
AGREEMENTS




	 	 	 	 	 	 	 
	No.
	 	Document
	 	Parties
	 	Date

	1.

	 	Common Terms Agreement
	 	BoE (Lender)

ABSA

IDC

Citibank

ARM Mining

Micawber

BoE (Facility Agent)
	 	14/03/2002







VOLUME 2
 AGREEMENTS




	 	 	 	 	 	 	 
	No.
	 	Document
	 	Parties
	 	Date

	1.

	 	Senior Debt Facility

Agreement
	 	BoE

ABSA

IDC

ARM Mining
	 	14/03/2002
	 

	 	
 
	 	 
	 	 
	2.

	 	Junior Debt Facility

Agreement
	 	BoE

ABSA

IOC

ARM Mining
	 	14/03/2002
	 

	 	
 
	 	 
	 	 
	3.

	 	Standby Debt Facility

Agreement
	 	BoE

ABSA

IDC

ARM Mining
	 	14/03/2002
	 

	 	
 
	 	 
	 	 
	4.

	 	Counter Indemnity
	 	ARM Mining

Micawber

BoE (Facility Agent)
	 	14/03/2002








Page 29













 





	 	 	 	 	 	 	 
	No.
	 	Document
	 	Parties
	 	Date

	5.

	 	Intercreditor Agreement
	 	BoE (Lender)
	 	14/03/2002
	

	 	 	 	ABSA	 	 
	

	 	 	 	IDC	 	 
	

	 	 	 	Micawber	 	 
	

	 	 	 	BoE (Facility Agent)	 	 
	 
	 	 	 	 	 	 
	6.

	 	Account Bank Undertaking
	 	BoE (Account Bank)
	 	14/03/2002
	

	 	 	 	ARM Mining	 	 
	

	 	 	 	ABSA	 	 
	

	 	 	 	BoE (Lender)	 	 
	

	 	 	 	Citibank	 	 
	

	 	 	 	IDC	 	 
	

	 	 	 	BoE	 	 
	

	 	 	 	Micawber	 	 
	 
	 	 	 	 	 	 
	7.

	 	General Banking Facility
	 	ABSA
	 	14/03/2002
	

	 	Agreement
	 	ARM	 	 
	 
	 	 	 	 	 	 
	8.

	 	Subordination Agreement
	 	ABSA	 	 
	

	 	 	 	BoE (Lender)	 	 
	

	 	 	 	Citibank	 	 
	

	 	 	 	IDC	 	 
	

	 	 	 	ARM Platinum	 	 
	

	 	 	 	ARM	 	 







VOLUME 3
AGREEMENTS



	 	 	 	 	 	 	 
	No.
	 	Document
	 	Parties
	 	Date

	9.

	 	Sponsor Support Agreement
	 	ARM Platinum
	 	14/03/2002
	

	 	 	 	ARMI	 	 
	

	 	 	 	ARM	 	 
	

	 	 	 	ARM Mining	 	 
	

	 	 	 	BoE (Facility Agent)	 	 
	 
	 	 	 	 	 	 
	10.

	 	Pledge and Cession
	 	ARM Mining
	 	14/03/2002
	

	 	 	 	Micawber	 	 
	 
	 	 	 	 	 	 
	11.

	 	Pledge and Cession in
	 	ARM Mining
	 	14/03/2002
	

	 	Security
	 	Micawber	 	 
	 
	 	 	 	 	 	 
	12.

	 	Pledge and Cession
	 	ARM Platinum
	 	1 4/03/2002
	

	 	 	 	ARM	 	 
	

	 	 	 	Micawber	 	 
	 
	 	 	 	 	 	 
	13.

	 	Pledge and Cession in
	 	ARM Platinum
	 	14/03/2002
	

	 	Security
	 	Micawber	 	 
	 
	 	 	 	 	 	 
	14.

	 	Debt Guarantee
	 	Micawber
	 	14/03/2002
	

	 	 	 	BoE (Facility Agent)	 	 
	 
	 	 	 	 	 	 
	15.

	 	Limited Guarantee
	 	ARM Platinum
	 	14/03/2002
	

	 	 	 	ARM	 	 
	

	 	 	 	Micawber	 	 







Page 30












 






	 	 	 	 	 	 	 
	No.
	 	Document
	 	Parties
	 	Date

	16.

	 	ARM Gold Agreement
	 	BoE (Lender)
	 	14/03/20021
	

	 	 	 	ABSA	 	 
	

	 	 	 	IDC	 	 
	

	 	 	 	Micawber	 	 
	

	 	 	 	BoE (Facility Agent)	 	 
	

	 	 	 	ARM Mining	 	 
	

	 	 	 	ARM Platinum	 	 
	

	 	 	 	ARMI	 	 







SUBORDINATED LOAN DOCUMENTS INDEX




AGREEMENTS




	 	 	 
	Abbreviations
	 	 
	“ABSA”

	 	ABSA Bank Limited (acting through its ABSA Corporate and Merchant Bank division)
	“ARM”

	 	African Rainbow Minerals (Pty) Limited
	“ARM Mining”

	 	ARM Mining Consortium Limited
	“ARMP”

	 	African Rainbow Minerals Platinum (Pty) Limited
	“ARMI”

	 	African Rainbow Minerals & Exploration Investments (Pty) Limited
	“BoE”

	 	BoE Merchant Bank (a division of BoE Bank Limited)
	“Citibank”

	 	Citibank N.A.
	“IDC”

	 	Industrial Development Corporation of South Africa Limited
	“Micawber”

	 	Micawber 237 (Pty) Limited
	“ARM Gold”

	 	African Rainbow Minerals Gold Limited







	 	 	 	 	 	 	 
	No.
	 	Document
	 	Parties
	 	Date

	1.

	 	Subordinated Loan
	 	BoE
	 	18/04/2002
	

	 	Agreement
	 	ARMI	 	 
	

	 	 	 	ARM Mining	 	 
	 
	 	 	 	 	 	 
	2.

	 	Guarantee
	 	ARM Gold
	 	18/04/2002
	

	 	 	 	ARMI	 	 
	

	 	 	 	BoE	 	 
	 
	 	 	 	 	 	 
	3.

	 	Subordination Agreement
	 	BoE
	 	30/04/2002
	

	 	 	 	ABSA	 	 
	

	 	 	 	IDC	 	 
	

	 	 	 	Citibank	 	 
	

	 	 	 	ARM Mining	 	 
	

	 	 	 	ARMI	 	 
	

	 	 	 	ARM Gold	 	 
	 
	 	 	 	 	 	 
	4.

	 	Subordination Agreement
	 	BoE (as Lender and Facility Agent)
	 	30/04/2002
	

	 	 	 	ABSA	 	 
	

	 	 	 	IDC	 	 
	

	 	 	 	Citibank	 	 
	

	 	 	 	ARM Mining	 	 







Page 31












 






	 	 	 	 	 	 	 
	No.
	 	Document
	 	Parties

	 	Date

	5.

	 	Extension Agreement
	 	ARM Mining
	 	30/05/2002
	

	 	 	 	ARMI	 	 
	

	 	 	 	BoE (Facility Agent)	 	 
	 
	 	 	 	 	 	 
	6.

	 	Amendment Agreement
	 	BoE
	 	25/06/2002
	

	 	 	 	ARM Mining	 	 
	

	 	 	 	ARMI	 	 
	 
	 	 	 	 	 	 
	7.

	 	Addendum to the
	 	BoE (as Lender)
	 	26/05/2002
	

	 	Subordination Agreement
	 	ARM Mining	 	 
	

	 	 	 	ABSA	 	 
	

	 	 	 	BoE (Lender)	 	 
	

	 	 	 	Citibank	 	 
	

	 	 	 	IDC	 	 
	

	 	 	 	BoE (as Facility Agent)	 	 
	

	 	 	 	ARMI	 	 
	

	 	 	 	Micawber	 	 
	

	 	 	 	ARMP	 	 
	

	 	 	 	ARM Gold	 	 







DOCUMENTS INDEX




AGREEMENTS




	 	 	 
	Abbreviations
	 	 
	“ARM Mining”

	 	ARM Mining Consortium Limited
	“ARMP”

	 	African Rainbow Minerals Platinum (Pty) Limited
	“IDC”

	 	Industrial Development Corporation of South Africa Limited







	 	 	 	 	 	 	 
	No.
	 	Document
	 	Parties
	 	Date

	1.

	 	Subscription and Preference
	 	IDC
	 	21/05/2002
	

	 	Share Agreement
	 	ARM Mining	 	 
	

	 	 	 	ARMP	 	 
	 
	 	 	 	 	 	 
	2.

	 	Amendment to the
	 	IDC
	 	31/05/2002
	

	 	Subordination and
	 	ARMP	 	 
	

	 	Preference Share Agreement
	 	ARM Mining	 	 
	 
	 	 	 	 	 	 
	3.

	 	Amendment to the
	 	IDC
	 	25/06/2002
	

	 	Subscription and Preference
	 	ARMP	 	 
	

	 	Share Agreement
	 	ARM Mining	 	 







Page 32












 






APPENDIX 3
 to the Acquisition and Disposal Agreement
 (Clause 7.2.3)




FORM OF APPLICATION FOR THE NEW AVMIN SHARES TO BE SUBSCRIBED FOR BY

ARMI




The Secretary

Anglovaal Mining Limited

56 Main Street 

Johannesburg
2001



Dear Sir





Application for 87,750,417 New Ordinary Shares in Avmin



We refer to the Acquisition and Disposal Agreement (the “Agreement”) between
Avmin and ARMI, which was signed on 16 February 2004 and in terms of which ARMI
agreed to subscribe for the New Avmin Shares. Words and expressions defined in
the Agreement, and not defined in this application, shall have the same
meanings in this application as those ascribed to them in the Agreement.



ARMI accordingly hereby applies for:




	(a)	 	81,738,211 of the New Avmin Shares for a subscription price of R50 (fifty
rands) per share, making a total of R4,086,910,550 in all for these shares,
which shall be payable in accordance with the requirements of the Agreement;
and
	 
	(b 	 	6,012,206 of the New Avmin Shares for a subscription consideration
comprising the ARM Platinum Shares, which will be transferred to Avmin in
accordance with the requirements of the Agreement.





Subject to the provisions of the Agreement, this application is irrevocable and
cannot be withdrawn without Avmin’s prior written consent.



ARMI agrees to take all of the New Avmin Shares in terms of the Agreement and
subject to Avmin’s memorandum and articles of association, and it requests
Avmin to allot and issue to it all of the New Avmin Shares pursuant to this
application.



Yours faithfully




	For:	 	 AFRICAN RAINBOW MINERALS & EXPLORATION INVESTMENTS (PROPRIETARY) LIMITED





	 
	


	 

	Signatory:

	Capacity:

	Authority:








Page 33












 






APPENDIX 4
 to the Acquisition and Disposal Agreement
 (Clause 7.2.4}




FORM OF ARMI’S IRREVOCABLE INSTRUCTION TO ITS CSDP




TO: [ • ]




Dear Sir





Instruction to Transfer 35,002,396 Harmony Shares against receipt of
consideration




	1.	 	African Rainbow Minerals & Exploration Investments (Proprietary) Limited
(“ARMI”), Anglovaal Mining Limited (“Avmin”) and Harmony Gold Mining
Company Limited (“Harmony”) have entered into certain indivisible
agreements (the “Merger Agreements”), one of which is an agreement between
ARMI and Avmin {the “ARMI Agreement”).
	 
	2.	 	In terms of separate transactions, entered into pursuant to the ARMI
Agreement:






	2.1	 	ARMI is obliged to transfer to Avmin 35,002,396 ordinary shares of R0.50
each in Harmony; and
	 
	2.2	 	Avmin is obliged to allot and issue to ARMI 87,750,417 new ordinary shares
of R0.05 each in Avmin.






	3.	 	Those two transactions have to be effected, one against the other and
both against the completion of certain other matters (the “completion
matters”) arising out of the Merger Agreements.
	 
	4.	 	We hereby instruct you irrevocably and unconditionally, but subject to
receipt of a final confirmation in accordance with paragraph 5 below, to
effect on the first business day after receipt of such final written
confirmation and at the same time the two transactions referred to in
paragraph 2 above, by:




Page 34













 












	4.1	 	debiting ARMi’s account with yourselves with the 35,002,396 shares in
Harmony and arranging for Avmin’s account with its’ CSDP, Computershare
Custodial Services; Limited, “to be credited with those shares, at the same
time: and
	 
	4.2	 	accepting for the credit of ARMI’s account with
yourselves a total of the 87,750,417 new Avmin shares which are to be allotted and
issued by Avmin to ARMI.






	5.	 	Notwithstanding anything to the contrary in this instruction, you are to
give effect to it only upon receipt of a final written confirmation signed
by ARMI, Harmony and Avmin to the effect that all of the completion
matters have been completed and that you may accordingly proceed.





Yours faithfully





	For: 	 	AFRICAN RAINBOW MINERALS & EXPLORATION INVESTMENTS (PROPRIETARY) LIMITED





	 
	


	 

	Signatory:

	Capacity:

	Authority:








We, [ • ] acknowledge receipt of the above instruction and confirm that we
will give effect to it upon receipt of the final written confirmation referred
to in paragraph 5 above.



	 	 	 	 	 	 	 
	SIGNED AT

	 	ON
	 	 	2004.	 







For: [ • ]




	 
	


	 

	Signatory:

	Capacity:

	Authority:








Page 35












 






APPENDIX 5
 to the Acquisition and Disposal Agreement
 (Clause 7.3.2)




FORM OF AVMIN’S IRREVOCABLE INSTRUCTIONS TO ITS TRANSFER SECRETARIES




TO: [Computershare Limited]




Dear Sir




Instruction to Allot and
Issue 87,750,417 Avmin Shares Against Receipt of Consideration





	1	 	African Rainbow Minerals & Exploration Investments (Proprietary) Limited
(“ARMI”), Anglovaal Mining Limited (“Avmin”) and Harmony Gold Mining
Company Limited (“Harmony”) have entered into certain indivisible
agreements (the “Merger Agreements”), one of which is an agreement between
ARMI and Avmin (the “ARMI Agreement”).
	 
	2.	 	In terms of the ARMI Agreement Avmin is obliged to allot and issue to
ARMI 87,750,417 new ordinary shares of R0.05 each in Avmin.
	 
	3.	 	That transaction has to be effected against the completion of certain
other matters (the “completion matters”), which arise out of all the
Merger Agreements.
	 
	4	 	We hereby instruct you irrevocably and unconditionally, but subject to
receipt of a final confirmation in accordance with paragraph 5 below, to
give effect to that allotment and issue on the first business day after
receipt of such final written confirmation and by giving appropriate
instructions to STRATE Limited, and ensuring that those instructions are
carried into effect. ARMI’s CSDP for this transaction is Nedcor
Securities.
	 
	5.	 	Notwithstanding anything to the contrary in this instruction, you are to
give effect to it only upon receipt of a final written confirmation signed
by ARMI, Harmony and Avmin to the effect that all the completion matters
have been completed and that you may accordingly proceed.




Page 36












 











Yours faithfully




For: ANGLOVAAL MINING LIMITED




	 
	


	 

	Signatory:

	Capacity:

	Authority








We, Computershare Limited acknowledge receipt of the above instruction and
confirm that we will give effect to it upon receipt of the final written
confirmation referred to in paragraph 5 above.



	 	 	 	 	 	 	 
	SIGNED AT

	 	ON
	 	 	2004.	 







For: COMPUTERSHARE LIMITED




	 
	


	 

	Signatory:

	Capacity:

	Authority:








Page 37












 






APPENDIX 6
 to the Acquisition and Disposal Agreement
 (Clause 9)




WARRANTIES AND UNDERTAKINGS





	1.	 	DEFINITIONS
	 
	1.1	 	For the purposes of this Appendix, unless the context requires otherwise:






	1.1.1	 	“the Agreement” means the Acquisition and Disposal Agreement to which
this Appendix is attached and of which it forms part;
	 
	1.1.2	 	“Disclosure Schedule” means the Disclosure Schedule attached as Annex 1
to this Appendix;
	 
	1.1.3	 	“Disclosure Documents” means the books, records and documents referred to
in clause 2.3 below;
	 
	1.1.4	 	“Modikwa Business” mean the business of the Modikwa JV together with its
assets;
	 
	1.1.5	 	“Modikwa Platinum” means Modikwa Platinum Mine (Proprietary) Limited, a
private company incorporated in South Africa under Registration No. 1956/003246/07;
	 
	1.1.6	 	“Properties” means (a) the farm Hendriksplaats 281, Registration Division
KT, Mpumalanga Province, measuring 2910,0489 hectares (excluding the rights to
minerals thereto) held under Title Deed 14449/2001; (b) Portion 1 of the Farm
Onverwacht 292, Registration Division KT, Mpumalanga Province, measuring
770,8788 hectares (excluding the rights to minerals thereto) held under Title
Deed 14449/2001; and (c) the Remaining Extent of the Farm Onverwacht 292,
Registration Division KT, Mpumalanga Province, measuring 2367,5600 hectares
(excluding the rights to minerals thereto) held under Title Deed 14449/2001;
and




Page 38












 






	1.1.7	 	words and expressions defined in the Agreement and not defined in this
Appendix shall have the same meanings in this Appendix as those ascribed to
them by their definitions in the Agreement.






	2.	 	QUALIFICATIONS
	 
	2.1	 	All the warranties and undertakings given by ARMI in this Appendix are
given subject to the other provisions of the Agreement and this Appendix,
including without being limited to, the qualifications and disclosures in the
Disclosure Schedule and the Disclosure Documents.
	 
	2.2	 	It is acknowledged that Avmin and its representatives have conducted a
limited due diligence investigation into the business and affairs of the
Modikwa JV.
	 
	2.3	 	In the course of that due diligence investigation ARMI has disclosed and
made available to Avmin the books, records and documents and other details and
information requested by Avmin, which are identified in the agreed list
attached as Annex 2.
	 
	2.4	 	The Disclosure Documents shall be deemed to constitute disclosure for all
purposes under the warranties and undertakings set out in this Appendix and all
such warranties and undertakings shall be qualified by and subject to the
Disclosure Documents as if such disclosure was recorded against each warranty
in so far as it is relevant to that warranty.
	 
	2.5	 	In ARMI’s considered opinion, there is nothing in any of the Disclosure
Documents referred to in clauses. 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the
list attached as Annex 2 that could adversely affect the Modikwa Business or
the ARM Platinum Group to any material extent.
	 
	3.	 	WARRANTIES AND UNDERTAKINGS AT THE SIGNATURE DATE AND THE CLOSING DATE
	 
	3.1	 	ARMI gives the following warranties and undertakings to Avmin for each of
the two companies in the ARM Platinum Group (save as otherwise provided) on the
basis that, save as otherwise provided, each warranty applies as at the
Signature Date and as at the Closing Date:




Page 39












 












	3.1.1	 	ARM Platinum is incorporated as a private company with limited liability
according to the laws of South Africa;
	 
	3.1.2	 	ARM Consortium is incorporated as a public company with limited liability
according to the laws of South Africa;
	 
	3.1.3	 	no steps have been taken or are pending for the deregistration of either
company whether under section 73 of the Companies Act or otherwise, and no
steps have been taken or are pending to wind up either company or place it
under judicial management, whether provisionally or finally;
	 
	3.1.4	 	each company’s authorised and issued share capital is as set out in the
corporate particulars specified for it in Appendix 1 to the
Agreement;
	 
	3.1.5	 	all of the issued shares in the capital of ARM Platinum are of one class
and rank pari passu with each other;
	 
	3.1.6	 	no resolution has been passed by either company nor is either company
obliged to increase or reduce, its authorised or issued share capital or to
vary any of the rights attaching to its issued shares;
	 
	3.1.7	 	no person has any right to obtain an order for the rectification of the
register of members of either company, and the register of members of each
company contains a true and accurate record of the members of the company;
	 
	3.1.8	 	no resolution has been passed nor is either company obliged to alter its
memorandum of association or articles of association or to create or issue any
debentures;
	 
	3.1.9	 	no person is entitled to participate in or to a commission on the profits
or dividends of either company other than as a shareholder in respect of
dividends;




Page 40












 






	3.1.10	 	no shares in the issued share capital of either company are bonus or
capitalisation shares:
	 
	3.1.11	 	ARMI is the sole beneficial owner of the ARMI Assets and is entitled and
able to transfer to Avmin free and unencumbered ownership of them:
	 
	3.1.12	 	the ARMI Harmony Shares constitute the entire shareholding, direct and
indirect, of ARMI itself and the ARM Platinum Group in Harmony;
	 
	3.1.13	 	at the Closing Date, ARM Platinum will be the owner of 83% (eighty three
per cent), Mampudima Section 21 Company will be the owner of 12% (twelve per
cent) and Matimatjatji Section 21 Company will be the owner of 5% (five per
cent), of the issued share capital of ARM Consortium;
	 
	3.1.14	 	no person has any right (including any option, pre-emptive right or
right of first refusal) to acquire any unissued shares in the capital of either
company, now or in the future;
	 
	3.1.15	 	at the Signature Date, ARMI will have held the ARM Platinum Shares for a
period of at least 18 (eighteen) months;
	 
	3.1.16	 	no person has any right (including any option, pre-emptive right or
right of first refusal) to acquire any of the ARMI Assets or any of the issued
shares of ARM Consortium, now or in the future; and
	 
	3.1.17	 	the audited financial statements of each company for the 18 (eighteen)
months ended 30 June 2003 have been prepared and drawn up:






	3.1.17.1	 	except to the extent stated in them, on the basis of accounting
policies consistent with prior years; and
	 
	3.1.17.2	 	to fairly present, in all material respects, the financial position of
the company in question at 30 June 2003, and the result of its operations and
cash flows for the period then ended, in accordance with Statements of
Generally Accepted Accounting Practice in South Africa, and in the manner
required by the Companies Act;




Page 41












 






	3.1.18	 	as at 31 December 2003, the outstanding balance of the ARM
Consortium Debt was R549,218,403.28.






	3.2	 	ARMI gives the following warranties and undertakings to Avmin in respect of
the Modikwa JV on the basis that, save as otherwise provided, each warranty
applies as at the Signature Date and as at the Closing Date:






	3.2.1	 	the Modikwa JV Agreement is valid and binding in accordance with its
terms;
	 
	3.2.2	 	ARM Consortium and Rustenburg Platinum have complied in all material
respects with their obligations under the Modikwa JV Agreement and no notice
has been delivered to ARM Consortium or Rustenburg Platinum requiring it to
remedy any alleged breach of that agreement nor, to ARMI’s knowledge or belief,
are there any circumstances that exist which might give rise to any alleged
breach of that agreement by ARM Consortium or Rustenburg Platinum;
	 
	3.2.3	 	the Modikwa Business is owned by ARM Consortium and Rustenburg Platinum
in accordance with and subject to the provisions of the Modikwa JV Agreement
	 
	3.2.4	 	at the Signature Date, none of the assets of the Modikwa Business are
subject to any pledge or other hypothecation, attachment, lien or other
encumbrance;
	 
	3.2.5	 	at the Signature Date, the assets of the Modikwa Business comprise at
least those assets listed in the Asset Register, one of the Disclosure
Documents, except for those assets which may have been disposed of, lost,
destroyed or written-off in the ordinary course of the Modikwa Business;
	 
	3.2.6	 	no person has any right (including an option or right of first refusal)
to acquire ARM Consortium’s share or interest in the Modikwa JV, now or in the
future;
	 
	3.2.7	 	at the Signature Date, neither ARM Consortium nor to ARMI’s knowledge or
belief, Rustenburg Platinum, is involved in any dispute or legal proceedings in
respect of the affairs of the Modikwa Business which could adversely affect the
Modikwa Business to any material extent, and ARMI is not aware of any facts
which could lead to any such legal proceedings being instituted after that
date;




Page 42












 






	3.2.8	 	at the Signature Date, none of the assets of the Modikwa Business are
subject to any material extent to any order, writ, interdict or other decree of
any court or any regulatory body;
	 
	3.2.9	 	to ARMI’s knowledge or belief after having made reasonable enquiries, all
material licences, authorisations, orders, consents, permissions and approvals
required for the conduct of the Modikwa Business are held by ARM Consortium
and/or Rustenburg Platinum, and no material breach of any such licence,
authorisation, order, consent, permission or approval has been committed by
them;
	 
	3.2.10	 	at the Signature Date, ARMI is not aware of any investigation or enquiry
(pending, threatened or in existence) by or on behalf of any governmental or
other body in respect of the affairs of the Modikwa Business or its assets
which could affect the Modikwa Business to any material extent;
	 
	3.2.11	 	neither ARM Consortium nor to ARMI’s knowledge or belief, Rustenburg
Platinum, is a party to any contract in relation to the Modikwa Business which
is unusual or abnormal in relation to a mining business of the nature similar
to that of the Modikwa Business;
	 
	3.2.12	 	neither ARM Consortium nor to ARMI’s knowledge or belief, Rustenburg
Platinum, has committed any material breach of any material contract entered
into by either or both of them in the ordinary and normal course of business in
relation to the Modikwa Business, and no notice has been delivered to ARM
Consortium and/or Rustenburg Platinum prior to the Signature
Date requiring them to remedy any alleged breach of any such
contract;
	 
	3.2.13	 	Modikwa Platinum is the registered owner of the Properties;
	 
	3.2.14	 	the whole of the issued share capital of Modikwa Platinum is owned by
Rustenburg Platinum and ARM Consortium in equal shares;




Page 43












 






	3.2.15	 	to ARMI’s knowledge or belief after having made reasonable enquiries,
the Properties are not subject to any servitudes or other restrictive
conditions which could adversely affect the Modikwa Business to a material
extent, and there is no contract, arrangement or agreement whereunder any
person has any right to call upon Modikwa Platinum to grant a servitude or
similar right (whether registerable or not) which could adversely affect the
Properties or the Modikwa Business to any material extent or to pass in its
favour a mortgage bond over such properties;
	 
	3.2.16	 	the Properties are not subject to any expropriation order nor, to ARMI’s
knowledge or belief, is any expropriation threatened against the Properties;
	 
	3.2.17	 	no person has any right of any nature whatsoever to claim or be in
occupation of the Properties;
	 
	3.2.18	 	neither ARM Consortium nor to ARMI’s knowledge or belief, Rustenburg
Platinum, has committed a material breach of any of the provisions of the title
deeds or any servitude or restrictive condition affecting the Properties and
ARM Consortium and to ARMI’s knowledge or belief, Rustenburg
Platinum, have complied in all material respects with all
material by-laws and regulations in connection therewith;
	 
	3.2.19	 	to ARMI’s knowledge or belief, no claims have been brought by any person
or community in terms of the Restitution of Land Rights Act, 22 of 1994 in
respect of the land prospected or mined by the Modikwa JV and no persons have
any rights in terms of the Land Reform (Labour Tenants) Act 3 of 1996 or the
Extension of Security of Tenure Act 62 of 1997 in respect of any such land;
	 
	3.2.20	 	ARMI is not aware of any existing facts or circumstances that are likely
to result in any material environmental claims of any nature whatsoever being
brought against ARM Consortium and/or ARM Platinum, or any material future
rehabilitation for which either of them may be liable, for the Modikwa
Business, and adequate provision has been made by ARM Consortium and ARM
Platinum for such claims and rehabilitation, present and future, in accordance
with the requirements of the relevant regulatory authorities having
jurisdiction and the South African Revenue Services; and




Page 44












 






	3.2.21	 	as at 31 December 2003, the outstanding amount owed by ARM Consortium
under the Modikwa Finance Agreements was R691,237,725.86, and the outstanding
capital amount owed by ARM Consortium under the BoE Loan Agreement
was R40,000,000, and between 31 December 2003 and the Signature Date no further loans were
made to ARM Consortium from third party financiers.






	4.  	 	WARRANTIES FOR THE PERIOD BETWEEN 1 JULY 2003 AND THE SIGNATURE DATE
	 
	 	 	ARMI gives the following warranties and undertaking to Avmin for ARM
Platinum and ARM Consortium for the period between 1 July 2003 and the
Signature Date:
	 
	4.1	 	neither company has sold or disposed of or entered into any agreement for
the sale or disposal of any of its assets other than in the normal and regular
course of its business;
	 
	4.2	 	neither company has incurred any liabilities (including contingent
liabilities) or undertaken any commitments or entered into any other
transaction other than in the ordinary and regular course of its business, and
no material liabilities have been incurred by either company in the ordinary
course of its business which have not been disclosed;
	 
	4.3	 	the business of each company has been conducted in the ordinary and regular
course; and
	 
	4.4	 	all material liabilities incurred by ARM Consortium and/or Rustenburg
Platinum in respect of the Modikwa Business have been discharged by ARM
Consortium and/or to ARMI’s knowledge or belief, by Rustenburg Platinum, as and
when they fell due in the ordinary course of business.




Page 45












 






	5.  	 	WARRANTIES FOR THE PERIOD BETWEEN THE SIGNATURE DATE AND THE CLOSING DATE
	 
	 	 	ARMI gives the following warranties and undertakings to Avmin for ARM
Platinum and ARM Consortium for the period (“the interim period”) between
the Signature Date and the Closing Date:
	 
	5.1	 	neither company will enter into any transaction except in the ordinary and
regular course of its business;
	 
	5.2	 	the business of each company will be conducted in the ordinary and regular
course; and
	 
	5.3	 	all material liabilities incurred by ARM Consortium and/or Rustenburg
Platinum in respect of the Modikwa Business will be discharged by ARM
Consortium and/or in ARMI’s belief, by Rustenburg Platinum, as and when they
fall due in the ordinary course of business. ARM
Consortium has approached the lenders under the Modikwa Finance
Agreements and the BoE Loan Agreement to restructure the debt under those
agreements and their response is awaited.
	 
	6.	 	GENERAL DISCLOSURE
	 
	 	 	There are no factual circumstances relating to the affairs of either
company in the ARM Platinum Group which is known to ARMI and has not been
disclosed to Avmin and which, if disclosed to Avmin, might reasonably
have been expected to influence its decision (as a reasonable acquirer)
to acquire the ARMI Assets on the terms contained in the Agreement.




Page 46












 











ANNEX 1

to Appendix 6




DISCLOSURE SCHEDULE





	1.  	 	Ad clauses 3.1.4 and 3.1.6 of Appendix 6
	 
	 	 	In order to ensure that as at the Closing Date the issued shares of ARM
Consortium are held in the proportions set out in clause 3.13 of Appendix
6, and in order to avoid fractions of shares being held by any
shareholder of ARM Consortium, it is anticipated that before the Closing
Date ARM Consortium will increase its issued share capital from 7 (seven)
ordinary shares of R0.01 each to 100 (one hundred) ordinary shares of
R0.01 each.
	 
	2.  	 	Ad clause 3.2.4 of Appendix 6
	 
	 	 	The assets of the Modikwa Business are subject to such pledges,
hypothecations, attachments, liens and other encumbrances as are
contemplated by the Modikwa JV Agreement and the Modikwa Finance
Agreements, including, without in any way being limited to, –
	 
	2.1	 	Mortgage Bond B89892/2003 passed by ARM Consortium in favour of Micawber
237 (Proprietary) Limited over ARM Consortium’s undivided half share of the
rights to platinum group metals on the farm Winterveldt 293, Registration
Division KT, Mpumalanga Province and the Remaining Extent of the farm
Onverwagt, Registration Division KT, Mpumalanga Province;
	 
	2.2	 	Collateral Special Notarial Bond BN56261/2002 passed by ARM Consortium in
favour of Micawber 237 (Proprietary) Limited over the concentrator plant
situated at the Modikwa Mine, as more fully described in Annexure A to that
bond; and
	 
	2.3	 	General Notarial Bond BN56262/2002 passed by ARM Consortium in favour of
Micawber 237 (Proprietary) Limited over all of the movable assets of ARM
Consortium.
	 
	3.  	 	Ad clause 3.2.7 of Appendix 6
	 
	3.1	 	The Modikwa JV has instituted or is about to institute legal proceedings
against Brandrill Torrex (“BTX”) in the amount of approximately R8,3 million
for damage caused by BTX to equipment of the Modikwa JV in the course of
carrying out a contract. BTX is claiming an amount of approximately R5.5
million for early termination of the contract. ARMI’s technical and legal
advice is to the effect that the claim against BTX is factually well-founded
and the claim by BTX is not good in law.




Page 47












 






	3.2	 	The Modikwa JV is involved in a dispute with Mdendwa Mining & Exploration
(Proprietary) Limited regarding the authorisation granted to the Modikwa JV by
the Department of Mineral and Energy to remove and process precious metals from
an old chrome mine taling dump on the farm Maandagshoek. The estimated value of
the benefits which flow from the exercise of the rights under this
authorisation is approximately R4 million.
	 
	3.3	 	See clause 16 of Annex 2 to Appendix 6 in regard to the potential liability
for damage to local residents’ houses allegedly caused by blasting.
	 
	4.  	 	Ad clauses 3.2.7 and 3.2.16, 3.2.17 and 3.2.19 of Appendix 6
	 
	 	 	To ARMI’s knowledge and belief, the only land claims in respect of the
Properties are those set put in the list attached as Annex 3 to Appendix
6 received from the Commission on Restitution of land Rights on 8 April
2002.
	 
	5.  	 	Ad clause 3.2.9 of Appendix 6
	 
	 	 	Application has been made to the Department of Water Affairs and Forestry
for a Water Users Licence in respect of the Modikwa Mine. The licence is
still pending.
	 
	6.  	 	Ad clause 3.2.15 of Appendix 6
	 
	 	 	In terms of Sale Agreement between Samancor Limited and RPM or its
nominee (“the Sale Agreement”), pursuant to which Modikwa Platinum
acquired the Properties, Samancor Limited reserved the following rights
in respect of the Properties:






	•	 	Infrastructure servitudes relating to its chrome mining operation on the Properties;






	•	 	The Onverwacht Platinum Mine and access road was retained by it for historical importance;






	•	 	Samancor Limited has a right of first refusal in respect of all chrome
ores mined on the Properties.




Page 48












 






	7.  	 	Ad clause 6 of Appendix 5
	 
	7.1	 	The sub-lease to ARM Consortium of the lease between the Lebowa Minerals
Trust and Rustenburg Platinum, required in terms of the Modikwa JV Agreement
and the Modikwa Financing Agreements, has not been finalised as the Ministerial
consent required for such sublease has not yet been granted.
	 
	7.2	 	In terms of a Notarial Mineral Lease K1899/2002RM (“the Driekop Lease”)
concluded between Rustenburg Platinum, the Lebowa Mineral Trust (“the Lessor”)
and Phumzile Mlambo-Ngcuka, in her capacity as the Minister of Minerals and
Energy of the Republic of South Africa (“the Minister”), the Lessor granted to
Rustenburg Platinum the right to dig, mine, quarry, win, remove and for
Rustenburg Platinum’s own account and benefit, dispose of certain minerals,
including among others, platinum group metals (“the Minerals”) in, on or under
a portion of the Farm Driekop 253, measuring 2108,5876 hectares, held under
Cession of Mineral Rights No K2695/1999RM (:;the Leased Area”), upon the terms
and conditions of the Driekop Lease.






	•	 	The Driekop Lease is for an initial period of 25 years but may be renewed
by Rustenburg Platinum for further successive periods of 25 years,
provided that application for renewal is submitted in writing to the
Lessor by no later than 6 (six) months prior to the expiry of the current
period. The Driekop Lease may be terminated by Rustenburg Platinum at any
time on 6 (six) months’ prior written notice to the Lessor.
	 
	•	 	In consideration of the rights granted to Rustenburg Platinum under the
Driekop Lease, Rustenburg Platinum is obliged to pay the following
royalties (which are exclusive of value-added tax) to the Lessor, subject
to a minimum royalty of R343,000 (exclusive of value-added tax) per annum
adjusted annually in accordance with the variation of the Producer Price
Index for mining and quarrying, which variation is determined according to
the formula set out in the Driekop Lease:




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	•	 	annual royalty of 1,5% of the value of the metal content in the Concentrate
(as defined in the Driekop Lease) derived from mining the Leased Area, as
determined in accordance with the provisions of the Driekop Lease:
	 
	•	 	royalty of 1.5% on the revenue received from time to time from the sale of
Ruthenium, Iridium, Cobalt, Osmium and Silver contained in the Concentrate
derived from mining the Leased Area, as determined in accordance with the
provisions of the Driekop Lease. The royalty is payable annually in arrears.






	•	 	The Driekop Lease contains provisions obliging Rustenburg Platinum to
submit business plans to the Lessor and to commence and carry on mining
operations in accordance with those business plans.
	 
	•	 	Rustenburg Platinum may not transfer, cede, sub-let or otherwise dispose
of any of its rights or obligations under the Driekop Lease without the
prior written consent of the Lessor, which consent may not be unreasonably
withheld. Rustenburg Platinum may, however, cede or assign any of its
rights or obligations under the Driekop Lease to any subsidiary, holding
company or associated company provided it gives written notice thereof to
the Lessor. Any sale or alienation of the shares of Rustenburg Platinum or
of its holding company will be regarded as a cession of the Driekop Lease,
provided that this does not apply to the sale or alienation of the shares
of a listed company. Notwithstanding any of the provisions of the Driekop
Lease, the Minerals Act, 1991 or regulations to the contrary, the Lessor
reserves the right to terminate the Driekop Lease forthwith if Rustenburg
Platinum transfers, cedes, assigns, sells, sub-lets or otherwise disposes
of its rights under the Driekop Lease, and no compensation will be payable
by the Lessor in the event of such termination.
	 
	•	 	According to the Driekop Lease, the Minister may grant his/her consent to
the transfer, cession, sale, sub-lease or other disposal of the rights of
Rustenburg Platinum under the Driekop Lease subject to such terms and
conditions as he/she deems necessary. If Rustenburg Platinum should stand
to receive any form of compensation for the transfer, cession, sale,
subletting, mortgage or other disposal of its rights under the Driekop
Lease then the Minister may in his/her discretion determine a proportion
of such compensation to be payable to the Lessor.




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	7.3	 	In terms of a Notarial Mineral Lease K62S4/2002L (“the Maandagshoek Lease”)
concluded between Rustenburg Platinum, the Lebowa Mineral Trust (“the Lessor”)
and Phumzile Mlambo-Ngcuka, in her capacity as the Minister of Minerals and
Energy of the Republic of South Africa (“the Minister), the Lessor granted to
Rustenburg Platinum the right to dig, mine, quarry, win, remove and for
Rustenburg Platinum’s own account and benefit, dispose of certain minerals,
including among others, platinum group metals (“the Minerals”) in, on or under
the portions of the Farm Maandagshoek more fully described in the Maandagshoek
Lease (“the Leased Area”), upon the terms and conditions of the Maandagshoek
Lease.
	 
	•	 	The provisions of the Driekop Lease set out in clause 7.2 above apply
mutatis mutandis to the Maandagshoek Lease, save that the minimum annual
royalty payable under the Maandagshoek Lease is R427,000 (exclusive of
value-added tax).
	 
	8.	 	None of the disclosures made in this Disclosure Schedule shall be
construed as limiting or otherwise detracting from the deemed disclosures
in the Disclosure Documents as provided in clause 2.4 of Appendix 6.




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ANNEX 2

to Appendix 6



DISCLOSURE DOCUMENTS





	1.	 	BoE Loan Agreement
	 
	2.	 	Modikwa JV Agreement, excluding the Draft Agreement for the Sale of
Concentrate as an Addendum.
	 
	3.	 	Modikwa Financing Agreements, Volumes 1, 2 & 3
	 
	4.	 	Draft shareholders Agreement between ARM Platinum, ARM Consortium and
others
	 
	5.	 	Modikwa Mineral Resource and Mineral Reserve Statement dated September
2003.
	 
	6.	 	EMPR submission complied by Metago dated September 2000
	 
	7.	 	EMPR amendment dated May 2001
	 
	8.	 	EMPR amendment for the inclusion of the Surface Winze Project dated
August 2002
	 
	9.	 	EMPR amendment for the Extension of the Surface Infrastructure at the
Hill Mining Operation dated February 2003
	 
	10	 	EMPR amendment for the Maandagshoek Winzes dated April 2003
	 
	11.	 	EMPR addendum for Prospecting Purposes dated June 2003
	 
	12.	 	EMPR amendment for the reclamation of a small dump dated September 2003
	 
	13.	 	Submission to DWAF for the application of a Water Users
Licence File No. 1 & 2
	 
	14.	 	Document containing:






	 	•	 	Summary of the Modikwa Insurance Policy
	 
	 	•	 	Asset Register
	 
	 	•	 	Mining Licence No. 9/2002
	 
	 	•	 	Financial Guarantee for the Rehabilitation of Land Distributed by
Mining in favour of The Director – Mineral Development, Limpopo
Province




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	15	 	File containing all relevant information, background to and sequence of
events relating to the Banareng Tribal Authority claim for compensation
from the Modikwa JV for the access to and use by the Modikwa JV of the
land around the Maandagshoek Winze.
	 
	16.	 	Document containing all relevant information, background to and the
sequence of events relating to the claim initiated by Mabelane against the
Modikwa JV for compensation for the damage (cracked building) caused by
erecting a fence around a community cemetery, and Inspection report on cracked
housing in the vicinity of the Modikwa Mine. A local court has awarded damages
of R25,000 to Mabelane. The Modikwa JV has appealed against this decision.
Should the appeal fail and the award be upheld, there is the possibility of
several hundred local residents being prompted by this award and relying on it
as a precedent for bringing claims against the Modikwa JV for damage to their
houses allegedly caused by blasting. The estimated aggregate damages could be
considerable.
	 
	17.	 	Audited annual finance statements:






	 	•	 	ARM Platinum as at and for the period of 18 months ended 30 June 2003
	 
	 	•	 	ARM Consortium as at and for the period of 18 months ended 30 June 2003




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APPENDIX 7
 to the Acquisition and Disposal Agreement
 (Clause 7.2.2)




CESSION OF THE ARM CONSORTIUM DEBT



BY


AFRICAN RAINBOW MINERALS & EXPLORATION INVESTMENTS (PROPRIETARY) LIMITED



(a private company incorporated in accordance with the laws of South Africa
under Registration No. 1997/020158/07 with its principal office at ARM House,
29 Impala Road, Chislehurston, 2146, South Africa)



(“ARMI”)




to



ANGLOVAAL MINING LIMITED



(a public company incorporated in accordance with the laws of South Africa
under Registration No. 1933/004580/06 with its principal office at 56 Main
Street, Johannesburg, 2001, South Africa) 
(“Avmin”)



WHEREAS




	A.	 	ARMI and Avmin entered into an Acquisition and Disposal Agreement on 16
February 2004 (“the Agreement”) in terms of which Avmin has agreed, among other
matters, to purchase the ARM Consortium Debt from ARMI for R549,218,403.
	 
	B.	 	Pursuant to that agreement ARMI is required to cede the ARM Consortium Debt
to Avmin in accordance with and subject to the terms and conditions of the
Agreement.




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THE PARTIES ACCORDINGLY AGREE THAT





	1.	 	INTERPRETATION
	 
	 	 	Words and expressions defined in the Agreement, and not defined in this
cession, shall have the same meanings in this cession (including in the
preamble above) as those ascribed to them in the Agreement.
	 
	2.	 	CESSION
	 
	 	 	ARMI hereby cedes the ARM Consortium Debt to Avmin, and Avmin hereby
accepts that cession, with effect from the Closing Date and in accordance
with and subject to the terms and conditions of the Agreement.





	 	 	 	 	 	 	 
	SIGNED AT

	 	on
	 	 	2004.	 







	 	 	 	 	 
	 

	 	For:
	 	AFRICAN RAINBOW MINERALS &
	

	 	 	 	EXPLORATION INVESTMENTS
	

	 	 	 	(PROPRIETARY) LIMITED







	 	 	 
	 

	 	

	

	 	Signatory:
	

	 	Capacity:
	

	 	Authority:







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	SIGNED AT

	 	on
	 	 	2004.	 







	 	 	 	 	 
	 

	 	For:
	 	ANGLOVAAL MINING LIMITED







	 	 	 
	 
	 	 
	

	 	
	

	 	Signatory:
	

	 	Capacity:
	

	 	Authority:





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