RIGHT OF PRE-EMPTION AND DEED OF ADHERENCE
between
NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CAPITAL DIVISION)
and
HARMONY GOLD MINING COMPANY LIMITED
and
AFRICAN RAINBOW MINERALS & EXPLORATION
INVESTMENTS (PROPRIETARY) LIMITED
and
ARMGOLD HARMONY JOINT INVESTMENT COMPANY
(PROPRIETARY) LIMITED
NOTARIAL CERTIFICATE
I, THE UNDERSIGNED,
XXXX XXXXXX XXXX
OF SANDTON IN THE GAUTENG PROVINCE OF THE REPUBLIC OF SOUTH AFRICA, NOTARY
PUBLIC BY LAWFUL AUTHORITY DULY ADMITTED AND SWORN, DO HEREBY CERTIFY AND ATTEST
UNTO ALL WHOM IT MAY CONCERN THAT I HAVE THIS DAY COLLATED AND COMPARED WITH THE
ORIGINAL THEREOF, THE COPY HERETO ANNEXED MARKED "A", BEING:
"A" RIGHT OF PRE-EMPTION AND DEED OF ADHERENCE BETWEEN NEDBANK LIMITED (ACTING
THROUGH ITS NEDBANK CAPITAL DIVISION) AND HARMONY GOLD MINING COMPANY
LIMITED AND AFRICAN RAINBOW MINERALS & EXPLORATION INVESTMENTS
(PROPRIETARY) LIMITED AND ARMGOLD HARMONY JOINT INVESTMENT COMPANY
(PROPRIETARY) LIMITED, DATED 15 APRIL 2005
AND I, THE SAID NOTARY, DO FURTHER CERTIFY AND ATTEST THAT THE SAME IS A TRUE
AND FAITHFUL COPY OF THE SAID ORIGINAL AND AGREES THEREWITH IN EVERY RESPECT. AN
ACT WHEREOF BEING REQUIRED, I HAVE GRANTED THESE PRESENTS UNDER MY NOTARIAL FORM
AND SEAL, TO SERVE AND AVAIL AS OCCASION SHALL OR MAY REQUIRE.
THUS DONE AND SIGNED AT SANDTON AFORESAID ON THIS THE 26TH DAY OF APRIL IN THE
YEAR TWO THOUSAND AND FOUR.
NOTARY PUBLIC
DENEYS XXXXX ATTORNEYS
SANDTON
RIGHT OF PRE-EMPTION AND DEED OF
ADHERENCE
between
NEDBANK LIMITED (acting through its Nedbank Capital division)
(a limited liability public company registered in accordance
with the laws of South
Africa under Registration No. 1951/000009/06)
("NEDBANK")
and
HARMONY GOLD MINING COMPANY LIMITED
(a limited liability public company registered in accordance
with the laws of South
Africa under Registration No. 19501/038232/06)
("HARMONY")
and
AFRICAN RAINBOW MINERALS & EXPLORATION INVESTMENTS
(PROPRIETARY) LIMITED
(a limited liability private company registered in
accordance with the laws of South
Africa under Registration No. 1997/020158/07)
("ARMI")
and
ARMGOLD HARMONY JOINT INVESTMENT COMPANY (PROPRIETARY)
LIMITED
(a limited liability private company registered in accordance with the
laws of South Africa under Registration No. 2002/032163/07, formerly
named Clidet No 454
(Proprietary) Limited)
("AHJIC")
(XXXXXX XXXXXX LOGO)
Attorneys
PAGE 2
WHEREAS -
A. Nedbank, Harmony, Deneys Xxxxx Trustees (Proprietary) Limited and Xxxxx
Xxxxxx are the trustees of the ARM Broad-Based Empowerment Trust, an oral
trust established by oral agreement between them as trustees and Xxxxx
Xxxxxx as founder on 15 April 2005 ("TRUST").
B. AHJIC intends selling 28,614,740 (twenty eight million six hundred and
fourteen thousand seven hundred and forty) ordinary shares ("ARM SHARES")
in the issued share capital of African Rainbow Minerals Limited
(Registration No. 1933/004580/06) ("ARM") to the Trust.
C. The Trust intends entering into an agreement of assignment with Harmony,
AHJIC and ARMI ("AGREEMENT OF ASSIGNMENT"), in terms of which Harmony and
AHJIC's rights and obligations under the voting agreement entered into
between the parties hereto (other than Nedbank) on 16 February 2004
("VOTING AGREEMENT") are assigned to the Trust and certain amendments are
made to the Voting Agreement.
D. In terms of the Voting Agreement as amended by the Agreement of Assignment
("AMENDED VOTING AGREEMENT"), the Trust will be entitled to pledge the ARM
Shares as security, provided that the counter party to the pledge agrees in
writing, as the holder of the pledge and before the pledge takes effect, to
grant to ARMI a right of pre-emption over the ARM Shares, upon terms and
conditions reasonably satisfactory to ARMI.
E. The Trust has agreed to pledge the ARM Shares to Nedbank ("PLEDGE") as
security for all of the Trust's obligations under two loan agreements
entered, or to be entered, into between the Trust and Nedbank, in terms of
which Nedbank had agreed to lend and advance an aggregate amount of
R836,549,124.00 (eight hundred and thirty six
(XXXXXX XXXXXX LOGO)
PAGE 3
million five hundred and forty nine thousand one hundred and twenty four
rands) to the Trust, which amount the Trust will apply in payment of the
purchase price of the ARM Shares to AHJIC and in paying costs in respect
thereof and as contemplated by the documents relating to the purchase of
the ARM Shares.
THE PARTIES ACCORDINGLY AGREE THAT:
1 Nedbank confirms that it has been furnished with a copy of the Agreement of
Assignment and the Voting Agreement.
2 Nedbank agrees that its right, as the pledgee of the ARM Shares in terms of
the Pledge, to exercise all voting rights attaching to the ARM Shares (or
any of them), shall be subject and subordinate to ARMI's prior right to
exercise all those voting rights in terms of the Amended Voting Agreement,
provided that, if Nedbank exercises its right under the Pledge to realise
and dispose of the ARM Shares, or any of them, in any manner permitted by
the Pledge (whether by taking them over in its own name or by any disposal
to anyone else) ARMI's prior right to exercise all the voting rights
attaching to the ARM Shares so realised and disposed of, shall cease with
effect from the completion of the disposal.
3 Nedbank hereby grants to ARMI a right of pre-emption over the ARM Shares on
the same terms and conditions mutatis mutandis as those contained in clause
10 of the Voting Agreement, prior to amendment by the Agreement of
Assignment. The right of pre-emption shall apply during the Lock-up Period
(as defined in the Amended Voting Agreement) only, notwithstanding the fact
that clause 10 of the Voting Agreement applies for a period of 5 (five)
years from the first day after the end of the said Lock-up Period
applicable in terms of the Amended Voting Agreement.
4 ARMI agrees that the terms and conditions of the right of pre-emption
referred to in clause 3 are satisfactory to it and the Pledge will
accordingly
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PAGE 4
comply with the provisions of clause 7.5 of the Amended Voting Agreement.
5 Nedbank hereby undertakes to and in favour of ARMI to observe, perform and
be bound by all the provisions of clause 10 of the Voting Agreement, prior
to amendment by the Agreement of Assignment, but only in respect of the ARM
Shares, and those provisions shall be applied mutatis mutandis as if and on
the assumptions that Nedbank were the Trust and the ARM Shares were the
remaining Controlled Shares (as defined in the Amended Voting Agreement),
so that if Nedbank were to foreclose on the ARM Shares and exercise its
right to realise them, it shall be obliged, before effecting the
realisation, to offer the ARM Shares to ARMI in accordance with those
provisions mutatis mutandis, on the assumptions specified in this clause 5.
6 ARMI acknowledges and agrees that it shall not have any rights in or to any
of the ARM Shares sold to a third party after the provisions of this
document have been fully complied with.
7 This document is supplemental to and shall be read with and be part of the
Amended Voting Agreement and, insofar as it is relevant, the Voting
Agreement, and accordingly all the provisions of the Amended Voting
Agreement which are not expressly referred to in clause 5, but which are
relevant to the provisions that are so referred to, shall apply to this
document mutatis mutandis to the extent that they are relevant and can be
so applied.
8 Without limiting the generality of clause 7, clause 18 of the Voting
Agreement shall apply to this document and for the purposes of any notice
to be given to Nedbank or legal process to be served upon it in accordance
with those provisions, Nedbank chooses the following address and telefax
number:
(XXXXXX XXXXXX LOGO)
PAGE 5
Nedbank 0xx Xxxxx
000 Xxxxxxx Xxxx
Sandown
Telefax No.: x00 00 000 0000
Attention: The Head: Specialised Finance
SIGNED at SANDTON on 15 APRIL 2005.
For and on behalf of
NEDBANK LIMITED (ACTING
THROUGH ITS NEDBANK CAPITAL DIVISION)
/s/ Xxxxx Xxxxx
----------------------------------------
Signature:
Xxxxx Xxxxx
Name of Signatory:
Authorised Signatory
Designation of Signatory:
/s/ Xxxx Xxxxxxxx Xxxxx
----------------------------------------
Signature:
Xxxx Xxxxxxxx Tyler
Name of Signatory:
Authorised Signatory
Designation of Signatory:
(XXXXXX XXXXXX LOGO)
PAGE 6
SIGNED at SANDTON on 15 APRIL 2005.
For and on behalf of
HARMONY GOLD MINING COMPANY LIMITED
/s/ Nomfundo Qangule
----------------------------------------
Signature:
Nomfundo Qangule
Name of Signatory:
Director
Designation of Signatory:
SIGNED at SANDTON on 15 APRIL 2005.
For and on behalf of
AFRICAN RAINBOW MINERALS & EXPLORATION
INVESTMENTS (PROPRIETARY) LIMITED
/s/ Xxxxx Xxxxxx
----------------------------------------
Signature:
Xxxxx Xxxxxx
Name of Signatory:
Duly Authorised
Designation of Signatory:
SIGNED at SANDTON on 15 APRIL 2005.
For and on behalf of
ARMGOLD HARMONY JOINT INVESTMENT COMPANY
(PROPRIETARY) LIMITED
/s/ Xxxxx Xxxxxx
----------------------------------------
Signature:
Xxxxx Xxxxxx
Name of Signatory:
Director
Designation of Signatory:
(XXXXXX XXXXXX LOGO)
