Contract

by Drdgold Limited
April 29th, 2005
EXHIBIT 4.68 AGREEMENT OF EMPLOYMENT BETWEEN DURBAN ROODEPOORT DEEP, LIMITED AND IAN LOUIS MURRAY . . . Page 2 CONTENTS
NO CLAUSE PAGE NO 1 RECORDAL.............................................................................. 3 2 DEFINITIONS........................................................................... 4 3 EMPLOYMENT............................................................................ 6 4 DUTIES................................................................................ 6 5 REMUNERATION PACKAGE.................................................................. 9 6 HOME WORKING AREA, TELEPHONES AND SECURITY............................................ 10 7 BONUS AND INCENTIVES.................................................................. 11 8 LEAVE................................................................................. 15 9 SICK LEAVE AND INCAPACITY............................................................. 15 10 INSURANCE COVER....................................................................... 16 11 BREACH................................................................................ 18 12 RESTRAINT AGREEMENT................................................................... 18 13 DISPUTES.............................................................................. 18 14 APPLICATION OF PROVISIONS OF COMPANY PROCEDURES....................................... 19 15 ELIGIBLE TRANSACTION.................................................................. 19 16 THE RIGHT OF THE EXECUTIVE TO TERMINATE THIS AGREEMENT FOR AN ELIGIBLE TRANSACTION.... 20 17 ELIGIBLE TERMINATION.................................................................. 21 18 BENEFITS PAYABLE FOR AN ELIGIBLE TERMINATION.......................................... 21 19 SHARE OPTION SCHEME PROVISIONS........................................................ 22 20 THE RIGHT OF THE COMPANY TO ASSIGN THIS AGREEMENT..................................... 23 21 DIRECTORSHIPS......................................................................... 23 22 GENERAL............................................................................... 24 23 STATUS OF THIS AGREEMENT.............................................................. 25
APPENDICES: A. A COPY OF THE CURRENT EMPLOYMENT AGREEMENT. B. THE EXECUTIVE'S DUTIES AND RESPONSIBILITIES C. A COPY OF THE RESTRAINT AGREEMENT. Page 3 AGREEMENT OF EMPLOYMENT BETWEEN DURBAN ROODEPOORT DEEP, LIMITED (a company duly incorporated under the Companies Act, 1973, registration number 1901/00926/06) ("the Company") AND IAN LOUIS MURRAY (Identity No. 6608185124009) ("the Executive") 1 RECORDAL 1.1 The Parties record that - 1.1.1 The Executive is employed by the Company as Chief Financial Officer in terms of the Current Employment Agreement, a copy of which is attached to this Agreement as Appendix "A". The parties record that, as from 1 December 2003, the Executive has also been employed as Chief Executive Officer. 1.1.2 The Parties now wish to enter into a new employment agreement to replace the Current Employment Agreement. 1.1.3 The Parties are accordingly replacing the Current Employment Agreement with this Agreement to give effect to CLAUSE 1.1.2 above. 1.2 The Parties further record that the Executive has been appointed as a Director of the Company which appointment shall continue in effect. Page 4 2 DEFINITIONS For the purposes of this Agreement, unless the context indicates otherwise, the Parties defined in the heading of this Agreement shall retain such definitions and the words and expressions set out below shall have the meaning assigned to them, namely: 2.1 "Auditors" means the auditors of the Company for the time being; 2.2 "Board" means the board of directors of the Company for the time being; 2.3 "Business" means the business of the Group of the mining and exploration of gold and other minerals and metals; 2.4 "Closing Date" in relation to an Eligible Transaction, means the date on which the Eligible Transaction; having become wholly unconditional, is actually carried into effect and implemented in accordance with its terms so that the Eligible Transaction ceases to be executory; 2.5 "Code" means the Securities Regulation Code promulgated in terms of section 440(C)(5) of the Companies Act, 1973, as amended from time to time; 2.6 "Commencement Date" means 1 November 2000; 2.7 "Confidential Information" means all information which is of a confidential nature relating to the Group, including without being limited to business plans, trade secrets, financial information, technical information and/or commercial information; 2.8 "Current Employment means the current employment agreement Agreement referred to in CLAUSE 1.1.1 of this Agreement. 2.9 "Documents" means documents of any nature, disks, notebooks, tapes or any other medium, whether or not eye-readable, on which information may be recorded from time to time; Page 5 2.10 "Eligible Termination" means a termination of this Agreement as contemplated in CLAUSE 17; 2.11 "Eligible Transaction" means an "Eligible Transaction" as defined in CLAUSE 15; 2.12 "Engagement Date" means the date on which the Executive commenced his employment with the Company, namely 1 June 1997; 2.13 "Financial Year" means the financial year of the Company as determined by it from time to time; 2.14 "Group" means the Company and all its Subsidiaries; 2.15 "Group Renumeration means the committee of directors of the Committee" Company or of directors of companies within the Group who constitute a committee for the purposes of determining the renumeration of executives employed by companies within the Group; 2.16 "Parties" means the Parties to this Agreement; 2.17 "Remuneration Package" in relation to each year, the aggregate of all amounts payable by the Company to and on behalf of the Executive as is more fully set out in clause 5 and as amended from time to time; 2.18 "Restraint Agreement" means the Restraint of Trade Agreement entered into between the Parties, a copy of which is attached to this Agreement as Appendix C; 2.19 "Share Option Scheme" means the Durban Roodepoort Deep (1996) Share Option Scheme or any other scheme of the same or similar kind in which the Executive is, or may be, an eligible participant; 2.20 "Subsidiary" shall have the meaning assigned to it in the Companies Act, 1973, as amended from time to time; and 2.21 "this Agreement" means this agreement and includes all its Appendices, which shall form part of it. Page 6 3 EMPLOYMENT 3.1 Notwithstanding the provisions of this Agreement or any other agreement entered into between the parties, the employment of the Executive as an employee of the Company shall be deemed to have commenced on the Engagement Date. 3.2 Subject to CLAUSES 9, 11 AND 16, this Agreement shall remain in force for a period of 2 (two) years, which period shall be deemed to have commenced on 1 December 2003. On the expiry of this period this Agreement shall expire automatically. 3.3 On the expiry of this Agreement in terms of CLAUSE 3.2, the Executive shall be paid an amount equal to half his Remuneration Package calculated on the basis of the Remuneration Package payable to the Executive on the date of termination of employment. 3.4 Notwithstanding CLAUSE 3.2, the parties envisage the possibility that this Agreement may be extended for a further period of time, or that a further agreement may be entered into between them in terms of which the Executive shall continue to be employed by the Company. Negotiations for the extension of this Agreement or the entering into of a new agreement shall commence at least 6 (six) months prior to the termination of this agreement as envisaged in CLAUSE 3.2. Should this Agreement be extended or should a further agreement be entered into, the payment referred to in CLAUSE 3.3 shall not be made but shall be made at the termination of the new agreement or on the termination of the extended agreement. 4 DUTIES 4.1 The Executive shall: 4.1.1 carry out such duties and exercise such powers in relation to the Company and the Group as the Board shall from time to time assign to or vest in him, including those set out in Appendix B to this Agreement; Page 7 4.1.2 in the discharge of such duties and in the exercise of such powers referred to in CLAUSE 4.1.1, observe and comply with all resolutions, regulations and directives from time to time made or given by the Board; 4.1.3 use his best endeavours property to conduct, improve, extend, develop, promote, protect and preserve the business interests, reputation and goodwill of the Company and the Group and not do anything which is harmful to it; and 4.1.4 not be in the employment of any other employer other than within the Group. 4.2 It shall be part of the normal duties of the Executive at all times to consider in what manner and by what new methods or devices the products, services, processes, equipment or systems of the Company or Group might be improved, and promptly to give to the company secretary of the Company full details of any invention or improvement which he may from time to time make or discover in the course of his duties, and to further the interests of the Company and the Group in this regard. The Executive acknowledges that any invention or improvement referred to in this CLAUSE 4.2 shall be the property of the Company or the relevant entity within the Group and the Executive shall take all steps as may be necessary and reasonably required by the Company or relevant entity within the Group, at the sole expense of the Company or relevant entity within the Group, to procure that the Company or relevant entity obtains complete and exclusive legal title to any such invention or improvement. 4.3 It is specifically recorded and agreed that due to the changing nature of the Group and the evolving nature of its business interests, it may be necessary to assign duties to the Executive or to re-assign those duties from the Executive to other persons from time to time as well as to add to and delete from the responsibilities of the Executive from time to time. The Parties agree that this flexible work requirement is part of the agreement of employment and amendments as Page 8 envisaged can be made within the terms of this agreement without constituting a breach. 4.4 The Executive shall not, either during his employment with the Company and within the Group or thereafter, use or disclose to any third parties, or attempt to use or to disclose to any third parties any Confidential Information. The Executive shall promptly whenever so requested by the Company and, in any event, upon the termination of his employment with the Company, deliver to the Company, all lists of clients or customers, correspondence and all other Documents, papers and records which may have been prepared by him or have come into his possession in the course of his employment with the Company, and the Executive shall not be entitled to retain any copies thereof. The Executive acknowledges that all title and copyright in the Confidential Information and Documents shall vest in the Company. 4.5 The Executive shall, with immediate effect, take all reasonable steps to recruit and employ a person who is suitable to succeed to the Executive's position as Chief Financial Officer. It is envisaged that this shall be done within a period of 12 (twelve) months from the date of signature of this Agreement. 4.6 At such time as the Executive, after consultation with Mr. Rob Hume or such other person who may have been nominated by the Company, is satisfied that the person so employed is in a position to accept the responsibilities of Chief Financial Officer, and in any event not later than 12 (twelve) months after the appointment of such successor in terms of CLAUSE 4.5, the Executive shall relinquish his duties as Chief Financial Officer. However, he shall continue to perform his duties as Chief Executive Officer. 4.7 On him relinquishing his duties as Chief Financial Officer the Company shall pay the Executive an amount equal to 93 (ninety-three) per cent of his Remuneration Package calculated on the basis of the Remuneration Package received by the Executive on the date that he relinquishes his duties as Chief Financial Officer. Page 9 5 REMUNERATION PACKAGE 5.1 The Executive shall receive an annual all-inclusive Remuneration Package of R1 500 000.00 (one million five hundred thousand rand). The Remuneration Package will be paid in 12 equal monthly instalments. 5.2 The Remuneration Package referred to in CLAUSE 5.1, includes: 5.2.1 all contributions to the Pension or Provident Fund of which the Executive is a member, made in accordance with the relevant rules of the fund in question; 5.2.2 all contributions to the Medical Aid Scheme of which the Executive and his dependants are members; and 5.2.3 all allowances for vehicles, water, electricity, entertainment, subsistence and accommodation to which the Executive is entitled in accordance with the policies of the Company from time to time and as agreed with the Company from time to time. 5.3 Notwithstanding anything to the contrary in this Agreement, the payment by the Company of the premiums on behalf of the Executive to the Group Life Scheme as referred to in CLAUSE 10, and the payment by the Company of any monies payable in terms of the rules of the Share Option Scheme for any of the share options to which the Executive may be entitled in terms of CLAUSE 19, shall not constitute part of the Remuneration Package. 5.4 The Company will refund, or will procure the refunding, to the Executive of all reasonable expenses properly incurred by him in performing his duties under this Agreement in accordance with Company policy. This will include expenses relating to entertainment and traveling. The Company requires the Executive to submit official receipts or other documents as proof that he has incurred any expenses he claims. Page 10 5.5 The Company undertakes to reimburse the following costs to be incurred by the Executive for the benefit of the Company: 5.5.1 in light of the Company requiring the Executive to be a member of one or more clubs, the annual membership fees payable by the Executive for membership of any 2 (two) of such clubs; 5.5.2 membership subscriptions, payable by the Executive for membership of relevant work related associations and/or societies approved in writing in advance by the Company and of which the Executive is a member by virtue of his employment with the Company; 5.5.3 any cost of insurance cover for any 2 (two) of the motor vehicles owned by the Executive during the term of this Agreement. 5.6 The Executive shall be entitled to use any travel miles allocated on any business credit cards and flying membership cards issued to him by the Company for his family and personal use. 5.7 The Company will require the Executive to undergo a medical examination at the cost of the Company on an annual basis and the Executive agrees to give effect to this requirement. 5.8 The date of payment of the salary portion of the Remuneration Package of the Executive shall be the 24th day of each calendar month. 6 HOME WORKING AREA, TELEPHONES AND SECURITY 6.1 It is recorded that the Company requires that the Executive maintain an adequately furnished study or work area at his residences for the purposes of business meetings, out of hours work and work preparation, reading and study. It is further recorded that the Executive is, at all times, required to maintain contact with his office, other offices of the Company world wide, colleagues, stock exchanges on which the Company is listed and shareholders. Accordingly, the Company undertakes that: Page 11 6.1.1 it shall provide and bear all costs of telephones at the residences of the Executive; 6.1.2 the Executive will be issued with a cellular telephone which can be used for personal and business purposes and the monthly costs of this cellular phone and the installation of car kits and other costs incurred on this cellular telephone, shall be for the account of the Company; and 6.1.3 the Company shall at its own cost provide appropriate security and security services at at least 2 (two) residential premises within or outside South Africa nominated by the Executive from time to time. The Company shall continue to provide such security and security services at its own cost for a period of 5 (five) years after the date of termination of the Executive's employment, by either party for any reason whatsoever. 6.2 For the purposes of this clause "appropriate security" shall include at least an appropriate alarm, motion detectors, lighting, electric fencing, gates, provision of 24 hour a day (seven days a week) armed security at the premises, alarm monitoring with armed response and a close protection officer available at all hours. 7 BONUS AND INCENTIVES 7.1 In addition to the Remuneration Package and other benefits stipulated in this Agreement, the Executive shall be eligible for the bonuses and incentives set out in this clause subject to the conditions set out herein. 7.1.1 The Executive shall be entitled to bonuses to be determined with reference to targets set in terms of key performance indicators as agreed between the Executive and the Group Remuneration Committee. 7.1.2 Bonuses shall be calculated and be payable in respect of 4 (four) bonus cycles. The first cycle shall be deemed to have commenced on 1 January 2004 and shall terminate on 30 June 2004. The second bonus cycle shall Page 12 commence on 1 July 2004 and shall terminate on 31 December 2004. The third bonus cycle shall commence on 1 January 2005 and terminate on 30 June 2005. The fourth bonus cycle shall commence on 1 July 2005 and terminate on 30 November 2005. Should the Executive meet all the targets set in terms of the key performance indicators agreed to in respect of a specific bonus cycle he shall be entitled to a bonus of 50 (fifty) per cent of his Remuneration Package. Should the Executive not fully meet all the targets set in terms of the key performance indicators as agreed, he shall be entitled to such lesser bonus as determined by the Group Remuneration Committee. This bonus will be determined with reference to the extent that the targets have been met. 7.1.3 The Company will pay any bonus payable in terms of this CLAUSE 7 to the Executive within 30 (thirty) business days of the end of each bonus cycle. 7.1.4 The bonus referred to in CLAUSES 7.1.1 and 7.1.2 shall be paid in the following manner: 7.1.4.1 the Company shall pay to the Executive the amount due to the Executive in respect of each bonus cycle less 25% (twenty five per cent) of that amount; 7.1.4.2 an amount equivalent to the amount deducted in terms of CLAUSE 7.1.4.1 shall be retained by the Company for the benefit of the Executive (excluding interest); 7.1.4.3 the Executive shall, provided that the Executive meets the targets agreed with the Group Remuneration Committee and accordingly qualifies for a bonus during the next bonus cycle, be entitled to receive payment of the amount retained by the Company during the previous bonus cycle. 7.1.5 Notwithstanding the above, if this Agreement is not extended or renewed as envisaged in CLAUSE 3.4, any bonus payable in respect of the final bonus Page 13 cycle shall be payable in full within 30 (thirty) business days of the end of the final bonus cycle. 7.1.6 The provisions of this CLAUSE 7 shall be applicable to each bonus cycle. 7.2 Any bonus to which the Executive has become entitled in terms of the Current Employment Agreement shall continue to accrue and be payable in terms of that Agreement. 7.3 Subject to the provisions set out below, the Executive, as consideration for agreeing to remain in the employment of the Company for the respective periods set out below, will be entitled to be issued up to 198,000 (one hundred and ninety eight thousand) ordinary shares in the Company in the tranches set out below. The 198,000 (one hundred and ninety eight thousand) ordinary shares referred to in this CLAUSE 7.3 represent an amount equal to 240 (two hundred and forty) per cent of the Executive's Remuneration Package based on the closing price of the Company's shares on the JSE Securities Exchange of South Africa on 1 December 2003. The Company shall upon issue of such shares transfer to its stated capital account a sum equal to the value of such consideration as determined by the directors of the Company, which value shall not be higher than the above amount. This entitlement is subject to the following principles and conditions - 7.3.1 The shares shall be issued to the Executive in four equal tranches. The Executive shall become entitled to, and shall be issued, the first tranche on 30 November 2004, provided that he is still in the employment of the Company on this date. 7.3.2 The Executive shall become entitled to, and shall be issued, the second tranche on 30 November 2005, provided that he is still in the employment of the Company on this date. 7.3.3 The Executive shall become entitled to, and shall be issued, the third tranche on 30 November 2006, provided that he is still in the employment of the Company on this date. Page 14 7.3.4 The Executive shall become entitled to, and shall be issued, the final tranche on 30 November 2007, provided that he is still in the employment of the Company on this date. 7.4 Should this Agreement automatically terminate in accordance with the provisions of CLAUSE 3.2 and should there be no extension of this Agreement or the conclusion of another agreement as envisaged in CLAUSE 3.4, the Board shall, at its discretion, be entitled to issue to the Executive all or some of the shares to which the Executive has not become entitled in terms of CLAUSE 7.3.3 and CLAUSE 7.3.4. 7.5 The parties record that upon the Executive becoming entitled to any of the shares referred to in CLAUSES 7.3 or 7.4, the Company will be obliged to deduct employees' tax from the amount accruing to the Executive in terms of the Fourth Schedule of the Income Tax Act, 1962. Accordingly, within 7 (seven) days of becoming entitled to the shares, the Executive will notify the Company in writing: 7.5.1 whether he wishes to receive the full allocation of shares, in which event he will pay to the Company an amount equal to the employee's tax payable in respect of those shares; or 7.5.2 whether he wishes to receive shares to the value of an amount equal to the total value of shares to which he is entitled, less the employee's tax payable. 7.6 If, on the date that shares should be issued in terms of CLAUSE 7.3 or 7.4 the Executive is prohibited, in terms any legal provision and/or any rule or directive of any applicable Stock Exchange or Securities Regulation Authority, from being issued with such shares, these shares shall be issued on the first date on which such prohibition is no longer in effect. 7.7 The parties record that the coming into effect of CLAUSE 7.3 is subject to the Company's shareholders granting the necessary approval in terms of the Companies Act, 1973. The parties further record that if such approval is not Page 15 granted, the Executive shall be eligible for shares in terms of the rules of the Share Option Scheme. 8 LEAVE 8.1 The Executive shall be entitled to 30 (thirty) working days' paid leave in each successive period of 12 (twelve) months of work commencing on the Commencement Date and thereafter commencing on 1 July of each following year. 8.2 The Executive shall be entitled to an additional 21 (twenty one) working days' paid leave during the period of the 60 (sixty) months commencing on the Engagement Date and an additional 21 (twenty one) working days' paid leave every successive cycle of 60 (sixty) months thereafter. 8.3 With effect from the Commencement Date, the Executive shall not be entitled to accumulate any further working days' leave as provided for in CLAUSE 8.1 which has not been taken, unless the Board has specifically requested the Executive in writing not to take leave in such year. Any leave not taken will be converted into cash annually on 1 July each year and be payable to the Executive. 8.4 Leave provided for in CLAUSE 8.2, which is not taken in a particular cycle of 60 (sixty) months will not be forfeited but must be taken in the next cycle of 60 (sixty) months. 9 SICK LEAVE AND INCAPACITY If the Executive is at any time prevented by illness, injury, accident or any other circumstances beyond his control from discharging his full duties under this agreement (hereafter referred to as "incapacity") for a total of 180 (one hundred and eighty) or more, days in any 12 (twelve) consecutive calendar months' cycle commencing at the Commencement Date, the Company may, by giving one month's written notice of termination to the Executive, terminate this Agreement, in which event he shall be paid an amount equal to half his Remuneration Package calculated on the basis of the Remuneration Package payable to the Executive on the date of termination of Page 16 employment. Notwithstanding the incapacity and absence from work, the Company shall be required to pay the Executive his full remuneration during any period of absence from work prior to termination of employment in terms of this clause. 10 INSURANCE COVER 10.1 The Company will apply for and maintain a reasonable level of Directors' and Officers' Liability Insurance, with the Executive covered as an insured and the Company will maintain at its expense the same cover for the Executive for a period of 7 (seven) years after termination of this Agreement by either party for any reason whatsoever. 10.2 The Company undertakes to pay on the behalf of the Executive the premiums payable by the Executive under the Group Life Scheme of the Company. The cover under the Group Life Scheme shall include temporary and permanent disability and trauma insurance. The life assurance cover for the Executive will be an amount equivalent to 4 (four) years' gross annual Remuneration Package of the Executive calculated on the basis of the Remuneration Package payable to the Executive at the date of his death. 10.3 On termination of this Agreement, for whatsoever reason by either the Company or the Executive, the Executive shall, subject to the rules of the Group Life Scheme, be entitled to remain a member of the Group Life Scheme and to enjoy the same benefits and coverage as those he enjoyed immediately prior to the termination of employment. The benefits and coverage shall be based on the Remuneration Package that the Executive received immediately prior to the date of termination of employment. The Company shall pay all premiums and contributions payable to maintain' such membership and coverage for a period of 5 (five) years calculated from the date of termination of this Agreement. Should the Executive, as a result of the termination of his employment, not be entitled to retain the benefits and coverage contained in the Group Life Scheme, and he decides to exercise the right to effect whole life or endowment insurance as envisaged in Clause 4 of the Group Life Scheme, all premiums and contributions Page 17 for such benefits and coverage shall be borne by the Company for a period of 5 (five) years calculated from the date of the termination of this Agreement. The Company shall take all such steps, and provide all such assistance, as may be necessary to ensure that the Executive is entitled to exercise his rights in terms of this clause. For the purposes of this CLAUSE 10.3 the Group Life Scheme is the Sanlam Scheme No 18740 (Policy No. 18681100X6) or any other similar scheme that is in effect at the date of termination of employment. 10.4 The Company undertakes - 10.4.1 in the event of the Executive not being an employee as defined in the Compensation for Occupational Injuries and Diseases Act, 1993, to insure the Executive with the Rand Mutual Assurance Limited or any other assurance company against risk of death, or permanent disablement or temporary disablement caused by an accident arising out of or in the course of his employment with the Company or any member of the Group; 10.4.2 to keep the policy of insurance referred to in CLAUSE 10.4.1 in force and to pay the premiums thereon on time, and the Executive agrees that the amount payable under the said policy of insurance shall be taken and deemed to be and represent the total and entire claim, demand and right of action of the Executive, his executors or administrators or legal representatives or assigns against the Company or its employees for damages or compensation for injury suffered by the Executive as a result of the negligence of the Company or its employees or otherwise and the payment of the said compensation in terms of the said policy of insurance shall free and discharge any claim or liability in respect of the Company and its employees of and from all and any claim or liability in respect of such injury and to waive any right of claiming on the Company or its employees for any compensation other than that which he is entitled to recover under the said policy of insurance effected by the Company. Page 18 11 BREACH 11.1 Notwithstanding any provision to the contrary, this Agreement may be terminated by the Company with or without notice if the Executive: 11.1.1 commits any serious or persistent breach of any of the provisions contained in this Agreement, provided that the inability of the Executive to perform his duties due to incapacity as envisaged in CLAUSE 9 shall not constitute a breach of contract for the purposes of this Agreement; 11.1.2 is found guilty of theft, fraud or any gross irregularity; or 11.1.3 is found guilty of gross misconduct, serious malperformance or wilful neglect in the discharge of his duties whether in terms of this Agreement or in terms of any other agreement between the Executive and a member of the Group. 12 RESTRAINT AGREEMENT It is recorded that the Parties have entered into a Restraint Agreement a copy of which is attached hereto as Appendix C. 13 DISPUTES 13.1 In the event that any dispute arises out of the interpretation, application or termination of this Agreement, or in the event that any dispute arises out of any alleged unfair dismissal or unfair labour practice as defined in the Labour Relations Act, 1995, the Parties will refer such dispute to private arbitration in accordance with the provisions of this clause. 13.2 A senior counsel selected by agreement from the labour panel of the Arbitration Foundation of Southern Africa (AFSA) will conduct the arbitration. 13.3 The Parties will agree upon the date of the arbitration. In the event that the Parties are unable to agree upon the arbitrator and/or a date for the arbitration within 10 (ten) days of the dispute arising, then the director of AFSA may be Page 19 requested by either party to appoint a suitable arbitrator and to nominate a date for the hearing of the arbitration. 13.4 The arbitrator will be entitled to determine the appropriate procedure for determining the dispute. 13.5 The costs of the arbitrator will be borne equally by the Executive and the Company. 13.6 The finding of the arbitrator will be final and binding on the Parties. 14 APPLICATION OF PROVISIONS OF COMPANY PROCEDURES 14.1 The Executive's entitlement to any benefit other than those recorded in this Agreement shall be governed by the appropriate procedure manuals of the Company in force at any given time. 14.2 The Company is entitled from time to time to amend the terms and conditions of its Company procedure manuals. 14.3 In the event of a conflict between the provisions of Company procedure manuals and the provisions of this Agreement, the provisions of this Agreement shall prevail. 15 ELIGIBLE TRANSACTION For the purposes of this Agreement an "Eligible Transaction" means any agreement, including any agreement forming part of a series of other agreements, which either by itself or together with any of the other agreements, constitutes or results in a transaction involving a change of control of the Company, of a kind which fails within the ambit of clause (a) of the definition of "affected transaction" in Section B of the Code, read with clause 5 of the same Section of the Code. Page 20 16 THE RIGHT OF THE EXECUTIVE TO TERMINATE THIS AGREEMENT FOR AN ELIGIBLE TRANSACTION 16.1 If an Eligible Transaction is entered into, the Executive shall be entitled to terminate this Agreement, subject to the following provisions: 16.1.1 the Executive may exercise this right of termination by giving written notice to this effect to the Company at any time from the date on which the announcement of a firm intention to make an offer in respect of the Eligible Transaction, as contemplated in Rule 2.3 of Section D of the Code ("the Announcement Date"), is made in accordance with the requirements of the Code, until the Closing Date of that Eligible Transaction; 16.1.2 if the Executive gives written notice of termination in terms of CLAUSE 16.1.1 he may at the same time, or at any time before the Closing Date, or in the circumstances envisaged in CLAUSE 16.1.6, any time before the extended date as defined in CLAUSE 16.1.6, and notwithstanding the rules of the Share Option Scheme or any directive of the Board, exercise all the share options granted to him in terms of the Share Option Scheme read with CLAUSE 19.2; 16.1.3 if the Executive gives written notice of termination in terms of CLAUSE 16.1.1 he shall become entitled to, and shall be issued, all the shares referred to in CLAUSE 7.3 which have not yet been issued to the Executive in terms of that clause notwithstanding that the dates referred to in CLAUSES 7.3.1, 7.3.2, 7.3.3 and 7.3.4 have not yet arrived; 16.1.4 any notice of termination given by the Executive in terms of CLAUSE 16.1.1, any exercise of his rights under the Share Option Scheme in terms of CLAUSE 16.1.2, and any right to be issued shares in terms of CLAUSE 16.1.3 shall be conditional upon, and shall therefore take effect only if, the Eligible Transaction itself becomes wholly unconditional and is actually carried into effect and implemented in accordance with its terms and accordingly ceases to be executory; Page 21 16.1.5 any notice of termination given in terms of CLAUSE 16.1.1, any rights exercised in terms of CLAUSE 16.1.2 and any entitlement to shares in terms of CLAUSE 16.1.3 may not be withdrawn or revoked by the Executive, without the written consent of the Company; and 16.1.6 if any notice of termination given by the Executive in terms of CLAUSE 16.1.1 takes effect in terms of CLAUSE 16.1.4, this Agreement shall terminate on the Closing Date of the Eligible Transaction; provided that if the Executive is prohibited, in terms any legal provision, and/or rule or directive of any applicable Stock Exchange or Security Regulation Authority from exercising any right under the Share Option Scheme, or from being issued with shares in terms of CLAUSE 16.1.3, for any period of time during the period between Announcement Date and the Closing Date, this Agreement will not terminate on the Closing Date but will continue in existence until a period of 30 days has elapsed, calculated from the date on which the prohibition ceased to be of effect (the(0)extended date"), provided further that if the Closing Date is a date later than the Extended Date this Agreement shall terminate on the Closing Date. 17 ELIGIBLE TERMINATION This Agreement shall be regarded as having been terminated pursuant to an Eligible Termination if the Executive exercises his right in terms of CLAUSE 16 to terminate this Agreement as an employee of the Company, as a result of the occurrence of an Eligible Transaction, and the termination duly takes effect as contemplated in CLAUSE 16. 18 BENEFITS PAYABLE FOR AN ELIGIBLE TERMINATION 18.1 If this Agreement is terminated pursuant to an Eligible Termination, the Executive shall, subject to compliance with the relevant company laws, be entitled to receive payment from the Company as a termination of employment benefit an amount equal to: Page 22 TS x TE 12 Where: TS = means the period (in completed calendar months) served by the Executive as an employee of the Company from the Engagement Date to the date of termination of this Agreement as envisaged in CLAUSE 17, provided that such period shall not be less than 12 (twelve) calendar months nor more than 48 (forty-eight) calendar months; and TE = means the Remuneration Package as set out in CLAUSE 5. 18.2 The total amount which becomes payable to the Executive in terms of CLAUSE 18.1 shall accrue to him on the date that employment terminates, and shall be payable to him within thirty days after the amount has been determined by the Auditors in accordance with CLAUSE 18.3. 18.3 The total amount, and all the separate amounts making up the total amount payable to the Executive in terms of CLAUSE 18.1 including any pro rata adjustments made, shall be determined by the Auditors as soon as possible after the date of termination, and their certificate as to each of those amounts shall, in the absence of manifest or clerical error, be final and binding on all the Parties. 19 SHARE OPTION SCHEME PROVISIONS 19.1 All existing share options issued to the Executive since the Engagement Date in terms of the rules of the Share Option Scheme will be honoured. 19.2 If notice of termination of this Agreement is given pursuant to an Eligible Termination then, notwithstanding anything to the contrary under this Agreement the following provisions shall apply: 19.2.1 all share options granted to the Executive in terms of the Share Option Scheme will not lapse but will vest in the Executive with immediate effect Page 23 and the Board will pass a resolution to this effect simultaneously with or soon after the signature of this Agreement; 19.2.2 the Company shall in any event procure, notwithstanding anything to the contrary in the Share Option Scheme, that any options granted to the Executive to acquire shares under the Share Option Scheme shall immediately become exercisable by him; 19.2.3 the Executive shall be entitled to exercise these options during the period referred to in CLAUSE 16.1.1 or 16.1.6, whichever is applicable, and; 19.2.4 notwithstanding anything to the contrary in this Agreement, the Company shall be entitled to suspend the Executive during the periods referred to in CLAUSE 19.2.3; provided that all amounts and benefits which otherwise accrue to the Executive during those periods shall continue to accrue as if he were not suspended. 20 THE RIGHT OF THE COMPANY TO ASSIGN THIS AGREEMENT 20.1 The Company shall be entitled, without the consent of the Executive, to assign all its rights and all its obligations under this Agreement to any company, which, at the time of the assignment, is a member of the Group. 20.2 For the avoidance of any doubt it is expressly recorded that the provisions of CLAUSE 20.1 shall apply mutatis mutandis to any succeeding assignee of this Agreement. 21 DIRECTORSHIPS 21.1 Should this Agreement terminate in terms of any of the provisions thereof, the Executive shall resign his directorship within 2 days of the termination of this Agreement unless the Board agrees in writing to the Executive continuing to act as a director. Page 24 21.2 Nothing contained in this Agreement shall be construed as according the Executive any entitlement to compensation for loss of office as a director of the Company or any company within the Group. 22 GENERAL 22.1 This document contains the entire agreement between the Parties in regard to its subject matter. 22.2 No Party shall have any claim or right of action arising from any undertaking, representation or warranty not included in this Agreement. 22.3 No failure by either Party to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way that Party's right to require performance of any such provision at any time in the future, nor shall the waiver of any subsequent breach nullify the effectiveness of the provision itself. 22.4 No agreement to vary, add to or cancel this Agreement shall be of any force or effect unless reduced to writing and signed on behalf of all the Parties to this Agreement. 22.5 Save as permitted in terms of CLAUSE 20, no party may cede any of its rights or delegate any of its obligations under this Agreement. Page 25 23 STATUS OF THIS AGREEMENT If there is any conflict between the provisions of this Agreement and those of the Restraint Agreement, then the provisions of this Agreement shall prevail. SIGNED at London on 7th May 2004 For: DURBAN ROODEPOORT DEEP LIMITED /s/ G Campbell --------------------------------- Signatory: Geoffrey Campbell Capacity: Chairman of REMCO/Director Authority: Chairman of REMCO SIGNED at on 2004 /s/ I.L.Murray --------------------------------- IAN LOUIS MURRAY