|
¨
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
x
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
¨
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
¨
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Title of each class
|
Trading Symbol(s)
|
Name of Each Exchange on Which Registered
|
Ordinary shares, with no par value per share*
|
n/a*
|
New York Stock Exchange*
|
American Depositary Shares (as evidenced by American Depositary Receipts), each representing one ordinary share
|
HMY
|
New York Stock Exchange
|
|
Large accelerated filer x
|
Accelerated filer ¨
|
Non-accelerated filer ¨
|
Emerging growth company ¨
|
US GAAP ¨
|
International Financial Reporting Standards as issued by the International Accounting Standards Board x
|
Other ¨
|
|
|
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|
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|
|
•
|
overall economic and business conditions in South Africa, Papua New Guinea, Australia and elsewhere;
|
•
|
estimates of future earnings, and the sensitivity of earnings to gold and other metals prices;
|
•
|
estimates of future gold and other metals production and sales;
|
•
|
estimates of future cash costs;
|
•
|
estimates of future cash flows, and the sensitivity of cash flows to gold and other metals prices;
|
•
|
estimates of provision for silicosis settlement;
|
•
|
estimates of future tax liabilities under the Carbon Tax Act (as defined below);
|
•
|
statements regarding future debt repayments;
|
•
|
estimates of future capital expenditures;
|
•
|
the success of our business strategy, exploration and development activities and other initiatives;
|
•
|
future financial position, plans, strategies, objectives, capital expenditures, projected costs and anticipated cost savings and financing plans;
|
•
|
estimates of reserves statements regarding future exploration results and the replacement of reserves;
|
•
|
the ability to achieve anticipated efficiencies and other cost savings in connection with past and future acquisitions, as well as at existing operations;
|
•
|
fluctuations in the market price of gold;
|
•
|
the occurrence of hazards associated with underground and surface gold mining;
|
•
|
the occurrence of labor disruptions related to industrial action or health and safety incidents;
|
•
|
power cost increases as well as power stoppages, fluctuations and usage constraints;
|
•
|
supply chain shortages and increases in the prices of production imports and the availability, terms and deployment of capital;
|
•
|
our ability to hire and retain senior management, sufficiently technically-skilled employees, as well as our ability to achieve sufficient representation of historically disadvantaged persons in management positions;
|
•
|
our ability to comply with requirements that we operate in a sustainable manner and provide benefits to affected communities;
|
•
|
potential liabilities related to occupational health diseases;
|
•
|
changes in government regulation and the political environment, particularly tax and royalties, mining rights, health, safety, environmental regulation and business ownership including any interpretation thereof; court decisions affecting the mining industry, including, without limitation, regarding the interpretation of mining rights;
|
•
|
our ability to protect our information technology and communication systems and the personal data we retain;
|
•
|
risks related to the failure of internal controls;
|
•
|
the outcome of pending or future litigation or regulatory proceedings;
|
•
|
fluctuations in exchange rates and currency devaluations and other macroeconomic monetary policies;
|
•
|
the adequacy of the Group’s insurance coverage;
|
•
|
any further downgrade of South Africa's credit rating; and
|
•
|
socio-economic or political instability in South Africa, Papua New Guinea and other countries in which we operate.
|
|
Fiscal year ended June 30,
|
|||||||||
|
2019
|
|
2018
|
|
2017
|
|
2016
|
|
2015
|
|
|
(Rand in millions, except per share amounts, cash costs per kilogram and ounce and all-in sustaining costs per kilogram and ounce)
|
|||||||||
Income Statement Data
|
|
|
|
|
|
|||||
Revenue
|
26,912
|
|
20,452
|
|
19,494
|
|
18,667
|
|
15,643
|
|
(Impairment)/reversal of impairment of assets
|
(3,898
|
)
|
(5,336
|
)
|
(1,718
|
)
|
43
|
|
(3,471
|
)
|
Operating profit/(loss)
|
(2,538
|
)
|
(4,660
|
)
|
(944
|
)
|
1,592
|
|
(5,193
|
)
|
Gain on bargain purchase
|
—
|
|
—
|
|
848
|
|
—
|
|
—
|
|
Profit/(loss) from associates
|
59
|
|
38
|
|
(22
|
)
|
7
|
|
(25
|
)
|
Profit/(loss) before taxation
|
(2,746
|
)
|
(4,707
|
)
|
(148
|
)
|
1,581
|
|
(5,240
|
)
|
Taxation
|
139
|
|
234
|
|
510
|
|
(632
|
)
|
704
|
|
Net profit/(loss)
|
(2,607
|
)
|
(4,473
|
)
|
362
|
|
949
|
|
(4,536
|
)
|
Basic earnings/(loss) per share (SA cents)
|
(498
|
)
|
(1,003
|
)
|
82
|
|
218
|
|
(1,044
|
)
|
Diluted earnings/(loss) per share (SA cents)
|
(500
|
)
|
(1,004
|
)
|
79
|
|
213
|
|
(1,044
|
)
|
Weighted average number of shares used in the computation of basic earnings/(loss) per share
|
523,808,934
|
|
445,896,346
|
|
438,443,540
|
|
435,738,577
|
|
434,423,747
|
|
Weighted average number of shares used in the computation of diluted earnings/(loss) per share
|
533,345,964
|
|
465,319,405
|
|
459,220,318
|
|
446,398,380
|
|
438,091,109
|
|
Dividends per share (SA cents)1
|
—
|
|
35
|
|
100
|
|
—
|
|
—
|
|
Other Financial Data
|
|
|
|
|
|
|||||
Total cash costs per kilogram of gold (R/kg)2
|
439,722
|
|
421,260
|
|
436,917
|
|
392,026
|
|
369,203
|
|
Total cash costs per ounce of gold ($/oz)2
|
965
|
|
1,018
|
|
1,000
|
|
841
|
|
1,003
|
|
All-in sustaining costs per kilogram of gold (R/kg)2
|
550,005
|
|
508,970
|
|
516,687
|
|
467,611
|
|
453,244
|
|
All-in sustaining costs per ounce of gold ($/oz)2
|
1,207
|
|
1,231
|
|
1,182
|
|
1,003
|
|
1,232
|
|
Balance Sheet Data
|
|
|
|
|
|
|||||
Assets
|
|
|
|
|
|
|||||
Property, plant and equipment
|
27,749
|
|
30,969
|
|
30,044
|
|
29,919
|
|
29,548
|
|
Total assets
|
36,736
|
|
39,521
|
|
38,883
|
|
37,030
|
|
36,137
|
|
Net assets
|
22,614
|
|
25,382
|
|
29,291
|
|
28,179
|
|
26,753
|
|
Equity and liabilities
|
|
|
|
|
|
|||||
Share capital
|
29,551
|
|
29,340
|
|
28,336
|
|
28,336
|
|
28,324
|
|
Total equity
|
22,614
|
|
25,382
|
|
29,291
|
|
28,179
|
|
26,753
|
|
Borrowings (current and non-current)
|
5,915
|
|
5,614
|
|
2,133
|
|
2,339
|
|
3,399
|
|
Other liabilities
|
8,207
|
|
8,525
|
|
7,459
|
|
6,512
|
|
5,985
|
|
Total equity and liabilities
|
36,736
|
|
39,521
|
|
38,883
|
|
37,030
|
|
36,137
|
|
1
|
Dividends per share relates to the dividends recorded and paid during the fiscal year.
|
2
|
Cash costs per ounce and per kilogram and all-in sustaining costs per ounce and per kilogram are non-GAAP measures. Cash costs per ounce/kilogram and all-in sustaining cost per ounce/kilogram have been calculated on a consistent basis for all periods presented. Changes in cash costs per ounce/kilogram and all-in sustaining costs per ounce/kilogram are affected by operational performance, as well as changes in the currency exchange rate between the Rand and the US dollar for the US$/ounce measures. Because cash cost per ounce/kilogram and all-in sustaining costs per ounce/kilogram are non-GAAP measures, these measures should therefore not be considered by investors in isolation or as an alternative to production costs, cost of sales, or any other measure of financial performance calculated in accordance with IFRS. The calculation of cash costs, cash costs per ounce and per kilogram, all-in sustaining costs and all-in sustaining costs per ounce and per kilogram may vary from company to company and may not be comparable to other similarly titled measures of other companies. For further information, see Item 5:“Operating and Financial Review and Prospects-Costs-Reconciliation of Non-GAAP measures”.
|
•
|
demand for gold for industrial uses, jewelry and investment;
|
•
|
international or regional political and economic events and trends;
|
•
|
strength or weakness of the US dollar (the currency in which gold prices generally are quoted) and of other currencies;
|
•
|
monetary policies announced or implemented by central banks, including the US Federal Reserve;
|
•
|
financial market expectations on the rate of inflation;
|
•
|
changes in the supply of gold from production, divestment, scrap and hedging;
|
•
|
interest rates;
|
•
|
speculative activities;
|
•
|
gold hedging or de-hedging by gold producers;
|
•
|
actual or expected purchases and sales of gold bullion held by central banks or other large gold bullion holders or dealers; and
|
•
|
production and cost levels for gold in major gold-producing nations, such as South Africa, China, the United States and Australia.
|
•
|
key suppliers or contractors becoming insolvent, resulting in a break-down in the supply chain;
|
•
|
a reduction in the availability of credit which may make it more difficult for Harmony to obtain financing for its operations and capital expenditures or make that financing more costly;
|
•
|
exposure to the liquidity and insolvency risks of Harmony’s lenders and customers; or
|
•
|
the availability of credit being reduced-this may make it more difficult for Harmony to obtain financing for its operations and capital expenditure or make financing more expensive.
|
•
|
future cash costs;
|
•
|
future commodity prices;
|
•
|
future currency exchange rates; and
|
•
|
metallurgical and mining recovery rates.
|
•
|
locating orebodies;
|
•
|
geological nature of the orebodies;
|
•
|
identifying the metallurgical properties of orebodies;
|
•
|
estimating the economic feasibility of mining orebodies;
|
•
|
developing appropriate metallurgical processes;
|
•
|
obtaining necessary governmental permits; and
|
•
|
constructing mining and processing facilities at any site chosen for mining.
|
•
|
future gold and other metal prices;
|
•
|
anticipated tonnage, grades and metallurgical characteristics of ore to be mined and processed;
|
•
|
anticipated recovery rates of gold and other metals from the ore; and
|
•
|
anticipated total costs of the project, including capital expenditure and cash costs.
|
•
|
availability and timing of necessary environmental and governmental permits;
|
•
|
timing and cost of constructing mining and processing facilities, which can be considerable;
|
•
|
availability and cost of skilled labor, power, water, fuel, mining equipment and other materials;
|
•
|
accessibility of transportation and other infrastructure, particularly in remote locations;
|
•
|
availability and cost of smelting and refining arrangements;
|
•
|
availability of funds to finance construction and development activities; and
|
•
|
spot and expected future commodity prices of metals including gold, silver, copper, uranium and molybdenum.
|
•
|
our ability to identify appropriate assets for acquisition and/or to negotiate an acquisition or combination on favorable terms;
|
•
|
obtaining the financing necessary to complete future acquisitions;
|
•
|
difficulties in assimilating the operations of the acquired business;
|
•
|
the changing regulatory environment as it relates to the Mining Charter (as defined below) and the general policy uncertainty in South Africa;
|
•
|
difficulties in maintaining our financial and strategic focus while integrating the acquired business;
|
•
|
problems in implementing uniform quality, standards, controls, procedures and policies;
|
•
|
management capacity, and skills to supplement that capacity, to integrate new assets and operations;
|
•
|
increasing pressures on existing management to oversee an expanding company; and
|
•
|
to the extent we acquire mining operations or enter into another business combination transaction outside South Africa, Australia or PNG, encountering difficulties relating to operating in countries in which we have not previously operated.
|
•
|
rock bursts;
|
•
|
seismic events;
|
•
|
underground fires;
|
•
|
cave-ins or fall-of-ground;
|
•
|
discharges of gases and toxic chemicals;
|
•
|
release of radioactive hazards;
|
•
|
flooding;
|
•
|
mining of pillars (integrity of shaft support structures may be compromised and cause increased seismicity);
|
•
|
processing plant fire and explosion;
|
•
|
critical equipment failures;
|
•
|
accidents and fatalities; and
|
•
|
other conditions resulting from drilling, blasting and the removal and processing of material from a deep-level mine.
|
•
|
flooding of the open-pit;
|
•
|
collapse of open-pit walls or slope failures;
|
•
|
processing plant fire and explosion;
|
•
|
accidents associated with operating large open-pit and rock transportation equipment;
|
•
|
accidents associated with preparing and igniting of large-scale open-pit blasting operations; and
|
•
|
major equipment failures.
|
•
|
accidents associated with operating a waste dump and rock transportation;
|
•
|
production disruptions caused by natural phenomena, such as floods and droughts and weather conditions, potentially exacerbated by climate change;
|
•
|
dam, wall or slope failures; and
|
•
|
contamination of ground or surface water.
|
•
|
limiting its ability to access the capital markets;
|
•
|
hindering its flexibility to plan for or react to changing market, industry or economic conditions;
|
•
|
limiting the amount of cash flow available for future operations, acquisitions, dividends, or other uses, making it more vulnerable to economic or industry downturns, including interest rate increases;
|
•
|
increasing the risk that it will need to sell assets, possibly on unfavorable terms, to meet payment obligations; or
|
•
|
increasing the risk that it may not meet the financial covenants contained in its debt agreements or timely make all required debt payments.
|
•
|
require that preliminary and general costs are included in the financial provision calculations;
|
•
|
impose VAT (at 15%) on the financial provision calculations;
|
•
|
prohibit the withdrawal of trust funds for concurrent rehabilitation (even in circumstances where the financial provision exceeds the evaluated environmental liability); and
|
•
|
require that funds are retained in perpetuity by the Minister of Minerals and Energy for latent and residual environmental impacts notwithstanding the granting of a closure certificate.
|
•
|
facilitating concurrent rehabilitation;
|
•
|
re-purposing infrastructure; and
|
•
|
accelerated mine closure rehabilitation where operations have reached the end of its geological life.
|
•
|
the court that pronounced the judgment had jurisdiction to entertain the case according to the principles recognized by South African law with reference to the jurisdiction of foreign courts;
|
•
|
the judgment is final and conclusive;
|
•
|
the judgment has not lapsed;
|
•
|
the recognition and enforcement of the judgment by South African courts would not be contrary to public policy, including observance of the rules of natural justice which require that the documents initiating the United States proceeding were properly served on the defendant and that the defendant was given the right to be heard and represented by counsel in a free and fair trial before an impartial tribunal;
|
•
|
the judgment does not involve the enforcement of a penal or revenue law; and
|
•
|
the enforcement of the judgment is not otherwise precluded by the provisions of the Protection of Business Act 99 of 1978, as amended, of the Republic of South Africa.
|
•
|
“-About this report” on pages 4;
|
•
|
“-Corporate profile” on pages 6;
|
•
|
“-Creating and sharing value” on page 8;
|
•
|
“-Our strategy” on page 14;
|
•
|
“-Our business context” on page 23;
|
•
|
“-Delivering profitable ounces - Operational performance” on pages 57 to 62; and
|
•
|
“-Delivering profitable ounces - Exploration and projects” on pages 62 to 67;
|
•
|
On July 26, 2019, the Johannesburg High Court approved a R5.2 billion settlement of the silicosis and tuberculosis class action suit between the Working Group and lawyers representing affected mineworkers. After a mandatory three-month period, during which potential beneficiaries can opt out of the settlement agreement, the settlement funds will be used to establish the Tshiamiso Trust. The trust will track and trace class members, process all submitted claims, including the undertaking of benefit medical examinations, and pay benefits to eligible claimants. The approval does not impact on the amount of the provision recognized. See note 26 "Provision for Silicosis Settlement" to our consolidated financial statements set forth beginning on page F-1.
|
•
|
On August 19, 2019, Harmony and a syndicate of local and international lenders entered into a loan facility agreement which was jointly arranged by Nedbank Limited and ABSA Bank Limited, comprising a revolving credit facility of up to US$200 million and a term loan of up to US$200 million. The tenor of the US$400 million revolving credit and term loan facility is three years with an option to extend by another one year. The rate for the term loan is LIBOR plus 3.05% and the rate for the revolving credit facility is LIBOR plus 2.90%. Conditions precedent were fulfilled on September 26, 2019 and financial close was on October 2, 2019, with US$5 million (R76 million) being drawn on, resulting in an outstanding balance of US$300 million (R4.6 billion) and undrawn balance of US$100 million (R1.4 billion).
|
•
|
“-About this report” on pages 4;
|
•
|
"-Creating and sharing value" on page 8;
|
•
|
"-Our strategy" on page 14;
|
•
|
-"Operating business context" on page 23;
|
•
|
"-Stakeholder engagement" on page 24;
|
•
|
“-Ensuring employee safety and well-being - maintaining stability in our workforce - Safety and health” on pages 33 to 49;
|
•
|
“-Ensuring employee safety and well-being - maintaining stability in our workforce - Employee relations” on pages 49 to 56;
|
•
|
“-Managing our Social and Environmental Impacts- Environmental management and stewardship” on pages 80 to 102;
|
•
|
“-Delivering profitable ounces - Operational performance” on pages 57 to 62; and
|
•
|
“-Delivering profitable ounces - Exploration and projects” on pages 62 to 67;
|
|
Capital expenditure budgeted for fiscal 2020
|
|
|
(R’million)
|
|
South Africa
|
|
|
Kusasalethu
|
285
|
|
Doornkop
|
372
|
|
Tshepong operations
|
1,083
|
|
Moab Khotsong
|
730
|
|
Masimong
|
25
|
|
Target 1
|
407
|
|
Bambanani
|
63
|
|
Joel
|
164
|
|
Unisel
|
11
|
|
Other - surface
|
55
|
|
International
|
|
|
Hidden Valley1
|
1,521
|
|
Total operational capital expenditure
|
4,716
|
|
Wafi-Golpu
|
217
|
|
Total capital expenditure
|
4,933
|
|
•
|
normal depletion of 1.5 million ounces; and
|
•
|
a net decrease of 0.3 million ounces in reserves due to depletion.
|
•
|
a gold price of US$1,290 per ounce;
|
•
|
an exchange rate of R14.11 per US dollar;
|
•
|
the above parameters resulting in a gold price of R585,000/kg for the South African assets;
|
•
|
the Hidden Valley Operation and Wafi-Golpu project in the Wafi Golpu Joint Venture used prices of US$1290/oz gold (“Au”), US$17.00/oz silver (“Ag”), US$9.00/lb molybdenum (“Mo”) and US$3.00/lb copper (“Cu”) at an exchange rate of US$0.74 per A$;
|
•
|
gold equivalent ounces are calculated assuming a US$1,290/oz Au, US$ 3.00/lb Cu and US$17.00/oz Ag with 100% recovery for all metals. These assumptions are based on those used in the 2016 feasibility study; and
|
•
|
“gold equivalent” is computed as the value of the Company’s gold, silver and copper from all mineral resources/reserves classifications divided by the price of gold. All calculations are done using metal prices as stipulated.
|
•
|
the database of measured and indicated resource blocks (per operation);
|
•
|
an assumed gold price which, for this mineral reserve statement, was taken as R585,000 per kilogram (gold price of US$1,290 per ounce and an exchange rate of R14.11 per US dollar);
|
•
|
planned production rates;
|
•
|
the mine recovery factor which is equivalent to the mine call factor (“MCF”) multiplied by the plant recovery factor; and
|
•
|
planned cash costs (cost per tonne).
|
|
|
Mineral Reserves statement (Metric) as at June 30, 2019
|
|||||||||||||||||
Operations Gold
|
|
PROVED RESERVES
|
PROBABLE RESERVES
|
TOTAL RESERVES
|
|||||||||||||||
|
|
Tonnes
|
Grade
|
Gold1
|
Tonnes
|
Grade
|
Gold1
|
Tonnes
|
Grade
|
Gold1
|
|||||||||
|
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
|||||||||
South Africa Underground
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Bambanani
|
|
0.7
|
|
11.69
|
|
9
|
|
—
|
|
—
|
|
—
|
|
0.7
|
|
11.69
|
|
9
|
|
Joel
|
|
2.9
|
|
4.95
|
|
15
|
|
1.4
|
|
4.87
|
|
7
|
|
4.4
|
|
4.93
|
|
22
|
|
Masimong
|
|
0.6
|
|
4.37
|
|
3
|
|
0.0
|
|
3.53
|
|
0.1
|
|
0.7
|
|
4.33
|
|
3
|
|
Unisel
|
|
0.2
|
|
4.81
|
|
1
|
|
0.1
|
|
4.13
|
|
0.2
|
|
0.2
|
|
4.65
|
|
1
|
|
Target 1
|
|
3.2
|
|
4.38
|
|
14
|
|
1.5
|
|
4.66
|
|
7
|
|
4.6
|
|
4.47
|
|
21
|
|
Tshepong Operations
|
|
20.0
|
|
5.87
|
|
117
|
|
3.8
|
|
4.70
|
|
18
|
|
23.8
|
|
5.68
|
|
135
|
|
Doornkop
|
|
5.3
|
|
4.92
|
|
26
|
|
5.6
|
|
4.86
|
|
27
|
|
10.9
|
|
4.89
|
|
53
|
|
Kusasalethu
|
|
3.6
|
|
6.79
|
|
24
|
|
0.9
|
|
6.67
|
|
6
|
|
4.5
|
|
6.76
|
|
30
|
|
Moab Khotsong
|
|
4.0
|
|
7.29
|
|
29
|
|
2.8
|
|
9.70
|
|
28
|
|
6.9
|
|
8.28
|
|
57
|
|
Total South Africa Underground
|
|
40.6
|
|
5.86
|
|
238
|
|
16.2
|
|
5.75
|
|
93.3
|
|
56.7
|
|
5.83
|
|
331
|
|
|
|
Mineral Reserves statement (Metric) as at June 30, 2019
|
|||||||||||||||||
Operations Gold
|
|
PROVED RESERVES
|
PROBABLE RESERVES
|
TOTAL RESERVES
|
|||||||||||||||
|
|
Tons
|
|
Grade
|
|
Gold1
|
|
Tons
|
|
Grade
|
|
Gold1
|
|
Tons
|
|
Grade
|
|
Gold1
|
|
|
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
|||||||||
South Africa Surface
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Kalgold
|
|
9.4
|
|
0.87
|
|
8
|
|
8.9
|
|
1.18
|
|
11
|
|
18.4
|
|
1.02
|
|
19
|
|
Free State Surface-Phoenix
|
|
55.8
|
|
0.27
|
|
15
|
|
—
|
|
—
|
|
—
|
|
55.8
|
|
0.27
|
|
15
|
|
St Helena
|
|
108.6
|
|
0.27
|
|
29
|
|
—
|
|
—
|
|
—
|
|
108.6
|
|
0.27
|
|
29
|
|
Central Plant
|
|
—
|
|
—
|
|
—
|
|
60.5
|
|
0.27
|
|
16
|
|
60.5
|
|
0.27
|
|
16
|
|
WDR Tailings
|
|
—
|
|
—
|
|
—
|
|
565.5
|
|
0.23
|
|
127
|
|
565.5
|
|
0.23
|
|
127
|
|
Total South Africa Surface
|
|
173.8
|
|
0.30
|
|
53
|
|
634.9
|
|
0.24
|
|
154
|
|
808.8
|
|
0.26
|
|
207
|
|
Total South Africa
|
|
214.4
|
|
|
290
|
|
651.1
|
|
|
247
|
|
865.5
|
|
|
537
|
|
|||
Papua New Guinea2
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Hidden Valley
|
|
2.7
|
|
0.96
|
|
3
|
|
13.6
|
|
1.91
|
|
26
|
|
16.3
|
|
1.75
|
|
29
|
|
Hamata
|
|
0.0
|
|
2.25
|
|
0.02
|
|
0.4
|
|
1.74
|
|
1
|
|
0.4
|
|
1.75
|
|
1
|
|
Golpu
|
|
—
|
|
—
|
|
—
|
|
200.0
|
|
0.86
|
|
171
|
|
200.0
|
|
0.86
|
|
171
|
|
Total Papua New Guinea
|
|
2.8
|
|
0.97
|
|
3.02
|
|
213.9
|
|
0.93
|
|
198
|
|
216.7
|
|
0.93
|
|
201
|
|
Total
|
|
217.1
|
|
|
293
|
|
865.0
|
|
|
445
|
|
1,082.2
|
|
|
738
|
|
1
|
Metal figures are fully inclusive of all mining dilutions and gold losses, and are reported as mill delivered tons and head grades. Metallurgical recovery factors have not been applied to the reserve figures.
|
2
|
Represents Harmony’s attributable interest of 50%.
|
Silver
|
|
Proved reserves
|
Probable reserves
|
Total reserves
|
|||
|
|
Tonnes
|
Gold
Equivalents
|
Tonnes
|
Gold
Equivalents
|
Tonnes
|
Gold
Equivalents
|
|
|
(millions)
|
(kg)1 (000)
|
(millions)
|
(kg)1 (000)
|
(millions)
|
(kg)1 (000)
|
Hidden Valley
|
|
2.7
|
1
|
13.6
|
5
|
16.3
|
6
|
Copper
|
|
Proved reserves
|
Probable reserves
|
Total reserves
|
|||
|
|
Tonnes
|
Gold
Equivalents
|
Tonnes
|
Gold
Equivalents
|
Tonnes
|
Gold
Equivalents
|
|
|
(millions)
|
(kg)1 (000)
|
(millions)
|
(kg)1 (000)
|
(millions)
|
(kg)1 (000)
|
Golpu
|
|
—
|
—
|
200.0
|
390
|
200.0
|
390
|
Total Gold Equivalents
|
|
2.7
|
1
|
213.6
|
395
|
216.3
|
396
|
Total Harmony including gold equivalents
|
|
217.1
|
294
|
865
|
840
|
1,082.2
|
1,134
|
|
|
Tonnes
|
Grade
|
Cu1
|
Tonnes
|
Grade
|
Cu1
|
Tonnes
|
Grade
|
Cu1
|
||||||
Copper
|
|
(millions)
|
(%)
|
(000 t)
|
(millions)
|
(%)
|
(000 t)
|
(millions)
|
(%)
|
(000 t)
|
||||||
Golpu2
|
|
—
|
|
—
|
—
|
|
200.0
|
|
1.23
|
2,450
|
|
200.0
|
|
1.23
|
2,450
|
|
South Africa
|
|
|
|
|
|
|
|
|
|
|
|
|
Tonnes
|
Grade
|
U3082
|
Tonnes
|
Grade
|
U3082
|
Tonnes
|
Grade
|
U3082
|
||||||
Uranium
|
|
(millions)
|
(kg/t)
|
(Mkg)
|
(millions)
|
(kg/t)
|
(Mkg)
|
(millions)
|
(kg/t)
|
(Mkg)
|
||||||
Moab Khotsong Underground
|
|
—
|
|
—
|
—
|
|
6.9
|
|
0.22
|
1
|
|
6.9
|
|
0.22
|
1
|
|
1
|
Metal figures are fully inclusive of all mining dilutions and gold losses, and are reported as mill delivered tons and head grades. Metallurgical recovery factors have not been applied to the reserve figures.
|
2
|
Represents Harmony’s attributable interest of 50%.
|
Operations gold
|
|
Underground Operations
|
Surface and Massive Mining
|
||||||
|
|
Cut-off grade
|
|
Cut-off cost
|
|
Cut-off grade
|
|
Cut-off cost
|
|
|
|
(cmg/t)
|
|
(R/Tonne)
|
|
(g/t)
|
|
(R/Tonne)
|
|
South Africa Underground
|
|
|
|
|
|
||||
Bambanani
|
|
2,019
|
|
3,612
|
|
—
|
|
—
|
|
Joel
|
|
803
|
|
2,157
|
|
—
|
|
—
|
|
Masimong
|
|
973
|
|
2,109
|
|
—
|
|
—
|
|
Phakisa
|
|
792
|
|
2,683
|
|
—
|
|
—
|
|
Target 1
|
|
—
|
|
—
|
|
3.80
|
|
2,123
|
|
Tshepong
|
|
650
|
|
2,495
|
|
—
|
|
—
|
|
Unisel
|
|
1,163
|
|
2,483
|
|
—
|
|
—
|
|
Doornkop
|
|
735
|
|
2,228
|
|
—
|
|
—
|
|
Kusasalethu
|
|
1,100
|
|
3,077
|
|
—
|
|
—
|
|
Moab Khotsong
|
|
1,727
|
|
3,938
|
|
|
|
||
South Africa Surface
|
|
|
|
|
|
|
|
||
Kalgold
|
|
—
|
|
—
|
|
0.58
|
|
445
|
|
Free State Surface
|
|
—
|
|
—
|
|
0.13
|
|
44
|
|
|
|
Cut-off grade
|
|
Cut-off cost
|
|
Cut-off grade
|
|
Cut-off cost
|
|
|
|
(%Cu)
|
|
(A$/Tonne)
|
|
(g/t)
|
|
(A$/Tonne)
|
|
Papua New Guinea
|
|
|
|
|
|
||||
Hidden Valley
|
|
—
|
|
—
|
|
0.82
|
|
44.18
|
|
Hamata
|
|
—
|
|
—
|
|
0.85
|
|
33.24
|
|
Golpu
|
|
0.3
|
|
26
|
|
—
|
|
—
|
|
Operations silver and copper
|
|
Underground Operations
|
Surface and Massive Mining
|
|||||
|
|
|
|
|
|
|||
|
|
Cut-off grade
|
Cut-off cost
|
|
Cut-off grade
|
|
Cut-off cost
|
|
|
|
(%Cu)
|
(A$/Tonne)
|
|
(g/t)
|
|
(A$/Tonne)
|
|
SILVER
|
|
|
|
|
|
|||
Papua New Guinea
|
|
|
|
|
|
|||
Hidden Valley
|
|
—
|
—
|
|
0.82
|
|
44.18
|
|
COPPER
|
|
|
|
|
|
|||
Papua New Guinea
|
|
|
|
|
|
|||
Golpu
|
|
0.3
|
26
|
|
—
|
|
—
|
|
1)
|
Surface and massive mining are stated in g/t (g/t is grams of metal per tonne of ore).
|
2)
|
All SA underground operations are stated in cmg/t (cmg/t is the Reef Channel width multiplied by the g/t which indicates the gold content within the Reef Channel).
|
•
|
Concentration of rights
|
•
|
Ownership of tailings created before May 1, 2004
|
•
|
Transfers in interests in companies
|
•
|
Mineral beneficiation
|
•
|
Issue of a closure certificate
|
•
|
have a minimum effective HDSA ownership of 26%;
|
•
|
procure a minimum of 40% of capital goods, 70% of services and 50% of consumer goods from HDSA suppliers (i.e. suppliers in which a minimum of 25% + one vote of their share capital must be owned by HDSAs) by 2014 (exclusive of non-discretionary procurement expenditure);
|
•
|
ensure that multinational suppliers of capital goods contribute a minimum of 0.5% of their annual income generated from South African mining companies into a social development fund from 2010 towards the socio-economic development of South African communities;
|
•
|
achieve a minimum of 40% HDSA demographic representation at executive management (board) level, senior management (executive committee) level, core and critical skills, middle management level and junior management level;
|
•
|
invest up to 5% of annual payroll in essential skills development activities; and
|
•
|
implement measures to improve the standards of housing and living conditions for mineworkers by converting or upgrading mineworkers’ hostels into family units, attaining an occupancy rate of one person per room and facilitating home ownership options for all mineworkers in consultation with organized labor.
|
•
|
in relation to existing mining rights, the continuing consequences of historical black economic empowerment transactions will be recognized and existing right holders will not be required to increase their HDSA shareholding for the duration of their mining right in circumstances where they either achieved and maintained 26% HDSA ownership or where they achieved the 26% HDSA ownership but their HDSA shareholder has since exited;
|
•
|
in relation to the renewal and transfer of existing mining rights, historical BEE credentials will not be recognized and mining companies will be required to comply with the ownership requirements in relation to new mining rights (see below);
|
•
|
in relation to new mining rights (granted after September 27, 2018) mining companies must have a minimum of 30% BEE shareholding distributed as follows: a minimum of 5% non-transferable carried interest to qualifying employees; a minimum of 5% non-transferable carried interest to host communities, or a minimum 5% equity equivalent benefit; and a minimum of 20% to a BEE entrepreneur, 5% of which must preferably be for women; "carried interest" is defined as "shares issued to qualifying employees and host communities at no cost to them and free of any encumbrances. The cost for the carried interest shall be recovered by a right holder from the development of the asset";
|
•
|
applications for mining rights lodged and accepted prior to September 27, 2018, will be processed in terms of the Amended Charter (i.e. with a 26% HDSA ownership requirement) but with a further obligation to increase their HDSA shareholding to 30% within five years of the granting of the right;
|
•
|
BEE shareholding may be concluded at holding company level, mining right level, on units of production, shares or assets and where is concluded at any level other than mining right level, the flow-through principle will apply;
|
•
|
the permitted beneficiation off-set of up to 11% against the HDSA ownership requirement contained in the Original Charter and Amended Charter has been reduced to 5% unless it was "claimed" prior to September 27, 2018;
|
•
|
a minimum of 70% of total mining goods procurement spend (including non-discretionary expenditure) must be on South African manufactured goods, allocated amongst HDSA owned and controlled companies, women and youth owned and controlled companies and BEE compliant companies;
|
•
|
a minimum of 80% of the total spend on services (including non-discretionary expenditure) must be sourced from South African companies, allocated among HDSA owned and controlled companies, women and youth owned and controlled companies and BEE compliant companies;
|
•
|
mining companies must achieve a minimum representation of HDSAs in the following management positions: 50% on the Board of directors (20% of which must be women), 50% in executive (20% of which must be women), 60% in senior management (25% of which must be women); 60% in middle level (25% of which must be women); 70% in junior level (30% of which must be women) and 60% in core and critical skills. In addition; HDSAs with disabilities must constitute 1.5% of all employees.
|
•
|
the Minister may, by notice in the Government Gazette, review Mining Charter III;
|
•
|
the ownership and mine community development elements are ring-fenced and require 100% compliance at all times; and
|
•
|
a mining right holder that has not complied with the ownership element and falls between levels 6 and 8 of the Mining Charter scorecard shall be in breach of the MPRDA and its mining right may be suspended or canceled in accordance with the provisions of the MPRDA.
|
•
|
provide that mining right holders must at all times comply with the ownership requirements imposed under Mining Charter III;
|
•
|
stipulate that the continuing consequences of historic empowerment transactions will not be recognized if existing mining rights are renewed or transferred to third parties;
|
•
|
impose the procurement thresholds for goods and services; and
|
•
|
indicate that the Minister may invoke the sanctions prescribed under the MPRDA, if a mineral right holder fails to comply with the threshold requirements imposed under the Charter.
|
•
|
exploration licenses, issued for a term not exceeding two years, renewable for further two year terms subject to compliance with expenditure and other conditions. Each license contains a condition conferring on the PNG government the right to make a single purchase up to 30% equitable interest in any mineral discovery under the license at a price pro rata to the accumulated exploration expenditure;
|
•
|
mining leases, issued for a term not exceeding 20 years, renewable on application subject to compliance with issue conditions;
|
•
|
special mining leases, issued for a term not exceeding 40 years, renewable on application subject to compliance with issue conditions;
|
•
|
mining easements; and
|
•
|
leases for mining purposes.
|
•
|
to protect the health and safety of persons at mines;
|
•
|
to require employers and employees to identify hazards and eliminate, control and minimize the risks relating to health and safety at mines;
|
•
|
to give effect to the public international law obligations of South Africa that concern health and safety at mines;
|
•
|
to provide for employee participation in matters of health and safety through health and safety representatives and the health and safety committees at mines;
|
•
|
to provide effective monitoring of health and safety measures at mines;
|
•
|
to provide for enforcement of health and safety conditions at mines;
|
•
|
to provide for investigations and inquiries to improve health and safety at mines;
|
•
|
to promote a culture of health and safety in the mining industry;
|
•
|
to promote training in health and safety in the mining industry; and
|
•
|
to promote co-operation and consultation on health and safety matters between the South African, employers, employees and their representatives.
|
•
|
the issuing of statutory instructions (for example notices in terms of section 54 or section 55 of the MHSA) if an Inspector of Mines has reason to believe that any occurrence, practice or condition at a mine endangers the health and safety of any person at a mine, or alternatively if an Inspector of Mines has reason to believe that a provision of the MHSA has not been complied with. A notice in terms of section 54 of the MHSA may halt all mining operations undertaken at a mine or part thereof. If a mine receives notices in terms of section 54 of the MHSA regularly, the production stoppages and the additional costs incurred as a result thereof, will not only affect the production results of a mine but also the reputation and business of a mine. If, however, a notice in terms of section 54 of the MHSA has been issued unlawfully, the mine may appeal the said notice to the Chief Inspector of Mines. It must be noted that the aforesaid appeal does not suspend the operation of the notice issued in terms of section 54 of the MHSA. To suspend the operation of the notice in the above instance, a mine may lodge an urgent application to the Labour Court (being the court with jurisdiction) requesting the suspension of the operation of the notice issued in terms of section 54 of the MHSA pending the outcome of the appeal to the Chief Inspector of Mines;
|
•
|
the Chief Inspector of Mines may suspend or cancel certificates of competency issued in terms of the MHSA if the holder of that certificate is guilty of gross negligence or misconduct or has not complied with the MHSA or the regulations binding thereunder;
|
•
|
a Principal Inspector of Mines may recommend prosecution to the National Director of Public Prosecutions if satisfied that there is sufficient admissible evidence that an offence has been committed. Any person convicted of an offense in terms of the MHSA may be sentenced to a fine or imprisonment as may be prescribed; and
|
•
|
a Principal Inspector of Mines may, after considering the recommendation of an Inspector of Mines and the written representations of the employer, impose an administrative fine for the failure to comply with, amongst others, the provisions of the MHSA and the regulations binding thereunder. In terms of Table 2 of Schedule 8 to the MHSA, the maximum administrative fine which may be imposed on an employer is one million Rand per transgression. The MHSA does not make provision for any internal appeal against an administrative fine which has been issued unlawfully. However, if a mine receives an administrative fine which has been issued unlawfully, the mine may lodge an application in the Labour Court (being the court with jurisdiction) to review the decision of the Chief Inspector of Mines to impose an administrative fine.
|
•
|
NEMA;
|
•
|
The NWA;
|
•
|
The National Environmental Management: Air Quality Act, 39 of 2004;
|
•
|
The National Environmental Management: Waste Act, 59 of 2008 ("Waste Act");
|
•
|
The National Nuclear Regulator Act, 47 of 1999;
|
•
|
The National Environmental: Biodiversity Act, 10 of 2004;
|
•
|
MPRDA; and
|
•
|
Carbon Tax Act.
|
•
|
“-Corporate profile” on page 6
|
•
|
“- Managing our Social and Environmental Impacts - Environmental management and stewardship” on pages 80 to 102;
|
•
|
“- Delivering profitable ounces - Operational performance” on pages 57 to 62;
|
•
|
Bambanani, Doornkop, Joel, Kusasalethu, Masimong, Moab Khotsong, Target 1, Tshepong Operations, Unisel and Hidden Valley; and
|
•
|
all other shafts and surface operations, including those that treat historic sand dumps, rock dumps and tailings dams, are grouped together under “All other surface operations”.
|
|
|
Applicable to the Fiscal Year Ended June 30,
|
|||||
Doornkop
|
2019
|
2018
|
2017
|
||||
A
|
Years (life-of-mine plan)
|
16
|
|
18
|
|
17
|
|
B
|
Reserves (Tonnes million)
|
7.0
|
|
4.6
|
|
4.3
|
|
B
|
Resources (Tonnes million)
|
12.0
|
|
16.9
|
|
18.7
|
|
D
|
Total inferred resources (Tonnes million)
|
5.2
|
|
10.6
|
|
12.2
|
|
E
|
Inferred resources included in life-of-mine plan (Tonnes million)
|
5.6
|
|
9.5
|
|
7.0
|
|
F
|
Future development costs (Rand million)
|
519
|
|
494
|
|
358
|
|
G
|
Depreciation expense for the fiscal year
|
|
|
|
|||
|
•
As reported (Rand million)
|
258
|
|
185
|
|
226
|
|
|
•
Excluding inferred resources (Rand million)
|
320
|
|
336
|
|
384
|
|
|
Short term
|
Medium term
|
Long term
|
|||
US$ gold price per ounce
|
1,325.00
|
|
1,310.00
|
|
1,290.00
|
|
US$ silver price per ounce
|
15.75
|
|
15.75
|
|
17.00
|
|
Rand/gold price (R/kg)
|
615,000
|
|
600,000
|
|
585,000
|
|
Rand/US$ exchange rate
|
14.43
|
|
14.25
|
|
14.11
|
|
US$/Kina exchange rate
|
3.34
|
|
3.34
|
|
3.34
|
|
|
Fiscal year ended June 30,
|
|||||
|
2019
|
2018
|
2017
|
|||
|
(in R millions, except for ounce/kilogram amounts)
|
|||||
Total cost of sales - under IFRS
|
28,869
|
|
23,596
|
|
19,869
|
|
Depreciation and amortization expense
|
(4,054
|
)
|
(2,570
|
)
|
(2,519
|
)
|
Rehabilitation costs
|
(33
|
)
|
(67
|
)
|
(23
|
)
|
Care and maintenance costs of restructured shafts
|
(134
|
)
|
(128
|
)
|
(109
|
)
|
Employment termination and restructuring costs
|
(242
|
)
|
(208
|
)
|
(74
|
)
|
Share-based payments
|
(155
|
)
|
(244
|
)
|
(391
|
)
|
Impairment
|
(3,898
|
)
|
(5,336
|
)
|
(1,718
|
)
|
By-products credits
|
(766
|
)
|
(93
|
)
|
(230
|
)
|
Other
|
33
|
|
63
|
|
58
|
|
Capitalized stripping
|
1,197
|
|
167
|
|
77
|
|
LED costs
|
99
|
|
62
|
|
64
|
|
Corporate, administration and other expenditure costs
|
603
|
|
582
|
|
430
|
|
Capital expenditure (OCD)
|
1,893
|
|
1,561
|
|
1,346
|
|
Capital expenditure (Exploration, abnormal expenditure and shaft capital)
|
1,101
|
|
771
|
|
677
|
|
|
|
|
|
|
||
Total all-in sustaining costs
|
24,513
|
|
18,156
|
|
17,457
|
|
|
|
|
|
|||
Per kilogram calculation:
|
|
|
|
|||
Kilogram sold1
|
44,568
|
|
35,671
|
|
33,786
|
|
Total all-in sustaining costs per kilogram
|
550,005
|
|
508,970
|
|
516,687
|
|
|
|
|
|
|||
Total all-in sustaining costs (US$ million)
|
1,729
|
|
1,412
|
|
1,284
|
|
Per ounce calculation:
|
|
|
|
|
|
|
Ounces sold1
|
1,432,890
|
|
1,146,850
|
|
1,086,231
|
|
Total all-in sustaining costs per ounce
|
1,207
|
|
1,231
|
|
1,182
|
|
|
Fiscal year ended June 30,
|
|||||
|
2019
|
2018
|
2017
|
|||
|
(in R millions, except for ounce/kilogram amounts)
|
|||||
Total cost of sales - under IFRS
|
28,869
|
|
23,596
|
|
19,869
|
|
Depreciation and amortization expense
|
(4,054
|
)
|
(2,570
|
)
|
(2,519
|
)
|
Rehabilitation costs
|
(33
|
)
|
(67
|
)
|
(23
|
)
|
Care and maintenance costs of restructured shafts
|
(134
|
)
|
(128
|
)
|
(109
|
)
|
Employment termination and restructuring costs
|
(242
|
)
|
(208
|
)
|
(74
|
)
|
Share-based payments
|
(155
|
)
|
(244
|
)
|
(391
|
)
|
Impairment
|
(3,898
|
)
|
(5,336
|
)
|
(1,718
|
)
|
By-product revenue
|
(766
|
)
|
(93
|
)
|
(230
|
)
|
Other
|
(29
|
)
|
52
|
|
7
|
|
Gold and uranium inventory movement
|
112
|
|
216
|
|
(187
|
)
|
|
|
|
|
|||
Total cash costs
|
19,670
|
|
15,218
|
|
14,625
|
|
|
|
|
|
|||
Per kilogram calculation:
|
|
|
|
|||
Kilograms produced1
|
44,734
|
|
36,125
|
|
33,472
|
|
Total cash costs per kilogram
|
439,722
|
|
421,260
|
|
436,917
|
|
|
|
|
|
|||
Total cash costs (US$)
|
1,387
|
|
1,184
|
|
1,075
|
|
|
|
|
|
|||
Per ounce calculation:
Ounces produced1
|
1,438,231
|
|
1,161,435
|
|
1,076,139
|
|
Total cash costs per ounce
|
965
|
|
1,018
|
|
1,000
|
|
|
Year Ended June 30, 2019
|
Year Ended June 30, 2018
|
Percentage
(increase)/decrease
|
|||||||||||||||||
|
Cash costs
|
All-in sustaining
costs
|
Cash costs
|
All-in sustaining
costs
|
Cash
costs
per
kg
|
All-in
sustain-ing
costs per
kg
|
||||||||||||||
|
(kg
pro-duced)
|
(R/kg)
|
(kg sold)
|
(R/kg)
|
(kg
pro-duced)
|
(R/kg)
|
(kg sold)
|
(R/kg)
|
||||||||||||
South Africa
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Kusasalethu
|
4,989
|
|
476,417
|
|
5,028
|
|
556,621
|
|
4,429
|
|
472,177
|
|
4,301
|
|
554,302
|
|
(1
|
)
|
—
|
|
Doornkop
|
3,273
|
|
486,795
|
|
3,255
|
|
572,132
|
|
3,429
|
|
413,586
|
|
3,404
|
|
508,065
|
|
(18
|
)
|
(13
|
)
|
Tshepong Operations
|
7,967
|
|
503,033
|
|
7,922
|
|
636,281
|
|
9,394
|
|
407,575
|
|
9,338
|
|
514,537
|
|
(23
|
)
|
(24
|
)
|
Moab Khotsong
|
7,928
|
|
399,414
|
|
7,794
|
|
477,581
|
|
3,296
|
|
314,526
|
|
3,165
|
|
420,286
|
|
(27
|
)
|
(14
|
)
|
Masimong
|
2,309
|
|
525,703
|
|
2,291
|
|
593,408
|
|
2,623
|
|
442,586
|
|
2,609
|
|
513,197
|
|
(19
|
)
|
(16
|
)
|
Target 1
|
2,653
|
|
557,264
|
|
2,685
|
|
662,816
|
|
2,854
|
|
467,271
|
|
2,828
|
|
582,200
|
|
(19
|
)
|
(14
|
)
|
Bambanani
|
2,515
|
|
391,550
|
|
2,495
|
|
441,226
|
|
2,821
|
|
320,724
|
|
2,804
|
|
360,462
|
|
(22
|
)
|
(22
|
)
|
Joel
|
1,567
|
|
617,116
|
|
1,612
|
|
701,644
|
|
1,635
|
|
556,468
|
|
1,656
|
|
661,921
|
|
(11
|
)
|
(6
|
)
|
Unisel
|
1,212
|
|
469,108
|
|
1,207
|
|
523,823
|
|
1,280
|
|
604,311
|
|
1,272
|
|
678,436
|
|
22
|
|
23
|
|
Other - surface
|
4,099
|
|
473,954
|
|
4,087
|
|
500,426
|
|
3,570
|
|
429,304
|
|
3,552
|
|
470,458
|
|
(10
|
)
|
(6
|
)
|
International
|
(2
|
)
|
|
(3
|
)
|
|
(2
|
)
|
|
(3
|
)
|
|
|
|
||||||
Hidden Valley(1)
|
6,222
|
|
220,323
|
|
6,192
|
|
497,399
|
|
2,862
|
|
287,028
|
|
2,763
|
|
466,256
|
|
23
|
|
(7
|
)
|
Total kg
|
44,734
|
|
|
44,568
|
|
|
38,193
|
|
|
37,692
|
|
|
|
|
||||||
Weighted average(1)
|
|
439,722
|
|
|
550,005
|
|
|
421,260
|
|
|
508,970
|
|
(4
|
)
|
(8
|
)
|
3
|
Excludes 2,021 kilograms in fiscal 2018 that have been credited against the capitalized costs as part of the pre-stripping of stages 5 and 6. No production for Hidden Valley was capitalized during fiscal 2019.
|
|
Fiscal year ended June 30,
|
|
Income and mining tax
|
2019
|
2018
|
Effective income and mining tax rate
|
5%
|
5%
|
•
|
Harmony company tax losses and deductible temporary differences for which future taxable profits are uncertain and not considered probable. This primarily relates to the provisions and foreign exchange losses on our US$ denominated loans. The amount decreased during fiscal 2019 as the translation loss decreased.
|
•
|
Hidden Valley's and the PNG exploration operations' respective tax losses and deductible temporary differences arising in the year for which future taxable profits are not considered probable.
|
•
|
No tax consequences relating to the impairment of assets for various operations.
|
•
|
Rate differences related to the additional capital allowances that may be deducted from mining taxable income in South Africa, which mainly relates to Avgold Limited (which includes the Target 1 operation).
|
|
Year Ended June 30, 2018
|
Year Ended June 30, 2017
|
Percentage
(increase)/decrease
|
|||||||||||||||||
|
Cash costs
|
All-in sustaining
costs*
|
Cash costs
|
All-in sustaining
costs*
|
Cash
costs
per
kilogram
|
All-in
sustain-ing
costs per
kilogram
|
||||||||||||||
|
(kg
pro-duced)
|
(R/kg)
|
(kg sold)
|
(R/kg)
|
(kg
pro-duced)
|
(R/kg)
|
(kg sold)
|
(R/kg)
|
||||||||||||
South Africa
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Kusasalethu
|
4,429
|
|
472,177
|
|
4,301
|
|
554,302
|
|
4,394
|
|
459,422
|
|
4,498
|
|
541,247
|
|
(3
|
)
|
(2
|
)
|
Doornkop
|
3,429
|
|
413,586
|
|
3,404
|
|
508,065
|
|
2,673
|
|
457,752
|
|
2,712
|
|
562,907
|
|
10
|
|
10
|
|
Tshepong Operations
|
9,394
|
|
407,575
|
|
9,338
|
|
514,537
|
|
8,828
|
|
416,493
|
|
8,816
|
|
507,368
|
|
2
|
|
(1
|
)
|
Moab Khotsong
|
3,296
|
|
314,526
|
|
3,165
|
|
420,286
|
|
n/a
|
|
n/a
|
|
n/a
|
|
n/a
|
|
(100
|
)
|
(100
|
)
|
Masimong
|
2,623
|
|
442,586
|
|
2,609
|
|
513,197
|
|
2,538
|
|
439,457
|
|
2,539
|
|
500,938
|
|
(1
|
)
|
(2
|
)
|
Target 1
|
2,854
|
|
467,271
|
|
2,828
|
|
582,200
|
|
2,669
|
|
508,082
|
|
2,642
|
|
651,833
|
|
8
|
|
11
|
|
Bambanani
|
2,821
|
|
320,724
|
|
2,804
|
|
360,462
|
|
2,750
|
|
317,833
|
|
2,745
|
|
357,025
|
|
(1
|
)
|
(1
|
)
|
Joel
|
1,635
|
|
556,468
|
|
1,656
|
|
661,921
|
|
2,246
|
|
413,088
|
|
2,280
|
|
477,484
|
|
(35
|
)
|
(39
|
)
|
Unisel
|
1,280
|
|
604,311
|
|
1,272
|
|
678,436
|
|
1,595
|
|
525,732
|
|
1,590
|
|
591,913
|
|
(15
|
)
|
(15
|
)
|
Other - surface
|
3,570
|
|
429,304
|
|
3,552
|
|
470,458
|
|
3,178
|
|
434,031
|
|
3,209
|
|
476,431
|
|
1
|
|
1
|
|
International
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Hidden Valley(1)
|
2862
|
|
287,028
|
|
2763
|
|
466,256
|
|
2,965
|
|
466,847
|
|
3,119
|
|
543,186
|
|
39
|
|
14
|
|
Total operations
|
38,193
|
|
|
|
37,692
|
|
|
|
33,836
|
|
|
|
34,150
|
|
|
|
|
|
|
|
Weighted average
|
|
421,260
|
|
|
508,970
|
|
|
436,917
|
|
|
516,687
|
|
4
|
|
1
|
|
1
|
Cash costs and all-in sustaining costs would have been R351,116 per kilogram and R534,777 per kilogram (2017: R547,320 per kilogram and R619,141 per kilogram) respectively had silver byproduct credits of R51 million (2017: R209 million) or R64,088 per kilogram produced, R68,521 per kilogram sold (2017: R80,472 per kilogram produced, R75,955 per kilogram sold) not been taken into account.
|
2
|
Excludes 2,068 kilograms in fiscal 2018 and 364 kilograms in fiscal 2017, that have been credited against the capitalized cost as part of the pre-stripping of stages 5 and 6.
|
3
|
Excludes 2,021 ounces in fiscal 2018 and 364 kilograms in fiscal 2017, that have been credited against the capitalized cost as part of the pre-stripping of stages 5 and 6.
|
|
Fiscal year ended June 30,
|
|
Income and mining tax
|
2018
|
2017
|
Effective income and mining tax rate
|
5%
|
347%
|
•
|
Harmony company tax losses and deductible temporary differences for which future taxable profits are uncertain and not considered probable. This primarily relates to the impairment of assets and foreign exchange losses on the US$ loan.
|
•
|
Hidden Valley operation's and the PNG exploration operations' respective tax losses and deductible temporary differences arising in the year for which future taxable profits are not considered probable.
|
•
|
No tax consequences relating to the impairment of assets for various operations.
|
•
|
Rate differences related to the additional capital allowances that may be deducted from mining taxable income in South Africa, which mainly relates to Avgold Limited (which includes the Target 1 operation).
|
|
Fiscal year ended June 30,
|
|||||
|
2019
|
2018
|
2017
|
|||
|
(R in millions)
|
|||||
Operating cash flows
|
4,679
|
|
3,884
|
|
3,804
|
|
Investing cash flows
|
(4,797
|
)
|
(8,075
|
)
|
(3,383
|
)
|
Financing cash flows
|
380
|
|
3,723
|
|
(450
|
)
|
Foreign exchange differences
|
25
|
|
(72
|
)
|
19
|
|
Total cash flows
|
287
|
|
(540
|
)
|
(10
|
)
|
|
The Group’s interest cover ratio shall not be less than five (EBITDA1/Total interest paid).
|
|
Tangible net worth2 to total net debt ratio shall not be less than 4 times or 6 times when dividends are paid.
|
|
Leverage3 shall not be more than 2.5 times.
|
1
|
EBITDA as defined in the agreement excludes unusual items such as impairment and restructuring cost.
|
2
|
Tangible net worth is defined as total equity less intangible assets.
|
3
|
Leverage is defined as total net debt to EBITDA.
|
|
R’million
|
|
|
|
|
Authorized and contracted for1
|
418
|
|
Authorized but not yet contracted for
|
1,499
|
|
Total
|
1,917
|
|
|
Payments Due by Period
|
|||||||||
|
Total
|
Less Than 12 Months July 1, 2019 to June 30, 2020
|
12-36 Months July 1, 2020 to June 30, 2022
|
36-60 Months July 1, 2022 To June 30, 2024
|
After 60 Months Subsequent June 30, 2024
|
|||||
|
(R’million)
|
(R’million)
|
(R’million)
|
(R’million)
|
(R’million)
|
|||||
|
|
|
|
|
|
|||||
Bank facilities1
|
6,686
|
|
483
|
|
5,111
|
|
1,092
|
|
—
|
|
Post-retirement health care2
|
201
|
|
—
|
|
—
|
|
—
|
|
201
|
|
Environmental obligations3
|
3,054
|
|
—
|
|
—
|
|
—
|
|
3,054
|
|
Total contractual obligations
|
9,941
|
|
483
|
|
5,111
|
|
1,092
|
|
3,255
|
|
1
|
See Item 5: “Operating and Financial Review and Prospects - Liquidity and Capital Resources - Outstanding Credit Facilities and Other Borrowings”. The amounts include the interest payable over the terms of the facilities. Where a variable rate is applicable, the rate at the reporting date has been used for the future periods.
|
2
|
This liability relates to post-retirement medical benefits of Freegold and Moab Khotsong employees at the time of acquisition as well as for former employees who retired prior to December 31, 1996 and is based on actuarial valuations conducted during fiscal 2019.
|
3
|
We make provision for environmental rehabilitation costs and related liabilities based on management’s interpretations of current environmental and regulatory requirements. See Item 5: “Operating and Financial Review and Prospects - Operating Results - Critical Accounting Policies and Estimates - Provision for environmental rehabilitation”.
|
|
Amount of Commitments Expiring by Period
|
|||||||||
|
Total
|
Less Than 12 Months July 1, 2019 to June 30, 2020
|
12-36 Months July 1, 2020 to June 30, 2022
|
36-60 Months July 1, 2022 To June 30, 2024
|
After 60 Months Subsequent June 30, 2024
|
|||||
|
(R’million)
|
(R’million)
|
(R’million)
|
(R’million)
|
(R’million)
|
|||||
|
|
|
|
|
|
|||||
Guarantees1
|
622
|
|
—
|
|
—
|
|
—
|
|
622
|
|
Capital commitments2
|
1,917
|
|
1,917
|
|
—
|
|
—
|
|
—
|
|
Total commitments expiring by period
|
2,539
|
|
1,917
|
|
—
|
|
—
|
|
622
|
|
2
|
Capital commitments consist only of amounts committed to external suppliers, although a total of R1.9 billion has been approved by the board for capital expenditures.
|
•
|
“Board of directors” and “Executive management” on pages 29 to 33
|
•
|
“-Leadership and governance-Remuneration report” on pages 121 to 139
|
•
|
“-Leadership and governance-Corporate governance” on pages 104 to 120;
|
•
|
“-Leadership and governance-Remuneration report” on pages 121 to 139; and
|
•
|
“-Leadership and governance-Audit and risk committee chairman’s report” on pages 140 to 144.
|
•
|
“-Ensuring employee safety and well-being-maintaining stability in our workplace” on pages 33 to 56
|
•
|
“-Leadership and governance-Remuneration report” on pages 121 to 139
|
Holder
|
Number of shares
|
Percentage
|
|
|
|
|
|
Deutsche Bank Trust Company Americas 1
|
256,339,874
|
47.48
|
%
|
African Rainbow Minerals Limited2
|
74,665,545
|
13.83
|
%
|
Van Eck Global 3
|
62,415,490
|
11.56
|
%
|
1
|
Deutsche Bank Trust Company Americas has acted as the depositary (“Depositary”) with respect to the ADSs evidenced by ADRs as of October 10, 2011. Holding disclosed represents outstanding ADRs on September 30, 2019.
|
2
|
Patrice Motsepe, our Chairman, has an indirect holding in African Rainbow Minerals Limited.
|
3
|
Van Eck Global’s group holding is held in in the form of ADRs and is included in (1) above.
|
•
|
2.5% per annum from October 18, 2017 to, but excluding, the date that is six months after October 18, 2017 (the "First Margin Step-up Date");
|
•
|
3.0% per annum from the First Margin Step-up Date to, but excluding, the date falling three months after the First Margin Step-up Date (the "Second Margin Step-up Date"); and
|
•
|
3.5% per annum from the Second Margin Step-up Date until the date that is twelve months after October 18, 2017.
|
•
|
80% or more of the market value of the equity shares, ownership or right to ownership or vested interest, as the case may be, at the time of disposal thereof is attributable directly or indirectly to immovable property held otherwise than as trading stock; and
|
•
|
the person directly or indirectly holds at least 20% of the equity shares in the company or ownership or right to ownership of the other entity.
|
•
|
an individual who is a citizen or resident of the United States;
|
•
|
a corporation (or other entity taxable as a corporation for US federal income tax purposes) organized under the laws of the United States, any state thereof, or the District of Columbia;
|
•
|
an estate whose income is subject to US federal income tax regardless of its source; or
|
•
|
a trust if: (i) a US court can exercise primary supervision over the trust’s administration and one or more US persons are authorized to control all substantial decisions of the trust or (ii) it has a valid election in effect under applicable US Treasury regulations to be treated as a US person.
|
•
|
in the case of a hedge of an anticipated future transaction, there is a high probability that the transaction will occur, and
|
•
|
in the case of a cash flow hedge, the hedging instrument is expected to be highly effective.
|
|
Fiscal year ended June 30,
|
||||
|
2019
|
|
2018
|
|
2017
|
|
(R in millions)
|
||||
Increase in 100 basis points
|
(59)
|
|
(56)
|
|
(21)
|
Decrease in 100 basis points
|
59
|
|
56
|
|
21
|
|
Fiscal year ended June 30,
|
||||
|
2019
|
|
2018
|
|
2017
|
|
(R in millions)
|
||||
Increase in 100 basis points
|
44
|
|
32
|
|
31
|
Decrease in 100 basis points
|
(44)
|
|
(32)
|
|
(31)
|
Persons depositing shares or withdrawing shares holders must pay:
|
|
For:
|
|
|
|
$5.00 (or less) per 100 ADSs (or portion of 100 ADSs)
|
|
• The execution and delivery of ADRs
|
|
|
•
The surrender of ADRs
|
$.02 (or less) per ADS
|
|
•
Any cash distribution to you
|
A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs
|
|
•
Distribution of securities distributed to holders of deposited securities which are distributed by the depositary to ADR holders
|
Registration or transfer fees
|
|
•
Transfer and registration of equity shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares
|
Expenses of the depositary
|
|
•
Cable, telex and facsimile transmissions (when expressly provided in the Deposit Agreement)
|
|
|
•
Converting foreign currency
|
Taxes and other governmental charges the depositary or the custodian have to pay on any ADR or share underlying an ADR, for example, stock transfer taxes, stamp duty or withholding taxes
|
|
•
As necessary
|
Any charges incurred by the depositary or its agents for servicing the deposited securities
|
|
•
As necessary
|
•
|
refuse to effect any transfer of such ADRs or any withdrawal of ADSs;
|
•
|
withhold any dividends or other distributions; or
|
•
|
sell part or all of the ADSs evidenced by such ADR,
|
Fiscal year ended June 30, 2018
|
Rand
|
30 million
|
Fiscal year ended June 30, 2019
|
Rand
|
30 million
|
Fiscal year ended June 30, 2018
|
Rand
|
5 million
|
Fiscal year ended June 30, 2019
|
Rand
|
5 million
|
Fiscal year ended June 30, 2018
|
Rand
|
1 million
|
Fiscal year ended June 30, 2019
|
Rand
|
1 million
|
Fiscal year ended June 30, 2018
|
Rand
|
1 million
|
Fiscal year ended June 30, 2019
|
Rand
|
1 million
|
Metric unit
|
|
US equivalent
|
1 tonne
|
= 1 t
|
= 1.10231 short tons
|
1 gram
|
= 1 g
|
= 0.03215 ounces
|
1 gram per tonne
|
= 1 g/t
|
= 0.02917 ounces per short ton
|
1 kilogram per tonne
|
= 1 kg/t
|
= 29.16642 ounces per short ton
|
1 kilometer
|
= 1 km
|
= 0.621371 miles
|
1 meter
|
= 1 m
|
= 3.28084 feet
|
1 centimeter
|
= 1 cm
|
= 0.3937 inches
|
1 millimeter
|
= 1 mm
|
= 0.03937 inches
|
1 hectare
|
= 1 ha
|
= 2.47105 acres
|
•
|
development of additional reserves;
|
•
|
depletion of existing reserves through production;
|
•
|
actual mining experience; and
|
•
|
price forecasts.
|
•
|
Index to Financial Statements;
|
•
|
Report of Independent Registered Public Accounting Firm; and
|
•
|
Consolidated Financial Statements.
|
1.1
|
|
2.1
|
|
2.2
|
Amended and Restated Deposit Agreement among Harmony, Deutsche Bank Trust Company Limited, as Depositary, and owners and holders of American Depositary Receipts, dated as of October 7, 2011 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2011, filed on October 24, 2011) http://www.sec.gov/Archives/edgar/data/1023514/000119312511278584/d242812dex22.htm
|
2.3
|
Form of ADR (included in Exhibit 2.2) (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2011, filed on October 24, 2011) http://www.sec.gov/Archives/edgar/data/1023514/000119312511278584/d242812dex22.htm
|
4.1
|
Deed of Extinguishment of Royalty (Wafi-Golpu Project) dated February 16, 2009 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2009, filed on October 26, 2009) http://www.sec.gov/Archives/edgar/data/1023514/000095012309053204/u07679exv4w25.htm
|
4.2
|
Subscription, Sale and Shareholders’ Agreement dated March 20, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited, Business Venture Investments No. 1688 Proprietary Limited and the Trustees for the time being of the Harmony Gold Community Trust (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex423.htm
|
4.3
|
First Addendum to the Subscription, Sale and Shareholders’ Agreement dated May 28, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited, Business Venture Investments No. 1688 Proprietary Limited and the Trustees for the time being of the Harmony Gold Community Trust (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex424.htm
|
4.4
|
Second Addendum to the Subscription, Sale and Shareholders’ Agreement dated July 10, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited, Business Venture Investments No. 1688 Proprietary Limited and the Trustees for the time being of the Harmony Gold Community Trust (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex425.htm
|
4.5
|
Contractor Agreement dated March 20, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited and ARMGold/Harmony Freegold Joint Venture Company (Proprietary) Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex427.htm
|
4.6
|
Services Agreement dated March 20, 2013 between Harmony Gold Mining Company Limited and Business Venture Investments No. 1692 Proprietary Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex428.htm
|
4.7
|
Sale of Property Agreement dated March 20, 2013 between ARMGold/Harmony Freegold Joint Venture Company (Proprietary) Limited and Business Venture Investments No. 1692 Proprietary Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex429.htm
|
4.8
|
Agreement of Lease dated March 20, 2013 between ARMGold/Harmony Freegold Joint Venture Company (Proprietary) Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex430.htm
|
4.9
|
Borrower Pledge and Cession Agreement dated March 20, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex431.htm
|
4.10
|
Borrower Pledge and Cession Agreement dated March 20, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex432.htm
|
4.11
|
Borrower Pledge and Cession Agreement dated March 20, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex433.htm
|
4.12
|
Borrower Pledge and Cession Agreement dated March 20, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex434.htm
|
4.13
|
Cashflow Waterfall Agreement dated March 20, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited and Business Venture Investments No. 1688 Proprietary Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex435.htm
|
4.14
|
Addendum to the Cashflow Waterfall Agreement dated May 28, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited and Business Venture Investments No. 1688 Proprietary Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex436.htm
|
4.14
|
Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex437.htm
|
4.15
|
Addendum to the Term Loan Facility Agreement dated May 23, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex438.htm
|
4.16
|
Waiver letter dated June 24, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex439.htm
|
4.16
|
Extension letter dated May 10, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex440.htm
|
4.17
|
Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex441.htm
|
4.18
|
Addendum to the Term Loan Facility Agreement dated May 24, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex442.htm
|
4.18
|
Waiver letter dated June 24, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex443.htm
|
4.19
|
Extension letter dated May 10, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex444.htm
|
4.20
|
Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex445.htm
|
4.21
|
Addendum to the Term Loan Facility Agreement dated May 24, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex446.htm
|
4.22
|
Waiver letter dated June 24, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex447.htm
|
4.23
|
Extension letter dated May 10, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex448.htm
|
4.24
|
Term Loan Facility Agreement dated March 20, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex449.htm
|
4.25
|
Addendum to the Term Loan Facility Agreement dated May 24, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex450.htm
|
4.26
|
Waiver letter dated June 24, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex451.htm
|
4.27
|
Extension letter dated May 10, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex452.htm
|
4.28
|
First Addendum to the Exchange and Sale of Mining Right Portions Agreement dated April 16, 2014 between Armgold/Harmony Freegold Joint Venture Company Proprietary Limited and Sibanye Gold Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2014, filed on October 23, 2014) http://www.sec.gov/Archives/edgar/data/1023514/000119312514379647/d804845dex453.htm
|
4.29
|
Reinstatement and Second Addendum to the Exchange and Sale of Mining Right Portions Agreement dated May 6, 2014 between Armgold/Harmony Freegold Joint Venture Company Proprietary Limited and Sibanye Gold Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2014, filed on October 23, 2014)
|
4.31
|
Loan Agreement between Harmony Gold Mining Company Limited and the Trustees for the time being of the ARM Broad-Based Economic Empowerment Trust, dated March 1, 2016 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2016, filed on October 26, 2016) http://www.sec.gov/Archives/edgar/data/1023514/000120561316000327/ex4_63.htm
|
4.32
|
Intercreditor agreement between African Rainbow Minerals Limited and Harmony Gold Mining Company Limited, dated March 1, 2016 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2016, filed on October 26, 2016) http://www.sec.gov/Archives/edgar/data/1023514/000120561316000327/ex4_64.htm
|
4.33
|
Second Amendment and Restatement Agreement amongst Nedbank Limited (acting through its Corporate and Investment Banking division) (as Original Lender, Arranger and Facility Agent), the Trustees for the time being of the ARM Broad-Based Economic Empowerment Trust (as Borrower), African Rainbow Minerals Limited (as Guarantor) and Harmony Gold Mining Company Limited (as Guarantor), dated March 1, 2016 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2016, filed on October 26, 2016) http://www.sec.gov/Archives/edgar/data/1023514/000120561316000327/ex4_67.htm
|
4.34
|
Subordination Agreement between Nedbank Limited (acting through its Corporate and Investment Banking division), the Trustees for the time being of the ARM Broad-Based Economic Empowerment Trust, African Rainbow Minerals Limited and Harmony Gold Mining Company Limited, dated March 1, 2016 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2016, filed on October 26, 2016) http://www.sec.gov/Archives/edgar/data/1023514/000120561316000327/ex4_68.htm
|
4.38
|
Harmony Gold Mining Company Limited 2006 Share Plan as amended and approved November 25, 2016 (incorporated by reference to /Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2017, filed on October 26, 2017) http://www.sec.gov/Archives/edgar/data/1023514/000162828017010249/exhibit438harmonygold2006s.htm
|
4.39
|
Wafi-Golpu Joint Venture Agreement, dated May 22, 2008 between Wafi Mining Limited, Newcrest PNG 2 Limited and Wafi-Golpu Services Limited (incorporated by reference to /Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2017, filed on October 26, 2017) http://www.sec.gov/Archives/edgar/data/1023514/000162828017010249/exhibit439wafi-golpujointv.htm
|
4.45
|
Term and Revolving Credit Facilities Agreement of up to US$350,000,000 dated July 28, 2017 among Harmony Gold Mining Company Limited, Nedbank Limited, Absa Bank Limited, JP Morgan Chase Bank, Caterpillar Financial Services Corporation, HSBC Bank plc, The State Bank of India, Citibank, NA, and the Bank of China http://www.sec.gov/Archives/edgar/data/1023514/000162828018012896/exhibit445facilitiesagreem.htm
|
4.48
|
ESOP trust deed http://www.sec.gov/Archives/edgar/data/1023514/000162828018012896/exhibit448esoptrustdeed.htm
|
4.50
|
|
4.51
|
|
4.52
|
|
8.1
|
Significant subsidiaries of Harmony Gold Mining Company Limited http://www.sec.gov/Archives/edgar/data/1023514/000162828018012896/exhibit81significantsubsid.htm
|
†12.1
|
|
†12.2
|
|
†13.1
|
|
†13.2
|
|
††15.1
|
|
99.1
|
|
†
|
This certification will not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that section. Such certification will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except to the extent that the Registrant specifically incorporates it by reference.
|
††
|
Certain of the information included in Exhibit 15.1 is incorporated by reference into the Harmony 2019 Form 20-F, as specified elsewhere in this report, in accordance with Rule 12b-23(a) of the Exchange Act. With the exception of the items so specified, the Integrated Annual Report for the 20-F 2019 is not deemed to be filed as part of Harmony 2019 Form 20-F.
|
101.INS
|
XBRL Instance Document
|
101.SCH
|
XBRL Taxonomy Extension Schema Linkbase Document
|
101.CAL
|
XBRL Taxonomy Extension Calculation Linkbase Document
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101.DEF
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XBRL Taxonomy Extension Definition Linkbase Document
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101.LAB
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XBRL Taxonomy Extension Label Linkbase Document
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101.PRE
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XBRL Taxonomy Extension Presentation Linkbase Document
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1
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INTERPRETATION 1
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2
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JURISTIC PERSONALITY 6
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3
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LIMITATION OF LIABILITY 6
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4
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POWERS OF THE COMPANY 6
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5
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RESTRICTIVE CONDITIONS 7
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6
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ISSUE OF SHARES AND VARIATION OF RIGHTS 7
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7
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CERTIFICATED AND UNCERTIFICATED SECURITIES 10
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8
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SECURITIES REGISTER 11
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9
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TRANSFER OF SECURITIES 14
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10
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NO LIEN 15
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11
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TRANSMISSION OF SECURITIES 15
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12
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RESTRICTIONS ON DEBT INSTRUMENTS 16
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13
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CAPITALISATION SHARES 16
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14
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BENEFICIAL INTERESTS IN SECURITIES 17
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15
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FINANCIAL ASSISTANCE 17
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16
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ACQUISITION BY THE COMPANY OF ITS OWN SHARES 18
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17
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RECORD DATE FOR EXERCISE OF SHAREHOLDER RIGHTS 18
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18
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SHAREHOLDERS' MEETINGS 19
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19
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SHAREHOLDERS' MEETINGS BY ELECTRONIC COMMUNICATION 24
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20
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VOTES OF SHAREHOLDERS 24
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21
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PROXIES AND REPRESENTATIVES 27
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22
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SHAREHOLDERS' RESOLUTIONS 30
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23
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SHAREHOLDERS ACTING OTHER THAN AT A MEETING 31
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24
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COMPOSITION OF THE BOARD OF DIRECTORS 31
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25
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POWERS OF THE BOARD OF DIRECTORS 34
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26
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DIRECTORS' MEETINGS 36
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27
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DIRECTORS' COMPENSATION AND FINANCIAL ASSISTANCE 39
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28
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EXECUTIVE DIRECTORS 40
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29
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INDEMNIFICATION OF DIRECTORS 41
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30
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BORROWING POWERS 42
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31
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COMMITTEES OF THE BOARD 42
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32
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ANNUAL FINANCIAL STATEMENTS 43
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33
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COMPANY SECRETARY 45
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34
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DISTRIBUTIONS 45
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35
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ACCESS TO COMPANY RECORDS 47
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36
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PAYMENT OF COMMISSION 49
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37
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NOTICES 49
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38
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AMENDMENT OF MEMORANDUM OF INCORPORATION 51
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39
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COMPANY RULES 51
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1
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INTERPRETATION
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1.1
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In this Memorandum of Incorporation, unless the context clearly indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings –
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1.1.1
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"Act" means the Companies Act, No. 71 of 2008, as amended, consolidated or re-enacted from time to time, and includes the Regulations and all schedules to such Act;
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1.1.2
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"Board" means the board of Directors of the Company from time to time;
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1.1.3
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"Certificated Securities" means Securities issued by the Company that are not Uncertificated Securities;
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1.1.4
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"Central Securities Depositary" has the meaning set out in section 1 of the Securities Services Act;
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1.1.5
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"Commission" means the Companies and Intellectual Property Commission established by section 185 of the Act;
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1.1.6
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"Company" means the company named on the first page of this document, duly incorporated under the registration number endorsed thereon;
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1.1.7
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"Director" means a member of the Board as contemplated in section 66 of the Act, and includes any person occupying the position of a director, by whatever name designated;
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1.1.8
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"Electronic Communication" has the meaning set out in section 1 of the Electronic Communications and Transactions Act, No 25 of 2002;
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1.1.9
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"IFRS" means the International Financial Reporting Standards formulated by the International Accounting Standards Board, or its successor body;
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1.1.10
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"JSE" means the exchange, licensed under the Security Services Act, operated by JSE Limited (Registration number 2005/022939/06), a public company duly incorporated in the Republic;
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1.1.11
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"JSE Listings Requirements" means the Listings Requirements of the JSE applicable from time to time;
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1.1.12
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“Ordinary Share” means an ordinary no par value Share in the authorised share capital of the Company, having the rights and privileges set out in clause 6.1.1;
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1.1.13
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"Participant" has the meaning set out in section 1 of the Securities Services Act;
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1.1.14
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“Preference Share” shall have the meaning given thereto in Schedule 1;
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1.1.15
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"Regulations" means the regulations published in terms of the Act from time to time;
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1.1.16
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"Republic" means the Republic of South Africa;
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1.1.17
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"Securities" means -
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1.1.17.1
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any shares, notes, bonds, debentures or other instruments, irrespective of their form or title, issued, or authorised to be issued, by the Company; or
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1.1.17.2
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anything falling within the meaning of "securities" as set out in section 1 of the Securities Services Act;
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1.1.18
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"Securities Register" means the register of issued Securities of the Company required to be established in terms of section 50(1) of the Act and referred to in clause 8;
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1.1.19
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"Securities Services Act" means the Securities Services Act, No 36 of 2004, including any amendment, consolidation or re-enactment thereof;
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1.1.20
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"SENS" means the Securities Exchange News Service established and operated by the Listings Division of the JSE;
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1.1.21
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"Share" means one of the units into which the proprietary interest in the Company is divided;
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1.1.22
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"Shareholder" means the holder of a Share issued by the Company who is entered as such in the Securities Register, subject to the provisions of section 57(1) of the Act;
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1.1.23
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"Solvency and Liquidity Test" has the meaning attributed thereto in section 4 of the Act;
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1.1.24
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"Sub-register" means the record of Uncertificated Securities administered and maintained by a Participant, which forms part of the Securities Register in terms of the Act;
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1.1.25
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"Uncertificated Securities" means any "uncertificated securities" defined as such in section 29 of the Securities Services Act; and
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1.1.26
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"Uncertificated Securities Register" means the record of uncertificated securities administered and maintained by a Participant or Central Securities Depositary, as determined in accordance with the rules of the Central Securities Depositary.
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1.2
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In this Memorandum of Incorporation, unless the context clearly indicates otherwise –
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1.2.1
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words and expressions defined in the Act and which are not defined herein shall have the meanings given to them in the Act;
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1.2.2
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a reference to the Act shall include reference to the Regulations;
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1.2.3
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a reference to a section by number refers to the corresponding section of the Act;
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1.2.4
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a reference to a clause by number refers to a corresponding provision of this Memorandum of Incorporation;
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1.2.5
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in any instance where there is a conflict between a provision (be it expressed, implied or tacit) of this Memorandum of Incorporation and –
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1.2.5.1
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an alterable provision of the Act, the provision of this Memorandum of Incorporation shall prevail to the extent that it alters an alterable provision of the Act; and
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1.2.5.2
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an unalterable provision of the Act, the unalterable provision of the Act shall prevail to the extent of the conflict unless the Memorandum of Incorporation imposes on the Company a higher standard, greater restriction, longer period of time or similarly more onerous requirement than would otherwise apply to the company in terms of an unalterable provision of the Act, in which event the relevant provision of this Memorandum of Incorporation shall prevail to the extent of the conflict;
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1.2.6
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clause headings are for convenience only and are not to be used in its interpretation;
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1.2.7
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an expression which denotes -
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1.2.7.1
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any gender includes the other genders;
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1.2.7.2
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a natural person includes a juristic person and vice versa; and
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1.2.7.3
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the singular includes the plural and vice versa;
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1.2.8
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if the due date for performance of any obligation in terms of this Memorandum of Incorporation is a day which is not a business day then (unless otherwise stipulated), the due date for performance of the relevant obligation shall be the immediately succeeding business day;
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1.2.9
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any words or expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout the whole of this Memorandum of Incorporation;
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1.2.10
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any reference to a notice shall be construed as a reference to a written notice, and shall include a notice which is transmitted electronically in a manner and form permitted in terms of the Act and/or the Regulations.
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1.3
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Any reference in this Memorandum of Incorporation to –
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1.3.1
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"days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic from time to time;
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1.3.2
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"law" means any law of general application, as amended and re-enacted from time to time, and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law; and
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1.3.3
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"writing" means legible writing and in English and includes printing, typewriting, lithography or any other mechanical process, as well as any electronic communication in a manner and a form permitted in terms of the Act and/or the Regulations.
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1.4
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The words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "include" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
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1.5
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Unless otherwise provided, defined terms appearing in this Memorandum of Incorporation in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning.
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1.6
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Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
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1.7
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Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.
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1.8
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Any reference herein to "this Memorandum of Incorporation" shall be construed as a reference to this Memorandum of Incorporation as amended from time to time.
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2
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JURISTIC PERSONALITY
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2.1
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The Company is a pre-existing company as defined in the Act and, as such, continues to exist as a public company as if it had been incorporated and registered in terms of the Act, as contemplated in item 2 of the Fifth Schedule to the Act, and this Memorandum of Incorporation replaces and supersedes the Memorandum and Articles of Association of the Company applicable immediately prior to the filing hereof.
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2.2
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The Company is governed by –
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2.2.1
|
the unalterable provisions of the Act, subject only to any higher standard, greater restriction, longer period of time or similarly more onerous requirement imposed on the Company by this Memorandum of Incorporation than would otherwise have applied to the Company in terms of the unalterable provisions of the Act;
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2.2.2
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the alterable provisions of the Act, subject to the extent that this Memorandum of Incorporation alters the effect of such alterable provision of the Act; and
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2.2.3
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the other provisions of this Memorandum of Incorporation, dealing with such matters as the Act does not address.
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3
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LIMITATION OF LIABILITY
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4
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POWERS OF THE COMPANY
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4.1
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The Company has all of the legal powers and capacity contemplated in the Act, and no provision contained in this Memorandum of Incorporation should be interpreted or construed as negating, limiting, or restricting those powers in any way whatsoever.
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4.2
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The legal powers and capacity of the Company are not subject to any restrictions, limitations or qualifications, as contemplated in section 19(1)(b)(ii) of the Act.
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5
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RESTRICTIVE CONDITIONS
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6
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ISSUE OF SHARES AND VARIATION OF RIGHTS
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6.1
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The Company is authorised to issue –
|
6.1.1
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1,200,000,000 (one billion and two hundred million) Ordinary Shares with no par value, of the same class, each of which ranks pari passu in respect of all rights and entitles the holder to –
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6.1.1.1
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vote on any matter to be decided by the Shareholders of the Company and to 1 (one) vote in respect of each Ordinary Share held in the case of a vote by means of a poll;
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6.1.1.2
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participate proportionally in any distribution made by the Company (excluding any distribution made in respect of the Preference Shares in terms of paragraph 3 of Schedule 1); and
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6.1.1.3
|
receive proportionally the net assets of the Company upon its liquidation;
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6.1.2
|
such number of each of such further classes of Shares, if any, as are set out in Schedule 1 hereto. The Shares in each such further class shall rank pari passu in respect of all rights and be subject to the preferences, rights, limitations and other terms associated with each such class set out in the applicable Schedule to this Memorandum of Incorporation.
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6.2
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The Board shall have all of the powers afforded to it in terms of this Memorandum of Incorporation and under and in terms of the Act, except for the power to –
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6.2.1
|
create any class of Shares;
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6.2.2
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convert one class of Shares into one or more other classes; or
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6.2.3
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increase or decrease the number of authorised Shares of any class of the Company’s Shares; or
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6.2.4
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consolidate and reduce the number of the Company's issued and authorised Shares of any class; or
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6.2.5
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subdivide its Shares of any class by increasing the number of its issued and authorised Shares of that class without an increase of its capital; or
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6.2.6
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reclassify any classified Shares that have been authorised but not issued; or
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6.2.7
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classify any unclassified Shares that have been authorised but not issued; or
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6.2.8
|
determine or vary the preferences, rights, limitations or other terms of any Shares, which powers shall only be capable of being exercised by the Shareholders by way of a special resolution of the Shareholders.
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6.3
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Each Share issued by the Company has associated with it an irrevocable right of the Shareholder to vote on any proposal to amend the preferences, rights, limitations and other terms associated with that Share as contemplated in clause 20.2.
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6.4
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In addition, and without prejudice to the provisions of clause 6.2, the name of the Company, the numbers of authorised Shares of each class, and the preferences, rights, limitations and other terms associated with each class of Shares as set out in this Memorandum of Incorporation may be changed only by an amendment of this Memorandum of Incorporation by special resolution of the Shareholders and in accordance with the JSE Listings Requirements, and such amendments shall not be implemented without a special resolution adopted by the holders of Shares of that class at a separate meeting.
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6.5
|
No Shares may be authorised in respect of which the preferences, rights, limitations or any other terms of any class of Shares may be varied in response to any objectively ascertainable external fact or facts as provided for in sections 37(6) and 37(7) of the Act.
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6.6
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The Company may only issue Shares which are fully paid up and freely transferable and only within the classes and to the extent that those Shares have been authorised by or in terms of this Memorandum of Incorporation.
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6.7
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The Board may, subject to clause 6.11 and the further provisions of this clause 6.7, resolve to issue Shares at any time, but only within the classes and to the extent that those Shares have been authorised by or in terms of this Memorandum of Incorporation.
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6.8
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All issues of Shares for cash and all issues of options and convertible securities granted or issued for cash must, in addition, be in accordance with the JSE Listings Requirements.
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6.9
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All Securities of the Company for which a listing is sought on the JSE and all Securities of the same class as Securities of the Company which are listed on the JSE must, notwithstanding the provisions of section 40(5) of the Act, but unless otherwise required by the Act, only be issued after the Company has received the consideration approved by the Board for the issuance of such Securities.
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6.10
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Subject to what may be authorised by the Act, the JSE Listings Requirements and at meetings of Shareholders in accordance with clause 6.12, and subject to clause 6.11, the Board may only issue unissued Shares if such Shares have first been offered to existing Shareholders in proportion to their shareholding on such terms and in accordance with such procedures as the Board may determine, unless such Shares are issued for the acquisition of assets by the Company.
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6.11
|
Notwithstanding the provisions of clauses 6.2, 6.10 and 6.12, any issue of Shares, Securities convertible into Shares, or rights exercisable for Shares in a transaction, or a series of integrated transactions shall, in accordance with the provisions of section 41(3) of the Act, require the approval of the Shareholders by special resolution if the voting power of the class of Shares that are issued or are issuable as a result of the transaction or series of integrated transactions will be equal to or exceed 30% (thirty percent) of the voting power of all the Shares of that class held by Shareholders immediately before that transaction or series of integrated transactions.
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6.12
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Notwithstanding the provisions of clause 6.10, the Shareholders may at a general meeting authorise the Directors to issue Shares and/or grant options to subscribe for Shares as the Directors in their discretion think fit, provided that such transaction(s) has/have been approved by the JSE and comply with the JSE Listings Requirements.
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6.13
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Except to the extent that any such right is specifically included as one of the rights, preferences or other terms upon which any class of Shares is issued or as may otherwise be provided in this Memorandum of Incorporation, and particularly clause 6.10 of this Memorandum of Incorporation, no Shareholder shall have any pre-emptive or other similar preferential right to be offered or to subscribe for any additional Shares issued by the Company.
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7
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CERTIFICATED AND UNCERTIFICATED SECURITIES
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7.1
|
Securities of the Company are to be issued in certificated or uncertificated form, as shall be determined by the Board from time to time. Except to the extent otherwise provided in the Act, the rights and obligations of Security holders shall not be different solely on the basis of their Securities being Certificated Securities or Uncertificated Securities and each provision of this Memorandum of Incorporation applies with respect to any Uncertificated Securities in the same manner as it applies to Certificated Securities, unless otherwise stated or indicated by the context.
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7.2
|
Any Certificated Securities may cease to be evidenced by certificates and thereafter become Uncertificated Securities.
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7.3
|
Any Uncertificated Securities may be withdrawn from the Uncertificated Securities Register, and certificates issued evidencing those Securities at the election of the holder of those Uncertificated Securities. A holder of Uncertificated Securities who elects to withdraw all or part of the Uncertificated Securities held by it in an Uncertificated Securities Register, and obtain a certificate in respect of those withdrawn Securities, may so notify the relevant Participant or Central Securities Depository as required by the rules of the Central Securities Depository.
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7.4
|
After receiving notice from a Participant or Central Securities Depository, as the case may be, that the holder of Uncertificated Securities wishes to withdraw all or part of the Uncertificated Securities held by it in an Uncertificated Securities Register, and obtain a certificate in respect thereof, the Company shall –
|
7.4.1
|
immediately enter the relevant Security holder's name and details of its holding of Securities in the Securities Register and indicate on the Securities Register that the securities so withdrawn are no longer held in uncertificated form; and
|
7.4.2
|
within 10 (ten) business days (or 20 (twenty) business days in the case of a holder of Securities who is not resident within the Republic) prepare and deliver to the relevant
|
7.5
|
The Company may charge a holder of its Securities a reasonable fee to cover the actual cost of issuing any certificate as contemplated in this clause.
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8
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SECURITIES REGISTER
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8.1
|
The Company must establish or cause to be established a Securities Register in the form prescribed by the Act and the Regulations and maintain the Securities Register in accordance with the prescribed standards.
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8.2
|
As soon as practicable after the issue or transfer of any Securities, as the case may be, the Company must enter or cause to be entered in the Securities Register, in respect of every class of Securities it has issued or which have been transferred –
|
8.2.1
|
the total number of Uncertificated Securities;
|
8.2.2
|
with respect to Certificated Securities –
|
8.2.2.1
|
the names and addresses of the persons to whom the Certificated Securities were issued or transferred;
|
8.2.2.2
|
the number of Certificated Securities issued or transferred to each of them;
|
8.2.2.3
|
in the case of Securities other than Shares as contemplated in section 43 of the Act, the number of those Securities issued and outstanding and the names and addresses of the registered owners of the Securities and any holders of beneficial interests therein; and
|
8.2.2.4
|
any other prescribed information.
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8.3
|
If the Company has issued Uncertificated Securities, or has issued Securities that have ceased to be Certificated Securities as contemplated in clause 7.2, a record must be administered and maintained by a Participant or Central Securities Depository, in the prescribed form, as the Uncertificated Securities Register, which –
|
8.3.1
|
forms part of the Securities Register; and
|
8.3.2
|
must contain, with respect to all Uncertificated Securities contemplated in this clause 8, any details referred to in clause 8.2.2, read with the changes required by the context or as determined by the rules of the Central Securities Depository.
|
8.4
|
The Securities Register or Uncertificated Securities Register maintained in accordance with the Act shall be sufficient proof of the facts recorded in it, in the absence of evidence to the contrary.
|
8.5
|
Unless all the Shares rank equally for all purposes, the Shares, or each class of Shares, and any other Securities, must be distinguished by an appropriate numbering system.
|
8.6
|
A certificate evidencing any Certificated Securities of the Company –
|
8.6.1
|
must state on its face –
|
8.6.1.1
|
the name of the Company;
|
8.6.1.2
|
the name of the person to whom the Securities were issued or transferred; and
|
8.6.1.3
|
the number and class of Shares and designation of the series, if any, evidenced by that certificate;
|
8.6.2
|
must be signed by 2 (two) persons authorised by the Board, which signatures may be affixed or placed on the certificate by autographic, mechanical or electronic means; and
|
8.6.3
|
is proof that the named Security holder owns the Securities, in the absence of evidence to the contrary.
|
8.7
|
A certificate remains valid despite the subsequent departure from office of any person who signed it.
|
8.8
|
If, as contemplated in clause 8.5, all of the Shares rank equally for all purposes, and are therefore not distinguished by a numbering system –
|
8.8.1
|
each certificate issued in respect of those Shares must be distinguished by a numbering system; and
|
8.8.2
|
if the Share has been transferred, the certificate must be endorsed with a reference number or similar device that will enable each preceding holder of the Share in succession to be identified, provided that the failure of any Share certificate to satisfy the provisions of clauses 8.6 to 8.8 is not a contravention of the Act and does not invalidate that certificate.
|
9
|
TRANSFER OF SECURITIES
|
9.1
|
The instrument of transfer of any Certificated Securities shall be signed by both the transferor and the transferee and the transferor shall be deemed to remain the holder of such Certificated Securities until the name of the transferee is entered in the Securities Register. The Directors may, however, in their discretion in such cases as they deem fit, dispense with requiring the signature of the transferee on the instrument of transfer.
|
9.2
|
Subject to such restrictions as may be applicable, (whether by virtue of the preferences, rights, limitations or other terms associated with the Securities in question), any Shareholder or holder of other Securities may transfer all or any of its Certificated Securities by instrument in writing in any usual or common form or any other form which the Directors may approve.
|
9.3
|
Every instrument of transfer shall be delivered to the principal place of business of the Company, accompanied by –
|
9.3.1
|
the certificate issued in respect of the Certificated Securities to be transferred; and/or
|
9.3.2
|
such other evidence as the Company may require to prove the title of the transferor, or his or her right to transfer the Certificated Securities.
|
9.4
|
All authorities to sign transfer deeds or other instruments of transfer granted by holders of Securities for the purpose of transferring Certificated Securities which may be lodged, produced or exhibited with or to the Company at its registered office shall, as between the Company and the grantor of such authorities, be taken and deemed to continue and remain in full force and effect, and the Company may allow the same to be acted upon until such time as express notice in writing of the revocation of the same shall have been given and lodged at such of the Company's offices at which the authority was first lodged, produced or exhibited. Even after the giving and lodging of such notice, the Company shall be entitled to give effect to any instruments signed under the authority to sign and certified by any officer of the Company as being in order before the giving and lodging of such notice.
|
9.5
|
All instruments of transfer, when registered, shall either be retained by the Company or disposed of in such manner as the Directors shall from time to time decide. Any instrument of transfer which the Directors may decline to register shall (unless the Directors shall resolve otherwise) be returned on demand to the person who lodged it.
|
9.6
|
The transfer of Uncertificated Securities may be effected only –
|
9.6.1
|
by a Participant or Central Securities Depository;
|
9.6.2
|
on receipt of an instruction to transfer sent and properly authenticated in terms of the rules of a Central Securities Depository or an order of a Court; and
|
9.6.3
|
in accordance with section 53 of the Act and the rules of the Central Securities Depository.
|
9.7
|
Securities transfer tax and other legal costs payable in respect of any transfer of Securities pursuant to this Memorandum of Incorporation will be paid by the Company to the extent that the Company is liable therefor in law, but shall, to that extent, be recoverable from the person acquiring such Securities.
|
10
|
NO LIEN
|
11
|
TRANSMISSION OF SECURITIES
|
11.1
|
The executor of the estate of a deceased sole holder of a Security shall be the only person recognised by the Company as having any title to such Security. In the case of a Security registered in the names of 2 (two) or more holders, the survivor or survivors, or the executor of the estate of any deceased Shareholder, as determined by the Board, shall be the only persons recognised by the Company as having any title to the Security. Any person who submits proof of his appointment as the executor, administrator, trustee, curator, or guardian in respect of the estate of a deceased Shareholder or holder of other Securities ("Security Holder") of the Company, or of a Security Holder whose estate has been sequestrated or of a Security Holder who is otherwise under a disability or as the liquidator of any body corporate which is a Security Holder of the Company, shall be entered in the Securities Register nomine officii, and shall thereafter, for all purposes, be deemed to be a Securities Holder.
|
11.2
|
Subject to the provisions of clause 11.1, any person becoming entitled to any Security by virtue of the death of a Security Holder shall, upon producing such evidence that he has such title or rights as the Directors think sufficient, have the right either to have such Security transferred to himself or to make such other transfer of the Security as such Security Holder could have made, provided that in respect of a transfer other than to himself –
|
11.2.1
|
the Directors shall have the same right to refuse or suspend registration as they would have had in the case of a proposed transfer of such Security by such Security Holder before his death; and
|
11.2.2
|
a person becoming entitled to any Security shall not, unless and until he is himself registered as a Security Holder in respect of such Security, be entitled to exercise any voting or other right attaching to such Security or any other right relating to meetings of the Company.
|
12
|
RESTRICTIONS ON DEBT INSTRUMENTS
|
13
|
CAPITALISATION SHARES
|
13.1
|
Any capitalisation issue by the Company shall be subject to the fulfillment of the requirements set out in section 47 of the Act, as contemplated in clauses 13.2 and 13.3.
|
13.2
|
The Board shall have the power, subject to approval from the JSE and compliance with the JSE Listings Requirements, to –
|
13.2.1
|
approve the issuing of any authorised Shares as capitalisation Shares; or
|
13.2.2
|
to issue Shares of one class as capitalisation Shares in respect of Shares of another class; or
|
13.2.3
|
to resolve to permit Shareholders to elect to receive a cash payment in lieu of a capitalisation Share.
|
13.3
|
The Board may not resolve to offer a cash payment in lieu of awarding a capitalisation Share, as contemplated in clause 13.2.3, unless the Board –
|
13.3.1
|
has considered the Solvency and Liquidity Test as required by section 46 of the Act, on the assumption that every such Shareholder would elect to receive cash; and
|
13.3.2
|
is satisfied that the Company would satisfy the Solvency and Liquidity Test immediately upon the completion of the distribution.
|
14
|
BENEFICIAL INTERESTS IN SECURITIES
|
15
|
FINANCIAL ASSISTANCE
|
15.1
|
as contemplated in section 44 of the Act, to provide financial assistance by way of loan, guarantee, the provision of security or otherwise to any person for the purpose of, or in connection with, the subscription of any option, or any Securities, issued or to be issued by the Company or a related or inter-related company, or for the purchase of any such Securities of the Company or a related or inter-related company; and/or
|
15.2
|
as contemplated in section 45 of the Act, to provide direct or indirect financial assistance to a Director, prescribed officer of the Company or a related or inter-related company or corporation, or to a member of a related or inter-related corporation, and the authority of the Board in this regard is not limited or restricted by this Memorandum of Incorporation.
|
16
|
ACQUISITION BY THE COMPANY OF ITS OWN SHARES
|
16.1
|
the Board may determine that the Company acquire a number of its own Shares; and
|
16.2
|
the board of any subsidiary of the Company may determine that such subsidiary acquire Shares.
|
17
|
RECORD DATE FOR EXERCISE OF SHAREHOLDER RIGHTS
|
17.1
|
The record date for the purpose of determining which Shareholders are entitled to –
|
17.1.1
|
receive notice of a Shareholders' meeting;
|
17.1.2
|
participate in and vote at a Shareholders' meeting;
|
17.1.3
|
decide any matter by written consent or by Electronic Communication;
|
17.1.4
|
receive a distribution; or
|
17.1.5
|
be allotted or exercise other rights,
|
17.2
|
Such record date must be published to the Shareholders in a manner that satisfies the JSE Listings Requirements and any other prescribed requirements.
|
18
|
SHAREHOLDERS' MEETINGS
|
18.1
|
The Board, or any prescribed officer of the Company authorised by the Board, is entitled to call a Shareholders' meeting at any time.
|
18.2
|
Subject to the provisions of section 60 of the Act dealing with the passing of resolutions of Shareholders otherwise than at a meeting of Shareholders, the Company shall hold a Shareholders' meeting –
|
18.2.1
|
at any time that the Board is required by the Act, the JSE Listings Requirements or this Memorandum of Incorporation to refer a matter to Shareholders for decision; or
|
18.2.2
|
whenever required in terms of the Act to fill a vacancy on the Board; or
|
18.2.3
|
when required in terms of clause 18.3 or by any other provision of this Memorandum of Incorporation.
|
18.3
|
The Board shall call a meeting of Shareholders if 1 (one) or more written and signed demands by Shareholders calling for such a meeting are delivered to the Company and –
|
18.3.1
|
each such demand describes the specific purpose for which the meeting is proposed; and
|
18.3.2
|
in aggregate, demands for substantially the same purpose are made and signed by the holders, as of the earliest time specified in any of those demands, of at least 10% (ten percent) of the voting rights entitled to be exercised in relation to the matter proposed to be considered at the meeting.
|
18.4
|
In addition to other meetings of the Company that may be convened from time to time, the Company shall convene an annual general meeting of its Shareholders once in each calendar year, but no more than 15 (fifteen) months after the date of the previous annual general meeting.
|
18.5
|
The Company shall deliver notices of meetings to each Shareholder entitled to vote at such meeting who has elected to receive such documents.
|
18.6
|
Subject to the provisions of the JSE Listings Requirements, any such annual general meeting –
|
18.6.1
|
shall be capable of being held by Electronic Communication in accordance with the further provisions of this Memorandum of Incorporation; and
|
18.6.2
|
shall not be capable of being held in accordance with the provisions of section 60 of the Act set out in clause 23.
|
18.7
|
Each annual general meeting of the Company contemplated in clause 18.4 shall provide for at least the following business to be transacted –
|
18.7.1
|
the presentation of the directors' report, audited financial statements for the immediately preceding financial year of the Company and an audit committee report;
|
18.7.2
|
the election of Directors, to the extent required by the Act and by clause 24.7 of this Memorandum of Incorporation;
|
18.7.3
|
the appointment of an auditor and an audit committee for the following financial year; and
|
18.7.4
|
any matters raised by the Shareholders, with or without advance notice to the Company.
|
18.8
|
Save as otherwise provided herein, the Company is not required to hold any other Shareholders' meetings other than those specifically required by the Act and the JSE Listings Requirements.
|
18.9
|
The Board may determine the location of any Shareholders' meeting, and the Company may hold any such meeting in the Republic or in any foreign country, and the authority of the Board and the Company in this regard is not limited or restricted by this Memorandum of Incorporation.
|
18.10
|
All meetings (whether called for the passing of special or ordinary resolutions) shall be called on not less than 15 (fifteen) business days' notice.
|
18.11
|
The quorum for a Shareholders' meeting to begin or for a matter to be considered, shall be at least 3 (three) Shareholders entitled to attend and vote, present in person. In addition –
|
18.11.1
|
a Shareholders' meeting may not begin until sufficient persons are present at the meeting to exercise, in aggregate, at least 25% (twenty five percent) of the voting rights that are entitled to be exercised in respect of at least one matter to be decided at the meeting; and
|
18.11.2
|
a matter to be decided at a Shareholders' meeting may not begin to be considered unless sufficient persons are present at the meeting to exercise, in aggregate, at least 25% (twenty five percent) of all of the voting rights that are entitled to be exercised in respect of that matter at the time the matter is called on the agenda.
|
18.12
|
The time periods specified in sections 64(4) and (5) of the Act apply to the Company without variation and, accordingly, if within 1 (one) hour after the appointed time for a meeting to begin, the requirements of clause 18.11 –
|
18.12.1
|
for that meeting to begin have not been satisfied, the meeting shall be postponed, without any motion, vote or further notice, for 1 (one) week; and
|
18.12.2
|
for consideration of a particular matter to begin have not been satisfied –
|
18.12.2.1
|
if there is other business on the agenda of the meeting, consideration of that matter may be postponed to a later time in the meeting without any motion or vote; or
|
18.12.2.2
|
if there is no other business on the agenda of the meeting, the meeting shall be adjourned, without any motion or vote, for 1 (one) week.
|
18.13
|
Notwithstanding the provisions of clauses 18.12.1 and 18.12.2, the person intended to chair a meeting that cannot begin due to the operation of clause 18.11 may extend the 1 (one) hour limit allowed in clause 18.12 for a reasonable period on the grounds that –
|
18.13.1
|
exceptional circumstances affecting weather, transportation or Electronic Communication have generally impeded or are generally impeding the ability of Shareholders to be present at the meeting; or
|
18.13.2
|
one or more particular Shareholders, having been delayed, have communicated an intention to attend the meeting, and those Shareholders, together with others in attendance, would satisfy the requirements of clause 18.11.
|
18.14
|
The accidental omission to give notice of any meeting to any particular Shareholder or Shareholders, or an immaterial defect in the manner or form of giving notice of any such meeting, shall not invalidate any resolution passed at any such meeting.
|
18.15
|
The Company shall not be required to give further notice of a meeting that has been postponed or adjourned in terms of clause 18.12 unless the location for the meeting is different from –
|
18.15.1
|
the location of the postponed or adjourned meeting; or
|
18.15.2
|
the location announced at the time of adjournment, in the case of an adjourned meeting.
|
18.16
|
If at the time appointed in terms of clause 18.12 for a postponed meeting to begin, or for an adjourned meeting to resume, the requirements of clause 18.11 have not been satisfied, the Shareholders present in person or by proxy will be deemed to constitute a quorum.
|
18.17
|
After a quorum has been established for a meeting, or for a matter to be considered at a meeting, all the Shareholders forming part of the quorum must be present at the meeting for the matter to be considered at the meeting.
|
18.18
|
The chairman of a meeting may with the consent of a meeting at which a quorum is present (and must if the meeting resolves thus) adjourn the meeting from time to time and from place to place, but an adjourned meeting may only deal with matters which could legally be dealt with at the meeting on which the adjournment took place.
|
18.19
|
The maximum period allowable for an adjournment of a Shareholders' meeting is as set out in section 64(12) of the Act, without variation.
|
18.20
|
The chairman or deputy chairman, if any, of the Board shall preside as chairman at every Shareholder's meeting.
|
18.21
|
If there is no such chairman or deputy chairman, or if at any meeting the chairman and the deputy chairman are not present within 15 (fifteen) minutes after the time appointed for holding the meeting or is unwilling to act as chairman, the Directors present shall choose 1 (one) of their number to be chairman. If no Director is willing to act as chairman or if no Director is present within 30 (thirty) minutes after the time appointed for commencement of the meeting, the Shareholders present shall, by way of a poll, elect one of their number to be chairman of the meeting.
|
18.22
|
The chairman of a Shareholders' meeting may –
|
18.22.1
|
appoint any firm or persons to act as scrutineers for the purpose of confirming any powers of attorney received and for counting the votes at the meeting;
|
18.22.2
|
act on a certificate given by any such scrutineers without requiring production at the meeting of the forms of proxy or himself counting the votes.
|
18.23
|
If any votes were counted which ought not to have been counted or if any votes were not counted which ought to have been counted, the error shall not vitiate the resolution, unless -
|
18.23.1
|
it is brought to the attention of the chairman at the meeting; and
|
18.23.2
|
in the opinion of the chairman of the meeting, it is of sufficient magnitude to vitiate the resolution.
|
18.24
|
Any objection to the admissibility of any vote (whether on a show of hands or on a poll) shall be raised -
|
18.24.1
|
at the meeting or adjourned meeting at which the vote objected to was recorded; or
|
18.24.2
|
at the meeting or adjourned meeting at which the result of the poll was announced, and every vote not then disallowed shall be valid for all purposes. Any objection made timeously shall be referred to the chairman of the meeting, whose decision shall be final and conclusive.
|
18.25
|
Any minutes of a meeting, or a resolution, signed by the chairman of the meeting, or by the chairman of the next meeting of the Shareholders, are evidence of the proceedings of that meeting, or the adoption of that resolution, as the case may be.
|
18.26
|
Even if he is not a Shareholder -
|
18.26.1
|
any Director; or
|
18.26.2
|
the company's attorney (or where the company's attorneys are a firm, any partner or director thereof), may attend and speak at any Shareholders' meeting, but may not vote, unless he is a Shareholder or the proxy or representative of a Shareholder.
|
19
|
SHAREHOLDERS' MEETINGS BY ELECTRONIC COMMUNICATION
|
20
|
VOTES OF SHAREHOLDERS
|
20.1
|
Subject to any special rights or restrictions as to voting attached to any Shares by or in accordance with this Memorandum of Incorporation, at a meeting of the Company –
|
20.1.1
|
every person present and entitled to exercise voting rights shall be entitled to 1 (one) vote on a show of hands, irrespective of the number of voting rights that person would otherwise be entitled to exercise;
|
20.1.2
|
on a poll any person who is present at the meeting, whether as a Shareholder or as proxy for a Shareholder, has the number of votes determined in accordance with the voting rights associated with the Securities held by that Shareholder; and
|
20.1.3
|
the holders of Securities other than Ordinary Shares and the Preference Shares shall not be entitled to vote on any resolution at a meeting of Shareholders, except as provided in clause 20.2.
|
20.2
|
If any resolution is proposed as contemplated in clause 6.4, the holders of such Shares ("Affected Shareholders") shall be entitled to vote at the meeting of Ordinary Shareholders as contemplated in clause 20.1, provided that –
|
20.2.1
|
the votes of the Shares of that class held by the Affected Shareholders ("Affected Shares") shall not carry any special rights or privileges and each Affected Shareholder shall be entitled to 1 (one) vote for every Affected Share held; and
|
20.2.2
|
the total voting rights of the Affected Shareholders in respect of the Affected Shares shall not be more than 24.99% (twenty four point nine nine percent) of the total votes (including the votes of the Ordinary Shareholders) exercisable at that meeting (with any cumulative fraction of a vote in respect of any Affected Shares held by an Affected Shareholder rounded down to the nearest whole number).
|
20.3
|
Voting shall be conducted by means of a polled vote in respect of any matter to be voted on at a meeting of Shareholders if a demand is made for such a vote by –
|
20.3.1
|
at least 5 (five) persons having the right to vote on that matter, either as Shareholders or as proxies representing Shareholders; or
|
20.3.2
|
a Shareholder who is, or Shareholders who together are, entitled, as Shareholders or proxies representing Shareholders, to exercise at least 10% (ten percent) of the voting rights entitled to be voted on that matter; or
|
20.3.3
|
the chairman of the meeting.
|
20.4
|
At any meeting of the Company a resolution put to the vote of the meeting shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded in accordance with the provisions of clause 20.3, and unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried or carried unanimously or by a particular majority or defeated, and an entry to that effect in the book containing the minutes of the proceedings of the Company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. The demand for a poll may be withdrawn.
|
20.5
|
If a poll is duly demanded, it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. In computing the majority on the poll, regard shall be had to the number of votes to which each Shareholder is entitled.
|
20.6
|
In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place, or at which the poll is demanded, shall not be entitled to a second or casting vote.
|
20.7
|
A poll demanded on the election of a chairman (as contemplated in clause 18.21) or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs. The demand for a poll shall not prevent the continuation of a meeting for the transaction of any business other than the question upon which the poll has been demanded.
|
20.8
|
Where there are joint registered holders of any Share, any 1 (one) of such persons may exercise all of the voting rights attached to that Share at any meeting, either personally or by proxy, as if he or she were solely entitled thereto. If more than 1 (one) of such joint holders is present at any meeting, personally or by proxy, the person so present whose name stands first in the Securities Register in respect of such Share shall alone be entitled to vote in respect thereof.
|
20.9
|
The board of any company or the controlling body of any other entity or person that holds any Securities of the Company may authorise any person to act as its representative at any meeting of Shareholders of the Company, in which event the following provisions will apply –
|
20.9.1
|
the person so authorised may exercise the same powers of the authorising company, entity or person as it could have exercised if it were an individual holder of Shares; and
|
20.9.2
|
the authorising company, entity or person shall lodge a resolution of the directors of such company or controlling body of such other entity or person confirming the granting of such authority, and certified under the hand of the chairman or secretary thereof, with the Company before the commencement of any Shareholders' meeting at which such person intends to exercise any rights of such Shareholder, unless excused from doing so by the chairman of such meeting in his sole discretion.
|
21
|
PROXIES AND REPRESENTATIVES
|
21.1
|
Any Shareholder may at any time appoint any natural person (or two or more natural persons concurrently), including a natural person who is not a Shareholder, as a proxy to –
|
21.1.1
|
participate in, and speak and vote at, a Shareholders' meeting on behalf of that Shareholder; or
|
21.1.2
|
give or withhold written consent on behalf of that Shareholder to a decision contemplated in section 60 of the Act, provided that a Shareholder may appoint more than 1 (one) proxy to exercise voting rights attached to different Securities held by the Shareholder.
|
21.2
|
A proxy appointment –
|
21.2.1
|
must be in writing, dated and signed by the Shareholder; and
|
21.2.2
|
remains valid for –
|
21.2.2.1
|
1 (one) year after the date on which it was signed; or
|
21.2.2.2
|
any longer or shorter period expressly set out in the appointment, unless it is revoked in a manner contemplated in the Act or expires earlier as contemplated in the Act.
|
21.3
|
The holder of a power of attorney or other written authority from a Shareholder may, if so authorised thereby, represent such Shareholder at any meeting of the Company and such holder shall deliver the power of attorney or other written authority (if any), or a copy thereof, to the Company before such holder exercises any rights of the Shareholder at a Shareholders' meeting. A Shareholder so represented at a meeting
|
21.4
|
All of the remaining provisions of the Act relating to the appointment and revocation of proxies and the rights of proxies generally shall apply and, in particular –
|
21.4.1
|
a Shareholder has the right to appoint 2 (two) or more persons concurrently as proxies as set out in section 58(3)(a) of the Act ("Concurrent Proxies"), provided that the instrument appointing such Concurrent Proxies clearly states the order in which the votes of the Concurrent Proxies are to take precedence in the event that both or all of the Concurrent Proxies are present, and vote, at the meeting concerned;
|
21.4.2
|
a Shareholder’s proxy may delegate the proxy’s powers to another person as set out in section 58(3)(b) of the Act;
|
21.4.3
|
a Shareholder or his proxy must deliver to the Company a copy of the instrument appointing a proxy not later than 48 (forty eight) hours before the commencement of the meeting at which the proxy intends to exercise that Shareholder’s rights, provided that the chairman of the meeting may, in his discretion, accept proxies that have been delivered after the expiry of the aforementioned period up until the time of commencement of the meeting; and
|
21.4.4
|
unless the instrument appointing a proxy provides otherwise, a Shareholder’s proxy may decide, without direction from the Shareholder, whether to exercise or abstain from exercising any voting right of the Shareholder, as set out in section 58(7) of the Act, and none of such rights or powers are limited, restricted or varied by this Memorandum of Incorporation.
|
21.5
|
Every instrument of proxy shall, as far as circumstances permit, be substantially in the following form, or in such other form as the Directors may approve from time to time –
|
|
In favour of
|
Against
|
Abstain
|
|
|
|
|
Special Resolution 1
|
|
|
|
|
|
|
|
Ordinary Resolution 1
|
|
|
|
|
|
|
|
22
|
SHAREHOLDERS' RESOLUTIONS
|
22.1
|
For an ordinary resolution to be approved it must be supported by more than 50% (fifty percent) of the voting rights of Shareholders exercised on the resolution, as provided in section 65(7) of the Act. Notwithstanding anything to the contrary contained in this Memorandum of Incorporation, to the extent that the JSE Listings Requirements require a higher percentage in respect of any particular ordinary resolution, the Company shall not implement such ordinary resolution unless the Company has obtained the support of the applicable percentage prescribed in terms of the JSE Listings Requirements.
|
22.2
|
For a special resolution to be approved it must be supported by the holders of at least 75% (seventy five percent) of the voting rights exercised on the resolution, as provided in section 65(9) of the Act.
|
22.3
|
No matters, except –
|
22.3.1
|
those matters set out in section 65(11) of the Act; or
|
22.3.2
|
any other matter required by the Act to be resolved by means of a special resolution; or
|
22.3.3
|
for so long as the Company's securities are listed on the JSE, any other matter required by the JSE Listings Requirements to be resolved by means of a special resolution, require a special resolution adopted at a Shareholders' meeting of the Company.
|
22.4
|
In the event that any Shareholder abstains from voting in respect of any resolution, such Shareholder will, for the purposes of determining the number of votes exercised in respect of that resolution, be deemed not to have exercised a vote in respect thereof.
|
23
|
SHAREHOLDERS ACTING OTHER THAN AT A MEETING
|
23.1
|
In accordance with the provisions of section 60 of the Act, but subject to clause 23.4, a resolution that could be voted on at a Shareholders' meeting (other than in respect of the election of Directors) may instead be –
|
23.1.1
|
submitted by the Board for consideration to the Shareholders entitled to exercise the voting rights in relation to the resolution; and
|
23.1.2
|
voted on in writing by such Shareholders within a period of 20 (twenty) business days after the resolution was submitted to them.
|
23.2
|
A resolution contemplated in clause 23.1 –
|
23.2.1
|
will have been adopted if it is supported by persons entitled to exercise sufficient voting rights for it to have been adopted as an ordinary or special resolution, as the case may be, at a properly constituted Shareholders' meeting; and
|
23.2.2
|
if adopted, will have the same effect as if it had been approved by voting at a meeting.
|
23.3
|
Within 10 (ten) business days after adopting a resolution in accordance with the procedures provided in this clause 23, the Company shall deliver a statement describing the results of the vote, consent process, or election to every Shareholder who was entitled to vote on or consent to the resolution.
|
23.4
|
The provisions of this clause 23 shall not apply to any Shareholder meetings that are called for in terms of the Listings Requirements or the passing of any resolution in terms of clause 24.2 or to any annual general meeting of the Company.
|
24
|
COMPOSITION OF THE BOARD OF DIRECTORS
|
24.1
|
In addition to the minimum number of Directors, if any, that the Company must have to satisfy any requirement in terms of the Act to appoint an audit committee and a social and ethics committee, the Board must comprise at least 4 (four) Directors. There shall be no restriction on the maximum number of Directors that may be appointed to the Board unless otherwise determined by the Shareholders at any time, and from time to time, by way of ordinary resolution.
|
24.2
|
Subject to the provisions of clause 25.1.1, all Directors shall be elected by an ordinary resolution of the Shareholders at a general or annual general meeting of the Company and no election of a Director in accordance with a resolution passed in terms of section 60 of the Act shall be competent. Any Shareholder will have the right to nominate Directors.
|
24.3
|
Every person holding office as a Director, prescribed officer, company secretary or auditor of the Company immediately before the effective date of the Act will, as contemplated in item 7(1) of Schedule 5 to the Act, continue to hold that office.
|
24.4
|
In any election of Directors –
|
24.4.1
|
the election is to be conducted as a series of votes, each of which is on the candidacy of a single individual to fill a single vacancy, with the series of votes continuing until all vacancies on the Board have been filled; and
|
24.4.2
|
in each vote to fill a vacancy –
|
24.4.2.1
|
each vote entitled to be exercised may be exercised once; and
|
24.4.2.2
|
the vacancy is filled only if a majority of the votes exercised support the candidate.
|
24.5
|
There shall be no ex offıcio Directors as contemplated in section 66(4)(a)(ii) of the Act.
|
24.6
|
Apart from satisfying the qualification and eligibility requirements set out in section 69 of the Act, and save as may otherwise be required in terms of this Memorandum of Incorporation, a person need not satisfy any eligibility requirements or qualifications to become or remain a Director or a prescribed officer of the Company.
|
24.7
|
The Directors shall rotate in accordance with the following provisions of this clause 24.7 –
|
24.7.1
|
at each annual general meeting referred to in clause 18.4, 1/3 (one third) of the non-executive Directors for the time being, or if their number is not 3 (three) or a multiple of 3 (three), the number nearest to 1/3 (one third), but not less than 1/3 (one third), shall retire from office, provided that if a Director is appointed as an executive Director or as an employee of the Company in any other capacity, he or she shall not, while he or she continues to hold that position or office, be subject to retirement by rotation and he or she shall not, in such case, be taken into account in determining the retirement of Directors by rotation;
|
24.7.2
|
the non-executive Directors to retire in every year shall be those who have been longest in office since their last election, but as between persons who were elected as Directors on the same day, those to retire shall, unless they otherwise agree among themselves, be determined by lot;
|
24.7.3
|
a retiring Director shall be eligible for re-election;
|
24.7.4
|
the Company, at the general meeting at which a Director retires in the above manner, or at any other general meeting, may fill the vacancy by electing a person to the Board, provided that the Company shall not be entitled to fill the vacancy by means of a resolution passed in accordance with clause 23; and
|
24.7.5
|
if at any meeting at which an election of Directors ought to take place the offices of the retiring Directors are not filled, unless it is expressly resolved not to fill such vacancies, the meeting shall stand adjourned and the further provisions of this Memorandum of Incorporation, including clauses 18.12 to 18.16 (inclusive) will apply mutatis mutandis to such adjournment, and if at such adjourned meeting the vacancies are not filled, the retiring Directors, or such of them as have not had their offices filled, shall be deemed to have been re-elected at such adjourned meeting.
|
24.8
|
The Board shall provide the Shareholders with a recommendation in the notice of the meeting at which the re-election of a retiring Director is proposed, as to which retiring Directors are eligible for re-election, taking into account that Director's past performance and contribution.
|
24.9
|
If the number of Directors falls below the minimum number fixed in accordance with this Memorandum of Incorporation, the remaining Directors must as soon as possible and in any event not later than 3 (three) months from the date that the number falls below such minimum, fill the vacancy/ies in accordance with clause 25.1.1 or convene a general meeting for the purpose of filling the vacancies, and the failure by the Company to have the minimum number of Directors during the said 3 (three) month period does not limit or negate the authority of the board of Directors or invalidate anything done by the board of Directors while their number is below the minimum number fixed in accordance with this Memorandum of Incorporation.
|
24.10
|
The Directors in office may act notwithstanding any vacancy in the number of Directors on the Board, but if after the expiry of the 3 (three) month period contemplated in clause 24.9, their number remains below the minimum number fixed in accordance with this Memorandum of Incorporation, they may, for as long as their number is reduced below
|
24.11
|
Life directorships and directorships for an indefinite period are not permissible.
|
25
|
POWERS OF THE BOARD OF DIRECTORS
|
25.1
|
The Board has the power to –
|
25.1.1
|
appoint Directors to fill a casual vacancy in the number of Directors on the Board on a temporary basis, as set out in section 68(3) of the Act, provided that such appointment must be confirmed by the Shareholders, in accordance with clause 24.2, at the next general meeting, as required in terms of section 70(3)(b)(i) of the Act; and
|
25.1.2
|
exercise all of the powers and perform any of the functions of the Company, as set out in section 66(1) of the Act,
|
25.2
|
In addition to clause 25.1.1, either the chairman or the deputy chairman of the Board shall be entitled, with the written consent of the remaining Directors on the Board, to appoint any person as a Director in terms of section 66(4)(a)(i) of the Act, provided that such appointment must be ratified by the Shareholders in accordance with clause 24.2, at the next general meeting.
|
25.3
|
The Directors may at any time and from time to time by power of attorney appoint any person or persons to be the attorney or attorneys and agent(s) of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors in terms of this Memorandum of Incorporation) and for such period and subject to such conditions as the Directors may from time to time think fit. Any such appointment may, if the Directors think fit, be made in favour of any company, the shareholders, directors, nominees or managers of any company or firm, or otherwise in favour of any fluctuating body of persons, whether nominated directly or indirectly by the Directors. Any such power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorneys and agents as the Directors think fit. Any such attorneys or agents as aforesaid may be authorised by the Directors to sub-delegate all or any of the powers, authorities and discretions for the time being vested in them.
|
25.4
|
Save as otherwise expressly provided herein, all cheques, promissory notes, bills of exchange and other negotiable or transferable instruments, and all documents to be executed by the Company, shall be signed, drawn, accepted, endorsed or executed, as the case may be, in such manner as the Directors shall from time to time determine.
|
25.5
|
All acts performed by the Directors or by a committee of Directors or by any person acting as a Director or a member of a committee shall, notwithstanding that it shall afterwards be discovered that there was some defect in the election of the Directors or persons acting as aforesaid, or that any of them were disqualified from or had vacated office, be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director or member of such committee.
|
25.6
|
A Director may hold any other office under the Company (except that of auditor) or any subsidiary of the Company in conjunction with the office of Director, for such period and on such terms as to remuneration (in addition to the remuneration to which he may be entitled as a Director) and otherwise as a disinterested quorum of the Directors may determine.
|
25.7
|
A Director may be or become a director or other officer of, or otherwise interested in, any company promoted by the Company or in which the Company may be interested as shareholder or otherwise, provided that the appointment and remuneration in respect of such other office must be determined by a disinterested quorum of Directors.
|
25.8
|
Each Director, prescribed officer and member of any committee of the Board (whether or not such latter persons are also members of the Board) shall, subject to the exemptions contained in section 75(2) of the Act and the qualifications contained in section 75(3) of the Act, comply with all of the provisions of section 75 of the Act in the event that they (or any person who is a related person to them) has a personal financial interest in any matter to be considered by the Board.
|
25.9
|
The proposal of any resolution to Shareholders in terms of section 20(2) and section 20(6) of the Act is prohibited in the event that such a resolution would lead to the ratification of an act that is contrary to the JSE Listings Requirements, unless otherwise agreed with the JSE.
|
26
|
DIRECTORS' MEETINGS
|
26.1
|
Save as may be provided otherwise herein, the Directors may meet together for the despatch of business, adjourn and otherwise regulate their meetings as they think fit.
|
26.2
|
The Directors may elect a chairman and a deputy chairman of the Board and determine the period for which each is to hold office. The chairman, or in his absence the deputy chairman, shall preside over all meetings of Directors. If no chairman or deputy chairman is elected, or if at any meeting neither is present or willing to act as chairman thereof within 10 (ten) minutes of the time appointed for holding the meeting, the Directors present shall choose 1 (one) of their number to be chairman of such meeting.
|
26.3
|
In addition to the provisions of section 73(1) of the Act, any Director shall at any time be entitled to call a meeting of the Directors.
|
26.4
|
The Board has the power to –
|
26.4.1
|
consider any matter and/or adopt any resolution other than at a meeting contemplated in section 74 of the Act and, accordingly, any decision that could be voted on at a meeting of the Board may instead be adopted by the written consent of a majority of the Directors, given in person or by Electronic Communication, provided that each Director has received notice of the matter to be decided. Such resolution inserted in the minute book, shall be as valid and effective as if it had been passed at a meeting of Directors. Any such resolution may consist of several documents and shall be deemed to have been passed on the date on which it was signed by the last Director who signed it (unless a statement to the contrary is made in that resolution);
|
26.4.2
|
conduct a meeting entirely by Electronic Communication, or to provide for participation in a meeting by Electronic Communication, as set out in section 73(3) of the Act, provided that, as required by such section, the Electronic Communication facility employed ordinarily enables all persons participating in the meeting to communicate concurrently with each other without an intermediary and to participate reasonably effectively in the meeting;
|
26.4.3
|
determine the manner and form of providing notice of its meetings contemplated in section 73(4) of the Act, provided that –
|
26.4.3.1
|
the notice period for the convening of any meeting of the Board will be at least 7 (seven) days unless the decision of the Directors is required on an urgent basis which justifies a shorter period of notice, in which event the meeting may be called on shorter notice. The decision of the chairman of the Board, or failing the chairman for any reason, the decision of any (two) directors as to whether a matter should be decided on an urgent basis, and the period of notice to be given, shall be final and binding on the directors;
|
26.4.3.2
|
an agenda of the matters to be discussed at the meeting shall be given to each Director, together with the notice referred to in clause 26.4.3.1; and
|
26.4.4
|
proceed with a meeting despite a failure or defect in giving notice of the meeting, as provided in section 73(5) of the Act,
|
26.5
|
The quorum requirement for a Directors' meeting (including an adjourned meeting) to begin, the voting rights at such a meeting, and the requirements for approval of a resolution at such a meeting are as set out in section 73(5) of the Act, subject only to clause 26.5.5, and accordingly –
|
26.5.1
|
if all of the Directors of the Company –
|
26.5.1.1
|
acknowledge actual receipt of the notice convening a meeting; or
|
26.5.1.2
|
are present at a meeting; or
|
26.5.1.3
|
waive notice of a meeting,
|
26.5.2
|
a majority of the Directors must be present at a meeting before a vote may be called at any meeting of the Directors;
|
26.5.3
|
each Director has 1 (one) vote on a matter before the Board;
|
26.5.4
|
a majority of the votes cast in favour of a resolution is sufficient to approve that resolution;
|
26.5.5
|
in the case of a tied vote the chairman may cast a deciding vote in addition to any deliberative vote, provided that should the quorum be 2 (two) and should only 2 (two) Directors be present at the meeting, the chairman shall not have a casting vote.
|
26.6
|
Resolutions adopted by the Board –
|
26.6.1
|
must be dated and sequentially numbered; and
|
26.6.2
|
are effective as of the date of the resolution, unless any resolution states otherwise.
|
26.7
|
Any minutes of a meeting, or a resolution, signed by the chairman of the meeting, or by the chairman of the next meeting of the Board, are evidence of the proceedings of that meeting, or the adoption of that resolution, as the case may be.
|
27
|
DIRECTORS' COMPENSATION AND FINANCIAL ASSISTANCE
|
27.1
|
The Company may pay remuneration to the Directors for their services as Directors in accordance with a special resolution approved by the Shareholders within the previous 2 (two) years, as set out in section 66(8) and (9) of the Act, and the power of the Company in this regard is not limited or restricted by this Memorandum of Incorporation.
|
27.2
|
Any Director who -
|
27.2.1
|
serves on any executive or other committee; or
|
27.2.2
|
devotes special attention to the business of the Company; or
|
27.2.3
|
goes or resides outside the Republic for the purpose of the Company; or
|
27.2.4
|
otherwise performs or binds himself to perform services which, in the opinion of the Directors, are outside the scope of the ordinary duties of a Director,
|
27.3
|
The Directors may also be paid all their travelling and other expenses properly and necessarily incurred by them in connection with -
|
27.3.1
|
the business of the Company; and
|
27.3.2
|
attending meetings of the Directors or of committees of the Directors of the Company.
|
28
|
EXECUTIVE DIRECTORS
|
28.1
|
The Directors may from time to time appoint 1 (one) or more Director/s to the office of executive Director for such term and at such remuneration as they may think fit (subject only to the requirements of section 66(8) and (9) of the Act, and may revoke such appointment subject to the terms of any agreement entered into in any particular case, provided that the period of office of an executive Director appointed in terms of an agreement shall not exceed the term of his employment with the Company.
|
28.2
|
Should an executive Director's employment with the Company be suspended for any reason whatsoever, such executive Director shall, for so long as his employment is suspended, ipso facto be suspended from holding office as a Director.
|
28.3
|
An executive Director shall ipso facto cease to hold office as a Director should such executive Director cease to be employed by the Company for any reason whatsoever.
|
28.4
|
Subject to the provisions of any contract between himself and the Company, and the provisions of clause 28.3, an executive Director shall be subject to the same provisions as to disqualification and removal as the other Directors of the Company.
|
28.5
|
The Directors may from time to time entrust to and confer upon an executive Director for the time being such of the powers exercisable in terms of this Memorandum of Incorporation by the Directors as they may think fit, and may confer such powers for such time and to be exercised for such objects and purposes, and upon such terms and conditions, and with such restrictions, as they think expedient; and they may confer such powers either collaterally with or to the exclusion of and in substitution for all or any of the powers of the Directors in that behalf, and may from time to time revoke, withdraw, alter or vary all or any of such powers.
|
29
|
INDEMNIFICATION OF DIRECTORS
|
29.1
|
The Company may –
|
29.1.1
|
advance expenses to a Director or directly or indirectly indemnify a Director in respect of the defence of legal proceedings, as set out in section 78(4) of the Act;
|
29.1.2
|
indemnify a Director in respect of liability as set out in section 78(5) of the Act; and/or
|
29.1.3
|
purchase insurance to protect the Company or a Director as set out in section 78(7) of the Act,
|
29.2
|
The provisions of clause 29.1 shall apply mutatis mutandis in respect of any former Director, prescribed officer or member of any committee of the Board, including the audit committee.
|
29.3
|
Without derogating from the provisions of clauses 29.1 and 29.2 and subject to the provisions of the Act, the Company hereby indemnifies the directors against all claims
|
30
|
BORROWING POWERS
|
30.1
|
Subject to the provisions of clause 30.2 the other provisions of this Memorandum of Incorporation, the Directors may from time to time ‑
|
30.1.1
|
borrow for the purposes of the Company such sums as they think fit; and
|
30.1.2
|
secure the payment or repayment of any such sums, or any other sum, as they think fit, whether by the creation and issue of Securities, mortgage or charge upon all or any of the property or assets of the Company.
|
30.2
|
The Directors shall procure (but as regards subsidiaries of the Company only insofar as by the exercise of voting and other rights or powers of control exercisable by the Company they can so procure) that the aggregate principal amount at any one time outstanding in respect of moneys so borrowed or raised by –
|
30.2.1
|
the Company; and
|
30.2.2
|
all the subsidiaries for the time being of the Company (excluding moneys borrowed or raised by any of such companies from any other of such companies but including the principal amount secured by any outstanding guarantees or suretyships given by the Company or any of its subsidiaries for the time being for the indebtedness of any other company or companies whatsoever and not already included in the aggregate amount of the moneys so borrowed or raised),
|
31
|
COMMITTEES OF THE BOARD
|
31.1
|
The Board may –
|
31.1.1
|
appoint committees of Directors and delegate to any such committee any of the authority of the Board as contemplated in section 72(1) of the Act; and
|
31.1.2
|
only include in any such committee persons who are Directors,
|
31.2
|
The authority of a committee appointed by the Board as contemplated in section 72(2)(b) and (c) of the Act is not limited or restricted by this Memorandum of Incorporation.
|
31.3
|
If and for as long as it is required to do so in terms of the Act or the Regulations and unless the Company is exempted from doing so by the Tribunal in terms of section 72(5) of the Act, the Board must appoint a social and ethics committee having the powers and functions prescribed in terms of section 72 of the Act and the Regulations.
|
31.4
|
If and for as long as any of the Company's Securities are listed on the JSE, the Board shall appoint such Board committees as are required by the JSE Listings Requirements, having such functions and powers as are prescribed by or in terms of the JSE Listings Requirements.
|
31.5
|
The Company must further appoint an audit committee in the manner and for the purposes set out in Part D of Chapter 3 of the Act.
|
32
|
ANNUAL FINANCIAL STATEMENTS
|
32.1
|
The Company shall keep all such accurate and complete accounting records, in English, as are necessary to enable the Company to satisfy its obligations in terms of –
|
32.1.1
|
the Act;
|
32.1.2
|
any other law with respect to the preparation of financial statements to which the Company may be subject; and
|
32.1.3
|
this Memorandum of Incorporation.
|
32.2
|
The Company shall each year prepare annual financial statements within 6 (six) months after the end of its financial year, or such shorter period as may be appropriate to provide the required notice of an annual general meeting in terms of section 61(7) of the Act.
|
32.3
|
The Company shall appoint an auditor each year at its annual general meeting. If the Company appoints a firm as its auditor, any change in the composition of the members of that firm shall not by itself create a vacancy in the office of auditor.
|
32.4
|
The annual financial statements of the Company must be prepared and audited in accordance with the provisions of section 30 of the Act.
|
32.5
|
In accordance with section 62(3)(d) of the Act, a summary of the annual financial statements must be sent to Shareholders at least 15 (fifteen) business days before the date of the annual general meeting of the Company at which such annual financial statements will be considered.
|
32.6
|
The annual financial statements shall be prepared on a basis that is not inconsistent with any unalterable provision of the Act and shall –
|
32.6.1
|
satisfy, as to form and content, the financial reporting standards of IFRS; and
|
32.6.2
|
subject to and in accordance with IFRS –
|
32.6.2.1
|
present fairly the state of affairs and business of the Company and explain the transactions and financial position of the business of the Company;
|
32.6.2.2
|
show the Company's assets, liabilities and equity, as well as its income and expenses;
|
32.6.2.3
|
set out the date on which the statements were produced and the accounting period to which they apply; and
|
32.6.2.4
|
bear on the first page thereof a prominent notice indicating that the annual financial statements have been audited and the name and professional designation of the person who prepared them.
|
33
|
COMPANY SECRETARY
|
33.1
|
The Company must appoint a company secretary.
|
33.2
|
The company secretary must have the requisite knowledge of, or experience with, relevant laws and be a permanent resident of the Republic.
|
33.3
|
The Board must fill any vacancy in the office of company secretary within 60 (sixty) business days after such vacancy arises by a person whom the Directors consider to have the requisite knowledge and experience.
|
34
|
DISTRIBUTIONS
|
34.1
|
Subject to the provisions of the Act (and particularly section 46 of the Act), and the JSE Listings Requirements, the Company may make distributions, provided that distributions may not provide that capital shall be repaid upon the basis that it may be called up again.
|
34.2
|
No distribution shall bear interest against the Company, except as otherwise provided under the conditions of issue of the Shares in respect of which such distribution is payable.
|
34.3
|
Distributions may be declared either free of or subject to the deduction of income tax and any other tax or duty in respect of which the Company may be chargeable.
|
34.4
|
Dividends are declared by the directors in accordance with the Act.
|
34.5
|
The Directors may from time to time declare and pay to the Shareholders such interim distributions as the Directors consider to be appropriate.
|
34.6
|
All unclaimed monies that are due to any Shareholder/s shall be held by the Company in trust for an indefinite period until lawfully claimed by such Shareholder/s, subject to the laws of prescription.
|
34.7
|
Any distribution, interest or other sum payable in cash to the holder of a Share may be paid in any way determined by the directors, including by way of cash, electronic funds transfer or by cheque or warrant sent by post and addressed to -
|
34.7.1
|
the holder at his registered address; or
|
34.7.2
|
in the case of joint holders, the holder whose name appears first in the Securities Register in respect of the Share, at his registered address; or
|
34.7.3
|
such person and at such address as the holder or joint holders may in writing direct.
|
34.8
|
In the event of any distribution, interest or other sum being paid by cheque or warrant in accordance with clause 34.7, every such cheque or warrant shall -
|
34.8.1
|
be made payable to the order of the person to whom it is addressed; and
|
34.8.2
|
be sent at the risk of the holder or joint holders.
|
34.9
|
The Company shall not be responsible for the loss in transmission of any cheque or warrant or of any document (whether similar to a cheque or warrant or not) sent by post as aforesaid.
|
34.10
|
A holder or any one of two or more joint holders, or his or their agent duly appointed in writing, may give valid receipts for any distributions or other moneys paid in respect of a Share held by such holder or joint holders.
|
34.11
|
In the event of any distribution, interest or other sum being paid by cheque or warrant in accordance with clause 34.7, when such cheque or warrant is paid, it shall discharge the Company of any further liability in respect of the amount concerned.
|
34.12
|
Any distribution paid in a manner determined by the Directors, and if the directives of the Directors in that regard are complied with, the Company shall not be liable for any loss or damage which a Shareholder may suffer as a result thereof.
|
34.13
|
Without detracting from the ability of the Company to issue capitalisation Shares, any distribution may be paid wholly or in part -
|
34.13.1
|
by the distribution of specific assets; or
|
34.13.2
|
by the issue of Shares, debentures or securities of the Company or of any other company; or
|
34.13.3
|
in cash; or
|
34.13.4
|
in any other way which the Directors or the Company in general meeting may at the time of declaring the distribution determine.
|
34.14
|
Where any difficulty arises in regard to such distribution, the Directors may settle that difficulty as they think expedient, and in particular may fix the value which shall be placed on such specific assets on distribution.
|
34.15
|
The Directors may -
|
34.15.1
|
determine that cash payments shall be made to any Shareholder on the basis of the value so fixed in order to secure equality of distribution; and
|
34.15.2
|
vest any such assets in trustees upon such trusts for the benefit of the persons entitled to the distribution as the Directors deem expedient.
|
34.16
|
Any distribution must be made payable to Shareholders registered as at a date subsequent to the date of declaration thereof or the date of confirmation thereof, whichever is the later date.
|
35
|
ACCESS TO COMPANY RECORDS
|
35.1
|
Each person who holds or has a beneficial interest in any Securities issued by the Company is entitled to inspect and copy, without any charge for any such inspection or upon payment of no more than the prescribed maximum charge for any such copy, the information contained in the records of the Company referred to in section 26(1) of the Act, being –
|
35.1.1
|
this Memorandum of Incorporation, and any amendments or alterations thereof;
|
35.1.2
|
a record of the Directors, including the details of any person who has served as a Director, for a period of 7 (seven) years after that person has ceased to serve as a Director, and any information relating to such persons referred to in section 24(5) of the Act;
|
35.1.3
|
all –
|
35.1.3.1
|
reports presented at an annual general meeting of the Company for a period of 7 (seven) years after the date of any such meeting; and
|
35.1.3.2
|
annual financial statements required by the Act for a period of 7 (seven) years after the date on which each such particular statements were issued;
|
35.1.4
|
notice and minutes of all Shareholders' meetings, including –
|
35.1.4.1
|
all resolutions adopted by them, for 7 (seven) years after the date each such resolution was adopted; and
|
35.1.4.2
|
any document that was made available by the Company to the holders of Securities in relation to each such resolution;
|
35.1.5
|
any written communications sent generally by the Company to all holders of any class of the Company's Securities, for a period of 7 (seven) years after the date on which each of such communications was issued; and
|
35.1.6
|
the Securities Register.
|
35.2
|
A person not contemplated in clause 35.1 has a right to inspect the Securities Register and the register of Directors of the Company upon payment of an amount not exceeding the prescribed maximum fee for any such inspection.
|
35.3
|
A person who wishes to inspect the Uncertificated Securities Register may do so only through the Company in terms of section 26 of the Act, and in accordance with the rules
|
36
|
PAYMENT OF COMMISSION
|
36.1
|
The Company may pay a commission at a rate not exceeding 10% (ten percent) of the issue price of a Share to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any Shares or for procuring or agreeing to procure, whether absolutely or conditionally, subscriptions for any Shares.
|
36.2
|
Commission may be paid out of capital or profits, whether current or accumulated, or partly out of the one and partly out of the other.
|
36.3
|
Such commission may be paid in cash or, if authorised by the Company in general meeting, by the allotment of fully or partly paid-up Shares, or partly in one way and partly in the other.
|
36.4
|
The Company may, on any issue of Shares, pay such brokerage as may be lawful.
|
37
|
NOTICES
|
37.1
|
All notices shall be given by the Company to each Shareholder and simultaneously to the Issuer Regulation Division of the JSE, and shall be given in writing in any manner authorised by the JSE Listings Requirements and the Regulations, and particularly Table CR 3 annexed to the Regulations. All notices shall, in addition to the above, be released through SENS provided that, in the event that the Shares or other Securities of the Company are not listed on the JSE, all the provisions of this Memorandum of Incorporation relating to the publication of notices via SENS shall no longer apply and such notices shall thereafter only be published in accordance with the provisions of the Act.
|
37.2
|
Each Shareholder –
|
37.2.1
|
shall notify in writing to the Company an address, which address shall be his registered address for the purposes of receiving written notices from the Company by post; and
|
37.2.2
|
may notify in writing to the Company an email address and/or facsimile number, which address shall be his address for the purposes of receiving notices by way of Electronic Communication.
|
37.3
|
Any Shareholder whose address in the Securities Register is an address not within the Republic, shall be entitled to have notices served upon him at such address.
|
37.4
|
In the case of joint holders of a Share, all notices shall, unless such holders otherwise in writing request and the Directors agree, be given to that Shareholder whose name appears first in the Securities Register and a notice so given shall be deemed sufficient notice to all the joint holders.
|
37.5
|
Any notice sent by any means permitted in Table CR 3 annexed to the Regulations shall be deemed to have been delivered as provided for that method of delivery in such Table.
|
37.6
|
Every person who by operation of law, transfer or other means whatsoever becomes entitled to any Share, shall be bound by every notice in respect of that Share which, previously to his name and address being entered in the Securities Register, was given to the person from whom he derives his title to such Share.
|
37.7
|
Any notice or document delivered or sent by electronic mail, by post or delivered to the registered address of any Shareholder in pursuance of this Memorandum of Incorporation shall, notwithstanding that such Shareholder was then deceased, and whether or not the Company has notice of his death, be deemed to have been duly served in respect of any Shares, whether held solely or jointly with other persons by such Shareholder, until some other person be registered in his stead as the sole or joint holder thereof, and such service shall for all purposes of this Memorandum of Incorporation be deemed a sufficient service of such notice or document on his heirs, executors or administrators, and all persons (if any) jointly interested with him in any such Shares.
|
38
|
AMENDMENT OF MEMORANDUM OF INCORPORATION
|
38.1
|
Subject to the provisions of clause 6.4 and section 17 of the Act, this Memorandum of Incorporation may only be altered or amended by way of a special resolution of the Ordinary Shareholders in accordance with section 16(1)(c) of the Act, except if such amendment is in compliance with a Court order as contemplated in section 16(1)(a) of the Act.
|
38.2
|
An amendment of this Memorandum of Incorporation will take effect from the later of –
|
38.2.1
|
the date on, and time at, which the Commission accepts the filing of the notice of amendment contemplated in section 16(7) of the Act; and
|
38.2.2
|
the date, if any, set out in the said notice of amendment,
|
39
|
COMPANY RULES
|
1.
|
AUTHORISED
|
2.
|
RANKING
|
2.1
|
Except for the additional benefit set forth in clause 3 and the limitation set forth in clause 4 of this Schedule 1 below, the Preference Shares shall rank pari passu with the Ordinary Shares in the Company in all respects, including having the right to:
|
2.1.1.1
|
vote on any matter to be decided by the Shareholders of the Company and to 1 (one) vote in respect of each Preference Share held in the case of a vote by means of a poll;
|
2.1.1.2
|
to be treated pari passu with the holders of Ordinary Shares in respect of any sub-division or consolidation of Ordinary Shares or elective or non-elective award of capitalisation Shares;
|
2.1.1.3
|
participate proportionally (based on the total number of Shares in issue) in any distribution made by the Company to all Shareholders; and
|
2.1.1.4
|
receive proportionally (based on the total number of Shares in issue) the net assets of the Company upon its liquidation.
|
3.
|
PREFERENCE DIVIDEND
|
4.
|
RIGHTS OFFERS
|
5.
|
CONVERSION
|
5.1.1
|
The Company shall be entitled, at its election, by way of board resolution to convert each Preference Share into an Ordinary Share (on a 1:1 basis):
|
5.1.1.1
|
after the 10th (tenth) anniversary of the date on which the Preference Share in question was issued; or
|
5.1.1.2
|
if the Company reasonably anticipates that an “affected transaction” (as defined in the Companies Act) or delisting will take place in respect of the Company.
|
5.1.2
|
On conversion, the Preference Shares shall convert into Ordinary Shares at the then prevailing market value of such Ordinary Shares.
|
1.
|
Ordinary Resolution Number 1:
|
2.
|
Ordinary Resolution Number 2:
|
•
|
Metair Investments Limited
|
•
|
Afrocentric Investment Corporation Limited
|
•
|
Merafe Resources Limited
|
•
|
FirstRand Bank Limited’s Domestic Credit Committee
|
•
|
The Auditor-General of South Africa’s Audit and Risk Committee
|
3.
|
Ordinary Resolution Number 3:
|
4.
|
Ordinary Resolution Number 4:
|
5.
|
Ordinary Resolution Number 5:
|
6.
|
Ordinary Resolution Number 6:
|
7.
|
Ordinary Resolution Number 7:
|
8.
|
Ordinary Resolution Number 8:
|
9.
|
Ordinary Resolution Number 9:
|
10.
|
Ordinary Resolution Number 10:
|
11.
|
Ordinary Resolution Number 11:
|
12.
|
Ordinary Resolution Number 12:
|
13.
|
Ordinary Resolution Number 13:
|
14.
|
Ordinary Resolution Number 14:
|
15.
|
Ordinary Resolution Number 15:
|
16.
|
Ordinary Resolution Number 16:
|
(a)
|
the equity securities which are the subject of the issue for cash must be of a class already in issue, or where this is not the case, must be limited to such securities or rights that are convertible into a class already in issue;
|
(b)
|
the equity securities must be issued to public shareholders, as defined in the JSE Listings Requirements, and not to related parties;
|
(c)
|
securities which are the subject of general issues for cash in the aggregate may not exceed 5% (five percent) of the Company’s shares in issue as at the date of this notice of the annual general meeting, excluding treasury shares – the number of shares available for the issue of shares for cash will therefore be limited to 27 070 257 shares;
|
(d)
|
this authority shall be valid until the Company’s next annual general meeting or for 15 (fifteen) months from the date on which this resolution is passed, whichever period is shorter, subject to the requirements of the JSE and any other restrictions set out in this authority;
|
(e)
|
the calculation of the Company’s listed equity securities must be a factual assessment of the Company’s listed equity securities as at the date of this notice of annual general meeting, excluding treasury shares;
|
(f)
|
any equity securities issued for cash during the period contemplated in (d) shall be deducted from the number set out in (c);
|
(g)
|
in the event of sub-division or consolidation of issued equity securities during the period contemplated in (d), the existing authority will be adjusted accordingly to represent the same allocation ratio;
|
(h)
|
the maximum discount at which equity securities may be issued is 10% (ten percent) of the weighted average traded price of such equity securities measured over the 30 (thirty) business days prior to the date that the price of the issue is agreed between the Company and the party subscribing for the securities – the JSE will be consulted for a ruling if the Company’s securities have not traded in such 30 (thirty) business day period; and
|
(i)
|
equity securities (of any class) which are the subject of the issue for cash in terms of this general authority, will be aggregated with any securities that are compulsorily convertible into securities of that class and, in the case of the issue of compulsory convertible securities, aggregated with the securities of that class into which they are convertible.”
|
17.
|
Special Resolution Number 1:
|
(a)
|
the identity of the recipient of such financial assistance, the form, nature and extent of such financial assistance and the terms and conditions under which such financial assistance is to be provided, are determined by the Board from time to time;
|
(b)
|
the Board may not authorise the Company to provide any financial assistance pursuant to this special resolution unless the Board fulfils all the requirements of section 45 of the Act, which it is required to fulfil in order to authorise the Company to provide such financial assistance; and
|
(c)
|
such financial assistance to a recipient is, in the opinion of the Board, required for the purpose of (i) meeting all or any of such recipient’s operating expenses (including capital expenditure), and/or (ii) funding the growth, expansion, reorganisation or restructuring of the businesses or operations of such recipient, and/or (iii) funding such recipient for any other purpose which, in the opinion of the Board, is directly or indirectly in the interests of the Company.”
|
(a)
|
by the time that the notice of the annual general meeting is delivered to shareholders of the Company, the Board will have adopted a resolution (“Section 45 Board Resolution”) authorising the Company to provide, subject to the shareholders approving special resolution 1, at any time and from time to time during the period of 2 (two) years commencing on the date on which special resolution number 1 is adopted, any direct or indirect financial assistance as contemplated in section 45 of the Companies Act to any one or more related or inter- related companies or corporations of the Company and/or to any one or more juristic persons who are members of, or are related to, any such related or inter-related company or corporation and/or to any one or more juristic persons related or inter-related to any such company, corporation or member;
|
(b)
|
the Section 45 Board Resolution will be effective only if and to the extent that special resolution number 1 is adopted by the shareholders of the Company, and the provision of any such direct or indirect financial assistance by the Company, pursuant to such resolution, will always be subject to the Board being satisfied that (i) immediately after providing such financial assistance, the Company will satisfy the solvency and liquidity test as referred to in section 45(3)(b)(i) of the Act, and that (ii) the terms under which such financial assistance is to be given are fair and reasonable to the Company as referred to in section 45(3)(b)(ii); and
|
(c)
|
in as much as the Section 45 Board Resolution contemplates that such financial assistance will in the aggregate exceed 1/10 (one tenth) of 1% (one percent) of the Company’s net worth at the date of adoption of such resolution, the Company hereby provides notice of the Section 45 Board Resolution to shareholders of the Company. Such notice will also be provided to any trade union representing any employees of the Company.
|
18.
|
Special Resolution Number 2:
|
|
Board
|
Committee
|
||||||||||||||||||||||||||||
Annual retainer
|
Atten-dance fee*
|
Audit and risk
|
Social and ethics
|
Remuneration
|
Nomination/Investment
|
Technical
|
||||||||||||||||||||||||
|
Chairman
|
Deputy chair
|
LID**
|
Member
|
Member
|
Chairman
|
Member
|
Chairman
|
Member
|
Chairman
|
Member
|
Chairman
|
Member
|
Chairman
|
Member
|
|||||||||||||||
Current
|
1,107.2
|
|
493.5
|
|
374.2
|
|
251.8
|
|
19.8
|
|
276.7
|
|
139.4
|
|
220.5
|
|
112.4
|
|
220.5
|
|
112.4
|
|
220.5
|
|
112.4
|
|
220.5
|
|
112.4
|
|
Proposed
|
1,195.8
|
|
518.2
|
|
392.9
|
|
274.5
|
|
21.6
|
|
301.6
|
|
151.9
|
|
231.5
|
|
120.3
|
|
231.5
|
|
120.3
|
|
231.5
|
|
120.3
|
|
231.5
|
|
120.3
|
|
•
|
a shareholder eligible to attend and vote at the annual general meeting is entitled to appoint a proxy (or proxies) to attend, participate in and vote at the annual general meeting in place of the shareholder – shareholders are referred to the proxy form attached to this notice in this regard;
|
•
|
a proxy need not also be a shareholder of the Company;
|
•
|
in terms of section 63(1) of the Act, any person attending or participating in a meeting of shareholders must present reasonably satisfactory identification and the person presiding at the general meeting must be reasonably satisfied that the right of any person to participate in and vote (whether as shareholder or as proxy for a shareholder) has been reasonably verified – acceptable forms of verification include a green bar-coded or smart card identification document issued by the South African Department of Home Affairs, a South African driver’s licence or a valid passport; and
|
•
|
this notice of meeting includes the attached form of proxy.
|
•
|
An ordinary shareholder entitled to attend and vote at the annual general meeting may appoint any individual (or individuals) as a proxy or proxies to attend, participate in and vote at the annual general meeting in the place of such shareholder. A proxy need not be a shareholder of the Company.
|
•
|
A proxy appointment must be in writing, dated and signed by the shareholder of the Company appointing a proxy and, subject to the rights of a shareholder to revoke such appointment (as set out below), remains valid only until the end of the annual general meeting.
|
•
|
A proxy may delegate its authority to act on behalf of a shareholder of the Company to another person, subject to any restrictions set out in the instrument appointing the proxy.
|
•
|
Irrespective of the form of instrument used to appoint a proxy, the appointment of a proxy is suspended at any time and to the extent that the shareholder of the Company who appointed such proxy chooses to act directly and in person in exercising any rights as a shareholder of the Company.
|
•
|
Unless the proxy appointment expressly provides otherwise, the appointment of a proxy is revocable by the shareholder of the Company in question cancelling it in writing, or making a later inconsistent appointment of a proxy, and delivering a copy of the revocation instrument to the proxy and to the Company. The revocation of a proxy appointment constitutes a complete and final cancellation of the proxy’s authority to act on behalf of the shareholder of the Company as of the later of (a) the date stated in the revocation instrument, if any; and (b) the date on which the revocation instrument is delivered to the Company as required in the first sentence of this paragraph.
|
•
|
If the instrument appointing the proxy or proxies has been delivered to the Company, as long as that appointment remains in effect, any notice required by the Act or the Company’s memorandum of incorporation to be delivered by the Company to the shareholder of the Company, must be delivered by the Company to (a) the shareholder of the Company, or (b) the proxy or proxies, if the shareholder of the Company has (i) directed the Company to do so in writing; and (ii) paid any reasonable fee charged by the Company for doing so.
|
•
|
André Wilkens
|
•
|
Vishnu Pillay
|
•
|
Karabo Nondumo
|
•
|
Simo Lushaba
|
•
|
Ken Dicks
|
FORM OF PROXY
|
|
|
|
|
|
To be completed by certificated shareholders and dematerialised shareholders with ‘own name’ registration only
|
HARMONY GOLD MINING COMPANY LIMITED
Incorporated in the Republic of South Africa
Registration number: 1950/038232/06 (Harmony or Company)
JSE share code: HAR
NYSE share code: HMY ISIN
code: ZAE 000015228
|
I/We (please print names in full)
|
|
of (address)
|
|
being the holder/s of
|
shares in the Company, do hereby appoint:
|
1
|
or, failing him/her
|
2
|
or, failing him/her
|
ORDINARY RESOLUTIONS
|
FOR
|
AGAINST
|
ABSTAIN
|
Ordinary Resolution Number 1: To appoint Given Sibiya as a director
|
|
|
|
Ordinary Resolution Number 2: To appoint Grathel Motau as a director
|
|
|
|
Ordinary Resolution Number 3: To re-elect André Wilkens as a director
|
|
|
|
Ordinary Resolution Number 4: To re-elect Vishnu Pillay as a director
|
|
|
|
Ordinary Resolution Number 5: To re-elect Karabo Nondumo as a director
|
|
|
|
Ordinary Resolution Number 6: To re-elect Dr Simo Lushaba as a director
|
|
|
|
Ordinary Resolution Number 7: To re-elect Ken Dicks as a director
|
|
|
|
Ordinary Resolution Number 8: To re-elect Fikile De Buck as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 9: To re-elect Karabo Nondumo as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 10: To re-elect Dr Simo Lushaba as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 11: To re-elect John Wetton as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 12: To elect Given Sibiya as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 13: To reappoint the external auditors
|
|
|
|
Ordinary Resolution Number 14: To approve the remuneration policy
|
|
|
|
Ordinary Resolution Number 15: To approve the implementation report
|
|
|
|
Ordinary Resolution Number 16: To give authority to issue shares for cash
|
|
|
|
SPECIAL RESOLUTIONS
|
|
|
|
Special Resolution Number 1: To approve financial assistance
|
|
|
|
Special Resolution Number 2: To pre-approve non-executive directors’ remuneration
|
|
|
|
Signed at
|
this
|
day of
|
2019
|
Signature
|
|||
Assisted by me, where applicable (name and signature)
|
1.
|
A form of proxy is only to be completed by those ordinary shareholders who are:
|
•
|
registered holders of ordinary shares in certificated form; or
|
•
|
holders of dematerialised shares of the Company in their own name.
|
2.
|
If you have already dematerialised your ordinary shares through a central securities depository participant (CSDP) or broker and wish to attend the annual general meeting, you must request your CSDP or broker to provide you with a letter of representation or instruct your CSDP or broker to vote by proxy on your behalf in terms of the agreement entered into between yourself and your CSDP or broker.
|
3.
|
A member may insert the name of a proxy or the names of two alternative proxies of the member’s choice in the space provided. The person whose name stands first on the form of proxy and who is present at the annual general meeting of shareholders will be entitled to act to the exclusion of those whose names follow.
|
4.
|
On a show of hands, a member of the Company present in person or by proxy will have one (1) vote irrespective of the number of shares he/she holds or represents, provided that a proxy will, irrespective of the number of members he/she represents, have only one (1) vote. On a poll, a member who is present or represented by proxy will be entitled to that proportion of the total votes in the Company which the aggregate amount of the nominal value of the shares held by him/her bears to the aggregate amount of the nominal value of all the shares issued by the Company.
|
5.
|
A member’s instructions to the proxy must be indicated by inserting the relevant numbers of votes exercisable by the member in the appropriate box. Failure to comply will be deemed to authorise the proxy to vote or to abstain from voting at the annual general meeting as he/she deems fit in respect of all the member’s votes exercisable. A member or the proxy is not obliged to use all the votes exercisable by the member or by the proxy, but the total of votes cast and in respect of which abstention is recorded may not exceed the total of votes exercisable by the member or by the proxy.
|
6.
|
Forms of proxy (enclosed) must be dated and signed by the shareholder appointing a proxy and, for the sake of good order, are urged (but not required) to be submitted to the offices of the transfer secretaries, Link Market Services South Africa Proprietary Limited, 13th Floor, Rennie House, 19 Ameshoff Street, Braamfontein, Johannesburg, 2001 (PO Box 4844, Johannesburg, 2000, fax number: +27 86 674 2450, email: meetfax@linkmarketservices.co.za) by no later than 12:30 (SA time) on Wednesday, 20 November 2019.
|
7.
|
Completing and lodging this form of proxy will not preclude the relevant member from attending the annual general meeting and speaking and voting in person to the exclusion of any proxy appointed in terms hereof.
|
8.
|
Documentary evidence establishing the authority of a person signing this form of proxy in a representative capacity or other legal capacity must be attached to this form of proxy, unless previously recorded by the transfer secretaries or waived by the chairman of the annual general meeting.
|
9.
|
The completion of blank spaces overleaf need not be initialled. Any alteration or correction made to this form of proxy must be initialled by the signatory/ies.
|
10.
|
Despite the aforegoing, the chairman of the annual general meeting may waive any formalities that would otherwise be a prerequisite for a valid proxy.
|
11.
|
If any shares are jointly held, all joint members must sign this form of proxy. If more than one of those members is present at the annual general meeting either in person or by proxy, the person whose name appears first in the register will be entitled to vote.
|
(A)
|
Harmony Gold Mining Company Limited as more fully described in Part I of Schedule 1 (Borrower)
|
(B)
|
The Subsidiaries of the Borrower listed in Part I of Schedule 1 as original guarantors (Original Guarantors)
|
(C)
|
Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) as mandated lead arranger (Arranger)
|
(D)
|
Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) (Original Lender)
|
(E)
|
Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) (Security Trustee)
|
(F)
|
Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) as agent of the other Finance Parties (Facility Agent)
|
(G)
|
Absa Bank Limited (acting through its Corporate and Investment Banking division) (Original Lender)
|
(H)
|
Absa Bank Limited (acting through its Corporate and Investment Banking division) as mandated lead arranger (Arranger)
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1.
|
Definitions
|
1.1.1.
|
"2002 ISDA Master Agreement" means the 2002 Master Agreement as published by the International Swaps and Derivatives Association, Inc;
|
1.1.2.
|
"Absa" means Absa Bank Limited (acting through its Corporate and Investment Banking division) (Registration No. 1986/004794/06), a public company duly incorporated in accordance with the laws of South Africa;
|
1.1.3.
|
"Acceptable Bank" means:
|
1.1.3.1.
|
any of the Lenders;
|
1.1.3.2.
|
Bank of South Pacific Limited, Australia and New Zealand Banking Group Limited, Westpac Banking Corporation, Westpac Bank PNG Ltd, The Standard Bank of South Africa Limited, FirstRand Bank Limited, Deutsche Bank (Johannesburg Branch), Investec Bank Limited;
|
1.1.3.3.
|
a bank or financial institution which has a rating for its longterm unsecured and non-credit enhanced debt obligations of bbb- or higher by Standard & Poor's Rating Services or
|
1.1.4.
|
"Accession Letter" means a document substantially in the form set out in Schedule 6 (Form of Accession Letter);
|
1.1.5.
|
"Additional Guarantor" means a company which becomes an Additional Guarantor in accordance with clause 26 (Changes to the Obligors);
|
1.1.6.
|
"Advance" means an advance under the Facilities;
|
1.1.7.
|
"Advance Date" means any date upon which a Lender makes an Advance hereunder;
|
1.1.8.
|
"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company;
|
1.1.9.
|
"Agreement" means this ZAR2 000 000 000 (two billion Rand) term and revolving credit facilities agreement read together with the Schedules hereto;
|
1.1.10.
|
"Anti-Corruption Laws" means all laws, rules and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption;
|
1.1.11.
|
"Applicable Margin" means:
|
1.1.11.1.
|
in respect of Facility A, 2,90% (two point nine zero percent), nacq; and
|
1.1.11.2.
|
in respect of Facility B, 2,80% (two point eight zero percent) calculated as follows:
|
1.1.11.2.1.
|
nacq (if the applicable Interest Period is 3 (three) Months); or
|
1.1.11.2.2.
|
nacs (if the applicable Interest Period is 6 (six) Months),
|
1.1.12.
|
"Auditors" means one of KPMG, PricewaterhouseCoopers, Ernst & Young, Deloitte & Touche or any other firm approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed);
|
1.1.13.
|
"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration;
|
1.1.14.
|
"Availability Period" means the period commencing on the date of Financial Close and ending on the earlier of:
|
1.1.14.1.
|
in respect of Facility A:
|
1.1.14.1.1.
|
the date falling 1 (one) Month after the date of Financial Close; and
|
1.1.14.1.2.
|
the date that the Available Facility is cancelled in full; and
|
1.1.14.2.
|
in respect of Facility B:
|
1.1.14.2.1.
|
the date on which the Available Facility is cancelled in terms of this Agreement; and
|
1.1.14.2.2.
|
the date which is one month prior to the Final Repayment Date;
|
1.1.15.
|
"Available Commitment" means, in respect of each Lender, that Lender’s Commitment minus:
|
1.1.15.1.
|
the amount of its participation in any outstanding Loans; and
|
1.1.15.2.
|
in relation to any proposed Utilisation under a Facility, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date,
|
1.1.16.
|
"Available Facility" means the aggregate at any time of each Lender’s Available Commitment;
|
1.1.17.
|
"Base Rate" means, subject to clause 8.1.4, JIBAR or where it is not possible to determine JIBAR on any Reset Date, the SAR-JIBAR-Reference Rate, in either case converted to a nacq/nacs rate (as applicable);
|
1.1.18.
|
"Basel II Accord" means the International Convergence of Capital Measurement and Capital Standards, a Revised Framework published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement;
|
1.1.19.
|
"Basel II Approach" means either the Standardised Approach or the relevant Internal Ratings Based Approach (each as defined in the Basel II Accord) adopted by that Finance Party (or any of its Affiliates) for the purposes of implementing or complying with the Basel II Accord;
|
1.1.20.
|
"Basel II Regulation" means:
|
1.1.20.1.
|
any applicable law implementing the Basel II Accord; or
|
1.1.20.2.
|
any Basel II Approach;
|
1.1.21.
|
"Basel III" means:
|
1.1.21.1.
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in Basel III: A global regulatory framework for more resilient banks and banking systems, Basel III: International framework for liquidity risk measurement, standards and monitoring and Guidance for national authorities operating the countercyclical capital buffer published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
1.1.21.2.
|
the rules for global systemically important banks contained in Global systemically important banks: assessment methodology and the additional loss absorbency requirement on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
1.1.21.3.
|
any Basel III Regulation; and
|
1.1.21.4.
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III;
|
1.1.22.
|
"Basel III Increased Cost" means an Increased Cost which is attributable to the implementation or application of or compliance with or any change in (or in the interpretation, administration or application of or compliance with) Basel III (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates), including but not limited to the Capital Requirements Directive (CRD IV);
|
1.1.23.
|
"Basel III Regulation" means any applicable law implementing Basel III save and to the extent that it re-enacts a Basel II Regulation;
|
1.1.24.
|
"BEE Entity" means a special purpose entity incorporated under the laws of South Africa and established in order to consummate a BEE transaction pursuant to which such entity may acquire up to 3% (three percent) of the issued ordinary shares of Harmony Moab;
|
1.1.25.
|
"Breakage Costs" means the amount (if any) by which:
|
1.1.25.1.
|
the interest excluding the Applicable Margin which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
1.1.25.2.
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Johannesburg interbank market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period;
|
1.1.26.
|
"Bridge Facility" means the bridge facility agreement concluded between, inter alios, the Borrower and the bridge facility lenders in terms of which the bridge facility lenders made a bridge facility available to the Borrower, all on the terms and conditions set out therein;
|
1.1.27.
|
"Business Day" means any day other than a Saturday, Sunday or an official public holiday in South Africa (in accordance with the Public Holidays Act, 1994) on which banks are open for business in South Africa;
|
1.1.28.
|
"Buy-In Option" means the right of Papua New Guinea exercisable at any time prior to the commencement of mining to make a single purchase of up to a 30% (thirty per cent) equitable interest in any mineral discovery arising from any or all of Exploration Licences No EL 440 and EL 1105 and Exploration Licence Application ELA 1927 at a price pro-rata to the accumulated exploration expenditure thereon;
|
1.1.29.
|
"Cash" means, at any time, cash denominated in ZAR, USD, PNGK or AUSD in hand or in a bank account and (in the latter case) credited to an account in the name of a member of the Group with an Acceptable Bank and to which a member of the Group is alone (or together with other members of the Group) beneficially entitled and for so long as:
|
1.1.29.1.
|
that cash is repayable within 90 days after the relevant date of calculation;
|
1.1.29.2.
|
repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition;
|
1.1.29.3.
|
there is no Security over that cash except for any Permitted Security constituted by a netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements; and
|
1.1.29.4.
|
the cash is freely and (except as mentioned in clause 1.1.29.1 above) immediately available to be applied in repayment or prepayment of the Facility;
|
1.1.30.
|
"Cash Equivalent Investments" means at any time:
|
1.1.30.1.
|
certificates of deposit maturing within 1 (one) year after the relevant date of calculation, issued by an Acceptable Bank;
|
1.1.30.2.
|
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investor Services Limited, (ii) which invest substantially all their assets in securities of the types described in clause 1.1.30.1 above and (iii) can be turned into cash on not more than 90 days' notice; or
|
1.1.30.3.
|
any other debt security or investment approved by the Majority Lenders,
|
1.1.30.4.
|
in each case, denominated in ZAR, USD, AUSD or PNGK and to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security;
|
1.1.31.
|
"Closing Certificate" means a certificate substantially in the form set out in Schedule 15 (Form of Closing Certificate).
|
1.1.32.
|
"Code" means the US Internal Revenue Code of 1986;
|
1.1.33.
|
"Commitment" means a Facility A Commitment or Facility B Commitment;
|
1.1.34.
|
"Companies Act" means the Companies Act, 2008;
|
1.1.35.
|
"Compliance Certificate" means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate);
|
1.1.36.
|
"Confidential Information" means all information relating to the Borrower, any Obligor, the Group, the Joint Ventures, the Finance Documents or the Facilities of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:
|
1.1.36.1.
|
any member of the Group or any of its advisers; or
|
1.1.36.2.
|
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
1.1.36.3.
|
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:
|
1.1.36.3.1.
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of clause 37 (Confidentiality); or
|
1.1.36.3.2.
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
1.1.36.3.3.
|
is known by that Finance Party before the date the information is disclosed to it in accordance with clauses 1.1.36.1 or 1.1.36.2 above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality;
|
1.1.37.
|
"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Borrower and the Facility Agent;
|
1.1.38.
|
"Control" means:
|
1.1.38.1.
|
in relation to a company the shares of which are not listed on a stock exchange, where another company or legal entity or person (whether alone or pursuant to an agreement with others):
|
1.1.38.2.
|
holds or controls more than 50% (fifty per cent) of the voting rights (taking into account when such voting rights can be exercised) in that company; or
|
1.1.38.3.
|
has the right to appoint or remove the majority of that company’s board of directors; or
|
1.1.38.4.
|
has the power to ensure the majority of that company’s board of directors will act in accordance with its wishes; or
|
1.1.38.5.
|
in relation to a company the shares of which are listed on a stock exchange:
|
1.1.38.6.
|
the holding of shares or the aggregate of holdings of shares or other securities in a company entitling the holder thereof to exercise, or cause to be exercised 35% (thirty five per cent) or more of the voting rights at shareholder meetings of the company irrespective of whether such holding or holdings confers de facto control, provided that should there be other shareholders holding more than 35% (thirty five per cent), 35% (thirty five per cent) shall be read to refer to "the largest percentage shareholding held at the time";
|
1.1.38.7.
|
the holding or control by a shareholder or member, alone or pursuant to an agreement with other shareholders or members, of more than 35% (thirty five per cent) of the voting rights in the company irrespective of whether such holding or holdings confers de facto control, provided that should there be other shareholders holding more than 35% (thirty five per cent), 35% (thirty five per cent) shall be read to refer to "the largest percentage shareholding held at the time";
|
1.1.39.
|
"Default" means an Event of Default or any event or circumstance specified in clause 24 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default;
|
1.1.40.
|
"Default Interest Rate" means the applicable Interest Rate plus 3% (three per cent);
|
1.1.41.
|
"Derivatives Transaction" means a contract, agreement or transaction which is a rate swap, basis swap, forward rate transaction, bond option, interest rate option, cap, collar or floor, gold derivative, foreign exchange transaction or any other similar transaction and/or any combination of such transaction, in each case, whether on-exchange or otherwise, and which shall include the Gold Price Derivative Transactions concluded under the Hedging Documents;
|
1.1.42.
|
"Discharge Date" means the date on which:
|
1.1.42.1.
|
all the Liabilities (other than contingent liabilities in respect of continuing indemnities under the Finance Documents under which no claim has been made and which remain undischarged and payments which may be set aside in terms of clause 1.1.107.3) have been fully paid and discharged; and
|
1.1.42.2.
|
the Lenders have no commitment, obligation or liability (whether actual or contingent) to lend money or provide other financial accommodation to any Obligor under any Finance Document;
|
1.1.43.
|
"Disruption Event" means either or both of:
|
1.1.43.1.
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
1.1.43.2.
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
1.1.43.3.
|
from performing its payment obligations under the Finance Documents; or
|
1.1.43.4.
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
1.1.44.
|
"Distribution" means any payment by way of interest, principal, dividend, fee, royalty or other distribution or payment by or on behalf of the Borrower to or for the account of any shareholder or member of the Borrower or any person that directly or indirectly controls or is controlled by any shareholder or member of the Borrower;
|
1.1.45.
|
"EBITDA" means, in respect of any person, and any period, the consolidated operating profit before income tax for such period:
|
1.1.45.1.
|
(to the extent not already excluded) before interest received or receivable and interest paid or payable;
|
1.1.45.2.
|
(to the extent not already excluded) adjusted to exclude any gain or loss realised on the disposal of fixed assets (whether tangible or intangible);
|
1.1.45.3.
|
(to the extent not already excluded) before deducting any extraordinary costs and before including extraordinary income,
|
1.1.45.4.
|
dividends received in cash from companies consolidated by the equity accounted method to the extent not already taken into account; and
|
1.1.45.5.
|
depreciation and amortisation of any property plant and equipment and Intangible Assets;
|
1.1.46.
|
"Environment" means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:
|
1.1.46.1.
|
air (including, without limitation, air within natural or manmade structures, whether above or below ground);
|
1.1.46.2.
|
water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
|
1.1.46.3.
|
land (including, without limitation, land under water);
|
1.1.47.
|
"Environmental Claim" means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law;
|
1.1.48.
|
"Environmental Law" means any applicable law or regulation which relates to:
|
1.1.48.1.
|
the pollution or protection of the Environment;
|
1.1.48.2.
|
the conditions of the workplace; or
|
1.1.48.3.
|
the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste;
|
1.1.49.
|
"Environmental Permits" means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group;
|
1.1.50.
|
"Event of Default" means any event or circumstance specified as such in clause 24 (Events of Default);
|
1.1.51.
|
"Exploration Portfolio Joint Venture" means the joint venture constituted by the joint venture agreement between Morobe Consolidated Goldfields Limited, Wafi Mining Limited, Morobe Exploration Limited, Newcrest PNG 3 Limited and Morobe Exploration Services Limited dated 22 May 2008;
|
1.1.52.
|
"Facilities" means Facility A and Facility B and "Facility" shall mean any one of them as the context may indicate;
|
1.1.53.
|
"Facility A" means the term loan facility in an amount equal to the Facility A Amount made available by the Original Lenders to the
|
1.1.54.
|
"Facility A Commitment" means:
|
1.1.54.1.
|
in relation to an Original Lender, the amount set opposite its name under the heading "Facility A Commitment" in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility A Commitment transferred to it under this Agreement; and
|
1.1.54.2.
|
in relation to any other Lender, the amount of any Facility A Commitment transferred to it under this Agreement; to the extent not cancelled, reduced or transferred by it under this Agreement;
|
1.1.55.
|
"Facility A Amount" means ZAR 600 000 000 (six hundred million Rand);
|
1.1.56.
|
"Facility A Loan" means the loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan;
|
1.1.57.
|
"Facility A Repayment Amount" means an amount equal to one eighth of the initial Facility A Loan.
|
1.1.58.
|
"Facility Amount" means the Facility A Amount and the Facility B Amount;
|
1.1.59.
|
"Facility B" means the revolving credit facility in an amount equal to the Facility B Amount made available by the Original Lenders to the Borrower pursuant to clause 2 (The Facilities);
|
1.1.60.
|
"Facility B Amount" means ZAR1 400 000 000 (one billion four hundred million Rand);
|
1.1.61.
|
"Facility B Commitment" means:
|
1.1.61.1.
|
in relation to an Original Lender, the amount set opposite its name under the heading "Facility B Commitment" in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility B Commitment transferred to it under this Agreement; and
|
1.1.61.2.
|
in relation to any other Lender, the amount of any Facility B Commitment transferred to it under this Agreement; to the extent not cancelled, reduced or transferred by it under this Agreement;
|
1.1.62.
|
"Facility B Loan" means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan;
|
1.1.63.
|
"Facility Office" means:
|
1.1.63.1.
|
in respect of a Lender the office or offices notified by that Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than 5 (five) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement; or
|
1.1.63.2.
|
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes;
|
1.1.64.
|
"Facility Outstandings" means the aggregate of all amounts of principal and accrued and unpaid interest due and payable to the Lenders under the Finance Documents;
|
1.1.65.
|
"FATCA" means
|
1.1.65.1.
|
Sections 1471 to 1474 of the Code or any associated regulations;
|
1.1.65.2.
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph 1.1.65.1 above; or
|
1.1.65.3.
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraph 1.1.65.1 or 1.1.65.2 above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
1.1.66.
|
"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA;
|
1.1.67.
|
"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction;
|
1.1.68.
|
"Fee Letter(s) " means the written fee letter(s) entered into or to be entered into between the Borrower and the Facility Agent from time to time;
|
1.1.69.
|
"Final Repayment Date" means the earlier of:
|
1.1.69.1.
|
a date falling 4 (four) years after the date of Financial Close; or
|
1.1.69.2.
|
such earlier date(s) upon which the Facility Outstandings become repayable by the Borrower pursuant to the provisions of this Agreement;
|
1.1.70.
|
"Finance Documents" means:
|
1.1.70.1.
|
this Agreement;
|
1.1.70.2.
|
the Australian-law governed document entitled "Fourth Deed of variation and confirmation of Australian securities – Harmony Gold Mining" between Aurora Gold Ltd, Aurora Gold (Wafi) Pty. Ltd. and Harmony Gold (PNG Services) Pty Limited (as security providers) and Nedbank Limited (as security trustee);
|
1.1.70.3.
|
the PNG-law governed document entitled "Fourth Deed of variation and confirmation of PNG securities – Harmony Gold Mining" between Aurora Gold (Wafi) Pty. Ltd. and Harmony Gold (PNG Services) Pty Limited (as security providers) and Nedbank Limited (as security trustee);
|
1.1.70.4.
|
the Australian-law governed document entitled "Third Coordination Deed – Harmony Security Trust Deed" between the Borrower, the financial institutions listed in Part I of Schedule 1 of that document (as USD lenders), Nedbank Limited (as ZAR lender, USD facility agent, ZAR facility agent and security trustee) and the hedge providers listed in Part II of Schedule 1 of that document (as hedge providers);
|
1.1.70.5.
|
each Fee Letter;
|
1.1.70.6.
|
each Hedging Document (subject to the proviso set out below);
|
1.1.70.7.
|
the Flow of Funds Agreement;
|
1.1.70.8.
|
the Security Documents;
|
1.1.70.9.
|
each Accession Letter
|
1.1.70.10.
|
each Resignation Letter;
|
1.1.70.11.
|
and any other agreement or document that may be designated as a Finance Document by written agreement between the Facility Agent and the Borrower; and
|
1.1.70.12.
|
any amendment or restatement agreement to any Finance Document listed in clauses 1.1.70.1 to 1.1.70.11 above, and Finance Document means any of them as required by the context; provided that where the term Finance Document is used in, and construed for the purposes of this Agreement or the First Amended and Restated Intercreditor Agreement, a Hedging Document shall be a Finance Document only for the purposes of:
|
1.1.70.13.
|
the definition of Material Adverse Effect;
|
1.1.70.14.
|
the definition of Secured Document;
|
1.1.70.15.
|
the definition of Transaction Document;
|
1.1.70.16.
|
clause 1.2 (Construction);
|
1.1.70.17.
|
clause 16.2 (Other indemnities);
|
1.1.70.18.
|
clause 18 (Fees, costs and expenses);
|
1.1.70.19.
|
clause 19 (Guarantee and Indemnity);
|
1.1.70.20.
|
clause 20 (Representations);
|
1.1.70.21.
|
clause 23.16 (Further assurance);
|
1.1.70.22.
|
clause 24 (Events of Default) (other than clause 24.12 (Repudiation) and clause 24.17 (Acceleration)); and
|
1.1.70.23.
|
clause 31 (Set off);
|
1.1.71.
|
"Finance Parties" means the Facility Agent, the Arrangers, the Security Trustee, each Lender and, subject to the remainder of this clause, each Hedge Provider and Finance Party means each or any of them (as the context may require); provided that a Hedge Provider shall be a Finance Party only for the purposes of:
|
1.1.71.1.
|
the Security Documents
|
1.1.71.2.
|
the definition of Secured Parties;
|
1.1.71.3.
|
paragraph 1.1.111.3 of the definition for Material Adverse Effect;
|
1.1.71.4.
|
clause 1.2 (Construction);
|
1.1.71.5.
|
clause 16.2 (Other indemnities);
|
1.1.71.6.
|
clause 18 (Fees, costs and expenses);
|
1.1.71.7.
|
clause 19 (Guarantee and Indemnity); and
|
1.1.71.8.
|
clause 20 (Representations);
|
1.1.71.9.
|
clause 23.16 (Further assurance); and
|
1.1.71.10.
|
clause 28 (Conduct of business by the Finance Parties);
|
1.1.72.
|
"Financial Close" means the date on which the Facility Agent notifies the Borrower that each of the conditions precedent contained in clause 5.1 (Initial conditions precedent) have been fulfilled, deferred or waived to the satisfaction of the Facility Agent;
|
1.1.73.
|
"Financial Indebtedness" means any indebtedness for or in respect of:
|
1.1.73.1.
|
moneys borrowed;
|
1.1.73.2.
|
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
1.1.73.3.
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
1.1.73.4.
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with IFRS, be treated as a balance sheet liability (other than any liability in respect of a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease;
|
1.1.73.5.
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
1.1.73.6.
|
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
|
1.1.73.7.
|
any Derivatives Transaction (and, when calculating the value of any derivative transaction, only the marked to market value or actual net amount payable thereunder shall be taken into account);
|
1.1.73.8.
|
any amount raised by the issue of shares which are redeemable;
|
1.1.73.9.
|
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
1.1.73.10.
|
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in clauses 1.1.73.1 to 1.1.73.9 above;
|
1.1.74.
|
"Financial Year" means, at any time, the annual accounting period of the Group ending on 30 June in each calendar year;
|
1.1.75.
|
"First Amended and Restated Intercreditor Agreement" means the written Intercreditor Agreement concluded on or about the Signature Date between the Secured Parties and relating to their relationship as creditors of the Borrower and the other Obligors;
|
1.1.76.
|
"First Amended and Restated USD Facilities Agreement" means the term and revolving credit facilities agreement of up to USD350 000 000 (three hundred and fifty million United States Dollars) concluded on or about the Signature Date between, amongst others, the Borrower, the Subsidiaries of the Borrower listed in Part 1 of Schedule 1 thereto as original guarantors, Absa Bank Limited (acting through its Corporate and Investment Banking division) and Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) as coordinators, the Financial Institutions listed in Part II of Schedule 1 as original lenders and the Financial Institutions listed in Part II of Schedule 1 as original providers;
|
1.1.77.
|
"Flow of Funds Agreement" means the written flow of funds agreement entered into amongst the Original Lenders (as defined in the Original Facility Agreement), the Finance Parties and the Borrower on or about the Signature Date;
|
1.1.78.
|
"Fundamental Control Event" means any of the following:
|
1.1.78.1.
|
any person or group of persons acting in concert gain(s) Control of the Borrower or the Borrower is no longer listed on the JSE Securities Exchange;
|
1.1.78.2.
|
a change in Control of any of the Material Obligors where the purchase consideration is not in cash, without the prior written consent of the Lenders; or
|
1.1.78.3.
|
a change in ownership or interests in any of the Joint Ventures from such ownership or interests as constituted at the date of this Agreement, but shall exclude:
|
1.1.78.3.1.
|
a change in ownership or interests which arises as a result of the relevant Obligor that holds such ownership or interests at the date of this Agreement subsequently transferring such ownership or interests to another Material Obligor (including to a person that becomes a Material Obligor in accordance with the provisions of this Agreement on or before the date of such transfer of ownership), to the extent it is permitted to do so; and
|
1.1.78.3.2.
|
a change in ownership or interests resulting from Papua New Guinea exercising its Buy-In Option. For the purpose of this definition, a change of ownership or interests shall include any dilution in the interest of either of the joint venture parties to a Joint Venture as such interests are constituted at the date of this Agreement. For the purpose of clause 1.1.78.1 above acting in concert means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Borrower by any of them, either directly or indirectly, to obtain or consolidate Control of the Borrower;
|
1.1.79.
|
"Fundamental Disposal Event" means a disposal (whether by way of sale, lease, license, transfer, loan or other disposal) of any Material Asset for a purchase consideration other than cash, without the prior written consent of the Lenders;
|
1.1.80.
|
"Governmental Authority" means the government of any jurisdiction, or any political subdivision thereof, whether provincial, state or local, and any department, ministry, agency, instrumentality, authority, body, court, central bank or other entity lawfully exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
|
1.1.81.
|
"Gold Price Derivative Transaction(s)" means any gold price derivative transaction(s) entered into between the Borrower and a Hedge Provider under a Hedging Document as permitted in terms of 23.16 ((71) Gold Price Derivative Transaction) of this Agreement;
|
1.1.82.
|
"Group" means the Borrower, each Guarantor and each of their respective Subsidiaries for the time being. For the avoidance of uncertainty, Wafi-Golpu Services Limited is not a member of the Group;
|
1.1.83.
|
"Guarantor" means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with clause 26 (Changes to the Obligors);
|
1.1.84.
|
"Harmony Moab" means Harmony Moab Khotsong Operations Proprietary Limited (Registration No. 2006/039120/07), a private company duly incorporated in accordance with the laws of South Africa;
|
1.1.85.
|
"Harmony Gold Australia" means Harmony Gold (Australia) Pty Limited, ABN 64091439333;
|
1.1.86.
|
"Hedge Provider" means the Original Hedge Providers (or any Affiliate of any Lender including a lender under the First Amended and Restated USD Facilities Agreement) in each case which has entered into or will enter into a Gold Price Derivative Transaction with the Borrower in accordance with the Hedging Documents and which has acceded to this Agreement and the First Amended and Restated Intercreditor Agreement by delivering to the Facility Agent each duly completed and executed Hedge Provider Accession Undertaking, and Hedge Providers means all of them as the context requires;
|
1.1.87.
|
"Hedge Provider Accession Undertaking" means a document substantially in the form set out in Schedule 2 (Form of Hedge Provider Accession Undertaking) of the First Amended and Restated Intercreditor Agreement;
|
1.1.88.
|
"Hedge Termination Amount" means the Close-Out Amount as defined in the relevant Hedging Document as such close-out amount relates specifically to any Gold Price Derivative Transaction and concluded under the applicable Hedging Documents;
|
1.1.89.
|
"Hedging Documents" means any 2002 ISDA Master Agreement (including any amendment agreement, annexure, schedule or confirmation) evidencing or otherwise relating specifically to the Gold Price Derivative Transaction(s) concluded between the Borrower and the Hedge Provider from time to time, and Hedging Document means any one of them as the context requires;
|
1.1.90.
|
Hidden Valley Joint Venture" means the joint venture constituted by the joint venture agreement between Morobe Consolidated Goldfields Limited, Harmony PNG 20 Limited and Hidden Valley Services Limited dated 22 May 2008, as terminated on or about 30 June 2017;
|
1.1.91.
|
"Hidden Valley Mine" means the gold and silver mining operations conducted on Mining Lease 151 at Hidden Valley, Lae Province, Papua New Guinea;
|
1.1.92.
|
"HMT" means Her Majesty’s Treasury of the United Kingdom;
|
1.1.93.
|
"Holding Company" means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary;
|
1.1.94.
|
"IFRS" means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements;
|
1.1.95.
|
"Intangible Assets" means intangible assets as per the financial statements delivered in terms of clause 21.1 (Financial statements);
|
1.1.96.
|
"Intellectual Property Rights" means any patents, trademarks, service marks, designs, trading or business names, copyrights, design rights, moral rights, inventions, confidential information, know-how, domain names, topographical or similar rights, database or other intellectual property rights and interests and the benefit of all applications and rights to use (including by way of licence) such assets of each Obligor, in each case whether registered or unregistered;
|
1.1.97.
|
"Interest Cover Ratio" means, in respect of any Ratio Test Period:
|
1.1.97.1.
|
EBITDA;
|
1.1.97.2.
|
divided by Total Interest;
|
1.1.98.
|
"Interest Payment Date" means the last day of each applicable Interest Period;
|
1.1.99.
|
"Interest Period" means, in relation to a Loan, each period determined by the Borrower in accordance with the provisions of clause 8 (Interest Periods);
|
1.1.100.
|
Interest Rate" means the Base Rate plus the Applicable Margin;
|
1.1.101.
|
"JIBAR" means, in relation to any Interest Period, the rate for the period which most closely approximates such Interest Period which appears on the Reuters Screen SAFEY Page as at 11am Johannesburg time on the first day of such Interest Period;
|
1.1.102.
|
"Joint Venture Agreements" means the joint venture agreements constituting the Wafi-Golpu Joint Venture and the Exploration Portfolio Joint Venture;
|
1.1.103.
|
"Joint Ventures" means the Exploration Portfolio Joint Venture and the Wafi-Golpu Joint Venture;
|
1.1.104.
|
"Legal Reservations" means:
|
1.1.104.1.
|
the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
1.1.104.2.
|
the time barring of claims based on prescription laws that apply in the jurisdiction of incorporation of a member of the Group;
|
1.1.104.3.
|
any other matters which are set out as qualifications or reservations as to matters of law of general application in any of the legal opinions delivered pursuant to clause 5.1(Conditions precedent) or clause 26 (Changes to the Obligors) of this Agreement;
|
1.1.105.
|
"Lender" means:
|
1.1.105.1.
|
the Original Lenders; and
|
1.1.105.2.
|
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with clause 25 (Changes to the Lenders), which in each case has not ceased to be a Party in accordance with the terms of this Agreement;
|
1.1.106.
|
Leverage Ratio" means, at any time, the ratio of Total Net Debt to EBITDA;
|
1.1.107.
|
"Liabilities" means all present and future liabilities and obligations at any time of an Obligor to the Finance Parties under the Finance Documents, both actual and contingent and whether incurred solely or jointly or in any other capacity together with any of the following matters relating to or arising in respect of those liabilities or obligations:
|
1.1.107.1.
|
any refinancing, novation, deferral or extension;
|
1.1.107.2.
|
any claim for damages or restitution; and
|
1.1.107.3.
|
any claim as a result of any recovery by that Obligor of a payment or discharge on the grounds of preference, and any amounts which would be included in any of the above but for any discharge, non-provability or unenforceability of those amounts in any insolvency or other proceedings;
|
1.1.108.
|
"LMA" means the Loan Market Association;
|
1.1.109.
|
"Loan" means a Facility A Loan or a Facility B Loan and "Loans" means all of them as the context requires;
|
1.1.110.
|
"Majority Lenders" means a Lender or Lenders, the sum of whose (a) participations in the Loans then outstanding plus (b) its portion of the Available Commitment, aggregate at least 66.67% (sixty six point six seven per cent) of (c) all the Loans then outstanding plus (d) the Available Facility at that time;
|
1.1.111.
|
"Material Adverse Effect" means a material adverse effect on:
|
1.1.111.1.
|
the business, operations, property or condition (financial or otherwise) of the Borrower, any Guarantor and/or the Group taken as a whole;
|
1.1.111.2.
|
the ability of any Obligor to perform any of its obligations under the Finance Documents; or
|
1.1.111.3.
|
the validity or enforceability of any of the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents;
|
1.1.112.
|
Material Assets" means:
|
1.1.112.1.
|
the mining operations comprising the following mine shafts namely Kusasalethu (DMR Ref no. GP30/5/1/2/07MR), Tshepong and Phakisa (DMR Ref no. FS30/5/1/2/2/84MR), Doornkop (DMR Ref no. GP30/5/1/2/2/09MR), Masimong (DMR Ref no. FS30/5/1/2/2/82MR), Target 1 (DMR Ref no. FS30/5/1/2/2/14MR), Bambanani (DMR Ref no. FS30/5/1/2/2/83MR) and Joel (DMR Ref no. FS30/5/1/2/2/13MR);
|
1.1.112.2.
|
the interests of Wafi Mining Limited in the Wafi-Golpu Joint Venture, being its rights under the Wafi-Golpu Joint Venture Agreement, its participating interest therein and its right to take its share in production thereof;
|
1.1.112.3.
|
all assets owned by Harmony Moab (LicenceNo.NW30/5/1/2/2/15MR &16MR); and
|
1.1.112.4.
|
the interests of Morobe Consolidated Goldfields Limited in the Hidden Valley Mine;
|
1.1.113.
|
"Material Group Company" means any member of the Group contributing not less than 5% (five per cent) of the Group’s consolidated EBITDA;
|
1.1.114.
|
"Material Obligors" means each of the Obligors, other than Avgold Limited;
|
1.1.115.
|
"MINEFI" means the French Ministry of Finance;
|
1.1.116.
|
"Mining Law" means any applicable law or regulation which relates to the conduct of prospecting, exploration and mining operations, including (in respect of operations in South Africa) the Mineral and Petroleum Resources Development Act, 2002 and (in respect of operations in Papua New Guinea) the Mining Act 1992 (PNG);
|
1.1.117.
|
"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
|
1.1.117.1.
|
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
1.1.117.2.
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month.
|
1.1.118.
|
"naca" means nominal annual compounded annually in arrears;
|
1.1.119.
|
"nacq" means nominal annual compounded quarterly in arrears;
|
1.1.120.
|
"nacs" means nominal annual compounded semi-annually in arrears;
|
1.1.121.
|
"Nedbank" means Nedbank Limited (registration number 1951/000009/06) (acting through its Nedbank Capital and Nedbank Corporate divisions), a public company duly incorporated in accordance with the laws of South Africa;
|
1.1.122.
|
"Obligors" means the Borrower and each Guarantor and Obligor means each or any of them (as the context may require);
|
1.1.123.
|
"OFAC" means the Office of Foreign Assets Control of the Department of Treasury of the United States of America;
|
1.1.124.
|
"Original Facility Agreement" means the ZAR1 300 000 000,00 (one billion three hundred million Rand) revolving credit facility agreement dated on or about 20 December 2013 amongst the Borrower, the Guarantors (as defined therein) and Nedbank (as lender), as amended by the first amendment and restatement agreement (as defined therein), the second amendment and restatement agreement (as defined therein) and the third amendment and restatement agreement (as defined therein);
|
1.1.125.
|
"Original Financial Statements" means:
|
1.1.125.1.
|
in relation to the Borrower, the audited consolidated financial statements of the Group for the financial year ended 30 June 2017;
|
1.1.125.2.
|
in relation to Harmony Gold (PNG Services) Pty Ltd, Aurora Gold Ltd, Abelle Ltd, their audited financial statements for their financial years ended 30 June 2017; and
|
1.1.125.3.
|
in relation to each Original Obligor other than the Borrower, Harmony Gold (PNG Services) Pty Ltd, Aurora Gold Ltd, Abelle Ltd and Aurora Gold (Wafi) (Pty) Limited, its audited financial statements for its financial year ended 30 June 2017;
|
1.1.126.
|
"Original Hedge Provider" means Nedbank, Absa Bank Limited and JPMorgan Chase Bank, N.A., HSBC Bank plc – Johannesburg Brach and HSBC Bank;
|
1.1.127.
|
"Original Lenders" means Absa and Nedbank;
|
1.1.128.
|
"Original Obligor" means the Borrower or an Original Guarantor;
|
1.1.129.
|
"Papua New Guinea" or "PNG" means the Independent State of Papua New Guinea;
|
1.1.130.
|
"Party" means a party to this Agreement;
|
1.1.131.
|
"Penalty Period" means the period commencing on and including the day immediately following the date of Financial Close and ending on the 2nd (second) anniversary of such date;
|
1.1.132.
|
"Permitted Guarantees" means:
|
1.1.132.1.
|
any guarantees or indemnities given by the Borrower or any member of the Group on behalf of any member of the Group in the ordinary course of its operational business requirements in an aggregate amount not exceeding USD35 000 000 (thirty five million United States Dollars) or its equivalent in any other currency or currencies;
|
1.1.132.2.
|
any indemnity or guarantee granted in terms of the Finance Documents;
|
1.1.132.3.
|
any indemnity or guarantee granted in terms of the USD Facilities;
|
1.1.132.4.
|
any indemnity or guarantee relating to Permitted Indebtedness set out in clauses 1.1.133.1and 1.1.133.2 below.
|
1.1.132.5.
|
any guarantee given by Harmony Gold Australia in favour of any of the Relevant Subsidiaries to enable such Relevant Subsidiary to obtain a class order that will reduce the IFRS and statutory audit requirements applicable to it; and
|
1.1.132.6.
|
any other guarantee or indemnity granted with the prior written approval of the Facility Agent;
|
1.1.133.
|
"Permitted Indebtedness" means:
|
1.1.133.1.
|
any Financial Indebtedness relating to compliance with environmental legislation in South Africa arising from rehabilitation operations in the form of environmental guarantees in the aggregate amount of ZAR500 000 000 (five hundred million Rand);
|
1.1.133.2.
|
any Financial Indebtedness relating to compliance with environmental and mining legislation in Papua New Guinea arising from rehabilitation operations in the form of environmental guarantees and financial security under such legislation;
|
1.1.133.3.
|
any Financial Indebtedness not included in clauses 1.1.133.1 and 1.1.133.2, including that incurred pursuant to the Hedging Documents, that does not result in Total Net Debt exceeding ZAR2 500 000 000 (two billion five hundred million Rand) plus the ZAR equivalent of USD400 000 000 (four hundred million United States Dollars), converted at the then prevailing Spot Rate of Exchange into a ZAR amount;
|
1.1.133.4.
|
any Financial Indebtedness of a member of the Group in respect of Permitted Loans;
|
1.1.133.5.
|
the guarantee facility of up to ZAR1 100 000 000 (one billion one hundred million Rand) in terms of which a guarantee will be issued on behalf of the Borrower in favour of a trust to be established pursuant to the Settlement Agreement; and
|
1.1.133.6.
|
any other Financial Indebtedness incurred with the prior written approval of the Facility Agent, which in either case is not otherwise prohibited or restricted in accordance with clause 23.11 (Financial Indebtedness);
|
1.1.134.
|
"Permitted Loans" means:
|
1.1.134.1.
|
loans made by the Borrower to any other member of the Group utilising the proceeds of any Utilisation under the Facility in order to fund a purpose referred to in clause 3 (Purpose of the Facility) (Borrower On Loans) and including on-loans made by any other member of the Group to any other member of the Group directly or indirectly from the proceeds of Borrower On Loans in order to fund a purpose referred to in clause 3 (Purpose of the Facility);
|
1.1.134.2.
|
loans made by the Borrower to any other member of the Group utilising the proceeds of any utilisation under the First Amended and Restated USD Facilities Agreement in order to fund a purpose referred to in the First Amended and Restated USD Facilities Agreement (Borrower USD On Loans) and including on-loans made by any other such member of the Group to any other member of the Group directly or indirectly from the proceeds of Borrower USD On Loans in order to fund a purpose referred to in the First Amended and Restated USD Facilities Agreement;
|
1.1.134.3.
|
trade credit granted in the ordinary course of an Obligor’s day-to-day business upon terms usual for such trade;
|
1.1.134.4.
|
loans by an Obligor existing prior to the Signature Date and which have been (i) disclosed in Schedule 11 (Disclosed Loans) hereto, or (ii) in the Original Financial Statements;
|
1.1.134.5.
|
loans by a member of the Group which is not an Obligor existing prior to the Signature Date and which have been disclosed in the Original Financial Statements;
|
1.1.134.6.
|
loans granted by any member of the Group to any other member of the Group other than pursuant to clauses 1.1.134.1 or 1.1.134.2 above or as disclosed in clauses 1.1.134.4 or 1.1.134.5 above, which do not at any time (on a consolidated basis taking into account all such loans) exceed ZAR300 000 000 (three hundred million Rand) or its equivalent in any other currency or currencies per Financial Year;
|
1.1.134.7.
|
loans made by one member of the Group to any other member of the Group for the purposes of enabling the Borrower or any other Obligor to meet its payment obligations under the Finance Documents;
|
1.1.134.8.
|
a loan made by any member of the Group to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans to employees and directors by members of the Group does not exceed ZAR40 000 000 (forty million Rand) or its equivalent in any other currency or currencies, or to an employee or director of the Borrower in terms of an approved employee share option scheme provided that on establishment, such scheme does not involve a net outflow of cash from the Group;
|
1.1.134.9.
|
loans made by the Borrower to any entity acquiring shares in a Group company (other than any Obligor) pursuant to a Black Economic Empowerment transaction in respect of that Group company, provided that the amount of such loans shall not exceed ZAR150 000 000 in aggregate;
|
1.1.134.10.
|
loans made by the Borrower to Harmony Moab and on-lent by Harmony Moab, or loans made directly by the Borrower or Harmony Moab, to the BEE Entity for the purpose of financing the acquisition by the BEE Entity of up to 3% of the issued ordinary share capital of Harmony Moab pursuant to a BEE transaction in respect of Harmony Moab, provided that the amount of such loans shall not exceed ZAR100 000 000 (one hundred million Rand) or its equivalent in any other currency or currencies in aggregate; and
|
1.1.134.11.
|
any other loans made with the prior written approval of the Facility Agent;
|
1.1.135.
|
"Permitted Security" means:
|
1.1.135.1.
|
Security created over any new asset, plant, machinery, equipment or property acquired and/or developed by any Obligor to secure Permitted Indebtedness incurred for the purpose of financing the acquisition of such new asset, plant, machinery, equipment or property or the development, as the case may be, but not for the replacement or refurbishment or maintenance of an existing asset, plant, machinery, equipment or property;
|
1.1.135.2.
|
Security created over any asset or property of a member of the Group which is not an Obligor in order to secure Permitted Indebtedness;
|
1.1.135.3.
|
Security created over any asset or property of an Obligor in order to secure Permitted Indebtedness for an aggregate amount (aggregated across all of the Obligors) not exceeding ZAR200 000 000 (two hundred million Rand) or its equivalent in any other currency or currencies;
|
1.1.135.4.
|
Security created by operation of law, including without limitation any Environmental Law or Mining Law, and in the ordinary course of trading and not as a result of any default or omission by any member of the Group;
|
1.1.135.5.
|
any Security which is existing prior to the Signature Date and which has been disclosed (i) in Schedule 9: Part A (Existing Security) hereto, or (ii) in the Original Financial Statements and in all circumstances securing only indebtedness outstanding at the Signature Date if the principal amount or original facility thereby secured is not increased after the Signature Date;
|
1.1.135.6.
|
any Security which is existing prior to the Signature Date and which has been disclosed in Schedule 9: Part B hereto;
|
1.1.135.7.
|
any netting or set-off arrangement entered into by a member of the Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances, and only such arrangements that are in existence at the Signature Date;
|
1.1.135.8.
|
any Security entered into pursuant to any Finance Document as contemplated in the Finance Documents; and
|
1.1.135.9.
|
any other Security created with the prior written approval of the Facility Agent;
|
1.1.136.
|
"Permitted Share Issue" means:
|
1.1.136.1.
|
an issue of ordinary shares by an Obligor to its Holding Company where the newly-issued shares also become subject to the Transaction Security on the same terms; or
|
1.1.136.2.
|
an issue by Harmony Moab, to the BEE Entity for the purpose of financing the acquisition by the BEE Entity of up to 3% (three percent) of the issued ordinary share capital of Harmony Moab;
|
1.1.137.
|
"Permitted Transferee" means any person referred to in Schedule 12 (Permitted Transferees), including any Affiliate of any such person;
|
1.1.138.
|
"PNGK" means Papua New Guinea Kina, the lawful currency of Papua New Guinea;
|
1.1.139.
|
"PPSA" means the Personal Property Securities Act 2009 (Cth);
|
1.1.140.
|
PPSA PNG" means the Personal Property Security Act, 2011 of Papua New Guinea;
|
1.1.141.
|
"PPSR" means the register of personal property securities established under the PPSA.
|
1.1.142.
|
"PPSR PNG" means the register of personal property securities established under the PPSA PNG;
|
1.1.143.
|
"Pre-Financial Close Material Adverse Change" means a material adverse change prior to Financial Close, in the reasonable opinion of the Lenders (arrived at after consultation with the Borrower), in or on:
|
1.1.143.1.
|
the debt, loan, financial and/or capital markets applicable to any Facility or in any markets relevant to the Borrower’s industry;
|
1.1.143.2.
|
the South African or international monetary, financial, political or economic conditions;
|
1.1.143.3.
|
the condition (financial or otherwise) of the business or operations or prospects of the Obligors taken as a whole; which in the reasonable opinion of the Lenders:
|
1.1.143.4.
|
has rendered, or will or is reasonably likely to render it unlawful for the Lenders (or any of them) to advance any portion of a Facility;
|
1.1.143.5.
|
has materially adversely affected, or will or is reasonably likely to materially adversely affect, the risk profile attributed by the Lenders (or any of them) to the Obligors taken as a whole or the Lenders’ (or any of them) ability to fund, or maintain its funding of, any portion of its participation in a Facility; and/or
|
1.1.143.6.
|
increases the cost to the Lenders (or any of them) of funding or maintaining its or their funding of any portion of its or their participation in a Facility, and the Borrower has elected not to bear such increased cost.
|
1.1.144.
|
Ratio Test Date" means the last day of March, June, September and December;
|
1.1.145.
|
"Ratio Test Period" means each period of 12 months ending on a Ratio Test Date;
|
1.1.146.
|
"Reference Banks" means FirstRand Bank Limited, The Standard Bank of South Africa Limited, Nedbank Limited and Absa Bank Limited;
|
1.1.147.
|
"Related Fund" in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund;
|
1.1.148.
|
"Release Letter" means the release letter concluded between the Borrower and the lenders (as defined in the Bridge Facility Agreement) in terms of which all security given by the Borrower in respect of its obligations under the Bridge Facility Agreement is released;
|
1.1.149.
|
"Relevant Subsidiaries" means:
|
1.1.149.1.
|
Harmony Gold Securities Pty Ltd - ABN 69 087 480 902;
|
1.1.149.2.
|
New Hampton Goldfields Ltd – ABN 53 009 193 999;
|
1.1.149.3.
|
Harmony Gold WA Pty Ltd – ABN 84 099 119 918;
|
1.1.149.4.
|
Harmony Gold Operations Ltd – ABN 44 005 482 842;
|
1.1.149.5.
|
Abelle Limited – ABN 69 087 480 902;
|
1.1.149.6.
|
Aurora Gold Limited – ABN 82 006 568 850; and
|
1.1.149.7.
|
Harmony Gold (PNG Services) Limited ABN 23 083 828 853;
|
1.1.150.
|
"Repayment Date" means in respect of Facility A, the last day of the Repayment Holiday plus 3 (three) Months and thereafter, the last day of each consecutive period of 3 (three) Months falling thereafter;
|
1.1.151.
|
Repayment Holiday" means the period from and including the date of Financial Close to the date falling 2 (two) years thereafter.
|
1.1.152.
|
"Repeating Representations" means each of the representations set out in:
|
1.1.152.1.
|
clause 20.1 (Status) to clause 20.6 (Validity and admissibility in evidence), other than 20.5 (Benefit);
|
1.1.152.2.
|
clause 20.10.1;
|
1.1.152.3.
|
clause 20.11 (No misleading information);
|
1.1.152.4.
|
clause 20.12 (Financial statements), save that the references in clause 20.12 to Original Financial Statements shall, for the purposes of this Repeating Representation, be construed as references to the most recent audited consolidated financial statements of the Group delivered to the Facility Agent under clause 21.1 (Financial statements);
|
1.1.152.5.
|
clause 20.15 (Security Interest);
|
1.1.152.6.
|
clause 20.16 (Pari passu ranking);
|
1.1.152.7.
|
clause 20.21 (Authorised Signatures); and
|
1.1.152.8.
|
clause 20.22 (No immunity);
|
1.1.153.
|
"Representative" means any representative, delegate, agent, manager, administrator, nominee, attorney, trustee or custodian;
|
1.1.154.
|
"Reset Date" means the first day of each applicable Interest Period, being the date in each case upon which the relevant Base Rate is to be determined for such Interest Period;
|
1.1.155.
|
"Resignation Letter" means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter);
|
1.1.156.
|
"Retiring Guarantor" has the meaning given to it in clause 19.8 (Release of Guarantors' right of contribution);
|
1.1.157.
|
Rollover Loan" means one or more Loans:
|
1.1.157.1.
|
made or to be made on the same day that a maturing Facility B Loan is due to be repaid;
|
1.1.157.2.
|
the aggregate amount of which is equal to or less than the amount of the maturing Facility B Loan; and
|
1.1.157.3.
|
made or to be made to the Borrower for the purpose of refinancing a maturing Facility B Loan;
|
1.1.158.
|
"SAFEX Overnight Deposit Rate" means:
|
1.1.158.1.
|
on the relevant Reset Date, the overnight deposit rate designated as (SFXROD) which appears on the Reuters SAFEX Money Market Screen as of 11am Johannesburg time on that date, rounded to the third decimal point; or
|
1.1.158.2.
|
where the SAFEX Overnight Deposit Rate cannot be determined on account of the relevant rate not appearing on the Reuters SAFEX Money Market Screen, an equivalent rate determined by the Facility Agent, acting in a commercially reasonable manner;
|
1.1.159.
|
"Sanctioned Entity" means:
|
1.1.159.1.
|
any person, country or territory which is listed on a Sanctions List or is subject to Sanctions, including without limitation and as at the date of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria;
|
1.1.159.2.
|
any person which is ordinarily resident in a country or territory which is listed on a Sanctions List or is subject to Sanctions;
|
1.1.159.3.
|
any person listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List;
|
1.1.159.4.
|
any person located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or operating in or acting on behalf of, a person located in or organised. under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or
|
1.1.159.5.
|
any person otherwise a target of Sanctions (being any person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).;
|
1.1.160.
|
"Sanctions" means general trade, economic or financial sanctions, laws, regulations, trade embargoes or restrictive measures imposed, administered or enforced from time to time by any Sanctions Authority;
|
1.1.161.
|
"Sanctions Authority" means each of:
|
1.1.161.1.
|
the United Nations Security Council;
|
1.1.161.2.
|
the European Union;
|
1.1.161.3.
|
the Council of Europe (founded under the Treaty of London, 1946);
|
1.1.161.4.
|
the government of the United States of America;
|
1.1.161.5.
|
the government of the United Kingdom;
|
1.1.161.6.
|
the government of the Republic of France;
|
1.1.161.7.
|
the government of the Commonwealth of Australia, and any of their Governmental Authorities, institutions or agencies, including, without limitation, OFAC, the US Department of Commerce, the US State Department or the US Department of the Treasury, HMT and MINEFI;
|
1.1.162.
|
"Sanctions List" means any of the lists maintained by any Sanctions Authority and any similar list maintained, or a public announcement of a Sanctions designation made, by any Sanctions Authority, in each case as amended, supplemented or substituted from time to time;
|
1.1.163.
|
"SAR-JIBAR-Reference Rate" means the mid-market rate between deposits and loans in Rand for an Interest Period quoted by the Reference Banks at approximately 11am Johannesburg time on the relevant Reset Date. The Facility Agent will request the principal Johannesburg office of each of the Reference Banks to provide a quotation of its rate. If at least two quotations are provided, the rate for that Reset Date will be the arithmetic mean of the quotations. If fewer than two quotations are provided, the rate for that Reset Date will be determined by the Facility Agent, acting in a commercially reasonable manner, using a representative rate;
|
1.1.164.
|
"Secured Document" means the Finance Documents, the First Amended and Restated USD Facilities Agreement and the other Finance Documents as defined in the First Amended and Restated USD Facilities Agreement;
|
1.1.165.
|
"Secured Parties" means the Secured Parties as defined in the First Amended and Restated Intercreditor Agreement;
|
1.1.166.
|
"Security" means:
|
1.1.166.1.
|
a mortgage, notarial bond, bond, cession in security, charge, security assignment, pledge, hypothec, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect; and
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1.1.166.2.
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a security interest under the PPSA and/or the PPSA PNG;
|
1.1.167.
|
"Security Document" means:
|
1.1.167.1.
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the documents listed in Schedule 14 (Security Documents); and
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1.1.167.2.
|
any other security document that may at any other time be given as Security for the liabilities pursuant to or in connection with any Secured Document;
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1.1.168.
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"Settlement Agreement" means the written settlement agreement concluded on or about 3 May 2018 between, inter alia, the Borrower and the lawyers representing the claimants in the silicosis class action litigation referred to in such agreement.
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1.1.169.
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"Signature Date" means the date of the signature of the Party last signing this Agreement in time;
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1.1.170.
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"Spot Rate of Exchange" means, as of any date, the rate of exchange at which the Facility Agent offers to sell USD to purchase ZAR at approximately 11h00 (South African time) on such date.
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1.1.171.
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"Subsidiary" means a subsidiary as defined in the Companies Act and shall include any person who would, but for not being a company under the Companies Act, qualify as a subsidiary as defined in the Companies Act;
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1.1.172.
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"Tangible Net Worth" means Total Equity less Intangible Assets;
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1.1.173.
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"Tangible Net Worth to Total Net Debt" means, at any time, the ratio of Tangible Net Worth to Total Net Debt;
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1.1.174.
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"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same);
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1.1.175.
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"Term" means the period from Financial Close to the Discharge Date;
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1.1.176.
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"Total Commitments" means the aggregate of the Facility A Amount and the Facility B Amount, being ZAR2 000 000 000 (two billion Rand) as at the Signature Date;
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1.1.177.
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"Total Equity" means the total aggregate issued share capital of the Borrower from time to time;
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1.1.178.
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"Total Interest" means, in respect of any period, the aggregate accruing during such period (without duplication and whether or not paid or payable within such period) of, in respect of the Group on a consolidated basis (and whether or not the principal or capital obligation by reference to which any of the following are determined is an obligation of the Group):
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1.1.178.1.
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all interest, acceptance commission, guarantee fees and any other continuing, regular or periodic costs and expenses in the nature of interest (whether paid, payable or capitalised) incurred in effecting, servicing or maintaining
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1.1.178.2.
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amounts payable (as reduced by amounts receivable) in respect of any Derivatives Transaction which is an interest rate hedging arrangement entered into to hedge risks arising in the normal course of business;
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1.1.178.3.
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the interest element of, and ancillary fees payable under, any finance leases;
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1.1.179.
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"Total Net Debt" means, at any time, the aggregate amount of all obligations of members of the Group for or in respect of Financial Indebtedness but:
|
1.1.179.1.
|
excluding any such obligations to any other member of the Group;
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1.1.179.2.
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excluding any liability of any member of the Group relating to compliance with environmental legislation in South Africa arising from rehabilitation operations in the form of environmental guarantees in an aggregate amount not exceeding ZAR500 000 000 (five hundred million Rand);
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1.1.179.3.
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excluding any liability of any member of the Group relating to compliance with environmental and mining legislation in Papua New Guinea arising from rehabilitation operations in the form of environmental guarantees and financial security under such legislation;
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1.1.179.4.
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excluding any liability of any member of the Group arising from performance guarantees given on behalf of any member of the Group in the ordinary course of its operational business requirements and which are valid for no longer than three years from date of issue of the relevant guarantee in an aggregate amount not exceeding USD25 000 000 (twenty five million United State Dollars) or its equivalent in any other currency or currencies;
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1.1.179.5.
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including, in the case of any lease or hire purchase contract, which would in accordance with IFRS, be treated as a finance or capital lease, their capitalised value;
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1.1.179.6.
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deducting the aggregate amount of Cash and Cash Equivalent Investments held by any member of the Group at that time;
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1.1.180.
|
"Transaction Security" means the Security created or expressed to be created in favour of the Secured Parties pursuant to the Security Documents;
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1.1.181.
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"Transfer" has the meaning given to it in clause 25.1 (Cessions and delegations by the Lenders);
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1.1.182.
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"Transfer Certificate" means a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate) (or any other form agreed between the Facility Agent and the Borrower);
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1.1.183.
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"Transfer Date" means, in relation to a Transfer, the later of:
|
1.1.183.1.
|
the proposed Transfer Date specified in the Transfer Certificate; and
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1.1.183.2.
|
the date on which the Facility Agent executes the Transfer Certificate;
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1.1.184.
|
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents;
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1.1.185.
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"USD" means United States Dollars, the lawful currency of the United States of America;
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1.1.186.
|
"USD Facilities" means the "Facilities" as defined in the First Amended and Restated USD Facilities Agreement;
|
1.1.187.
|
"Utilisation" means a utilisation of a Facility;
|
1.1.188.
|
"Utilisation Date" means the date of a Utilisation being the date on which the relevant Loan is to be made;
|
1.1.189.
|
"Utilisation Fee Relevant Rate" means the per annum rate determined as follows:
|
1.1.189.1.
|
for so long as the total outstanding amount under Facility B is less than or equal to 33,3% (thirty three point three percent) of the Facility B Commitment, 0,10% (zero point ten percent) of the total outstanding amount under Facility B;
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1.1.189.2.
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for so long as the total outstanding amount under Facility B is greater than 33,3% (thirty three point three percent) but less than or equal to 66,67% (sixty six point six seven percent) of the Facility B Commitment, 0,20% (zero point twenty percent) of the total outstanding amount under Facility B; and
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1.1.189.3.
|
for so long as the total outstanding amount under Facility B is greater than 66,67% (sixty six point six seven percent) of the Facility B Commitment, 0,30% (zero point thirty percent) of the total outstanding amount under Facility B;
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1.1.190.
|
"Utilisation Request" means a notice substantially in the form set out in Schedule 4 (Form of Utilisation Request);
|
1.1.191.
|
"VAT" means value added tax as provided for in the Value Added Tax Act, 1991 and any other tax of a similar nature;
|
1.1.192.
|
"Wafi-Golpu Joint Venture" means the joint venture constituted by the joint venture agreement between Wafi Mining Limited, Newcrest PNG 2 Limited and Wafi-Golpu Services Limited dated 22 May 2008; and
|
1.1.193.
|
"ZAR" means South African Rand, the lawful currency of South Africa.
|
1.2.
|
Construction
|
1.3.
|
Unless a contrary indication appears, any reference in this Agreement to:
|
1.3.1.
|
any Arranger, the Facility Agent, any Finance Party, any Lender, any Secured Party, any Hedge Provider, any Obligor or any Party shall be construed so as to include its successors in title, permitted cessionaries and permitted transferees;
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1.3.2.
|
assets includes present and future properties, revenues and rights of every description;
|
1.3.3.
|
authority includes any court or any governmental, intergovernmental or supranational body, agency, department or any regulatory, selfregulatory or other authority;
|
1.3.4.
|
a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated from time to time;
|
1.3.5.
|
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
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1.3.6.
|
a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
1.3.7.
|
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law, being one with which the relevant person is accustomed to comply) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
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1.3.8.
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a provision of law is a reference to that provision as amended or reenacted; and
|
1.3.9.
|
a time of day is a reference to Johannesburg time.
|
1.3.10.
|
Section, clause and Schedule headings are for ease of reference only.
|
1.3.11.
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Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
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1.3.12.
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A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if it has not been waived.
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1.3.13.
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If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in an interpretation clause, effect shall be given to it as if it were a substantive provision of the relevant Finance Document.
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1.3.14.
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Unless inconsistent with the context, an expression in any Finance Document which denotes the singular includes the plural and vice versa.
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1.3.15.
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The Schedules to any Finance Document form an integral part thereof.
|
1.3.16.
|
The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the Party responsible for the drafting thereof, shall not apply in the interpretation of the Finance Documents.
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1.3.17.
|
The expiry or termination of any Finance Documents shall not affect such of the provisions of the Finance Documents as expressly provide that they will operate after any such expiry or termination or which of necessity must continue to have effect after such expiry or termination, notwithstanding that the clauses themselves do not expressly provide for this.
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1.3.18.
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The Finance Documents shall to the extent permitted by applicable law be binding on and enforceable by the administrators, trustees, permitted cessionaries, business rescue practitioners or liquidators of the Parties as fully and effectually as if they had signed the Finance Documents in the first instance and reference to any Party shall be deemed to include such Party’s administrators, trustees, permitted cessionaries, business rescue practitioners or liquidators, as the case may be.
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1.3.19.
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The use of any expression in any Finance Document covering a process or proceeding available under South African law such as winding-up or business rescue (without limitation eiusdem generis) shall, if any of the Parties to the Finance Documents is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous process or proceedings under the law of such other jurisdiction.
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1.3.20.
|
Where figures are referred to in numerals and in words in any Finance Document, if there is any conflict between the two, the words shall prevail.
|
1.3.21.
|
Unless a contrary indication appears, where any number of days is to be calculated from a particular day, such number shall be calculated as including that particular day and excluding the last day of such period.
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1.4.
|
Third party rights
|
1.4.1.
|
Except as expressly provided for in this Agreement or in any other Finance Document, no provision of any Finance Document constitutes a stipulation for the benefit of any person who is not a party to that Finance Document.
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1.4.2.
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Notwithstanding any term of any Finance Document, the consent of any person who is not a party to that Finance Document is not required to rescind or vary that Finance Document at any time except to the extent that the relevant variation or rescission (as the case may be) relates directly to the right conferred upon any applicable third party under a stipulation for the benefit of that party that has been accepted by that third party.
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3.1.
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The Borrower shall apply all amounts borrowed by it under the Facilities towards repaying in full all amounts outstanding under the Original Facility Agreement and towards funding the ongoing general corporate costs, working costs and working capital requirements of the Group.
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3.2.
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Without prejudice to the obligations of the Borrower under clause 3.1, the Lenders shall not be obliged to concern themselves with the application of amounts raised by the Borrower hereunder.
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4.1.
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The obligations of each Finance Party under the Finance Documents are separate and independent. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
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4.2.
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The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
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4.3.
|
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
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4.4.
|
The Borrower is entitled to receive a copy of the signed First Amended and Restated Intercreditor Agreement; however neither the Borrower nor any other Obligor has any rights or obligations under the First Amended and Restated Intercreditor Agreement.
|
5.2.1.
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in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and in the case of any other Loan no Default is continuing or would result from the proposed Loan; and
|
5.2.2.
|
the Repeating Representations to be made by each Obligor are true in all material respects; and
|
5.2.3.
|
in relation to the first Utilisation only, the representations referred to in clause 20.17 (No proceedings pending or threatened) are true in all material respects and for this purpose, the representations referred to
|
5.3.1.
|
Satisfaction of any of the conditions set out in clause 5.2 (Conditions to further Utilisation of Facility) may be waived or deferred by the Facility Agent.
|
5.3.2.
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Waiver or deferral of any of the further conditions set out in clause 5.2 (Conditions to further Utilisation of Facilities) shall not prejudice the right of the Facility Agent to require subsequent fulfilment of such condition in a written notice to this effect delivered at the time of such waiver or deferral and, unless otherwise specified in any written notice waiving fulfilment of the relevant condition, the relevant condition shall be fulfilled by the Obligors within 5 (five) Business Days of the date of the written notice waiving fulfilment of such condition or such longer period as agreed between the Borrower and the Facility Agent in writing.
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6.1.
|
Subject to clause 5.2 (Conditions to further Utilisation of Facility) above, the Borrower may utilise the Facilities during the Availability Period by delivering to the
|
6.2.
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Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
6.2.1.
|
the proposed Utilisation Date is a Business Day within the Availability Period;
|
6.2.2.
|
the currency of the proposed Loan is ZAR;
|
6.2.3.
|
the amount of the proposed Loan is a minimum amount of ZAR50 000 000 (fifty million Rand) (or, if less, the Available Facility);
|
6.2.4.
|
in respect of any utilisation of Facility B, it specifies an Interest Period of three or six Months applicable to the proposed Loan;
|
6.2.5.
|
it specifies a bank account in South Africa to which the Borrower wishes the proceeds of the Loan to be credited; and
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6.2.6.
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the proposed Loan together with the aggregate of the Loans still outstanding on the proposed Utilisation Date shall not exceed the amount of the Available Facility.
|
6.3.
|
Only one Loan may be requested in each Utilisation Request.
|
6.4.
|
Only one Utilisation Request in respect of Facility B may be outstanding at any point in time.
|
6.5.
|
Only one Utilisation Request may be delivered in respect of Facility A.
|
6.6.
|
The aggregate amount of the first Utilisations in respect of Facility A and Facility B must be sufficient to settle in full the outstanding amount under the Original Facility Agreement as at the applicable Utilisation Date.
|
6.7.
|
A maximum of two Utilisation Requests may be delivered in any calendar month during the Availability Period.
|
6.8.
|
A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than five Loans would be outstanding at any point in time and to this effect, the Lenders will (in accordance with clause 8.3 (Consolidation of Loans)) consolidate two or more outstanding Loans made to the Borrower maturing on the same date, such that the relevant Rollover Loan made to refinance such maturing Loans will be in respect of such outstanding Loans as consolidated into one Loan.
|
6.9.
|
The Borrower acknowledges and agrees that any Utilisation Request signed by an authorised signatory on behalf of the Borrower shall be deemed to be a valid Utilisation Request issued by the Borrower and any Loan made pursuant to such Utilisation Request to the Borrower shall constitute a valid Loan to the Borrower.
|
6.10.
|
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available on the Utilisation Date. The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
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7.1.
|
Calculation of interest
|
7.1.1.
|
accrue on a day to day basis over the Term; and
|
7.1.2.
|
be calculated on the actual number of days elapsed and, for the purposes of calculation, based on a year of 365 days.
|
7.2.
|
Payment of interest
|
7.3.
|
Notification of rates of interest
|
7.4.
|
Absence of quotations
|
7.5.
|
Market Disruption
|
7.5.1.
|
If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender's share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
7.5.1.1.
|
the Applicable Margin; and
|
7.5.1.2.
|
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
7.5.2.
|
In this Agreement, Market Disruption Event means:
|
7.5.2.1.
|
at or about noon on the Reset Date for the relevant Interest Period the SAR-JIBAR-Reference Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine JIBAR for the relevant Interest Period; or
|
7.5.2.2.
|
before close of business in Johannesburg on the Reset Date for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders that the cost to it or them of funding it's or their participation in that Loan from whatever source it or they may reasonably select would be in excess of JIBAR for the relevant Interest Period.
|
7.6.
|
Alternative basis of interest or funding
|
8.1.
|
Selection of Interest Periods
|
8.1.1.
|
Each Interest Period for a Facility A Loan shall be 3 (three) Months.
|
8.1.2.
|
The Borrower shall, in respect of Facility B, select an Interest Period for a Loan in the Utilisation Request for that Loan.
|
8.1.3.
|
Subject to this clause 8 (Interest Periods), the Borrower may select an Interest Period in respect of Facility B, of 3 (three) or 6 (six) Months, as specified in the Utilisation Request.
|
8.1.4.
|
An Interest Period for a Loan shall not extend beyond the Final Repayment Date. If an Interest Period for a Loan selected by the
|
8.1.5.
|
Each Interest Period for a Loan shall start on the relevant Utilisation Date.
|
8.1.6.
|
Subject to this clause 8 (Interest Periods), the Borrower may select a different Interest Period for a Rollover Loan than the Interest Period of the Loan being refinanced by that Rollover Loan in the Utilisation Request delivered for that Rollover Loan.
|
8.1.7.
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If the Borrower fails to select an Interest Period for a Loan in the Utilisation Request for that Loan, the Interest Period for the applicable Loan shall be 3 (three) Months.
|
8.2.
|
Non-Business Days
|
9.3.1.
|
The Borrower shall repay each Facility B Loan made to it on the last day of its Interest Period.
|
9.3.1.1.
|
Without prejudice to the Borrower's obligation under clause 9.3.2 below, if one or more Facility B Loans are to be made available to the Borrower:
|
9.3.1.1.1.
|
on the same day that a maturing Facility B Loan is due to be repaid by the Borrower; and
|
9.3.1.1.2.
|
in whole or in part for the purpose of refinancing the maturing Facility B Loan, the aggregate amount of the new Facility B Loans shall be treated as if applied in or towards repayment of the maturing Facility B Loan and clause 9.3.1.2 below shall apply.
|
9.3.1.2.
|
Any Rollover Loans shall be utilised as follows:
|
9.3.1.2.1.
|
if the amount of a maturing Facility B Loan exceeds the aggregate amount of the new Facility B Loans (Excess):
|
9.3.1.2.1.1.
|
the Borrower will only be required to repay an amount in cash equal to the Excess (in repayment of the maturing Facility B Loan), and
|
9.3.1.2.1.2.
|
the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of the Lenders’ participation (if any) in the maturing Facility B Loan and the Lenders will not be required to make new Facility B Loans available in cash; and
|
9.3.1.2.2.
|
if the amount of the maturing Facility B Loan is equal to or less than the aggregate amount of the new Facility B Loans:
|
9.3.1.2.2.1.
|
the Borrower will not be required to make any repayment in cash on account of the maturing Facility B Loan; and
|
9.3.1.2.2.2.
|
the Lenders will be required to make the new Facility B Loans available in cash only to the extent that the new Facility B Loans exceed the maturing Facility B Loan and the remainder of the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of the maturing Facility B Loan.
|
9.3.2.
|
The Borrower shall repay all Loans outstanding under the Facilities (including accrued and unpaid interest thereon) in full by no later than the Final Repayment Date.
|
9.3.3.
|
Notwithstanding anything to the contrary contained in this Agreement, only amounts repaid or prepaid under Facility B pursuant to clause 10.2 (Voluntary prepayment) shall be capable of being re-borrowed by the Borrower on the terms and conditions set out in clauses 2 (The Facilities), 7 (Interest on Facility) and 8 (Interest Periods).
|
10.1.1.
|
The Borrower shall be entitled, on 10 (ten) days’ written notice to the Facility Agent, to cancel all or part of the unutilised portion of the Facility Amount (Cancelled Portion), provided that if such voluntary cancellation takes place within 24 months after the date of Financial Close the Borrower shall, on the date upon which the cancellation takes effect, pay to the Lenders an amount equal to 2% (two per cent) of the Cancelled Portion.
|
10.1.2.
|
No amount cancelled under clause 10.1.1 may be re-instated as part of the Facility Amount.
|
10.2.1.
|
At any time during the Term, and provided that no Default has occurred that is continuing, the Borrower may, by giving to the Facility Agent not less than 5 (five) Business Days prior written notice to that effect, prepay the whole or part of a Loan on an Interest Payment Date relating to the relevant Loan; provided that no such prepayment shall be in an amount of less than ZAR50 000 000 (fifty million Rand) (or a greater amount thereof in increments of ZAR10 000 000 (ten million Rand).
|
10.2.2.
|
Any notice of prepayment pursuant to clause 10.2.1 shall:
|
10.2.2.1.
|
be irrevocable;
|
10.2.2.2.
|
specify a date upon which such prepayment is to be made, which date shall be an Interest Payment Date;
|
10.2.2.3.
|
specify which Loan is being prepaid;
|
10.2.2.4.
|
specify the amount of the prepayment; and
|
10.2.2.5.
|
oblige the Borrower to make such prepayment on such date.
|
10.2.3.
|
The Borrower shall on the date of prepayment of the Facility A Loan, pay to the Facility Agent a penalty amount equal to 2% (two per cent)
|
10.2.4.
|
The Borrower may not reborrow any part of the Facility A Loan which is prepaid.
|
10.3.1.
|
Illegality
|
10.3.1.1.
|
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
10.3.1.2.
|
upon the Facility Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and
|
10.3.1.3.
|
the Borrower shall repay that Lender’s participation in the Loans on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
10.4.1.
|
the Borrower shall promptly notify the Facility Agent upon becoming aware of that event;
|
10.4.2.
|
a Lender shall not be obliged to fund a Utilisation; and
|
10.4.3.
|
if the Majority Lenders so require, the Facility Agent shall, by notice to the Borrower, cancel the Facilities and declare all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facilities will be cancelled and all such outstanding amounts will become immediately due and payable or due and payable on the date referred to in the notice.
|
10.5.1.
|
The Borrower shall notify the Facility Agent of the receipt of any Material Disposal Proceeds promptly upon the relevant member of the Group becoming entitled to receive such Material Disposal Proceeds. If the Majority Lenders so require, the Facility Agent shall notify the Borrower that all or a specified amount of the Available Material Disposal Proceeds are required to be applied to repay the outstanding Loans and on receipt of such notice the Borrower shall be obliged to repay the Loans (so that they are reduced by the same proportions and rateably amongst the Lenders) in an amount equal to the Available Material Disposal Proceeds or the specified amount of the Available Material Disposal Proceeds, as applicable on the last day of the Interest Period of each such Loan, provided that if an Event of Default occurs prior to the last day of an Interest Period of a Loan, the amount of the relevant prepayment shall be immediately due and payable.
|
10.5.2.
|
For purposes of this clause 10.5:
|
10.5.2.1.
|
"Available Material Disposal Proceeds" means that portion of the Material Disposal Proceeds which are available to be applied under this Agreement which shall be determined as the aggregate of (x) the ZAR Facility Percentage of the Material Disposal Proceeds, and (y) any Material Disposal Proceeds which would otherwise have been available to be applied as a prepayment under the First Amended and Restated USD Facilities Agreement but were not in fact so applied.
|
10.5.2.2.
|
"Disposal Proceeds" means the cash consideration received by any member of the Group in respect of the Disposal of (x) a Material Asset or any portion or part of a Material Asset or (y) the shares in a company or interests in any other entity which owns the Material Asset (including any amount received in repayment of intercompany debt pursuant to the Disposal of a Material Asset and any
|
10.5.2.2.1.
|
any reasonable expenses which are incurred by any member of the Group with respect to that Disposal to persons who are not members of the Group; and
|
10.5.2.2.2.
|
any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably determined by the seller, on the basis of existing rates and taking account of any available credit, deduction or allowance).
|
10.5.2.3.
|
"Disposal" means a sale, lease, license, transfer, loan or other disposal by a person (whether by a voluntary or involuntary single transaction or series of transactions).
|
10.5.2.4.
|
"Material Disposal Proceeds" means that portion of Disposal Proceeds which, when aggregated with any other Disposal Proceeds previously received by any member of the Group, is in excess of ZAR1 000 000 000 (one billion Rand) or the equivalent thereof in any other currency or currencies, excluding any Disposal Proceeds received by any member of the Group pursuant to an exercise by Papua New Guinea of the Buy-In Option but only to the extent that such Disposal Proceeds are reinvested by the relevant member of the Group in the relevant operations relating to the Buy-In Option or in the business of another Obligor or otherwise retained by an Obligor and not used to make any Distribution.
|
10.5.2.5.
|
"ZAR Facility Percentage" means the ratio (expressed as a percentage) of (x) the aggregate Available Facility plus
|
10.5.3.
|
The Borrower is entitled to use the Material Disposal Proceeds to prepay the Facilities. Any portion of the Facilities prepaid pursuant to this clause 10.5 will be cancelled.
|
11.1.
|
All payments to be made by the Obligors under any Finance Documents shall be governed by the following provisions:
|
11.1.1.
|
all such payments shall be made to the Facility Agent, on the due date for such payment, to such account in South Africa as the Facility Agent specifies, and any such payment shall discharge, pro tanto, the corresponding liability to the Finance Parties;
|
11.1.2.
|
all such payments shall be made for value by no later than 12pm on the due date for such payment;
|
11.1.3.
|
the relevant Obligor shall advise the Facility Agent in writing once such payment has been made; and
|
11.1.4.
|
all such payments shall be made in immediately available, freely transferable, cleared funds free and clear of set-off, deduction or counterclaim.
|
11.2.
|
In the event of any payment not being made in full on its due date, such payment shall be appropriated in the first instance to the payment of any costs, charges or expenses, thereafter to interest then due and payable, and thereafter in reduction of the principal amount of the Loans being paid.
|
11.3.
|
The Borrower shall not have the right to defer, adjust or withhold any payment due to the Finance Parties in terms of or arising out of this Agreement or to obtain deferment of judgment for such amount or any execution of such judgment by reason of any set-off or counterclaim due to any other contractual or delictual claims or causes of whatsoever nature or howsoever arising.
|
11.4.
|
If, at any time, it shall become impracticable (by reason of any action of any governmental authority or any change in law, exchange control regulations or any similar event) for the Borrower to make any payments hereunder in the manner specified in this clause 11 (Payments), then the Borrower may agree with the Facility Agent alternative arrangements for such payment to be made; provided that, in the absence of any such agreement, the Borrower shall be obliged to make all payments due to the Finance Parties in the manner specified herein.
|
12.1.
|
If any Lender (or any person on its behalf) receives or recovers all or any part of the Facility Outstandings otherwise than on the Interest Payment Date of the Interest Period relating to the relevant Advance, the Borrower indemnifies and holds that Lender harmless and shall pay to that Lender on demand an amount equal to all Breakage Costs which that Lender sustains as a consequence of such receipt or recovery on a day other than an Interest Payment Date.
|
12.2.
|
A certificate signed by any director or manager of the Facility Agent (whose appointment need not be proved) as to the amount of any Breakage Costs shall be prima facie proof of the amount thereof.
|
14.1.1.1.
|
"Protected Party" means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or
|
14.1.1.2.
|
"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.
|
14.1.1.3.
|
"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document.
|
14.1.1.4.
|
"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under clause 14.2 (Tax gross-up) or a payment under clause 14.3 (Tax indemnity).
|
14.2.1.
|
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
14.2.2.
|
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
14.2.3.
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
14.2.4.
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with
|
14.2.5.
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
14.2.6.
|
Neither this clause 14.2 nor clause 14.3 (Tax indemnity) below shall apply to any Tax Deduction resulting from any withholding Tax on interest payable to non-residents in terms of the Income Tax Act, 1962.
|
14.3.1.
|
The Borrower shall (within 3 (three) Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
14.3.2.
|
Clause 14.3.1 above shall not apply:
|
14.3.2.1.
|
with respect to any Tax assessed on a Finance Party (A) under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes or (B) under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction, if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
|
14.3.2.2.
|
to the extent a loss, liability or cost is compensated for by an increased payment under clause 14.2 (Tax gross-up).
|
14.3.3.
|
A Protected Party making, or intending to make a claim under clause 14.3.2.1 above shall promptly notify the Facility Agent of the
|
14.3.4.
|
A Protected Party shall, on receiving a payment from an Obligor under this clause 14.3, notify the Facility Agent.
|
14.4.1.
|
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
|
14.4.2.
|
that Finance Party has obtained and utilised that Tax Credit,
|
14.6.1.
|
All amounts set out, or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to clause 14.6.2 below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).
|
14.6.2.
|
If VAT is or becomes chargeable on any supply made by any Finance Party (Supplier) to any other Finance Party (Recipient) under a
|
14.6.3.
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any costs or expenses, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
14.7.1.
|
Subject to clause 14.7.3 below, each Party shall, within 10 (ten) Business Days of a reasonable request by another Party:
|
14.7.1.1.
|
confirm to that other Party whether it is:
|
14.7.1.2.
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
14.7.1.3.
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
14.7.2.
|
If a Party confirms to another Party pursuant to clause 14.7.1 above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
14.7.3.
|
Clause 14.7.1 above shall not oblige any Finance Party to do anything, and clause 14.7.1.3 above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
14.7.4.
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with clauses 14.7.1.1.1 or 14.7.1.1.2 above (including, for the avoidance of doubt, where clause 14.7.3 above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
14.8.1.
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
14.8.2.
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower
|
15.1.1.
|
Subject to clause 15.3 (Exceptions), the Borrower shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Cost incurred by that Finance Party as a result of (i) the introduction of or any change in (or in the interpretation, administration or application by any authority or by financial institutions generally of) any law or regulation, after the Signature Date, (ii) the interpretation, administration or (application by any authority or by financial institutions generally after the Signature Date of any law or regulation introduced prior to the Signature Date or (iii) compliance with any law or regulation made after the Signature
|
15.1.2.1.
|
a reduction in the rate of return from the Facilities or on a Finance Party's (or its Affiliate's) overall capital (including, without limitation, as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by such Finance Party);
|
15.1.3.
|
The terms law and regulation in this clause 15.1 (Increased costs) shall include, without limitation, any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.
|
15.2.1.
|
A Finance Party intending to make a claim pursuant to clause 15.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
|
15.2.2.
|
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
15.3.1.
|
Clause 15.1 (Increased costs) does not apply to the extent any Increased Cost is:
|
15.3.1.1.
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
15.3.1.2.
|
compensated for by clause 14.3 (Tax indemnity) (or would have been compensated for under clause 14.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in clause 14.3.2 applied); or
|
15.3.1.3.
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation or the failure by the relevant Finance Party to make any required filing with any regulatory authority.
|
15.3.2.
|
In this clause 15.3, a reference to a Tax Deduction has the same meaning given to the term in clause 14.1 (Definitions).
|
16.1.1.
|
If any sum due from an Obligor under the Finance Documents (Sum), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (First Currency) in which that
|
16.1.1.1.
|
making or filing a claim or proof against that Obligor; or
|
16.1.1.2.
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
16.1.2.
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
16.2.1.
|
any breach of any Environmental Law (whether by the Borrower or any other member of the Group);
|
16.2.2.
|
an Environmental Claim; or
|
16.2.3.
|
any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Environmental Claim and any other enquiry, investigation, subpoena (or similar order) or litigation in respect of any breach of any Environmental Law that has or is reasonably likely to give rise to a liability for any Indemnified Party, which relates to any member of the Group, any assets of any member of the Group or the operation of all or part of the business of any member of the Group and which would not have arisen if the Finance Documents or any of them had not been executed by that Finance Party. Any Affiliate or any director, officer or employee of a Finance Party or its Affiliate may rely on this clause 16.2 as a stipulation for its or his or her benefit, capable of acceptance at any time.
|
16.3.1.
|
The Borrower shall (or shall, to the extent legally possible, procure that each Obligor will), within 3 (three) Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:
|
16.3.1.1.
|
the occurrence of any Event of Default;
|
16.3.1.2.
|
any information produced or approved by the Borrower/any Obligor/any member of the Group being misleading and/or deceptive in any respect;
|
16.3.1.3.
|
any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement except as may otherwise be ordered by a court of competent jurisdiction in circumstances where the relevant Finance Party was the plaintiff or applicant in such proceedings;
|
16.3.1.4.
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of clause 29 (Sharing among the Finance Parties);
|
16.3.1.5.
|
funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone);
|
16.3.1.6.
|
an Environmental Claim or
|
16.3.1.7.
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
16.4.1.
|
investigating or taking any other action in connection with any event which it reasonably believes is an Event of Default; or
|
16.4.2.
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
17.1.1.
|
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of clause 10.3.1 (Illegality), clause 14 (Tax gross up and indemnities) or clause 15 (Increased costs), including but not limited to transferring its rights and obligations to another Affiliate or Facility Office.
|
17.1.2.
|
Clause 17.1.1 above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
17.2.1.
|
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under clause 17.1 (Mitigation).
|
17.2.2.
|
A Finance Party is not obliged to take any steps under clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably): 17.2.2.1. any law or regulation would not allow or permit it; or 17.2.2.2. to do so might be prejudicial to it.
|
18.1.1.
|
The Borrower shall pay to the Facility Agent (for the account of each Lender) a commitment fee computed at the rate of 35% (thirty five per cent) of the Applicable Margin per annum on each Lender's Available Commitment for the Availability Period and which fee shall accrue on a daily basis.
|
18.1.2.
|
The accrued commitment fee is payable on the last day of each successive period of 3 (three) Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
|
18.3.1.
|
The Borrower shall pay to the Facility Agent (for the account of each Lender) a utilisation fee computed at the Utilisation Fee Relevant Rate.
|
18.3.2.
|
The utilisation fee accrues daily and is payable on the last day of each successive period of 3 (three) Months following Financial Close.
|
18.4.1.
|
this Agreement and any other documents referred to in this Agreement; and
|
18.4.2.
|
any other Finance Documents executed after the Signature Date.
|
18.5.1.
|
If an Obligor requests an amendment, waiver or consent, the Borrower shall, within 3 (three) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in responding to, evaluating, negotiating or complying with that request or requirement.
|
18.5.2.
|
If there is any change in law or any regulation which requires an amendment, waiver or consent under the Finance Documents, the Borrower shall, within three Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in connection with evaluating, negotiating or complying with any such requirement.
|
19.
|
GUARANTEE AND INDEMNITY
|
19.1.
|
Guarantee and indemnity
|
19.1.1.
|
guarantees to each Finance Party punctual performance by the Borrower of its payment obligations under the Finance Documents;
|
19.1.2.
|
undertakes in favour of each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
|
19.1.3.
|
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability that Finance Party incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by the Borrower under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this clause 19 if the amount claimed had been recoverable on the basis of a guarantee.
|
19.2.
|
Continuing guarantee
|
19.3.
|
Reinstatement
|
19.3.1.
|
the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and
|
19.3.2.
|
each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.
|
19.4.
|
Waiver of defences
|
19.4.1.
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
19.4.2.
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
19.4.3.
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
19.4.4.
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
19.4.5.
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any
|
19.4.6.
|
any unenforceability, illegality, invalidity suspension or cancellation of any obligation of any person under this Agreement or any other Finance Document or any other document or security;
|
19.4.7.
|
any insolvency, liquidation, winding-up, business rescue or similar proceedings; or
|
19.4.8.
|
this Agreement or any other Finance Document not being executed by or binding against any other Guarantor or any other party.
|
19.5.
|
Immediate recourse
|
19.6.
|
Appropriations
|
19.6.1.
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
|
19.6.2.
|
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this clause 19.
|
19.7.
|
Deferral of Guarantors' rights
|
19.7.1.
|
to be indemnified by an Obligor;
|
19.7.2.
|
to claim any contribution from any other guarantor of or provider of security for any Obligor's obligations under the Finance Documents;
|
19.7.3.
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
19.7.4.
|
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under clause 19.1 (Guarantee and indemnity);
|
19.7.5.
|
to exercise any right of set-off against any Obligor; and/or
|
19.7.6.
|
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
|
19.8.
|
Release of Guarantors' right of contribution
|
19.8.1.
|
that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and
|
19.8.2.
|
each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.
|
19.9.
|
Additional security
|
20.1.
|
Status
|
20.1.1.
|
It is a corporation, duly incorporated and validly existing under the laws of its jurisdiction of incorporation.
|
20.1.2.
|
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
20.2.
|
Binding obligations
|
20.3.
|
Non-conflict with other obligations
|
20.3.1.
|
any law or regulation applicable to it;
|
20.3.2.
|
its constitutional documents; or
|
20.3.3.
|
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets and where this applies to its Subsidiaries or its Subsidiaries’ assets only, in a manner which would have a Material Adverse Effect.
|
20.4.
|
Power and authority
|
20.5.
|
Benefit
|
20.6
|
Validity and admissibility in evidence
|
20.6.1.
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;
|
20.6.2.
|
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation;
|
20.6.3.
|
for it to carry on its business; and
|
20.6.4.
|
for its Subsidiaries to carry on their respective businesses, but only to the extent such are material Authorisations, have been obtained or effected and are in full force and effect or will be obtained or effected prior to its entry into the relevant Finance Documents, save that in respect of sub clauses 20.6.3 and 20.6.4 above, only to the extent failure to obtain or effect those Authorisations would have a Material Adverse Effect.
|
20.7.
|
Governing law and enforcement
|
20.7.1.
|
The choice of South African law as the governing law of the Finance Documents expressed to be governed by South African law will be recognised and enforced in its jurisdiction of incorporation.
|
20.7.2.
|
Any judgment obtained in South Africa in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.
|
20.7.3.
|
The choice of Australian law as the governing law of the Finance Documents expressed to be governed by Australian law will be recognised and enforced in its jurisdiction of incorporation.
|
20.7.4.
|
Any judgment obtained in Australia in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.
|
20.7.5.
|
The choice of Papua New Guinea law as the governing law of the Finance Documents expressed to be governed by Papua New Guinea law will be recognised and enforced in its jurisdiction of incorporation.
|
20.7.6.
|
Any judgment obtained in Papua New Guinea in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.
|
20.8.
|
Deduction of Tax
|
20.9.
|
No filing or stamp taxes
|
20.10.
|
No default
|
20.10.1.
|
No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
20.10.2.
|
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which might have a Material Adverse Effect.
|
20.11.
|
No misleading information
|
20.11.1.
|
All information supplied by the Borrower, any Obligor or any other member of the Group to the Facility Agent or any other Finance Party is true, complete and accurate in all material respects as at the date it was given and is not misleading in any respect.
|
20.11.2.
|
It has not knowingly withheld information which, if disclosed, would reasonably be expected to materially and adversely affect the decisions of the Lenders to provide finance to the Borrower.
|
20.12.
|
Financial statements
|
20.12.1.
|
Its Original Financial Statements were prepared in accordance with IFRS consistently applied.
|
20.12.2.
|
Its Original Financial Statements fairly represent its financial condition and operations (consolidated in the case of the Borrower) during the relevant Financial Year.
|
20.12.3.
|
The most recent financial statements delivered pursuant to clause 21.1 (Financial statements) have been prepared in accordance with IFRS as applied to the Original Financial Statements and give a true and fair view of (if audited) or fairly present (if unaudited) the Group’s consolidated financial condition and each Obligor’s financial condition as at the end of, and consolidated results of operations for, the period to which they relate.
|
20.12.4.
|
Since the date of the Original Financial Statements there has been no material adverse change in the business, assets or financial condition of the Group.
|
20.13.
|
Insurance
|
20.14.
|
Assets and Intellectual Property Rights
|
20.14.1.
|
It has good title to or valid leases or licenses over all of the assets necessary and material to carry on its business.
|
20.14.2.
|
As far as it is aware, it will not nor will any of its Subsidiaries, in carrying on its business, infringe any Intellectual Property Rights of any third party in any way which is likely to have a Material Adverse Effect.
|
20.15.
|
Security Interest
|
20.15.1.
|
Subject in each case to any registration specifically required by law, and subject to any Legal Reservations:
|
20.15.1.1.
|
Each Security Document to which it is a party validly creates the security interest which is expressed to be created by that Security Document; and
|
20.15.1.2.
|
the Transaction Security created by each Security Document to which it is a party:
|
20.15.1.2.1.
|
ranks and will rank, in respect of all other security interests granted or to be granted by any Obligor in favour of any person other than the Finance Parties, in the order of priority it is expressed to rank in the relevant Security Document; and
|
20.15.1.2.2.
|
is not subject to avoidance in the event of any winding-up, dissolution or administration involving any Obligor.
|
20.15.2.
|
It is the sole, absolute, legal and, where applicable, beneficial owner of all assets made subject to the Transaction Security created by each Security Document to which it is a party.
|
20.16.
|
Pari passu ranking
|
20.17.
|
No proceedings pending or threatened
|
20.18.
|
Insolvency and Financial Distress
|
20.18.1.
|
No:
|
20.18.1.1.
|
corporate action, legal proceeding or other procedure or step described in clause 24.7 (Insolvency and business rescue proceedings); or
|
20.18.1.2.
|
creditors' process described in clause 24.8 (Creditor’s process), has been taken by it or in relation to it or to the best of its knowledge and belief (having made due and careful enquiry) by or in relation to any other member of the Group; and none of the circumstances described in clause 24.6 (Insolvency) applies to it or to the best of its knowledge and belief (having made due and careful enquiry) any other member of the Group.
|
20.18.2.
|
Neither it nor any member of the Group is Financially Distressed (as defined in section 128 of the Companies Act), or, given similar meaning under any applicable company legislation and regulations, in Australia or Papua New Guinea).
|
20.18.3.
|
The representations and warranties set out in this clause 20.18 do not apply to the members of the Group listed in Schedule 13 (Companies to be wound up/reorganised).
|
20.19.
|
No breach of laws
|
20.19.1.
|
It has not (and to the best of its knowledge and belief (having made due and careful enquiry) none of its Subsidiaries have) breached any law or regulation which breach has or might reasonably be expected to have a Material Adverse Effect.
|
20.19.2.
|
No labour disputes or industrial action are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against any member of the Group which have or might reasonably be expected to have a Material Adverse Effect.
|
20.20.
|
Environmental laws
|
20.20.1.
|
Save to the extent disclosed in Schedule 10 (Disclosed Potential Environmental Claim), each member of the Group is in compliance with clause 23.3 (Environmental compliance) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or might reasonably be expected to have a Material Adverse Effect.
|
20.20.2.
|
Save to the extent disclosed in Schedule 10 (Disclosed Potential Environmental Claim), no Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry)) is threatened against any member of the Group where that claim has or might reasonably be expected, if determined against that member of the Group, to have a Material Adverse Effect.
|
20.21.
|
Authorised signatures
|
20.22.
|
No immunity
|
20.23.
|
Sanctions and anti-corruption
|
20.23.1.
|
Neither the Borrower, nor any other member of the Group:
|
20.23.1.1.
|
is a Sanctioned Entity and nor, to the knowledge of the Borrower, any other member of the Group or any of their directors, officers or employees, is any agent of the Borrower or any other member of the Group that will act in any capacity in connection with or benefit from the credit facility established hereby, a Sanctioned Entity;
|
20.23.1.2.
|
is using, nor will use the proceeds of a Facility for the purpose of financing or making funds available directly or indirectly to any Sanctioned Entity, to the extent such financing or provision of funds would currently be prohibited by Anti-Corruption Laws or applicable Sanctions or would otherwise cause any person to be in breach of AntiCorruption Laws or Sanctions; or
|
20.23.1.3.
|
is contributing, nor will contribute or otherwise make available the proceeds of a Facility to any other person or entity for the purpose of financing the activities of any Sanctioned Entity, to the extent such contribution or provision of proceeds would currently be prohibited by Sanctions or would otherwise cause any person to be in breach of Sanctions.
|
20.23.2.
|
None of the Borrower, any member of the Group, any director or officer of the Borrower or any other member of the Group:
|
20.23.2.1.
|
has been or is targeted under any Sanctions, or has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority; or
|
20.23.2.2.
|
has violated or is violating any applicable Sanctions.
|
20.23.3.
|
The Borrower has and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with AntiCorruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its and its Subsidiaries’ respective employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in the Borrower being designated as a Sanctioned Person.
|
20.23.4.
|
None of the Borrower, any member of the Group, any director or officer, or any employee, agent, or Affiliate, of the Borrower or any member of the Group:
|
20.23.4.1.
|
is a person that is, or is owned or controlled by persons that are, the subject of any Sanctions; or
|
20.23.4.2.
|
is located, organised or resident in a country or territory that is, or whose government is, the subject of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
|
20.24.
|
Repetition
|
20.24.1.
|
the date of each Utilisation Request, the date of Financial Close and the first day of each Interest Period; and
|
20.24.2.
|
in the case of an Additional Guarantor, the day on which the company becomes (or it is proposed that the company becomes) an Additional Guarantor.
|
21.
|
INFORMATION UNDERTAKINGS
|
21.1.
|
Financial statements
|
21.1.1.
|
as soon as the same become available, but in any event within 120 (one hundred and twenty) days after the end of each of its Financial Years, its audited consolidated financial statements for that Financial Year;
|
21.1.2.
|
as soon as the same became available, but in any event within 150 (one hundred and fifty) days after the end of each of its Financial Years, the audited financial statements of each Obligor for that Financial Year, other than Aurora Gold (Wafi) Proprietary Limited;
|
21.1.3.
|
as soon as the same become available, but in any event within 60 days after the end of each half of each of its Financial Years, its consolidated financial statements for that financial half year.
|
21.2.
|
Compliance Certificate
|
21.2.1.
|
The Borrower shall supply to the Facility Agent, with each set of financial statements delivered pursuant to clause 21.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with clause 22 (Financial covenants) as at the date as at which those financial statements were drawn up.
|
21.2.2.
|
Each Compliance Certificate shall be signed by the chief financial officer or the financial director of the Borrower.
|
21.3.
|
Requirements as to financial statements
|
21.3.1.
|
Each set of financial statements delivered by the Borrower pursuant to clause 21.1 (Financial statements) shall be certified by a director of the relevant company as giving a true and fair view if audited, or fairly representing, if unaudited, its financial condition as at the date as at which those financial statements were drawn up.
|
21.3.2.
|
The Borrower shall procure that each set of consolidated financial statements delivered pursuant to clause 21.1 (Financial statements) is prepared using IFRS.
|
21.3.3.
|
The Borrower shall procure that each set of financial statements delivered pursuant to clause 21.1 (Financial statements) is prepared using IFRS (to the extent IFRS was applied), accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in IFRS (to the extent IFRS was applied), the accounting practices or reference periods, and its Auditors (or, if appropriate, the Auditors of the Obligor) deliver to the Facility Agent:
|
21.3.3.1.
|
a description of any change necessary for those financial statements to reflect the IFRS (to the extent IFRS was applied), accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and
|
21.3.3.2.
|
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether clause 22 (Financial covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and that Obligor's Original Financial Statements.
|
21.3.4.
|
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.
|
21.4.
|
Financial year-end
|
21.5.
|
Environmental Report
|
21.5.1.
|
The Borrower shall provide to the Facility Agent:
|
21.5.1.1.
|
details of any non-compliance with applicable Environmental Law or any Environmental Permit;
|
21.5.1.2.
|
details of any suspension, revocation, cancellation, annulment or amendment of any Environmental Permit; and
|
21.5.1.3.
|
details of any breach of any Environmental Permit.
|
21.5.2.
|
The Borrower shall provide the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests) all supplemental information to the Borrower’s Integrated Annual Report, which includes information regarding, without limitation:
|
21.5.2.1.
|
environmental and social progress in the relevant reporting period;
|
21.5.2.2.
|
results of environmental monitoring, including dust fallout monitoring, stack emission monitoring, fugitive dust monitoring, potable water analysis (including taps and game reserve boreholes), discharge effluent analysis (including sewerage and settling dams), monitoring boreholes and noise monitoring;
|
21.5.2.3.
|
confirmation of compliance with all Environmental Laws and Environmental Permits (as and when they become applicable);
|
21.5.2.4.
|
details of any non-compliances/partial-compliances with any Environmental Laws and associated rectification actions;
|
21.5.2.5.
|
details and updates as to the status of any water use licence applications made by the Borrower or any other member of the Group in terms of the National Water Act, 1998; and
|
21.5.2.6.
|
a copy of any exemption, and the conditions related thereto, issued by the National Nuclear Regulator of South Africa to the Borrower or any other member of the Group.
|
21.6.
|
Information: miscellaneous
|
21.6.1.
|
all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
|
21.6.2.
|
promptly upon becoming aware of them, details and copies of any material and substantive changes (excluding for the avoidance of doubt, administrative or procedural changes) proposed to or made to its constitutional documents or the constitutional documents of it or any other Obligor, including the filing of any Memorandum of Incorporation under the Companies Act or under any applicable company legislation and regulations in Australia or Papua New Guinea;
|
21.6.3.
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of becoming aware of them, the details of any litigation, arbitration, administrative proceedings, liquidation applications, winding up applications or business rescue applications which are current, threatened or pending against it or any other member of the Group, and which may, if adversely determined, have a Material Adverse Effect;
|
21.6.4.
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of being requested by the Facility Agent, such further information regarding the financial condition, business and operations of it or any other member of the Group as any Finance Party (through the Facility Agent) may reasonably request in order to assess the Borrower’s or any other Obligor’s ability to perform its obligations under the Finance Documents;
|
21.6.5.
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of it becoming aware of any transfer or issue or proposed transfer or issue of shares of any member of the Group or other corporate action or proposed corporate action that would constitute a Fundamental Control Event or Fundamental Disposal Event;
|
21.6.6.
|
regular updates (at intervals of no less than 6 (six) months or sooner as and when such information becomes available) on the progress of applications for all Environmental Permits and Authorisations required for its operations or proposed operations in Papua New Guinea;
|
21.6.7.
|
promptly, notice of any suspension or cancellation of any Authorisation relating to its operations where given by the relevant Minister under the Mineral and Petroleum Resources Development Act, 2002 or other Mining Law (other than temporary stoppages under the Mine Health and Safety Act, 1996) or similar legislation in Papua New Guinea;
|
21.6.8.
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of (but in any event prior to any notices being given by an authorised signatory) any change in authorised signatories of it or any other Obligor signed by a director or company secretary of it or such other Obligor (as the case may be) accompanied by specimen signatures of any new authorised signatories;
|
21.6.9.
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of request by the Facility Agent such additional information or documentation as the Facility Agent may require in order to verify that any signatory referred to in paragraph 21.6.8 above has been duly authorised; and
|
21.6.10.
|
as soon as reasonably practicable, but in any event within 1 (one) Month after the end of each of its Financial Years, its annual business plan as approved by the board of directors of the Borrower.
|
21.7.
|
Notification of Default
|
21.7.1.
|
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
21.7.2.
|
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed by 2 (two) of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default
|
21.8.
|
Use of websites
|
21.8.1.
|
The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (Website Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Borrower and the Facility Agent (Designated Website) if:
|
21.8.1.1.
|
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
21.8.1.2.
|
both the Borrower and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
21.8.1.3.
|
the information is in a format previously agreed between the Borrower and the Facility Agent.
|
21.8.2.
|
If any Lender (Paper Form Lender) does not agree to the delivery of information electronically then the Facility Agent shall notify the Borrower accordingly and the Borrower shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Borrower shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.
|
21.8.3.
|
The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Borrower and the Facility Agent.
|
21.8.4.
|
The Borrower shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
|
21.8.4.1.
|
the Designated Website cannot be accessed due to technical failure;
|
21.8.4.2.
|
the password specifications for the Designated Website change;
|
21.8.4.3.
|
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
21.8.4.4.
|
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
21.8.4.5.
|
the Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
21.8.5.
|
If the Borrower notifies the Facility Agent under clause 21.8.4.1 or clause 21.8.4.5 above, all information to be provided by the Borrower under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
|
21.8.6.
|
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Borrower shall comply with any such request within ten Business Days.
|
21.9.
|
Know your customer checks
|
21.9.1.
|
If:
|
21.9.1.1.
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Signature Date;
|
21.9.1.2.
|
any change in the status of an Obligor after the Signature Date; or
|
21.9.1.3.
|
a proposed Transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such Transfer, obliges the Facility Agent or any Lender (or, in the case of clause 21.9.1.3 above, any prospective new Lender) to comply with know your customer or similar identification procedures (whether in terms of the Financial Intelligence Centre Act, 2001 or otherwise) in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in 21.9.1.3 above, on behalf of any prospective new Lender) in order for the Facility Agent, such Lender or, in the case of the event described in clause 21.9.1.3 above, any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
21.9.2.
|
Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
21.9.3.
|
The Borrower shall, by not less than 10 (ten) Business Days' prior written notice to the Facility Agent in respect of any Subsidiary, notify the Facility Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Guarantor pursuant to clause 26 (Changes to the Obligors).
|
21.9.4.
|
Following the giving of any notice pursuant to clause 21.9.1.3 above, if the accession of such Additional Guarantor obliges the Facility Agent or any Lender to comply with know your customer or similar identification procedures in circumstances where the necessary information is not already available to it, the Borrower shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Facility Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Guarantor.
|
22.
|
FINANCIAL COVENANTS
|
22.1.
|
Financial covenants
|
22.1.1.
|
the Interest Cover Ratio shall not be less than 5 (five) times in respect of any Ratio Test Period;
|
22.1.2.
|
at any time Tangible Net Worth to Total Net Debt shall not be less than 5 (five) times; and
|
22.1.3.
|
the Leverage Ratio shall be less than 2.5 (two point five) times for any Ratio Test Date.
|
22.2.
|
Financial testing
|
23.
|
GENERAL UNDERTAKINGS
|
23.1.
|
Authorisations
|
23.1.1.
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
23.1.2.
|
supply certified copies to the Facility Agent on request of, any Authorisation required to enable it to conduct its business and to perform its obligations under the Finance Documents and to ensure (subject to the Legal Reservations to the extent they may make it impossible to do so) the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.
|
23.2.
|
Compliance with laws
|
23.2.1.
|
Each Obligor shall (and the Borrower shall ensure that each other member of the Group will) comply in all respects with all laws to which it may be subject where failure to do so has or might reasonably be expected to have a Material Adverse Effect.
|
23.2.2.
|
The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
|
23.3.
|
Environmental compliance
|
23.3.1.
|
comply with all Environmental Law;
|
23.3.2.
|
obtain, maintain and ensure compliance with all requisite Environmental Permits;
|
23.3.3.
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law, where failure to do so has or might reasonably be expected to have a Material Adverse Effect.
|
23.4.
|
Environmental Claims
|
23.4.1.
|
any Environmental Claim against it or any other member of the Group which is current, pending or threatened; and
|
23.4.2.
|
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against it or any other member of the Group.
|
23.5.
|
Insurance
|
23.6.
|
Negative pledge
|
23.6.1.
|
No Obligor shall (and the Borrower shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.
|
23.6.2.
|
No Obligor shall (and the Borrower shall ensure that no other member of the Group will):
|
23.6.2.1.
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
|
23.6.2.2.
|
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
23.6.2.3.
|
enter into or permit to subsist any title retention arrangement;
|
23.6.2.4.
|
enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
23.6.2.5.
|
enter into or permit to subsist any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of securing the raising of Financial Indebtedness or of securing the financing of the acquisition of an asset.
|
23.6.3.
|
Clauses 23.6.1 and 23.6.2 above do not apply to any Permitted Security.
|
23.7.
|
Disposals
|
23.7.1.
|
No Obligor shall (and the Borrower shall ensure that no other member of the Group will), enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.
|
23.7.2.
|
Clause 23.7.1 above does not apply to any sale, lease, transfer or other disposal:
|
23.7.2.1.
|
made in the ordinary course of business of the disposing entity;
|
23.7.2.2.
|
of assets in exchange for other assets comparable or superior as to type, value and quality and for a similar purpose;
|
23.7.2.3.
|
made between Material Obligors except to the extent it involves the transfer of any shares or other assets which form part of the Transaction Security without the prior written consent of the Facility Agent;
|
23.7.2.4.
|
of Cash or Cash Equivalent Investments not prohibited by the Finance Documents;
|
23.7.2.5.
|
of obsolete or redundant assets;
|
23.7.2.6.
|
made pursuant to the Buy-In Option;
|
23.7.2.7.
|
made pursuant to a Permitted Security;
|
23.7.2.8.
|
of shares in any member of the Group listed in Schedule 13 (Companies to be wound up/reorganised) in order to bring about a solvent corporate restructure or winding up of that member of the Group;
|
23.7.2.9.
|
funded by way of a Permitted Loan as set out in clause 1.1.134.9 or of any other assets (including any Material Assets) on arm’s length terms, for full market value and for cash consideration which is not deferred beyond a period of 1 (one) year from the date of effective transfer or conditional transfer and subject always to the Borrower's obligations under clause 10.5 (Material Disposal Proceeds); or
|
23.7.2.10.
|
made with the prior written approval of the Facility Agent (acting on behalf of the Lenders).
|
23.8.
|
Change of business
|
23.9.
|
Loans or credit
|
23.9.1.
|
Except as permitted under clause 23.9.2 below, no Obligor shall (and the Borrower shall ensure that no other member of the Group will) be a creditor in respect of any Financial Indebtedness.
|
23.9.2.
|
Clause 23.9.1 above does not apply to:
|
23.9.2.1.
|
such arrangements existing as at the Signature Date and disclosed in the Original Financial Statements;
|
23.9.2.2.
|
Permitted Loans;
|
23.9.2.3.
|
any guarantee or indemnity given in respect of Permitted Indebtedness; or
|
23.9.2.4.
|
Financial Indebtedness owed by one Obligor to another Obligor.
|
23.10.
|
No Guarantees or indemnities
|
23.10.1.
|
Except as permitted under clause 23.10.2 below, no Obligor shall (and the Borrower shall ensure that no other member of the Group will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person or grant any indemnity in favour of any person.
|
23.10.2.
|
Clause 23.10.1 above does not apply to a guarantee or indemnity:
|
23.11.
|
Financial Indebtedness
|
23.11.1.
|
Except as permitted under clause 23.11.3 below, no Obligor shall (and the Borrower shall ensure that no other member of the Group will) incur or allow to remain outstanding any Financial Indebtedness.
|
23.11.2.
|
None of Morobe Consolidated Goldfields Limited, Wafi Mining Limited or Morobe Exploration Limited shall incur or allow to remain outstanding any Financial Indebtedness other than:
|
23.11.2.1.
|
in an aggregate amount at any time not exceeding USD30 000 000 (thirty million United States Dollars) or its equivalent in any other currency or currencies (when aggregated across all three abovementioned entities);
|
23.11.2.2.
|
in respect of Permitted Loans where Morobe Consolidated Goldfields Limited, Wafi Mining Limited or Morobe Exploration Limited is the borrower and another member of the Group the lender and the ultimate source of such funds is not directly or indirectly derived from Financial Indebtedness incurred by a member of the Group towards a person other than the Lenders.
|
23.11.3.
|
Clause 23.11.1 above does not apply to Financial Indebtedness which is Permitted Indebtedness.
|
23.12.
|
Auditors
|
23.13.
|
Sanctions and anti-corruption
|
23.13.1.
|
Each Obligor (and each Obligor shall ensure that each other member of the Group) shall not use (or otherwise make available) the proceeds of any Loan (i) for the purpose of financing directly or indirectly the activities of any Sanctioned Entity, to the extent such contribution or provision of proceeds would at that time be prohibited by Sanctions or would otherwise cause any person to be in breach of Sanctions or (ii) in furtherance of an offer, payment, promise to pay or authorisation of the payment or giving of money, or anything else of value, to any person in violation of any Anti-Corruption Laws.
|
23.13.2.
|
Each Obligor (and each Obligor will ensure that each other member of the Group) shall ensure that appropriate controls and safeguards are in place designed to prevent any proceeds of any Loan from being used contrary to clause 23.13.1 above.
|
23.14.
|
Distributions
|
23.14.1
|
the Tangible Net Worth to Total Net Debt is less than 8 (eight) times, or would, following such Distribution, be less than 8 (eight) times; or
|
23.14.2
|
an Event of Default is continuing at the time.
|
23.15.
|
Acquisitions
|
23.15.1.
|
No Obligor shall (and the Borrower shall ensure that no other member of the Group shall) acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them) in excess of:
|
23.15.1.1.
|
in relation to South African acquisitions, ZAR400 000 000 (four hundred million Rand) (or its equivalent in any other currency) in aggregate prior to the Final Repayment Date; or
|
23.15.1.2.
|
in relation to acquisitions anywhere outside of South Africa, USD80 000 000 (eighty million United States Dollars) (or its equivalent in any other currency) in aggregate prior to the Final Repayment Date.
|
23.15.2.
|
Clause 23.15.1 above does not apply to:
|
23.15.2.1.
|
an acquisition of securities or investments which are Cash Equivalent Investments;
|
23.15.2.2.
|
an acquisition by a Material Obligor of an asset, business or undertaking from another Obligor other than shares or assets which form part of the Transaction Security without the prior written consent of the Facility Agent;
|
23.15.2.3.
|
an acquisition of shares or securities pursuant to a Permitted Share Issue;
|
23.15.2.4.
|
any acquisition financed by issuing shares of the Borrower as consideration for the purchase price of the acquired asset; and
|
23.15.2.5.
|
an acquisition made with the prior written approval of the Facility Agent.
|
23.16.
|
Gold Price Derivative Transactions
|
23.16.1.
|
a maximum amount of up to the lower of:
|
23.16.1.1.
|
30% (thirty per cent) of its total annual gold production as per its most recent Financial Year, per annum; and
|
23.16.1.2.
|
3 500kg (three thousand five hundred kilograms) of gold per quarter;
|
23.16.2.
|
a maximum period of 24 (twenty four) Months from the date of entering into each gold price derivative transaction; and
|
23.16.3.
|
a minimum price of:
|
23.16.3.1.
|
ZAR550 000 (five hundred and fifty thousand Rand) per kilogram of gold for ZAR gold price derivative transactions; or
|
23.16.3.2.
|
USD1 200 (one thousand two hundred United States Dollars) per ounce of gold for USD gold price derivative transactions.
|
23.17.
|
Further assurance
|
23.17.1.
|
Each Obligor shall (and the Borrower shall procure that each member of the Group will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Facility Agent may reasonably specify (and in such form as the Facility Agent may reasonably require in favour of the Finance Parties and/or the Secured Parties):
|
23.17.1.1.
|
to provide more effective Security over any property and assets the subject of the Transaction Security as a result of any part of the PPSA PNG coming into force of law;
|
23.17.1.2.
|
to perfect the Security created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Finance Parties provided by or pursuant to the Finance Documents or by law;
|
23.17.1.3.
|
to confer on the Finance Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Security Documents; and/or
|
23.17.1.4.
|
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.
|
23.17.2.
|
Each Obligor shall (and the Borrower shall procure that each member of the Group shall) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Finance Parties and/or the Secured Parties by or pursuant to the Finance Documents.
|
23.18.
|
Nedbank Guarantees
|
23.19.
|
Share capital
|
23.19.1.
|
issue any shares except pursuant to a Permitted Share Issue;
|
23.19.2.
|
alter any rights attaching to its issued shares in existence at the Signature Date without the prior written consent of the Facility Agent;
|
23.19.3.
|
take any action to convert its shares into uncertificated shares without the prior written consent of the Facility Agent;
|
23.19.4.
|
repurchase, cancel, redeem, reduce or otherwise acquire any of its share capital or grant or acquire any option, warrant or other right over its share capital without the prior written consent of the Facility Agent;
|
23.19.5.
|
permit any sale or other transfer of its shares (other than as permitted under this Agreement) without the prior written consent of the Facility Agent.
|
24.1.
|
Non-payment
|
24.1.1.
|
administrative or technical error; or
|
24.1.2.
|
a Disruption Event,
|
24.2.
|
Financial covenants
|
24.3.
|
Other obligations
|
24.3.1.
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in clauses 24.1 (Non-payment) and 24.2 (Financial covenants)).
|
24.3.2.
|
No Event of Default under clause 24.3.1 above will occur if the failure to comply is capable of remedy and is remedied within 15 Business Days of the earlier of (A) the Facility Agent giving notice to the Borrower and (B) the board of directors of the Borrower becoming aware of the failure to comply.
|
24.4.
|
Misrepresentation
|
24.5.
|
Cross default
|
24.5.1.
|
Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period, or in respect of Financial Indebtedness between members of the Group in respect of Permitted Loans, within any relevant grace period agreed to by the relevant members of the Group.
|
24.5.2.
|
Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable, or becomes capable of being declared due and payable, prior to its specified maturity as a result of an event of default (however described).
|
24.5.3.
|
Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).
|
24.5.4.
|
No Event of Default will occur under this clause 24.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within clauses 24.5.1 to 24.5.3 above is less than ZAR10 000 000 (ten million Rand) (or its equivalent in any other currency or currencies).
|
24.6.
|
Insolvency
|
24.6.1.
|
A member of the Group is or is deemed by any authority or legislation to be unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
24.6.2.
|
A member of the Group is or is deemed by any authority or legislation to be Financially Distressed (as defined in section 128 of the Companies Act, or, given similar meaning under any applicable company legislation and regulations in Australia or Papua New Guinea).
|
24.6.3.
|
The value of the assets of any member of the Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
24.6.4.
|
A moratorium is declared in respect of any indebtedness of any member of the Group.
|
24.7.
|
Insolvency and business rescue proceedings
|
24.7.1.
|
Other than in relation to the members of the Group listed in Schedule 13 (Companies to be wound up/reorganised) any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
24.7.1.1.
|
the suspension of payments, a moratorium of any indebtedness, liquidation, winding-up, dissolution, administration, business rescue or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than a solvent liquidation or reorganisation of any member of the Group which is not an Obligor;
|
24.7.1.2.
|
the deregistration of any member of the Group under the Corporations Act, 2011 (Cth);
|
24.7.1.3
|
a composition, compromise, assignment or arrangement with any creditor of any member of the Group;
|
24.7.1.4.
|
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrative receiver, administrator, compulsory manager, business rescue practitioner or other similar officer in respect of any member of the Group or any of its assets; or
|
24.7.1.5.
|
enforcement of any Security over any assets of any member of the Group,
|
24.7.2.
|
Other than in relation to the members of the Group listed in Schedule 13 (Companies to be wound up/reorganised) a meeting is proposed or convened by the directors of any member of the Group, a resolution is proposed or passed, application is made or an order is applied for or granted, to authorise the entry into or implementation of any business rescue proceedings (or any similar proceedings) in respect of any member of the Group or any analogous procedure or step is taken in any jurisdiction.
|
24.8.
|
Creditors' process
|
24.9.
|
Unlawfulness
|
24.10.
|
Cessation of business
|
24.11.
|
Audit qualification
|
24.12.
|
Repudiation
|
24.13.
|
Governmental intervention
|
24.13.1.
|
the management of any Obligor is wholly or substantially replaced or the authority of any Obligor in the conduct of its business is wholly or substantially curtailed;
|
24.13.2.
|
all or a majority of the issued shares of any Obligor, or the whole or any part of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired; or
|
24.13.3.
|
the management of any joint venture (including any Joint Venture) in respect of which an Obligor is a joint venture participant is wholly or substantially replaced or the authority of the joint venture participants in the conduct of the business of the joint venture (including any Joint Venture) is wholly or substantially curtailed.
|
24.14.
|
Failure to maintain Authorisations
|
24.14.1.
|
to enable any Obligor to lawfully conduct its business, or enter into, exercise its rights under and perform the obligations expressed to be assumed by it in any Finance Document to which it is a party;
|
24.14.2.
|
to ensure that the obligations expressed to be assumed by any Obligor in any Finance Document to which it is a party are legal, valid and binding; or
|
24.14.3.
|
to make any Finance Document to which any Obligor is a party admissible in evidence,
|
24.15.
|
Material Adverse Effect
|
24.16.
|
Material litigation
|
24.17.
|
Acceleration
|
24.17.1.
|
cancel the Facilities whereupon the Facilities shall immediately be cancelled;
|
24.17.2.
|
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
|
24.17.3.
|
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Facility Agent on the instructions of the Majority Lenders; and/or
|
24.17.4.
|
require the termination of any Gold Price Derivative Transaction(s) entered into under any Hedging Document.
|
25.
|
CHANGES TO THE LENDERS
|
25.1.
|
Cessions and delegations by the Lenders Subject to this clause 25, a Lender (Existing Lender) may cede and/or delegate (a Transfer) any or all of its rights and/or obligations under this Agreement and/or under any other Finance Document to a Permitted Transferee or to any other bank or financial institution, trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets. The Borrower and each other Obligor consents to any splitting of claims which may arise as a result of a Transfer permitted by this Agreement.
|
25.2.
|
Conditions of Transfer
|
25.2.1.
|
The consent of the Borrower is not required for a Transfer by an Existing Lender to any Permitted Transferee, or to any other prospective transferee whilst an Event of Default is continuing. The consent of the Borrower is required for a Transfer to any other prospective transferee, other than a Permitted Transferee, whilst there is no Event of Default continuing.
|
25.2.2.
|
Where the consent of the Borrower to a Transfer is required in terms of clause 25.2.1 above, that consent must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent 5 (five) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
|
25.2.3.
|
A Transfer will only be effective if the procedure set out in clause 25.4 (Procedure for Transfer) is complied with.
|
25.2.4.
|
If:
|
25.2.5.
|
Each new Lender, by executing the relevant Transfer Certificate confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Transfer becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
25.3.1.
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a new Lender for:
|
25.3.1.1.
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
25.3.1.2.
|
the financial condition of any Obligor;
|
25.3.1.3.
|
the performance and observance by any Obligor of its
|
25.3.1.4.
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document, and any representations or warranties implied by law are excluded.
|
25.3.2.
|
Each new Lender confirms to the Existing Lender and the other Finance Parties that it:
|
25.3.2.1.
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
|
25.3.2.2.
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
25.3.3.
|
Nothing in any Finance Document obliges an Existing Lender to:
|
25.3.3.1.
|
accept a re-Transfer from a new Lender of any of the rights and obligations Transferred under this clause 25; or
|
25.3.3.2.
|
support any losses directly or indirectly incurred by the new Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
25.4.1.
|
Subject to the conditions set out in clause 25.2 (Conditions of Transfer), a Transfer is effected in accordance with clause 25.4.2 below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the new Lender. The Facility Agent shall, subject to clause 25.4.2 below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
|
25.4.2.
|
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the new Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations that apply to it (if any) in relation to the transfer to such new Lender.
|
25.4.3.
|
On the Transfer Date:
|
25.4.3.1.
|
the Transfer shall take effect under the Finance Documents so that the rights and/or obligations which are the subject of the Transfer shall be ceded and delegated by the Existing Lender to the new Lender (Transferred Rights and Obligations);
|
25.4.3.2.
|
each of the Obligors shall perform their obligations and exercise their rights in relation to the Transferred Rights and Obligations in favour of or against the new Lender, as the case may be;
|
25.4.3.3.
|
the Facility Agent, the Arrangers, the new Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the new Lender been an Original Lender with the rights and/or obligations comprising the Transferred Rights and Obligations;
|
25.4.3.4.
|
the Existing Lender shall be released from further obligations to each other Lender under the Finance Documents to the extent of the Transferred Rights and Obligations; and
|
25.4.3.5.
|
the new Lender shall become a Party as a Lender.
|
25.5.
|
Copy of Transfer Certificate to Borrower The Facility Agent shall send to the Borrower a copy of each Transfer Certificate executed by it in accordance with clause 25.4.1 as soon as reasonably practicable after it has executed any such Transfer Certificate.
|
26.1.
|
Cessions and delegations by Obligors
|
26.2.
|
Additional Guarantors
|
26.2.1.
|
Subject to compliance with the provisions of clauses 21.9.3 and 21.9.4, the Borrower may cause any of its Subsidiaries to become an Additional Guarantor and that Subsidiary shall become an Additional Guarantor if:
|
26.2.1.1.
|
the Borrower delivers to the Facility Agent a duly completed and executed Accession Letter; and
|
26.2.1.2.
|
in relation to any Additional Guarantors, the Facility Agent has received all of the documents and other evidence listed in Part I of Schedule 3 (Conditions precedent for new Guarantors) in relation to that Additional Guarantor, each in form and substance satisfactory to the Facility Agent.
|
26.2.2.
|
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part I or II (as applicable) of Schedule 3 (Conditions precedent for new Guarantors).
|
26.4.1.
|
The Borrower may request that a Guarantor ceases to be a Guarantor by delivering to the Facility Agent a Resignation Letter.
|
26.4.2.
|
The Facility Agent shall accept a Resignation Letter and notify the Borrower and the Lenders of its acceptance if:
|
26.4.2.1.
|
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Borrower has confirmed this is the case);
|
26.4.2.2.
|
all the Lenders have consented to the Borrower's request.
|
27.1.
|
Appointment of the Facility Agent
|
27.1.1.
|
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
27.1.2.
|
Each other Finance Party authorises the Facility Agent to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
27.2.
|
Duties of the Facility Agent
|
27.2.1.
|
Subject to clause 27.2.2 below, the Facility Agent shall forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party as soon as reasonably practicable after having received that original or copy document as the case may be.
|
27.2.2.
|
Without prejudice to clause 25.5 (Copy of Transfer Certificate to Borrower), clause 27.2.1 above shall not apply to any Transfer Certificate.
|
27.2.3.
|
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
27.2.4.
|
If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Finance Parties.
|
27.2.5.
|
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent or an Arranger) under this Agreement it shall promptly notify the other Finance Parties.
|
27.2.6.
|
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
27.3.
|
Role of the Arrangers
|
27.4.
|
No fiduciary duties
|
27.4.1.
|
Nothing in this Agreement constitutes the Facility Agent or any Arranger as a trustee or fiduciary of any other person.
|
27.4.2.
|
Neither the Facility Agent nor an Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
27.6.
|
Rights and discretions of the Facility Agent
|
27.6.1.
|
The Facility Agent may rely on:
|
27.6.1.1.
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
27.6.1.2.
|
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
|
27.6.2.
|
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
27.6.2.1.
|
no Default has occurred (unless it has actual knowledge of a Default arising under clause 24.1 (Non-payment));
|
27.6.2.2.
|
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and
|
27.6.2.3.
|
any notice or request made by the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
27.6.3.
|
The Facility Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
27.6.4.
|
The Facility Agent may act in relation to the Finance Documents through its personnel and agents.
|
27.6.5.
|
The Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
27.6.6.
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Arrangers are obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
27.7.
|
Majority Lenders' instructions
|
27.7.1.
|
Unless a contrary indication appears in a Finance Document, the Facility Agent shall (i) exercise any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Facility Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.
|
27.7.2.
|
Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.
|
27.7.3.
|
The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.
|
27.7.4.
|
n the absence of instructions from the Majority Lenders, (or, if applicable, the Lenders) the Facility Agent may act (or refrain from taking action) as it considers to be in the best interests of the Lenders.
|
27.7.5.
|
The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.
|
27.8.
|
Responsibility for documentation
|
27.8.1.
|
are responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, the Arranger, an Obligor or any other person given in or in connection with any Finance Document;
|
27.8.2.
|
are responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document; or
|
27.8.3.
|
are responsible for any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
27.9.
|
Exclusion of liability
|
27.9.1.
|
Without limiting paragraph 27.9.2 below, the Facility Agent will not be liable for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
|
27.9.2.
|
No Party (other than the Facility Agent) may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Facility Agent may rely on this clause 27.9.2 as a stipulation for their benefit as contemplated by clause 1.4.
|
27.9.3.
|
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
27.9.4.
|
Nothing in this Agreement shall oblige the Facility Agent or any Arranger to carry out any know your customer or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Facility Agent and the Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility Agent or the Arrangers.
|
27.10.
|
Lenders' indemnity to the Facility Agent
|
27.11.
|
Resignation of the Facility Agent
|
27.11.1.
|
The Facility Agent may resign and appoint one of its Affiliates acting through an office in South Africa as successor by giving notice to the other Finance Parties and the Borrower.
|
27.11.2.
|
Alternatively the Facility Agent may resign by giving 30 (thirty) days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint a successor Facility Agent.
|
27.11.3.
|
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph 27.11.2 above within 30 (thirty) days after notice of resignation was given, the retiring Facility Agent (after consultation with the Borrower) may appoint a successor Facility Agent (acting through an office in South Africa).
|
27.11.4.
|
The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.
|
27.11.5.
|
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
27.11.6.
|
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this clause 27. Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
27.11.7.
|
After consultation with the Borrower, the Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph 27.11.2 above. In this event, the Facility Agent shall resign in accordance with paragraph 27.11.2 above.
|
27.12.
|
Confidentiality
|
27.12.1.
|
In acting as agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
27.12.2.
|
If information is received by another division or department of the Facility Agent, it may be treated as confidential to that division or department and the Facility Agent shall not be deemed to have notice of it.
|
27.13.
|
Relationship with the Lenders
|
27.13.1.
|
The Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
27.13.1.1.
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
27.13.1.2.
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day, unless it has received not less than five Business Days prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
|
27.13.2.
|
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under clause 32.2.1) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of clause 32.2 (Addresses) and clause 32.6.1.1 and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
27.14.
|
Credit appraisal by the Lenders
|
27.14.1.
|
the financial condition, status and nature of each member of the Group;
|
27.14.2.
|
he legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
27.14.3.
|
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
27.14.4.
|
the adequacy, accuracy and/or completeness of any information provided by the Facility Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
|
27.15.
|
Facility Agent’s management time
|
27.16.
|
Deduction from amounts payable by the Facility Agent
|
28.1.
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
28.2.
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
28.3.
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
29.1.
|
Payments to Finance Parties
|
29.1.1.
|
the Recovering Finance Party shall, within 3 (three) Business Days, notify details of the Recovered Amount, to the Facility Agent;
|
29.1.2.
|
the Facility Agent shall determine whether the Recovered Amount is in excess of the amount the Recovering Finance Party would have been paid had the Recovered Amount been received or made by the Facility Agent and distributed in accordance with clause 30 (Payment mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
29.1.3.
|
the Recovering Finance Party shall, within 3 (three) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (Sharing Payment) equal to such Recovered Amount less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with clause 30.5 (Partial payments).
|
29.2.
|
Redistribution of payments
|
29.3.
|
Recovering Finance Party’s rights
|
29.4.
|
Reversal of redistribution
|
29.4.1.
|
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (Redistributed Amount); and
|
29.4.2.
|
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
29.5.
|
Exceptions
|
29.5.1.
|
This clause 29 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this clause, have a valid and enforceable claim against the relevant Obligor.
|
29.5.2.
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
29.5.2.1.
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
29.5.2.2.
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
30.1.
|
Payments to the Facility Agent
|
30.1.1.
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document (other than under any Hedging Document except as expressly provided for in this Agreement where a payment is required to be made to the Facility Agent under a Hedging Document), that Obligor or Lender shall make the same available to the Facility Agent (unless a contrary indication appears in a Finance Document) in ZAR for value by no later than 12pm (Johannesburg time) on the due date and in such funds specified by the Facility Agent by way of a funds flow schedule or otherwise.
|
30.1.2.
|
Payment shall be made to such account in South Africa with such bank as the Facility Agent specifies.
|
30.2.
|
Distributions by the Facility Agent
|
30.3.
|
Distributions to an Obligor
|
30.4.
|
Clawback
|
30.4.1.
|
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
30.4.2.
|
If the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
30.5.
|
Partial payments
|
30.5.1.
|
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
30.5.1.1.
|
first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Facility Agent under the Finance Documents;
|
30.5.1.2.
|
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
|
30.5.1.3.
|
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
30.5.1.4.
|
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
30.5.2.
|
The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in clauses 30.5.1.1 to 30.5.1.4 above.
|
30.5.3.
|
Clauses 30.5.1 and 30.5.2 above will override any appropriation made by an Obligor.
|
30.6.
|
No set-off by Obligors
|
30.7.
|
Business Days
|
30.7.1.
|
Any payment which is due to be made in terms of any Finance Document on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
30.7.2.
|
In the event that the day for performance of any obligation (other than a payment obligation) to be performed in terms of any Finance Document should fall on a day which is not a Business Day, the relevant day for performance shall be the succeeding Business Day.
|
30.7.3.
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
30.8.
|
Currency of account
|
30.8.1.
|
Subject to clauses 30.8.2 and 30.8.3 below, ZAR is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
30.8.2.
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
30.8.3.
|
Any amount expressed to be payable in a currency other than ZAR shall be paid in that other currency.
|
30.9.
|
Disruption to Payment Systems etc.
|
30.9.1.
|
the Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
30.9.2.
|
the Facility Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in clause 30.9.1 if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
30.9.3.
|
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in clause 30.9.1 but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
30.9.4.
|
any such changes agreed upon by the Facility Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of clause 36 (Amendments and waivers);
|
30.9.5.
|
the Facility Agent shall not be liable for any damages, costs or losses whatsoever arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this clause 30.9; and
|
30.9.6.
|
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to clause 30.9.4 above.
|
32.1.
|
Communications in writing
|
32.2.
|
Addresses
|
32.2.1.
|
in the case of the Borrower and each Original Guarantor incorporated as a company in South Africa:
|
Physical address:
|
Block 27
|
|
Randfontein Office Park
|
|
Cnr Main Reef Road and Ward Avenue
|
|
Randfontein
|
|
|
Fax number:
|
'+27 11 684 0188
|
|
|
For the attention of:
|
The Company Secretary
|
|
|
32.2.2.
|
in the case of Abelle Limited, Aurora Gold Ltd, Aurora Gold (Wafi) Pty Limited and Harmony Gold (PNG Services) Pty Limited:
|
Physical address:
|
Level 2
|
|
189 Coronation Drive
|
|
Milton
|
|
Queensland 4064
|
|
Australia
|
|
2196
|
|
|
Fax number:
|
61 (07) 3320 3740/ +617 3320 3740
|
|
|
For the attention of:
|
Chief Financial Officer
|
|
Aubrey Testa
|
|
(aubrey.testa@harmonyseasia.com)
|
|
|
32.2.3.
|
in the case of Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) in its capacity as an Original Lender, Original Hedge Provider and Arranger:
|
Physical address:
|
Nedbank Limited
|
|
Block F, 3rd Floor
|
|
Nedbank 135 Rivonia Campus
|
|
135 Rivonia Road
|
|
Sandown
|
|
2196
|
|
|
Fax number:
|
'+27 11 295 3902
|
|
|
For the attention of:
|
Facility Agent
|
|
AgencyNedbank@Nedbank.co.za
|
|
|
32.2.4.
|
in the case of Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) in its capacity as the Facility Agent:
|
Physical address:
|
Nedbank Limited
|
|
Block F, 3rd Floor
|
|
Nedbank 135 Rivonia Campus
|
|
135 Rivonia Road
|
|
Sandown
|
|
2196
|
|
|
Fax number:
|
'+27 11 295 3902
|
|
|
For the attention of:
|
Facility Agent
|
|
AgencyNedbank@Nedbank.co.za
|
|
|
32.2.5.
|
in the case of Absa Bank Limited (acting through its Corporate and Investment Banking division) in its capacity as an Original Lender, Original Hedge Provider and Arranger:
|
Physical address:
|
15 Alice Lane
|
|
Sandown
|
|
Sandton,
|
|
2196
|
|
|
Fax number:
|
'+27 11 895 7847
|
|
|
Email:
|
cibafricapmclient@barclayscapital.com
|
|
|
For the attention of:
|
Transaction Administration (IMPEX)
|
|
|
32.2.6.
|
in the case of any other Lender or any other Obligor, that notified in writing to the Facility Agent on or prior to the date on which it becomes a Party, or any substitute address or fax number or department or officer as the Party may notify to the Facility Agent (or the Facility Agent may notify to the other Parties, if a change is made by the Facility Agent) by not less than 5 (five) Business Days’ notice.
|
32.3.1.
|
Each of the Parties, other than Abelle Limited, Aurora Gold Ltd, Aurora Gold (Wafi) Pty Limited, Harmony Gold (PNG Services) Proprietary Limited, Morobe Consolidated Goldfields Limited, Wafi Mining Limited and Morobe Exploration Limited, chooses its physical address provided under or in connection with clause 32.2 (Addresses) as its domicilium citandi et executandi at which documents in legal proceedings in South Africa in connection with this Agreement or any other Finance Document may be served.
|
32.3.2.
|
Each of Abelle Limited, Aurora Gold Ltd, Aurora Gold (Wafi) Pty Limited and Harmony Gold (PNG Services) Pty Limited chooses the physical address of the Borrower provided under or in connection with clause 32.2 (Addresses) as its domicilium citandi et executandi at which documents in legal proceedings in South Africa in connection with this Agreement or any other Finance Document may be served.
|
32.3.3.
|
Any Party may by written notice to the other Parties change its domicilium from time to time to another address, not being a post office box or a poste restante, in South Africa, provided that any such change shall only be effective on the 14th day after deemed receipt of the notice by the other Parties pursuant to clause 32.4 (Delivery).
|
32.4.
|
Delivery
|
32.4.1.
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will:
|
32.4.1.1.
|
if by way of fax, be deemed to have been received on the first Business Day following the date of transmission provided that the fax is received in legible form;
|
32.4.1.2.
|
if delivered by hand, be deemed to have been received at the time of delivery; and
|
32.4.1.3.
|
if by way of courier service, be deemed to have been received on the 7th (seventh) Business Day following the date of such sending, and provided, if a particular department or officer is specified as part of its address details provided under clause 32.2 (Addresses), if such communication or document is addressed to that department or officer, unless the contrary is proved.
|
32.4.2.
|
Any communication or document to be made or delivered to the Facility Agent will be effective only when actually received by the Facility Agent and then only if it is expressly marked for the attention of the department or officer identified with the Facility Agent’s signature below (or any substitute department or officer as the Facility Agent shall specify for this purpose).
|
32.4.3.
|
All notices from or to an Obligor shall be sent through the Facility Agent.
|
32.4.4.
|
Any communication or document made or delivered to the Borrower in accordance with this clause will be deemed to have been made or delivered to each of the Obligors.
|
32.5.
|
Notification of address and fax number
|
32.6.
|
Electronic communication
|
32.6.1.
|
Any communication to be made between the Facility Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Facility Agent and the relevant Lender:
|
32.6.1.1.
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
32.6.1.2.
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
32.6.1.3.
|
notify each other of any change to their address or any other such information supplied by them.
|
32.6.2.
|
Any electronic communication made between the Facility Agent and a Lender will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.
|
32.7.
|
English language
|
32.8.
|
No PPSA and/or the PPSA PNG notices unless mandatory
|
33.1.
|
Accounts
|
33.2.
|
Certificates and Determinations
|
33.3.
|
Day count convention
|
36.1.
|
Required consents
|
36.1.1.
|
Subject to clause 36.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.
|
36.1.2.
|
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this clause.
|
36.1.3.
|
No amendment or waiver contemplated by this clause 36 shall be of any force or effect unless in writing and signed by or on behalf of the relevant Parties. For purposes of this clause 36.1.3, no amendment or signature may be made or given in any electronic means or form.
|
36.2.
|
Exceptions
|
36.2.1.
|
An amendment or waiver that has the effect of changing or which relates to:
|
36.2.1.1.
|
the definition of Majority Lenders in clause 1.1 (Definitions);
|
36.2.1.2.
|
a change to the date of payment of any amount under the Finance Documents;
|
36.2.1.3.
|
a reduction in the Applicable Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
36.2.1.4.
|
an increase in or an extension of any Commitment;
|
36.2.1.5.
|
a change to the Borrower or any Guarantors other than in accordance with clause 26 (Changes to the Obligors);
|
36.2.1.7.
|
clause 4 (The Finance Parties);
|
36.2.1.8.
|
clause 14.3 (Tax indemnity);
|
36.2.1.9.
|
clause 15 (Increased costs);
|
36.2.1.10.
|
the nature or scope of the guarantee and indemnity granted under clause 19 (Guarantee and indemnity);
|
36.2.1.11.
|
clause 25 (Changes to the Lenders);
|
36.2.1.12.
|
clause 45 (Governing law);
|
36.2.1.13.
|
clause 46 (Jurisdiction), or
|
36.2.1.14.
|
the nature and scope of the Transaction Security; shall not be made without the prior consent of all the Lenders.
|
36.2.2.
|
An amendment or waiver which relates to the rights or obligations of the Facility Agent or an Arranger (each in their capacity as such) may not be effected without the consent of the Facility Agent or, as the case may be, the Arranger.
|
36.3.
|
Replacement of Lender
|
36.3.1.
|
If:
|
36.3.1.1.
|
any Lender becomes a Non-Consenting Lender (as defined in clause 36.3.4 below); or
|
36.3.1.2.
|
an Obligor becomes obliged to repay any amount in accordance with clause 10.3.1 (Illegality) or to pay additional amounts pursuant to clause 15.1 (Increased costs), clause 14.2 (Tax gross-up) or clause 14.3 (Tax indemnity) to any Lender, then the Borrower may, on 5 (five) Business Days’ prior written notice to the Facility Agent and such Lender, replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to clause 25 (Changes to the Lenders) all (and not part only) of its rights and obligations under the Finance Documents to a Lender or other bank, financial institution, trust, fund or other entity (Replacement Lender) selected by the Borrower, which is acceptable to the Facility Agent and which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with clause 25 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest, Breakage Costs and other amounts payable in relation thereto under the Finance Documents.
|
36.3.2.
|
The replacement of a Lender pursuant to this clause 36.3 shall be subject to the following conditions:
|
36.3.2.1.
|
the Borrower shall have no right to replace the Facility Agent;
|
36.3.2.2.
|
neither the Facility Agent nor the Lender shall have any obligation to the Borrower to find a Replacement Lender;
|
36.3.2.3.
|
in the event of a replacement of a Non-Consenting Lender such replacement must take place no later than 10 (ten) Business Days after the date on which that Lender is deemed a Non-Consenting Lender;
|
36.3.2.4.
|
in no event shall the Lender replaced under this clause 36.3 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and
|
36.3.2.5.
|
the Lender shall only be obliged to transfer its rights and obligations pursuant to clause 36.3.1 above once it is satisfied that it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to that transfer.
|
36.3.3.
|
A Lender shall perform the checks described in clause 36.3.2.5 above as soon as reasonably practicable following delivery of a notice referred to in clause 36.3.1 above and shall notify the Facility Agent and the Borrower when it is satisfied that it has complied with those checks.
|
36.3.4.
|
In the event that:
|
36.3.4.1.
|
the Borrower or the Facility Agent (at the request of the Borrower) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents;
|
36.3.4.2.
|
the consent, waiver or amendment in question requires the approval of all the Lenders; and
|
36.3.4.3.
|
Lenders whose Commitments aggregate, in the case of a consent, waiver or amendment requiring the approval of all the Lenders, more than 80% (eighty per cent) of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 80% (eighty per cent) of the Total Commitments prior to that reduction), have consented or agreed to such waiver or amendment, then any Lender who does not and continues not to consent or agree to such waiver or amendment shall be deemed a Non-Consenting Lender.
|
37.1.
|
Confidential Information
|
37.2.
|
Disclosure of Confidential Information
|
37.2.1.
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this clause 37.2.1 is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
37.2.2.
|
to any other person:
|
37.2.2.1.
|
to (or through) whom it Transfers (or may potentially Transfer) all or any of its rights and obligations under this Agreement and to any of that person’s Affiliates, Related Funds, Representatives and professional advisers;
|
37.2.2.2.
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation or other credit participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Related Funds, Representatives and professional advisers;
|
37.2.2.3.
|
appointed by any Finance Party or by a person to whom clauses 37.2.2.1 or 37.2.2.2 above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;
|
37.2.2.4.
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in clauses 37.2.2.1 or 37.2.2.2 above;
|
37.2.2.5.
|
to whom information is required (or which a Finance Party reasonably believes is required) or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation (except that this clause 37.2.2.5 does not permit a Finance Party to disclose any information of the kind referred to in section 275(1) of the PPSA unless section 275(7) of the PPSA applies);
|
37.2.2.6.
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
37.2.2.7.
|
who is a Party; or
|
37.2.2.8.
|
with the consent of the Borrower, in each case, such Confidential Information as that Finance Party shall consider appropriate if:
|
37.2.2.8.1.
|
in relation to clauses 37.2.2.1 to 37.2.2.3 above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
37.2.2.8.2.
|
in relation to clause 37.2.2.4 above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; and
|
37.2.2.8.3.
|
in relation to clauses 37.2.2.5 and 37.2.2.6 above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
37.2.2.8.4.
|
in any other case, any person to whom the Confidential Information is to be given pursuant to this 37.2.2 is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information; and
|
37.2.3.
|
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
|
37.3.
|
Entire agreement
|
37.4.
|
Inside information
|
37.5.
|
Notification of disclosure
|
37.5.1.
|
of the circumstances of any disclosure of Confidential Information made pursuant to clause 37.2.2.5, except where such disclosure is made to any of the persons referred to in that clause during the ordinary course of its supervisory or regulatory function; and
|
37.5.2.
|
upon becoming aware that Confidential Information has been disclosed in breach of this clause 37.
|
37.6.
|
Continuing obligations
|
37.6.1.
|
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
37.6.2.
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
45.
|
GOVERNING LAW
|
46.
|
JURISDICTION
|
46.1.
|
The Parties hereby irrevocably and unconditionally consent to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg (or any successor to that division) in regard to all matters arising from the Finance Documents (including a dispute relating to the existence, validity or termination of this Agreement (Dispute).
|
46.2.
|
The Parties agree that the court referred to above is the most appropriate and convenient court to settle Disputes and accordingly no Party will argue to the contrary.
|
46.3.
|
This clause 46 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
47.
|
SERVICE OF PROCESS
|
47.1.
|
irrevocably appoints the Borrower, as its agent for service of process in relation to any proceedings before the courts of South Africa in connection with any Finance Document; and
|
47.2.
|
agrees that failure by an agent for service of process to notify the relevant Obligor of the process does not invalidate the proceedings concerned.
|
Name of Borrower
|
Registration number (or equivalent, if any)
|
Harmony Gold Mining Company Limited
|
1950/038232/06
|
|
|
Name of Original Guarantor
|
Registration number (or equivalent, if any)
|
African Rainbow Minerals Gold Limited
|
1997/015869/06
|
Freegold (Harmony) Proprietary Limited (formerly known as ARMgold/Harmony Freegold Joint Venture Company
Proprietary Limited)
|
2001/029602/07
|
Randfontein Estates Limited
|
1889/000251/06
|
Avgold Limited
|
1990/007025/06
|
Harmony Copper Limited
|
2014/121930/06
|
Harmony Moab Khotsong Operations Proprietary Limited
|
2006/039120/07
|
Aurora Gold (Wafi) Pty. Ltd.
|
Australian Business
Number 29 100 237 741
|
Harmony Gold (PNG Services) Pty Limited
|
Australian Business
Number 23 083 828 853
|
Aurora Gold Ltd
|
Australian Business Number
82 006 568 850
|
Abelle Limited
|
Australian Business
Number 69 087 480 902
|
Morobe Consolidated Goldfields Limited
|
1-12047
|
Wafi Mining Limited
|
1-11452
|
Morobe Exploration Limited
|
1- 63564
|
Name of Original Lender
|
Facility A Commitment
|
Facility B Commitment
|
Absa Bank Limited (acting through its Corporate and
Investment Banking division)
|
ZAR150 000 000 (one
hundred and fifty million
Rand)
|
ZAR350 000 000 (three hundred and fifty million
Rand)
|
Nedbank Limited (acting through its Nedbank
Corporate and Investment
Banking division)
|
ZAR450 000 000 (four hundred and fifty million
Rand)
|
ZAR1 050 000 000 (one billion fifty million Rand)
|
1.
|
Obligors
|
1.1.
|
a copy of the constitutional documents of each Obligor;
|
1.2.
|
a copy of the resolutions of the board of directors of each Obligor:
|
1.2.1.
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Document to which it is a party;
|
1.2.2.
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
1.2.3.
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party,
|
1.3.
|
to the extent required with reference to the constitutional documents of an Obligor and as required by applicable law, a copy of a resolution (including, without limitation, all special resolutions required in terms of sections 44 and 45 of the Companies Act) duly passed (and, where required, filed) by the holders of the issued shares of that Obligor, approving the terms of, and the transactions contemplated by, the Finance Documents to which that Obligor is a party;
|
1.4.
|
a Closing Certificate executed by a director of each Obligor.
|
2.
|
Finance Documents
|
2.1.
|
A copy of each of the Finance Documents (other the Utilisation Request) and the First Amended and Restated USD Facilities Agreement duly entered into by each party thereto and evidence that each such agreement has become unconditional in accordance with its terms (save for any condition requiring this Agreement to have become unconditional).
|
2.2.
|
Receipt of evidence that all documents creating and evidencing the security have been duly executed and lodged where necessary.
|
3.
|
Legal opinions
|
3.1.
|
A legal opinion of Edward Nathan Sonnenbergs Inc, legal advisers to the Arrangers and the Facility Agent in South Africa, in a form acceptable to each Original Lender, in respect of the legality, validity and enforceability of this Agreement, the South African law governed Finance Documents concluded on or about the Signature Date and the First Amended and Restated USD Facilities Agreement.
|
3.2.
|
A legal opinion of Norton Rose Fulbright Australia, legal advisers to the Arrangers and the Facility Agent in Australia, in a form acceptable to each Original Lender, in respect of the legality, validity and enforceability of the Australian law governed Security Documents.
|
3.3.
|
A legal opinion of LLLS, legal advisers to the Arrangers and the Facility Agent in Papua New Guinea, in a form acceptable to each Original Lender, in respect of the legality, validity and enforceability of the Papua New Guinean law governed Security Documents.
|
3.4.
|
A legal opinion of Cliffe Dekker Hofmeyr, legal advisers to the Original Obligors in South Africa, in a form acceptable to each Original Lender, in respect of the capacity, power and authority of each South African Obligor to enter into the Finance Documents to which it is a party.
|
3.5.
|
A legal opinion of Ashurst Australia, legal advisers to the Original Obligors in Australia, in a form acceptable to each Original Lender, in respect of the capacity, power and authority of each Australian Obligor to enter into the Finance Documents to which it is a party.
|
3.6.
|
A legal opinion of Ashurst PNG, legal advisers to the Original Obligors in Papua New Guinea, in a form acceptable to each Original Lender, in respect of the capacity, power and authority of each Papua New Guinean Obligors to enter into the Finance Documents to which it is a party.
|
4.
|
Other documents and evidence
|
4.1.
|
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document, including but not limited to any approvals required from the Bank of Papua New Guinea.
|
4.2.
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to clause 18 (Fees, Costs and Expenses) have been paid or will be paid by the first Utilisation Date.
|
4.3.
|
The latest audited financial statements of each Obligor.
|
4.4.
|
Such documentation and other evidence as is requested by the Facility Agent (on behalf of any other Finance Party) in order for each Finance Party (other than the Facility Agent) to carry out and be satisfied it has complied with all necessary "know your customer" or similar identification procedures under applicable laws and regulations (including the Financial Intelligence Centre Act, 2001) pursuant to the transactions contemplated in the Finance Documents.
|
4.5.
|
A copy of the Release Letter duly entered into by each party thereto and evidence that the Release Letter has become unconditional in accordance with its terms (save for any condition requiring this Agreement to have become unconditional).
|
4.6.
|
Confirmation from the Original Lenders that there has not been a Pre-Financial Close Material Adverse Change.
|
1.
|
An Accession Letter, duly executed by the Additional Guarantor and the Borrower.
|
2.
|
A copy of the constitutional documents of the Additional Guarantor.
|
3.
|
A copy of a resolution of the board of directors of the Additional Guarantor:
|
3.1.
|
approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter;
|
3.2.
|
authorising a specified person or persons to execute the Accession Letter on its behalf;
|
3.3.
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents; and
|
3.4.
|
as may be required to comply with Section 45 and 46 of the Companies Act or any provision of any applicable company legislation and regulations in Australia or Papua New Guinea.
|
4.
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above.
|
5.
|
To the extent required with reference to the constitutional documents of an Additional Guarantor or by law (including under Section 45 and 46 of the Companies Act), a copy of a resolution duly passed by the holders of the issued shares of that Additional Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which that Additional Guarantor is a party.
|
6.
|
A certificate of the Additional Guarantor (signed by a director) confirming that guaranteeing, as appropriate, the Facilities would not cause any guaranteeing or similar limit binding on it to be exceeded.
|
7.
|
A certificate of an authorised signatory of the Additional Guarantor certifying that each copy document listed in this Part II of Schedule 3 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter.
|
8.
|
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of any Finance Document.
|
9.
|
If available, the latest audited financial statements of the Additional Guarantor.
|
10.
|
A legal opinion of Edward Nathan Sonnenbergs Inc., legal advisers to the Arrangers and the Facility Agent in South Africa.
|
11.
|
A legal opinion of Cliffe Dekker Hofmeyr, legal advisers to the Original Obligors and the Additional Guarantor in South Africa.
|
12.
|
If the Additional Guarantor is incorporated in a jurisdiction other than South Africa, a legal opinion of the legal advisers to the Arranger and the Facility Agent in the jurisdiction in which the Additional Guarantor is incorporated.
|
13.
|
If the Additional Guarantor is incorporated in a jurisdiction other than South Africa, a legal opinion of the legal advisers to the Original Obligors and the Additional Guarantor in the jurisdiction in which the Additional Guarantor is incorporated.
|
|
|
|
To:
|
|
Nedbank Limited (Lender)
|
|
|
Nedbank 135 Rivonia Campus
|
|
|
135 Rivonia Road
|
|
|
Sandown
|
and
|
|
2196
|
To:
|
|
Absa Bank Limited
|
|
|
15 Alice Lane
|
|
|
Sandown
Sandton
|
|
|
2196
|
1.
|
We refer to the Facilities Agreement.
|
2.
|
This is a Utilisation Request.
|
3.
|
The terms defined in the Facilities Agreement shall have the same meanings where used in this Utilisation Request.
|
4.
|
This Utilisation Request is irrevocable.
|
5.
|
We hereby give you notice that, pursuant to the Facilities Agreement and on [insert date], we wish to borrow a [Facility A Loan/ Facility B Loan] in an amount of R[insert] upon the terms and subject to the conditions contained therein.
|
6.
|
We elect an Interest Period of [insert] months.
|
7.
|
We confirm that as of the date hereof :
|
7.1.
|
the Repeating Representations set out in the Facilities Agreement are true and correct in all material respects; and
|
7.2.
|
no Default has occurred and/or is continuing.
|
8.
|
The proceeds of the Loan must be credited to the following bank account:
|
1.
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2.
|
We refer to clause 25.4 (Procedure for transfer):
|
2.1.
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by cession and delegation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with clause 25.4 (Procedure for transfer).
|
2.2.
|
The proposed Transfer Date is [ ].
|
2.3.
|
The Facility Office and address through which the New Lender will perform its obligations, fax number and attention details for notices of the New Lender for the purposes of clause 32.2 (Addresses) are set out in the Schedule.
|
3.
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of clause 25.3 (Limitation of responsibility of Existing Lenders).
|
4.
|
The New Lender agrees that it shall assume the same obligations towards each other Finance Party under the Finance Documents as if it had been an Original Lender.
|
5.
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
6.
|
This Transfer Certificate is governed by South African law.
|
7.
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[Existing Lender]
|
|
[New Lender]
|
|
|
|
|
|
|
By:
|
|
By:
|
[Facility Agent]
|
|
|
|
|
|
|
|
|
By:
|
|
|
1.
|
We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.
|
2.
|
[Subsidiary] agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to clause 26.2 (Additional Guarantors) of the Agreement. [Subsidiary] is a company duly incorporated under the laws of [name of relevant jurisdiction].
|
[Borrower]
|
|
[Subsidiary]
|
|
|
|
|
|
|
|
|
|
From:
|
[resigning Obligor] and [Borrower]
|
1.
|
We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter.
|
2.
|
Pursuant to clause 26.4 (Resignation of a Guarantor), we request that [resigning Guarantor] be released from its obligations as a Guarantor under the Agreement.
|
3.
|
We confirm that:
|
3.1.
|
no Default is continuing or would result from the acceptance of this request; and
|
3.2.
|
[ ]1
|
4.
|
This Resignation Letter is governed by South African law.
|
[Borrower]
|
|
[Subsidiary]
|
|
|
|
|
|
|
By:
|
|
By:
|
|
From:
|
[Borrower]
|
1.
|
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2.
|
We confirm that: [Insert details of covenants to be certified with reference to clause 22.1 (Financial covenants)]
|
Signed
|
|
|
|
|
|
Director
|
|
Director
|
|
|
|
Of
|
|
Of
|
|
|
|
[Borrower]
|
|
[Borrower]
|
|
|
|
|
|
|
|
|
|
|
for and on behalf of
|
|
|
|
|
|
[The Borrower]
|
|
|
|
|
|
Name of Group Member
|
Security
|
Total Principal Amount of
Indebtedness Secured at
Signature Date
|
||
Harmony Gold Mining
Co Ltd
|
Agreement for Sale of Interest in Royalty Deed dated 10 November 2008 between the Borrower, Abelle Limited, Wafi Mining Limited and Rio Tinto Limited (ABE0063003)(WAF0002013)
|
Contingent Liability (Deferred Cash Consideration of US$10 000 000 payable on occurrence of decision to mine/commencement of infrastructure construction)
|
||
|
Wafi Mining Ltd
|
Deed of Extinguishment of Royalty - Wafi Golpu Project dd 16 February 2009 between Wafi Mining Limited and the Borrower
(WAF0002015)
|
Contingent Liability (Payment by Wafi Mining Limited to the Borrower of US$10 000 000 within 21 days after payment by the Borrower of Deferred Cash
|
|
|
Annual Letters of Comfort by the Borrower in favour of each member of the Group registered in Australia and Papua New Guinea
|
|
Deed of Guarantee dated 1 December 2007 between the Borrower and Orica Australia Pty Limited whereby the Borrower guarantees obligations of Morobe Consolidated Goldfields Limited under its sodium cyanide supply agreement with Orica Australia Pty Limited (MOR0119002)
|
Harmony Gold
Securities Pty Limited
|
Deed of Cross Guarantee (Class Order 98/1418) dated 26 June 2003
(HAU0005001)(HGS0002001)
|
Harmony Gold W.A. Pty
Limited
|
Deed of Cross Guarantee (Class Order 98/1418) dated 26 June 2003 (HAU0005001)(HWA0002001)
|
Harmony Gold
Operations Limited
|
Deed of Cross Guarantee (Class Order 98/1418) dated 26 June 2003 (HAU0005001) (HGO0065001)
|
New Hampton
Goldfields Limited
|
Deed of Cross Guarantee (Class Order 98/1418) dated 26 June 2003 (HAU0005001)(NHG0306001)
|
South Kal Mines Pty
Limited
|
Deed of Cross Guarantee (Class Order 98/1418) dated 26 June 2003 (HAU0005001)(SKM0086001)
|
Vadessa Pty Limited
|
Deed of Cross Guarantee (Class Order 98/1418) dated 26 June 2003 (HAU0005001)(VAD0004001)
|
Harmony Gold (PNG
Services) Pty Ltd
|
Lease security for leased premises at Level 2, 189 Coronation Drive, Milton, Queensland between Harmony Gold (PNG Services) Pty Limited and Madad Property Pty Limited per Banker’s Undertaking dated 13 March 2017 given by Westpac Banking Corporation to Madad Property Pty Limited (Maximum liability: AU$234 575.00)
|
Wafi Mining Ltd
|
All Securities arising under or pursuant to the Wafi-Golpu Joint Venture Agreement, including without limitation:
|
|
Deed of Cross Charge executed pursuant to clause 11.1 thereof) (see below); and Trust in Sale provisions under clause 18.3 thereof.
|
|
Deed of Cross Charge dated 22 May 2008 between Wafi Mining Limited and Newcrest PNG 2 Limited (WAF0042001)
|
Morobe Exploration Ltd
|
All Securities arising under or pursuant to the Exploration Portfolio Joint Venture Agreement, including without limitation: Deed of Cross Charge executed pursuant to clause 11.1 thereof) (see below) ; and Trust in Sale provisions under clause 18.3 thereof.
|
|
Deed of Cross Charge dated 22 May 2008 between Morobe Consolidated Goldfields Limited, Wafi Mining Limited, Morobe Exploration Limited and Newcrest PNG 3 Limite (MOR0101002)(WAF0038002)(MEL0005002) Annual Letters of Comfort by the Borrower in favour of each member of the Grou registered in Australia and Papua New Guinea
|
1.
|
Hidden Valley Joint Venture – Watut River claim/litigation.
|
1.1.
|
A legal claim against Harmony Gold (PNG Services) Limited and 5 other defendants was filed in the National Court of Justice at Lae, Papua New Guinea on 14 December 2010 by Mr Sam Basil, Member for Bulolo in PNG (Plaintiff).
|
1.2.
|
The legal claim is brought in the Plaintiff's personal capacity as well as on behalf of a list of 110 named customary landowners residing in the Upper Watut, Mumeng and Wampar Local Level Government Areas of the Morobe Province of PNG. The claim:
|
1.2.1.
|
is brought on the basis of private and public nuisance and negligence:
|
1.2.2.
|
seeks unspecified damages for impacts on customary land and water rights of the 110 landholders caused by the alleged release of waste rock and overburden in the Watut River by the defendants operation of the Hidden Valley Mine;
|
1.2.3.
|
claims impacts such as the sedimentation of the Watut River, dieback of vegetation, damage to plant life, fish and humans from acid forming materials contained within the waste rock, loss of river transport, gardens and cash crops;
|
1.2.4.
|
asserts that the impacts caused by the release of materials was due to negligent or poor management actions of Harmony and the other defendants with respect to the Hidden Valley Mine, including the failure to build adequate waste rock dumps, sedimentation dams and tailings storage facilities;
|
1.2.5.
|
seeks damages, injunction to stop the further release of materials and operation of the mine until problems are resolved, and a declaration that the Plaintiffs are required to be consulted about erosion control on the Hidden Valley Mine.
|
1.3.
|
A defence was filed in the Court in February 2011 on behalf of Morobe Consolidated Goldfields Ltd and Hidden Valley Services Limited. Steps have been taken in an attempt to have the proceedings discontinued against Harmony Gold (PNG Services) Limited as it was never served. Other defendants to the action have also filed defences and motions to dismiss proceedings as abuse of process.
|
1.4.
|
No further steps have been taken in the proceedings by either parties to date.
|
2.
|
Potential environmental claims:
|
1.
|
Local banks
|
2.
|
Foreign banks
|
3.
|
DFIs
|
4.
|
Other financial institutions
|
1.
|
To be de-registered/wound up (South Africa):
|
1.1.
|
Harmony Gold Management Services Proprietary Limited
|
1.2.
|
Potchefstroom Gold Holdings Proprietary Limited
|
1.3.
|
Coreland Property Investment Company Proprietary Limited
|
1.4.
|
Coreland Property Management Company Proprietary Limited
|
1.5.
|
Potchefstroom Gold Areas Limited
|
1.6.
|
Virginia Salvage Proprietary Limited
|
1.7.
|
Harmony Engineering Proprietary Limited
|
1.8.
|
Musuku Benefication Systems Proprietary Limited
|
1.9.
|
Remaining Extent of Portion 15 Wildebeesfotein Proprietary Limited
|
1.10.
|
Harmony Precision Casting Proprietary Limited
|
1.11.
|
Harmony Pharmacies Proprietary Limited
|
2.
|
To be de-registered/wound up (Australia and/or PNG):
|
2.1.
|
New Hampton Goldfields Limited ACN 53 009 193 999
|
2.2.
|
Harmony Gold Securities Pty Limited ACN 099 119 909
|
2.3.
|
Harmony Gold W.A. Pty Limited ACN 099 119 918
|
2.4.
|
Harmony Gold Operations Limited ACN 005 482 842
|
2.5.
|
Vadessa Pty Limited ACN 078 235 097
|
2.6.
|
South Kale Mines Pty Limited ACN 097 264 572
|
2.7.
|
Harmony PNG 20 Limited 1-62603
|
1.
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the Australian-law governed document entitled Specific security and featherweight security deed - Aurora Gold Ltd between Aurora Gold Limited (as security provider) and Nedbank Limited (as security trustee) pursuant to which Aurora Gold Limited grants a security interest in respect of its shareholding in Aurora Gold (Wafi) Pty. Ltd. and Harmony Gold (PNG Services) Pty Limited, as varied by the document entitled Deed of variation and confirmation of Australian Securities - Harmony Gold Mining dated 5 February 2015, as further varied by the document entitled Second Deed of variation and confirmation of Australian Securities - Harmony Gold Mining dated 24 January 2017 and the document entitled Third Deed of variation and confirmation of Australian Securities - Harmony Gold Mining dated 4 August 2017, and as may be further varied from time to time;
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2.
|
the PNG-law governed document entitled Mortgage over shares and floating charge - Aurora Gold (Wafi) Pty Ltd between Aurora Gold (Wafi) Pty. Ltd. (as security provider) and Nedbank Limited (as security trustee) pursuant to which Aurora Gold (Wafi) Pty. Ltd. grants a security interest in respect of its shareholding in Wafi Mining Limited and the benefit of any shareholder loans payable by that company, as varied by the document entitled Deed of variation and confirmation of PNG Securities - Harmony Gold Mining dated 5 February 2015, as further varied by the document entitled Second Deed of variation and confirmation of PNG Securities - Harmony Gold Mining dated 24 January 2017 and the document entitled Third Deed of variation and confirmation of PNG securities - Harmony Gold Mining dated 4 August 2017, and as may be further varied from time to time;
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3.
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the Australian-law governed document entitled Featherweight security deed - Aurora Gold (Wafi) Pty Ltd between Aurora Gold (Wafi) Pty. Ltd. (as security provider) and Nedbank Limited (as security trustee) pursuant to which Aurora Gold (Wafi) Pty. Ltd. grants a security interest in the Featherweight Collateral (as defined therein), as varied by the document entitled Deed of variation and confirmation of Australian Securities - Harmony Gold Mining dated 5 February 2015, as further varied by the document entitled Second Deed of variation and confirmation of Australian Securities - Harmony Gold Mining dated 24 January 2017 and the document entitled Third Deed of variation and confirmation of Australian Securities - Harmony Gold Mining dated 4 August 2017, and as may be further varied from time to time;
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4.
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the PNG-law governed document entitled Mortgage over shares and floating charge - Harmony Gold (PNG Services) Pty Limited between Harmony Gold (PNG Services) Pty Limited (as security provider) and Nedbank Limited (as security trustee) pursuant to which Harmony Gold (PNG Services) Pty Limited grants a security interest in respect of its shareholding in Morobe Exploration Limited and Morobe Consolidated Goldfields Limited and the benefit of any shareholder loans payable by those companies, as varied by the document entitled Deed of variation and confirmation of PNG Securities - Harmony Gold Mining dated 5 February 2015, as further varied by the document entitled Second Deed of variation and confirmation of PNG Securities - Harmony Gold Mining dated 24 January 2017 and the document entitled Third Deed of variation and confirmation of PNG securities - Harmony Gold Mining dated 4 August 2017, and as may be further varied from time to time;
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5.
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the Australian-law governed document entitled Featherweight security deed - Harmony Gold (PNG Services) Pty Limited between Harmony Gold (PNG Services) Pty Limited (as security provider) and Nedbank Limited (as security trustee) pursuant to which Harmony Gold (PNG Services) Pty Limited grants a security interest in the Featherweight Collateral (as defined therein), as varied by the document titled Deed of variation and confirmation of Australian Securities - Harmony Gold Mining dated 5 February 2015, as further varied by the document titled Second Deed of variation and confirmation of Australian Securities - Harmony Gold Mining dated 24 January 2017 and the document entitled Third Deed of variation and confirmation of Australian Securities - Harmony Gold Mining dated 4 August 2017, and as may be further varied from time to time;
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6.
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a third amended and restated cession in security and pledge in favour of the Lenders governed by the laws of South Africa by the Borrower in respect of the shares and loan claims held by it in the Original Guarantors incorporated in South Africa including the delivery of any and all documents required in connection with such Security which shall include share certificates, signed and undated transfer forms in blank as to transferee and resolutions by the board of directors of the relevant member of the Group whose shares are given as Transaction Security and resolving to give effect to any transfer of such shares following enforcement of such Transaction Security (as amended pursuant to the provisions of this Agreement);
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7.
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a third amended and restated cession in security and pledge in favour of the Lenders governed by the laws of South Africa by African Rainbow Minerals Gold Limited in respect of the shares and loan claims held by it in respect of the Original Guarantors incorporated in South Africa including the delivery of any and all documents required in connection with such Security which shall include share certificates, signed and undated transfer forms in blank as to transferee and resolutions by the board of directors of the relevant member of the Group whose shares are given as Transaction Security and resolving to give effect to any transfer of such shares following enforcement of such Transaction Security (as amended pursuant to the provisions of this Agreement);
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8.
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the Australian-law governed document entitled "Specific security deed (marketable securities) - Aurora Gold" between Aurora Gold Ltd (as security provider) and Nedbank Limited (as security trustee) pursuant to which Aurora Gold Ltd grants a security interest in respect of its shareholding in Aurora Gold (Wafi) Pty. Ltd. and Harmony Gold (PNG Services) Pty Limited and the benefit of any shareholder loans payable by those companiesthe PNG-law governed document entitled "Specific security deed - Aurora Gold (Wafi) Pty. Ltd." between Aurora Gold (Wafi) Pty. Ltd. (as security provider) and Nedbank Limited (as security trustee) pursuant to which Aurora Gold (Wafi) Pty. Ltd. grants a security interest in respect of its shareholding in Wafi Mining Limited and the benefit of any shareholder loans payable by that company;
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9.
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the Australian-law governed document entitled "Featherweight security deed - Harmony Gold Group" between Aurora Gold (Wafi) Pty. Ltd., Harmony Gold (PNG Services) Pty Limited and Aurora Gold Ltd (as security providers) and Nedbank Limited (as security trustee) pursuant to which Aurora Gold (Wafi) Pty. Ltd., Harmony Gold (PNG Services) Pty Limited and Aurora Gold Ltd grant a security interest in the Collateral (as defined therein).
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10.
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the PNG-law governed document entitled "Specific security deed – Harmony Gold (PNG Services)" between Harmony Gold (PNG Services) Pty Limited (as security provider) and Nedbank Limited (as security trustee) pursuant to which Harmony Gold (PNG Services) Pty Limited grants a security interest in respect of its shareholding in Morobe Exploration
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11.
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the Papua New Guinea-law governed document entitled "Mortgage over shares and floating charge – Harmony Gold (PNG Services) Pty Limited" dated 12 September 2011 between Harmony Gold (PNG Services) Pty Limited (as security provider) and Nedbank Limited (as security trustee) pursuant to which Harmony Gold (PNG Services) Pty Limited grants a security interest in favour of the Security Trustee in respect of its shareholding in Morobe Exploration Limited and Morobe Consolidated Goldfields Limited and the benefit of any shareholder loans payable by those companies, as such document may be amended, varied, modified or replaced from time to time;
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12.
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the Papua New Guinea-law governed document entitled "Mortgage over shares and floating charge – Aurora Gold (Wafi) Pty Ltd" dated 12 September 2011 between Aurora Gold (Wafi) Pty. Ltd. (as security provider) and Nedbank Limited (as security trustee) pursuant to which Aurora Gold (Wafi) Pty. Ltd. grants a security interest in favour of the Security Trustee in respect of its shareholding in Wafi Mining Limited and the benefit of any shareholder loans payable by that company, as such document may be amended, varied, modified or replaced from time to time;
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13.
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the Australian-law governed document entitled "Featherweight charge – Aurora Gold (Wafi) Pty Ltd" dated 12 September 2011 between Aurora Gold (Wafi) Pty. Ltd. (as security provider) and Nedbank Limited (as security trustee) pursuant to which Aurora Gold (Wafi) Pty. Ltd. grants a charge in favour of the Security Trustee in respect of the Featherweight Property (as defined therein), as such document may be amended, varied, modified or replaced from time to time;
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14.
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the Australian-law governed document entitled "Featherweight charge – Harmony Gold (PNG Services) Pty Ltd" dated 12 September 2011 between Harmony Gold (PNG Services) Pty Limited (as security provider) and Nedbank Limited (as security trustee) pursuant to which Harmony Gold (PNG Services) Pty Limited grants a charge in favour of the Security Trustee in respect of the Featherweight Property (as defined therein), as such document may be amended, varied, modified or replaced from time to time; and
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15.
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the Australian-law governed document entitled "Mortgage over shares and floating charge – Aurora Gold Ltd" dated 12 September 2011 between Aurora Gold Ltd (as security provider)and Nedbank Limited (as security trustee) pursuant to which Aurora Gold Ltd grants a security interest in favour of the Security Trustee in respect of its shareholding in Aurora Gold (Wafi) Pty. Ltd. and Harmony Gold (PNG Services) Pty Limited and the Charged Property (as defined therein), as such document may be amended, varied, modified or replaced from time to time.
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1
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The Borrower, the Original Guarantors, the Additional Guarantors, the Original Lenders and the Facility Agent (all as defined therein) will conclude –
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1.1
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a term and revolving credit facilities agreement in terms of which credit facilities will be made available to the Borrower, all on the terms and subject to the conditions contained therein ("Facilities Agreement"); and
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1.2
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any other Finance Document as set out in the Facilities Agreement, (including any other security document that may at any other time be given as security for the liabilities pursuant to or in connection with the Facilities Agreement) or amendment to any other Finance Document as defined in the Facilities Agreement, to which they may be a party,
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2
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Constitutional Documents
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3
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Board Delegation of Authority Policy
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4
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Authorised Signatories
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5
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No Breach of Limits
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6
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True and Complete Copies
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7
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No Event of Default
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8
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Representations
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9
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Material Adverse Effect
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/s/ Frank Abbott
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/s/ Peter Steenkamp
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Director/company secretary
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Director
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Frank Abbott
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Peter Steenkamp
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Name of director/company secretary
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Name of director
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(BLOCK LETTERS)
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(BLOCK LETTERS)
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/s/ Frank Abbott
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/s/ Peter Steenkamp
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Director/company secretary
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Director
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Frank Abbott
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Peter Steenkamp
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Name of director/company secretary
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Name of director
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(BLOCK LETTERS)
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(BLOCK LETTERS)
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/s/ Frank Abbott
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/s/ Peter Steenkamp
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Director/company secretary
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Director
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|
|
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Frank Abbott
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Peter Steenkamp
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Name of director/company secretary
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Name of director
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(BLOCK LETTERS)
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(BLOCK LETTERS)
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/s/ Frank Abbott
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/s/ Peter Steenkamp
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Director/company secretary
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Director
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Frank Abbott
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Peter Steenkamp
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Name of director/company secretary
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Name of director
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(BLOCK LETTERS)
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(BLOCK LETTERS)
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Clause number and description
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Page
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1.
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DEFINITIONS AND INTERPRETATION .................................................................................... 3
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2.
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THE FACILITIES ...................................................................................................................... 47
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3.
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PURPOSE OF THE FACILITIES .............................................................................................. 47
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4.
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THE FINANCE PARTIES .......................................................................................................... 47
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5.
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CONDITIONS OF UTILISATION .............................................................................................. 48
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6.
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UTILISATION OF THE FACILITIES ......................................................................................... 49
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7.
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INTEREST ON FACILITY ......................................................................................................... 51
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8.
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INTEREST PERIODS ............................................................................................................... 52
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9.
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REPAYMENTS ......................................................................................................................... 54
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10.
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PREPAYMENTS AND CANCELLATIONS ............................................................................... 57
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11.
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PAYMENTS.............................................................................................................................. 61
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12.
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BREAKAGE COSTS ................................................................................................................ 62
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13.
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INTEREST ON ARREAR AMOUNTS ....................................................................................... 62
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14.
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TAX GROSS UP AND INDEMNITIES ...................................................................................... 62
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15.
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INCREASED COSTS ............................................................................................................... 68
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16.
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OTHER INDEMNITIES ............................................................................................................. 69
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17.
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MITIGATION BY THE LENDERS ............................................................................................. 72
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18.
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FEES, COSTS AND EXPENSES ............................................................................................. 73
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19.
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GUARANTEE AND INDEMNITY .............................................................................................. 75
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20.
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REPRESENTATIONS .............................................................................................................. 79
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21.
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INFORMATION UNDERTAKINGS ........................................................................................... 88
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22.
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FINANCIAL COVENANTS ....................................................................................................... 96
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23.
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GENERAL UNDERTAKINGS ................................................................................................... 96
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24.
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EVENTS OF DEFAULT .......................................................................................................... 105
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25.
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CHANGES TO THE LENDERS .............................................................................................. 112
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26.
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CHANGES TO THE OBLIGORS ............................................................................................ 115
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27.
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ROLE OF THE FACILITY AGENT AND THE ARRANGERS ................................................. 117
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28.
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CONDUCT OF BUSINESS BY THE FINANCE PARTIES ..................................................... 125
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29.
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SHARING AMONG THE FINANCE PARTIES ........................................................................ 125
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30.
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PAYMENT MECHANICS ........................................................................................................ 127
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31.
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SET OFF ................................................................................................................................ 131
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32.
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NOTICES ............................................................................................................................... 131
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33.
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CALCULATIONS AND CERTIFICATES ................................................................................. 136
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34.
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PARTIAL INVALIDITY ............................................................................................................. 136
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35.
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REMEDIES AND WAIVERS ................................................................................................... 136
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36.
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AMENDMENTS AND WAIVERS ............................................................................................ 136
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37.
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CONFIDENTIALITY ............................................................................................................... 140
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38.
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RENUNCIATION OF BENEFITS ............................................................................................ 144
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39.
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COUNTERPARTS ................................................................................................................. 144
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40.
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WAIVER OF IMMUNITY ......................................................................................................... 144
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41.
|
SOLE AGREEMENT .............................................................................................................. 144
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42.
|
NO IMPLIED TERMS .............................................................................................................. 144
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43.
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EXTENSIONS AND WAIVERS ............................................................................................... 145
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44.
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INDEPENDENT ADVICE ....................................................................................................... 145
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45.
|
GOVERNING LAW ................................................................................................................. 145
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46.
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JURISDICTION ...................................................................................................................... 145
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47.
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SERVICE OF PROCESS ........................................................................................................ 146
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1.
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Obligors ...................................................................................................................................... 1
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2.
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Finance Documents ................................................................................................................... 1
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3.
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Legal opinions ............................................................................................................................ 2
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4.
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Other documents and evidence .................................................................................................. 2
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|
Morobe Consolidated Goldfields Limited
Harmony Gold (Australia) Pty Ltd
Westpac Bank ‑ PNG ‑ Limited
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Facility Agreement
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|
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Level 6, Mogoru Moto Building
Champion Parade
Port Moresby
Papua New Guinea
T +675 305 6000
F +675 320 0588
www.allens.com.au
© Allens Papua New Guinea 2019
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Facility Agreement
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|
1
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Definitions and interpretation
|
||
|
1.1
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Definitions
|
|
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1.2
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Interpretations
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|
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1.3
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Cancellation of reduction in Facility Limit
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|
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1.4
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Document or agreement
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|
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1.5
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Determination, statement and certificate
|
|
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1.6
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Accounting terms
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|
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1.7
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Listing requirements included as law
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|
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1.8
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Trust
|
|
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1.9
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Consents and Opinions
|
|
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1.10
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Multiple Obligors
|
|
2
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Purpose
|
||
3
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Drawdown Notices and Drawings
|
||
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3.1
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Drawdown Notices
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|
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3.2
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Number of Drawings
|
|
4
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Facility
|
||
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4.1
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Advance of Drawing
|
|
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4.2
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Interest
|
|
5
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Funding Periods
|
||
6
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Fees
|
||
|
6.1
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Establishment fee
|
|
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6.2
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Fees not refundable or rebatable
|
|
7
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Cancellation of Commitment
|
||
8
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Repayment
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||
|
8.1
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Repayment of Facility
|
|
|
8.2
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Repayment
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|
|
8.3
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Secured Money
|
|
9
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Prepayments
|
||
|
9.1
|
Voluntary prepayments
|
|
|
9.2
|
Interest and break costs
|
|
|
9.3
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Limitation on prepayments
|
|
|
9.4
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Application against repayment instalments
|
|
10
|
Payments
|
||
|
10.1
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Manner
|
|
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10.2
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Payment to be made on Business day
|
|
|
10.3
|
Appropriation where insufficient money available
|
|
11
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Taxation
|
||
|
11.1
|
Additional payments
|
|
|
11.2
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Tax credits
|
|
12
|
Change in Law
|
||
|
12.1
|
Illegality
|
|
|
12.2
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Increased costs
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|
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12.3
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Voluntary prepayment on Change in Law
|
|
|
12.4
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Minimisation
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|
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12.5
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Change in Law
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Facility Agreement
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|
13
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Market Disruption
|
||
|
13.1
|
Market disruption
|
|
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13.2
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Alternative basis of interest or funding
|
|
|
13.3
|
Confidentiality
|
|
14
|
Conditions Precedent
|
||
|
14.1
|
Conditions precedent
|
|
|
14.2
|
Further conditions precedent
|
|
15
|
Representations and Warranties
|
||
|
15.1
|
Obligor representation and warranties
|
|
|
15.2
|
Borrower representations and warranties
|
|
|
15.3
|
Reliance on representations and warranties
|
|
16
|
Undertakings
|
||
|
16.1
|
General undertakings
|
|
|
16.2
|
Undertakings relating to Secured Property
|
|
|
16.3
|
Term of undertakings
|
|
17
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Casualty Event
|
||
18
|
Event of Default
|
||
|
18.1
|
Events of Default
|
|
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18.2
|
Consequences
|
|
19
|
Guarantee
|
||
|
19.1
|
Interpretation
|
|
|
19.2
|
Consideration
|
|
|
19.3
|
Guarantee
|
|
|
19.4
|
Indemnity
|
|
|
19.5
|
Payment obligation
|
|
|
19.6
|
Unconditional nature of obligation
|
|
|
19.7
|
Principal and independent obligation
|
|
|
19.8
|
No marshalling
|
|
|
19.9
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No competition
|
|
|
19.10
|
Suspense account
|
|
|
19.11
|
Rescission of payment
|
|
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19.12
|
Continuing guarantee and indemnity
|
|
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19.13
|
Variations
|
|
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19.14
|
Judgement
|
|
|
19.15
|
Conditions precedent
|
|
20
|
Review of Facility
|
||
|
20.1
|
Review Event
|
|
|
20.2
|
Clause does not affect the Lender's other rights
|
|
21
|
Interest on Overdue Amount
|
||
|
21.1
|
Accrual and payment
|
|
|
21.2
|
Rate
|
|
22
|
Indemnities and Break Costs
|
||
|
22.1
|
Indemnities
|
|
|
22.2
|
Break costs
|
|
23
|
'Know Your Customer' Checks
|
||
|
|
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Facility Agreement
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iii
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Facility Agreement
|
|
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iv
|
Facility Agreement
|
|
This Agreement is made on 9 July 2018
|
|
Parties
|
|
1
|
Morobe Consolidated Goldfields Limited (Company No. 1-12047) incorporated in Papua New Guinea with its registered office at c/- Ashurst, Mogoru Moto Building, Level 4, Champion Parade, Port Moresby, National Capital District, 121, Papua New Guinea (the Borrower).
|
2
|
Harmony Gold (Australia) Pty Ltd (ACN 091 439 333) incorporated in Australia with its registered office at Level 2, 189 Coronation Drive, Milton, Queensland, Australia (the Guarantor).
|
3
|
Westpac Bank – PNG – Limited (Company No. 1-5295) incorporated in Papua New Guinea with its registered office at Level 1, Jeffrey Haus, Corner of Champion Parade and Musgrave Street, Port Moresby, National Capital District, Papua New Guinea (the Lender).
|
Recitals
|
|
A
|
The Borrower and the Guarantor have requested the Lender to provide the Borrower with a Facility under which financial accommodation may be made available to the Borrower.
|
B
|
The Lender has agreed to provide that Facility subject to (amongst other things) the execution of this Agreement and the other Finance Documents.
|
1
|
Definitions and Interpretation
|
1.1
|
Definitions
|
(a)
|
the appliances, components, accessories, furnishings and other equipment incorporated or installed in, or attached to, the equipment; and
|
(b)
|
the instructions or maintenance manuals for the equipment.
|
(a)
|
a Related Entity of that entity;
|
(b)
|
an entity, or the trustee or manager of a trust, which has a controlling interest in that entity or a Related Entity of that entity;
|
(c)
|
a Related Entity of an entity included in paragraph (b) or (e);
|
(d)
|
a director of that entity or of an entity included in paragraph (a), (b) or (c) or of the manager or of the trustee of any trust included in paragraph (a), (b) or (c) or a spouse, child, parent or sibling of that director;
|
(e)
|
a corporation, or the trustee or manager of a trust, in which one or more entity or person mentioned in paragraph (a), (b), (c), (d), (e), (f) or (g) alone or together has a controlling interest;
|
(f)
|
the trustee of a discretionary trust of which an entity or person included in paragraph (a), (b), (c), (d), (e), (f) or (g) is a beneficiary (whether or not through one or more other discretionary trusts); or
|
(g)
|
an entity of which a director of that entity or a Related Entity of that entity is also a director.
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Facility Agreement
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|
(i)
|
where a person is a beneficiary of a discretionary trust, that person will be taken to own, and control, all the assets of that trust;
|
(ii)
|
a person has a controlling interest in a corporation or trust if:
|
(A)
|
the corporation or its directors, or the trustee or manager of the trust or its directors, are accustomed, or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of that person or of that person in concert with others; or
|
(B)
|
the person has a direct or indirect interest in total in more than 20% of the issued or voting shares, units or other interests in the corporation or trust (in number, voting power or value), or would have that relevant interest if any rights were exercised to subscribe for, or acquire or convert into, shares, units or other interests which are issued or unissued.
|
(a)
|
any consent, authorisation, registration, filing, lodgement, agreement, notarisation, certificate, permission, licence, approval, authority or exemption from, by or with a Government Agency; or
|
(b)
|
in relation to anything which will be fully or partly prohibited or restricted by law if a Government Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.
|
(a)
|
in respect of any Obligor, any director or secretary, or any person from time to time nominated as an Authorised Officer by it by a notice to the Lender:
|
(i)
|
in respect of which the identity of that person has been verified to the Lender's satisfaction in order to manage the Lender's anti money laundering, counter terrorism financing or economic and trade sanctions risk or to comply with any laws or regulations in Papua New Guinea or any other country (and the Lender has not received notice of revocation of the appointment); and
|
(ii)
|
accompanied by certified copies of signatures of all new persons so appointed and identification documents sufficient to satisfy the Lender's 'know your customer' requirements; and
|
(b)
|
in respect of the Lender, any person whose title or acting title includes the word director, head, chief, counsel, executive, manager, attorney or president or cognate expressions, or any secretary or director, or any lawyer acting for the Lender.
|
(a)
|
the Drawdown Date;
|
(b)
|
the date 30 days after the date of this Agreement; and
|
(c)
|
the date on which the Commitment is cancelled.
|
(a)
|
the date on which that Bus is delivered to the Site; and
|
(b)
|
31 August 2018,
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2
|
Facility Agreement
|
|
(a)
|
the loss of, or the loss of use of, any Approved Equipment due to destruction, theft or damage beyond repair;
|
(b)
|
the sale of any Approved Equipment by the Borrower;
|
(c)
|
the occurrence of a Compulsory Acquisition Event in relation to any Approved Equipment; or
|
(d)
|
a total loss of any Approved Equipment declared by its insurer under the relevant Insurance Policy, or
|
(e)
|
in relation to a Bus, the Bus Delivery Date for that Bus does not occur by 31 August 2018 (or such later date as the Lender may agree).
|
(a)
|
the composition of the board of directors of that entity;
|
(b)
|
more than half the voting rights attaching to shares in that entity; or
|
(c)
|
more than half the issued share capital of that entity.
|
(a)
|
the asset being compulsorily acquired by or by order of a Government Agency or under law;
|
(b)
|
a Government Agency ordering the sale, vesting or divesting of the asset; or
|
(c)
|
a Government Agency taking a step for the purpose of any of the foregoing or proposing or threatening to do any of the foregoing.
|
(a)
|
any defect in the condition, design, construction, performance, operation or fitness for use of any Approved Equipment;
|
(b)
|
any defect in the Borrower's title to any Approved Equipment;
|
(c)
|
any prohibition or interruption of, or other restriction on, the use, operation or possession of any Approved Equipment for any reason;
|
(d)
|
any damage to, or loss or destruction of, any Approved Equipment (including, without limitation, any loss or damage incurred in the course of the delivery of any Approved Equipment to any person); or
|
(e)
|
any requisitioning, confiscation or impounding of any Approved Equipment.
|
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3
|
Facility Agreement
|
|
(a)
|
calculated by reference to the gross amount of a payment under a Finance Document (without the allowance of a deduction); or
|
(b)
|
imposed because the Lender is taken to be connected with that jurisdiction solely because it is party to a Finance Document or a transaction contemplated by a Finance Document.
|
(a)
|
USD25,000,000; or
|
(b)
|
80% of the aggregate value ascribed to the Approved Equipment in the Valuation delivered to the Lender pursuant to clause 14.1 (Conditions precedent),
|
(a)
|
a bill of exchange, bond, debenture, note or similar instrument;
|
(b)
|
a Guarantee of Finance Debt or a Guarantee given to a financier;
|
(c)
|
a hire-purchase arrangement;
|
(d)
|
a finance or operating Lease;
|
(e)
|
a Derivative Transaction;
|
(f)
|
an acceptance, endorsement or discounting arrangement;
|
(g)
|
a redeemable share or redeemable stock; or
|
(h)
|
the deferred purchase price (for more than 90 days) of an asset or service,
|
(a)
|
this Agreement;
|
(b)
|
a Drawdown Notice;
|
(c)
|
a Security Document;
|
(d)
|
any other consent deed or tripartite agreement (however called) entered into by the Lender and one or more Obligors with a third party or parties;
|
(e)
|
each priority deed or intercreditor agreement (however called) entered into by the Lender, one or more Obligors and one or more third parties;
|
(f)
|
any Guarantee or Security in respect of any of the Secured Money;
|
(g)
|
any limit letter between the Lender and the Borrower relating to the Facility;
|
(h)
|
any document or agreement which an Obligor and the Lender agree is a Finance Document; or
|
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4
|
Facility Agreement
|
|
(i)
|
any document or agreement entered into or provided under or in connection with, or for the purpose of amending or novating, any of the above. It includes a written undertaking by or to a party or its lawyers under or in relation to any of the above.
|
(a)
|
a patent, trade mark or service mark, copyright, registered design, trade secret or confidential information; or
|
(b)
|
a licence or other right to use or to grant the use of any of the above or to be the registered proprietor or user of any of the above.
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Funding Period for the Drawing; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Funding Period for the Drawing,
|
(a)
|
the applicable Screen Rate as of 11am London time on the first day of that period for USD and for a period equal in length to the Funding Period for the Drawing; or
|
(b)
|
if no Screen Rate is available for LIBOR for that period, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Funding Period of the Drawing; or
|
(c)
|
if no Screen Rate is available for LIBOR for:
|
(i)
|
USD; or
|
(ii)
|
a period equal in length to the Funding Period and it is not possible to calculate the Interpolated Screen Rate,
|
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5
|
Facility Agreement
|
|
(a)
|
an interest in a company that is a share within the meaning of the Companies Act 1997;
|
(b)
|
a unit or other interest in a trust or partnership;
|
(c)
|
a negotiable instrument; and
|
(d)
|
a right or an option in respect of a Marketable Security, whether issued or unissued, including any of the above.
|
(a)
|
the business, operation, property or condition (financial or otherwise) of an Obligor;
|
(b)
|
the ability of an Obligor to perform its obligations under a Finance Document;
|
(c)
|
the effectiveness or priority of any Security granted by the Borrower under a Security Document;
|
(d)
|
the validity or enforceability of the whole or any material part of any Finance Document or any material rights or remedies of the Lender under any Finance Document; or
|
(e)
|
the value of the Secured Property or the security of the Lender (determined as a whole).
|
(a)
|
the Borrower; or
|
(b)
|
the Guarantor.
|
(a)
|
in relation to an item of Approved Equipment identified in Schedule 2 and forming part of the Secured Property, the value ascribed to that item of Approved Equipment in the Valuation delivered to the Lender pursuant to clause 14.1; or
|
(b)
|
in relation to an item of Approved Equipment provided as Satisfactory Security pursuant to clause 17.1(a)(ii) (Replacement Approved Equipment), the Original Value of the item of Approved Equipment that such Replacement Approved Equipment replaced (or if that Approved Equipment was replaced by more than one item of Replacement Approved Equipment, the proportion of the Original Value that the value of the relevant Replacement Approved Equipment bears to the aggregate value of all Replacement Approved Equipment for that relevant Approved Equipment as provided in the relevant Valuation for such Replacement Approved Equipment delivered pursuant to clause 17.1(b)).
|
(a)
|
a Security Document or any Ancillary Security;
|
(b)
|
any lien created by operation of law in the ordinary course of day‑to‑day trading and not securing Finance Debt, which secures an obligation that is not yet due, or, if due, is being contested in good faith and for which adequate reserves are held for payment;
|
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|
Facility Agreement
|
|
(c)
|
a charge or lien arising in favour of a Government Agency by operation of statute unless there is default in payment of money secured by that charge or lien;
|
(d)
|
any Security subject to a priority arrangement with the Lender on terms (including as to ranking) satisfactory to the Lender; or
|
(e)
|
any Security granted by an Obligor to which the Lender has given its prior written consent.
|
(a)
|
a Subsidiary of the first entity;
|
(b)
|
an entity of which the first entity is a Subsidiary; or
|
(c)
|
a Subsidiary of another entity of which the first entity is also a Subsidiary.
|
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7
|
Facility Agreement
|
|
(a)
|
anything which gives a creditor priority to other creditors with respect to any asset;
|
(b)
|
retention of title and a deposit of money by way of security; and
|
(c)
|
a security interest under the PPSA.
|
(a)
|
the Specific Security Deed; or
|
(b)
|
any Ancillary Security.
|
(a)
|
an entity of which a person has direct or indirect control or owns directly or indirectly more than 50% of the voting capital or similar right of ownership and control for this purpose means the power to direct the management and the policies of the entity whether through the ownership of voting capital, by contract or otherwise; or
|
(b)
|
an entity treated as a subsidiary in the financial statements of any person pursuant to IFRS or Current Accounting Practice as the case may be.
|
1.2
|
Interpretation
|
(a)
|
Headings are for convenience only and do not affect interpretation.
|
(b)
|
The meaning of terms is not limited by specific examples introduced by including, or for example, or similar expressions.
|
(c)
|
Nothing in this Agreement is to be interpreted against a party on the ground that the party put it forward.
|
(d)
|
The following rules apply unless the context requires otherwise:
|
(i)
|
the singular includes the plural and the converse;
|
(ii)
|
a gender includes all genders;
|
(iii)
|
where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
|
(iv)
|
a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
|
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|
8
|
Facility Agreement
|
|
(v)
|
a reference to a clause, annexure or schedule is a reference to a clause of, or annexure or schedule to, this Agreement;
|
(vi)
|
a reference to a party to this Agreement or another agreement or document includes the party's successors and permitted substitutes or assigns;
|
(vii)
|
a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation, statutory instrument, code or other thing issued under it;
|
(viii)
|
a reference to writing includes a facsimile transmission and any means of reproducing words in a tangible and permanently visible form;
|
(ix)
|
a reference to conduct includes an omission, statement or undertaking, whether or not in writing;
|
(x)
|
each paragraph of a list is to be construed independently; none limits any other;
|
(xi)
|
the meaning of terms is not limited by specific examples introduced by including, or for example, or similar expressions;
|
(xii)
|
a reference to property or an asset includes any real or personal, present or future, tangible or intangible property or asset (including Intellectual Property) and any right, interest, revenue or benefit in, under or derived from the property or asset;
|
(xiii)
|
a reference to disposal means to enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset;
|
(xiv)
|
an Event of Default continues until it has been waived in writing by the Lender;
|
(xv)
|
a reference to an amount for which a person is contingently liable includes an amount which that person may become actually or contingently liable to pay if a contingency occurs, whether or not under an existing obligation;
|
(xvi)
|
unless otherwise specified, all references to time are to Port Moresby time;
|
(xvii)
|
a reference to PGK or Kina means a reference to Papua New Guinea Kina (being the lawful currency for the time being of Papua New Guinea); and
|
(xviii)
|
a reference to USD is a reference to United States dollars.
|
1.3
|
Cancellation or reduction in Facility Limit
|
1.4
|
Document or agreement
|
(a)
|
an agreement includes a Security, Guarantee, undertaking, deed, agreement or legally enforceable arrangement whether or not in writing; and
|
(b)
|
a document includes an agreement (as so defined) in writing or a certificate, notice, instrument or document.
|
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|
9
|
Facility Agreement
|
|
1.5
|
Determination, statement and certificate
|
1.6
|
Accounting terms
|
(a)
|
Accounting terms are to be interpreted according to Current Accounting Practice.
|
(b)
|
The parties acknowledge that changes to Current Accounting Practice on or after the date of this Agreement may make the interpretation of certain defined terms and other clauses of this Agreement which refer to Current Accounting Practice inappropriate or uncertain.
|
(c)
|
If the Borrower or the Lender considers that such a change has occurred, it may notify the other to that effect (the Notification Date) and the Borrower and the Lender each agree to negotiate with each other in good faith to agree appropriate amendments to the affected clauses and/or definitions to take such change into account.
|
(d)
|
If the Borrower and the Lender fail to agree on the appropriate amendments to the affected clauses and/or definitions within 20 Business Days of the Notification Date, then any reference to Current Accounting Practice in this Agreement or in any other Finance Document will be deemed to be a reference to Current Accounting Practice as at the date of this Agreement.
|
(e)
|
Unless and until agreement is reached by the Borrower and the Lender in accordance with this clause, the Borrower will provide all Financial Reports and all other financial information required to be provided in accordance with the Finance Documents together with, in each case, any reconciliation statements (audited, where applicable) necessary to enable the calculation of the financial undertakings and associated definitions based on the Current Accounting Practice prior to the relevant change occurring and those changes will be ignored for the purposes of the financial undertakings and the relevant definitions.
|
1.7
|
Listing requirements included as law
|
1.8
|
Trust
|
1.9
|
Consents and Opinions
|
1.10
|
Multiple Obligors
|
(a)
|
Unless the context otherwise requires, a reference to 'the Borrower' or 'a Borrower', 'the Guarantor' or 'a Guarantor' or 'the Obligor' or 'an Obligor' in a Finance Document if there
|
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|
10
|
Facility Agreement
|
|
(b)
|
The liability of (or an obligation) on a Guarantor or an Obligor (in those capacities) under a Finance Document if there are more than one is joint and several with each other Guarantor or Obligor (as the case may be).
|
2
|
Purpose
|
3
|
Drawdown Notices and Drawings
|
3.1
|
Drawdown Notices
|
(a)
|
Whenever the Borrower wishes to make the Drawing it shall give to the Lender an irrevocable Drawdown Notice substantially in the form of the notice set out in Schedule 4.
|
(b)
|
The Drawdown Notice must be received by the Lender by 11.00am (Port Moresby time) three Business Days before the proposed Drawdown Date (which must be a Business Day).
|
(c)
|
The Lender is not obliged to provide the Drawing if as a result:
|
(i)
|
the Principal Outstanding would exceed the Facility Limit; or
|
(ii)
|
any other requirement of this Agreement would not be complied with.
|
3.2
|
Number of Drawings
|
4
|
Facility
|
4.1
|
Advance of Drawing
|
4.2
|
Interest
|
5
|
Funding Periods
|
(a)
|
Subject to this clause, each Funding Period will be a period of 90 days.
|
(b)
|
If a Funding Period ends on a day which is not a Business Day, that Funding Period will be extended to the next Business Day in the same calendar month or, if none, the preceding Business Day.
|
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|
11
|
Facility Agreement
|
|
(c)
|
No Funding Period may extend beyond the Final Repayment Date. A Funding Period shall be shortened or lengthened at the election of the Lender to ensure that no Funding Period ends on a date later than the Final Repayment Date.
|
6
|
Fees
|
6.1
|
Establishment fee
|
6.2
|
Fees not refundable or rebatable
|
7
|
Cancellation of Commitment
|
8
|
Repayment
|
8.1
|
Repayment of Facility
|
8.2
|
Repayment
|
(a)
|
The Borrower shall repay the Principal Outstanding by instalments on the last day of each Funding Period.
|
(b)
|
Each instalment will be of an amount to be advised by the Lender from time to time, being calculated on the basis that the Principal Outstanding as at the end of the Availability Period will be fully amortised through equal instalments of principal over the period commencing on the last day of the Availability Period and ending on the Final Repayment Date.
|
(c)
|
The final instalment will be the Principal Outstanding as at the Final Repayment Date.
|
8.3
|
Secured Money
|
9
|
Prepayments
|
9.1
|
Voluntary prepayments
|
(a)
|
Subject to this clause, the Borrower may prepay, on giving at least 10 Business Days’ prior written notice to the Lender, all or any part of the Principal Outstanding under the Facility. That notice is irrevocable. The Borrower shall prepay in accordance with it.
|
(b)
|
Unless the Lender agrees otherwise, prepayment of part only of a Drawing may only be made in a minimum principal amount of USD500,000.
|
(c)
|
Prepayments under this clause may only be made on the last day of a Funding Period.
|
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|
12
|
Facility Agreement
|
|
9.2
|
Interest and break costs
|
(a)
|
any interest accrued on that amount; and
|
(b)
|
any break costs with respect to the amount prepaid.
|
9.3
|
Limitation on prepayments
|
9.4
|
Application against repayment instalments
|
10
|
Payments
|
10.1
|
Manner
|
10.2
|
Payment to be made on Business Day
|
10.3
|
Appropriation where insufficient money available
|
11
|
Taxation
|
11.1
|
Additional payments
|
(a)
|
(pay deduction) it shall promptly pay the amount deducted to the appropriate Government Agency;
|
(b)
|
(receipt) within 30 days of the end of the month in which the deduction is made, it shall give the Lender the original receipt (or other documents acceptable to the Lender) evidencing the payment; and
|
(c)
|
(gross‑up) unless the Tax is an Excluded Tax, on the due date it shall pay the Lender an additional amount so that the Lender receives a net amount (after allowance for any further deduction and any Tax on the additional amount) equal to the amount it would have received if no deduction had been made. It shall indemnify the Lender against the Tax and any amounts recoverable from the Lender in respect of the Tax.
|
11.2
|
Tax credits
|
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|
13
|
Facility Agreement
|
|
(a)
|
(Refund) If the Lender in its absolute discretion decides that it has received any clearly identifiable tax relief in respect of a deduction for which an additional payment has been made, the Lender shall promptly refund the amount of the additional payment, but only:
|
(i)
|
to the extent of the relief received; and
|
(ii)
|
to the extent it determines that the refund can be made without prejudice to the retention of the relief.
|
(b)
|
(Own tax affairs) Nothing in paragraph (a) interferes with the right of the Lender to arrange its tax affairs as it thinks fit. For example, the Lender need not claim any relief in respect of a deduction or disclose any information regarding its tax affairs or tax computations.
|
12
|
Change in Law
|
12.1
|
Illegality
|
(a)
|
If a Change in Law makes it illegal or impracticable for the Lender to provide financial accommodation under the Finance Documents, the Lender may by notice to the Borrower:
|
(i)
|
terminate the Commitment; and
|
(ii)
|
direct the Borrower to prepay any financial accommodation affected, together with all other amounts owing under the Finance Documents.
|
(b)
|
The Borrower shall make the prepayment immediately or, if later, the latest day (in the Lender’s opinion) on which the prepayment can be made without the illegality or impracticability arising.
|
12.2
|
Increased costs
|
(a)
|
(increased costs) its costs are increased;
|
(b)
|
(reduced receipts) an amount received or receivable by it is reduced;
|
(c)
|
(reduced return) its or its holding company’s return on capital or other effective return is reduced (including because more capital needs to be allocated to the Facility and cannot be used elsewhere),
|
12.3
|
Voluntary prepayment on Change in Law
|
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|
14
|
Facility Agreement
|
|
12.4
|
Minimisation
|
(a)
|
(Minimisation) The Lender shall use reasonable endeavours to avoid or minimise the consequences of a Change in Law mentioned in this clause.
|
(b)
|
(No defence) The Borrower may not refuse a demand on the ground that the relevant consequences could have been avoided.
|
12.5
|
Change in Law
|
(a)
|
a Change in Law is the introduction of, or a change in, any law, official directive, ruling or request or a change in its interpretation or application. If it does not have the force of law, it must be one with which responsible banks in Papua New Guinea or Australia would comply. It includes any with respect to capital adequacy, special deposit, liquidity, reserve, prime assets, tax or prudential requirements (except a change in tax on overall net income); and
|
(b)
|
a Change in Law also includes:
|
(i)
|
an investigation into the Borrower or an Associate of the Borrower by a Government Agency; or
|
(ii)
|
an application for or grant of an injunction or order in respect of any Finance Document or Security granted by an Obligor or account conducted with the Lender made by a Government Agency.
|
13
|
Market Disruption
|
13.1
|
Market disruption
|
(a)
|
If the Lender determines that a Market Disruption Event occurs in relation to a Drawing for any Funding Period, then it shall promptly notify the Borrower, and the rate of interest on that Drawing shall be the rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified by the Lender as soon as practicable and in any event no later than the Business Day before interest is due to be paid in respect of that Funding Period, to be that which expresses as a percentage rate per annum the cost to the Lender of funding its participation in that Drawing from whatever source or sources it may reasonably select.
|
(b)
|
The Lender shall determine the margin and the rate notified by it under paragraph (a)(ii) above in good faith. The rate so notified and any notification under paragraph (c) below, will be conclusive and binding on the parties in the absence of manifest error.
|
(c)
|
In this Agreement, Market Disruption Event means the Lender determines that as a result of market circumstances not limited to it (whether or not those circumstances, or their effect on the Lender’s cost of funds, subsist on the date of this Agreement) the cost to it of funding a Drawing is or would be in excess of LIBOR.
|
13.2
|
Alternative basis of interest or funding
|
(a)
|
If a Market Disruption Event occurs and the Lender or the Borrower so requires, the Lender and the Borrower shall enter into negotiations (for a period of not more than 45 days) with a view to agreeing a substitute basis for determining the rate of interest.
|
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|
15
|
Facility Agreement
|
|
(b)
|
Any alternative basis agreed pursuant to paragraph (a) above shall be binding on all parties.
|
13.3
|
Confidentiality
|
(a)
|
Subject to paragraph (b), the Borrower shall keep confidential and not disclose to any other person any information described in this clause 13 (Market disruption).
|
(b)
|
However, the Borrower or its officers or employees may disclose such information:
|
(i)
|
to the extent required by any applicable law or regulation;
|
(ii)
|
to the extent it reasonably deems necessary in connection with any actual or contemplated proceedings or a claim with respect to this clause 13; or
|
(iii)
|
any of its Associates (including the Guarantor) and any of its or their officers, directors, employees, professional advisers and auditors if any person to whom that information is to be given pursuant to this paragraph is informed in writing of its confidential nature and that it may be price-sensitive information.
|
14
|
Conditions Precedent
|
14.1
|
Conditions precedent
|
14.2
|
Further conditions precedent
|
(a)
|
(representations true) the representations and warranties by each Obligor in the Finance Documents are true in all material respects and not misleading as though they had been made at each date in respect of the facts and circumstances then subsisting; and
|
(b)
|
(no default) no Event of Default or Potential Event of Default continues or will result from the provision of the financial accommodation.
|
15
|
Representations and Warranties
|
15.1
|
Obligor representations and warranties
|
(a)
|
(Status) It is a corporation validly existing under the laws of the place of its incorporation specified in this Agreement and is capable of suing and being sued.
|
(b)
|
(Power) It has the power to enter into and perform its obligations under the Finance Documents to which it is expressed to be a party, to carry out the transactions contemplated by those documents, to own its assets and to carry on its business as now conducted or contemplated.
|
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|
16
|
Facility Agreement
|
|
(c)
|
(Corporate authorisations) It has taken all necessary corporate action to authorise the entry into, delivery (if applicable) and performance of the Finance Documents to which it is expressed to be a party, and to carry out the transactions contemplated by those documents.
|
(d)
|
(Documents binding) Each Finance Document to which it is expressed to be a party is its legal, valid and binding obligation enforceable in accordance with its terms, subject to any necessary stamping and registration and subject to equitable principles.
|
(e)
|
(Transactions permitted) The execution, delivery (if applicable) and performance by it of the Finance Documents to which it is expressed to be a party and each transaction contemplated under those documents did not and will not violate in any respect a provision of:
|
(i)
|
a law or treaty or a judgment, ruling, order or decree of a Government Agency binding on it;
|
(ii)
|
its constitution or other constituent documents; or
|
(iii)
|
any other document or agreement which is binding on it or its assets, and, except as provided by the Finance Documents, did not and will not:
|
(iv)
|
create or impose a Security on any of its assets; or
|
(v)
|
allow a person to accelerate or cancel an obligation with respect to Finance Debt, or constitute an event of default, cancellation event, prepayment event or similar event (whatever called) under an agreement relating to Finance Debt, whether immediately or after notice or lapse of time or both.
|
(f)
|
(Financial Reports)
|
(i)
|
Its most recent consolidated and unconsolidated audited Financial Reports give a true and fair view of:
|
(A)
|
its financial position (including actual and contingent liabilities), and where relevant the financial position of any other relevant entities on a consolidated basis, as at the date to which the Financial Reports relate; and
|
(B)
|
its performance, and where relevant the performance of any other relevant entities on a consolidated basis, during the accounting period to which the Financial Reports relate.
|
(ii)
|
There has been no subsequent change in its business or financial condition which may have a Material Adverse Effect.
|
(iii)
|
Those Financial Reports comply with Current Accounting Practice except to the extent disclosed in them and with all applicable laws.
|
(g)
|
(No litigation) No litigation, arbitration, Tax claim, dispute or administrative or other proceeding is current or pending or, to its knowledge, threatened other than proceedings brought against the Borrower in December 2010 by certain landowners seeking unspecified damages relating to alleged release of waste rock and overburden by the operation of the Project, full details of which have been disclosed to the Lender prior to the date of this Agreement.
|
(h)
|
(No default)
|
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Facility Agreement
|
|
(i)
|
No Obligor is in default under a document or agreement (including an Authorisation) binding on it or its assets which relates to Finance Debt or is material.
|
(ii)
|
Nothing has occurred which constitutes an event of default, cancellation event, prepayment event or similar event (whatever called) under those documents or agreements, whether immediately or after notice or lapse of time or both.
|
(i)
|
(Authorisations) Each Authorisation which is required in relation to:
|
(i)
|
the execution, delivery and performance by it of the Finance Documents to which it is expressed to be a party and the transactions contemplated by those documents;
|
(ii)
|
the validity and enforceability of those documents; and
|
(iii)
|
its business as now conducted or contemplated and which is material,
|
(j)
|
(No misrepresentation)
|
(i)
|
All information (including Financial Reports) in connection with the Finance Documents provided by it to the Lender is true and accurate in all material respects at the date of this Agreement or, if later, when provided. Neither that information nor its conduct and the conduct of anyone on its behalf in relation to the transactions contemplated by the Finance Documents, was or is misleading, by omission or otherwise.
|
(ii)
|
All financial projections provided by an Obligor have been prepared by appropriately qualified persons in good faith and on the basis of the most recently available historical information and on the basis of reasonable assumptions.
|
(iii)
|
It has and each Obligor has disclosed all information and documents relating to it, its assets, each Finance Document to which it is expressed to be a party and the transactions contemplated by each of them, which are material to the Lender's decision to enter into the Finance Documents.
|
(k)
|
(Full disclosure) It has disclosed all material information and documents relating to it, its assets, each Finance Document and the transactions contemplated by each of them.
|
(l)
|
(Copies of documents) All copies of documents (including its latest audited Financial Reports and all Authorisations) given by it or on its behalf to the Lender are true and complete copies. Those documents are in full force and effect.
|
(m)
|
(Law) It and each of its Subsidiaries has complied with all laws binding on it where breach may have a Material Adverse Effect.
|
(n)
|
(Investigation by agency) No investigation by any agency into all or part of its affairs is current in circumstances material to its business or financial condition.
|
(o)
|
(Environmental Law) No act or omission has occurred and there is no circumstance relating to its assets or its business or the assets or business of any of its Subsidiaries which has given rise or may give rise to:
|
(i)
|
a substantial claim against it or any of its Subsidiaries;
|
(ii)
|
a requirement of substantial expenditure by it or any of its Subsidiaries; or
|
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|
|
(iii)
|
a requirement that it or any of its Subsidiaries cease or substantially alters an activity,
|
(p)
|
(Authorised officers) Any person specified as an Authorised Officer of the Borrower is authorised to sign any requests and other notices on its behalf and do all other things contemplated by the Finance Documents.
|
(q)
|
(Benefit) It benefits by entering into and performing its obligations under each Finance Document.
|
(r)
|
(No immunity) It has no immunity from the jurisdiction of a court, or from legal process, in Papua New Guinea.
|
(s)
|
(Pari passu ranking) Its obligations under this Agreement rank at least equally with all of its unsecured and unsubordinated indebtedness (other than liabilities mandatorily preferred by law).
|
(t)
|
(Intellectual Property) It owns, or has the right and license to use, all Intellectual Property necessary for the conduct of its business.
|
(u)
|
(Taxes) It has complied with all laws in relation to Tax in all jurisdictions in which it is subject to Taxes and has paid all Taxes due and payable by it except those for which it has set aside sufficient reserves and which are being contested in good faith (except where failure to pay may have a Material Adverse Effect).
|
(v)
|
(Insurance)
|
(i)
|
All insurances required under the Finance Documents are in effect and current and meet the requirements of the Finance Documents.
|
(ii)
|
It has not made any material misrepresentation or omission to its insurers and is not aware of any reason why any of the insurance policies may be terminated or why any insurers may refuse to pay a claim when made.
|
(w)
|
(Undisclosed relationships) Except as disclosed to and agreed by the Lender, it has not entered into any Finance Document and does not hold any Secured Property:
|
(i)
|
as a trustee of any trust;
|
(ii)
|
as a partner of a partnership;
|
(iii)
|
as a responsible entity of any registered scheme;
|
(iv)
|
as an agent of an undisclosed principal; or
|
(v)
|
in any other capacity for the benefit of any person.
|
15.2
|
Borrower representations and warranties
|
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|
|
(a)
|
(Title)
|
(i)
|
It is the sole beneficial owner of its Secured Property (if any) free of any other third party right or interest whatever other than as permitted by clause 16.2(c) (Negative pledge).
|
(ii)
|
There are no third party rights or interests (including Security) in or over any place where any Approved Equipment forming part of the Secured Property is or is to be located other than those disclosed in writing to the Lender before the date of this Agreement or, if they arise after that date, before the first date on which the representations and warranties in this clause are repeated after they arise.
|
(b)
|
(Location) As at the date of this Agreement, each Approved Equipment (other than, until the Bus Delivery Date for a Bus, each such Bus) is located at the Site.
|
15.3
|
Reliance on representations and warranties
|
16
|
Undertakings
|
16.1
|
General undertakings
|
(a)
|
(Corporate reporting and information):
|
(i)
|
(annual Financial Reports) it will provide to the Lender as soon as practicable (but within 120 days) after the close of each of its financial years or (if earlier) within 5 Business Days after any earlier date on which it is required to file its consolidated Financial Reports with any Government Agency, copies of its consolidated audited Financial Reports in respect of that financial year;
|
(ii)
|
(management accounts) it will provide to the Lender as soon as practicable (but within 60 days) after the end of each of its financial half-years or (if earlier) within 5 Business Days after any earlier date on which it is required to file its consolidated half-yearly management accounts with any Government Agency, copies of its consolidated management accounts in respect of that half-year, the financial year to date and for the 12 month period ending at the end of that half year (including, but not limited to, a statement of financial position, statement of financial performance, cash flow statement and performance against forecasts);
|
(iii)
|
(documents issued to shareholders) the Borrower will provide to the Lender promptly, all documents provided by it to a stock exchange or holders of Marketable Securities issued by it;
|
(iv)
|
(litigation) it will provide to the Lender promptly, written particulars of any litigation, arbitration, Tax claim, dispute or administrative or other proceeding in relation to it or its Subsidiaries other than a claim for worker's compensation;
|
(v)
|
(Government Agency) it will provide to the Lender promptly, any notice, order or material correspondence from or with a Government Agency relating to its or its Subsidiaries' business or assets which may have a Material Adverse Effect; and
|
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|
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|
|
(vi)
|
(other information) it will provide to the Lender promptly, any other information in relation to its (or in relation to the Borrower, its Subsidiaries') financial condition or business which the Lender may request.
|
(b)
|
(Accounting principles) It will ensure that the Financial Reports provided to the Lender under paragraph (a):
|
(i)
|
comply with Current Accounting Practice except to the extent disclosed in them and with all applicable laws; and
|
(ii)
|
give a true and fair view of the matters with which they deal.
|
(c)
|
(Authorisations) It will ensure that each Authorisation required for:
|
(i)
|
the execution, delivery and performance by it of the Finance Documents to which it is expressed to be a party and the transactions contemplated by those documents;
|
(ii)
|
the validity and enforceability of those documents; and
|
(iii)
|
the carrying on by it and its Subsidiaries of its and their business as now conducted or contemplated,
|
(d)
|
(Notice to Lender) It will notify the Lender as soon as it becomes aware of:
|
(i)
|
any Event of Default, Review Event or Potential Event of Default;
|
(ii)
|
(in relation to the Borrower only) any Defect or Casualty Event;
|
(iii)
|
(in relation to the Borrower only) any substantial dispute between it or any of its Subsidiaries and a Government Agency;
|
(iv)
|
any change in its Authorised Officers, giving specimen signatures of any new Authorised Officer appointed, and, where requested by the Lender, evidence satisfactory to the Lender of the authority of any Authorised Officer together with documents evidencing the new Authorised Officer's identity verified to the Lender's satisfaction;
|
(v)
|
any Change in Control;
|
(vi)
|
any liability under an Environmental Law; and
|
(vii)
|
any material litigation, asset write down or other actual or potential material enterprise diminishing event.
|
(e)
|
(Corporate existence) It will do everything necessary to maintain its corporate existence in good standing. It will not transfer its jurisdiction of incorporation or enter any merger or consolidation without the Lender's prior written consent (such consent not to be unreasonably withheld).
|
(f)
|
(Compliance with law) It will comply with all laws binding on it or its assets in all material respects.
|
(g)
|
(Pay Taxes) It will pay all Taxes payable by it when due, but:
|
(i)
|
it need not pay Taxes for which it has set aside sufficient reserves and which are being contested in good faith, except where failure to pay may have a Material Adverse Effect; and
|
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|
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|
|
(ii)
|
to the extent liable, it will pay those Taxes on the final determination or settlement of the contest.
|
(h)
|
(Commercial dealings)
|
(i)
|
It will not deal in any way with any person except at arm's length in the ordinary course of business for valuable commercial consideration.
|
(ii)
|
It may only deal with an Associate if a person satisfactory to the Lender verifies the adequacy of the consideration or otherwise verifies compliance with sub‑paragraph (i).
|
(i)
|
(Ratification) As holder of shares, units or any other direct or indirect interest in any Obligor, it ratifies and confirms the execution, delivery and performance by each Obligor of each Finance Document. It will be taken to have ratified and confirmed the execution, delivery and performance of each Finance Document to which any entity in which it has such an interest is at any time expressed to be party.
|
(j)
|
(Inspection)
|
(i)
|
Subject to sub-paragraph (iii) below, the Lender or persons authorised by it may at any time inspect and require the provision of copies of the records, and inspect the premises, of the Borrower. The Borrower will do everything in its power to assist that inspection and provide those copies and will ensure that its employees and officers do the same.
|
(ii)
|
Without limitation, the Borrower shall permit and enable the Lender and its representatives (including any experts appointed by it), whenever the Lender reasonably requires, to:
|
(A)
|
inspect or test any Approved Equipment forming part of the Secured Property;
|
(B)
|
examine, make copies of or take extracts from, the books of account, records, reports and other documents relating to the Approved Equipment forming part of the Secured Property; and
|
(C)
|
discuss with the officers, accountants and auditors of the Borrower its affairs, finances and accounts relating to the Approved Equipment forming part of the Secured Property,
|
(iii)
|
The Lender (or persons authorised by it) shall not exercise its rights under this paragraph (j):
|
(A)
|
without providing reasonable notice to the Borrower and complying with all reasonable workplace health and safety and security protocols of the Borrower; and
|
(B)
|
more frequently than once per calendar year, unless an Event or Default or Potential Event of Default continues.
|
(k)
|
(Books and records) It will ensure that it maintains appropriate books and records at all times.
|
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Facility Agreement
|
|
(l)
|
(Environmental Law)
|
(i)
|
It will maintain procedures which, in the reasonable opinion of the Lender, are adequate to monitor its compliance with Environmental Law and Authorisations.
|
(ii)
|
Where the Lender reasonably suspects that the Borrower is not complying in a material respect with an Environmental Law or Authorisation and, after consultation with the Borrower, the Lender reasonably continues to do so, the Lender may have an audit conducted of the procedures maintained and of compliance. It will do everything reasonably necessary to facilitate that audit.
|
(iii)
|
Where the procedures or the audit referred to in this paragraph reveal any non-compliance with Environmental Law or Authorisations, it will promptly remedy them.
|
(iv)
|
Without limitation, it will comply and ensure that the Project complies at all times with applicable Equator Principles.
|
16.2
|
Undertakings relating to Secured Property
|
(a)
|
(Approved Equipment)
|
(i)
|
It will ensure that at all times the Principal Outstanding is equal to or less than
|
(ii)
|
It shall, within 10 Business Days of becoming aware that it is not in compliance with its obligation under sub-paragraph (i) above, prepay in accordance with clause 9 (Voluntary prepayments) such minimum amount of the Principal Outstanding (together with interest and (if such payment is not made on the last day of a Funding Period) break costs) so as to ensure that immediately upon payment, the Principal Outstanding is equal to or less than 80% of the aggregate value of the Approved Equipment forming part of the Secured Property (other than Approved Equipment that has been subject to a Casualty Event) as recorded in the most recent Valuation accepted by the Lender at that time.
|
(iii)
|
The Borrower will not be in breach of its obligation under sub-paragraph (i) above if the failure is a direct result of a Casualty Event affecting one or more items of Approved Equipment forming part of the Secured Property and the Borrower complies with its obligations under clause 17 in respect of that Approved Equipment.
|
(b)
|
(Disposal of assets) It will not sell or otherwise dispose of, part with possession of, or create an interest in any Secured Property or agree or attempt to do so (whether in one or more related or unrelated transactions) except in accordance with clause 17 (Casualty Event).
|
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Facility Agreement
|
|
(c)
|
(Negative pledge) It will not create or allow to exist a Security Interest over the Secured Property other than a Permitted Security.
|
(d)
|
(Mortgaged or leased premises)
|
(i)
|
It shall not install, use or store any Approved Equipment forming part of the Secured Property (other than, until the Bus Delivery Date for a Bus, each such Bus) in any place that it does not own or that is subject to a Security, Lease or other similar interest unless the Lessor has received an acknowledgement executed by each person who has any interest in that place.
|
(ii)
|
The acknowledgement is to confirm that the Approved Equipment:
|
(A)
|
is and will remain the Borrower's property;
|
(B)
|
if affixed to any land or building, will not become a fixture of the land or building and that that person will not acquire an interest in the Approved Equipment;
|
(C)
|
will not be subject to the Security (if any) over the place; and
|
(D)
|
may be removed by the Lender from the place without the Lender incurring any liability.
|
(iii)
|
It shall not create any Security over the place where any Approved Equipment forming part of the Secured Property is located unless the Borrower first obtains an acknowledgement from the security holder in the form described in paragraph (ii).
|
(e)
|
(Sale and Lease back) It will not sell or otherwise dispose of any Secured Property to a person where, under the terms of that sale or disposal, or under a related transaction, that asset is or may be Leased to the Guarantor or its Associate.
|
(f)
|
(Maintenance)
|
(i)
|
It will maintain, or procure that any relevant operator maintain, the Approved Equipment forming part of the Secured Property in:
|
(A)
|
proper working order and condition in accordance with the Supplier's specifications and the requirements (if any) of any insurer of any Approved Equipment forming part of the Secured Property; and
|
(B)
|
good and substantial repair, with due allowance for normal wear and tear,
|
(ii)
|
It will promptly, or procure that any relevant tenant will promptly, remedy every material defect in the repair and condition of the Approved Equipment forming part of the Secured Property (fair wear and tear excepted).
|
(g)
|
(Insurance) It will, in addition to any requirement of any other Finance Document:
|
(i)
|
take out and maintain insurance over and in relation to the Approved Equipment forming part of the Secured Property (including fire, loss of rent and public liability insurance) with independent and reputable insurers for amounts, against risks and upon terms and conditions reasonably stipulated by the Lender, or if no such requirements are stipulated, for amounts, against risks and upon terms and
|
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|
Facility Agreement
|
|
(ii)
|
note the interest of the Lender as mortgagee and loss payee on each policy of insurance over the Approved Equipment forming part of the Secured Property;
|
(iii)
|
disclose to each insurer all facts which are material to the insurer's risk and comply with its obligations of utmost good faith to the insurer;
|
(iv)
|
give to the Lender on demand a certificate in form and substance satisfactory to the Lender from the insurer to the effect that the required insurance is current and no premiums or other moneys are due for payment to the insurer;
|
(v)
|
pay when due all premiums, commissions, levies, stamp duties, charges and other expenses necessary for taking out those insurance policies and keeping them in force;
|
(vi)
|
except with the Lender's prior written consent, ensure that no material alteration is made to any insurance policy; and
|
(vii)
|
as soon as practicable notify the Lender if an event occurs which permits an insurance claim to be made, or if an insurance claim is made or refused.
|
(h)
|
(Insurance proceeds) To the extent permitted at law, proceeds of each insurance policy in relation to the Approved Equipment forming part of the Secured Property must be applied as follows, unless the Lender otherwise consents:
|
(i)
|
if no Event of Default or Potential Event of Default subsists:
|
(A)
|
in the case of a policy covering destruction, damage or loss of Approved Equipment, in replacing, reinstating, rebuilding or repairing that Approved Equipment; and
|
(B)
|
in any other case, in discharging the liability or making good the loss covered by the policy,
|
(ii)
|
if an Event of Default or Potential Event of Default subsists, to reduce the Secured Money whether or not due.
|
(i)
|
(Alterations) It will not materially alter, or permit any person to materially alter, the Approved Equipment forming part of the Secured Property.
|
(j)
|
(Preservation and protection of security) It will promptly do everything in its power necessary or reasonably required by the Lender:
|
(i)
|
to preserve and protect the value of the Approved Equipment forming part of the Secured Property; and
|
(ii)
|
to protect and enforce its title and the title of the Lender as mortgagee or secured party in respect of the Approved Equipment forming part of the Secured Property.
|
(k)
|
(Other Security) It will comply with all Security affecting the Approved Equipment forming part of the Secured Property and with its obligations secured by that Security.
|
(l)
|
(Location) It will not remove, or allow to be removed, any Approved Equipment forming part of the Secured Property (other than, until the Bus Delvery date for a Bus, each such Bus) from the location corresponding to that Approved Equipment as set out in
|
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|
Facility Agreement
|
|
16.3
|
Term of undertakings
|
17
|
Casualty Event
|
(a)
|
On the occurrence of any Casualty Event, the Borrower shall promptly (and in any event, within 20 Business Days or such longer period the Lender might agree):
|
(i)
|
prepay in accordance with clause 9 (Voluntary prepayments) an amount of the Principal Outstanding equal to or greater than the amount calculated by the Lender to be the Proportionate Principal Outstanding at that time together with interest and (if such payment is not made on the last day of a Funding Period) break costs; or
|
(ii)
|
provide Satisfactory Security in respect of one or more items of Approved Equipment (not already forming part of the Secured Property) of a value equal to or greater than 125% of the Proportionate Principal Outstanding at that time.
|
(b)
|
The Borrower shall at its cost promptly procure any Valuation required by the Lender to satisfy itself of any determination required under this clause 17, including without limitation the Proportionate Principal Outstanding or the value of any asset proposed to be subject of any Satisfactory Security to be given in accordance with paragraph (a)(ii) above.
|
(c)
|
Subject to clause 16.2(h), the Borrower may set-off any insurance proceeds received by the Lender as a result of any Casualty Event that are applied by the Lender in reduction of the Secured Money against its obligation to prepay under clause17.1(a)(i).
|
18
|
Events of Default
|
18.1
|
Events of Default
|
(a)
|
(Obligations under Finance Documents) An Obligor fails:
|
(i)
|
to pay an amount payable by it under a Finance Document when due (other than where the failure is caused solely by an administrative or technical error in the transmission of funds outside the control of the Obligors and such failure is remedied within two Business Days);
|
(ii)
|
to comply with an undertaking under clause 16.2(c) (Negative pledge), 16.2(l) (Location), 16.2(g) (Insurance), 17 (Casualty Event) or 31 (Personal properties securities law);
|
(iii)
|
to comply with any of its other obligations under a Finance Document except, where in the opinion of the Lender that failure can be remedied within 10 Business Days, if it remedies the failure within that period; or
|
(iv)
|
to satisfy within the time stipulated anything which the Lender made a condition of its waiving compliance with a condition precedent or undertaking in a Finance Document.
|
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Facility Agreement
|
|
(b)
|
(Misrepresentation) A representation, warranty or statement by or on behalf of an Obligor in a Finance Document, or in a document provided under or in connection with a Finance Document, is not true in a material respect or is misleading when made or repeated.
|
(c)
|
(Cross default)
|
(i)
|
Finance Debt of an Obligor:
|
(A)
|
is not paid when due (or within an applicable grace period); or
|
(B)
|
becomes due and payable or capable of being declared due and payable before its stated maturity or expiry; or
|
(ii)
|
a facility or obligation granted or owed by a person to an Obligor to provide financial accommodation or to acquire or underwrite Finance Debt is prematurely terminated; or
|
(iii)
|
an event of default (however called or defined) occurs under any agreement documenting Finance Debt or a Security to which an Obligor is a party.
|
(iv)
|
in relation to the Guarantor, less than USD5,000,000 (or its equivalent in other currency or currencies); and
|
(v)
|
in relation to the Borrower, less than USD1,000,000 (or its equivalent in other currency or currencies).
|
(d)
|
(Administration, winding up, arrangements, insolvency etc)
|
(i)
|
An administrator of an Obligor is appointed.
|
(ii)
|
Except for the purpose of a solvent reconstruction or amalgamation previously approved by the Lender:
|
(A)
|
an application or an order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting, an application to a court or other steps are taken for:
|
(1)
|
the winding up, dissolution or administration of an Obligor; or
|
(2)
|
an Obligor entering into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them,
|
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Facility Agreement
|
|
(B)
|
an Obligor ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets.
|
(iii)
|
An Obligor:
|
(A)
|
is, or under legislation is presumed or taken to be, insolvent (other than as the result of a failure to pay a debt or claim the subject of a good faith dispute); or
|
(B)
|
stops or suspends or threatens to stop or suspend payment of all or a class of its debts.
|
(e)
|
(Enforcement against assets)
|
(i)
|
A receiver, receiver and manager, administrative receiver or similar officer is appointed to;
|
(ii)
|
a Security becomes enforceable or is enforced over; or
|
(iii)
|
a distress, attachment or other execution is levied or enforced or applied for over,
|
(f)
|
(Reduction of capital) Without the prior consent of the Lender, the Borrower:
|
(i)
|
reduces its capital (including a purchase of its shares);
|
(ii)
|
passes a resolution to reduce its capital or to authorise it to purchase its shares, or calls a meeting to consider such a resolution;
|
(iii)
|
applies to a court to call any such meeting or to sanction any such resolution or reduction; or
|
(iv)
|
enters into any amalgamation, merger, demerger or corporate reconstruction.
|
(g)
|
(Investigation) An investigation into all or part of the affairs of an Obligor commences under companies legislation in circumstances material to its financial condition.
|
(h)
|
(Analogous process) Anything analogous to anything referred to in paragraphs (d) to (g) inclusive, or which has substantially similar effect, occurs with respect to any Obligor under any law.
|
(i)
|
(Vitiation of documents)
|
(i)
|
All or any part of a Finance Document is terminated or is or becomes void, illegal, invalid, unenforceable or of limited force and effect;
|
(ii)
|
a party becomes entitled to terminate, rescind or avoid all or part of a Finance Document; or
|
(iii)
|
a party other than the Lender alleges or claims that an event described in sub‑paragraph (i) has occurred or that it is entitled as described in sub‑paragraph (ii).
|
(j)
|
(Revocation of Authorisation) An Authorisation which is material to the performance by any Obligor of a Finance Document, or to the validity and enforceability of a Finance Document or to the security of the Lender, is repealed, revoked or terminated or expires, or is modified or amended or conditions are attached to it in a manner unacceptable to the Lender, and is not replaced by another Authorisation acceptable to the Lender.
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|
|
(k)
|
(Control of Borrower) There is a Change in Control of the Borrower.
|
(l)
|
(Compulsory acquisition) The occurrence of any Compulsory Acquisition Event in relation to all or any substantial part of the Secured Property.
|
(m)
|
(Governmental interference) A law or anything done by a Government Agency wholly or partially to a material extent renders illegal, prevents or restricts the performance or effectiveness of a Finance Document or otherwise has a Material Adverse Effect.
|
(n)
|
(Environmental event)
|
(i)
|
(A) Any person takes action;
|
(B)
|
there is a claim; or
|
(C)
|
there is a requirement of expenditure or of cessation or alteration of activity,
|
(ii)
|
a circumstance arises which in the opinion of the Lender may give rise to an action, claim or requirement within sub‑paragraph (i).
|
(o)
|
(Project)
|
(i)
|
A Compulsory Acquisition Event occurs in relation to all or a material part of the Project.
|
(ii)
|
All or a material part of the Project is abandoned.
|
(iii)
|
The Project breaches any applicable Equator Principles and that breach is not remedied to the satisfaction of the Lender within six months.
|
(p)
|
(Material damage or destruction) The occurrence of material damage to or destruction of all or a material part of the Secured Property provided that no Event of Default will occur under this clause if the affected Secured Property is the subject of a Casualty Event and the Borrower complies with its obligations under clause 17.
|
(q)
|
(Material adverse change) Any other event or series of events, whether related or not, occurs (including a material adverse change in the business, assets, prospects or financial condition of any Obligor or the value of the Secured Property), which in the opinion of the Lender may have a Material Adverse Effect.
|
18.2
|
Consequences
|
(a)
|
by notice to the Borrower declare the Secured Money immediately due and payable, and the Borrower shall immediately pay the Principal Outstanding and together with all other Secured Money (including accrued interest, fees and other costs and expenses);
|
(b)
|
by notice to the Borrower cancel all or any part of the Commitment;
|
(c)
|
take any step to enforce any Security or any Security Document, or exercise any rights of the Lender, under one or more Finance Documents;
|
(d)
|
(with immediate effect) change some or all of the conditions on which one or more of the Facility is made available to the Borrower (in particular the Lender may adjust any fees, interest rates, discount fees and margins payable under this Agreement or any other
|
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Facility Agreement
|
|
(e)
|
at the cost of the Borrower:
|
(i)
|
appoint a firm of independent accountants or other experts to review and report to the Lender on the affairs, financial condition and business of any Obligor; and
|
(ii)
|
obtain a Valuation of all or any part of the Approved Equipment forming party of the Secured Property.
|
19
|
Guarantee
|
19.1
|
Interpretation
|
(a)
|
any person includes the Borrower;
|
(b)
|
any document or agreement includes this Agreement or any other Finance Document; and
|
(c)
|
any reason or some reason includes:
|
(i)
|
any legal limitation, disability, Liquidation, incapacity or thing affecting any person or the operation of any law, including any law relating to Liquidation, fiduciary or other duties or obligations or the protection of creditors;
|
(ii)
|
any release, discharge, termination, rescission, repudiation, extinguishment, abandonment or disclaimer;
|
(iii)
|
any failure by any person to execute, or to execute properly, an agreement or document or to comply with some requirement; or
|
(iv)
|
an agreement, document, obligation or transaction being or becoming illegal, invalid, void, voidable or unenforceable in any respect.
|
19.2
|
Consideration
|
19.3
|
Guarantee
|
19.4
|
Indemnity
|
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|
|
19.5
|
Payment obligation
|
(a)
|
On demand from time to time the Guarantor shall pay an amount equal to the Secured Money which is then due and payable or would have been due and payable but for some reason. Subject to paragraph (b), the Guarantor shall pay that amount in the same manner and currency which the relevant Obligor is, or would have been, required to pay the Secured Money. A demand need only specify the amount owing. It need not specify the basis of calculation of that amount.
|
(b)
|
In relation to any payment obligation of the Borrower expressed to be payable in the PGK Equivalent of an amount denominated in USD, the Guarantor shall pay the relevant amount in USD.
|
19.6
|
Unconditional nature of obligation
|
(a)
|
the grant to any person of any time, waiver or other indulgence, or the discharge or release of any person;
|
(b)
|
any transaction or arrangement between the Lender and any person;
|
(c)
|
the Lender becoming a party to or bound by any compromise, moratorium, assignment of property, scheme of arrangement, deed of company arrangement, composition of debts or scheme of reconstruction by or relating to any person;
|
(d)
|
the Lender exercising or delaying or refraining from exercising or enforcing any document or agreement or any right, power or remedy conferred on it by law or by any document or agreement;
|
(e)
|
all or any part of any document or agreement held by the Lender at any time or of any right, obligation, power or remedy changing, ceasing or being transferred (this includes amendment, variation, novation, replacement, rescission, invalidity, extinguishment, repudiation, avoidance, unenforceability, frustration, failure, expiry, termination, loss, release, discharge, abandonment or assignment);
|
(f)
|
the taking or perfection of any document or agreement or failure to take or perfect any document or agreement;
|
(g)
|
the failure by any person or the Lender to notify the Guarantor of any default by any person under any document or agreement or other circumstance;
|
(h)
|
the Lender obtaining a judgment against any person for the payment of any Secured Money;
|
(i)
|
any change in any circumstance (including in the members or constitution of any person);
|
(j)
|
any increase in the Secured Money for any reason (including as a result of anything referred to above); or
|
(k)
|
any reason,
|
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|
|
19.7
|
Principal and independent obligation
|
19.8
|
No marshalling
|
(a)
|
any Security, Guarantee, document or agreement held by the Lender at any time; or
|
(b)
|
any of the funds or assets that the Lender is entitled to receive or has a claim on.
|
19.9
|
No competition
|
(a)
|
be subrogated to the Lender or any person who has any rights against the Borrower or claim the benefit of any Security or Guarantee held by the Lender or any such person or any such at any time;
|
(b)
|
either directly or indirectly prove in, claim or receive the benefit of, any distribution, dividend or payment arising out of or relating to the Liquidation of the Borrower; or
|
(c)
|
have or claim any right of contribution or indemnity for any reason (whether or not relating to this Agreement) from the Borrower,
|
19.10
|
Suspense account
|
(a)
|
(b) credit to a suspense account (without applying it); and
|
(i)
|
appropriate at the discretion of the Lender,
|
(b)
|
prove in any Liquidation of any person in respect of the full amount of the Secured Money disregarding any sums in the suspense account.
|
19.11
|
Rescission of payment
|
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Facility Agreement
|
|
(a)
|
all or part of any transaction of any nature (including any payment or transfer) made during the term of this Agreement which affects or relates in any way to the Secured Money is void, set aside or voidable;
|
(b)
|
any claim of a nature contemplated by paragraph (a) is upheld, conceded or compromised; or
|
(c)
|
the Lender is required to return or repay any money or asset received by it under any such transaction or the equivalent in value of that money or asset,
|
19.12
|
Continuing guarantee and indemnity
|
(a)
|
is a continuing guarantee and indemnity;
|
(b)
|
will not be taken to be wholly or partially discharged by the payment at any time of any Secured Money or by any settlement of account or other matter or thing; and
|
(c)
|
remains in full force until the Secured Money has been paid in full and the Guarantor has completely performed its obligations under this Agreement.
|
19.13
|
Variations
|
(a)
|
any amendment to, or waiver under, any Finance Document; or
|
(b)
|
the provision of further accommodation to the Borrower,
|
19.14
|
Judgment
|
19.15
|
Conditions precedent
|
20
|
Review of Facility
|
20.1
|
Review Event
|
(a)
|
at the request of the Lender, the Borrower and the Lender shall meet promptly (and in any event within 3 Business Days of either party receiving notice of the occurrence of a Review Event) to discuss the Review Event and, if required by the Lender, agree a strategy for the Borrower to rectify the circumstances giving rise to the Review Event; and
|
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|
|
(b)
|
if the Borrower and the Lender cannot reach an agreement within 30 days of the occurrence of the Review Event as to ongoing terms and conditions (including but not limited to, pricing) of the Facility, the Lender may give notice to the Borrower requiring repayments of the Principal Outstanding within 60 days of the date of that notice (or such later date as the Lender may, in its absolute discretion, specify).
|
20.2
|
Clause does not affect the Lender's other rights
|
(a)
|
the Lender's rights if an Event of Default or Potential Event of Default has occurred; or
|
(b)
|
the Lender's right at any time to terminate a Facility which is ‘on demand’, by making a demand for payment in full.
|
21
|
Interest on Overdue Amounts
|
21.1
|
Accrual and payment
|
(a)
|
(Accrual) Interest accrues on each unpaid amount which is due and payable by an Obligor under or in respect of any Finance Document (including interest under this clause):
|
(i)
|
on a daily basis up to the date of actual payment from (and including) the due date or, in the case of an amount payable by way of reimbursement or indemnity, the date of disbursement or loss, if earlier;
|
(ii)
|
both before and after judgment (as a separate and independent obligation); and
|
(iii)
|
at the rate provided in clause 21.2 (Rate),
|
(b)
|
(Payment) Each Obligor shall pay interest accrued under this clause on demand and on the last Business Day of each calendar quarter. That interest is payable in the currency of the unpaid amount on which it accrues.
|
21.2
|
Rate
|
(a)
|
the rate (if any) applicable to the unpaid amount immediately before the due date; or
|
(b)
|
the sum of the Margin and the Lender’s cost of funds,
|
22
|
Indemnities and Break Costs
|
22.1
|
Indemnities
|
(a)
|
any Event of Default or breach of a Finance Document;
|
(b)
|
any Defect or Casualty Event;
|
(c)
|
any exercise or attempted exercise of any right, power or remedy under any Finance Document or any failure to exercise any right, power or remedy;
|
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Facility Agreement
|
|
(d)
|
the Secured Property or the existence of any interest in or control, right, power or remedy with respect to the Secured Property;
|
(e)
|
a Drawing requested in a Drawdown Notice not being provided for any reason (including failure to fulfil a condition precedent but excluding default by the Lender);
|
(f)
|
the Lender receiving payments of principal in respect of any Drawing before the end of the relevant Funding Period or the last day of any period under clause 22.2 (Interest on overdue amounts) for any reason, including prepayment in accordance with this Agreement; or
|
(g)
|
the Lender acting in connection with a Finance Document in good faith on email or facsimile instructions purporting to originate from the offices of the Borrower or to be given by an Authorised Officer of the Borrower.
|
22.2
|
Break costs
|
(a)
|
If the Lender receives or recovers all or part (the Received Amount) of any Drawing or overdue amount before the last day of its Funding Period, on demand the Borrower shall pay the Lender the PGK Equivalent amount (if any) by which:
|
(i)
|
the interest which the Lender should have received on the Received Amount for the period from the date of receipt or recovery of the Received Amount to the last day of its current Funding Period, had it not been paid until that last day;
|
(ii)
|
the interest which the Lender determines that it would obtain by placing an amount equal to the Received Amount on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on that last day.
|
(b)
|
If for any reason the Borrower revokes, or fails to draw in accordance with, a notice given by it, then on demand it must pay the amount which would have been payable under paragraph (a) if the Drawing had been drawn down and prepaid on the specified drawdown day.
|
(c)
|
Without limitation the indemnity under clause 22.1 will cover any amount determined by the Lender to be incurred by reason of the liquidation or re-employment of deposits or other funds acquired or contracted for by the Lender to fund or maintain any amount (including loss of margin) and by reason of the termination or reversing of any agreement or arrangement entered into by the Lender to fix, hedge or limit its effective cost of funding or maintaining any accommodation under this Agreement or any amount.
|
23
|
'Know Your Customer' Checks
|
24
|
Currency Indemnity
|
24.1
|
General
|
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Facility Agreement
|
|
(a)
|
the Lender receives or recovers an amount in one currency (the Payment Currency) in respect of an amount denominated under a Finance Document in another currency (the Due Currency); and
|
(b)
|
the amount actually received or recovered by the Lender in accordance with its normal practice when it converts the Payment Currency into the Due Currency is less than the relevant amount of the Due Currency.
|
24.2
|
Reimbursement
|
25
|
Expenses
|
(a)
|
its reasonable expenses in relation to the preparation, execution and completion of the Finance Documents and any subsequent consent, agreement, approval, waiver or amendment; and
|
(b)
|
its expenses in relation to:
|
(i)
|
any actual or contemplated enforcement of the Finance Documents, or the actual or contemplated exercise, preservation or consideration of any rights, powers or remedies under the Finance Documents or in relation to the Secured Property; and
|
(ii)
|
any enquiry by a Government Agency concerning any Obligor or the Secured Property or a transaction or activity the subject of the Finance Documents or in connection with which, financial accommodation or funds raised under a Finance Document are used or provided.
|
26
|
Stamp Duties and GST
|
26.1
|
Stamp duties
|
(a)
|
Each Obligor shall pay or reimburse the Lender on demand for all stamp, transaction, registration and similar Taxes (including fines and penalties) on or in relation to the execution, delivery, performance or enforcement of any Finance Document or any payment, receipt or other transaction contemplated by any Finance Document.
|
(b)
|
Each Obligor shall indemnify the Lender on demand against any liability resulting from delay or omission to pay those Taxes except to the extent the liability results from failure by the Lender to pay any Tax after having been put in funds (with all necessary documents) to do so by an Obligor.
|
26.2
|
GST
|
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|
|
(a)
|
If all or part of any such payment is the consideration for a taxable supply for GST purposes then, when an Obligor makes the payment:
|
(i)
|
it must pay to the Lender an additional amount equal to that payment (or part) multiplied by the appropriate rate of GST (currently 10%); and
|
(ii)
|
the Lender will promptly provide to an Obligor a tax invoice complying with the relevant GST legislation.
|
(b)
|
Where under this Agreement or any other Finance Document an Obligor is required to reimburse or indemnify for an amount, the Obligor will pay the relevant amount (including any sum in respect of GST) less any GST input tax credit the Lender determines that it is entitled to claim in respect of that amount.
|
27
|
Set‑Off
|
(a)
|
The Lender may apply at any time any credit balance in any currency (whether or not matured) in any account of an Obligor with any branch of the Lender towards satisfaction of any sum then due and payable by it to the Lender under or in relation to any Finance Document. The Lender need not make the application.
|
(b)
|
The Lender may exchange currencies to make that application.
|
28
|
Waivers, Remedies Cumulative
|
(a)
|
No failure to exercise and no delay in exercising any right, power or remedy under any Finance Document operates as a waiver, nor does any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.
|
(b)
|
The rights, powers and remedies provided to the Lender in the Finance Documents are in addition to, and do not exclude or limit, any right, power or remedy provided by law.
|
29
|
Severability of Provisions
|
30
|
Survival of Obligations
|
(a)
|
(Representations and warranties) Each representation or warranty in a Finance Document survives the execution and delivery of the Finance Documents and the provision of financial accommodation.
|
(b)
|
(Indemnity) Each indemnity, reimbursement or similar obligation in a Finance Document (including clause 11 (Taxation) and 12 (Change in Law):
|
(i)
|
is a continuing, separate and independent obligation;
|
(ii)
|
is payable on demand; and
|
(iii)
|
survives termination or discharge of the relevant Finance Document and repayment of financial accommodation.
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Facility Agreement
|
|
31
|
Personal properties securities law
|
31.1
|
PPSA security interests
|
(a)
|
If a Finance Document (or a transaction in connection with it) is or contains a security interest for the purposes of the PPSA, each Obligor agrees that to the extent the law permits them to be excluded or waived:
|
(i)
|
any provision of the PPSA may be excluded by the relevant secured party giving notice to the grantor that that provision is excluded; and
|
(ii)
|
the Lender need not give any notice required under any provision of the PPSA.
|
(b)
|
If the Lender determines that a Finance Document (or a transaction in connection with it) is or contains a security interest, each Obligor agrees to do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which the Lender asks and considers necessary for the purposes of:
|
(i)
|
ensuring that the security interest is enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective; or
|
(ii)
|
enabling the Lender to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by the Lender; or
|
(iii)
|
enabling the Lender to exercise rights in connection with the security interest.
|
31.2
|
PPSA undertaking
|
31.3
|
Costs of further steps and undertaking
|
31.4
|
General PPSA provisions
|
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Facility Agreement
|
|
(a)
|
In this clause 31, security interest has the meaning given to it in the PPSA.
|
(b)
|
This clause 31 applies despite any other clause in a Finance Document.
|
32
|
Moratorium Legislation
|
(a)
|
lessens, varies or affects in favour of an Obligor any obligation under a Finance Document; or
|
(b)
|
delays, prevents or prejudicially affects the exercise by the Lender of any right, power or remedy conferred by a Finance Document,
|
33
|
Assignments
|
33.1
|
Assignment by Obligor
|
33.2
|
Assignment by Lender
|
33.3
|
Securitisation
|
33.4
|
Disclosure
|
(a)
|
without the consent of any Obligor, disclose to any ratings agency or Government Agency; or
|
(b)
|
with the prior consent of the Borrower (who shall not unreasonably withhold that consent) disclose to a proposed assignee, transferee or sub‑Lender,
|
33.5
|
No increased costs
|
33.6
|
Execution of further documentation
|
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Facility Agreement
|
|
34
|
Notices
|
34.1
|
Notices
|
(a)
|
All notices, requests, demands, consents, approvals, agreements or other communications to or by a party to this Agreement (each a Notice) (whether being given under this Agreement or under another Finance Document):
|
(i)
|
must be in writing signed by an Authorised Officer of the sender (or in the case of an email message, sent from the email address of an Authorised Officer of the sender); and
|
(ii)
|
will be conclusively taken to be given or made when delivered, received or left at the address, fax number or email address of the recipient shown in Schedule 1 (Notice Details) or to any other address or fax number which it may have notified the sender.
|
(b)
|
A Notice is given and received:
|
(i)
|
if it is hand delivered:
|
(A)
|
by 4.00pm (local time in the place of receipt) on a Business Day – on that day; or
|
(B)
|
after 4.00pm (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day – on the next Business Day; and
|
(ii)
|
if it is sent by fax:
|
(A)
|
by 4.00pm (local time in the place of receipt, equivalent to the time shown on the transmission confirmation report produced by the fax machine from which it was sent) on a Business Day – on that day; or
|
(B)
|
after 4.00pm (local time in the place of receipt, equivalent to the time shown on the transmission confirmation report produced by the fax machine from which it was sent) on a Business Day, or on a day that is not a Business Day – on the next Business Day; and
|
(iii)
|
if it is sent by post:
|
(A)
|
within Papua New Guinea – three Business Days after posting; or
|
(B)
|
to or from a place outside Papua New Guinea – seven Business Days after posting.
|
34.2
|
Notices sent by email
|
(a)
|
Any Notice which may be given or made under this Agreement or any other Finance Document may instead be sent by email if:
|
(i)
|
the Notice is purported to be sent by an Authorised Officer of the sender;
|
(ii)
|
the Notice is sent to the email address last notified by the intended recipient to the sender: and
|
(iii)
|
the sender keeps an electronic copy of the Notice sent.
|
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Facility Agreement
|
|
(b)
|
Where a Notice required to be provided by an Obligor under this Agreement or a Finance Document has been given by email in accordance with this clause, the sender must promptly provide:
|
(i)
|
the original of any Drawdown Notice to the Lender; and
|
(ii)
|
for any other Notice, the original of that Notice to the Lender and any other relevant person upon request.
|
34.3
|
Receipt of Notices sent by email
|
(a)
|
receipt by the sender of an email acknowledgement from the recipient’s information system showing that the Notice has been delivered to the email address stated above;
|
(b)
|
the time that the Notice enters an information system which is under the control of the recipient; and
|
(c)
|
the time that the Notice is first opened or read by an employee or officer of the recipient,
|
35
|
Confidentiality
|
35.1
|
Confidentiality
|
35.2
|
Permitted disclosure
|
(a)
|
if allowed or required by law;
|
(b)
|
if required by any securities exchange or any rating agency;
|
(c)
|
if required under a binding order of a Government Agency;
|
(d)
|
by the Lender in enforcing a Finance Document or in a proceeding arising out of or in connection with a Finance Document or to the extent that disclosure is regarded by the Lender as necessary to protect its interests;
|
(e)
|
if the information is in the public domain;
|
(f)
|
by the Lender to its agents, auditors, employees and officers or to any controller appointed by the Lender to an Obligor;
|
(g)
|
to the professional advisers or consultants of any party involved in connection with the Finance Documents who are bound by a duty or obligation of confidence;
|
(h)
|
to an Associate of the Lender, Borrower or Guarantor in which case this clause 35.2 will apply to that Associate;
|
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|
|
(i)
|
to an entity whom the Lender assigns, transfers, novates, sub-participates or sells-down by whatever form (or may potentially assign, transfer, novate, sub-participate or sell-down) all or any of its rights and/or obligations under any Finance Document;
|
(j)
|
with the prior written consent of the party providing the information; or
|
(k)
|
as expressly required or permitted by any Finance Document.
|
35.3
|
Privacy Statement
|
35.4
|
Survival of obligation
|
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Facility Agreement
|
|
36
|
Authorised Officers
|
37
|
Governing law and jurisdiction
|
38
|
Counterparts
|
39
|
Acknowledgement by each Obligor
|
(a)
|
it has not entered into any Finance Document in reliance on, or as a result of, any conduct of any kind of or on behalf of the Lender or any Related Entity of the Lender (including any advice, warranty, representation or undertaking); and
|
(b)
|
neither the Lender nor any Related Entity of the Lender is obliged to do anything (including disclose anything or give advice),
|
40
|
Borrower as agent
|
(a)
|
the Borrower on its behalf to:
|
(i)
|
supply all information concerning itself contemplated by this Agreement and the other Finance Documents to the Lender;
|
(ii)
|
give all notices, certificates, instructions or other communications to the Lender; and
|
(iii)
|
execute on its behalf any notice or other agreement or deed or to effect any relevant consents, waivers, amendments or variations arising out of, under or in connection with any Finance Document, notwithstanding that they may affect the Guarantor, without further reference to or the consent of the Guarantor; and
|
(b)
|
the Lender to give any notice, demand or other communication to it pursuant to this Agreement or any other Finance Document to the Borrower,
|
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43
|
Facility Agreement
|
|
(a)
|
Each Obligor agrees that the Lender may delay, block or refuse to process any transaction without incurring any liability if the Lender suspects that:
|
(i)
|
the transaction may breach any law in Papua New Guinea or any other country; or
|
(ii)
|
the transaction may directly or indirectly involve the proceeds of, or be applied for the purposes of, unlawful conduct.
|
(b)
|
Each Obligor must provide all information to the Lender which the Lender reasonably requires in order to manage anti-money laundering or counter-terrorism financing risk or to comply with any laws in Papua New Guinea or any other country. Each Obligor agrees that the Lender may disclose any information concerning the Obligors to:
|
(i)
|
any law enforcement, regulatory agency or court where required by an such law, in Papua New Guinea or elsewhere; or
|
(ii)
|
any correspondent or agent the Lender uses to make the payment for the purpose of compliance with any such law.
|
(c)
|
Each Obligor warrants that it is acting on its own behalf in entering into the Finance Documents. Each Obligor declares and undertakes to the Lender that the payment of money by the Lender in accordance with its (or any other Obligor's) instructions will not breach any anti-money laundering or counter-terrorism financing laws in Papua New Guinea or any other country where the Facility (or amounts drawn under the Facility) may be used.
|
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|
44
|
Facility Agreement
|
|
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|
45
|
Facility Agreement
|
|
Item
|
Description
|
Make
|
Model
|
YOM
|
Serial Number
|
VIN
|
Engine Number
|
Unit
Number
|
1
|
Komatsu HM400-3 Truck
|
KOMATSU
|
HM400-3
|
2015
|
3824
|
|
|
AT542
|
2
|
Komatsu HM400-3 Truck
|
KOMATSU
|
HM400-3
|
2015
|
3827
|
|
|
AT543
|
3
|
Komatsu HM400-3 Truck
|
KOMATSU
|
HM400-3
|
2015
|
3825
|
|
|
AT544
|
4
|
Komatsu HM400-3 Truck
|
KOMATSU
|
HM400-3
|
2015
|
3807
|
|
|
AT545
|
5
|
Komatsu HM400-3 Truck
|
KOMATSU
|
HM400-3
|
2015
|
3805
|
|
|
AT546
|
6
|
Komatsu HD785-7 Dump Truck
|
KOMATSU
|
1-10785-7
|
2011
|
9436
|
|
|
DT332
|
7
|
Komatsu HD785-7 Dump Truck
|
KOMATSU
|
HD785-7
|
2013
|
30703
|
|
|
DT336
|
8
|
Komatsu HD785-7 Dump Truck
|
KOMATSU
|
HD785-7
|
2013
|
30623
|
|
|
DT335
|
9
|
Komatsu 10785-7 Dump Truck
|
KOMATSU
|
HD785-7
|
2011
|
9642
|
|
|
DT334
|
10
|
Komatsu HD785-7 Dump Truck
|
KOMATSU
|
HD785-7
|
2011
|
9610
|
|
|
DT333
|
11
|
Komatsu HD785-7 Dump Truck
|
KOMATSU
|
HD785-7
|
2012
|
30311
|
|
|
DT337
|
12
|
Komatsu HD785-7 Dump Truck
|
KOMATSU
|
HD785-7
|
2012
|
30252
|
|
|
DT338
|
13
|
Komatsu HD785-7 Dump Truck
|
KOMATSU
|
HD785-7
|
2012
|
30307
|
|
|
DT339
|
14
|
Komatsu 10785-7 Dump Truck
|
KOMATSU
|
HD785-7
|
2012
|
30257
|
|
|
DT340
|
15
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2014
|
29009996
|
|
|
DT341
|
16
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2014
|
29030397
|
|
|
DT342
|
17
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2014
|
29030420
|
|
|
DT343
|
18
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2014
|
29009982
|
|
|
DT344
|
19
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2014
|
29009988
|
|
|
DT345
|
20
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2012
|
8962
|
|
|
DT346
|
21
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2012
|
9287
|
|
|
DT347
|
22
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2012
|
8944
|
|
|
DT348
|
23
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2011
|
8863
|
|
|
DT349
|
24
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2012
|
9349
|
|
|
DT350
|
25
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2012
|
9284
|
|
|
DT351
|
26
|
Komatsu PC 1250-8R
|
KOMATSU
|
PC 1250-8R
|
2017
|
EX653
(35795
|
|
|
EX653
|
27
|
Komatsu PC 1250-8R
|
KOMATSU
|
PC 1250-8R
|
2017
|
EX654
35819
|
|
|
EX654
|
28
|
Komatsu PC2000
Excavator
|
KOMATSU
|
PC2000-8
|
2014
|
20515
|
|
|
EX706
|
29
|
Komatsu GD825 Grader SG404
|
KOMATSU
|
GD825-2
|
2013
|
i2913
|
|
|
SG404
|
30
|
Service Truck HD465-7E
|
KOMATSU
|
HD465-7E1
|
|
20016
|
|
|
ST504
|
atsb A0142794850v8 120769650 18.10.2019
|
46
|
Facility Agreement
|
|
Item
|
Description
|
Make
|
Model
|
YOM
|
Serial Number
|
VIN
|
Engine Number
|
Unit
Number
|
31
|
Service Truck
HD465-7E
|
KOMATSU
|
HD465-7E1
|
2013
|
20010
|
|
|
ST503
|
32
|
Komatsu D275A-5R
|
KOMATSU
|
D275A-5R
|
2014
|
TD607
45070
|
|
|
TD607
|
33
|
Komatsu D275A-5R
|
KOMATSU
|
D275A-5R
|
2014
|
TD606
45094
|
|
|
TD606
|
34
|
Komatsu D275A-5R
|
KOMATSU
|
D275A-5R
|
2017
|
TD608
(45188
|
|
|
TD608
|
35
|
Komatsu D375A-6R
|
KOMATSU
|
D375A-6R
|
2014
|
TD707
65559
|
|
|
TD707
|
36
|
Wheel Excavator R210W-9
|
HYUNDAI
|
ROBEX210W9
|
|
ROBEX210W
_9 0442
|
|
|
WE-201
|
37
|
Komatsu WA900 Wheel Loader
|
KOMATSU
|
WA900-3
|
2012
|
60217
|
|
|
WL604
|
38
|
Komatsu 10785-7 Truck
|
KOMATSU
|
HD785-7
|
2013
|
30581
|
|
|
|
39
|
Komatsu HD785-7 Truck
|
KOMATSU
|
HD785-7
|
2013
|
30582
|
|
|
|
40
|
All Terrain Crane
|
GROVE
|
Grove5250L (250T)
|
2018
|
52506015
|
W09250560JWG12015
|
|
CN07
|
41
|
25T Terrex
Franna Crane
|
TERRE-X
|
MAC 25T
(25T Franna
Crane
|
2018
|
251164
|
|
|
CN06
|
42
|
D65 Drill
|
ATLAS
COPCO
|
D65 Drill
|
2018
|
TMG17SEDO
506
|
|
|
SD503
|
43
|
D65 Drill
|
ATLAS
COPCO
|
065 Drill
|
2018
|
TMG17SEDO
509
|
|
|
SD504
|
44
|
Cat Excavatar
6030
|
Cat
|
6030
|
2015
|
|
|
|
EX801
|
45
|
Prime Movers (Iveco Astra)
|
Iveco
|
ASTRA
HD9EU3
66.48T Truck-Tractors-6x6-H2166
|
2018
|
ZCNH96639F PC04762
|
|
F3BE0681E**B191-240332
|
|
46
|
Prime Movers (Iveco Astra)
|
Iveco
|
ASTRA
HD9EU3
66.48T Truck-Tractors-6x6-H2165
|
2018
|
ZCNH96637F PC04761
|
|
F3BE0681**B191-240300
|
|
47
|
Prime Movers (Iveco Astra)
|
Iveco
|
HD9EU3
66.48T Truck-Tractors-6x6-H2167
|
2018
|
ZCNH96630F PC04763
|
|
F3BE0681E**B191-240323
|
|
48
|
Prime Movers (Iveco Astra)
|
Iveco
|
ASTRA
HD9EU3
66.48T Truck-Tractors-6x6-H2168
|
2018
|
ZCNH96632F PC04764
|
|
F3BE0681E**B191-240273
|
|
49
|
Bus Enduro 4 x 4 Toyota
|
Toyota
|
4x4 16 Seater
Coaster
|
2018
|
|
JTGFP728106600222
|
N04CUH21673
|
|
50
|
Bus Enduro 4 x 4 Toyota
|
Toyota
|
4x4 16 Seater
Coaster
|
2018
|
|
JTGFP728X06600235
|
N04CUH21781
|
|
51
|
Bus Enduro 4 x 4
Toyota
|
Toyota
|
4x4 16
Coaster
|
2018
|
|
JTGFP728106600267
|
N04CUH21859
|
|
52
|
Bus Enduro 4 x 4 Toyota
|
Toyota
|
4x4 16 Seater
Coaster
|
2018
|
|
JTGFP728606600247
|
N04CUH21810
|
|
53
|
Bus Enduro 4 x 4 Toyota
|
Toyota
|
4x4 16 Seater
Coaster
|
2018
|
|
JTGFP728906600260
|
N04CUH21830
|
|
54
|
Bus Enduro 4 x 4
Toyota
|
Toyota
|
4x4 16 Seater
Coaster
|
2018
|
|
JTGFP728406600179
|
N04CUH21397
|
|
55
|
Bus Endur04 x 4
Toyota
|
Toyota
|
4x4 16 Seater
Coaster
|
2018
|
|
JTGFP728206600245
|
N04CUH21806
|
|
56
|
Bus Enduro 4 x 4 Toyota
|
Toyota
|
4x4 16 Seater
Coaster
|
2018
|
|
JTGFP728406600134
|
8155695
|
|
atsb A0142794850v8 120769650 18.10.2019
|
47
|
Facility Agreement
|
|
atsb A0142794850v8 120769650 18.10.2019
|
48
|
Facility Agreement
|
|
1
|
Executed Finance Documents
|
2
|
Verification Certificate
|
3
|
Consents and BPNG Authorisation
|
(a)
|
Authority of the Bank of Papua New Guinea, for the Borrower to enter into the Facility Agreement (being an agreement which creates an obligation in favour of the Lender, in a foreign currency).
|
(b)
|
The consent of each relevant Government Agency to the entry into and performance of (and if relevant, registration of) each Finance Document that is required by law or considered necessary or desirable by the Lender.
|
4
|
Registration of Securities
|
(a)
|
Evidence that each security interest created under the Specific Security Deed has been registered on each relevant register in Papua New Guinea.
|
(b)
|
Evidence that all registered Securities over the Secured Property (other than in favour of the Lender) have been or will be released on or before the first Drawdown Date except any Security permitted by clause 16.2(c) (Negative pledge).
|
(c)
|
Each document necessary to register:
|
(i)
|
each Ancillary Security in an appropriate register; and
|
(ii)
|
any other Finance Document with each relevant Government Agency,
|
5
|
Stamping
|
(a)
|
evidence that no Finance Document is liable to stamp duty; or
|
(b)
|
for each Finance Document which is liable to duty and has not been duly stamped for the full amount of all advances which may be made under this Agreement, evidence that it has been or will be lodged for stamping with the appropriate relevant Government Agency with a cheque or other appropriate remittance for the full amount of duty payable.
|
6
|
Secured Property
|
7
|
Title Documents
|
atsb A0142794850v8 120769650 18.10.2019
|
49
|
Facility Agreement
|
|
8
|
Opinions
|
(a)
|
An Australian law opinion of Allens, legal advisers to the Lender, in relation to the Finance Documents.
|
(b)
|
A Papua New Guinea law opinion of Allens, legal advisers to the Lender, in relation to the Finance Documents.
|
9
|
Valuation
|
10
|
Insurance
|
11
|
Fees and expenses
|
12
|
Anti-money laundering – 'Know Your Customer' Requirements
|
13
|
Major transaction
|
14
|
Foreign enterprise
|
15
|
Other information
|
atsb A0142794850v8 120769650 18.10.2019
|
50
|
Facility Agreement
|
|
1
|
We wish to draw under the Facility on [*] (the Drawdown Date).
|
2
|
The total principal amount to be drawn is USD[*].
|
3
|
Please remit the proceeds to account number [*] at [*].
|
4
|
We represent and warrant on behalf of the Borrower and the Guarantor as follows.
|
(a)
|
[Except as disclosed in paragraph (c)] the representations and warranties in the Facility Agreement are true as though they had been made at the date of this Drawdown Notice in respect of the facts and circumstances then subsisting.
|
(b)
|
[Except as disclosed in paragraph (c)] no Event of Default [or Potential Event of Default] continues or will result from the drawing.
|
(c)
|
[Details of the exceptions to paragraphs (a) and (b) are as follows: [*], and we [have taken/propose] the following remedial action [*].]
|
atsb A0142794850v8 120769650 18.10.2019
|
51
|
Facility Agreement
|
|
1
|
[In relation to the Borrower] Extracts of minutes of a meeting of directors of the Company authorising the execution and delivery of, and performance of the Company's obligations under, each Finance Document to which it is expressed to be a party explaining why the directors believe it is in the best interests and commercial benefit of, the Company.
|
2
|
[In relation to the Borrower] Extracts of minutes of a meeting of all members of the Company authorising execution of any Finance Document to which it is expressed to be a party relating to the above facility. Such resolutions have not been amended, modified or revoked and are in full force and effect.
|
3
|
[In relation to the Borrower] A certificate of incorporation and constituent documents for the Company, if they are not already held by the Lender.
|
4
|
Specimen signatures of all those authorised to give [drawdown and other] notices for the Company[ or to sign the Finance Documents], if they are not already held by the Lender.
|
5
|
[The following Authorisations:
|
(a)
|
[*];
|
(b)
|
[*]
|
6
|
][[*]
|
1
|
[In relation to the Borrower] [the Company does not have a constitution;
|
2
|
]the Company is solvent and will not become insolvent as a result of the entry into and performance of the Facility Agreement;
|
3
|
[In relation to the Borrower] no Security is registered against Approved Equipment under the PPSA on the date of this certificate;
|
atsb A0142794850v8 120769650 18.10.2019
|
52
|
Facility Agreement
|
|
4
|
no Event of Default or Potential Event of Default has occurred;
|
5
|
the Company and the Project is in compliance with all applicable Environmental Laws and Equator Principles; and
|
6
|
nothing has occurred that might reasonably be expected to give rise to a Material Adverse Effect.
|
|
|
|
Director Signature
|
|
Director Signature
|
|
|
|
Print Name
|
Print Name
|
atsb A0142794850v8 120769650 18.10.2019
|
53
|
Facility Agreement
|
|
atsb A0142794850v8 120769650 18.10.2019
|
54
|
Facility Agreement
|
|
The Common Seal of Morobe Consolidated Goldfields Limited was affixed in the presence of:
|
|
|
/s/ JJ van Heerden
|
|
/s/ Aubrey Testa
|
Director Signature
|
|
Director Signature
|
JJ van Heerder
|
Aubrey Testa
|
|
Print Name
|
Print Name
|
Executed in accordance with section 127 of the Corporations Act 2001 by Harmony Gold (Australia) Pty Ltd:
|
|
|
/s/ JJ van Heerden
|
|
/s/ D Lightfoot
|
Director Signature
|
|
Director/Secretary Signature
|
JJ van Heerden
|
D Lightfoot
|
|
Print Name
|
Print Name
|
Signed for Westpac Bank – PNG – Limited by its attorneys under power of attorney in the presence of:
|
|
|
/s/ Kenneth Bali
|
|
/s/ Yangung Meraudje
|
Witness Signature
|
|
Attorney Signature
|
Kenneth Bali
|
Yangung Meraudje
|
|
Print Name
|
Print Name
|
|
|
|
/s/ Adrian Huges
|
|
|
Attorney Signature
|
|
Adrian Huges
|
|
|
Print Name
|
atsb A0142794850v8 120769650 18.10.2019
|
55
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
In the DSP, unless the context indicates otherwise, the following words and expressions will have the meanings assigned thereto:
|
1.1.1
|
Administrator means a service provider appointed by an Employer Company to act on behalf of that Employer Company in performing the obligations of that Employer Company in terms of the DSP;
|
1.1.2
|
Applicable Laws in relation to any person or entity, all and any statutes, subordinate legislation and common law; regulations; ordinances and by‑laws; accounting standards; directives, codes of practice, circulars, guidance notices, judgments and decisions of any competent authority, compliance with which is mandatory for that person or entity;
|
1.1.3
|
Award means the award to an Eligible Employee of Deferred Shares in terms of clause 12 and the word “awarded” shall be construed accordingly;
|
1.1.4
|
Award Date means the date on which Remco resolves to make an Award to an Eligible Employee;
|
1.1.5
|
Award Letter means the letter delivered by an Employer Company to an Eligible Employee in terms of clause 12.2, notifying such Eligible Employee of an Award and setting out the terms of the Award;
|
1.1.6
|
Award Price means a value that is determined by using the volume weighted average share price of a Share on the JSE over the five Business Days immediately prior to the Award Date;
|
1.1.7
|
Award Value means the ZAR value of that portion of the incentive that will take the form of Deferred Shares in accordance with the provisions of the DSP;
|
1.1.8
|
Auditors means the registered auditors of the Company from time to time;
|
1.1.9
|
Board means the board of directors of the Company or any committee thereof to whom the powers of the board of directors of the Company in respect of the Total Incentive Plan are delegated;
|
1.1.10
|
Broker means the financial intermediary appointed by the Company or the Employer Company to perform the services specified in the DSP on behalf of the Participants;
|
1.1.11
|
Business Day means any day on which the JSE is open for the transaction of business;
|
1.1.12
|
Change of Control means all circumstances where a party (or parties acting in concert), directly or indirectly, obtains ‑
|
1.1.12.1
|
beneficial ownership of the specified percentage or more of the Company's issued Shares; or
|
1.1.12.2
|
control of the specified percentage or more of the voting rights at meetings of the Company; or
|
1.1.12.3
|
the right to control the management of the Company or the composition of the Board; or
|
1.1.12.4
|
the right to appoint or remove directors holding a majority of voting rights at Board meetings; or
|
1.1.12.5
|
the approval by the Company's shareholders of, or the consummation of, a merger or consolidation of the Company with any other business or entity, or upon a sale of the whole or a major part of the Company's assets or undertaking.
|
1.1.13
|
Companies Act means the South African Companies Act, 71 of 2008;
|
1.1.14
|
Company means Harmony Gold Mining Company Limited, a public company duly incorporated and registered in accordance with the laws of the Republic of South Africa under registration number 1950/038232/06;
|
1.1.15
|
Deferred Shares means a conditional right to receive Shares, the Vesting of which is subject to continued employment, as specified in an Award Letter;
|
1.1.16
|
DSP means the Harmony Gold Mining Company Limited Deferred Share Plan 2018, established in terms of these Rules;
|
1.1.17
|
Date of Termination of Employment means the date upon which a Participant is no longer employed by, or ceases to hold salaried office in, any Employer Company; provided that, where a Participant's employment is terminated without notice or on terms in lieu of notice, the Date of Termination of Employment shall be deemed to occur on the date on which the termination takes effect, and where such employment is terminated with notice, the Date of Termination of Employment shall be deemed to occur upon the date on which that notice expires;
|
1.1.18
|
Dismissal based on Operational Requirements means the Retrenchment of a Participant based on the Employer Company’s economic, technological, structural or similar needs;
|
1.1.19
|
Eligible Employee means an Employee eligible for participation in the Total Incentive Plan, namely a Prescribed Officer, Executive Manager or Manager of any member of the Group; [Sch 14.1(a)]
|
1.1.20
|
Employee means any person holding full-time salaried employment or office (including any executive director but excluding a non-executive director) with any Employer Company; [Sch 14.1(a)]
|
1.1.21
|
Employer Company means the specific entity (which includes both local and foreign entities) within the Group that is the employer of a particular Participant;
|
1.1.22
|
Executive Manager means an Employee identified and disclosed as an executive manager by the Remco for purposes of the Total Incentive Plan;
|
1.1.23
|
Fault Termination means the termination of employment of a Participant by the Group by reason of-
|
1.1.23.1
|
misconduct;
|
1.1.23.2
|
poor performance; or
|
1.1.23.3
|
resignation by the Participant; [Sch 14.1(h)]
|
1.1.24
|
Financial Markets Act means the Financial Markets Act, 19 of 2012;
|
1.1.25
|
Financial Year means the Company’s financial year, which runs from 1 July to 30 June;
|
1.1.26
|
Group means the Company and any other company, body corporate or other undertaking which is or would be deemed to be a subsidiary of the Company in terms of the Companies Act, and the expression "member of the Group" shall be construed accordingly; [Sch 14.1(a)]
|
1.1.27
|
Ill-health means a physical, mental or psychological condition, including a disability or a condition caused by an injury, diagnosed by a Company approved Medical Practitioner, which renders the Employee incapable of performing his duties in terms of his employment contract;
|
1.1.28
|
Implementation Date in relation to a Change of Control, the date upon which such Change of Control becomes effective;
|
1.1.29
|
Income Tax Act means the South African Income Tax Act, 58 of 1962 or a similar Act promulgated in countries outside of South Africa;
|
1.1.30
|
JSE means the JSE Limited, a public company incorporated in accordance with the laws of the Republic of South Africa under registration number 2005/022939/06, which is licensed as an exchange in terms of the Financial Markets Act;
|
1.1.31
|
Listings Requirements means the JSE Limited Listings Requirements;
|
1.1.32
|
LRA means the Labour Relations Act, 66 of 1995, as amended or substituted;
|
1.1.33
|
Manager means an Employee identified and disclosed as a manager by the Remco for purposes of the Total Incentive Plan;
|
1.1.34
|
Medical Practitioner means a person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of the South African Parliament or its equivalent in countries outside of South Africa;
|
1.1.35
|
No Fault Termination means the termination of employment of a Participant by the Group by reason of -
|
1.1.35.1
|
death;
|
1.1.35.2
|
injury, disability or Ill‑health, in each case as certified by a qualified Medical Practitioner nominated by the relevant Employer Company;
|
1.1.35.3
|
dismissal based on Operational Requirements as contemplated in the LRA;
|
1.1.35.4
|
retirement on or after his Retirement Date;
|
1.1.35.5
|
the company by which he is employed ceasing to be a member of the Group;
|
1.1.35.6
|
the undertaking in which he is employed being transferred to a transferee which is not a member of the Group; [Sch 14.1(h)]
|
1.1.36
|
Notice means the notice contemplated in clause 14;
|
1.1.37
|
Participant means an Eligible Employee that receives an Award in terms of clause 12 and thereby becomes subject to the terms and conditions of the DSP;
|
1.1.38
|
Personal Information means personal information as defined in section 1 of the Protection of Personal Information Act, 4 of 2013;
|
1.1.39
|
Policy means the Harmony Total Incentive Plan Policy made in terms of clause 4, as amended by Remco from time to time;
|
1.1.40
|
Prescribed Officer means an Employee identified and disclosed as a prescribed officer by the Remco for purposes of the Total Incentive Plan, including the executive directors;
|
1.1.41
|
Remco means the Remuneration Committee of the Board or any person(s) to whom the powers of Remco in respect of the Total Incentive Plan have been delegated (but then only in accordance with the terms of such delegation), which persons do not hold any executive office within the Group; [Sch 14.4][Sch 14.5]
|
1.1.42
|
Retirement Date means the earliest date on which, or age at which, an Eligible Employee can be required to retire by any Employer Company;
|
1.1.43
|
Retrenchment means the termination of the employment of an Employee by virtue of the operational requirements of the Employer Company concerned;
|
1.1.44
|
Rules means these Rules, as amended from time to time;
|
1.1.45
|
Secretary means the company secretary for the time being of the Company;
|
1.1.46
|
Settle means delivery to the Participant of:
|
1.1.46.1
|
Shares:
|
1.1.46.2
|
a cash amount if a Participant fails to deliver a Notice in accordance with the provisions of clause 14.2, and the words "Settlement" and "Settled" shall be construed accordingly. It is recorded that any Shares which have been Settled to a Participant in terms of this DSP shall rank pari passu with Shares in all respects; [Sch 14.1(e)]
|
1.1.47
|
Shares means ordinary shares in the capital of the Company (or such other class of shares as may represent the same as a result of any reorganisation, reconstruction or other variation of the share capital of the Company to which the provisions of the DSP may apply from time to time);
|
1.1.48
|
Tax means any present or future tax or other charge of any kind or nature whatsoever imposed, levied, collected, withheld or assessed by any competent authority, and includes all income tax (whether based on or measured by income/revenue or profit or gain of any nature or kind or otherwise and whether levied under the Income Tax Act or otherwise), capital gains tax, value‑added tax and any charge in the nature of taxation, and any interest, penalty, fine or other payment on, or in respect thereof but specifically excluding issue duty, stamp duty, marketable securities tax and uncertificated securities tax;
|
1.1.49
|
Total Incentive Plan means the combined short-term and long-term incentive as set out in the Policy read with the Rules;
|
1.1.50
|
Trading Day means any day on which the Shares are capable of being traded on the JSE;
|
1.1.51
|
Vest means the moment when a Participant is entitled to Settlement in accordance with clause 14 and “Vested” and “Vesting” shall have equivalent meanings;
|
1.1.52
|
Vesting Date subject to clauses 12, 16.5 and 16; means the date on which a Participant is entitled to Settlement in accordance with clause 14 and the Policy; provided that if the date falls on a date which, or during a period which:
|
1.1.52.1
|
by virtue of any Applicable Law or any policy of the Group (including any corporate governance policy) it is not permissible to Settle Shares to a Participant; or
|
1.1.52.2
|
by virtue of any Applicable Law or any policy of the Group (including any corporate governance policy) it is not permissible for a Participant to receive or otherwise deal/trade in Shares, the Vesting Date shall be the fifth Trading Day after the date on which it becomes permissible to Settle Shares to a Participant and/or for the Participant to receive or deal/trade in Shares (as the case may be);
|
1.1.53
|
Vesting Period means the period which commences on the Award Date and terminates on the Vesting Date; and
|
1.1.54
|
ZAR means South African Rands, the lawful currency of the Republic of South Africa.
|
1.2
|
General Interpretation
|
1.2.1
|
clause headings are used for convenience only and shall be ignored in its interpretation;
|
1.2.2
|
unless the context clearly indicates a contrary intention, an expression which denotes ‑
|
1.2.2.1
|
any gender includes the other genders;
|
1.2.2.2
|
a natural person includes an artificial person (whether corporate or unincorporate) and vice versa;
|
1.2.2.3
|
the singular includes the plural and vice versa;
|
1.2.3
|
The DSP will be given effect to in accordance with:
|
1.2.3.1
|
the Companies Act;
|
1.2.3.2
|
the Listings Requirements, including paragraphs 3.63 to 3.74 and 3.92 to the extent applicable; and [Sch 14.9(d)]
|
1.2.4
|
unless the context clearly indicates a contrary intention, words and expressions defined in the Companies Act shall bear the meanings therein assigned to them;
|
1.2.5
|
all references to a statute and the Listings Requirements shall be to such statute and the Listings Requirements (as the case may be) as at the date of adoption of the DSP by the Company and as amended, replaced or superseded from time to time thereafter. References to “Sch” in the Rules are to Schedule 14 of the Listings Requirements;
|
1.2.6
|
the use of the word "including" or "includes" or "include" followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s;
|
1.2.7
|
the word "reacquired" when used in relation to an Award (or a portion of an Award) shall mean the acquisition and/or cancellation of such Award (or a portion of an Award) from a Participant by or on behalf of the Company for, where applicable, a total consideration at no par value where the such Award (or a portion of an Award) has been forfeited (in terms of clause 16) or lapsed (in accordance with clause 17) prior to Vesting;
|
1.2.8
|
a Participant who ceases to be employed by an Employer Company on the basis that he is ‑
|
1.2.8.1
|
immediately thereafter employed by another Employer Company; or
|
1.2.8.2
|
thereafter re‑employed by such Employer Company pursuant to it being determined that his employment was terminated on a basis which was not lawful in terms of the LRA; shall be deemed not to have terminated his employment for the purposes of the DSP and his rights shall be deemed to be unaffected; [Sch 14.1(h)]
|
1.2.9
|
a Participant who is a director of any Employer Company who retires and/or resigns on the basis that he is immediately re‑elected in accordance with the articles of association or other constitutional documents of that Employer Company shall be deemed not to have terminated his employment with that Employer Company. [Sch 14.1(h)]
|
1.3
|
If any provision in a definition is a substantive provision conferring any right or imposing any obligation on anyone then, notwithstanding that it is only in a definition, effect shall be given to it as if it were a substantive provision in the body of these Rules.
|
1.4
|
When any number of days is prescribed in these Rules, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or official public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or official public holiday.
|
2.
|
OBJECT
|
2.1
|
The DSP forms part of the Group’s Total Incentive Plan.
|
2.2
|
These Rules regulate the Share-Settled portion of the long-term component of the Total Incentive Plan. The short-term component of the Total Incentive Plan will take the form of a cash bonus.
|
2.3
|
These Rules should be read in conjunction with the Policy (which sets out the details of both the short-term and the long-term incentives), in order to gain a full understanding of the operation of the Total Incentive Plan.
|
2.4
|
The object and purpose of the DSP is to:
|
2.4.1
|
incentivise the Group’s Eligible Employees to meet strategic short-, medium- and long term objectives that will help deliver value to shareholders;
|
2.4.2
|
achieve alignment between the Participants’ remuneration and the interests of the Company’s shareholders; and
|
2.4.3
|
act as a retention mechanism in a market where highly skilled people are in high demand.
|
3.
|
THE DSP
|
4.
|
ADMINISTRATION OF THE DSP
|
4.1
|
Remco is responsible for the operation and administration of the DSP, and has discretion to decide whether and on what basis the DSP shall be operated.
|
4.2
|
Where the DSP refers to the discretion of Remco, such discretion shall be sole, absolute and unrestricted unless the contrary is expressed, provided that if Remco delegates the authority to exercise discretion, the discretion should be exercised in terms of the Policy.
|
4.3
|
Subject to the provisions of the DSP and to the approval of the Board, Remco shall be entitled to make and establish such rules and regulations, and to amend the same from time to time, as they may deem necessary or expedient for the proper implementation and administration of the DSP.
|
5.
|
ADMINISTRATOR
|
6.
|
ANNUAL ACCOUNTS
|
7.
|
AVAILABILITY OF SHARES
|
7.1
|
ensure that Shares may only be issued or purchased for purposes of the DSP once a Participant (or group of Participants) to whom they will be awarded has been formally identified; [Sch 14.9(a)]
|
7.2
|
ensure that any Shares held for purposes of the DSP will not have their votes at general/annual general meetings taken into account for the purposes of resolutions proposed in terms of the Listings Requirements or for purposes of determining categorisations as detailed in Section 9 of the Listings Requirements. [Sch 14.10]
|
8.
|
COSTS
|
8.1
|
Prior to the Vesting Date, all costs and expenses relating to the DSP, including for the avoidance of doubt, all costs relating to the Administrator, (“Costs”) will be for the Company’s account.
|
8.2
|
The Company may recover from each Employer Company such Costs as may be attributable to the participation of any of its Employees in the DSP.
|
8.3
|
Notwithstanding the provisions of clauses 8.1 and 8.2, the Company may procure, if applicable, that the relevant Employer Company shall ‑
|
8.3.1
|
bear all Costs of and incidental to the implementation and administration of the DSP and shall, as and when necessary, provide all requisite funds and facilities for that purpose;
|
8.3.2
|
provide all secretarial, accounting, administrative, legal and financial advice and services, office accommodation, stationery and so forth for the purposes of the DSP.
|
8.4
|
After the Vesting Date, all Costs and Tax will be for the Participant’s account.
|
8.5
|
The Participant shall be liable for all Tax payable as a result of benefits due to him in terms of the DSP.
|
9.
|
MAXIMUM NUMBER OF SHARES AVAILABLE FOR THE DSP
|
9.1
|
Subject to 9.3, the aggregate number of Shares that may be Settled under this DSP shall not exceed 25 000 000 Shares (being approximately 5% of the issued share capital of the Company). [Sch 14.1(b)]
|
9.2
|
Subject to 9.3 the maximum number of Shares which any one Participant may receive in terms of the DSP shall not exceed 3 000 000 (being approximately 0.6% of the issued share capital of the Company) Shares. [Sch 14.1(c)]
|
9.3
|
The limit referred to in 9.1 shall exclude:
|
9.3.1
|
Shares that have been purchased through the JSE in Settlement of Awards; and [Sch 14.9(c)]
|
9.3.2
|
Awards under the DSP which do not Vest in a Participant as a result of the forfeiture or reacquisition thereof. [Sch 14.3(f)]
|
9.4
|
The limit referred to in 9.1 shall include:
|
9.4.1
|
Shares that have been issued by the Company in Settlement of Awards; and
|
9.4.2
|
Shares held in treasury by a subsidiary of the Company that have been used to Settle Awards.
|
9.5
|
The number of Shares referred to in 9.1 and 9.2 shall be increased or reduced in direct proportion to any adjustment in the Company's issued share capital as provided for in clause 20. [Sch 14.3(a)]
|
9.6
|
In the event of a discrepancy between number of Shares and the percentage it represents, the number will prevail.
|
10.
|
AWARD POLICY AND PERFORMANCE CONDITIONS
|
10.1
|
Remco shall be entitled, subject to the provisions of the DSP and to the approval of the Board, to make and establish a Policy as it deems expedient or necessary for the proper implementation of the DSP.
|
10.2
|
Remco may, from time to time, amend the Policy, provided that the amendments take due account of prevailing market trends and what is regarded as “remuneration best practice” at the time of such amendments.
|
10.3
|
Subject to clauses 16 and 20, once an Award has been made, the Policy which pertains to that specific Award may not be amended or varied unless a change in circumstances has rendered such Policy inappropriate or inapplicable. No such amendment shall disadvantage and/or prejudice any Participant.
|
11.
|
ANNUAL REMCO DETERMINATION
|
11.1
|
Each year, Remco shall determine and (as contemplated in clause 10), if deemed appropriate, amend the Policy to record the following:
|
11.1.1
|
which Eligible Employees shall receive an Award;
|
11.1.2
|
the Award Date;
|
11.1.3
|
the Award Value (calculated in accordance with the Policy);
|
11.1.4
|
the number of Deferred Shares applicable to the Award (calculated in terms of clause 13); and
|
11.1.5
|
the Vesting Dates and Vesting Periods applicable to the Award
|
11.2
|
An Award made to an Eligible Employee will vest in equal tranches on more than one Vesting Date and over more than one Vesting Period.
|
11.3
|
Remco shall set out in the Policy the criteria on which Awards are based in terms of the DSP. The criteria shall be aligned with the strategic objectives of the Company and the DSP (as set out in clause 2 above).
|
12.
|
AWARDS
|
12.1
|
Remco may, in its sole and absolute discretion, resolve to make Awards to Eligible Employees. [Sch 14.1(f)]
|
12.2
|
The Employer Company shall, as soon as reasonably practicable on or after the Award Date, notify the Eligible Employee of the Award in an Award Letter. The Award Letter shall be in the form as prescribed by Remco from time to time and shall specify ‑
|
12.2.1
|
the Award Date;
|
12.2.2
|
the Award Value (calculated in accordance with the Policy);
|
12.2.3
|
the number of Deferred Shares applicable to the Award (calculated in terms of clause 13);
|
12.2.4
|
the Vesting Dates and Vesting Periods applicable to the Award;
|
12.2.5
|
the provisions of clauses 21 and 22;
|
12.2.6
|
a stipulation that the Award is subject to the provisions of these Rules; and
|
12.2.7
|
where a copy of the Rules might be obtained for perusal.
|
12.3
|
Subject to clause 16, an Award is (and Deferred Shares are) personal to a Participant and shall not be capable of being ceded, assigned, transferred or otherwise disposed of or encumbered by a Participant. [Sch 14.1(e)]
|
12.4
|
There shall be no consideration payable for the Award. [Sch 14.1(d)]
|
12.5
|
A Participant shall not be entitled to any dividends (or other distributions made) and shall have no right to vote in respect of Deferred Shares awarded to him in his Award, unless and until the Deferred Shares under his Award are Settled to him in accordance with the provisions of this DSP. [Sch 14.1(e)] [Sch 14.10]
|
12.6
|
A Prescribed Officer or an Executive Manager (as the case may be) must communicate his acceptance of an Award to his Employer Company. The obligations of an Employer Company under the DSP shall be postponed until such time as the Prescribed Officer or Executive Manager (as the case may be) has indicated his acceptance of the Award. The Employer Company will not be liable for any loss that may be suffered by such Prescribed Officer or Executive Manager (as the case may be) as a result of the postponement of its obligations in terms of this clause 12.6.
|
12.7
|
A Manager shall not be required to communicate his acceptance of an Award to his Employer Company. A Manager may reject an Award within ten days after the date of delivery of the relevant Award Letter to such Manager. An Award which is not rejected in accordance with this clause 12.6 shall automatically be deemed to have been accepted by such Manager.
|
12.8
|
An Award may be reacquired at any time after the Award Date if the Remco and Participants so agree in writing.
|
13.
|
CALCULATION OF DEFERRED SHARES
|
13.1
|
Subject to clause 14, the number of Deferred Shares attributable to an Award shall be calculated by dividing the Award Value by the Award Price and rounding-down the resultant number to the next whole number.
|
13.2
|
The number of Deferred Shares determine the number of Shares that a Participant has a conditional right to receive on the terms of, and subject to the conditions of, the DSP.
|
13.3
|
For the avoidance of doubt, the Award of the Deferred Shares does not constitute the issue of Shares nor does it give a Participant the right to Shares until and to the extent that the provisions of the DSP have been satisfied. Accordingly, the Deferred Shares are awarded on the understanding that the Deferred Shares may not be traded or used as security for any obligations and any attempt to trade in Deferred Shares or use them as security for any obligations shall result in the forfeiture of the relevant Deferred Shares. [Sch 14.1(e)]
|
14.
|
VESTING OF DEFERRED SHARES AND SETTLEMENT
|
14.1
|
Subject to clauses 16, 17, 20, 22, and 24, on the Vesting Date, a Participant shall have the right to Settlement of the number of Shares that equals the number of Deferred Shares calculated in terms of clause 13.
|
14.2
|
The Participant must provide his Employer Company with a Notice ten days before the Vesting Date, confirming that he wants his Award to be Settled in Shares and providing his Employer Company with the details of his brokerage account (“Brokerage Account”) in the Notice.
|
14.3
|
If the Participant:
|
14.3.1
|
fails to provide his Employer Company with a Notice in accordance with clause 14.2; or
|
14.3.2
|
fails to provide his Employer Company with the details of his Brokerage Account in his Notice in accordance with clause 14.2, on the Vesting Date, the Company shall instruct the Broker to sell the Participant’s Shares on the JSE and procure the payment by the relevant Employer Company to the Participant of a cash amount equal to the proceeds from the sale of the Shares (less any applicable Tax payable in accordance with clause 22). For the avoidance of doubt, the Shares sold for purposes of this clause 14.3, shall be sold as part of bulk sale and in calculating the amount of proceeds to be distributed to each Participant the Broker shall apply an average amount attributable to each Share sold in the bulk sale, determined in accordance with the following formula:
|
“Y”
|
represents the average amount of proceeds per Share sold as part of the bulk sale;
|
“E”
|
represents the total proceeds from the bulk sale of the Shares;
|
“F”
|
represents the total amount of costs and securities transfer taxes that are attributable to the bulk sale; and
|
“G”
|
represents the total Shares sold in the bulk sale.
|
14.4
|
For the avoidance of doubt, a Participant may not elect to receive a cash amount in lieu of Shares. A Participant will receive a cash payment (in accordance with clause 14.3) only if he fails to comply with the provisions of clause 14.2.
|
14.5
|
Notwithstanding 14.1, the Participant shall pay, in such manner as Remco may from time to time prescribe, any such additional amount of which Remco may notify the Participant in respect of any deduction on account of Tax as may be required by Applicable Laws which may arise on the Settlement of Shares to him.
|
15.
|
ACQUISITION OF SHARES
|
15.1
|
Subject to clause 22, if the Participant elects to be Settled in Shares (and complies with the provisions of clause 14.2), the Company shall instruct the Broker to procure that the number of Shares contemplated in 14.1 are transferred to the Participant’s Brokerage Account as soon as reasonably possible after the Vesting Date.
|
15.2
|
The Shares will be fully paid up and will rank pari passu with the existing issued Shares, and will have the same voting rights as the existing issued Shares. If the Shares are not yet allotted and issued, the Board will procure that they are allotted, issued and listed on the JSE upon issue. [Sch 14.1(e)]
|
15.3
|
The Participant shall have full ownership rights in the Shares delivered to his Brokerage Account.
|
15.4
|
The Participant shall be personally responsible for maintaining his Brokerage Account and paying all relevant fees associated therewith.
|
16.
|
CLAWBACK, REDUCTION OR FORFEITURE OF AWARD
|
16.1
|
Any Awards made to the Chief Executive Officer and Financial Director may be subject to reduction or forfeiture (in whole or in part) in accordance with section 304 of the Sarbanes Oxley Act, 2002 (“SOX”).
|
16.2
|
It is foreseeable that there may be a change in law (either in accordance with the Proposed Rule pertaining to “Listing Standards for Recovery of Erroneously Awarded Compensation” outlined in Federal Register, Vol 80, No. 134 dated 14 July 2015, or otherwise) that may extend the application of section 304 of SOX to all Prescribed Officers. If this takes place, any Awards made to Prescribed Officers may also be subject to reduction or forfeiture (in whole or in part) in accordance with section 304 of SOX.
|
16.3
|
Remco may exercise its discretion to determine that a Prescribed Officer’s or Executive Manager’s Award is subject to reduction or forfeiture (in whole or in part) if:
|
16.3.1
|
there is reasonable evidence of misbehaviour or material error by a Prescribed Officer or Executive Manager (as the case may be); or
|
16.3.2
|
the financial performance of the Group, the Company, the Employer Company or the relevant business unit for any Financial Year in respect of which an Award is based have subsequently appeared to be materially inaccurate; or
|
16.3.3
|
the Group, the Company, the Employer Company or the relevant business unit suffers a material downturn in its financial performance, for which the Prescribed Officer or Executive Manager (as the case may be) can be seen to have some liability; or
|
16.3.4
|
the Group, the Company, the Employer Company or the relevant business unit suffers a material failure of risk management, for which the Prescribed Officer or Executive Manager (as the case may be) can be seen to have some liability, or in any other circumstances if the Remco determines that it is reasonable to subject the Awards of one or more Prescribed Officers or Executive Managers (as the case may be) to reduction or forfeiture.
|
16.4
|
To the extent that this clause 16 applies to a Prescribed Officer or Executive Manager (as the case may be), the Remco shall determine if the Prescribed Officer’s or Executive Manager’s (as the case may be) Award shall be forfeited in whole or in part and, if Remco does so determine that all or a portion of the Prescribed Officer’s or Executive Manager’s (as the case may be) Award shall be forfeited, that Award shall be forfeited with effect from the date of the determination.
|
16.5
|
Remco may postpone the Vesting Date in respect of any Prescribed Officer or Executive Manager (as the case may be) if, at the Vesting Date, there is an ongoing investigation or other procedure being carried on to determine whether the forfeiture provisions apply in respect of a Prescribed Officer or Executive Manager (as the case may be), or the Remco decides that further investigation is warranted. In such event, the Vesting Date shall be deemed to be the date upon which the investigation or procedure has been completed and the Remco has determined that the Prescribed Officer’s or Executive Manager’s (as the case may be) Award shall not be forfeited.
|
17.
|
TERMINATION OF EMPLOYMENT [SCH 14.1(H)]
|
17.1
|
Subject to clause 1.2.8, if a Participant ceases to be employed by the Group by reason of a No Fault Termination prior to the Vesting Date, a pro rata portion of the current tranche of the Deferred Shares shall Vest on the
|
17.2
|
Subject to clause1.2.8, if a Participant ceases to be employed by the Group by reason of a Fault Termination, his Award shall be deemed to have been reacquired, unless Remco determines otherwise.
|
18.
|
INSOLVENCY
|
18.1
|
All unvested Awards shall be deemed to have been reacquired, and accordingly not entitle a Participant to Settlement, upon the Participant making an application for the voluntary surrender of his estate or his estate being otherwise sequestrated or any attachment of any interest of a Participant (including, inter alia, as a result of divorce proceedings) under the DSP, unless Remco, in its discretion, determines otherwise and then subject to such terms and conditions as Remco may determine.
|
18.2
|
If the Company is placed in final liquidation, the Secretary shall notify the Participant thereof in writing and all Awards that have not been Settled at the date of notification shall be forfeited. [Sch 14.1(e)]
|
19.
|
POOR PERFORMANCE AND DISCIPLINARY PROCEDURES
|
20.
|
ADJUSTMENTS
|
20.1
|
Notwithstanding anything to the contrary contained herein but subject to 20.5, if the Company makes a Special Distribution and/or if the Company restructures its capital in that it ‑ [Sch 14.3]
|
20.1.1
|
undertakes a rights offer; or
|
20.1.2
|
is placed in liquidation for purposes of reorganisation; or
|
20.1.3
|
is party to a scheme of arrangement affecting the structuring of its share capital; or
|
20.1.4
|
undertakes a conversion, redemption, subdivision or consolidation of its ordinary share capital; or
|
20.1.5
|
undertakes a bonus or capitalisation issue,
|
20.2
|
The Auditors will confirm to the JSE, in writing, that any adjustments made in terms of clause 20.1 are in accordance with the provisions of the DSP. Such written confirmation will be provided to the JSE at the time that the adjustments are finalised. [Sch 14.3(d)]
|
20.3
|
Any adjustments made in terms of clause 20.1 will be reported in the Company’s annual financial statements in the year during which the adjustment is made. [Sch 14.3 (e)]
|
20.4
|
For the purposes of 20.1, the Company shall be deemed to make a "Special Distribution" if it distributes Shares or any other asset (including cash) to its shareholders -
|
20.4.1
|
in the course of, and as part of any unbundling, reorganisation, rationalisation, compromise, arrangement or reconstruction (including the amalgamation of two or more companies or entities);
|
20.4.2
|
in the course of, or as part of, a reduction of capital (including a share repurchase);
|
20.4.3
|
as a special dividend or other payment in terms of the Companies Act; or
|
20.4.4
|
in the course or in anticipation of the deregistration or liquidation of a company for any of the above purposes;
|
20.5
|
No adjustments shall be required in terms of clause 20.1 in the event of the issue of equity securities as consideration for an acquisition in terms of clause 20.6, the issue of securities for cash and the issue of equity securities for a vendor consideration placing. [Sch 14.3(c)]
|
20.6
|
Subject to clause 20.7, if the Company undergoes a Change of Control after an Award Date, then the rights of Participants under the DSP are to be accommodated on a basis which shall be determined by Remco to be fair and reasonable to Participants. [Sch 14.1(g)]
|
20.7
|
If the Company undergoes a Change of Control pursuant to a transaction, the terms of which make provision for Participants' rights under the DSP are to be accommodated on a basis which is determined by an independent merchant bank to be fair and reasonable to Participants, the provisions of clause 20.5 shall not apply; provided that, in such an event, if a Participant's employment by any member of the Group is terminated for any reason whatsoever (including his resignation but excluding the manner contemplated in clause 1.2.8) within 12 months following the Implementation Date he shall be entitled to be Settled on mutatis mutandis the basis of clause 20.5 had clause 20.5 been applicable. [Sch 14.1(g)]
|
21.
|
REACQUISITION
|
22.
|
TAX LIABILITY
|
22.1
|
Notwithstanding any other provision in these Rules (including clause 14.4), if the Company or an Employer Company is obliged (or would suffer a disadvantage of any nature if they were not) to account for, withhold or deduct any Tax in any jurisdiction which is payable in respect of, or in connection with, the making of any Award, the Settlement to a Participant of Shares, the payment of a cash amount and/or otherwise in connection with the DSP, then the Company or the Employer Company (as the case may be) shall be entitled to account for, withhold or deduct such Tax from any amount due to the Participant and the Company and/or the Employer Company shall be relieved from the obligation to Settle any Shares to a Participant or to pay any amount to a Participant in terms of the DSP until the Tax has been discharged in full.
|
22.2
|
The Participant agrees that the Company may instruct the Broker to sell some or all of the Shares to be Settled to the Participant and to remit payment to the relevant person of the relevant amounts out of the proceeds of the sale in discharge of the Tax.
|
22.3
|
Only Prescribed Officers may elect to make payment to the relevant Employer Company of an amount equal to the Tax, in which event Shares will not be sold by the Company to settle the Participant’s Tax obligations.
|
22.4
|
The Company is hereby irrevocably and in rem suam nominated, constituted and appointed as the sole attorney and agent of a Participant, in that Participant's name, place and stead to sign and execute all such documents and do all such things as are necessary to give effect to the provisions of clause 22.2.
|
23.
|
LISTINGS AND LEGAL REQUIREMENTS
|
23.1
|
Notwithstanding any other provision of the DSP -
|
23.1.1
|
no Shares shall be Settled on any Participant or received pursuant to this DSP if Remco determines, in their sole discretion, that such Settlement will or may violate any Applicable Laws, the Listings
|
23.1.2
|
the Company shall apply for the listing of all Shares which are Settled to Participants on the JSE.
|
23.2
|
Despite the occurrence of a Vesting Date, all Participants shall be subject to the Group’s policies and procedures relating to trading in the Company’s securities, the Financial Markets Act and the Listings Requirements and no Participant shall undertake any action in respect of that Participant’s Shares that will cause the Company to breach its obligations in terms of the Financial Markets Act or the Listings Requirements.
|
23.3
|
The Company will ensure that no Shares are Settled for the DSP at a time when such acquisition is prohibited by the provisions of the Financial Markets Act or the Listings Requirements. To the extent that the Company is unable to deliver the Shares to a Participant as a result of the provisions of the Financial Markets Act or the Listings Requirements, the Company will deliver the Shares to the Participant as soon as possible after the restriction is lifted; provided that the Company will not be liable for any loss that may be suffered by the Participant as a result of the postponement of delivery in terms of this clause 23. [Sch 14.9(e)] [Sch 14.9(f)]
|
23.4
|
Whilst the companies in the Group will make every effort to Settle Shares within a reasonable period of time for purposes of satisfying their obligations under the DSP, they do not guarantee that they will be able to do so within set time periods. As such, the Group will not be liable for any loss that may be suffered by the Participant as a result of any fluctuations in the Share price, or for any other reason.
|
24.
|
AMENDMENT OF THE DSP
|
24.1
|
It shall be competent for Remco to amend any of the provisions of the DSP subject to the prior approval (if required) of every stock exchange on which the Shares are for the time being listed; provided that no such amendment affecting the Vested rights of any Participant shall be effected without the prior written consent of the Participant concerned, and provided further that no such amendment affecting any of the following matters shall be competent unless it is sanctioned by ordinary resolution of 75% (seventy-five percent) of the shareholders of the Company in a general meeting, excluding all of the votes attached to Shares owned or controlled by existing Participants in the DSP ‑ [Sch 14.2]
|
24.1.1
|
the definition of Eligible Employees and Participants;
|
24.1.2
|
the definition of Award Price;
|
24.1.3
|
the calculation of the total number of Shares which may be received for the purpose of or pursuant to the DSP;
|
24.1.4
|
the calculation of the maximum number of Shares which may be received by any Participant in terms of the DSP;
|
24.1.5
|
the amount payable by a Participant under the DSP (if any); [Sch 14.1(d)]
|
24.1.6
|
the voting, dividend, transfer or other rights (including rights on liquidation of the Company) which may attach to any or Award; [Sch 14.10] [Sch 14.1(e)]
|
24.1.7
|
the provisions in these Rules dealing with the rights (whether conditional or otherwise) in and to the Deferred Shares of Participants who leave the employment of the Group prior to Vesting;
|
24.1.8
|
the basis for Awards in terms of these Rules;
|
24.1.9
|
the treatment of Awards in instances of mergers, takeovers or corporate actions;
|
24.1.10
|
the termination rights of Participants; and [Sch 14.1(h)]
|
24.1.11
|
the provisions of this clause 24.
|
24.2
|
Subject to approval from the JSE, clause 24.1 will not apply to any amendment which is:
|
24.2.1
|
minor and to benefit the administration of the DSP;
|
24.2.2
|
to take account of any changes in legislation; or
|
24.2.3
|
to obtain or maintain favourable Tax, exchange control or regulatory treatment for the Company, any Employer Company or any present or future Participant.
|
24.3
|
Without derogating from the provisions of clause 24.1, if it should become necessary or desirable by reason of the provisions of Applicable Laws at any time after the signing of these Rules, to amend the provisions of these Rules so as to preserve the substance of the provisions contained in these Rules but to amend the form so as to achieve the objectives embodied in these Rules in the best manner, having regard to such Applicable Laws and without prejudice to the Participants concerned, then Remco may (with the prior approval (if required) of every stock exchange on which the Shares are at the time listed) amend these Rules accordingly.
|
25.
|
STRATE
|
26.
|
DISPUTES
|
26.1
|
Should any dispute of whatever nature arise from or in connection with these Rules (including an urgent dispute), then the dispute shall, unless the parties thereto otherwise agree in writing, be referred to the Group Chief Executive.
|
26.2
|
In the event that the Group Chief Executive is unable to resolve the dispute, it shall be referred to the Chairman of Remco who, together with the Remco, shall decide thereon, and that decision shall be final and binding on all parties to the dispute.
|
26.3
|
However, if the dispute relates, directly or indirectly, to the Group Chief Executive, the dispute shall be referred to the Chairman of Remco directly, who, together with the Remco, shall decide thereon and that decision shall be final and binding on all parties to the dispute.
|
26.4
|
This clause is severable from the rest of these Rules and shall remain in effect even if these Rules are terminated for any reason.
|
27.
|
DATA PROTECTION
|
27.1
|
By participating in the DSP, a Participant is deemed to agree and consent to:
|
27.1.1
|
the collection, use and processing by the Employer Company of Personal Information relating to the Participant, for all purposes reasonably connected with the administration of the DSP;
|
27.1.2
|
the Employer Company, Company, and any member of the Group transferring Personal Information to or between any of such persons for all purposes reasonably connected with the administration of the DSP and the use of such Personal Information by such persons for all purposes reasonably connected with the administration of the DSP;
|
27.1.3
|
the transfer to and retention of such Personal Information by any third party anywhere in the world for all purposes reasonably connected with the administration of the DSP.
|
28.
|
PROFITS AND LOSSES AND TERMINATION OF THE DSP
|
28.1
|
The Company shall bear any losses sustained by the DSP which are not recovered from Employer Companies in terms of clause 8. Furthermore, the Company shall be entitled to receive and be paid any profits made in respect of the purchase, acquisition, sale or disposal of Shares.
|
28.2
|
The DSP shall terminate if Remco so resolves. Any deficit arising from the winding up of the DSP shall be borne by the Company, to the extent not recovered by the Company from Employer Companies.
|
29.
|
DOMICILIUM AND NOTICES
|
29.1
|
The parties choose domicilium citandi et executandi for all purposes arising from the DSP, including the giving of any notice, the payment of any sum, the serving of any process, as follows ‑
|
29.1.1
|
the Company:
|
Physical address:
|
Harmony Randfontein Office Park,
Cnr Main Reef Road and Ward Avenue,
Randfontein,
1759
|
Postal address:
|
PO Box 2,
Randfontein,
1760
|
E-mail:
|
companysecretariat@harmony.co.za
|
For attention:
|
The Secretary
|
29.1.2
|
each Participant:
|
29.2
|
Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other physical address and/or (in the case of a Participant) his email address; provided in the case of a Participant such variation is also made to his details on the Group's payroll system.
|
29.3
|
Any notice given and any payment made by any party to the other which ‑
|
29.3.1
|
is delivered by hand during the normal business hours of the addressee (for attention: the Secretary in the case of the Company) at the addressee's domicilium for the time being shall be rebuttably presumed to have been received by the addressee at the time of delivery;
|
29.3.2
|
is posted by prepaid registered post from an address within the Republic of South Africa to the addressee (for attention: the Secretary in the case of the Company) at the addressee's domicilium for the time being shall be rebuttably presumed to have been received by the addressee on the seventh day after the date of posting.
|
29.4
|
Any notice given by any party to any other party which is transmitted by electronic mail to the addressee at the addressee's electronic address for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the date of successful transmission thereof.
|
30.
|
COMPLIANCE
|
30.1
|
The Company shall comply with (and procure compliance by all members of the Group with) all Applicable Laws. The DSP shall at all times be operated and administered subject to all Applicable Laws. [Sch 14 Generally]
|
30.2
|
Without derogating from the generality of the aforegoing, the Company shall ensure compliance with Schedule 14 and paragraphs 3.63 to 3.74 of the Listings Requirements of the JSE. [Sch 14.9(d)]
|
30.3
|
The Company, by its signature hereto, undertakes to procure compliance by every Employer Company with these Rules.
|
31.
|
GENERAL PROVISIONS
|
31.1
|
To the extent that shareholder approval is required to authorise any performance by the Group as contemplated in the DSP, such performance shall only take place once the requisite shareholder approval has been obtained. To the extent that the requisite shareholder approval is not obtained, Remco shall exercise its discretion in determining the appropriate response. In certain circumstances, Remco may be obliged to inform the Participants that their rights under the DSP have been postponed or forfeited. The Company will not be liable for any loss that may be suffered by the Participant as a result of such postponement or forfeiture.
|
31.2
|
The receipt of an Award in any year by a Participant does not create any rights and/or expectations that the same Participant shall be entitled to any further Awards in any subsequent years. An Employee’s eligibility to receive Awards shall be determined annually by Remco.
|
31.3
|
The DSP and participation in it shall not form part of any contract of employment between any Employer Company and any Employee and the rights and obligations of any individual under the terms of his office or employment with the Employer Company shall not be affected by his participation in the DSP. This DSP shall not entitle a Participant any right to continued employment nor shall it afford an individual additional rights to compensation or damages for any loss or potential loss which he may suffer (by reason of being unable to receive Shares or otherwise) in consequence of the termination of any office or employment within the Group for any reason whatsoever, regardless of whether such termination of employment was lawful, unlawful, fair or unfair.
|
31.4
|
The DSP shall not confer on any person any legal or equitable rights (including, for the avoidance of doubt, any voting rights or rights to receive dividends) against any Employer Company directly or indirectly, or give rise to any cause of action at law or in equity against any Employer Company.
|
31.5
|
The DSP shall be governed by and construed in accordance with the laws of the Republic of South Africa.
|
1.
|
I have reviewed this annual report on Form 20-F of Harmony Gold Mining Company Limited;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
|
4.
|
The Company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and
|
5.
|
The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
|
1.
|
I have reviewed this annual report on Form 20-F of Harmony Gold Mining Company Limited;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
|
4.
|
The Company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and
|
5.
|
The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
|
(1)
|
the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
|
(2)
|
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
(1)
|
the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
|
(2)
|
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
About this report
|
|
Corporate profile - who we are, what we do
|
|
Creating value – our business model
|
|
Our strategy
|
|
Chairman’s letter
|
|
Chief executive officer’s review
|
|
Operating context
|
|
Our business context
|
|
Stakeholder engagement and material issues
|
|
Our material ESG issues
|
|
Managing our risks and opportunities
|
|
Our leadership
|
|
Ensuring employee safety and well-being – maintaining stability in our workforce
|
|
Safety and health
|
|
Employee relations
|
|
Delivering profitable ounces in line with business objectives
|
|
Operating performance
|
|
Exploration and projects
|
|
Managing our social and environmental impacts
|
|
Socio-economic development
|
|
Environmental management and stewardship
|
|
Mining charter scorecard
|
|
Corporate governance
|
|
Remuneration report
|
|
Audit and risk committee: chairman’s report
|
|
Social and ethics committee: chairman’s report
|
•
|
External factors, material issues, risks and opportunities
|
•
|
Performance – operational, financial, social, environmental and governance
|
•
|
International Integrated Reporting Framework
|
•
|
King Report on Corporate Governance for South Africa, 2016 (King IV)
|
•
|
Global Reporting Initiative (GRI) Standards for global sustainability reporting
|
•
|
United Nations Sustainable Development Goals (SDGs)
|
•
|
International Council on Mining and Metals – 10 principals
|
•
|
United Nations Global Compact
|
•
|
Voluntary Principles on Security and Human Rights
|
•
|
JSE Listings Requirements
|
•
|
World Gold Council’s Responsible Mining Principles
|
•
|
Integrated annual report
|
•
|
Mineral resources and mineral reserves
|
•
|
ESG report
|
•
|
Financial report
|
•
|
Report to shareholders
|
•
|
17% increase in production to 1.44Moz of gold, contributed to a 23% increase in production profit
|
•
|
2% increase in underground recovered grade to 5.59g/t at South African mines
|
•
|
Operating free cash flow boosted by Moab Khotsong and Hidden Valley
|
•
|
Hedging strategy contributed to improved cash flow margins
|
•
|
19% increase in headline earnings per share to 204 SA cents – 8% increase to 14 US cents
|
•
|
Included in Bloomberg Gender-Equality Index 2019, and FTSE4Good Index
|
•
|
CDP Climate Change and Water reports scored A- and B respectively
|
GOLD PRODUCED
1.44Moz
(FY18: 1.22Moz)
|
WASTE* DEPOSITED
52.7Mt
(FY18: 50.8Mt)
* Tailings and waste rock
|
TOTAL CO2 EMISSIONS
3.9Mt
(FY18: 3.0Mt)
|
REVENUE GENERATED
R26.9bn
(FY18: 20.5bn)
|
|
What we did FY19
|
Enhancing value created
|
Value created and economic value distributed FY19
|
ENVIRONMENT
|
• Mined and processed 26Mt of gold-bearing ore, which generated waste of 53Mt
• Consumed 3.3 million MWh of electricity, resulting in 3.9Mt of CO2e emissions
• Used 23 million m3 of water in primary activities
• 74 000ha of mining land under management
See Environmental management and stewardship
|
• Actively working to minimise longer term environmental impacts and liabilities by:
o continuous ongoing rehabilitation (45 shafts rehabilitated in past eight years)
o initiatives to reduce and optimise energy consumed, especially that from non-renewable sources, and water consumption
o implementing targets to improve and monitor environmental performance
|
Responsible environmental stewardship
• R199m spent on environmental activities
• Water, energy and emission intensities:
Energy intensity:
• 0.13MWh/tonne treated
Total emissions intensity:
• 0.1485 CO2e tonnes/tonne treated
Water intensity:
• 0.89 000m3/tonne treated
|
SOCIAL
|
Employees
Employed 39 773 people, including contractors
Invested in employee skills development and training (R484 million in SA)
See Safety and health and Employee relations
|
• Roll-out of a proactive four-layered safety strategy – emphasis on preventing fatalities
• Ensuring employee safety and well-being, addressing occupational health diseases
• New employee relations policy and framework rolled out
|
Being a fair and responsible employer
• R12.5bn paid in wages and salaries (FY18: R9.5bn and 40 686 respectively)
South Africa: R11.5bn
(FY18: R9.4bn)
Papua New Guinea: R1.1bn (FY18: R132m)
|
|
Communities
• Socio-economic development focused on uplifting communities – focus on infrastructure, agriculture, and educating, upskilling and enabling youth
Procurement:
• In South Africa, total discretionary spend of R8.5bn with R3.2bn spent on electricity
(FY18: R3.5bn and R2.3bn respectively)
• Contracts issued in Papua New Guinea to enhance localisation and local spend
• Began complying with Mining Charter III in South Africa
See Socio-economic development
|
• Addressing mounting community expectations for economic participation through our socio-economic development projects
• Approved new preferential and enterprise and supplier development procurement strategy
• Promotion of preferential procurement
• Promoting enterprise development
• Third generation social and labour plans approved
• Community and employee trusts set up
|
Investing in self-sustaining communities
• Invested R155m in social and economic projects and initiatives
South Africa: R139m
(FY18: R70m)
Papua New Guinea:
R16m (FY18: R4m)
Procurement:
• In South Africa, 75% (R6.3bn) of total discretionary procurement was preferential procurement with black economic* empowerment entities
|
•
|
Operational excellence
|
•
|
Cash certainty
|
•
|
Effective capital allocation
|
•
|
Responsible stewardship
|
•
|
Safety
|
•
|
Grade and volumes mined
|
•
|
Costs, efficiencies and productivity
|
•
|
Stakeholder relations
|
•
|
Gold price
|
•
|
Exchange rate volatility
|
•
|
Regulatory, policy and political uncertainty
|
•
|
Mounting community expectations and socio-economic challenges
|
•
|
Essential inputs such as gold-bearing orebodies, land and water
|
•
|
Provided by shareholders, investors and financiers
|
•
|
Skilled, experienced and motivated employees, management and leadership
|
•
|
Constructive employee relations
|
•
|
Mining and processing technology employed
|
•
|
Significant service providers and suppliers
|
•
|
Exploration, mining and processing equipment and infrastructure
|
•
|
Infrastructure and services, particularly power
|
•
|
Mining rights, regulatory permits and licences – granted by national, provincial and local authorities
|
•
|
Social licence to operate – enabled by communities and non-governmental organisations
|
•
|
Our reputation and relationships – particularly with key stakeholders (employees, communities, governments, and investors)
|
•
|
Safety
|
•
|
Resource base depletion
|
•
|
Gold price and foreign exchange fluctuations
|
•
|
Rising costs and their impact on margins
|
•
|
Maintaining licences to operate and cost of compliance
|
•
|
Wafi-Golpu project permitting – moving up the value curve
|
•
|
Gold price and foreign exchange fluctuations
|
•
|
Productivity improvements
|
•
|
New technology
|
•
|
Mergers and acquisitions
|
•
|
Ensuring safety and health of employees and communities
|
•
|
Maintaining compliance despite political and regulatory uncertainty and ensuring ethical conduct
|
•
|
Uplifting and enabling self-sustaining communities
|
•
|
Maintaining our reputation and social licence to operate
|
•
|
Managing our environmental exposures
|
•
|
Positively geared to increases in gold price
|
•
|
Uniquely skilled and experienced leadership teams, especially in sustaining and prolonging the operating lives of deep-level gold mines
|
•
|
Extensive institutional knowledge of gold mining and related technology
|
•
|
Partnerships with stakeholders
|
Exploration and acquisitions
|
Mining and processing
|
Sales and financial management
|
Stewardship and closure
|
|
|
|
|
|
Risks: 1, 2, 3, 4, 5, 6, 9, 10 and 11
Opportunities: 1, 2, 3 and 4
|
|
Risks: 3, 4, 5, 6, 8, 9 and 11
Opportunities: 1, 2, 5 and 6
|
|
|
|
|
|
Risks: 2, 3, 4 and 8
Opportunities: 1, 5 and 6
|
|
Risks: 1, 5, 8 and 9
Opportunities: 1 and 5
|
PILLAR
|
AIM
|
F19 – WHAT WE DID
|
FHY20 – WHAT WE PLAN
|
|
To prioritise safety, strict cost control and management of grades mined, together with disciplined mining, to improve productivity and efficiencies
|
• Our emphasis on safety performance contributed to an improved lost-time injury frequency rate. Despite this improvement, there were tragically 11 fatalities
• Increased production and underground grade mined
• Firm cost management contains increase in rand terms and improves costs in US dollars
|
• To embed a proactive safety culture
• To maintain our focus on safety performance and strive to eliminate workplace fatalities
• To maintain our focus on operational excellence and drive productivity
and efficiency improvements
• To produce 1.46Moz at an all-in sustaining cost of R579 000/kg
|
|
To achieve operational plans, supported by current hedging strategy, contributes to cash flow certainty
|
• Moab Khotsong and Hidden Valley’s increased contribution to operating cash flow (R1 375 million), together with the successful hedging strategy (R477 million), strengthened our cash flow
• Loan facility increased to US$400 million to fund future growth prospects (post year end)
|
• To achieve operational guidance
• To focus on further improving margins
• To prioritise debt repayments
• To continue hedging programme so as to manage short-term cash flow volatility
|
|
To evaluate and prioritise organic growth opportunities and safe, value-accretive acquisitions to ensure positive stakeholder returns and increase margins
|
• Performance by Moab Khotsong and Hidden Valley justifies their acquisition and
re-investment respectively
• Studies of several organic growth projects underway (from concept stage to development)
• The new business team continued to assess acquisition opportunities
|
• To continue to progress and secure the permitting, funding and development of Wafi-Golpu
• To invest R4.7 billion (US$334 million) in sustaining and growing our business – 66% of this at our South African operations and 34% on our activities in Papua New Guinea (excluding Wafi-Golpu)
|
|
To be mindful of and to manage and limit the impacts of our activities on our employees, host communities and the environment
This encompasses our environmental, social and governance (ESG) performance
|
• Included in the FTSE4Good Index in their June 2019 review, in acknowledgment of our strong ESG practices and performance
• Included in the Bloomberg Gender-Equality Index for 2019
• Scores for our CDP Climate Change and Water submissions of A- and B respectively
• A constituent of the FTSE/JSE Responsible Investment Index
|
• To maintain our focus on our ESG performance
• To continue to engage and collaborate with stakeholders in support of strong, constructive relationships
• To demonstrate responsible corporate citizenship, good governance and environmental management
• To make progress in meeting our targets for energy and water consumption, waste management, land rehabilitation and the implementation of biodiversity action plans
|
–
|
increase to an approximately 1.5 million ounce producer
|
–
|
mine additional ounces at an all-in-sustaining cost of below 950 US$/oz
|
|
•
|
Passionate and active leadership
|
•
|
Effective risk and critical control management
|
•
|
Effective safety management systems
|
•
|
Ongoing organisational learning
|
•
|
Proactive safety culture and an engaged workforce.
|
|
|
External factors
|
Background
|
Internal strategies
|
Stakeholder opinions
External stakeholders – shareholders, communities, labour unions, NGOs, media – influence public debate on mining’s contribution to society
|
To help position Harmony for success, it is vital to identify external factors that impact our operations and to understand how they affect our ability to deliver on strategic objectives. Identifying and understanding these external factors requires regular, transparent and consistent stakeholder engagement
Related risk: 5
|
Managing stakeholder expectations
• Engagement, informed by our operating environment, material issues, risks and opportunities
• Regular, consistent and transparent communication, underpinned by our values
|
Employee relations (South Africa)
Stable labour relations support delivery on our strategy
|
Engaged, motivated and productive employees are essential to the efficient running of our operations and to successful delivery on our strategic objectives.
Related risks: 1, 6 and 8
|
Ensuring employee safety and well-being
• Enshrining employees’ rights to withdraw from an unsafe, unhealthy workplace
• Being a fair and responsible employer
• Providing training and development
• Preventing and treating HIV/Aids and TB
• Recruiting and retaining skilled employees
• Addressing employment equity and equality
|
Environmental and social impacts
Responsible environmental and social stewardship is critical aspect of acquiring and maintaining social licence to operate
|
Access to water and electricity are critical social, environmental and economic issues for all. Adequate, reliable supplies of water and electricity are essential to safe, efficient conduct of our mining operations. We strive continuously to improve water use efficiency and reduce consumption by recycling. Energy consumption strategies have reduced our carbon footprint over the years.
Related risks: 5 and 10
|
Maintaining social license to operate
• Influencing, developing and supporting socio-economic sustainability of communities
• Ensuring efficient use of water and energy resources
• Limiting or eliminating our environmental footprint through conservation and rehabilitation programmes
|
Commodity price and exchange rate volatility
Long project lead times and lack of flexibility to rescale operations in response to price fluctuations
can impact cash generation over long term |
Global economy characterised by uneven growth, geopolitical tensions, stronger US dollar, US-China trade war, emerging market crisis sparked by Argentina and Turkey and oil crisis
Related risks: 3, 4 and 6
|
Ensuring business sustainability
• Hedging strategy helps lock in cash margins over short term
• Disciplined cost control
• Ensuring a safe, productive working environment
• Increased productivity
• Prioritising organic growth opportunities
|
Regulatory and legislative uncertainty and change
Key challenges to mining industry sustainability
|
South Africa: Mining Charter III was gazetted in September 2018. Harmony, through the Minerals Council, is engaging with Minister of Mineral Resources and Energy on areas of concern
Papua New Guinea: Harmony is active in industry working groups and Chamber of Mines on proposed amendments to Mining Act
Related risk: 5
|
Keeping abreast of regulatory and legislative change
• Engaging with government
• Contributing to industry-wide initiatives through the Minerals Council in South Africa and the Chamber of Mines and Petroleum in Papua New Guinea
• Keeping informed
|
Potential liability for OLD compensation
Gold mining industry has been working towards a settlement since November 2014
|
Through gold mining industry OLD Working Group, a sustainable, inclusive and comprehensive OLD settlement was agreed and ratified in court in July 2019
Related risk: 8
|
Confronting legacy issues
• R925 million set aside to contribute to industry legacy fund, the Tshiamiso Trust
• Through Harmony’s RECONNECT initiative, contacted more than 10 800 former employees to whom the Department of Health has paid R206 million in claims to date
|
•
|
Harmony’s risk profile
|
•
|
regulatory and policy
|
•
|
feedback received from stakeholders
|
•
|
any changes and emerging issues in the industry and in host countries
|
•
|
national and international imperatives that could have a bearing on our business
|
•
|
to support government by building relationships and partnerships for collaboration with stakeholders
|
•
|
to find a balance between the expectations of shareholders and those of other stakeholders
|
•
|
To build credibility and trust with all stakeholders
|
Stakeholder
|
Form of engagement
|
Frequency of engagement
|
Main issues of concern
|
INVESTORS AND FINANCIERS
(includes current and future shareholders, and providers of capital)
Regular communication with the broader investment community is aimed at managing expectations relating to our financial, operating and ESG performance and to delivery on our guidance and strategic objectives. This community is the most geographically diverse of all our stakeholders. While not directly affected by any material issue, investors monitor our performance and management of all material issues.
|
In person, via conference calls, by email, at one-on-one meetings, industry conferences, regulatory announcements, and reports
|
Engagement is regular throughout the year and includes regulatory quarterly and annual reporting
|
• Safe workforce/workplace
• Climate action
• Profit share
• Certainty of access to power supply (Eskom)
• Regulatory uncertainty
|
EMPLOYEES AND UNIONS
Maintaining stable, peaceful labour relations is essential. The benefits of a stable, engaged and committed workforce are many. Engagement emphasises the importance of safety, reducing risk and compliance with procedures, and also focuses on health and overall well-being, and on performance against our strategic objectives.
|
Mass meetings, workplace meetings, structured meetings with organised labour
|
Engagement is regular including daily workplace meetings, monthly and quarterly meetings with organised labour, and regular mass meetings
|
• Safety
• Alignment of conditions within company
|
COMMUNITIES AND NGOs
Direct community engagement is vital in managing our socio-economic and environmental impacts as well as community expectations, and to ensuring public safety. Our aim is to establish partnerships with host communities, based on shared value. Subjects of community engagement include, among others, employment and procurement opportunities, enterprise development, mine community development and illegal mining.
|
Meetings with community structures, regular issues-based meetings, one-on-one meetings, newspapers and radio
|
Regular engagements throughout the year, and we are now moving to formalise structured quarterly meetings with host communities
|
• Enterprise opportunities
• Jobs/employment
• Availability of land for habitation
• Bursaries and internships
• Of the 13 grievances raised 10* have been resolved
* Assured by Ngubane and Co – see their GRI Assurance Report
|
GOVERNMENT AND REGULATORS
Positive relations with all levels of government help to better manage the uncertainty around regulatory changes and political risk. Engagement includes reporting on compliance and developments and/or changes at our operations and projects. The aim is to promote regulatory certainty and an environment conducive to investment for long-term growth. Engagement with government is undertaken at regional, provincial and national levels.
|
Emails, one-on-one meetings, industry meetings and regular issues-based meetings
|
Regular engagements throughout the year, structured quarterly and annual meetings
|
• Accelerated transformation
• Land distribution
• Issues of crime and poverty alleviation
|
SUPPLIERS
Constructive relations and partnerships with business associates and suppliers assist with cost control and alignment with our policies on the environment and climate change, transformation and enterprise development, thus helping us to deliver on our strategic objectives and supporting our long-term viability. In South Africa, such engagement is esential in helping us meet procurement targets in relation to our mining rights.
|
Emails, industry meetings and issues-based meetings
|
Regular and on-going
|
• Alignment with our values and policies on human rights, labour relations and practices, safety and the environment
• Ethical behaviour and anti-corruption
|
MEDIA AND ACADEMIA
Engagement with the media complements and reinforces that with other stakeholders. It helps in managing stakeholder expectations and our reputation, in forming public opinion and in promoting an understanding of our activities. Media engagement can be used to communicate with other stakeholders on all aspects of our performance.
|
In person, via conference calls, one-on-one meetings
|
Regular engagement throughout the year
|
• Collaboration in addressing various challenges
|
•
|
Ensuring safe and healthy employees and communities
|
•
|
Maintaining compliance despite political and regulatory uncertainty
|
•
|
Uplifting and enabling self-sustaining communities
|
•
|
Maintaining our social licence to operate and reputation
|
•
|
Ensuring ethical conduct
|
•
|
Instilling an enabling culture and empowered workforce
|
•
|
Responsibly managing environmental and social impacts
|
•
|
employees
|
•
|
investors and financiers
|
•
|
communities and NGOs
|
•
|
government and regulators
|
•
|
suppliers
|
•
|
media and academia
|
Issues
|
Impact on Harmony
|
|
Ensuring safe and healthy employees and communities
• Employee and community health and safety
• Making the workplace safe and healthy – eliminating fatalities and preventing injuries in the workplace
• Potential for tailings storage facility failure
|
Protecting the safety and health of employees and contractors is a fundamental human rights issue facing Harmony and the mining industry. While protecting our workforce from harm is a moral imperative, our focus on eliminating fatalities and preventing loss of life is also a direct investment in the productivity and sustainability of the business. A safe and healthy workforce is an engaged, motivated and productive workforce, which helps to prevent operational stoppages, and reduces the potential for legal liabilities. Safety is also considered our primary risk.
|
Related risks: 1, 8
Strategic pillar affected: Operational excellence
|
Maintaining regulatory compliance despite political and regulatory uncertainty
• New Mining Charter III and the increasing cost of compliance in South Africa
• Possible expropriation of land policy in South Africa
• The Carbon Tax and proposed Climate Change Bill in South Africa
• Delays in Wafi-Golpu permitting following a change in government
• Proposed regulations pertaining to financial provisions for rehabilitation
|
Harmony operates or has projects in developing countries where there is political instability and where the regulatory environment for the mining industry is uncertain.
|
Related risk: 5
Strategic pillar affected: Responsible stewardship
|
Uplifting and enabling self-sustaining communities
• Planning for local economic activity and social sustainability, during and post life of mine.
|
Given the finite nature of our key resource, Harmony must harness its social and environmental investments so that they can be used as a catalyst for development and to support government in creating self-sustaining communities beyond the life of our mines. This will require leveraging our skills and infrastructure, developing suppliers, and/or supporting delivery of alternative economies.
|
Related risk: 5
Strategic pillar affected:
Responsible stewardship
|
Maintaining our social licence to operate and reputation
• Delivery on our socio-economic development projects
• Transformation, human rights and promoting diversity in the workplace
• Local procurement and transformation (black economic empowerment), and enterprise and supplier development
• Community engagement and development, and rising community discontent
|
To expand local employment opportunities, increase tax revenues, and meet increasing community demands for improved infrastructure and greater environmental protection, government continues to put pressure on the mining industry. There is a growing need to achieve measurable social outcomes and build sound relationships around operations. This is key to implementing our business strategy. Failing to engage with communities could jeopardise our social licence to operate and reduce opportunities in the market.
|
Related risk: 5
Strategic pillar affected: Responsible stewardship
|
Ensuring ethical conduct
• Internal fraud and corruption
• Fraud and corruption at national level
|
Mining companies face regional and global scrutiny, and conforming to formal ethical standards of conduct is non-negotiable. Fraud and corruption can increase in an economic downturn, and the current societal spike in exposure to corrupt practices and unethical leadership heightens the risk to Harmony.
|
Related risk: 6
Strategic pillar affected:
Operational excellence
|
Instilling an enabling culture and empowered workforce
• Gender equality and women in mining
• Building a skills pool, talent management and succession planning
• Quality education and training for employees and community
• Decent work and economic growth for our people
• Human rights and diversity in the workplace
|
To deliver on our business objectives, we rely on a capable and engaged workforce that behaves in a manner that is consistent with our values and Code of Conduct. We aim to foster a high-performance culture, through an organisational structure that is fit for purpose, and by ensuring that we have the right skills and by empowering our people to deliver on our strategic objectives.
|
Related risk: 5
Strategic pillar affected: Responsible stewardship
|
Responsibly managing environmental impacts
• Land management and biodiversity
• Energy infrastructure, management and security of supply
• Climate change and emissions management
• Water infrastructure and management
• Waste management
• Integrated closure of operations
• Remediation, obligations and provisions for liabilities
|
Responsible environmental management, including the management of water consumption and discharge, is a major factor in legal compliance and permitting, but also plays a significant role in improving the balance of value from mining for our local stakeholders. The goal is to support our long-term sustainability by effectively managing resources, reducing the impact of our activities on the environment and communities, and by complying with legal requirements.
|
Related risk: 5
Strategic pillar affected: Responsible stewardship
|
•
|
Appointed non-independent non-executive chairman on 23 September 2003
|
•
|
Member of the nomination committee
|
•
|
Appointed 30 July 2004
|
•
|
Chairman of the investment committee and member of the nomination committee and the social and ethics committee
|
•
|
Appointed 26 March 2011
|
•
|
Chairman of the nomination committee and member of the social and ethics committee
|
•
|
Appointed 1 January 2016 as chief executive officer
|
•
|
First appointed non-executive director on 1 October 1994 and was financial director from 1997 until 2004
|
•
|
Re-appointed financial director in February 2012
|
•
|
Joined Harmony in 2005 and appointed an executive director on 24 February 2010
|
•
|
Appointed 20 April 2005
|
•
|
Member of the nomination committee and the social and ethics committee
|
•
|
Appointed 30 March 2006
|
•
|
Chairman of the audit and risk committee and member of the social and ethics committee, the remuneration committee and the nomination committee
|
•
|
Appointed 13 February 2008
|
•
|
Member of the technical committee and the investment committee
|
•
|
Appointed 18 October 2002
|
•
|
Chairman of the social and ethics committee, member of the audit and risk committee, the remuneration committee and the investment committee
|
•
|
Appointed 13 May 2019
|
•
|
Member of the investment committee
|
•
|
Appointed 3 May 2013
|
•
|
Member of the audit and risk committee, the technical committee and the investment committee
|
•
|
Appointed 8 May 2013
|
•
|
Chairman of the remuneration committee and member of the technical committee and the investment committee
|
•
|
Appointed 13 May 2019
|
•
|
Member of the audit and risk committee
|
•
|
Appointed 31 January 2018
|
•
|
Member of the social and ethics committee
|
•
|
Appointed 1 July 2011
|
•
|
Member of the audit and risk committee, social and ethics committee, remuneration committee and investment committee
|
•
|
Appointed 7 August 2007
|
•
|
Chairman of the technical committee and member of the investment committee and the remuneration committee
|
•
|
Roll-out of phase 1 and related training on safety risk management approach completed in FY19
|
•
|
11 colleagues lost their lives in mining-related accidents
|
•
|
Proactive safety management measured through the close-out of a-hazard fatal risk findings – an average of 98.31% of these findings were closed out
|
•
|
Improved safety performance at group level: lost-time injury frequency rate improved by 2% to 6.16 per million hours worked
|
•
|
TB incidence rate continues to decline – down a further 21% in FY19
|
•
|
Hidden Valley, one of the safest operations in Papua New Guinea, fatality free for three years
|
•
|
4 million fatality-free shifts at Doornkop – a first for a South African deep-level gold mine
|
•
|
Extensive community polio vaccination programme conducted in mine and project areas in Papua New Guinea
|
|
At the beginning of FY17, Harmony embarked on a safety and health journey. With active leadership, a proactive culture and effective critical control management, we believe we can prevent significant unwanted events and fatal incidents – ensuring Harmony and our employees Live Longer. This journey has led to the implementation of a comprehensive integrated safety risk management system (the Harmony risk management approach), training, refresher training and several safety campaigns. This system was developed following an exercise to benchmark best practice in the industry, and an external audit of our safety performance and practice. Building on industry best practice, Harmony implemented a four-layered approach to risk management.
|
•
|
passionate and active leadership
|
•
|
effective risk and critical control management (risk assessment as a way of life)
|
•
|
effective safety management systems (modernisation of systems and processes)
|
•
|
ongoing organisational learning (learning from incidents)
|
•
|
a proactive culture and an engaged workforce
|
Layer 1: Baseline risk assessment
|
|
As part of the Harmony risk-management embedding process, all underground and surface operations have performed and reviewed baseline risk assessments to identify the individual operation’s top 20 significant unwanted events. In identifying hazards, focus is placed on recognising the uncontrolled or unwanted release of energy driving many hazards. The consequence of the unwanted event and probability of the unwanted event are rated and combined to produce a risk level or rating on the Harmony risk matrix.
|
At our underground operations in South Africa, significant unwanted events relating to seismicity, underground rail-bound equipment, electricity, gravity-induced falls of ground, working at heights, winches, mud rushes and inundation, fire and explosives, and stored energy have been identified and prioritised. In addition, on surface, tailings storage facilities are closely monitored to guard against unwanted safety events. For further information on the management of our tailings storage facilities, see Tailings management and Management of tailings in Papua New Guinea.
|
|
Layer 2: Issue-based risk assessment
|
|
Detailed issue-based risk assessments (including detailed bowtie risk assessments) have been conducted on these significant unwanted events to identify critical controls and associated monitoring and response plans (layer 2 of risk assessment). These critical controls are actively monitored and responded to through our Harmony risk management system.
|
|
|
Layer 3: Task-based risk assessment and Layer 4: Continuous risk assessment
|
|
As part of the process to embed risk management, all Harmony operations identify tasks linked to significant unwanted events they prioritised in Layer 1. Risk assessments are conducted for all these critical tasks. The intent of these risk assessments is to identify the hazards and controls (Go/NoGO rules) related to all task steps. Controls identified in Layer 2 are also checked to ensure they are included in the various task steps. Detailed procedures, checklists, inspections, task observations and training material are developed from this information to ensure all tasks are performed safely and according to legal requirements. These valuable tools, together with Work Notes highlighting key workplace information, are used on a day-to-day basis as the cornerstone of our continuous risk assessment process. Another key element of our continuous risk assessment process is the SLAM principle. Before we do any task in Harmony, we Stop, Look, Assess and Manage. Hazards and high-risk activities associated with working places are further highlighted by Visual Risk Indicator Boards that have been rolled-out across all Harmony operations.
|
Date
|
Operation
|
Name
|
Occupation
|
Cause
|
19 July 2018
|
Tshepong
|
Tshepo Libate
|
Winch operator
|
Gravity-related fall of ground
|
10 July 2018
|
Kusasalethu
|
Michael Plaatjies
|
Team leader
|
Gravity-related fall of ground
|
19 October 2018
|
Kusasalethu
|
Tsietsi Manoto
|
Engineering artisan
|
Working at heights
|
3 November 2018
|
Moab Khotsong
|
Mvuyisi Mayekiso
|
Locomotive operator
|
Trucks, tramming and transport
|
22 January 2019
|
Phakisa
|
Mlamleli Mnqumeni
|
Driller
|
Seismic-related fall of ground
|
8 April 2019
|
Doornkop
|
Mantlobo Phelane
|
Winch operator
|
Seismic-related fall of ground
|
30 April 2019
|
Doornkop
|
Bernado Benedito Moiane
|
Winch operator
|
Gravity-related fall of ground
|
7 May 2019
|
Bambanani
|
John Daniel Nell
|
Miner
|
Working at heights
|
29 May 2019
|
Phakisa
|
Juan Frank Little
|
Rock engineer
|
Electricity
|
5 June 2019
|
Tshepong
|
Andile Mqungquthu
|
Winch operator
|
Scraper winch
|
28 June 2019
|
Kusasalethu
|
Sennanyane Mashapha
|
Cage attendant
|
Shaft conveyance
|
•
|
Routine seismic monitoring systems are in operation at all our mines in South Africa to monitor all mining-related seismicity, using data generated to quantify exposure to seismicity, to warn of potential instabilities and to aid mine planning and design
|
•
|
Short-term seismic hazard assessments of each mining panel are conducted daily – mining crews are withdrawn depending on the seismic hazard rating of a workplace
|
•
|
Monthly planning process limits the mining rates in high-risk areas and manages the design of mine stope faces
|
•
|
Long-term planning addresses placement of development excavations in the footwall and in the vicinity of other excavations
|
•
|
Long-term mining sequence is addressed in yearly life-of-mine planning and technical sessions
|
•
|
On mines with the hazard of face strain bursts, pre-conditioning of the stope face is applied
|
•
|
Rapid yielding hydraulic props are used on certain seismically active mines to mitigate the high velocity of closure expected during rockbursts
|
•
|
On certain seismically-active mines, backfill is used as a regional and local support to assist in reducing volumetric convergence and high stresses on the face and in maintaining the integrity of fractured rock in the stope face and gully regions
|
•
|
Support units are specially selected to cater for rockfall conditions and dynamic loading in seismically-active areas
|
•
|
Secondary support is installed in selected areas to manage changes in stress and expected shakedown during seismicity
|
•
|
Flooding of mines also influences seismicity – water levels in neighbouring mines and in the zone of influence are monitored and managed where possible
|
•
|
As most seismicity occurs post blasting, centralised blasting is important in ensuring employee safety on seismically active mines. All employees are removed to areas of safety before the blast is set off centrally. This minimises employees’ exposure to the blast itself as well as to the seismicity that could be triggered by the blast. Centralised blasting also helps to reduce the time period in which blasting-induced seismicity predominantly occurs after the blast, ensuring the safe return of employees for the next shift.
|
•
|
installation of on-board cameras to monitor driver behaviour for corrective training
|
•
|
vehicle-specific emergency braking procedure training for drivers
|
•
|
manned check points for trucks to verify permits and licences prior to entry into mine lease areas and prior to certain hazardous declines
|
•
|
automated controls such as collision awareness, fatigue detection and personal protective systems to prevent accidents in FY19.
|
•
|
Health promotion and awareness
|
•
|
Disease prevention and risk management
|
•
|
Clinical intervention (treatment programmes)
|
•
|
Continuous health risk profiling
|
•
|
the national TB incidence rate or
|
•
|
reduce new TB infections in line with the National Strategic Plan
|
Absenteeism
|
|||||
|
FY19
|
FY18
|
FY17
|
FY16
|
FY15
|
Health-related absenteeism (%)
|
7.7
|
7.4
|
7.4
|
7.2
|
8.0
|
Tuberculosis
|
|||||
|
FY19
|
FY18
|
FY17
|
FY16
|
FY15
|
TB screening of employees and contractors
|
37 666
|
29 955
|
30 113
|
29 077
|
na
|
% of workforce
|
99
|
97
|
97
|
96
|
na
|
TB incidence rate (per 100 000 employees tested)
|
841
|
1 063
|
1 366
|
1 524
|
1 887
|
•
|
90% of all people living with HIV will know their HIV status – Harmony is currently at 82% (FY18: 82%) (including contractors)
|
•
|
90% of all people with diagnosed HIV infection will receive sustained antiretroviral therapy – Harmony is currently at 88% (FY18: 80%) medically uninsured people, excluding contractors
|
•
|
90% of all people receiving antiretroviral therapy will have viral suppression
|
HIV/Aids
|
||||||
|
2020 Target (%)
|
FY19
|
FY18
|
FY17
|
FY16
|
FY15
|
Employees identified as HIV-positive
|
|
8 947
|
8 108
|
7 816
|
7 063
|
7 050
|
Employees receiving antiretroviral therapy
|
|
8 024
|
6 938
|
6 430
|
5 333
|
4 016
|
Performance against UNAids targets – 2020
|
||||||
Employees knowing their HIV status (including contractors) (%)
|
90
|
82
|
82
|
78
|
73
|
na
|
Employees receiving antiretroviral therapy (medically uninsured, excluding contractors) (%)
|
90
|
88
|
80
|
78
|
74
|
na
|
Employees receiving antiretroviral therapy will have viral suppression (medically uninsured) (%)
|
90
|
73
|
71
|
70
|
61
|
na
|
Industry milestones for noise-induced hearing loss:
|
By January 2018, no employee’s standard threshold shift will exceed 25dB(A) from the baseline when averaged at 2 000Hz, 3 000Hz and 4 000Hz in one or both ears: Regrettably, five cases were reported where this threshold level was exceeded in FY19
|
By December 2024, the total operational or process noise emitted by any equipment must not exceed a milestone sound pressure level of 107dB(A): Only three machines fall into this category to which there is restricted access and limited exposure time to ensure the safety of our employees
|
Occupational health statistics
|
|
|
|
|
|
Heat
|
FY19
|
FY18
|
FY17
|
FY16
|
FY15
|
Heat tolerance tests conducted
|
22 157
|
20 797
|
15 354
|
15 549
|
6 736
|
Heat-related cases reported
|
88
|
47
|
53
|
20
|
23
|
Noise
|
|
|
|
|
|
Number of early noise-induced hearing loss cases
|
272
|
446
|
518
|
370
|
526
|
Compensated noise-induced hearing loss
|
62
|
116
|
90
|
87
|
81
|
Employees with personalised hearing devices (%)
|
99.5
|
99
|
99
|
97.7
|
98.9
|
Contractor employees with personalised hearing devices (%)
|
85.7
|
84
|
76
|
70.6
|
59.6
|
Silicosis
|
|
|
|
|
|
Number of cases submitted
|
204
|
211
|
220
|
284
|
313
|
Number of cases certified
|
58
|
179
|
108
|
64
|
197
|
Industry milestones: eliminating silicosis
|
By December 2024, 95% of all exposure measurement results will be below the milestone level for respirable crystalline silica of 0.05mg/m³: Annual incremental targets have been set to ensure we meet this milestone ahead of time and not to wait until the deadline is upon us.
|
Occupational health and safety milestone – to eliminate silicosis. Using present diagnostic techniques, no new cases of silicosis will occur among previously unexposed individuals (that is people who were not exposed to mining dust before December 2008 and who began working in the industry in 2009): Since 2017, regrettably, one employee has been certified with first degree silicosis. Workshops are being conducted by occupational hygienists at all operations to establish a strategy to achieve this milestone. This will assure a special focus on areas where compliance is lacking.
|
•
|
TB dialogue at Tshepisong, near our Doornkop mine, where leaders were mobilised at all levels is in line with the goals and objectives for the National Strategic Plan to promote shared accountability for sustainable response to TB and HIV/Aids
|
•
|
A TB-focused health campaign was conducted at Bronville and Extension 20 in conjunction with the Department of Health in the Lejweleputswa district (close to Bambanani) and a total of 109 community members were screened for TB – four were referred for further TB management
|
•
|
Harmony was a co-sponsor of the Run for Diabetes event held in April 2019 to raise awareness of the impact of diabetes on communities and the vital role played by the family in the management, care, prevention and education of diabetes. Employees from our Randfontein head office and the Doornkop and Kusasalethu mines participated in the run. The community-driven event was a collaborative effort between the Kaya FM, Harmony and other sponsors. In addition, Harmony provided free health screenings for all race participants.
|
•
|
The community health outreach programme was developed to improve the health and wellbeing of local communities. It is led by the Medical Department and a Health Extension Officer. During FY19, the following activities were conducted:
|
•
|
Community medical assistance in eight mostly obstetric emergencies that were transferred to Bulolo Health Centre
|
•
|
Local health centre visits to maintain working relationships with local health workers
|
•
|
Community donations of beds by Rotary Australia distributed to local health facilities
|
•
|
Polio vaccination programme to manage the polio outbreak declared by the Papua New Guinea government through a national vaccination plan developed by the World Health Organization for immunisation of children from birth to five years – the Hidden Valley health extension officer vaccinated 3 080 children during five campaigns. A further 474 vaccinations were administered within Wafi-Golpu project area communities
|
•
|
Cervical cancer vaccination programme, begun on 16 January 2019 in partnership with the Rotary Club of Boroko, reached 474 girls, aged nine to 14 years, in the Hidden Valley landowner areas while over 6 000 vaccines were administered to communities within the Wafi-Golpu project area
|
•
|
Three-year South African wage agreement concluded in October 2018 remains in place
|
•
|
Employee training and leadership development remained an important focus area across the group
|
•
|
Sisonke employee share ownership scheme for non-managerial employees in South Africa launched in February 2019
|
•
|
Stable employee relations environment in South Africa and Papua New Guinea
|
•
|
Positive and constructive union stakeholder relationships and roll out of employee relations policy framework in South Africa
|
•
|
Workforce localisation and gender diversification processes progressed in Papua New Guinea
|
•
|
Good progress made with financial education and counselling programmes that address employees’ financial indebtedness
|
•
|
Promotion of employee home ownership scheme proceeding well in South Africa
|
•
|
Entrenching a single organisational culture
|
•
|
Attracting and retaining employees with high potential
|
•
|
Developing employees to meet operational skills requirements and improve productivity
|
•
|
Maintaining effective employee performance and leadership development management systems
|
Employee complement
|
|||||||||
Region
|
Permanent employees
|
Contractors
|
% of employees drawn from
local communities |
||||||
|
FY19
|
FY18
|
FY17
|
FY19
|
FY18
|
FY17
|
FY19
|
FY18
|
FY17
|
South Africa 1
|
31 201
|
32 520
|
26 478
|
6 159
|
5 951
|
4 512
|
79
|
75
|
76
|
Papua New Guinea 2
|
1 675
|
1 397
|
1 300
|
738
|
818
|
911
|
96
|
96
|
95
|
Harmony – total
|
32 876
|
33 917
|
27 778
|
6 897
|
6 769
|
5 423
|
|
|
|
1 Increase in FY18 due to the acquisition of the Moab Khotsong operation and the integration of the related employee complement
2 Excludes employees of the Wafi-Golpu Joint Venture
|
Bursary programme
|
|
On completion of their studies, student bursars can apply for Harmony’s graduate development bursary programme. In all, 81 bursaries (FY18: 101) were awarded to students studying at tertiary institutions. Of the bursaries awarded in 2019, 75 (or 93%) of the students were from local communities and the remainder from the provinces in which we operate. The pass rate in the 2018 academic year was 90% (FY18: 89%). A highlight of FY19 was that four of our bursary students received awards as top-performing students at their respective tertiary institutions within the fields of medicine, engineering and social sciences.
|
Bridging school
|
|
Harmony’s bridging school supports mathematics and science at grade 12 level to assist school leavers improve their final results and gain admission to tertiary institutions. On successful completion of grade 12, some are awarded bursaries, while others apply for learnerships within the company.
Since the school’s inception in 1996, we have registered 470 students in all – 33 (or 7%) were awarded bursaries and 369 attended our learnership programme. The remaining students were appointed to permanent positions within Harmony.
|
Mathematics, science and language enhancement project
|
|
Harmony recognises the need for learners to achieve excellent results in mathematics and physical science, and the important role teachers play. A dedicated project ensures that teachers with proven credentials and experience are appointed at schools in the communities near our Moab Khotsong operation, where most of the learners have disadvantaged backgrounds.
|
Learnerships
|
|
Harmony runs various formal learnership programmes in mining, engineering and ore reserve management. In FY19, 343 learners (FY18: 306) were enrolled at various stages in learnership programmes. Of the total number enrolled, 95 engineering learners and 34 mining learners completed their programmes in FY19 (FY18: 91 completed learnerships). Most of the learners will be appointed to positions available within the company.
|
Internship and experiential programmes
|
|
In support of our social and labour plans, we hosted 58 students (33 internships and 25 experiential trainees) during FY19 (FY18: 43 students – 18 interns and 25 experiential trainees).
|
Social plan programme
|
|
We continue to provide alternative skills training to employees, current and retrenched, through our social plan programme, which was facilitated by the framework agreement between Harmony and NUM in 2003. The training enables people to remain economically active beyond mining, cushioning the economic impact of unavoidable retrenchments or the loss of employment when mines reach the end of their lives.
|
Portable skills development
|
|
In FY19, 1 114 employees (FY18: 1 532) received portable skills training. Around 51% (FY18: 57%) were proxies (dependents of mine employees). The number of people being trained in portable skills has almost quadrupled in recent years. Over the past 10 years, Harmony has provided portable skills training to approximately 10 000 employees (and/or their proxies) in basic electrical work, end-user computing, basic welding, basic motor mechanics, clothing manufacture, furniture making, plumbing, bricklaying, animal production and mixed farming systems.
|
•
|
Workforce training at Hidden Valley in FY19 included:
|
•
|
Production training
|
•
|
Safety compliance training
|
•
|
National Training Accreditation Council compliance
|
•
|
Professional development
|
•
|
Computer software courses
|
•
|
Supervisor development programme
|
Gold wage negotiations
|
|
Harmony negotiates changes to wages and other conditions of employment through a recognised collective bargaining structure at a centralised industry forum under the auspices of the Minerals Council. The three-year wage settlement reached on 3 October 2018 with the unions representing the majority of employees at Harmony, and extended to all employees within the bargaining unit, remains in place.
|
•
|
Safety is an imperative
|
•
|
Maintained our focus on safety risk management, the monitoring of controls leadership and safe behaviour to imbed a proactive safety culture
|
•
|
Group lost-time injury frequency rate improved to 6.16 per million hours worked
|
•
|
17% increase in production – Moab Khotsong and Hidden Valley boost production and cash flow
|
•
|
Production guidance achieved in line with annual guidance – fourth consecutive year
|
•
|
2% increase in underground recovered grade – seventh consecutive annual increase
|
SAFETY AND HEALTH
• Live longer journey
• Risk management and focus on critical controls
|
INFRASTRUCTURE MANAGEMENT
• Improved insurance rating
• Fewer unplanned stoppages
|
MANAGEMENT OF GRADE AND MINING FLEXIBILITY
• No mining below cut-off grade
• Incorporating flexibility into our mining plans
|
ENVIRONMENTAL AND SOCIAL MANAGEMENT
• Sustainable and responsible environmental stewardship
• Community engagement and social upliftment
|
COST MANAGEMENT
• Focused cost management and project delivery
• Improved productivity
|
CAPITAL ALLOCATION
• Prioritised and focused capital allocation for growth and to sustain the business
|
•
|
Improve safety focus and performance at all operations
|
•
|
Meet all operational targets and generate free cash flow
|
•
|
Improve operating performance at Tshepong Operations
|
•
|
Increase focus on cost management and reduce unit cost by improving safety performance, delivering on our production plans, and increasing the underground recovered grade and the productivity of our mining teams
|
•
|
Wafi-Golpu, a greenfield exploration project, an excellent long-term opportunity
|
◦
|
However, permitting and legislative changes may impact the availability of the project
|
•
|
Geotechnical drilling confirms viability of early access of the Nambonga decline
|
•
|
Near-mine exploration in the vicinity of Hidden Valley targets potential high-grade satellite epithermal gold deposits
|
•
|
Exploratory greenfield drilling currently underway at Target North
|
•
|
Focus on organic brownfield exploration at Kalgold –mineral resource estimate updated in January 2019:
|
◦
|
89.8MT @ 0.91g/t for 2.636Moz of gold
|
◦
|
prefeasibility study continues
|
•
|
Tailings retreatment expansions are planned or underway:
|
◦
|
the Central Plant tailings retreatment to be expanded to 500 000 tonnes a month
|
◦
|
tailings reclamation at Joel Plant – prefeasibility underway
|
◦
|
Mispah tailings retreatment project - prefeasibility study indicates an 11-year project life
|
•
|
Brownfield exploration at Hidden Valley and Kalgold to optimise existing open pit operations and extend mine life
|
•
|
Brownfield exploration at underground operations in South Africa
|
•
|
Greenfield exploration currently underway at Target North, South Africa
|
•
|
Papua New Guinea: R468 million (US$33 million) (FY18: R407 million; US$37 million) was spent on exploration, driven largely by Wafi-Golpu related activities. Expenditure of R278 million (US$20 million) is planned for FY20
|
•
|
South Africa: R58 million (US$4 million) (FY18: R50 million; US$4 million) was spent on exploration with expenditure of R96 million (US$7 million) planned for FY20
|
Exploration – Papua New Guinea
Our exploration programme in Papua New Guinea focused on near-mine brownfield exploration aimed at extending Hidden Valley’s operating lie and greenfield exploration and rationalisation of our tenement holdings. A summary of the work done in the past year is as follows:
Brownfield focus around Hidden Valley:
• Exploration programmes focused on near-mine brownfield targets on the contiguous tenement package surrounding the Hidden Valley mining lease which comprises 502km2 of tenure
• Prefeasibility studies on the down-dip extensions of the Hidden Valley and Kaveroi orebodies to extend mine life continued
• Generative work for high-grade satellite gold deposits has developed new drill targets at the Webiak Prospect:
o Located approximately 7km north of the Hidden Valley mine
o Low sulphidation epithermal gold-silver vein mineralisation
o Drill testing planned for the first quarter of FY20
Greenfield exploration and tenement rationalisation:
• Reduction in regional greenfield exploration programmes and tenement holding in favour of near-mine brownfield exploration continued
• Harmony (100%) tenement holding reduced to 711.8km2 (FY18: 963.75km2)
• Joint venture (Harmony 50%) tenement holding reduced to 182.3km2 (FY18: 325.3km2):
o Harmony continues to manage exploration on the portfolio tenement package on behalf of the exploration portfolio joint venture participants (ultimate parent companies:
Newcrest 50%; Harmony 50%) |
•
|
the special mining licence, the environmental impact statement and all other necessary tenements and permits required have been granted
|
•
|
all required agreements with the State and landowners have been signed
|
•
|
all necessary approvals have been received from the boards of directors of the ultimate holding companies of the joint venture partners
|
•
|
Central Plant tailings retreatment facility – reclamation “plus”: The initial project operated at monthly nameplate capacity 500 000 tonnes for most of FY19. Further expansion to monthly capacity of 700 000 tonnes is planned. The feasibility study met our economic and technical criteria and the expansion project is currently in design phase. Capital allocation is awaited
|
•
|
Mispah tailings retreatment: A prefeasibility study was conducted to investigate the economic viability of retreating the tailings material stored in the Mispah 1 tailings facility. The tailings are to be treated at the Noligwa plant and the residue deposited onto the Mispah 3 extension of the Mispah tailings storage complex. The prefeasibility study indicated an 11-year project life with estimated production of 7 922kg of gold from the reclamation of 66.3Mt of tailings at a monthly rate of 510 000 tonnes. Project capital is estimated at R624 million and the project will yield a net present value of R400 million at a gold price of R585 000/kg and a 7.5% discount rate. The results of a risk-based study conducted by SRK on the installation of lining under the Mispah 3 TSF extension are to be presented to the Department of Water and Sanitation. The outcome of this engagement with the department will guide the timing and scope of the feasibility study, which is currently on hold
|
•
|
Joel tailings reclamation: A prefeasibility study is underway to investigate the potential benefits of recovering gold from reclaimed tailings at the Joel plant and depositing the retreated tailings onto the Joel tailings storage facility
|
For further detail on our exploration programme and more information on the projects currently underway, please see Mineral Resources and Mineral Reserves 2019, available at www.har.co.za.
|
•
|
Included in the FTSE4Good Index of responsible investment in recognition of our performance
|
•
|
Board approved new preferential procurement and enterprise and supplier development strategy
|
•
|
Spent R6.3 billion on black economic empowerment companies ** – of this R1.9 billion* was spent with small businesses operating in five mine host communities
|
•
|
Focused drive to increase procurement opportunities for businesses in host communities, including the hosting of community supplier days
|
•
|
Projects covered by second generation social and labour plans completed at a total cost of R476 million (includes R303 million investment by government) over five years 2013-2017
|
•
|
Third generation infrastructure and agriculture projects implemented
|
•
|
Continued focus on community agri-business projects offering alternative sustainable income sources
|
•
|
Successful cocoa and coffee pilot projects in Papua New Guinea receive many accolades attesting to their success with one farmer winning gold for his cocoa
|
•
|
producers: to attain food security and stability
|
•
|
income generators: by selling, saving and adding value
|
•
|
entrepreneurs: improving business management skills relating to production and sale of produce
|
•
|
employers: employing family, neighbours and other community members
|
•
|
Maintenance and upgrades to elementary and primary schools in the mine and project areas
|
•
|
Provision of stationery and materials for students and teachers at elementary and primary schools
|
•
|
Landowner School Fee Assistance Programme
|
•
|
Harmony’s Tutudesk initiative (including 2 000 Tutudesks distributed among 39 elementary schools in the Wau, Bulolo and Wafi-Golpu project area)
|
•
|
Assisting provincial government in appointing new teachers
|
•
|
Adult literacy programmes and education initiatives focused on women and children
|
•
|
Maintenance and upgrades of mine and project area first aid posts and clinics as well as assistance with staffing
|
•
|
Obstetrics training at the Bulolo health centre
|
•
|
Assisting the Papua New Guinea Department of Health to administer polio and cervical cancer vaccinations (3 080 and 474 polio vaccinations administered respectively in Hidden Valley and Wafi-Golpu communities and another 6 000 for cervical cancer in Wafi-Golpu communities)
|
•
|
Routine health centre visits and health patrols with focus on antenatal care and childhood immunisation
|
•
|
Community medical assistance, including emergencies and transfers to Bulolo and Lae health centres
|
•
|
Distributed 23 beds donated by Rotary Australia to four health facilities in the Hidden Valley area
|
•
|
Contributions to power running costs at local hospitals
|
Partnering for development in Papua New Guinea
|
|
At a business breakfast hosted by the Lae Chamber of Commerce on 28 August 2019, Harmony provided a wide-ranging overview of its activities in Papua New Guinea.
|
Harmony affirmed ongoing commitment to mining in Papua New Guinea, highlighting achievements since its entry into the country almost 16 years ago, including permitting, construction and operation of the Hidden Valley mine and advancement of the Wafi-Golpu project from exploration to current permitting phase.
|
Harmony affirmed ongoing commitment to mining in Papua New Guinea, highlighting achievements since its entry into the country almost 16 years ago, including permitting, construction and operation of the Hidden Valley mine and advancement of the Wafi-Golpu project from exploration to current permitting phase.
|
Harmony emphasised the importance of safety at its operations and noted that the Hidden Valley mine currently operates at an industry-leading total recordable injury frequency rate of 0.69 per million hours worked.
|
As an established partner in the development of Papua New Guinea, Harmony estimates that it has contributed approximately PGK2.9 billion (R11 billion; US$1.1 billion) to the Morobe Province through its investments in the Hidden Valley mine, Wafi-Golpu project and exploration within the province over the past 10 years.
|
Harmony is also a significant contributor to the Morobe Kundu Vision 2048, a vision and plan to make the Morobe province prosperous, healthy, educated and self-sufficient by 2048. We contribute financially and through our tangible contributions to the community. With an anticipated 28-year operational mine life, the Wafi-Golpu project will contribute towards the achievement of the goals of the Kundu Vision well into the future.
|
The Hidden Valley mine alone has directly and indirectly contributed over PGK5 billion (R19 billion; US$1.9 billion) to the regional and national economy over the past 10 years, including PGK489 million (R1.9 billion; US$185 million) in royalties and direct paid taxes. The mine has created around 2 000 jobs, with 72% of the workforce based in Morobe Province. To date, around PGK1.1 billion (R4.0 billion; US$380 million) have been paid in salaries and wages over the mine’s operating life. Hidden Valley’s contribution includes various socio-economic development projects and programmes. Currently, over 100 local farmers are being trained in coffee husbandry and farm management, and three coffee nurseries have been established. The first harvest was taken to market in July 2019. See Socio-economic projects for more information.
|
The development of the Wafi-Golpu project is a key future economic driver for the Morobe Province and Papua New Guinea. As an active explorer in the Morobe Province since 2004, Harmony has invested approximately PGK1 billion (R4.1 billion; US$0.5 billion) in exploration and studies over time.
|
•
|
supporting existing non-compliant suppliers (those who do not comply with the minimum black economic empowerment ownership targets set out in Mining Charter III) to comply and transform, or moving procurement spend to compliant suppliers
|
•
|
enhancing Harmony’s current supply-chain model and ensuring that preferential procurement is embedded within the sourcing process
|
•
|
creating a pipeline of small and medium enterprises to participate in the supply chain
|
Leano funding initiative
|
|
Beyond the enterprise and supplier development centres , Harmony has introduced the Leano funding initiative which is an extension of these centres to identify and support entrepreneurs in host communities who require financial and technical start-up assistance. This is a focused initiative to develop SMMEs within our mining communities. Harmony provides financial and non-financial support to these enterprises, irrespective of whether they enter our supply chain or other supply chains
|
In FY19, the fund approved 96 loans (35 for women and 17 for youth) to the value of R17 million.
|
Company
|
Impact
|
Senatla Trading Enterprises
|
Employees: 46
|
Ruben Thoso, owner for Senatla Trading Enterprises, a 100% black-owned business based in Welkom, Free State, is involved in the rehabilitation and filling of closed shafts as well as the installation of pump columns. The company participated in the Lejeleputswa Supplier Day when procurement opportunities and enterprise supplier development opportunities were shared.
|
Support provided by Harmony:
• Quality management systems
• Coaching, mentoring and access to procurement opportunities
• Total spend with Senatla Trading Enterprise for FY19 was R10 million
|
Lekabe Engineering Service and Project
|
Employees: 15
|
(100% black women-owned engineering company in North West Province)
The owner, a black woman, is a qualified mechanical foreman with more than 15 years’ experience in the mining industry
|
Support provided by Harmony:
• Vendor facilitation services Vendor facilitation process
• Quality management systems
• Total spend with Lekabe Engineering for FY19 was R320 000
• Company currently working on a R2 million engineering project at the Doornkop mine
|
Lesole Agencies
|
Employees: 60, from host communities
|
Meshack Lesole, owner of Lesole Agencies, a 100% black-owned company based in Welkom, Free State, started by providing basic construction services to Harmony before his business expanded into land rehabilitation and plant hire.
|
Support provided by Harmony:
• Vendor funding
• Preferential payment terms and technical compliance
• Total spend with Lesole Agencies in FY19 was R15 million
|
Divine Automation Solutions
|
Employees: 3
|
Ramano Gerhard, owner of Divine Automation Solutions, a 100% black-owned company was discovered at a supplier day. The company, a new entrant in the technical services industry, provides technical services for valve and actuator maintenance as well as fault finding, support and training for shaft and plant operators on preventive maintenance.
|
Support provided by Harmony:
• Vendor financing
• Preferential payment terms and technical compliance
• Quality management systems
• Spend of R1 million with company in FY19
|
•
|
education
|
•
|
socio-economic advancement projects
|
•
|
health
|
•
|
arts, culture sports and recreation
|
•
|
R7 million or US$0.5 million (FY18: R15 million or US$0.8 million) on corporate social responsibility projects in South Africa
|
South Africa
|
Selected corporate social investment initiatives are:
|
• Back-to-school programme (education)
|
o Beneficiaries: 100 learners in five primary schools located close to our Doornkop mine
|
o Donation of school shoes and bag packs
|
• Doornkop schools league (sports and recreation)
|
o Beneficiaries: 10 primary schools from Soweto, near the Doornkop mine
|
o Number of teams: 30
|
o Sporting codes: netball, boys and girls soccer
|
•
|
Continued investment in environmental management in FY19: R199 million (US$13.9 million)
|
•
|
All long-life assets are ISO-14001 certified
|
•
|
All plants, except Kalgold, Saaiplaas and Hidden Valley, are certified compliant with the Cyanide Code
|
•
|
Three water retreatment plants installed contributed to:
|
◦
|
Reduced dependency on potable water supply
|
◦
|
Promoted water security
|
◦
|
Contributed to annual savings of R5.6 million
|
•
|
Estimated cost of phase 1 of the carbon tax is R1.6 million and for phase 2 between R100 million and R500 million
|
•
|
Energy efficiency programme delivered savings of 233 994MWh with 53 304 MWh in savings from newly implemented projects
|
•
|
Accelerated rehabilitation programme has resulted in the rehabilitation and backfilling of 45 shafts to date
|
•
|
Linkages effected with artisanal and small miners to support the mining of gold and aggregate
|
•
|
Hidden Valley’s mine closure plan submitted to the Papua New Guinea Conservation and Environment Protection Authority
|
•
|
25% reduction in diesel-generated power supply at Hidden Valley due to improved supply from the national hydro-power grid
|
•
|
Project execution focused on performance and risk management of tailings storage facility to adhere to regulatory conditions of approval and enhance existing emergency response strategies
|
•
|
Doornkop complex
|
•
|
Kusasalethu complex
|
•
|
Target complex
|
•
|
Tshepong Operations
|
•
|
Masimong
|
•
|
Harmony One Plant
|
•
|
Moab Khotsong complex
|
•
|
Joel complex
|
•
|
Land stewardship – minimising our environmental footprint and conserving biodiversity
|
•
|
Reducing energy consumption and greenhouse gas emissions, enhancing efficiencies and limiting impact on climate
|
•
|
Water conservation and optimising water consumption at our South African operations
|
•
|
Air quality and dust management
|
•
|
Waste management, especially mineral waste (tailings and waste rock) and related management of tailings dams
|
•
|
Regulatory compliance
|
•
|
Regulatory uncertainty
|
Changing legislative framework creating uncertainty
South Africa:
In South Africa, mining is primarily regulated by the Mineral and Petroleum Resources Development Act, with other key legislation being the National Environmental Management Act and the National Water Act. Recent legislative changes in South Africa have included the introduction of a carbon tax, implementation of mandatory greenhouse reporting and more recently the climate change bill to promote a low-carbon economy. The environmental financial provision regulations and the various drafts since 2015, for which no conclusive draft was published, also created uncertainty. This has to some extent been mitigated by the Department of Environment, Forestry and Fisheries which has communicated its intention to delay their implementation from February 2020 to February 2021 to allow for more consultation. For further information, refer to the 20F which is available at www.harmony.co.za.
Papua New Guinea:
Water extraction and waste discharge by mining projects are regulated in accordance with the Environment Act 2000 administered by the Papua New Guinea Conservation and Environment Protection Authority.
Extensive legislative review continues and a number of policy changes are currently under consideration. Of particular relevance to Harmony in Papua New Guinea is the revised mine closure policy, which includes provision for financial assurance, as security for mine closure costs, and the introduction of a biodiversity offset policy. The proposed Papua New Guinea Biodiversity Offsets Framework was released for industry review during FY19. Harmony continues to engage with the government of Papua New Guinea through the offices of the Chamber of Mines and Petroleum, the Minister for Environment and senior members of the Conservation and Environment Protection Authority.
|
Annual expenditure on our environmental portfolio
|
||||
|
FY19
|
FY18
|
||
|
Rand millions
|
US$ millions
|
Rands millions
|
US$ millions
|
South Africa
|
|
|
|
|
Implementation of environmental control
|
90
|
6.3
|
71
|
5.6
|
Mine rehabilitation projects
|
79
|
5.6
|
86
|
6.7
|
Papua New Guinea
|
|
|
|
|
Implementation of environmental control
|
30
|
2.1
|
24
|
1.9
|
Harmony – Total
|
199
|
14.0
|
181
|
14.2
|
Location
|
|
FY19
|
|
Description
|
|
Mitigating action
|
Kalgold plant
|
|
Q1
|
|
A dust fallout resulted in relevant dust thresholds being exceeded. There was an incidence of fallout dust readings exceeding the relevant threshold. This was fugitive dust from a tailings dam.
|
|
Dust allaying interventions and vegetation on the benches of the tailings facility
|
Hidden Valley
|
|
Q1
|
|
Non-compliance with the environmental permit was recorded at the Nauti Compliance point. The presence of Weak Acid Dissociable Cyanide arose from under-dosing of reagents at the water treatment plant. From the monitoring results, this did not significantly impact the environment. Non-compliance remained below the human health criteria of 0.07mg/l for drinking water.
|
|
Remedial measures implemented included a review of processing procedures to safeguard against a repeat incident
|
Hidden Valley
|
|
Q2
|
|
A further breach of the environmental permit criteria for Weak Acid Dissociable Cyanide was recorded at the Nauti compliance point. The cause was identified as the pipeline configuration not being returned to the tailings storage facility. No significant impact to the environment was recorded and the
non-compliance remained below human health (drinking water) criteria. |
|
Further remedial measures were implemented to improve operational control. These focused on reconfigurations to the pipeline network, improved in-line and real-time monitoring capability, revisions to administrative controls such as trigger, action and response plans, and improved analytical reporting and accuracy of sample data.
|
Saaiplaas plant (Phoenix operation)
|
|
Q4
|
|
Spillage from a slurry pipeline resulted in reclaimed tailings leaking onto the adjacent property. This was a very localised spillage onto impacted land.
|
|
The leakage was repaired immediately together with a clean-up of the tailings slurry spillage. This is supported by a pipeline replacement programme currently underway. The impact was minimal due to the rapid response and communication with the farmer affected
|
•
|
Agriculture and agri-processing projects at Doornkop, Moab Khotsong and Kusasalethu
|
•
|
Alternative energy projects including bio-energy and solar projects
|
•
|
Conservation initiatives
|
•
|
Industry applications
|
Over the next five years, Harmony plans to implement our biodiversity action plans and, within the next 10 years, we aspire to participate in at least one offset initiative in each of our operating regions.
|
•
|
promoting energy efficiency at our deep-level mines in South Africa
|
•
|
optimising and rebalancing our asset portfolio
|
•
|
promoting an alternative energy mix
|
•
|
aligning our rehabilitation programme with the green energy agenda
|
Energy consumption (MWh)
|
FY19
|
FY18
|
FY17
|
FY16
|
FY15
|
South Africa
|
3 209 411
|
2 458 423
|
2 537 944
|
2 542 463
|
2 608 157
|
Papua New Guinea
|
2 131 266
|
3 90 298
|
90 380
|
54 976
|
59 218
|
Total
|
1 3 340 677
|
2 548 721
|
2 628 324
|
2 597 439
|
2 667 375
|
Consumption intensity (MWh/tonne treated)
|
0.12
|
0.11
|
0.14
|
0.13
|
0.15
|
1 Increase in energy consumption driven by Harmony’s acquisition of Moab Khotsong
2 Includes Papua New Guinea diesel consumption used to produce electricity (13 900MWh)
3 Although full year production included, the plant did stand for planned shutdown
|
•
|
Intelligent real-time energy management systems automatically control compressed air, water reticulation, ventilation and ore transportation to reduce energy consumption and enhance safety.
|
•
|
A data management system facilitates capturing, centralisation, validation, management and reporting of environmental and operational information. As a management toolbox, it improves access to environmental data and enables effective environmental management, including monitoring of water consumption and carbon dioxide emissions as well as performance against targets. Storage of environmental data in a central electronic repository, with supporting documentation, helps expedite data validation, reinforces accurate decision-making and improves environmental management. By automatically comparing data with the source documents, annual internal audits and travel to mine sites have become redundant as auditors can log in externally. Developed and implemented by independent environmental efficiency specialists, Harmony began using this system in June 2019.
|
•
|
Condition monitoring of infrastructure and systems automatically analyses millions of data points daily to predict failures and identify inefficiencies. When problems are detected, a report is generated automatically and sent to relevant managers.
|
•
|
Digital twinning and simulation technologies have been identified for strategic future mining. A digital twin is a computer-generated model of a mine that enables monitoring of the entire operation in real time. Integrating simulation capabilities into the digital twin assists with identifying the causes of inefficiencies. The simulations are also used for “what if” analyses and to predict constraints.
|
Project description
|
Annual
energy savings (MWh) |
Annual greenhouse gas savings1 (t CO2)
|
Annual
water savings1 (ML) |
Kusasalethu
|
|
|
|
Compressed air network optimisation
|
12 258
|
11 890
|
15 935
|
Water reticulation optimisation
|
7 051
|
6 839
|
9 166
|
Unisel
|
|
|
|
Compressed air optimisation
|
9 763
|
9 470
|
12 692
|
Ventilation and refrigeration optimisation
|
10 088
|
9 785
|
13 114
|
Moab Khotsong
|
|
|
|
Refrigeration optimisation
|
4 648
|
4 509
|
6 042
|
Tshepong Operations
Tshepong section
|
|
|
|
Refrigeration optimisation
|
6 720
|
6 518
|
8 736
|
Compressed air network optimisation
|
4 990
|
4 840
|
6 487
|
Phakisa section and Nyala
|
|
|
|
Compressed air network reconfiguration
|
6 183
|
5 998
|
8 038
|
Masimong
|
|
|
|
Water reticulation optimisation
|
4 773
|
4 630
|
6 205
|
Doornkop
|
|
|
|
Compressed air supply optimisation
|
4 881
|
4 735
|
6 345
|
1 Indirect CO2e and water savings (Eskom)
|
|
|
|
CDP and the Task Force for Climate-related Financial Disclosure
Harmony has for several years, including 2019, been disclosing its carbon-related impact and performance through its CDP Climate Change submission. Going forward, Harmony will be aligning its annual carbon-related reporting with best practice for global climate reporting and we will be structuring our annual reporting in accordance with the requirements and guidelines of the Task Force for Climate related Financial Disclosure (TCFD). We will be focusing on four key areas – governance, strategy, risk management and metrics and targets – as defined by the Task Force for this year’s report as we begin integrating the its requirements with our existing reporting structures.
|
•
|
rebalanced our asset portfolio by closing several carbon-intensive operations as they have reached the end of their geological life
|
•
|
decommissioned and sealed old mining shafts
|
•
|
received environmental authorisations for three solar projects with final procurement processes currently being concluded
|
•
|
Harmony is currently considering several renewable and alternative energy projects in South Africa:
|
•
|
bio-energy project
|
•
|
three 10MW photovoltaic power plants in the Free State on Harmony-owned land
|
•
|
initiatives to reduce electricity consumption – these have reduced energy consumption across the group by 21% since 2010 (excluding Moab Khotsong).
|
Group carbon emissions
|
|
|
|
|
|
|
FY19
|
FY18
|
FY17
|
FY16
|
FY15
|
Scope 1 emissions breakdown by source (CO2e tonnes)
|
|
|
|
|
|
Diesel
|
129 675
|
128 505
|
108 306
|
53 278
|
64 244
|
Explosives
|
2 294
|
2 135
|
1 953
|
1 838
|
1 748
|
Petrol
|
1 143
|
844
|
784
|
777
|
909
|
Total
|
133 112
|
131 484
|
111 043
|
55 893
|
66 901
|
Scope 1 emissions breakdown by source (%)
|
|
|
|
|
|
Diesel
|
97.4
|
97.7
|
97.5
|
95.3
|
96
|
Explosives
|
1.7
|
1.6
|
1.8
|
3.3
|
3
|
Petrol
|
0.9
|
0.7
|
0.7
|
1.4
|
1
|
Total
|
100
|
100
|
100
|
100
|
100
|
Total scope 1, 2 and 3 emissions (CO2e tonnes)
|
|
|
|
|
|
Scope 1
|
133 112
|
131 484
|
111 043
|
55 893
|
66 901
|
Scope 2
|
*3 192 750
|
2 442 256
|
2 512 565
|
2 580 600
|
2 686 401
|
Scope 3
|
532 704
|
439 551
|
445 033
|
615 456
|
686 233
|
Total
|
3 858 566
|
3 013 291
|
3 068 641
|
3 251 949
|
3 439 535
|
Total scope 1, 2 and 3 emissions (%)
|
|
|
|
|
|
Scope 1
|
3
|
4
|
4
|
2
|
2
|
Scope 2
|
*83
|
81
|
82
|
79
|
78
|
Scope 3
|
14
|
15
|
14
|
19
|
20
|
Total
|
100
|
100
|
100
|
100
|
100
|
Responsible stewardship: suppliers and market
Harmony engages regularly with key and relevant suppliers in our supply chain, who indirectly contribute to our Scope 3 greenhouse gas emissions, to ensure that they have processes in place to monitor and manage their carbon and water footprints.
Rand Refinery, which smelts, evaluates, refines and fabricates the gold we produce for investment and retail clients, is also committed to internationally accepted responsible sourcing practices in terms of the London Bullion Market Association Responsible Gold Guidance as well as the Organisation for Economic Co-operation and Development Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas. The certified gold chain of custody is also audited independently in line with the requirements of independent bodies and enacted legislation.
Rand Refinery is ISO accredited in terms of 45001:2018, which replaced the OHSAS 18001:2007, ISO 9001:2015 and ISO 14001:2015 certifications.
|
Emissions management
Ventilation exhausts servicing our underground operations in South Africa expel air into the atmosphere. Harmony conducted a study to determine the make-up of the air, especially in relation to methane and concluded that the methane emitted occurs in trace concentrations, which is negligible.
Many of our gold plants have kilns, smelters and burners which require annual monitoring and assessment for submission to the relevant regulators. During our annual assessments, elements such sulphur dioxide and nitrous oxides are measured against an approved Air Emissions Licence. All relevant gold plants meet the regulatory requirement.
The main air quality concern remains dust fallout that impacts surrounding communities. A dust monitoring programme has been comprehensively updated for relevant operations. All historic monitoring points together with the methodology were re-evaluated and additional monitoring points have been added to the existing network for improved data collection and mitigation.
|
•
|
Far West Rand Technical Working Group
|
•
|
KOSH Mine Water Forum
|
•
|
Free State Government Task Team
|
Doornkop agricultural project
A vegetable project, using excess potable water from the Doornkop water-treatment plant, is being established. Refer to
Socio-economic development. |
•
|
Water conservation in the Free State: In line with our strategy, we have built a third water-treatment plant in the Free State. This will ensure security of water, reduce water consumption and assist with water conservation. The plant will treat 2.8ML of water a day and will save R3.2 million in water bills annually. The three treatment projects will bring about a total saving of R5.6 million annually
|
•
|
Kalgold: Situated in a water scarce area, Kalgold’s D-Zone pit deposition ensures water is available for production with the surrounding borehole network augmenting water needs when necessary. Modified plant and tailings storage facilities have maximised the recovery of water for reuse; process water dams have been reinforced to increase storage capacity and minimise overflows; and efficient flow meters and valves have been installed
|
CDP Climate Change and Water reporting
CDP, the non-profit global environmental disclosure platform, has again acknowledged Harmony as a global leader in corporate sustainability.
Harmony’s scores for CDP Climate Change 2018 and CDP Water 2018 were A- and B respectively. In South Africa, no company scored an A for water.
According to the CDP, their 2018 reports, comprising reviews of more than 7 000 global companies, were produced at the request of more than 650 investor signatories managing assets worth US$87 trillion.
CDP South Africa Water 2018 states: “South Africa is facing a water crisis caused by insufficient water infrastructure maintenance and investment, recurrent droughts driven by climatic variation, inequities in access to water and sanitation, deteriorating water quality, and a lack of skilled water engineers.”
CDP South Africa Climate Change 2018 notes: “Exceeding [temperature increases of] 1.5 degrees globally, could have catastrophic impacts for South Africa which is physically and economically vulnerable to climate change.”
|
Water conservation strategies
Water is a critical resource in South Africa and for mining. Harmony’s main goal is therefore to reduce its dependence on water. It has also collaborated with operational efficiency specialists to simulate water reticulation networks at the different operations using Industry 4.0 technologies. These water studies have enabled Harmony to identify operational improvements in the water network resulting in monthly process water savings of 75ML and an annual potable water cost saving of R6 million.
The collaboration has also placed significant focus on ensuring continual awareness of water usage. Internal water reporting has become a key performance metric at the operations. Daily underground water reticulation analyses are done which immediately alert relevant personnel if intervention is required. Furthermore, water management systems have also been installed to manage and reduce inefficiencies. For example, these systems have contributed to a monthly improvement in chilled water usage at the Target mine of 35ML.
Results of the various efforts to reduce Harmony’s water usage can be seen in the water used for primary activity key performance indicator. For the group as a whole, our operations have reduced water used in primary activities by 7.5% over the past two years while the water intensity has improved by 21% (see table below). The intensity improvement can be attributed to the increase in tonnes treated over the entire group.
|
Key performance indicator
|
Baseline FY17 1
|
FY19
|
Target reduction by 2022
|
|
FY19 reduction on baseline
|
|
|
Water used for primary activities (m3)
|
25 023 208
|
23 158 152
|
7
|
%
|
7.5
|
%
|
|
Water intensity (m3/tonne treated)
|
1.13
|
0.89
|
7
|
%
|
21
|
%
|
|
1 Adjusted for Moab Khotsong acquisition.
|
|
|
|
|
|
•
|
controlled run-off of rainfall to prevent erosion and sediment entering the river system
|
•
|
recycling of site water to limit the volumes of water stored on the tailings storage facility and requiring release to the environment
|
•
|
treatment of wastewater prior to discharge
|
Acid mine (metalliferous) drainage
Major sources of acid mine drainage include drainage from underground mine shafts as well as run-off and discharge from open pits and mine waste dumps, tailings and ore stockpiles. Tailings and ore stockpiles make up nearly 88% of all waste produced at our South African operations.
Our water-management strategy involves intercepting water before it is polluted underground. When there is a risk that rising water levels underground could hinder access to our ore reserves or those of other operations, or harm the environment, water is pumped to surface. It is then consumed as plant intake.
In our Free State operating area, Welkom, is a water-stressed environment and our environmental modelling confirms that there is no risk of a surface decant of acid mine drainage currently or beyond end of life. There is therefore no material risk to surface and groundwater sources in Welkom.
Geohydrological studies confirm the same outcome for Kalgold, Doornkop and Kusasalethu. That said, both Doornkop and Kusasalethu are situated in complex catchments compounded by the inter-connected nature of mining operations in the area. These operations participate in regional geohydrological and closure studies.
In Papua New Guinea, acid and metalliferous drainage may occur from landforms that contain potentially acid-forming material such as the waste rock dumps and ore stockpiles. Potential environmental impacts are mitigated by the construction of engineered waste rock dumps and the selective placement of potentially acid-forming waste rock within the dump.
A current focus of the closure work programmes is to understand the performance of the waste rock dumps at and beyond mine closure, with a view to formulating closure designs that preclude the occurrence of acid and metalliferous drainage.
|
Materials used
|
|
|
|
|
|
|
FY19
|
FY FY18
|
FY17
|
FY16
|
FY15
|
Rock mined: ore and waste (000t)
|
47 095
|
43 578
|
33 150
|
27 606
|
29 948
|
Ore mined (000t)
|
25 980
|
22 441
|
19 402
|
19 739
|
13 041
|
Waste rock recycled (000t)
|
6 575
|
3 690
|
4 668
|
3 964
|
6 647
|
Slimes recycled (000t)
|
9 992
|
9 772
|
6 559
|
6 131
|
5 987
|
Liquefied petroleum gas (t)
|
1.3
|
1
|
0.47
|
0.54
|
1.14
|
Grease (t)
|
506
|
426
|
121
|
384
|
54
|
Cyanide (000t)
|
23.2
|
23.3
|
21.0
|
18.0
|
14.3
|
Petrol and diesel (000L)
|
48 742
|
48 461
|
40 811
|
20 298
|
24 464
|
Lubricating and hydraulic oil (000L)
|
3 163
|
2 744
|
2 768
|
2 291
|
2 772
|
•
|
plant grinding media
|
•
|
feed into the backfill plants
|
•
|
physical characteristics present an opportunity for the aggregate industry
|
Management of tailings in Papua New Guinea
|
Hidden Valley’s advanced waste management systems have generated positive feedback from stakeholders, particularly the tailings storage facility, which is the first large facility of this type to be operated successfully in Papua New Guinea.
|
A magnitude 7.2 event earthquake was experienced some 55km north-north west of Hidden Valley on 7 May 2019. No significant ground movement, evidence of cracking or instabilities of concern were observed at the tailings storage facility following this earthquake event.
|
Approval to raise the tailings storage facility dam embankment to RL2015 was granted by the Papua New Guinea Chief Inspector of Mines on 31 January 2019, contingent on a series of conditions focused on:
|
• the management of safety critical risk controls
|
• appropriate governance and supervision
|
• compliance with ANCOLD 2012a
|
• safe and effective maintenance, construction and operation of the facility
|
There was thus considerable focus during FY19 on the performance and risk management of the tailings storage facility and the review, refining and upgrade of emergency response strategies. As an additional layer of corporate governance, an Independent Technical Review Board was appointed in 2018 to conduct annual reviews of the facility.
|
Actions during FY19 relating to tailings dam management and compliance with the conditions of approval for the facility included:
|
• provisions for emergency pumping capability from the facility and a revision to the trigger, action and response plan pertaining to the release of untreated water in the event of an emergency to safeguard the dam structure
|
• the design, installation and commissioning of an early warning siren system and two-way communications in villages downstream of the facility
|
• completion of tailings storage facility flood modelling under extreme scenarios to determine inundation extents in downstream communities and associated requirements for emergency preparedness and response
|
• extensive engagement and education programmes with downstream communities and provincial and national government representatives in relation to the early warning system and flood modelling findings. Further work continues to install flood markers and provide educational material to the three relevant communities
|
• increased resourcing within the organisation to improve dam governance and oversight
|
• continued independent third-party annual reviews and further visit by the appointed Independent Technical Review Board
|
At the Wafi-Golpu project, deep sea tailings placement has been selected as the preferred tailings management option based on consideration of long-term safety, engineering, environmental, social, cultural heritage and economic factors. Deep sea tailings placement is presently adopted in four countries and is in effect at three operations within Papua New Guinea
|
•
|
minimising the quantity of material stored to limit the extent of the footprint of land disturbed
|
•
|
ensuring storage sites are physically and chemically safe and well-engineered
|
•
|
undertaking progressive rehabilitation – returning affected land to productive use after mining
|
|
FY19
|
FY18
|
FY17
|
FY16
|
Oils and grease waste generated
|
|
|
|
|
Grease used (tonnes)
|
426
|
121
|
384
|
504
|
Lubricating and hydraulic oil used (million litres)
|
3.163
|
2.744
|
2.768
|
2.291
|
Oils to repurpose hydrocarbons to landfill – Oil recycled (000 litres)
|
978
|
N/A
|
N/A
|
N/A
|
Hazardous waste generated
|
|
|
|
|
Tailings (million tonnes)
|
24.2
|
21.4
|
19.8
|
18.3
|
Hazardous waste to landfill (tonnes)
|
399.24
|
343.7
|
275.4
|
N/A
|
|
*FY19
|
FY18
|
FY17
|
FY16
|
Timber
|
2 377
|
1 085
|
1 504
|
N/A
|
Steel
|
7 765
|
5 699
|
6 944
|
6 229
|
Plastic
|
479
|
314
|
459
|
N/A
|
* Consumption of materials and waste generated increased with the inclusion of Moab Khotsong
|
•
|
Continued investment in sources of renewable energy and efforts to reduce energy consumption and enhance efficiencies
|
•
|
Explore initiatives to enhance water efficiency and increase proportion of water recycled, especially at our South African operations
|
•
|
Implement initiatives to reduce non-hazardous waste with ultimate aim of zero waste to landfill
|
•
|
Continue land rehabilitation programme, in South Africa and Papua New Guinea, so as to reduce our mining footprint and make available land for alternative economic uses such as agriculture
|
•
|
Ethical culture and responsible corporate citizenship
|
•
|
Good performance and value creation
|
•
|
Effective control
|
•
|
Legitimacy
|
•
|
to increase awareness, action steps taken against transgressors, no tolerance towards corruption, anonymity when using the whistle blowing line and illegal mining
|
•
|
to promote and emphasise the fair treatment of employees despite their status, age, gender or rank
|
•
|
to communicate a clear process flow chart indicating how whistle blower concerns are addressed within the organisation
|
•
|
to implement additional training opportunities within the organisation on ethical topics
|
•
|
to develop a process to monitor all disciplinary actions taken to ensure consistency and fair treatment of employees
|
•
|
Workplace – See Employee relations, Socio-economic development, Remuneration report and Safety and health
|
•
|
Economy – See Employee relations and Socio-economic development
|
•
|
Society – See Employee relations and Socio-economic development which includes reports on corporate social investment and human rights
|
•
|
Environment – See Environmental management and stewardship
|
•
|
Steering the group and setting its strategic direction
|
•
|
Approving policy and planning that gives effect to the direction provided
|
•
|
Overseeing and monitoring implementation and execution by management
|
•
|
Ensuring accountability for the group’s performance by means of, among others, reporting and disclosures
|
•
|
Ms Fikile De Buck – 13 years
|
•
|
Mr Joaquim Chissano – 14 years
|
•
|
Dr Simo Lushaba – 17 years
|
•
|
Ken Dicks – 11 years
|
•
|
highly effective
|
•
|
appropriately positioned to discharge their governance responsibilities and that the board is well supported by its committees
|
•
|
working as a cohesive unit and that the highest ethical standards are applied in deliberations and decision-making, thus enabling the board to provide effective leadership based on an ethical foundation
|
•
|
communicates effectively with all of Harmony’s stakeholders
|
•
|
created and implemented an effective strategy, supported by management
|
•
|
demonstrates ethical and transparent leadership by living the company’s culture and reinforcing its values
|
•
|
Although the board recently appointed two additional black women to the board, the board acknowledges the need to further improve representation on the board from a gender perspective
|
•
|
Harmony’s retention plan should be formalised into a policy
|
•
|
A formal benchmarking of non-executive director fees should again be done
|
•
|
Although the audit and risk committee monitors cyber security on behalf of the board, more information should be presented to the board as a whole
|
•
|
Audit and risk committee
|
•
|
Investment committee
|
•
|
Nomination committee
|
•
|
Remuneration committee
|
•
|
Social and ethics committee
|
•
|
Technical committee
|
|
|
|
|
Core expertise
|
||||
|
Indepen-dent
|
Non-executive
|
Committee member tenure
|
Accounting and invest-ment
|
Internal and external auditing
|
Treasury and fund manage-ment
|
Risk manage-ment
|
Mining, legal and financial industry
|
Fikile De Buck (Chairman)*
|
√
|
√
|
13 years
|
√
|
√
|
√
|
√
|
√
|
Modise Motloba**
|
|
√
|
15 years
|
√
|
|
√
|
√
|
√
|
John Wetton
|
√
|
√
|
8 years
|
√
|
√
|
√
|
√
|
√
|
Karabo Nondumo
|
√
|
√
|
6 years
|
√
|
√
|
√
|
√
|
√
|
Dr Simo Lushaba
|
√
|
√
|
16 years
|
√
|
|
√
|
√
|
√
|
Given Sibiya
|
√
|
√
|
Appointed 15 Aug 2019
|
√
|
√
|
|
√
|
√
|
|
||||||||
Primary functions
|
||||||||
• Monitors the operation of an adequate system of internal control and control processes
• Monitors the preparation of accurate financial reporting and statements in compliance with all applicable legal and corporate governance requirements and accounting standards
• Monitors risk management, ensures that significant risks identified are appropriately addressed and supports the board in the overall governance of risk
|
||||||||
Key activities and actions in FY19
|
||||||||
For the actions of the audit and risk committee in FY19 refer to the Audit and risk committee: chairman’s report
• Reviewed the company’s quarterly and annual financial results
• Evaluated and considered Harmony’s risks, as well as measures taken to mitigate those risks
• Monitored the internal control environment in Harmony and found it to be effective
• Discussed the appropriateness of accounting principles, critical accounting policies, management judgments, estimates and impairments, all of which were found to be appropriate
• Considered the appointment of the external auditor, PricewaterhouseCoopers Inc, as the registered independent auditor for the ensuing year
• Satisfied itself that the external audit firm, PricewaterhouseCoopers Inc, was suitable and independent from the company
• Evaluated the independence and effectiveness of the internal audit function
• Evaluated and coordinated the internal audit, external audit and sustainability assurance processes
• Received and considered reports from the external and internal auditors
• Reviewed and approved internal and external audit plans, terms of engagement and fees, as well as the nature and extent of non-audit services rendered by the external auditors
• Considered the appropriateness and expertise of the financial director, Frank Abbott, as well as that of the finance function – both were found to be adequate and appropriate
• Considered whether information technology risks are adequately addressed and whether appropriate controls are in place to address these risks. The committee oversees and monitors the governance of information technology on behalf of the board, a task it views as a critical aspect of risk management. Additionally, the committee considered and approved the company’s information technology strategy as well as the company’s cyber security policy
• Considered and confirmed the company as a going concern
• Considered and approved the company’s treasury policy
• Reviewed and recommended the company’s dividend policy for board approval
• Considered and approved the company’s internal audit charter
• Reviewed and recommended the company’s delegation of authority policy for board approval
• Considered and approved the company’s non-audit services policy
|
||||||||
* Appointed as chairman on 10 May 2018
**Resigned as member on 21 October 2019
|
|
|
|
|
Core expertise
|
|
|
Independent
|
Non-executive
|
Committee member tenure
|
Accounting and financial management roles
|
Leadership and transformation
|
Vishnu Pillay (Chairman)*
|
√
|
√
|
4 years
|
√
|
√
|
Fikile De Buck
|
√
|
√
|
9 years
|
√
|
√
|
John Wetton
|
√
|
√
|
8 years
|
√
|
√
|
Dr Simo Lushaba
|
√
|
√
|
14 years
|
√
|
√
|
André Wilkens
|
|
√
|
12 years
|
√
|
√
|
|
|||||
Primary functions
|
|||||
• Ensures directors and executive management are fairly rewarded for their contribution to Harmony’s performance
• Assists the board in monitoring, reviewing and approving Harmony’s compensation policies and practices, and in the administration of its share incentive schemes
• Operates as an independent overseer of the group remuneration policy and makes recommendations to the board for final approval
|
|||||
Key activities and actions in FY19
|
|||||
• Reviewed the benefits and remuneration principles as applied to Harmony executive management
• Received and discussed a summary of the total suite of Harmony executive management incentive schemes in order to obtain a holistic view
• Reviewed and recommended the committee’s terms of reference to the board for approval
• Considered and recommended the remuneration policy and implementation report to the board for inclusion in the notice of annual general meeting for consideration by the shareholders as non-binding advisory resolutions (see Remuneration report)
• Reviewed executive directors’ and executive management’s remuneration benchmarks and recommended their annual salary increases to the board for approval (see Remuneration report)
• Reviewed the annual salary increases of the company secretary and chief audit executive
• Considered and recommended the company’s Total Incentive Plan Balanced Scorecard for FY20 for board approval
|
|||||
* Appointed as chairman on 11 May 2017
|
|
|
|
|
Core expertise
|
||
|
Independent
|
Non-executive
|
Committee member tenure
|
Corporate governance
|
Leadership and transformation
|
General management
|
Mavuso Msimang (Chairman)*
|
√
|
√
|
7 years
|
√
|
√
|
√
|
Patrice Motsepe
|
|
√
|
16 years
|
√
|
√
|
√
|
Joaquim Chissano
|
√
|
√
|
13 years
|
√
|
√
|
√
|
Modise Motloba
|
|
√
|
9 years
|
√
|
√
|
√
|
Fikile De Buck
|
√
|
√
|
9 years
|
√
|
√
|
√
|
|
|
|
|
|
|
|
Primary functions
|
|
|
|
|
|
|
• Ensures that procedures governing board appointments are formal and transparent
• Makes recommendations to the board on all new board appointments
• Reviews succession planning for directors and other members of the executive team and oversees the board’s self-assessment process
|
||||||
Key activities and actions in FY19
|
||||||
• Reviewed succession planning for directors and other members of the executive team and oversaw the board’s self-assessment process
• Reviewed and recommended for re-election directors who retire by rotation in terms of the company’s memorandum of incorporation
• Reviewed and made recommendations on the composition, structure and size of the board and board committees, in line with the board’s policy on gender and race diversity
• Considered the positions of the chairman and the deputy chairman of the board and the lead independent director and made recommendations to the board
• Reviewed and recommended the independence of non-executive directors (especially independent non-executives serving on the board for longer than nine years)
• Reviewed and recommended immediate and long-term succession plans for the board, the chairman of the board, the chief executive officer, executive management and the company secretary
• Considered the programme in place for the professional development and regular briefings on legal and corporate governance developments, risks and changes in the external environment of the organisation
|
||||||
* Appointed as chairman on 10 May 2018
|
|
|
|
|
Core expertise
|
||||
|
Indepen-dent
|
Non-executive
|
Committee member tenure
|
Sustainable development
|
Stakeholder relations
|
International and government relations
|
Social development and transformation strategy
|
Environmental, Social and Governance
|
Dr Simo Lushaba (Chairman)*
|
√
|
√
|
1 year
|
√
|
√
|
|
√
|
√
|
Modise Motloba
|
|
√
|
14 years
|
√
|
√
|
|
√
|
√
|
John Wetton
|
√
|
√
|
8 years
|
√
|
|
|
√
|
√
|
Mavuso Msimang
|
√
|
√
|
8 years
|
√
|
√
|
√
|
√
|
√
|
Joaquim Chissano
|
√
|
√
|
13 years
|
√
|
√
|
√
|
√
|
√
|
Fikile De Buck
|
√
|
√
|
13 years
|
√
|
|
|
√
|
√
|
Max Sisulu
|
√
|
√
|
1 year
|
√
|
√
|
√
|
√
|
√
|
Primary functions
|
||||||||
• Oversees policy and strategies pertaining to occupational health and employee well-being, environmental management, corporate social responsibility, human resources, public safety and ethics management
• Monitors implementation of policies and strategies by executives and their management teams for each discipline referred to above
• Assesses Harmony’s compliance against relevant regulations
• Reviews material issues in each of the above disciplines to evaluate their relevance in the reporting period, and to identify additional material issues that warrant reporting, including sustainability-related key performance indicators and levels of assurance
|
||||||||
Key activities and actions in FY19
|
||||||||
• Reviewed and recommended the social and ethics committee report to be included in the integrated annual report
• Reviewed and considered the social, economic, human capital and environmental issues affecting the company’s business and stakeholders
• Reviewed and considered the effect that the company’s operations had on the economic, social and environmental well-being of communities, as well as significant risks within the ambit of the committee’s responsibilities
• Approved material elements of sustainability reporting and the key performance indicators which were externally assured
• Considered and monitored the company’s internal and external stakeholder relations
• Attended an occupational health site visit in Lesotho relating to Harmony’s collaboration with TEBA to trace and stay in contact with former employees to ensure that claims for occupational lung disease are paid efficiently
• Reviewed and recommended changes to the committee’s terms of reference to the board for approval
• Considered and approved the company’s strategy on preferential procurement and the enterprise and supplier development framework
• Reviewed and recommended the company group behavioural code and code of conduct
• Reviewed and recommended the committee’s terms of reference to the board for approval
See Social and ethics committee: chairman’s report
|
||||||||
* Appointed as chairman on 10 May 2018
|
|
|
|
|
Core expertise
|
||||
|
Indepen-dent
|
Non-executive
|
Committee member tenure
|
Investment/ Banking and Financial advisory
|
Entrepreneurship and business development
|
Mergers and acquisitions
|
General management
|
Governance and legal
|
Modise Motloba (Chairman)*
|
|
√
|
1 year
|
√
|
√
|
√
|
√
|
√
|
Dr Simo Lushaba
|
√
|
√
|
15 years
|
√
|
√
|
√
|
√
|
√
|
John Wetton
|
√
|
√
|
8 years
|
√
|
√
|
√
|
√
|
√
|
Karabo Nondumo
|
√
|
√
|
6 years
|
√
|
√
|
√
|
√
|
√
|
Ken Dicks
|
√
|
√
|
11 years
|
|
√
|
√
|
√
|
√
|
Vishnu Pillay
|
√
|
√
|
6 years
|
|
√
|
√
|
√
|
√
|
André Wilkens
|
|
√
|
12 years
|
|
√
|
√
|
√
|
√
|
Grathel Motau
|
√
|
√
|
Appointed 15 Aug 2019
|
√
|
√
|
√
|
√
|
√
|
|
||||||||
Primary functions
|
||||||||
• Considers projects, acquisitions and disposals in line with Harmony’s strategy and ensures that due diligence procedures are followed
• Conducts other investment-related functions designated by the board
|
||||||||
Key activities and actions in FY19
|
||||||||
• Considered investments, proposals, projects and proposed acquisitions in line with the board’s approved delegation of authority and the committee’s terms of reference
• Attended a site visit for a detailed update on the Kalgold optimisation study and exploration drilling
• Reviewed and recommended the budget and business plans for FY20
• Reviewed and recommended the committee’s terms of reference to the board for approval
|
||||||||
* Appointed as chairman on 10 May 2018
|
|
|
|
|
Core expertise
|
||||
|
Indepen-dent
|
Non-executive
|
Committee member tenure
|
Overall gold mining experience
|
Mining engineering
|
Mining technology
|
Project management and general management
|
Risk manage-ment
|
André Wilkens (Chairman)*
|
|
√
|
11 years
|
√
|
√
|
√
|
√
|
√
|
Ken Dicks
|
√
|
√
|
11 years
|
√
|
√
|
√
|
√
|
|
Karabo Nondumo
|
√
|
√
|
3 years
|
|
|
|
√
|
√
|
Vishnu Pillay
|
√
|
√
|
6 years
|
√
|
√
|
√
|
√
|
|
|
||||||||
Primary functions
|
||||||||
• Provides a platform to discuss strategy, performance against targets, operational results, projects and safety
• Informs the board of key developments, progress against objectives and the challenges facing operations
• Reviews strategic plans before recommending such to the board for approval
• Provides technical guidance and support to management
|
||||||||
Key activities and actions in FY19
|
||||||||
• Monitored safety across all operations
• Monitored exploration and ore reserves in South Africa and Papua New Guinea
• Monitored all South African and Papua New Guinean operations
• Reviewed and recommended to the board the company’s annual budget and business plans for FY20
• Attended a site visit for a detailed update on the Kalgold optimisation study and exploration drilling
• Considered investments, proposals, projects and proposed acquisitions from a technical point of view
• Reviewed and recommended the committee’s terms of reference to the board for approval
|
||||||||
* Appointed as chairman on 22 January 2008
|
•
|
South Africa: +27 (0) 800 204 256
|
•
|
Papua New Guinea: +675 (0)00 861 239
|
•
|
Australia: +61 (1) 800 940 949
|
•
|
Verification processes to identify politically exposed persons
|
•
|
Verification processes for purposes of doing business with international companies
|
•
|
Effective reporting format to the social and ethics committee
|
ELEMENT
|
|
DESCRIPTION
|
||
Guaranteed pay
|
|
Guaranteed pay, which is inclusive of contributions by the company to a retirement fund and a medical aid scheme, is aligned with similar roles in the market sector in which we operate and the contribution made by employees. Guaranteed pay excludes short- and long-term incentives. To compete effectively for skills in a challenging employment market, we identify the target market to use in benchmarking guaranteed pay. This target market includes organisations or companies that employ similar skills sets to those we require. Comparisons are made predominantly within the mining sector to ensure that Harmony remains competitive. The median of the target market is used as the basis of our pay ranges.
|
||
Participation factor
|
|
Employee
|
% guaranteed pay
|
|
|
Chief executive officer
|
250%
|
||
|
Chief financial officer, other executive directors and prescribed officers
|
230%
|
ELEMENT
|
|
DESCRIPTION
|
||
Balanced scorecard result
|
Cash portion of the total incentive
(40%) |
|
A portion of the total incentive is settled in cash immediately when the balanced scorecard results for the financial year have been determined and approved by the board.
|
|
|
Cash portion (balance settled in deferred shares)
|
% of incentive
|
||
|
Chief executive officer
|
40%
|
||
|
Chief financial officer, other executive directors and prescribed officers
|
40%
|
||
Deferred share portion of the total incentive
(60%) |
|
The balance of the total incentive is settled in deferred shares vesting at a rate of 20% per annum over the next five years for the executive directors and prescribed officers, and one-third per annum over the following three years for management.
The deferred share plan was approved by our shareholders at the annual general meeting held in December 2018. A copy of the plan is available on our website at www.harmony.co.za.
|
|
Scorecard component
|
Group
(%) |
South Africa operations
(%) |
South-East Asia operations
(%) |
Shareholder value
|
Total shareholder return (absolute)
|
8.34
|
6.67
|
6.67
|
Total shareholder return (relative to JSE Gold Index)
|
8.33
|
6.67
|
6.67
|
|
Total shareholder return (relative to FTSE Gold Mines Index)
|
8.33
|
6.66
|
6.66
|
|
Financial and operational
|
Production
|
20
|
35
|
35
|
Total production cost (South Africa operations)
|
12
|
20
|
–
|
|
All-in sustaining cost per kg (South-east Asia operations)
|
3
|
–
|
20
|
|
Free cash flow
|
10
|
–
|
–
|
|
Growth
|
Development
|
–
|
10
|
10
|
Additions to mineral reserves
|
10
|
–
|
–
|
|
Project execution (for future measurement)
|
–
|
–
|
–
|
|
Sustainability
|
Safety performance: lost-time injury frequency rate
|
15
|
15
|
15
|
Environment, social and governance (ESG)
|
5
|
–
|
–
|
|
Total
|
|
100
|
100
|
100
|
•
|
Group: Prescribed officers, executives in the office of the chief executive officer and all off-shaft services operational managers (South Africa)
|
•
|
South Africa operations: Operational executive managers and all on-shaft operational managers
|
•
|
South-East Asia operations: Operational executive managers and all operational managers
|
SCORECARD COMPONENTS
|
|
Total shareholder return
|
Shareholder value is measured as total shareholder return over a trailing three-year period (measurements are generally taken at the end of August). It comprises two components:
|
• absolute performance: which takes into account:
|
o the value of the growth in the company’s share price; and
|
o the value of dividends paid
|
o over the measurement period, compared to the company’s cost of equity target.
|
• relative performance of the company compared to that of the JSE Gold Index and the FTSE Gold Mines Index over the measurement period.
|
|
Production
|
Means total gold production against the board approved business plan for the year.
|
|
Total production cost
|
Means total cash operating cost and total capital expenditure for the year.
|
|
All-in-sustaining cost per kilogram (South-East Asia)
|
Means all-in-sustaining costs. For purposes of calculating “all-in-sustaining costs”, “operating cost” is used as a base and all costs related to sustaining production are incorporated. This includes all sustaining capital expenditure, deferred stripping, overhead costs associated with corporate office structures and services that support operations, local economic development cost and net rehabilitation costs. It excludes the non-cash share based payment charge. To arrive at the all-in-sustaining cost per unit, the sum of these cost metrics is divided by the kilograms of gold sold.
|
|
Free cash flow
|
Means cash flow generated by operations adjusted for exploration capital, dividends and the effect of commodity price and exchange rate changes in excess of 10% (higher or lower).
|
|
Development
|
Development is measured against the board-approved business plan of ongoing capital development - the development of reef and waste metres (South Africa) and waste tonnes (South-East Asia) for the financial year.
|
|
Addition to mineral reserves
|
Addition to mineral reserves through acquisitions and major capital projects is calculated for the financial year.
|
|
Safety performance: Lost-time injury frequency rate
|
The lost-time injury frequency rate will be measured against the board-approved plan.
|
|
Environment, social and governance (ESG)
|
ESG will be measured on the basis of continued inclusion in the FTSE4Good Index as verified by FTSE Russell.
|
•
|
50% (fifty percent) of the shares which will vest to a prescribed officer shall, immediately prior to the applicable vesting date, be automatically locked up on the terms and in accordance with the minimum shareholding requirement
|
•
|
the lock-up shall apply for as long as the relevant target minimum shareholding requirement applicable to the prescribed officer has not been met
|
•
|
a prescribed officer may elect to voluntarily lock up shares that vest in terms of the 2006 share plan in order to meet his target minimum shareholding requirement
|
•
|
once the relevant target minimum shareholding requirement has been met, any deferred shares which subsequently vest in and are settled to a prescribed officer shall vest and be settled in accordance with the terms of the deferred share plan
|
•
|
a prescribed officer may elect to voluntarily lock up shares that vest in terms of the 2006 share plan or the deferred share plan even if it results in the lock-up of shares being in excess of the target minimum shareholding requirement – if the locked-up shares exceed the target minimum shareholding requirement, the excess shares will remain in lock-up until the next vesting date (in terms of any relevant Harmony share incentive plans applicable at the time) at which point the excess shares will be released from lock-up and settled in accordance with the terms of the deferred share plan
|
•
|
a prescribed officer must communicate his election to voluntarily lock up his shares that vest in terms of the 2006 share plan or the deferred share plan before the relevant vesting date
|
•
|
exercise all voting rights in respect of such shares
|
•
|
receive all distributions payable in respect of such shares.
|
•
|
the share price
|
•
|
relevant currency exchange rate on the vesting date
|
FY19 and FY20 pay mix*
|
|||
|
|
|
|
(R000)
|
Minimum (%)
|
On-target (%)
|
Stretch
(%) |
Salary benefits
|
85
|
85
|
85
|
Retirement savings and contributions
|
15
|
15
|
15
|
Guaranteed pay
|
100
|
100
|
100
|
Short-term incentive
|
0
|
60
|
100
|
Long-term incentive
|
0
|
90
|
150
|
Total remuneration
|
100
|
250
|
350
|
* This remained unchanged for both years.
|
FY19 and FY20 pay mix*
|
|||
(R000)
|
Minimum (%)
|
On-target (%)
|
Stretch
(%) |
Salary benefits
|
85
|
85
|
85
|
Retirement savings and contributions
|
15
|
15
|
15
|
Guaranteed pay
|
100
|
100
|
100
|
Short-term incentive
|
0
|
55
|
92
|
Long-term incentive
|
0
|
83
|
138
|
Total remuneration
|
100
|
238
|
330
|
FY19 and FY20 policy*
|
||
Total remuneration
|
Category 4 (%)
|
Category 8 (%)
|
Fixed earnings
|
60
|
59
|
Company benefits
|
13
|
11
|
Guaranteed pay
|
73
|
70
|
Variable income
|
27
|
30
|
Total remuneration
|
100
|
100
|
Each component includes the following:
Fixed earning: Basic pay, service increment, 13th cheque, living out allowance
Variable income: Average overtime, shift allowance, average bonus, meal allowance, Unemployment Insurance Fund/skills development levy, insurance benefit
Company benefits: Employer provident/pension fund and medical aid
|
•
|
there is reasonable evidence of misbehaviour or material error by a prescribed officer or executive manager (as the case may be) or
|
•
|
the financial performance of the group, the company, the employer company or the relevant business unit for any financial year, used to determine an award, have subsequently appeared to be materially inaccurate or
|
•
|
the group, the company, the employer company or the relevant business unit suffers a material downturn in its financial performance for which the prescribed officer or executive manager (as the case may be) can be seen to have some liability or
|
•
|
the group, the company, the employer company or the relevant business unit suffers a material failure of risk management for which the prescribed officer or executive manager (as the case may be) can be seen to have some liability or in any other circumstances if the remuneration committee determines that it is reasonable to subject the awards of one or more prescribed officers or executive managers (as the case may be) to reduction or forfeiture
|
Grade
|
Fixed earnings (R)
|
Company benefits (R)
|
Variable income (R)
|
Total per month (R)
|
Category 4 underground employee (general worker)
|
12 441
|
2 592
|
5 614
|
20 647
|
Category 8 underground employee (team leader)
|
16 511
|
3 154
|
8 454
|
28 119
|
Scorecard component
|
|
Group weighting (%)
|
% of plan achieved
|
Final outcome (%)
|
Shareholder value (measured over a trailing three-year period)
|
Total shareholder return (absolute)
|
8.34
|
0
|
0
|
Total shareholder return (relative to the JSE Gold Index)
|
8.33
|
0
|
0
|
|
Total shareholder return (relative to FTSE Gold Mines Index)
|
8.33
|
0
|
0
|
|
Financial and operational
|
Production
|
20
|
97
|
9.7
|
|
Total production cost (South Africa operations)
|
12
|
96
|
5.2
|
|
All-in sustaining cost (Southeast Asia operations)
|
3
|
103.7
|
2.7
|
|
Free cash flow
|
10
|
84
|
4.9
|
Growth
|
Development (only applicable to South Africa operations and Southeast Asia operations)
|
–
|
–
|
–
|
|
Additions to mineral reserves
|
10
|
100
|
10
|
|
Project execution (for future measurement)
|
–
|
–
|
–
|
Sustainability
|
Safety performance: Lost-time injury frequency rate*
|
15
|
101
|
–
|
|
Environment, social and governance (ESG) criteria
|
5
|
100
|
5
|
Total
|
|
100
|
|
37.5
|
* Improved but forfeited due to the number of fatal accidents during financial year
|
Executive directors continued
|
Share award
|
Award Date
|
Vesting Date
|
Award Price (R)
|
Opening
|
Awarded
|
Number Forfeited
|
Settled
|
Closing
|
Cash on Settlement (R)
|
Year–end Fair Value (R)
|
Mashego Mashego
|
Share appreciation rights (SARs)
|
|
|
|
|
|
|
|
|
|
|
2012 SARs
|
Nov-12
|
Nov-15
|
68.84
|
11 694
|
|
11 694
|
–
|
–
|
–
|
–
|
|
2013 SARs tranche 1
|
Nov-13
|
Nov-16
|
33.18
|
12 737
|
|
–
|
–
|
12 737
|
–
|
–
|
|
2013 SARs tranche 2
|
Nov-13
|
Nov-17
|
33.18
|
12 737
|
|
–
|
–
|
12 737
|
–
|
–
|
|
2013 SARs tranche 3
|
Nov-13
|
Nov-18
|
33.18
|
12 738
|
|
–
|
–
|
12 738
|
–
|
–
|
|
2014 SARs tranche 1
|
Nov-14
|
Nov-17
|
18.41
|
15 304
|
|
–
|
–
|
15 304
|
–
|
157 019
|
|
2014 SARs tranche 2
|
Nov-14
|
Nov-18
|
18.41
|
15 304
|
|
–
|
–
|
15 304
|
–
|
157 019
|
|
2014 SARs tranche 3
|
Nov-14
|
Nov-19
|
18.41
|
15 305
|
|
–
|
–
|
15 305
|
–
|
157 029
|
|
Performance Shares
|
|
|
|
|
|
|
|
|
|
|
|
2015 Performance Shares
|
Nov-15
|
Nov-18
|
10.16
|
455 758
|
|
–
|
455 758
|
–
|
10 427 743
|
–
|
|
2016 Performance Shares
|
Nov-16
|
Nov-19
|
32.12
|
152 091
|
|
–
|
–
|
152 091
|
–
|
4 360 449
|
|
2017 Performance Shares
|
Nov-17
|
Nov-20
|
24.00
|
251 722
|
|
–
|
–
|
251 722
|
–
|
7 216 870
|
|
Restricted Shares
|
|
|
|
|
|
|
|
|
|
|
|
2012 Restricted Shares (Further Restricted)
|
Nov-12
|
Nov-18
|
68.84
|
11 694
|
|
–
|
11 694
|
–
|
267 559
|
–
|
|
2015 Matched Restricted Shares
|
Nov-15
|
Nov-18
|
10.16
|
35 082
|
|
–
|
35 082
|
–
|
802 676
|
–
|
|
Total
|
|
|
|
1 002 166
|
–
|
11 694
|
502 534
|
487 938
|
11 497 978
|
12 048 386
|
Prescribed officers
|
Share award
|
Award Date
|
Vesting Date
|
Award Price (R)
|
Opening
|
Awarded
|
Number Forfeited
|
Settled
|
Closing
|
Cash on Settlement (R)
|
Year–end Fair Value (R)
|
Beyers Nel
|
Share appreciation rights (SARs)
|
|
|
|
|
|
|
|
|
|
|
2012 SARs
|
Nov-12
|
Nov-15
|
68.84
|
8 021
|
|
8 021
|
–
|
–
|
–
|
–
|
|
2013 SARs tranche 1
|
Nov-13
|
Nov-16
|
33.18
|
8 820
|
|
–
|
–
|
8 820
|
–
|
–
|
|
2013 SARs tranche 2
|
Nov-13
|
Nov-17
|
33.18
|
8 820
|
|
–
|
–
|
8 820
|
–
|
–
|
|
2013 SARs tranche 3
|
Nov-13
|
Nov-18
|
33.18
|
8 819
|
|
–
|
–
|
8 819
|
–
|
–
|
|
2014 SARs tranche 1
|
Nov-14
|
Nov-17
|
18.41
|
12 493
|
|
–
|
–
|
12 493
|
–
|
128 178
|
|
2014 SARs tranche 2
|
Nov-14
|
Nov-18
|
18.41
|
12 493
|
|
–
|
–
|
12 493
|
–
|
128 178
|
|
2014 SARs tranche 3
|
Nov-14
|
Nov-19
|
18.41
|
12 494
|
|
–
|
–
|
12 494
|
–
|
128 188
|
|
Performance Shares
|
|
|
|
|
|
|
|
|
|
|
|
2015 Performance Shares
|
Nov-15
|
Nov-18
|
10.16
|
236 220
|
|
–
|
236 220
|
–
|
5 404 714
|
–
|
|
2016 Performance Shares
|
Nov-16
|
Nov-19
|
32.12
|
177 366
|
|
–
|
–
|
177 366
|
–
|
5 085 083
|
|
2017 Performance Shares
|
Nov-17
|
Nov-20
|
24.00
|
318 487
|
|
–
|
–
|
318 487
|
–
|
9 131 022
|
|
Restricted Shares
|
|
|
|
|
|
|
|
|
|
|
|
2012 Restricted Shares (Further Restricted)
|
Nov-12
|
Nov-18
|
68.84
|
8 021
|
|
–
|
8 021
|
–
|
183 520
|
–
|
|
2015 Matched Restricted Shares
|
Nov-15
|
Nov-18
|
10.16
|
24 063
|
|
–
|
24 063
|
–
|
550 561
|
–
|
|
Vested Awards Pledged towards MSR
|
|
|
|
|
|
|
|
|
|
|
|
2014 Performance Shares Pledge
|
|
|
|
24 933
|
|
–
|
–
|
24 933
|
–
|
714 829
|
|
|
Total
|
|
|
|
861 050
|
–
|
8 021
|
268 304
|
584 725
|
6 138 796
|
15 315 479
|
Prescribed officers continued
|
Share award
|
Award Date
|
Vesting Date
|
Award Price (R)
|
Opening
|
Awarded
|
|
Number Forfeited
|
Settled
|
Closing
|
Cash on Settlement (R)
|
Year–end Fair Value (R)
|
Phillip Tobias
|
Share appreciation rights (SARs)
|
|
|
|
|
|
|
|
|
|
|
|
2013 SARs tranche 1
|
Nov-14
|
Nov-17
|
18.41
|
15 617
|
|
–
|
–
|
15 617
|
–
|
160 230
|
||
2013 SARs tranche 2
|
Nov-14
|
Nov-18
|
18.41
|
15 617
|
|
–
|
–
|
15 617
|
–
|
160 230
|
||
2013 SARs tranche 3
|
Nov-14
|
Nov-19
|
18.41
|
15 616
|
|
–
|
–
|
15 616
|
–
|
160 220
|
||
Performance Shares
|
|
|
|
|
|
|
|
|
|
|
||
2015 Performance Shares
|
Nov-15
|
Nov-18
|
10.16
|
236 220
|
|
–
|
236 220
|
0
|
5 404 714
|
–
|
||
2016 Performance Shares
|
Nov-16
|
Nov-19
|
32.12
|
177 366
|
|
–
|
–
|
177 366
|
–
|
5 085 083
|
||
2017 Performance Shares
|
Nov-17
|
Nov-20
|
24.00
|
324 720
|
|
–
|
–
|
324 720
|
–
|
9 309 722
|
||
Vested Awards Pledged towards MSR
|
|
|
|
|
|
|
|
|
|
|
||
2014 Performance Shares Pledge
|
|
|
|
31 166
|
|
–
|
–
|
31 166
|
–
|
893 529
|
||
|
Total
|
|
|
|
816 322
|
–
|
|
–
|
236 220
|
580 102
|
5 404 714
|
15 769 016
|
Prescribed officers continued
|
Share award
|
Award Date
|
Vesting Date
|
Award Price (R)
|
Opening
|
Awarded
|
|
Number Forfeited
|
Settled
|
Closing
|
Cash on Settlement (R)
|
Year–end Fair Value (R)
|
Johannes van Heerden
|
Share appreciation rights (SARs)
|
|
|
|
|
|
|
|
|
|
|
|
2012 SARs
|
Nov-12
|
Nov-15
|
68.84
|
11 694
|
|
11 694
|
–
|
–
|
–
|
–
|
||
2013 SARs tranche 1
|
Nov-13
|
Nov-16
|
33.18
|
12 737
|
|
–
|
–
|
12 737
|
–
|
–
|
||
2013 SARs tranche 2
|
Nov-13
|
Nov-17
|
33.18
|
12 737
|
|
–
|
–
|
12 737
|
–
|
–
|
||
2013 SARs tranche 3
|
Nov-13
|
Nov-18
|
33.18
|
12 738
|
|
–
|
–
|
12 738
|
–
|
–
|
||
2014 SARs tranche 1
|
Nov-14
|
Nov-17
|
18.41
|
15 304
|
|
–
|
15 304
|
–
|
188 698
|
–
|
||
2014 SARs tranche 2
|
Nov-14
|
Nov-18
|
18.41
|
15 304
|
|
–
|
15 304
|
–
|
183 036
|
–
|
||
2014 SARs tranche 3
|
Nov-14
|
Nov-19
|
18.41
|
15 305
|
|
–
|
–
|
15 305
|
–
|
157 029
|
||
Performance Shares
|
|
|
|
|
|
|
|
|
|
|
||
2015 Performance Shares
|
Nov-15
|
Nov-18
|
10.16
|
455 758
|
|
–
|
455 758
|
–
|
10 427 743
|
–
|
||
2016 Performance Shares
|
Nov-16
|
Nov-19
|
32.12
|
152 091
|
|
–
|
–
|
152 091
|
–
|
4 360 449
|
||
2017 Performance Shares
|
Nov-17
|
Nov-20
|
24.00
|
293 554
|
|
–
|
–
|
293 554
|
–
|
8 416 193
|
||
Restricted Shares
|
|
|
|
|
|
|
|
|
|
|
||
2012 Restricted Shares (Further Restricted)
|
Nov-12
|
Nov-18
|
68.84
|
11 694
|
|
–
|
11 694
|
–
|
267 559
|
–
|
||
2015 Matched Restricted Shares
|
Nov-15
|
Nov-18
|
10.16
|
35 082
|
|
–
|
35 082
|
–
|
802 676
|
–
|
||
Total
|
|
|
|
1 043 998
|
—
|
|
11 694
|
533 142
|
499 162
|
11 869 712
|
12 933 671
|
Director (R000)
|
Note
|
2019 Fee
(1) |
2018 Fee
(1) |
Dr Patrice Motsepe
|
|
1 365
|
1 288
|
Joachim Chissano
|
|
570
|
489
|
Fikile De Buck
|
|
1 486
|
1 255
|
Ken Dicks
|
|
769
|
653
|
Dr Simo Lushaba
|
|
1 153
|
817
|
Grathel Motau
|
2
|
79
|
–
|
Modise Motloba
|
|
1 406
|
1 399
|
Mavuso Msimang
|
|
960
|
660
|
Karabo Nondumo
|
|
969
|
762
|
Vishnu Pillay
|
|
1 096
|
803
|
Given Sibiya
|
3
|
79
|
–
|
Max Sisulu
|
|
508
|
125
|
John Wetton
|
|
1 031
|
1 053
|
André Wilkens
|
|
971
|
870
|
Total
|
|
R12 442
|
R10 174
|
Notes
1. Directors’ remuneration excludes value-added tax
2. Appointed non- executive director on 13 May 2019
3. Appointed non-executive director on 13 May 2019
|
Name
|
|
Status
|
|
Date appointed
|
Fikile De Buck (chairman)
|
|
Independent non-executive director
|
|
30 March 2006 (Chairman with effect from 10 May 2018)
|
John Wetton
|
|
Independent non-executive director
|
|
1 July 2011
|
Dr Simo Lushaba
|
|
Independent non-executive director
|
|
24 January 2003
|
Karabo Nondumo
|
|
Independent non-executive director
|
|
3 May 2013
|
Given Sibiya
|
|
Independent non-executive director
|
|
15 August 2019
|
•
|
ensuring that the group’s internal audit function is independent and has the necessary resources, standing and authority within the group to enable it to perform its duties
|
•
|
oversees co-operation between the internal and external auditors, and serves as a link between the board of directors and these functions
|
•
|
Enabling an effective internal control environment
|
•
|
Supporting the integrity of information used for internal decision-making by management, the board and its committees
|
•
|
Supporting the integrity of external reports
|
•
|
Minimising assurance fatigue
|
•
|
On 26 July 2019, the Johannesburg High Court approved the R5.2bn settlement of the silicosis and tuberculosis class action suit between the Occupational Lung Disease Working Group – representing Harmony, Gold Fields, African Rainbow Minerals, Anglo American South Africa, AngloGold Ashanti and Sibanye-Stillwater – and lawyers representing affected mineworkers. After a mandatory three-month period, during which potential beneficiaries can opt out of the settlement agreement, the settlement funds will be used to establish the Tshiamiso Trust. The trust will track and trace class members, process all submitted claims, including the undertaking of benefit medical examinations, and pay benefits to eligible claimants
|
•
|
On 19 August 2019, Harmony and a syndicate of local and international lenders entered into a loan facility agreement which was jointly arranged by Nedbank Limited and ABSA Bank Limited, comprising a revolving credit facility (RCF) of up to US$200 million and a term portion of up to US$200 million. The tenor of the facility is three years with an option to extend by another one year. The interest rate for the term loan is LIBOR plus 3.05% and LIBOR plus 2.90% for the RCF. Conditions precedent were fulfilled on 26 September 2019 and financial close was on 2 October 2019, with US$5 million (R76 million) being drawn on, resulting in an outstanding balance of US$300 million (R4.6 billion) and an undrawn balance of US$100 million (R1.4 billion)
|
Harmony Gold Mining Company Limited Page
|
Page
|
|
|
Report of the Independent Registered Public Accounting Firm
|
|
Group Income Statements for the years ended 30 June 2019, 2018 and 2017
|
|
Group Statements of Comprehensive Income for the years ended 30 June 2019, 2018 and 2017
|
|
Group Balance Sheets at 30 June 2019 and 2018
|
|
Group Statements of Changes in Shareholders’ Equity for the years ended 30 June 2019, 2018 and 2017
|
|
Group Cash Flow Statements for the years ended 30 June 2019, 2018 and 2017
|
|
Notes to the Group Financial Statements
|
|
|
SA rand
|
|||||
Figures in million
|
Notes
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|
|||
Revenue
|
5
|
26 912
|
|
20 452
|
|
19 494
|
|
Cost of sales
|
6
|
(28 869
|
)
|
(23 596
|
)
|
(19 869
|
)
|
|
|
|
|
|
|||
Production costs
|
|
(20 324
|
)
|
(15 084
|
)
|
(15 042
|
)
|
Amortisation and depreciation
|
|
(4 054
|
)
|
(2 570
|
)
|
(2 519
|
)
|
Impairment of assets
|
|
(3 898
|
)
|
(5 336
|
)
|
(1 718
|
)
|
Other items
|
|
(593
|
)
|
(606
|
)
|
(590
|
)
|
|
|
|
|
|
|||
Gross profit/(loss)
|
|
(1 957
|
)
|
(3 144
|
)
|
(375
|
)
|
Corporate, administration and other expenditure
|
|
(731
|
)
|
(813
|
)
|
(517
|
)
|
Exploration expenditure
|
|
(148
|
)
|
(135
|
)
|
(241
|
)
|
Gains on derivatives
|
18
|
484
|
|
99
|
|
1 025
|
|
Other operating expenses
|
7
|
(186
|
)
|
(667
|
)
|
(886
|
)
|
|
|
|
|
|
|||
Operating profit/(loss)
|
|
(2 538
|
)
|
(4 660
|
)
|
(994
|
)
|
Gain on bargain purchase
|
12
|
—
|
|
—
|
|
848
|
|
Loss on liquidation of subsidiaries
|
|
—
|
|
—
|
|
(14
|
)
|
Share of profit/(loss) from associate
|
20
|
59
|
|
38
|
|
(22
|
)
|
Acquisition related costs
|
12
|
—
|
|
(98
|
)
|
—
|
|
Investment income
|
8
|
308
|
|
343
|
|
268
|
|
Finance costs
|
9
|
(575
|
)
|
(330
|
)
|
(234
|
)
|
|
|
|
|
|
|||
Profit/(loss) before taxation
|
|
(2 746
|
)
|
(4 707
|
)
|
(148
|
)
|
Taxation
|
10
|
139
|
|
234
|
|
510
|
|
|
|
|
|
|
|||
Net profit/(loss) for the year
|
|
(2 607
|
)
|
(4 473
|
)
|
362
|
|
|
|
|
|
|
|||
Attributable to:
|
|
|
|
|
|||
Owners of the parent
|
|
(2 607
|
)
|
(4 473
|
)
|
362
|
|
|
|
|
|
|
|||
Earnings/(loss) per ordinary share (cents)
|
|
|
|
|
|||
Total earnings/(loss)
|
11
|
(498
|
)
|
(1 003
|
)
|
82
|
|
|
|
|
|
|
|||
Diluted earnings/(loss) per ordinary share (cents)
|
|
|
|
|
|||
Total diluted earnings/(loss)
|
11
|
(500
|
)
|
(1 004
|
)
|
79
|
|
|
|
SA rand
|
|||||
Figures in million
|
Notes
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|
|||
Net profit/(loss) for the year
|
|
(2 607
|
)
|
(4 473
|
)
|
362
|
|
Other comprehensive income for the year, net of income tax
|
|
(684
|
)
|
(660
|
)
|
818
|
|
|
|
|
|
|
|||
Items that may be reclassified subsequently to profit or loss
|
24
|
(677
|
)
|
(647
|
)
|
821
|
|
|
|
|
|
|
|||
Foreign exchange translation gain/(loss)
|
|
(50
|
)
|
83
|
|
(322
|
)
|
Remeasurement of gold hedging contracts
|
|
|
|
|
|||
Unrealised gain/(loss) on gold contracts
|
|
(351
|
)
|
273
|
|
2 172
|
|
Released to revenue
|
|
(453
|
)
|
(1 197
|
)
|
(728
|
)
|
Released to gains on derivatives
|
|
—
|
|
—
|
|
(16
|
)
|
Deferred taxation thereon
|
|
177
|
|
194
|
|
(285
|
)
|
|
|
|
|
|
|||
|
|
|
|
|
|||
Items that will not be reclassified to profit or loss:
|
24
|
(7
|
)
|
(13
|
)
|
(3
|
)
|
Remeasurement of retirement benefit obligation
|
|
(7
|
)
|
(13
|
)
|
(3
|
)
|
|
|
|
|
|
|||
Total comprehensive income for the year
|
|
(3 291
|
)
|
(5 133
|
)
|
1 180
|
|
|
|
|
|
|
|||
Attributable to:
|
|
|
|
|
|||
Owners of the parent
|
|
(3 291
|
)
|
(5 133
|
)
|
1 180
|
|
|
|
SA rand
|
|||
Figures in million
|
Notes
|
At 30 June
2019 |
|
At 30 June
2018 |
|
|
|
|
|
||
ASSETS
|
|
|
|
||
|
|
|
|
||
Non-current assets
|
|
|
|
||
|
|
|
|
||
Property, plant and equipment
|
13
|
27 749
|
|
30 969
|
|
Intangible assets
|
14
|
533
|
|
545
|
|
Restricted cash
|
15
|
92
|
|
77
|
|
Restricted investments
|
16
|
3 301
|
|
3 271
|
|
Investments in associates
|
20
|
110
|
|
84
|
|
Inventories
|
22
|
43
|
|
46
|
|
Other non-current assets
|
17
|
334
|
|
264
|
|
Derivative financial assets
|
18
|
197
|
|
84
|
|
|
|
|
|
||
Total non-current assets
|
|
32 359
|
|
35 340
|
|
|
|
|
|
||
Current assets
|
|
|
|
||
|
|
|
|
||
Inventories
|
22
|
1 967
|
|
1 759
|
|
Restricted cash
|
15
|
44
|
|
38
|
|
Trade and other receivables
|
19
|
1 064
|
|
1 139
|
|
Derivative financial assets
|
18
|
309
|
|
539
|
|
Cash and cash equivalents
|
|
993
|
|
706
|
|
|
|
|
|
||
Total current assets
|
|
4 377
|
|
4 181
|
|
Total assets
|
|
36 736
|
|
39 521
|
|
|
|
|
|
||
EQUITY AND LIABILITIES
|
|
|
|
||
|
|
|
|
||
Share capital and reserves
|
|
|
|
||
|
|
|
|
||
Share capital and premium
|
23
|
29 551
|
|
29 340
|
|
Other reserves
|
24
|
4 773
|
|
5 145
|
|
Accumulated loss
|
|
(11 710
|
)
|
(9 103
|
)
|
|
|
|
|
||
Total equity
|
|
22 614
|
|
25 382
|
|
|
|
|
|
||
Non-current liabilities
|
|
|
|
||
|
|
|
|
||
Deferred tax liabilities
|
10
|
688
|
|
1 145
|
|
Provision for environmental rehabilitation
|
25
|
3 054
|
|
3 309
|
|
Provision for silicosis settlement
|
26
|
942
|
|
925
|
|
Retirement benefit obligation
|
27
|
201
|
|
186
|
|
Borrowings
|
29
|
5 826
|
|
4 924
|
|
Other non-current liabilities
|
28
|
5
|
|
41
|
|
Derivative financial liabilities
|
18
|
172
|
|
10
|
|
|
|
|
|
||
Total non-current liabilities
|
|
10 888
|
|
10 540
|
|
|
|
|
|
||
Current liabilities
|
|
|
|
||
|
|
|
|
||
Borrowings
|
29
|
89
|
|
690
|
|
Trade and other payables
|
30
|
2 875
|
|
2 704
|
|
Derivative financial liabilities
|
18
|
270
|
|
205
|
|
|
|
|
|
||
Total current liabilities
|
|
3 234
|
|
3 599
|
|
Total equity and liabilities
|
|
36 736
|
|
39 521
|
|
|
Number of ordinary shares issued
|
|
Share capital and premium
|
|
Accumulated loss
|
|
Other reserves
|
|
Total
|
|
|
|
|
|
|
|
|||||
Notes
|
23
|
|
23
|
|
|
24
|
|
|
||
|
|
|
|
|
|
|||||
Figures in million (SA rand)
|
|
|
|
|
|
|||||
|
|
|
|
|
|
|||||
Balance - 30 June 2016
|
437 299 479
|
|
28 336
|
|
(4 409
|
)
|
4 252
|
|
28 179
|
|
|
|
|
|
|
|
|||||
Issue of shares
|
|
|
|
|
|
|||||
– Exercise of employee share options
|
2 657 720
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Share-based payments
|
—
|
|
—
|
|
—
|
|
371
|
|
371
|
|
Net profit for the year
|
—
|
|
—
|
|
362
|
|
—
|
|
362
|
|
Other comprehensive income for the year
|
—
|
|
—
|
|
—
|
|
818
|
|
818
|
|
Dividends paid
|
—
|
|
—
|
|
(439
|
)
|
—
|
|
(439
|
)
|
|
|
|
|
|
|
|||||
Balance - 30 June 2017
|
439 957 199
|
|
28 336
|
|
(4 486
|
)
|
5 441
|
|
29 291
|
|
|
|
|
|
|
|
|||||
Issue of shares
|
|
|
|
|
|
|||||
– Shares issued and fully paid
|
55 055 050
|
|
1 004
|
|
—
|
|
—
|
|
1 004
|
|
– Exercise of employee share options
|
5 239 502
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Share-based payments
|
—
|
|
—
|
|
—
|
|
374
|
|
374
|
|
Net loss for the year
|
—
|
|
—
|
|
(4 473
|
)
|
—
|
|
(4 473
|
)
|
Other comprehensive income for the year
|
—
|
|
—
|
|
—
|
|
(660
|
)
|
(660
|
)
|
Reclassification from other reserves
|
—
|
|
—
|
|
10
|
|
(10
|
)
|
—
|
|
Dividends paid
|
—
|
|
—
|
|
(154
|
)
|
—
|
|
(154
|
)
|
|
|
|
|
|
|
|||||
Balance - 30 June 2018
|
500 251 751
|
|
29 340
|
|
(9 103
|
)
|
5 145
|
|
25 382
|
|
|
|
|
|
|
|
|||||
Impact of adopting IFRS 9 (refer to note 2)
|
—
|
|
—
|
|
—
|
|
82
|
|
82
|
|
|
|
|
|
|
|
|||||
Re-presented opening balance - 1 July 2018
|
500 251 751
|
|
29 340
|
|
(9 103
|
)
|
5 227
|
|
25 464
|
|
|
|
|
|
|
|
|||||
Issue of shares
|
|
|
|
|
|
|||||
– Shares issued and fully paid
|
11 032 623
|
|
211
|
|
—
|
|
—
|
|
211
|
|
– Exercise of employee share options
|
21 856 821
|
|
—
|
|
—
|
|
—
|
|
—
|
|
– Harmony ESOP Trust
|
6 700 000
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Share-based payments
|
—
|
|
—
|
|
—
|
|
230
|
|
230
|
|
Net loss for the year
|
—
|
|
—
|
|
(2 607
|
)
|
—
|
|
(2 607
|
)
|
Other comprehensive income for the year
|
—
|
|
—
|
|
—
|
|
(684
|
)
|
(684
|
)
|
|
|
|
|
|
|
|||||
Balance - 30 June 2019
|
539 841 195
|
|
29 551
|
|
(11 710
|
)
|
4 773
|
|
22 614
|
|
|
|
SA rand
|
|||||
Figures in million
|
Notes
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|
|||
CASH FLOW FROM OPERATING ACTIVITIES
|
|
|
|
|
|||
|
|
|
|
|
|||
Cash generated by operations
|
31
|
5 052
|
|
4 289
|
|
4 346
|
|
Interest received
|
|
69
|
|
82
|
|
75
|
|
Interest paid
|
|
(387
|
)
|
(180
|
)
|
(79
|
)
|
Income and mining taxes paid
|
|
(55
|
)
|
(307
|
)
|
(538
|
)
|
|
|
|
|
|
|||
Cash generated by operating activities
|
|
4 679
|
|
3 884
|
|
3 804
|
|
|
|
|
|
|
|||
CASH FLOW FROM INVESTING ACTIVITIES
|
|
|
|
|
|||
|
|
|
|
|
|||
Increase in restricted cash
|
|
(15
|
)
|
(32
|
)
|
(1
|
)
|
Decrease in amounts invested in restricted investments
|
16
|
187
|
|
—
|
|
7
|
|
Cash on acquisition of Hidden Valley
|
12
|
—
|
|
—
|
|
459
|
|
Acquisition of Moab Khotsong
|
12
|
—
|
|
(3 474
|
)
|
—
|
|
Additions to intangible assets
|
|
(1
|
)
|
(9
|
)
|
—
|
|
Redemption of preference shares from associates
|
20
|
32
|
|
—
|
|
—
|
|
Capital distributions from investments
|
17
|
30
|
|
—
|
|
—
|
|
Proceeds from disposal of property, plant and equipment
|
|
5
|
|
2
|
|
42
|
|
Additions to property, plant and equipment
|
|
(5 035
|
)
|
(4 562
|
)
|
(3 890
|
)
|
|
|
|
|
|
|||
Cash utilised by investing activities
|
|
(4 797
|
)
|
(8 075
|
)
|
(3 383
|
)
|
|
|
|
|
|
|||
CASH FLOW FROM FINANCING ACTIVITIES
|
|
|
|
|
|||
|
|
|
|
|
|||
Borrowings raised
|
29
|
1 522
|
|
6 937
|
|
699
|
|
Borrowings repaid
|
29
|
(1 353
|
)
|
(4 063
|
)
|
(710
|
)
|
Proceeds from the issue of shares
|
23
|
211
|
|
1 003
|
|
—
|
|
Dividends paid
|
|
—
|
|
(154
|
)
|
(439
|
)
|
|
|
|
|
|
|||
Cash generated from/(utilised by) financing activities
|
|
380
|
|
3 723
|
|
(450
|
)
|
Foreign currency translation adjustments
|
|
25
|
|
(72
|
)
|
19
|
|
Net increase/(decrease) in cash and cash equivalents
|
|
287
|
|
(540
|
)
|
(10
|
)
|
Cash and cash equivalents - beginning of year
|
|
706
|
|
1 246
|
|
1 256
|
|
|
|
|
|
|
|||
Cash and cash equivalents - end of year
|
|
993
|
|
706
|
|
1 246
|
|
1
|
GENERAL INFORMATION
|
2
|
ACCOUNTING POLICIES
|
2
|
ACCOUNTING POLICIES continued
|
2
|
ACCOUNTING POLICIES continued
|
(a)
|
The majority of loans and receivables, including debt instruments previously classified as held-to-maturity, are classified and measured at amortised cost under IFRS 9 as the group's business model is to hold these instruments in order to collect contractual cash flows, which is solely payments of principal and interest.
|
(b)
|
Debt investments previously measured at FVTPL are classified and measured on the same basis under IFRS 9.
|
(c)
|
An irrevocable election was made to classify the equity instruments previously classified as available-for-sale as at FVOCI. The new standard impacted the measurement of the group's unquoted equity investments. IFRS 9 eliminates the exemption provided under IAS 39 where unquoted equity investments were measured at cost when fair value could not be reliably measured. This change resulted in revaluing unlisted investments with a cost of Rnil to fair value of R82 million. The difference between the carrying amounts of financial instruments before the adoption of IFRS 9 and the new carrying amount calculated in accordance with the standard at 1 July 2018 was recognised directly in the opening balance of equity. Refer to the statements of changes in equity.
|
(d)
|
The loan to the ARM BBEE Trust, previously carried at amortised cost, is classified at FVTPL under IFRS 9 as the contractual cash flows fail the solely payments of principal and interest (SPPI) characteristics. The group determined that the contractual terms include exposure to risk and volatility that is inconsistent with a basic lending arrangement. In making this assessment the group considered contingent events that would change the amount and timing of cash flows and potential limits on the group's claim to cash flows from specified assets (e.g. non-recourse asset arrangements). The change in classification did not have an impact on the carrying amount of the loan on initial adoption as the carrying amount was equal to the fair value. The loan is included in other non-current assets in the balance sheet. Previously, the ARM BBEE Trust loan was included in non-current trade and other receivables in the balance sheet.
|
(e)
|
Derivative financial instruments continue to be classified and measured at FVTPL.
|
2
|
ACCOUNTING POLICIES continued
|
–
|
the effects of vesting conditions on the measurement of a cash-settled share-based payment;
|
–
|
the accounting requirements for a modification to the terms and conditions of a share-based payment that changes the classification of the transaction from cash-settled to equity-settled; and
|
–
|
the classification of share-based payment transactions with net settlement features.
|
2
|
ACCOUNTING POLICIES continued
|
•
|
Exemption not to capitalise leases for which the underlying asset is of low value;
|
•
|
Exemption not to capitalise short-term leases;
|
•
|
Recognition exemption for leases for which the lease term ends within 12 months of the date of initial application; and
|
•
|
Exclude initial direct costs from the measurement of the right-of-use asset on initial adoption.
|
–
|
Confirm that a business must include inputs and a process, and clarified that: (i) the process must be substantive and (ii) the inputs and process must together significantly contribute to creating outputs;
|
–
|
Narrow the definitions of a business by focusing the definition of outputs on goods and services provided to customers and other income from ordinary activities, rather than on providing dividends or other economic benefits directly to investors or lowering costs; and
|
–
|
Add a test that makes it easier to conclude that a company has acquired a group of assets, rather than a business, if the value of the assets acquired is substantially all concentrated in a single asset or group of similar assets.
|
2
|
ACCOUNTING POLICIES continued
|
2
|
ACCOUNTING POLICIES continued
|
2.1
|
Consolidation
|
2
|
ACCOUNTING POLICIES continued
|
2.1
|
Consolidation continued
|
2.2
|
Foreign currency translation
|
•
|
Assets and liabilities for each balance sheet presented are translated at the closing rate at the date of that balance sheet while equity items are translated at historic rates;
|
•
|
Income and expenses for each income statement are translated at average exchange rates (the rate on the date of the transaction is used if the average is not a reasonable rate for the translation of the transaction);
|
•
|
All resulting exchange differences are recognised as a separate component of other comprehensive income.
|
2
|
ACCOUNTING POLICIES continued
|
2.3
|
Derivatives and hedging activities
|
2.4
|
Exploration expenditure
|
2
|
ACCOUNTING POLICIES continued
|
2.4
|
Exploration expenditure continued
|
2.5
|
Impairment of non-financial assets
|
2.6
|
Operating profit
|
3
|
CRITICAL ACCOUNTING ESTIMATES AND JUDGEMENTS
|
•
|
Valuation of derivative financial instruments – note 4;
|
•
|
Estimate of taxation – note 10;
|
•
|
Recognition of deferred tax asset – note 10;
|
•
|
Valuation of acquired assets and assumed liabilities for Moab Khotsong and Hidden Valley– note 12;
|
•
|
Gold mineral reserves and resources – note 13;
|
•
|
Production start date – note 13;
|
•
|
Stripping activities – note 13;
|
•
|
Impairment of assets – note 13;
|
•
|
Depreciation of property plant and equipment – note 13;
|
•
|
Impairment of goodwill – note 14;
|
•
|
Valuation of interest in associate – note 20;
|
•
|
Provision for stock obsolescence - note 22;
|
•
|
Estimate of exposure and liabilities with regard to rehabilitation costs – note 25;
|
•
|
Estimate of provision for silicosis settlement – note 26;
|
•
|
Estimate of employee benefit liabilities – note 27;
|
•
|
Fair value of share-based payments – note 33;
|
•
|
Assessment of contingencies – note 35.
|
4
|
FINANCIAL RISK MANAGEMENT
|
Figures in million (SA rand)
|
Debt instruments at amortised cost
|
|
Equity instruments designated at fair value through OCI
|
|
Derivatives designated as cash flow hedges
|
|
Derivatives at fair value through profit or loss
|
|
Debt instruments at fair value through profit or loss
|
|
Financial liabilities at amortised cost
|
|
|
|
|
|
|
|
|
||||||
At 30 June 2019
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Financial assets
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Restricted cash
|
136
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Restricted investments
|
2 045
|
|
—
|
|
—
|
|
—
|
|
1 256
|
|
—
|
|
Other non-current assets
|
3
|
|
59
|
|
—
|
|
—
|
|
271
|
|
—
|
|
Non-current derivative financial instruments
|
—
|
|
—
|
|
24
|
|
173
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
23
|
|
—
|
|
—
|
|
—
|
|
- US$ commodity contracts
|
—
|
|
—
|
|
1
|
|
—
|
|
—
|
|
—
|
|
- Foreign exchange hedging contracts
|
—
|
|
—
|
|
—
|
|
173
|
|
—
|
|
—
|
|
Current derivative financial instruments
|
—
|
|
—
|
|
26
|
|
283
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
22
|
|
—
|
|
—
|
|
—
|
|
- US$ commodity contracts
|
—
|
|
—
|
|
4
|
|
—
|
|
—
|
|
—
|
|
- Foreign exchange hedging contracts
|
—
|
|
—
|
|
—
|
|
283
|
|
—
|
|
—
|
|
Trade and other receivables
|
627
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Cash and cash equivalents
|
993
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
|
|
|
|
|
|
||||||
Financial liabilities
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Non-current derivative financial instruments
|
—
|
|
—
|
|
172
|
|
—
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
158
|
|
—
|
|
—
|
|
—
|
|
- US$ commodity contracts
|
—
|
|
—
|
|
14
|
|
—
|
|
—
|
|
—
|
|
Current derivative financial instruments
|
—
|
|
—
|
|
205
|
|
65
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
164
|
|
61
|
|
—
|
|
—
|
|
- US$ commodity contracts
|
—
|
|
—
|
|
41
|
|
2
|
|
—
|
|
—
|
|
- Foreign exchange hedging contracts
|
—
|
|
—
|
|
—
|
|
2
|
|
—
|
|
—
|
|
Borrowings
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
5 915
|
|
Other non-current liabilities
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
2
|
|
Trade and other payables
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
930
|
|
|
|
|
|
|
|
|
4
|
FINANCIAL RISK MANAGEMENT continued
|
Figures in million (SA rand)
|
Loans and receivables
|
|
Available-for-sale financial assets
|
|
Held-to-maturity investments
|
|
Hedging instruments
|
|
Fair value through profit or loss
|
|
Financial liabilities at amortised cost
|
|
|
|
|
|
|
|
|
||||||
At 30 June 2018
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Financial assets
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Restricted cash
|
115
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Restricted investments
|
23
|
|
—
|
|
2 335
|
|
—
|
|
913
|
|
—
|
|
Other non-current assets
|
253
|
|
8
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Non-current derivative financial instruments
|
—
|
|
—
|
|
—
|
|
70
|
|
14
|
|
—
|
|
Current derivative financial instruments
|
—
|
|
—
|
|
—
|
|
412
|
|
127
|
|
—
|
|
Trade and other receivables
|
626
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Cash and cash equivalents
|
706
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
|
|
|
|
|
|
||||||
Financial liabilities
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Non-current derivative financial instruments
|
—
|
|
—
|
|
—
|
|
—
|
|
10
|
|
—
|
|
Current derivative financial instruments
|
—
|
|
—
|
|
—
|
|
—
|
|
205
|
|
—
|
|
Borrowings
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
5 614
|
|
Other non-current liabilities
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
1
|
|
Trade and other payables
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
769
|
|
|
|
|
|
|
|
|
4
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Sensitivity analysis - borrowings
|
|
|
||
|
|
|
||
Rand against US$
|
|
|
||
|
|
|
||
Balance at 30 June
|
4 143
|
|
5 114
|
|
Strengthen by 10%
|
414
|
|
511
|
|
Weaken by 10%
|
(414
|
)
|
(511
|
)
|
|
|
|
||
Closing rate
|
14.13
|
|
13.81
|
|
|
|
|
||
US$ against Kina
|
|
|
||
|
|
|
||
Balance at 30 June
|
283
|
|
—
|
|
Strengthen by 10%
|
26
|
|
—
|
|
Weaken by 10%
|
(31
|
)
|
—
|
|
|
|
|
||
Closing rate
|
0.30
|
|
0.30
|
|
|
|
|
||
|
|
|
||
Sensitivity analysis - financial instruments
|
|
|
||
|
|
|
||
Rand against US$
|
|
|
||
|
|
|
||
Balance at 30 June
|
454
|
|
(136
|
)
|
Strengthen by 10%
|
567
|
|
666
|
|
Weaken by 10%
|
(1 511
|
)
|
(625
|
)
|
|
|
|
||
Closing rate
|
14.13
|
|
13.81
|
|
|
|
|
||
US$ against Kina
|
|
|
||
|
|
|
||
Balance at 30 June
|
211
|
|
30
|
|
Strengthen by 10%
|
19
|
|
3
|
|
Weaken by 10%
|
(23
|
)
|
(3
|
)
|
|
|
|
||
Closing rate
|
0.30
|
|
0.30
|
|
4
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Sensitivity analysis
|
|
|
||
|
|
|
||
Rand gold derivatives
|
|
|
||
|
|
|
||
Profit or loss
|
|
|
||
Increase by 10%
|
(76
|
)
|
—
|
|
Decrease by 10%
|
79
|
|
—
|
|
|
|
|
||
Other comprehensive income
|
|
|
||
Increase by 10%
|
(1 162
|
)
|
(522
|
)
|
Decrease by 10%
|
1 174
|
|
515
|
|
|
|
|
||
|
|
|
||
US$ gold derivatives
|
|
|
||
|
|
|
||
Profit or loss
|
|
|
||
Increase by 10%
|
(20
|
)
|
(166
|
)
|
Decrease by 10%
|
20
|
|
167
|
|
|
|
|
||
Other comprehensive income
|
|
|
||
Increase by 10%
|
(110
|
)
|
—
|
|
Decrease by 10%
|
113
|
|
—
|
|
|
|
|
||
|
|
|
||
US$ silver derivatives
|
|
|
||
|
|
|
||
Profit or loss
|
|
|
||
Increase by 10%
|
—
|
|
(14
|
)
|
Decrease by 10%
|
4
|
|
15
|
|
|
|
|
4
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Sensitivity analysis - borrowings (finance costs)
|
|
|
||
|
|
|
||
Increase by 100 basis points
|
(59
|
)
|
(56
|
)
|
Decrease by 100 basis points
|
59
|
|
56
|
|
|
|
|
||
|
|
|
||
Sensitivity analysis - financial assets (interest received)
|
|
|
||
|
|
|
||
Increase by 100 basis points
|
44
|
|
32
|
|
Decrease by 100 basis points
|
(44
|
)
|
(32
|
)
|
|
|
|
•
|
Increased credit risk;
|
•
|
Increased cost of capital; and
|
•
|
Difficulty in obtaining funding.
|
4
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Cash and cash equivalents
|
|
|
||
|
|
|
||
AA
|
671
|
|
623
|
|
AA-
|
322
|
|
83
|
|
|
|
|
||
|
993
|
|
706
|
|
|
|
|
||
Restricted cash
|
|
|
||
|
|
|
||
AA
|
109
|
|
94
|
|
AA-
|
27
|
|
21
|
|
|
|
|
||
|
136
|
|
115
|
|
|
|
|
||
Restricted investments (environmental trusts)
|
|
|
||
|
|
|
||
AA+
|
—
|
|
1 498
|
|
AA
|
3 273
|
|
1 740
|
|
|
|
|
||
|
3 273
|
|
3 238
|
|
|
|
|
||
Derivative financial assets
|
|
|
||
|
|
|
||
AA+
|
—
|
|
130
|
|
AA
|
393
|
|
354
|
|
AA-
|
69
|
|
139
|
|
A+
|
44
|
|
—
|
|
|
|
|
||
|
506
|
|
623
|
|
4
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA rand
|
|||
Figures in million
|
Current
|
|
More than 1 year
|
|
|
|
|
||
2019
|
|
|
||
|
|
|
||
Other non-current liabilities
|
—
|
|
2
|
|
Trade and other payables (excluding non-financial liabilities)
|
930
|
|
—
|
|
Derivative financial liabilities
|
280
|
|
194
|
|
Borrowings
|
|
|
||
Due between 0 to six months
|
242
|
|
—
|
|
Due between six to 12 months
|
241
|
|
—
|
|
Due between one to two years
|
—
|
|
4 578
|
|
Due between two to four years
|
—
|
|
1 624
|
|
|
|
|
||
|
1 693
|
|
6 398
|
|
4
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA rand
|
|||
Figures in million
|
Current
|
|
More than 1 year
|
|
|
|
|
||
2018
|
|
|
||
|
|
|
||
Other non-current liabilities
|
—
|
|
1
|
|
Trade and other payables (excluding non-financial liabilities)
|
769
|
|
—
|
|
Derivative financial liabilities
|
124
|
|
95
|
|
Borrowings
|
|
|
||
Due between 0 to six months
|
702
|
|
—
|
|
Due between six to 12 months
|
—
|
|
—
|
|
Due between one to two years
|
—
|
|
584
|
|
Due between two to four years
|
—
|
|
5 002
|
|
|
|
|
||
|
1 595
|
|
5 682
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Cash and cash equivalents
|
993
|
|
706
|
|
Borrowings
|
(5 915
|
)
|
(5 614
|
)
|
|
|
|
||
Net debt
|
(4 922
|
)
|
(4 908
|
)
|
4
|
FINANCIAL RISK MANAGEMENT continued
|
Level 1:
|
Quoted prices (unadjusted) in active markets;
|
Level 2:
|
Inputs other than quoted prices included within level 1 that are observable for the asset, either directly (that is, as prices) or indirectly (that is, derived from other prices);
|
Level 3:
|
Inputs for the asset that are not based on observable market data (that is, unobservable inputs).
|
|
SA rand
|
|||||||
Figures in million
|
At 30 June 2019
|
|
At 30 June 2018
|
|
||||
|
|
|
|
|
||||
|
Level 2
|
Level 3
|
Level 2
|
Level 3
|
||||
|
|
|
|
|
||||
Fair value through other comprehensive income
|
|
|
|
|
||||
Other non-current assets (a)
|
—
|
|
59
|
|
—
|
|
8
|
|
Fair value through profit or loss
|
|
|
|
|
||||
Restricted investments (b)
|
1 256
|
|
—
|
|
913
|
|
—
|
|
Derivative financial assets (c)
|
507
|
|
—
|
|
623
|
|
—
|
|
Derivative financial liabilities (c)
|
(422
|
)
|
—
|
|
(215
|
)
|
—
|
|
Other non-current assets (d)
|
—
|
|
271
|
|
—
|
|
—
|
|
|
|
|
|
|
(a)
|
The increase in level 3 fair value measurement relates to the equity investment in Rand Mutual Assurance previously carried at cost. Refer to note 2. The fair value of the investment was estimated with reference to an independent valuation. The valuation was performed using a discounted cash flow model. In valuating the group's share of the business, common practice marketability and minority discounts as well as additional specific risk discounts were applied.
|
(b)
|
The majority of the balance is directly derived from the Top 40 index on the JSE, and is discounted at market interest rate. This relates to equity-linked deposits in the group's environmental rehabilitation trust funds. The balance of the environmental trust funds are carried at amortised cost and therefore not disclosed here.
|
(c)
|
The mark-to market remeasurement of the derivative contracts was determined as follows:
|
•
|
Forex hedging contracts comprise of zero cost collars and FECs:
|
•
|
Rand gold hedging contracts (forward sale contracts): spot Rand/US$ exchange rate, Rand and dollar interest rates (forward points), spot US$ gold price, differential between the US interest rate and gold lease interest rate which is discounted at market interest rate.
|
•
|
US$ gold hedging contracts (forward sale contracts): spot US$ gold price, differential between the US interest rate and gold lease interest rate and discounted at market interest rate.
|
•
|
Silver hedging contracts (zero cost collars): a Black-Scholes valuation technique, derived from spot US$ silver price, strike price, implied volatilities, time to maturity and interest rates and discounted at market interest rate.
|
(d)
|
The increase in level 3 fair value measurement relates to the ARM BBEE loan that was previously carried at amortised cost. Refer to note 17. The fair value was calculated using a discounted cash flow model taking into account projected interest payments and the projected share price for African Rainbow Minerals Limited (ARM) on the expected repayment date.
|
5
|
REVENUE
|
|
|
• Gold: South Africa
|
Gold is delivered and certificate of sale is issued.
|
• Gold and silver: Hidden Valley
|
For sales up to 13 February 2019: metal is delivered and metal account credited by the customer.
|
|
Sales from 14 February 2019 onwards: metal is collected from Hidden Valley and a confirmation of collection is sent to and accepted by the customer.
|
• Uranium
|
Confirmation of transfer is issued.
|
6
|
COST OF SALES
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018*
|
|
2017*
|
|
|
|
|
|
|||
Production costs (a)
|
20 324
|
|
15 084
|
|
15 042
|
|
Amortisation and depreciation of mining assets (b)
|
3 961
|
|
2 468
|
|
2 441
|
|
Amortisation and depreciation of assets other than mining assets (b)
|
93
|
|
102
|
|
78
|
|
Rehabilitation expenditure (c)
|
33
|
|
67
|
|
23
|
|
Care and maintenance costs of restructured shafts
|
134
|
|
128
|
|
109
|
|
Employment termination and restructuring costs (d)
|
242
|
|
208
|
|
74
|
|
Share-based payments (e)
|
155
|
|
244
|
|
391
|
|
Impairment of assets (f)
|
3 898
|
|
5 336
|
|
1 718
|
|
Other
|
29
|
|
(41
|
)
|
(7
|
)
|
|
|
|
|
|||
Total cost of sales
|
28 869
|
|
23 596
|
|
19 869
|
|
6
|
COST OF SALES continued
|
(a)
|
Production costs include mine production and transport and refinery costs, applicable general administrative costs, movement in inventories and ore stockpiles, ongoing environmental rehabilitation costs and transfers for stripping activities. Employee termination costs are included, except for employee termination costs associated with major restructuring and shaft closures, which are separately disclosed.
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018*
|
|
2017*
|
|
|
|
|
|
|||
Labour costs, including contractors
|
12 715
|
|
9 750
|
|
9 006
|
|
Consumables
|
5 532
|
|
3 418
|
|
3 614
|
|
Water and electricity
|
3 398
|
|
2 551
|
|
2 316
|
|
Insurance
|
126
|
|
86
|
|
91
|
|
Transportation
|
354
|
|
121
|
|
177
|
|
Change in inventory
|
(166
|
)
|
(211
|
)
|
370
|
|
Capitalisation of mine development costs
|
(1 880
|
)
|
(1 552
|
)
|
(1 321
|
)
|
Stripping activities1
|
(1 197
|
)
|
(167
|
)
|
(77
|
)
|
Royalty expense
|
193
|
|
121
|
|
211
|
|
Other
|
1 249
|
|
967
|
|
655
|
|
|
|
|
|
|||
Total production costs
|
20 324
|
|
15 084
|
|
15 042
|
|
(b)
|
Depreciation is higher for the 2019 year owing mainly to full year production at Hidden Valley (R1.6 billion increase) as well as Moab Khotsong (R178 million increase) included for the full year. Offsetting this are decreases year on year at Target 1 (R199 million) as well as Unisel and Masimong (R184 million) owing to the impact of the impairment that was recognised at the end of the 2018 year.
|
(c)
|
For the assumptions used to calculate the rehabilitation costs, refer to note 25. This expense includes the change in estimate for the rehabilitation provision where an asset no longer exists as well as costs related to the rehabilitation process. For 2019, R86 million (2018: R94 million) (2017: R96 million) was spent on rehabilitation in South Africa. Refer to note 25.
|
(d)
|
The employment termination and restructuring expenditure for 2019 and 2018 relate to the voluntary severance program in place to reduce labour costs. The 2017 amount includes contractor fees for the optimisation of the Hidden Valley operation of R61 million.
|
(e)
|
Refer to note 33 for details on the share-based payment schemes implemented by the group. Due to the approval of the new management share plan, no new issue for the management share incentive scheme was made following the 2015 issue maturing in November 2018.
|
6
|
COST OF SALES continued
|
(f)
|
An increase in the planned gold price was offset by an increase in costs (both working costs and capital expenditure), which was further compounded by the inclusion of carbon tax (effective 1 June 2019), in both the life-of-mine and resource base models. Although there was an increase in the overall group’s net present value of the life-of-mine models, the revision of the areas included in certain of the resource base models resulted in lower grades which negatively impacted on the cash flows and ultimately the recoverable amounts. Refer to note 13 for further information. The impairment of assets consists of the following:
|
|
SA rand
|
|||||
|
Recoverable amount
|
|||||
Figures in million
|
Life-of-Mine plan
|
|
Resource base
|
|
Total
|
|
|
|
|
|
|||
Tshepong Operations
|
|
|
|
|||
The impairment is due to the increased costs to exploit the resource base as well as a lower expected recovered grade. The decrease in the recovery grade is as a result of the change in the dilution factors applied to the outside life of mine resources.
|
3 811
|
|
2 055
|
|
5 866
|
|
Kusasalethu
|
|
|
|
|||
The decrease in grade and increased estimated costs in the resource base resulted in a lower recoverable amount. The decrease in the recovery grade is as a result of the change in the dilution factors applied to the outside life of mine resources.
|
1 297
|
|
—
|
|
1 297
|
|
Target 1
|
|
|
|
|||
The recoverable amount decreased as a result of increased costs and decrease in grade in the resource base together with the estimated impact of carbon tax. The increase in discount rate due to increased risk factors also negatively impacted on the recoverable amount.
|
467
|
|
609
|
|
1 076
|
|
Target 3
|
|
|
|
|||
The operation remains under care and maintenance. A change in valuation method from discounted cash flow model to resource multiple approach reduced the recoverable amount.
|
None
|
|
182
|
|
182
|
|
Joel
|
|
|
|
|||
The increased capital costs in the resource base together with carbon tax negatively impacted the net present value of expected cash flows.
|
765
|
|
87
|
|
852
|
|
Other mining assets
|
|
|
|
|||
The updated life-of-mine plans for the CGUs in Freegold and Avgold resulted in the impairment of other mining assets.
|
335
|
|
None
|
|
335
|
|
Bambanani
|
|
|
|
|||
The impairment of goodwill reduced the carrying amount of intangible assets. As goodwill is not depreciated, it results in an impairment as the life of the operation shortens.
|
763
|
|
None
|
|
763
|
|
|
|
|
|
6
|
COST OF SALES continued
|
(f)
|
Impairment continued
|
|
SA rand
|
|||||
|
Recoverable amount
|
|||||
Figures in million
|
Life-of-Mine plan
|
|
Resource base
|
|
Total
|
|
|
|
|
|
|||
Tshepong Operations
|
|
|
|
|||
The impairment was mainly driven by sensitivity to fluctuations in the gold price. Furthermore the updated life-of-mine for the Tshepong operations presented a marginal decrease in recovered grade.
|
4 279
|
|
3 147
|
|
7 426
|
|
Kusasalethu
|
|
|
|
|||
Kusasalethu's old section of the mine at the operation was excluded in the FY19 life-of-mine plan.
|
1 019
|
|
1 119
|
|
2 138
|
|
Target 1
|
|
|
|
|||
Exploration drilling results during the year pointed towards lower grade estimates within certain blocks that have now been excluded from the life-of-mine plans.
|
471
|
|
746
|
|
1 217
|
|
Joel
|
|
|
|
|||
The updated life-of-mine for the Joel operation presented a marginal decrease in recovered grade.
|
540
|
|
336
|
|
876
|
|
Other mining assets
|
|
|
|
|||
The updated life-of-mine plans for the CGUs in Freegold and Harmony resulted in the impairment of other mining assets.
|
366
|
|
None
|
|
366
|
|
Doornkop
|
|
|
|
|||
The impairment of Doornkop is primarily as a result of a decrease in the Kimberley Reef's resource values.
|
1 552
|
|
1 178
|
|
2 730
|
|
Unisel
|
|
|
|
|||
Excluded the Leader Reef from the life-of-mine plan to focus on the higher grade Basal Reef. This reduced the life-of-mine from four years to eighteen months.
|
38
|
|
None
|
|
38
|
|
Masimong
|
|
|
|
|||
The impairment at Masimong was as a result of the depletion of the higher grade B Reef and subsequent reduced life-of-mine.
|
58
|
|
None
|
|
58
|
|
Target North
|
|
|
|
|||
The impairment of Target North was as a result of a decrease in resource values.
|
None
|
|
3 681
|
|
3 681
|
|
|
|
|
|
|
SA rand
|
|||||
|
Recoverable amount
|
|||||
Figures in million
|
Life-of-Mine plan
|
|
Resource base
|
|
Total
|
|
|
|
|
|
|||
Tshepong Operations
|
|
|
|
|||
The impairment was mainly driven by the restriction on hoisting capacity at Phakisa along with the general pressure on margins.
|
4 931
|
|
2 849
|
|
7 780
|
|
Target 1
|
|
|
|
|||
Information gained from the underground drilling during the year indicated that some areas of the bottom reef of the Dreyerskuil are highly channelised, which negatively impacted on the overall grade for the operation. These areas were subsequently excluded from the life-of-mine plan. This, together with the general pressure on margins, reduced the profitability of the operation over its life and contributed to the decrease in the recoverable amount.
|
867
|
|
1 129
|
|
1 996
|
|
Kusasalethu
|
|
|
|
|||
The impairment was driven by a reduction in the additional attributable resource value as a result of a decrease in the ounces. The company investigated the viability of a decline to extend the life. The business case showed that the option was not feasible and therefore the resource ounces were reduced.
|
1 240
|
|
1 543
|
|
2 783
|
|
|
|
|
|
7
|
OTHER OPERATING EXPENSES
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Profit on sale of property, plant and equipment
|
(5
|
)
|
(2
|
)
|
(42
|
)
|
Social investment expenditure
|
155
|
|
73
|
|
74
|
|
Loss on scrapping of property, plant and equipment (a)
|
21
|
|
1
|
|
140
|
|
Foreign exchange translation (gain)/loss (b)
|
86
|
|
682
|
|
(194
|
)
|
Silicosis settlement provision/(reversal of provision) (c)
|
(62
|
)
|
(68
|
)
|
917
|
|
Provision/(reversal of provision) for ARM BBEE Trust loan (d)
|
—
|
|
(43
|
)
|
13
|
|
Other (income)/expenses - net
|
(9
|
)
|
24
|
|
(22
|
)
|
|
|
|
|
|||
Total other operating expenses
|
186
|
|
667
|
|
886
|
|
8
|
INVESTMENT INCOME
|
|
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Interest income from financial assets at amortised cost
|
244
|
|
272
|
|
264
|
|
Net gain on financial instruments1
|
64
|
|
71
|
|
4
|
|
|
|
|
|
|||
Total investment income
|
308
|
|
343
|
|
268
|
|
9
|
FINANCE COSTS
|
|
|
9
|
FINANCE COSTS continued
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Financial liabilities
|
|
|
|
|||
|
|
|
|
|||
Borrowings
|
402
|
|
227
|
|
110
|
|
Other creditors and liabilities
|
2
|
|
1
|
|
—
|
|
|
|
|
|
|||
Total finance costs from financial liabilities
|
404
|
|
228
|
|
110
|
|
|
|
|
|
|||
Non-financial liabilities
|
|
|
|
|||
|
|
|
|
|||
Post-retirement benefits
|
17
|
|
18
|
|
16
|
|
Time value of money component of silicosis provision
|
79
|
|
76
|
|
—
|
|
Time value of money and inflation component of rehabilitation costs
|
208
|
|
191
|
|
173
|
|
|
|
|
|
|||
Total finance costs from non-financial liabilities
|
304
|
|
285
|
|
189
|
|
Total finance costs before interest capitalised
|
708
|
|
513
|
|
299
|
|
Interest capitalised (a)
|
(133
|
)
|
(183
|
)
|
(65
|
)
|
|
|
|
|
|||
Total finance costs
|
575
|
|
330
|
|
234
|
|
(a)
|
The capitalisation rate used to determine capitalised borrowing costs is:
|
|
2019
|
|
2018
|
|
2017
|
|
|
%
|
|
%
|
|
%
|
|
|
|
|
|
|||
Capitalisation rate
|
10.4
|
%
|
10.5
|
%
|
4.2
|
%
|
10
|
TAXATION
|
|
10
|
TAXATION continued
|
|
|
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
SA taxation
|
|
|
|
|||
|
|
|
|
|||
Mining tax (a)
|
(19
|
)
|
(42
|
)
|
(230
|
)
|
- current year
|
(14
|
)
|
(42
|
)
|
(230
|
)
|
- prior year
|
(5
|
)
|
—
|
|
—
|
|
|
|
|
|
|||
Non-mining tax (b)
|
(124
|
)
|
(163
|
)
|
(258
|
)
|
- current year
|
(121
|
)
|
(163
|
)
|
(256
|
)
|
- prior year
|
(3
|
)
|
—
|
|
(2
|
)
|
|
|
|
|
|||
Deferred tax (c)
|
282
|
|
439
|
|
998
|
|
- current year
|
282
|
|
439
|
|
998
|
|
|
|
|
|
|||
Total taxation (expense)/credit
|
139
|
|
234
|
|
510
|
|
(a)
|
Mining tax on gold mining taxable income in South Africa is determined according to a formula, based on the taxable income from mining operations. 5% of total revenue is exempt from taxation while the remainder is taxable at a higher rate (34%) than non-mining income (28%) as a result of applying the gold mining formula. Mining and non-mining income of Australian entities and PNG operation are taxed at a standard rate of 30%.
|
10
|
TAXATION continued
|
(b)
|
Non-mining taxable income of mining companies and the taxable income for non-mining companies are taxed at the statutory corporate rate of 28%.The expense relates to non-mining tax arising from derivative gains (realised and unrealised) recognised on the foreign currency derivatives as well as the realised gains on the commodity forward sale contracts. Refer to note 18 for details on the group's derivative gains recorded.
|
(c)
|
The deferred tax rate used to calculate deferred tax is based on the current estimate of future profitability when temporary differences will reverse based on tax rates and tax laws that have been enacted at the balance sheet date. Depending on the profitability of the operations, the deferred tax rate can consequently be significantly different from year to year.
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Tax on net loss at the mining statutory tax rate
|
934
|
|
1 600
|
|
50
|
|
Non-allowable deductions
|
(241
|
)
|
(513
|
)
|
(77
|
)
|
Gain on bargain purchase
|
—
|
|
—
|
|
288
|
|
Share-based payments
|
(70
|
)
|
(104
|
)
|
(104
|
)
|
Impairment of assets
|
(2
|
)
|
(219
|
)
|
(87
|
)
|
Exploration expenditure
|
(36
|
)
|
(74
|
)
|
(50
|
)
|
Finance costs
|
(68
|
)
|
(54
|
)
|
(37
|
)
|
Other
|
(65
|
)
|
(62
|
)
|
(87
|
)
|
|
|
|
|
|||
Movement in temporary differences related to property, plant and equipment
|
(1 388
|
)
|
(1 248
|
)
|
(1 080
|
)
|
Movements in temporary differences related to other assets and liabilities
|
98
|
|
55
|
|
52
|
|
Difference between effective mining tax rate and statutory mining rate on mining income
|
(175
|
)
|
(550
|
)
|
129
|
|
Difference between non-mining tax rate and statutory mining rate on non-mining income
|
19
|
|
35
|
|
55
|
|
Effect on temporary differences due to changes in effective tax rates1
|
83
|
|
675
|
|
968
|
|
Prior year adjustment
|
(8
|
)
|
—
|
|
7
|
|
Capital allowances2
|
684
|
|
604
|
|
536
|
|
Deferred tax asset not recognised3
|
133
|
|
(424
|
)
|
(130
|
)
|
|
|
|
|
|||
Income and mining taxation
|
139
|
|
234
|
|
510
|
|
|
|
|
|
|||
Effective income and mining tax rate (%)
|
5
|
|
5
|
|
347
|
|
10
|
TAXATION continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018*
|
|
|
|
|
||
Deferred tax assets
|
(549
|
)
|
(388
|
)
|
Deferred tax asset to be recovered after more than 12 months
|
(49
|
)
|
(52
|
)
|
Deferred tax asset to be recovered within 12 months
|
(500
|
)
|
(336
|
)
|
|
|
|
||
Deferred tax liabilities
|
1 237
|
|
1 533
|
|
Deferred tax liability to be recovered after more than 12 months
|
1 125
|
|
1 385
|
|
Deferred tax liability to be recovered within 12 months
|
112
|
|
148
|
|
|
|
|
||
Net deferred tax liability
|
688
|
|
1 145
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Gross deferred tax liabilities
|
1 237
|
|
1 533
|
|
|
|
|
||
Amortisation and depreciation
|
1 229
|
|
1 440
|
|
Derivative assets
|
—
|
|
90
|
|
Other
|
8
|
|
3
|
|
|
|
|
||
Gross deferred tax assets
|
(549
|
)
|
(388
|
)
|
|
|
|
||
Unredeemed capital expenditure
|
(4 044
|
)
|
(4 266
|
)
|
Provisions, including non-current provisions
|
(844
|
)
|
(680
|
)
|
Derivative financial instruments
|
(87
|
)
|
—
|
|
Tax losses
|
(1 209
|
)
|
(758
|
)
|
Deferred tax asset not recognised1
|
5 635
|
|
5 316
|
|
|
|
|
||
Net deferred tax liability
|
688
|
|
1 145
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
1 145
|
|
1 702
|
|
Credit per income statement
|
(282
|
)
|
(439
|
)
|
Tax directly charged to other comprehensive income
|
(176
|
)
|
(193
|
)
|
Moab Khotsong acquisition
|
—
|
|
75
|
|
|
|
|
||
Balance at end of year
|
688
|
|
1 145
|
|
10
|
TAXATION continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
As at 30 June, the group had the following potential future tax deductions:
|
|
|
||
|
|
|
||
Unredeemed capital expenditure available for utilisation against future mining taxable income1
|
39 725
|
|
38 711
|
|
Tax losses carried forward utilisable against mining taxable income2
|
5 494
|
|
4 334
|
|
Capital Gains Tax (CGT) losses available to be utilised against future CGT gains4
|
571
|
|
571
|
|
|
|
|
||
|
|
|
||
As at 30 June, the group has not recognised the following deferred tax asset amounts relating to the above:
|
12 935
|
|
12 215
|
|
|
|
|
||
The unrecognised temporary differences are:
|
|
|
||
Unredeemed capital expenditure3
|
35 038
|
|
34 021
|
|
Tax losses2
|
5 109
|
|
4 196
|
|
CGT losses4
|
571
|
|
571
|
|
|
|
|
11
|
EARNINGS/(LOSS) PER SHARE
|
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Ordinary shares in issue ('000)
|
539 841
|
|
500 252
|
|
439 957
|
|
Adjustment for weighted number of ordinary shares in issue ('000)
|
(12 974
|
)
|
(54 304
|
)
|
(1 077
|
)
|
|
|
|
|
|||
Weighted number of ordinary shares in issue ('000)
|
526 867
|
|
445 948
|
|
438 880
|
|
Treasury shares ('000)
|
(3 058
|
)
|
(52
|
)
|
(437
|
)
|
|
|
|
|
|||
Basic weighted average number of ordinary shares in issue ('000)
|
523 809
|
|
445 896
|
|
438 443
|
|
|
|
|
|
|||
|
SA rand
|
|||||
|
2019
|
|
2018
|
|
2017
|
|
Total net earnings/(loss) attributable to shareholders (millions)
|
(2 607
|
)
|
(4 473
|
)
|
362
|
|
Total basic earnings/(loss) per share (cents)
|
(498
|
)
|
(1 003
|
)
|
82
|
|
11
|
EARNINGS/(LOSS) PER SHARE continued
|
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Weighted average number of ordinary shares in issue ('000)
|
523 809
|
|
445 896
|
|
438 443
|
|
Potential ordinary shares1 ('000)
|
9 537
|
|
19 423
|
|
20 777
|
|
|
|
|
|
|||
Weighted average number of ordinary shares for diluted earnings per share1 ('000)
|
533 346
|
|
465 319
|
|
459 220
|
|
|
SA rand
|
|||||
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Total diluted earnings/(loss) per share (cents)2
|
(500
|
)
|
(1 004
|
)
|
79
|
|
|
|
|
|
|
|
•
|
On 17 August 2017, the board declared a final dividend of 35 cents cents for the year ended 30 June 2017. R154 million was paid on 16 October 2017.
|
•
|
On 31 January 2017, the board declared an interim dividend of 50 cents. R221 million was paid on 20 March 2017.
|
•
|
On 15 August 2016, the board declared a final dividend of 50 cents for the year ended 30 June 2016. R218 million was paid on 19 September 2016.
|
|
SA rand
|
|||||
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Dividend declared (millions)
|
—
|
|
154
|
|
439
|
|
Dividend per share (cents)
|
—
|
|
35
|
|
100
|
|
12
|
ACQUISITIONS AND BUSINESS COMBINATIONS
|
12
|
ACQUISITIONS AND BUSINESS COMBINATIONS continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Property, plant and equipment
|
—
|
|
3 691
|
|
Environmental rehabilitation trust funds
|
—
|
|
382
|
|
Inventories
|
—
|
|
72
|
|
Deferred tax liabilities
|
—
|
|
(75
|
)
|
Provision for environmental rehabilitation
|
—
|
|
(663
|
)
|
Retirement benefit obligation
|
—
|
|
(10
|
)
|
KOSH decant provision (refer to note 28)
|
—
|
|
(37
|
)
|
Leave liabilities
|
—
|
|
(140
|
)
|
Other payables
|
—
|
|
(48
|
)
|
|
|
|
||
Fair value of net identifiable assets acquired
|
—
|
|
3 172
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Consideration paid
|
—
|
|
3 474
|
|
Fair value of net identifiable assets acquired
|
—
|
|
(3 172
|
)
|
|
|
|
||
Goodwill
|
—
|
|
302
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018*
|
|
|
|
|
||
Mining assets
|
20 549
|
|
24 203
|
|
Mining assets under construction
|
2 964
|
|
2 528
|
|
Undeveloped properties
|
3 965
|
|
3 974
|
|
Other non-mining assets
|
271
|
|
264
|
|
|
|
|
||
Total property, plant and equipment
|
27 749
|
|
30 969
|
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
•
|
Asset carrying values may be affected due to changes in estimated cash flows;
|
•
|
Scrapping of assets to be recorded in the income statement following the derecognition of assets as no future economic benefit expected;
|
•
|
Depreciation and amortisation charged in the income statement may change as they are calculated on the units-of-production method;
|
•
|
Environmental provisions may change as the timing and/or cost of these activities may be affected by the change in mineral reserves; and
|
•
|
Useful life and residual values may be affected by the change in mineral reserves.
|
|
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
South Africa
|
Hidden Valley
|
||||||||||
US dollar per ounce
|
2019
|
|
2018
|
|
2017
|
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|
|
|
||||||
Measured
|
25.00
|
|
25.00
|
|
32.69
|
|
n/a
|
|
n/a
|
|
n/a
|
|
Indicated
|
8.00
|
|
8.00
|
|
18.68
|
|
8.00
|
|
5.84
|
|
5.84
|
|
Inferred
|
2.80
|
|
2.80
|
|
4.67
|
|
n/a
|
|
5.84
|
|
5.84
|
|
|
|
|
|
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
- 10% decrease
|
|
|
||
Tshepong Operations
|
7 155
|
|
5 174
|
|
Moab Khotsong1
|
2 758
|
|
1 636
|
|
Kusasalethu
|
1 962
|
|
2 716
|
|
Doornkop
|
1 350
|
|
2 052
|
|
Target 1
|
1 278
|
|
1 684
|
|
Joel
|
984
|
|
882
|
|
Hidden Valley
|
749
|
|
752
|
|
Target 3
|
337
|
|
141
|
|
Bambanani1
|
331
|
|
222
|
|
Target North
|
291
|
|
1 826
|
|
Other surface operations
|
178
|
|
540
|
|
Masimong
|
105
|
|
386
|
|
Unisel
|
45
|
|
525
|
|
Kalgold
|
39
|
|
—
|
|
|
|
|
||
+ 10% increase
|
|
|
||
Target 3
|
300
|
|
—
|
|
Masimong
|
—
|
|
59
|
|
Target North
|
—
|
|
1 090
|
|
Unisel
|
—
|
|
433
|
|
|
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018*
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
49 741
|
|
40 570
|
|
Fully depreciated assets no longer in use derecognised
|
(302
|
)
|
—
|
|
Additions1
|
4 113
|
|
2 546
|
|
Acquisition of Moab Khotsong
|
—
|
|
3 554
|
|
Disposals
|
(16
|
)
|
(68
|
)
|
Scrapping of assets
|
(117
|
)
|
(2
|
)
|
Adjustment to rehabilitation asset
|
(439
|
)
|
(175
|
)
|
Transfers and other movements
|
801
|
|
3 117
|
|
Translation
|
(152
|
)
|
199
|
|
|
|
|
||
Balance at end of year
|
53 629
|
|
49 741
|
|
|
|
|
||
Accumulated depreciation and impairments
|
|
|
||
|
|
|
||
Balance at beginning of year
|
25 538
|
|
19 263
|
|
Fully depreciated assets no longer in use derecognised
|
(302
|
)
|
—
|
|
Impairment of assets
|
3 880
|
|
3 460
|
|
Disposals
|
(16
|
)
|
(67
|
)
|
Scrapping of assets
|
(96
|
)
|
(1
|
)
|
Depreciation
|
4 184
|
|
2 789
|
|
Translation
|
(108
|
)
|
94
|
|
|
|
|
||
Balance at end of year
|
33 080
|
|
25 538
|
|
Net carrying value
|
20 549
|
|
24 203
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
2 528
|
|
3 104
|
|
Additions1
|
1 070
|
|
1 988
|
|
Depreciation capitalised2
|
50
|
|
312
|
|
Finance costs capitalised3
|
133
|
|
183
|
|
Transfers and other movements
|
(802
|
)
|
(3 123
|
)
|
Translation
|
(15
|
)
|
64
|
|
|
|
|
||
Balance at end of year
|
2 964
|
|
2 528
|
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
5 446
|
|
5 442
|
|
Translation
|
(9
|
)
|
4
|
|
|
|
|
||
Balance at end of year
|
5 437
|
|
5 446
|
|
|
|
|
||
Accumulated depreciation and impairments
|
|
|
||
|
|
|
||
Balance at beginning and end of year
|
1 472
|
|
14
|
|
Impairment1
|
—
|
|
1 458
|
|
|
|
|
||
Balance at end of year
|
1 472
|
|
1 472
|
|
Net carrying value
|
3 965
|
|
3 974
|
|
|
•
|
Vehicles at 20% per year.
|
•
|
Computer equipment at 33.3% per year.
|
•
|
Furniture and equipment at 16.67% per year.
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
609
|
|
441
|
|
Fully depreciated assets no longer in use derecognised
|
(9
|
)
|
—
|
|
Additions
|
59
|
|
37
|
|
Acquisition of Moab Khotsong
|
—
|
|
137
|
|
Transfers and other movements
|
1
|
|
(6
|
)
|
Translation
|
(2
|
)
|
—
|
|
|
|
|
||
Balance at end of year
|
658
|
|
609
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Accumulated depreciation and impairments
|
|
|
||
|
|
|
||
Balance at beginning of year
|
345
|
|
236
|
|
Fully depreciated assets no longer in use derecognised
|
(9
|
)
|
—
|
|
Depreciation
|
39
|
|
56
|
|
Impairment
|
12
|
|
51
|
|
Translation
|
—
|
|
2
|
|
|
|
|
||
Balance at end of year
|
387
|
|
345
|
|
Net carrying value
|
271
|
|
264
|
|
14
|
INTANGIBLE ASSETS
|
|
|
|
14
|
INTANGIBLE ASSETS continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018*
|
|
|
|
|
||
Goodwill
|
520
|
|
526
|
|
Technology-based assets
|
13
|
|
19
|
|
Total intangible assets
|
533
|
|
545
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018*
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
2 675
|
|
2 373
|
|
Acquisition of Moab Khotsong
|
—
|
|
302
|
|
|
|
|
||
Balance at end of year
|
2 675
|
|
2 675
|
|
|
|
|
||
Accumulated amortisation and impairments
|
|
|
||
|
|
|
||
Balance at beginning of year
|
2 149
|
|
1 782
|
|
Impairment1
|
6
|
|
367
|
|
|
|
|
||
Balance at end of year
|
2 155
|
|
2 149
|
|
Net carrying value
|
520
|
|
526
|
|
|
|
|
||
The net carrying value of goodwill has been allocated to the following cash generating units:
|
|
|
||
|
|
|
||
Bambanani
|
218
|
|
224
|
|
Moab Khotsong
|
302
|
|
302
|
|
|
|
|
||
Net carrying value
|
520
|
|
526
|
|
14
|
INTANGIBLE ASSETS continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
48
|
|
33
|
|
Fully depreciated assets no longer in use derecognised
|
(10
|
)
|
—
|
|
Transfers and other movements
|
—
|
|
6
|
|
Additions
|
1
|
|
9
|
|
|
|
|
||
Balance at end of year
|
39
|
|
48
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Accumulated amortisation and impairments
|
|
|
||
|
|
|
||
Balance at beginning of year
|
29
|
|
21
|
|
Fully depreciated assets no longer in use derecognised
|
(10
|
)
|
—
|
|
Amortisation charge
|
7
|
|
8
|
|
|
|
|
||
Balance at end of year
|
26
|
|
29
|
|
Net carrying value
|
13
|
|
19
|
|
|
Financial asset category
|
Description
|
Debt instruments at amortised cost
|
Financial assets at amortised cost consist of restricted cash, restricted investments, loans, trade receivables and cash and cash equivalents. Interest income from these financial assets is included in investment income using the effective interest rate method. Any gain or loss arising on derecognition is recognised directly in profit or loss. Impairment losses are presented in other operating expenses in the income statement.
|
Debt instruments at fair value through profit or loss
|
Equity-linked investments which are held to meet rehabilitation liabilities are classified as FVTPL. Debt instruments where the contractual cash flows fail to meet the solely payments of principal and interest (SPPI) criteria are also classified as FVTPL. A gain or loss on a debt investment that is subsequently measured at FVTPL is recognised in profit or loss and presented net within investment income in the period in which it arises. On derecognition of a financial asset, the difference between the proceeds received or receivable and the carrying amount of the asset is included in profit or loss.
|
Equity instruments designated at fair value through OCI
|
The group's equity investments are designated as FVTOCI. The group subsequently measures all equity investments at fair value. Where the group's management has elected to present fair value gains and losses on equity investments in OCI, there is no subsequent reclassification of fair value gains and losses to profit or loss following the derecognition of the investment. Dividends from such investments are recognised when the group’s right to receive payments is established either in profit or loss as other income or as a deduction against the asset if the dividend clearly represents a recovery of part of the cost of the investment. Residual values in OCI are reclassified to retained earnings on derecognition of the related FVTOCI instruments.
|
|
|
|
•
|
Loans and receivables are non-derivative financial assets with fixed or determinable payments that are not quoted in an active market. They arise when the group provides money, goods or services directly to a debtor with no intention of trading the receivable. Loans and receivables are subsequently measured at amortised cost using the effective interest method. Loans and receivables include trade and other receivables (excluding VAT and prepayments), restricted cash and cash and cash equivalents.
|
|
Cash and cash equivalents are defined as cash on hand, deposits held at call with banks and short-term highly liquid investments with original maturities of three months or less. Cash and cash equivalents exclude restricted cash.
|
|
Trade and other receivables are recognised initially at fair value and subsequently measured at amortised cost using the effective interest method, less provision for impairment. If collection of the trade receivable is expected in one year or less it is classified as current assets. If not, it is presented as non-current assets. A provision for impairment of receivables is established when there is objective evidence that the group will not be able to collect all amounts due according to the original terms of receivables. The amount of the provision is the difference between the asset’s carrying amount and the present value of estimated future cash flows, discounted at the effective interest rate. The carrying amount of the asset is reduced through the use of a provision for impairment (allowance account) and the amount of the loss is recognised in the income statement. When a trade receivable is uncollectible, it is written off against the allowance account for trade receivables. Subsequent recoveries of amounts previously written off are credited in the income statement.
|
•
|
Available-for-sale financial assets are non-derivatives that are either designated in this category or not classified in any of the other categories. They are included in non-current assets unless the investment matures or management intends to dispose of the investment within 12 months of the balance sheet date. Available-for-sale financial assets are subsequently carried at fair value. The fair values of quoted investments are based on current bid prices. If the fair value for a financial instrument cannot be obtained from an active market, the group establishes fair value by using valuation techniques. The group assesses at each balance sheet date whether there is objective evidence that a financial asset or a group of financial assets is impaired.
|
•
|
Held-to-maturity investments are non-derivative financial assets with fixed or determinable payments and fixed maturities that the group’s management has the positive intention and ability to hold to maturity. The group’s held-to-maturity investments are subsequently measured at amortised cost using the effective interest method. The group assesses at the end of each reporting period whether there is objective evidence that a held-to-maturity investment is impaired as a result of an event.
|
•
|
Financial assets at fair value through profit or loss have two sub-categories: financial assets held-for-trading, and those designated at fair value through profit or loss at inception. Derivative assets are categorised as held for trading unless designated as hedging instruments (refer to note 2.3). These assets are subsequently measured at fair value with gains or losses arising from changes in fair value recognised in the income statement in the period in which they arise.
|
|
15
|
RESTRICTED CASH
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Non-current (a)
|
92
|
|
77
|
|
Current (b)
|
44
|
|
38
|
|
|
|
|
||
Total restricted cash
|
136
|
|
115
|
|
(a)
|
The amount primarily relates to funds set aside to serve as collateral against guarantees made to the Department of Mineral Resources and Energy (DMRE) in South Africa for environmental and rehabilitation obligations. Refer to note 25. The funds are invested equally in short term money market funds and call accounts.
|
(b)
|
Cash of R20 million (2018: R19 million) relates to monies released from the environmental trusts as approved by the DMRE which may only be used for further rehabilitation. Cash of R24 million (2018: R19 million) relates to monies set aside for affected communities in the group’s PNG operations.
|
16
|
RESTRICTED INVESTMENTS
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Investments held by environmental trust funds
|
3 273
|
|
3 238
|
|
Investments held by social trust funds
|
28
|
|
33
|
|
|
|
|
||
Total restricted investments
|
3 301
|
|
3 271
|
|
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
3 238
|
|
2 621
|
|
Interest income
|
168
|
|
157
|
|
Fair value gain
|
48
|
|
79
|
|
Moab Khotsong acquisition1
|
—
|
|
382
|
|
Equity-linked deposits acquired
|
300
|
|
—
|
|
(Maturity)/acquisition of fixed deposits
|
(481
|
)
|
6
|
|
Net transfer of cash and cash equivalents
|
183
|
|
(7
|
)
|
Withdrawal of funds for rehabilitation work performed
|
(183
|
)
|
—
|
|
|
|
|
||
Balance at end of year
|
3 273
|
|
3 238
|
|
16
|
RESTRICTED INVESTMENTS continued
|
17
|
OTHER NON-CURRENT ASSETS
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Debt instruments
|
274
|
|
253
|
|
Loans to associates (a)
|
116
|
|
116
|
|
Loan to ARM BBEE Trust (b)
|
271
|
|
256
|
|
Other loans
|
3
|
|
—
|
|
Loss allowance (a) (b)
|
(116
|
)
|
(119
|
)
|
|
|
|
||
Equity instruments
|
59
|
|
8
|
|
Rand Mutual Assurance (c)
|
52
|
|
—
|
|
Other investments
|
7
|
|
8
|
|
|
|
|
||
Other non-current assets
|
1
|
|
3
|
|
Total other non-current assets
|
334
|
|
264
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
119
|
|
162
|
|
Impact of adoption of IFRS 9 (b)
|
(3
|
)
|
—
|
|
Reversal of loss allowance
|
—
|
|
(43
|
)
|
|
|
|
||
Balance at end of year
|
116
|
|
119
|
|
(a)
|
A loan of R116 million (2018: R116 million) owed by Pamodzi Gold Limited (Pamodzi) who were placed into liquidation during 2009 was provided for in full. Harmony is a concurrent creditor in the Pamodzi Orkney liquidation.
|
(b)
|
During 2016, Harmony advanced R200 million to the ARM BBEE Trust, a shareholder of African Rainbow Minerals Limited (ARM). The trust is controlled and consolidated by ARM, who holds 13.8% of Harmony's shares. Harmony is a trustee of the ARM BBEE Trust. The loan is subordinated and unsecured. The interest is market related (3 months JIBAR plus 4.25%) and is receivable on the maturity of the loan on 31 December 2022. On adoption of IFRS 9, it was assessed that the contractual cash flows fail the solely payments of principal and interest (SPPI) characteristics and that the loan will therefore be carried at fair value through profit or loss (refer to note 2) and the previously recognised provision was derecognised. At 30 June 2019 the loan was remeasured to its fair value of R271 million using a discounted cash flow model. The fair value adjustment is recorded in gains on financial instruments - refer to note 8.
|
17
|
OTHER NON-CURRENT ASSETS continued
|
(c)
|
The movement in the investment in Rand Mutual Assurance is as follows:
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
—
|
|
—
|
|
Fair value on adoption of IFRS 9
|
82
|
|
—
|
|
Capital dividend received
|
(30
|
)
|
—
|
|
|
|
|
||
Balance at end of year
|
52
|
|
—
|
|
18
|
DERIVATIVE FINANCIAL INSTRUMENTS
|
|
SA rand
|
|||||||
Figures in million
|
Rand gold hedging contracts
|
|
US$ commodity contracts
(a)
|
|
Foreign exchange hedging contracts
(b)
|
|
Total
|
|
|
|
|
|
|
||||
30 June 2019
|
|
|
|
|
||||
|
|
|
|
|
||||
Derivative financial assets
|
45
|
|
5
|
|
456
|
|
506
|
|
|
|
|
|
|
||||
Non-current
|
23
|
|
1
|
|
173
|
|
197
|
|
Current
|
22
|
|
4
|
|
283
|
|
309
|
|
|
|
|
|
|
||||
Derivative financial liabilities
|
(383
|
)
|
(57
|
)
|
(2
|
)
|
(442
|
)
|
|
|
|
|
|
||||
Non-current
|
(158
|
)
|
(14
|
)
|
—
|
|
(172
|
)
|
Current
|
(225
|
)
|
(43
|
)
|
(2
|
)
|
(270
|
)
|
|
|
|
|
|
||||
Net derivative financial instruments
|
(338
|
)
|
(52
|
)
|
454
|
|
64
|
|
|
|
|
|
|
||||
Unamortised day one net loss included above
|
36
|
|
5
|
|
—
|
|
41
|
|
|
|
|
|
|
||||
Realised gains included in revenue
|
453
|
|
—
|
|
—
|
|
453
|
|
Unrealised losses included in other reserves
|
165
|
|
49
|
|
—
|
|
214
|
|
|
|
|
|
|
||||
Gains/(losses) included in gains on derivatives
|
(51
|
)
|
13
|
|
554
|
|
516
|
|
Day one loss amortisation
|
(31
|
)
|
(1
|
)
|
—
|
|
(32
|
)
|
|
|
|
|
|
||||
Total gains on derivatives
|
(82
|
)
|
12
|
|
554
|
|
484
|
|
|
|
|
|
|
||||
Hedge effectiveness
|
|
|
|
|
||||
|
|
|
|
|
||||
Cumulative changes in the fair value of the hedging instrument used as the basis for recognising hedge ineffectiveness
|
288
|
|
(49
|
)
|
—
|
|
239
|
|
Cumulative changes in the fair value of the hedged item used as the basis for recognising hedge ineffectiveness.
|
(288
|
)
|
49
|
|
—
|
|
(239
|
)
|
|
|
|
|
|
18
|
DERIVATIVE FINANCIAL INSTRUMENTS continued
|
|
SA rand
|
|||||||
Figures in million
|
Rand gold hedging contracts
|
|
US$ commodity contracts
(a)
|
|
Foreign exchange hedging contracts
(b)
|
|
Total
|
|
|
|
|
|
|
||||
30 June 2018
|
|
|
|
|
||||
|
|
|
|
|
||||
Derivative financial assets
|
482
|
|
74
|
|
67
|
|
623
|
|
|
|
|
|
|
||||
Non-current
|
70
|
|
11
|
|
3
|
|
84
|
|
Current
|
412
|
|
63
|
|
64
|
|
539
|
|
|
|
|
|
|
||||
Derivative financial liabilities
|
(12
|
)
|
—
|
|
(203
|
)
|
(215
|
)
|
|
|
|
|
|
||||
Non-current
|
(10
|
)
|
—
|
|
—
|
|
(10
|
)
|
Current
|
(2
|
)
|
—
|
|
(203
|
)
|
(205
|
)
|
|
|
|
|
|
||||
Net derivative financial instruments
|
470
|
|
74
|
|
(136
|
)
|
408
|
|
|
|
|
|
|
||||
Unamortised day one net loss included above
|
11
|
|
—
|
|
—
|
|
11
|
|
|
|
|
|
|
||||
Realised gains included in revenue
|
1 197
|
|
—
|
|
—
|
|
1 197
|
|
Unrealised gains included in other reserves
|
413
|
|
—
|
|
—
|
|
413
|
|
|
|
|
|
|
||||
Gains/(losses) included in gains on derivatives
|
(12
|
)
|
35
|
|
113
|
|
136
|
|
Day one loss amortisation
|
(37
|
)
|
—
|
|
—
|
|
(37
|
)
|
|
|
|
|
|
||||
Total gains on derivatives
|
(49
|
)
|
35
|
|
113
|
|
99
|
|
|
SA rand
|
|||||||
Figures in million
|
Rand gold hedging contracts
|
|
US$ commodity contracts
(a)
|
|
Foreign exchange hedging contracts
(b)
|
|
Total
|
|
|
|
|
|
|
||||
30 June 2017
|
|
|
|
|
||||
|
|
|
|
|
||||
Realised gains included in revenue
|
728
|
|
—
|
|
—
|
|
728
|
|
|
|
|
|
|
||||
Gains/(losses) included in gains on derivatives
|
—
|
|
20
|
|
1 083
|
|
1 103
|
|
Hedge ineffectiveness
|
16
|
|
—
|
|
—
|
|
16
|
|
Day one loss amortisation
|
(94
|
)
|
—
|
|
—
|
|
(94
|
)
|
|
|
|
|
|
||||
Total gains on derivatives
|
(78
|
)
|
20
|
|
1 083
|
|
1 025
|
|
18
|
DERIVATIVE FINANCIAL INSTRUMENTS continued
|
(a)
|
Harmony maintains a hedging programme for Hidden Valley by entering into commodity hedging contracts. The contracts comprise US$ gold forward sale derivative contracts as well as silver zero cost collars which establish a minimum (floor) and maximum (cap) silver sales price. Hedge accounting is applied to all US$ gold forward sale derivative contracts entered into from 1 January 2019. None of these contracts matured during the current financial period. Hedge accounting is not applied to gold contracts entered into before this date as well as the silver collars.
|
(b)
|
Harmony maintains a foreign exchange hedging programme in the form of zero cost collars, which sets a floor and cap rand/US$ exchange rate at which to convert US dollars to rands, and foreign exchange forward contracts. Hedge accounting is not applied to these contracts.
|
|
FY2020
|
FY2021
|
|
TOTAL
|
||||||||||||||
|
Q1
|
|
Q2
|
|
Q3
|
|
Q4
|
|
Q1
|
|
Q2
|
|
Q3
|
|
Q4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Foreign exchange contracts
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
Zero cost collars
|
|
|
|
|
|
|
|
|
|
|||||||||
US$m
|
71
|
|
69
|
|
64
|
|
62
|
|
49
|
|
48
|
|
37
|
|
14
|
|
414
|
|
Floor
|
14.48
|
|
14.59
|
|
14.80
|
|
14.96
|
|
15.30
|
|
15.28
|
|
15.37
|
|
15.55
|
|
14.92
|
|
Cap
|
15.19
|
|
15.35
|
|
15.57
|
|
15.75
|
|
16.11
|
|
16.27
|
|
16.36
|
|
16.55
|
|
15.74
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Forward contracts
|
|
|
|
|
|
|
|
|
|
|||||||||
US$m
|
69
|
|
69
|
|
66
|
|
60
|
|
61
|
|
35
|
|
24
|
|
6
|
|
390
|
|
Forward rate
|
14.71
|
|
15.00
|
|
15.27
|
|
15.44
|
|
15.89
|
|
15.82
|
|
15.96
|
|
16.23
|
|
15.35
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
R/gold
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
'000 oz
|
19
|
|
14
|
|
6
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
39
|
|
'000 oz - cash flow hedge
|
76
|
|
80
|
|
88
|
|
96
|
|
71
|
|
71
|
|
73
|
|
33
|
|
588
|
|
R'000/kg
|
626
|
|
641
|
|
648
|
|
661
|
|
668
|
|
674
|
|
689
|
|
702
|
|
659
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
US$/gold
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
'000 oz
|
6
|
|
4
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
10
|
|
'000 oz - cash flow hedge
|
6
|
|
8
|
|
12
|
|
12
|
|
8
|
|
6
|
|
3
|
|
1
|
|
56
|
|
US$/oz
|
1 351
|
|
1 363
|
|
1 357
|
|
1 370
|
|
1 376
|
|
1 387
|
|
1 404
|
|
1 414
|
|
1 368
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Total gold
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
'000 oz
|
107
|
|
106
|
|
106
|
|
108
|
|
79
|
|
77
|
|
76
|
|
34
|
|
693
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
US$/silver
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
'000 oz
|
90
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
90
|
|
Floor
|
17.40
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
17.40
|
|
Cap
|
18.40
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
18.40
|
|
|
|
|
|
|
|
|
|
|
|
19
|
TRADE AND OTHER RECEIVABLES
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Financial assets
|
|
|
||
|
|
|
||
Trade receivables (metals)
|
448
|
|
542
|
|
Other trade receivables
|
230
|
|
123
|
|
Loss allowance
|
(68
|
)
|
(60
|
)
|
|
|
|
||
Trade receivables - net
|
610
|
|
605
|
|
Interest and other receivables
|
7
|
|
7
|
|
Employee receivables
|
10
|
|
14
|
|
|
|
|
||
Non-financial assets
|
|
|
||
|
|
|
||
Prepayments
|
67
|
|
76
|
|
Value added tax
|
281
|
|
316
|
|
Income and mining taxes
|
89
|
|
121
|
|
|
|
|
||
Total trade and other receivables
|
1 064
|
|
1 139
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
60
|
|
51
|
|
Increase in loss allowance recognised during the year
|
47
|
|
11
|
|
Reversal of loss allowance during the year
|
(39
|
)
|
(2
|
)
|
|
|
|
||
Balance at end of year
|
68
|
|
60
|
|
|
SA rand
|
|||
Figures in million
|
Gross
|
|
Loss allowance
|
|
|
|
|
||
30 June 2019
|
|
|
||
|
|
|
||
Not past due1
|
562
|
|
—
|
|
Past due by 1 to 30 days
|
3
|
|
—
|
|
Past due by 31 to 60 days
|
30
|
|
—
|
|
Past due by 61 to 90 days
|
9
|
|
—
|
|
Past due by more than 90 days
|
12
|
|
11
|
|
Past due by more than 361 days
|
62
|
|
57
|
|
|
|
|
||
|
678
|
|
68
|
|
|
|
|
||
30 June 2018
|
|
|
||
|
|
|
||
Not past due
|
586
|
|
16
|
|
Past due by 1 to 30 days
|
10
|
|
—
|
|
Past due by 31 to 60 days
|
21
|
|
—
|
|
Past due by 61 to 90 days
|
6
|
|
5
|
|
Past due by more than 90 days
|
10
|
|
10
|
|
Past due by more than 361 days
|
32
|
|
29
|
|
|
|
|
||
|
665
|
|
60
|
|
19
|
TRADE AND OTHER RECEIVABLES continued
|
20
|
INVESTMENTS IN ASSOCIATES
|
|
|
(a)
|
Harmony acquired a 32.4% interest in Pamodzi on 27 February 2008, initially valued at R345 million. Pamodzi was listed on the JSE and had interests in operating gold mines in South Africa. Pamodzi was placed in liquidation in March 2009. As at 30 June 2019, the liquidation process has not been concluded. Refer to note 17(a) for details of the loan and provision of impairment of the loan.
|
(b)
|
Rand Refinery provides precious metal smelting and refining services in South Africa. Harmony holds a 10.38% share in Rand Refinery. This investment is a strategic investment for the group as Rand Refinery is the only company that provides such services in South Africa. Although the group holds less than 20% of the equity shares of Rand Refinery, the group is able to exercise significant influence by virtue of having a right to appoint a director on the board. Through the 10.38% shareholding and the right to appoint a director on the board, the investment has been accounted for as an associate.
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
84
|
|
46
|
|
Redemption of preference shares
|
(32
|
)
|
—
|
|
Share of profit/(loss) in associate
|
59
|
|
54
|
|
Impairment loss1
|
—
|
|
(16
|
)
|
|
|
|
||
Balance at end of year
|
110
|
|
84
|
|
21
|
INVESTMENT IN JOINT OPERATIONS
|
22
|
INVENTORIES
|
|
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Gold in lock-up
|
43
|
|
46
|
|
Gold in-process, ore stockpiles and bullion on hand1
|
780
|
|
620
|
|
Consumables at weighted average cost (net of provision)2
|
1 187
|
|
1 139
|
|
|
|
|
||
Total inventories
|
2 010
|
|
1 805
|
|
Non-current portion of gold in lock-up and gold in-process
|
(43
|
)
|
(46
|
)
|
|
|
|
||
Total current portion of inventories
|
1 967
|
|
1 759
|
|
|
|
|
||
Included in the balance above is:
|
|
|
||
Inventory valued at net realisable value
|
334
|
|
205
|
|
23
|
SHARE CAPITAL
|
|
|
|
Number of shares
|
|||
|
2019
|
|
2018
|
|
|
|
|
||
Ordinary shares
|
|
|
||
Lydenburg Exploration Limited1
|
335
|
|
335
|
|
Kalgold Share Trust2
|
47 046
|
|
47 046
|
|
Harmony ESOP Trust2
|
6 592 900
|
|
—
|
|
|
|
|
||
Convertible preference shares
|
|
|
||
Harmony Gold Community Trust3
|
4 400 000
|
|
—
|
|
|
|
|
1
|
A wholly-owned subsidiary
|
2
|
Trust controlled by the group
|
3
|
The issue of the convertible preference shares did not impact the group's consolidated financial statements as the Harmony Gold Community Trust is controlled by the group.
|
24
|
OTHER RESERVES
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Foreign exchange translation reserve (a)
|
2 389
|
|
2 439
|
|
Hedge reserve (b)
|
(214
|
)
|
413
|
|
Share-based payments (c)
|
2 764
|
|
2 534
|
|
Post-retirement benefit actuarial gain/(loss) (d)
|
(19
|
)
|
(12
|
)
|
Acquisition of non-controlling interest in subsidiary (e)
|
(381
|
)
|
(381
|
)
|
Equity component of convertible bond (f)
|
277
|
|
277
|
|
Repurchase of equity interest (g)
|
(98
|
)
|
(98
|
)
|
Equity instruments designated at fair value through other comprehensive income (h)
|
79
|
|
—
|
|
Fair value movement of available-for-sale financial assets (i)
|
—
|
|
(3
|
)
|
Other
|
(24
|
)
|
(24
|
)
|
|
|
|
||
Total other reserves
|
4 773
|
|
5 145
|
|
(a)
|
The balance of the foreign exchange translation reserve movement represents the cumulative translation effect of the group's off-shore operations.
|
(b)
|
Harmony has entered into gold hedging contracts. Cash flow hedge accounting is applied to these contracts, resulting in the effective portion of the unrealised gains and losses being recorded in other comprehensive income (other reserves). Refer to note 18 for further information. The reconciliation of the hedge reserve is as follows:
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
413
|
|
1 143
|
|
|
|
|
||
|
(274
|
)
|
216
|
|
|
|
|
||
Net gain/(loss) on gold contracts
|
(351
|
)
|
273
|
|
Deferred tax thereon
|
77
|
|
(57
|
)
|
|
|
|
||
|
(353
|
)
|
(946
|
)
|
|
|
|
||
Released to revenue
|
(453
|
)
|
(1 197
|
)
|
Deferred tax thereon
|
100
|
|
251
|
|
|
|
|
||
Balance at end of year
|
(214
|
)
|
413
|
|
|
|
|
||
Attributable to:
|
|
|
||
Rand gold hedging contracts
|
(165
|
)
|
413
|
|
US dollar gold hedging contracts
|
(49
|
)
|
—
|
|
|
|
|
(c)
|
The reconciliation of the movement in the share-based payments is as follows:
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
2 534
|
|
2 160
|
|
Share-based payments expensed (i)
|
230
|
|
374
|
|
|
|
|
||
Balance at end of year
|
2 764
|
|
2 534
|
|
(i)
|
The group issues equity-settled instruments to certain qualifying employees under an employee share option scheme and employee share ownership plan (ESOP) to award shares from the company’s authorised but unissued ordinary shares. Equity share-based payments are measured at the fair value of the equity instruments at the grant date and are expensed over the vesting period, based on the group’s estimate of the shares that are expected to vest. Refer to note 33 for more details.
|
24
|
OTHER RESERVES continued
|
(d)
|
The actuarial gains or losses related to the post-retirement benefit obligation will not be reclassified to the income statement. The movement is as follows:
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
(12
|
)
|
(25
|
)
|
Actuarial gain/(loss)
|
(7
|
)
|
14
|
|
Deferred tax
|
—
|
|
(1
|
)
|
|
|
|
||
Balance at end of year
|
(19
|
)
|
(12
|
)
|
(e)
|
On 15 March 2004, Harmony announced that it had made an off-market cash offer to acquire all the ordinary shares, listed and unlisted options of Abelle Limited, held by non-controlling interests. The excess of the purchase price of R579 million over the carrying amount of non-controlling interest acquired, amounting to R381 million, has been accounted for under other reserves.
|
(f)
|
On 24 May 2004, the group issued a convertible bond. The amount representing the value of the equity conversion component is included in other reserves, net of deferred income taxes. The equity conversion component is determined on the issue of the bonds and is not changed in subsequent periods. The convertible bonds were repaid in 2009.
|
(g)
|
On 19 March 2010, Harmony Gold Mining Company Limited concluded an agreement with African Vanguard Resources (Proprietary) Limited (AVRD), for the purchase of its 26% share of the mining titles of the Doornkop South Reef. The original sale of the 26% share in the mining titles was accounted for as an in-substance call option by AVRD over the 26% mineral right. The agreement to purchase AVRD's 26% interest during the 2010 financial year is therefore considered to be a repurchase of the option (equity interest). The 26% interest was transferred from AVRD to Harmony in exchange for Harmony repaying the AVRD Nedbank loan and the issue of 2 162 359 Harmony shares. The difference between the value of the shares issued of R152 million, the liability to the AVRD and transaction costs, have been taken directly to equity.
|
(h)
|
Includes R82 million related to the fair value movement of Harmony's interest in Rand Mutual Assurance. Refer to note 17.
|
(i)
|
In accordance with the transitional provisions in IFRS 9, comparative figures were not restated. On adoption of the standard, the reserve attributable to fair value movement of available-for-sale financial assets was transferred to equity instruments designated at fair value through other comprehensive income.
|
|
|
25
|
PROVISION FOR ENVIRONMENTAL REHABILITATION
|
|
|
|
2019
|
2018
|
2017
|
|
%
|
%
|
%
|
|
|
|
|
South African operations
|
|
|
|
Inflation rate
|
5.25
|
5.50
|
6.50
|
Discount rates
|
|
|
|
- 12 months
|
6.50
|
6.70
|
7.50
|
- one to five years
|
6.85
|
7.00
|
7.60
|
- six to nine years
|
8.50
|
8.20
|
8.40
|
- ten years or more
|
9.60
|
8.60
|
9.10
|
|
|
|
|
PNG operations:
|
|
|
|
Inflation rate
|
5.00
|
6.00
|
6.60
|
Discount rate
|
6.25
|
6.25
|
6.25
|
|
|
|
|
|
25
|
PROVISION FOR ENVIRONMENTAL REHABILITATION continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
3 309
|
|
2 638
|
|
Change in estimate - Balance sheet1
|
(439
|
)
|
(175
|
)
|
Change in estimate - Income statement
|
33
|
|
67
|
|
Utilisation of provision
|
(86
|
)
|
(94
|
)
|
Time value of money and inflation component of rehabilitation costs
|
208
|
|
191
|
|
Acquisitions2
|
—
|
|
663
|
|
Transfer 3
|
37
|
|
—
|
|
Translation
|
(8
|
)
|
19
|
|
|
|
|
||
Balance at end of year
|
3 054
|
|
3 309
|
|
|
26
|
PROVISION FOR SILICOSIS SETTLEMENT continued
|
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
925
|
|
917
|
|
Change in estimate
|
(62
|
)
|
(68
|
)
|
Time value of money and inflation component
|
79
|
|
76
|
|
|
|
|
||
Balance at end of year
|
942
|
|
925
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Effect of an increase in the assumption:
|
|
|
||
|
|
|
||
Change in benefit take-up rate1
|
66
|
|
65
|
|
Change in silicosis prevalence2
|
66
|
|
65
|
|
Change in disease progression rates3
|
33
|
|
31
|
|
|
|
|
||
|
|
|
||
Effect of a decrease in the assumption:
|
|
|
||
|
|
|
||
Change in benefit take-up rate1
|
(66
|
)
|
(65
|
)
|
Change in silicosis prevalence2
|
(66
|
)
|
(65
|
)
|
Change in disease progression rates3
|
(33
|
)
|
(31
|
)
|
|
|
|
26
|
PROVISION FOR SILICOSIS SETTLEMENT continued
|
27
|
RETIREMENT BENEFIT OBLIGATION
|
|
|
|
27
|
RETIREMENT BENEFIT OBLIGATION continued
|
•
|
It is assumed that all Continuation and Widow Members (CAWMs) will remain on the current benefit option and income band. For employed members, post-employment contributions were assumed to be equal to the average payable for the current CAWMs membership;
|
•
|
It is assumed that not all employed members will remain employed until retirement therefore estimated resignation and ill-health retirement rates are also taken into account;
|
•
|
It is assumed that 90% of employed members will be married at retirement or earlier death and that wives are four years younger than their husbands.
|
•
|
Change in bond yields: A decrease in the bond yields will increase the plan liability.
|
•
|
Inflation risk: The obligation is linked to inflation and higher inflation will lead to a higher liability.
|
•
|
Life expectancy: The obligation is to provide benefits for the life of the member, so increases in life expectancy will result in an increase in the plan’s liabilities.
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
The net liability of the defined benefit plan is as follows:
|
|
|
||
|
|
|
||
Present value of defined benefit obligation
|
201
|
|
186
|
|
Fair value of plan assets
|
—
|
|
—
|
|
|
|
|
||
Net liability of defined benefit plan
|
201
|
|
186
|
|
27
|
RETIREMENT BENEFIT OBLIGATION continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Effect of a 1% increase on:
|
|
|
||
|
|
|
||
Aggregate of service cost and finance costs
|
2
|
|
2
|
|
Defined benefit obligation
|
23
|
|
21
|
|
|
|
|
||
|
|
|
||
Effect of a 1% decrease on:
|
|
|
||
|
|
|
||
Aggregate of service cost and finance costs
|
(2
|
)
|
(2
|
)
|
Defined benefit obligation
|
(19
|
)
|
(18
|
)
|
|
|
|
28
|
OTHER NON-CURRENT LIABILITIES
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
KOSH deep groundwater pollution liability (a)
|
—
|
|
37
|
|
Sibanye Beatrix ground swap royalty
|
2
|
|
1
|
|
Other
|
3
|
|
3
|
|
|
|
|
||
Total non-current liabilities
|
5
|
|
41
|
|
|
•
|
Borrowings are initially recognised at fair value net of transaction costs incurred and subsequently measured at amortised cost, comprising original debt less principal payments and amortisation, using the effective yield method. Any difference between proceeds (net of transaction cost) and the redemption value is recognised in the income statement over the period of the borrowing using the effective interest rate method.
|
•
|
Trade and other payables are recognised initially at fair value and subsequently measured at amortised cost using the effective interest method. Payables are classified as current liabilities if payment is due within a year or less. If not, they are presented as non-current liabilities.
|
|
29
|
BORROWINGS
|
|
Commenced
|
Tenor (Years)
|
Matures
|
Secured
|
Security
|
Interest payment basis
|
Interest charge
|
Repayment term
|
Repaid
|
|
|
|
|
|
|
|
|
|
|
R1 billion revolving credit facility
|
February 2017
|
Three
|
February 2020
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
JIBAR + 3.15%
|
On maturity
|
November 2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
R2 billion facility
|
November 2018
|
Four
|
November 2022
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
|
|
|
- R600 million term loan
|
|
|
|
|
|
|
JIBAR + 2.9%
|
Eight equal quarterly instalments with the final instalment on maturity
|
|
- R1.4 billion revolving credit facility
|
|
|
|
|
|
|
JIBAR + 2.8%
|
On maturity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US$350 million facility
|
July 2017
|
Three
|
July 2020
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
|
On maturity
|
|
- US$175 million revolving credit facility
|
|
|
|
|
|
|
LIBOR + 3.0%
|
|
|
- US$175 million term loan
|
|
|
|
|
|
|
LIBOR + 3.15%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US$200 million bridge loan
|
October 2017
|
One
|
October 2018
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
|
On maturity
|
July 2018
|
|
|
|
|
|
|
First 6 months
|
LIBOR + 2.5%
|
|
|
|
|
|
|
|
|
Next 3 months
|
LIBOR + 3.0%
|
|
|
|
|
|
|
|
|
Last 3 months
|
LIBOR + 3.5%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US$24 million Westpac loan
|
July 2018
|
Four
|
July 2022
|
Yes
|
Cession and pledge of vehicles and machinery
|
Variable
|
LIBOR + 3.2%
|
Quarterly instalments
|
|
|
|
|
|
|
|
|
|
|
|
29
|
BORROWINGS continued
|
•
|
The group's interest cover ratio shall be more than five (EBITDA1/ Total interest paid);
|
•
|
Tangible Net Worth2 to total net debt ratio shall not be less than four times or six times when dividends are paid;
|
•
|
Leverage3 shall not be more than 2.5 times.
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Non-current borrowings
|
|
|
||
|
|
|
||
R1 billion revolving credit facility
|
—
|
|
497
|
|
|
|
|
||
Balance at beginning of year
|
497
|
|
299
|
|
Draw down
|
500
|
|
500
|
|
Repayments
|
—
|
|
(300
|
)
|
Refinancing
|
(997
|
)
|
—
|
|
Issue cost
|
—
|
|
(2
|
)
|
|
|
|
||
R2 billion facility
|
1 489
|
|
—
|
|
|
|
|
||
Refinancing
|
1 000
|
|
—
|
|
Draw down
|
700
|
|
—
|
|
Repayments
|
(200
|
)
|
—
|
|
Issue cost
|
(16
|
)
|
—
|
|
Amortisation of issue cost
|
5
|
|
—
|
|
|
|
|
||
Westpac fleet loan
|
194
|
|
—
|
|
|
|
|
||
Draw down
|
322
|
|
—
|
|
Repayments
|
(64
|
)
|
—
|
|
Transferred to current liabilities
|
(89
|
)
|
—
|
|
Translation
|
25
|
|
—
|
|
|
|
|
||
US$350 million facility
|
4 143
|
|
4 427
|
|
|
|
|
||
Balance at beginning of year
|
4 427
|
|
—
|
|
Draw down
|
—
|
|
4 127
|
|
Repayments
|
(422
|
)
|
—
|
|
Issue cost
|
—
|
|
(94
|
)
|
Amortisation of issue costs
|
44
|
|
33
|
|
Translation
|
94
|
|
361
|
|
|
|
|
||
Total non-current borrowings
|
5 826
|
|
4 924
|
|
29
|
BORROWINGS continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Current borrowings
|
|
|
||
|
|
|
||
R1 billion revolving credit facility
|
—
|
|
3
|
|
|
|
|
||
Balance at beginning of year
|
3
|
|
3
|
|
Refinancing
|
(3
|
)
|
—
|
|
|
|
|
||
US$250 million revolving credit facility
|
—
|
|
—
|
|
|
|
|
||
Balance at beginning of year
|
—
|
|
1 831
|
|
Repayments
|
—
|
|
(1 847
|
)
|
Amortisation of issue costs
|
—
|
|
4
|
|
Translation
|
—
|
|
12
|
|
|
|
|
||
Westpac fleet loan
|
89
|
|
—
|
|
|
|
|
||
Transferred from non-current liabilities
|
89
|
|
—
|
|
|
|
|
||
US$200 million bridge loan
|
—
|
|
687
|
|
|
|
|
||
Balance at beginning of year
|
687
|
|
—
|
|
Draw down
|
—
|
|
2 310
|
|
Repayments
|
(667
|
)
|
(1 916
|
)
|
Issue cost
|
—
|
|
(3
|
)
|
Translation
|
(20
|
)
|
296
|
|
|
|
|
||
Total current borrowings
|
89
|
|
690
|
|
|
|
|
||
Total interest-bearing borrowings
|
5 915
|
|
5 614
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
The maturity of borrowings is as follows:
|
|
|
||
|
|
|
||
Current
|
89
|
|
702
|
|
Between one to two years
|
4 232
|
|
497
|
|
Between two to four years
|
1 594
|
|
4 415
|
|
|
|
|
||
|
5 915
|
|
5 614
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Undrawn committed borrowing facilities:
|
|
|
||
|
|
|
||
Expiring within one year
|
—
|
|
—
|
|
Expiring after one year
|
1 277
|
|
845
|
|
|
|
|
||
|
1 277
|
|
845
|
|
29
|
BORROWINGS continued
|
|
2019
|
2018
|
|
%
|
%
|
|
|
|
R1 billion revolving credit facility
|
10.1
|
10.2
|
R2 billion facility
|
10.0
|
—
|
Westpac fleet loan
|
5.5
|
—
|
US$250 million revolving credit facility
|
—
|
4.2
|
US$350 million facility
|
5.6
|
4.8
|
US$200 million bridge loan
|
5.1
|
4.5
|
|
|
|
30
|
TRADE AND OTHER PAYABLES
|
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Financial liabilities
|
|
|
||
|
|
|
||
Trade payables
|
763
|
|
587
|
|
Other liabilities (a)
|
167
|
|
182
|
|
|
|
|
||
Non-financial liabilities
|
|
|
||
|
|
|
||
Payroll accruals
|
548
|
|
569
|
|
Leave liabilities (b)
|
540
|
|
504
|
|
Shaft related accruals
|
556
|
|
577
|
|
Other accruals
|
148
|
|
201
|
|
Value added tax
|
98
|
|
84
|
|
Income and mining tax
|
55
|
|
—
|
|
|
|
|
||
Total trade and other payables
|
2 875
|
|
2 704
|
|
(a)
|
Includes a loan from Village Main Reef Limited of R53 million. The loan was taken on with the acquisition of the Moab Khotsong operations. The loan is unsecured, interest free and has no fixed terms of payment.
|
(b)
|
Employee entitlements to annual leave are recognised on an ongoing basis. An accrual is made for the estimated liability for annual leave as a result of services rendered by employees up to the balance sheet date. The movement in the liability recognised in the balance sheet is as follows:
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
504
|
|
395
|
|
Benefits paid
|
(537
|
)
|
(425
|
)
|
Total expense per income statement
|
575
|
|
391
|
|
Acquisition1
|
—
|
|
140
|
|
Translation (gain)/loss
|
(2
|
)
|
3
|
|
|
|
|
||
Balance at end of year
|
540
|
|
504
|
|
31
|
CASH GENERATED BY OPERATIONS
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Reconciliation of profit/(loss) before taxation to cash generated by operations:
|
|
|
|
|||
|
|
|
|
|||
Profit/(loss) before taxation
|
(2 746
|
)
|
(4 707
|
)
|
(148
|
)
|
Adjustments for:
|
|
|
|
|||
Amortisation and depreciation
|
4 054
|
|
2 570
|
|
2 519
|
|
Impairment of assets
|
3 898
|
|
5 336
|
|
1 718
|
|
Share-based payments
|
230
|
|
363
|
|
391
|
|
Net decrease in provision for post-retirement benefits
|
(12
|
)
|
(10
|
)
|
(9
|
)
|
Net decrease in provision for environmental rehabilitation
|
(53
|
)
|
(27
|
)
|
(111
|
)
|
Profit on sale of property, plant and equipment
|
(5
|
)
|
(2
|
)
|
(42
|
)
|
Loss on scrapping of property, plant and equipment
|
21
|
|
1
|
|
140
|
|
(Profit)/loss from associates
|
(59
|
)
|
(38
|
)
|
22
|
|
Gain on bargain purchase
|
—
|
|
—
|
|
(848
|
)
|
Investment income
|
(308
|
)
|
(343
|
)
|
(268
|
)
|
Finance costs
|
575
|
|
330
|
|
234
|
|
Inventory adjustments
|
(166
|
)
|
(211
|
)
|
422
|
|
Foreign exchange translation difference
|
95
|
|
668
|
|
(224
|
)
|
Non cash portion of gains on derivatives
|
(429
|
)
|
549
|
|
(100
|
)
|
Day one loss amortisation
|
32
|
|
37
|
|
94
|
|
Silicosis settlement provision
|
(62
|
)
|
(68
|
)
|
917
|
|
Other non-cash adjustments
|
(11
|
)
|
(70
|
)
|
(88
|
)
|
|
|
|
|
|||
Effect of changes in operating working capital items
|
|
|
|
|||
|
|
|
|
|||
Receivables
|
32
|
|
(106
|
)
|
(409
|
)
|
Inventories
|
(88
|
)
|
(351
|
)
|
24
|
|
Payables
|
54
|
|
368
|
|
112
|
|
|
|
|
|
|||
Cash generated by operations
|
5 052
|
|
4 289
|
|
4 346
|
|
a)
|
Acquisitions of investments/business
|
b)
|
Principal non-cash transactions
|
32
|
EMPLOYEE BENEFITS
|
|
•
|
Pension, provident and medical benefit plans are funded through monthly contributions. The group pays fixed contributions into a separate entity in terms of the defined contribution pension, provident and medical plans which are charged to the income statement in the year to which they relate. The group's liability is limited to its monthly determined contributions and it has no further liability, legal or constructive, if the fund does not hold sufficient assets to pay all employees the benefits relating to employee service in the current and prior periods. Refer to note 27 for details of the post-retirement medical benefit plan.
|
•
|
Termination benefits are payable when employment is terminated before the normal retirement date, or whenever an employee accepts voluntary redundancy in exchange for these benefits. The group recognises termination benefits at the earlier of the following dates: (a) when the group can no longer withdraw the offer of those benefits; and (b) when the entity recognises costs for a restructuring that is within the scope of IAS 37, Provisions, Contingent Liabilities and Contingent Assets, and involves the payment of termination benefits. In the case of an offer made to encourage voluntary redundancy, the termination benefits are measured based on the number of employees expected to accept the offer. Benefits falling due more than 12 months after balance sheet date are discounted to present value.
|
|
1
|
The Wafi-Golpu joint operation's employees included in the total is 194 (2018: 114).
|
2
|
These amounts have been included in cost of sales, corporate expenditure and capital expenditure.
|
33
|
SHARE-BASED PAYMENTS
|
|
•
|
the 2006 equity-settled share-based payments plan; and
|
•
|
the equity-settled Sisonke Employee Share Ownership Plan (ESOP) awarded in 2019.
|
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
2006 share plan
|
197
|
|
363
|
|
Sisonke ESOP
|
33
|
|
—
|
|
|
|
|
||
Total employee share-based payments
|
230
|
|
363
|
|
33
|
SHARE-BASED PAYMENTS continued
|
• Fault
|
All unvested and unexercised SARs and all PS and RS not yet vested are lapsed and cancelled.
|
• No fault
|
Accelerated vesting occurs and all unvested and unexercised share options are settled in accordance with the rules of the plan
|
33
|
SHARE-BASED PAYMENTS continued
|
|
SARs
|
PS
|
RS
|
|||||
Activity on options and rights granted but not yet exercised
|
Number of options and rights
|
|
Weighted average option price (SA rand)
|
|
Number of rights
|
|
Number of rights
|
|
|
|
|
|
|
||||
For the year ended 30 June 2019
|
|
|
|
|
||||
|
|
|
|
|
||||
Balance at beginning of year
|
9 847 860
|
|
50.20
|
|
42 427 284
|
|
550 996
|
|
Options exercised
|
(1 564 486
|
)
|
27.50
|
|
(20 166 093
|
)
|
(550 996
|
)
|
Options forfeited and lapsed
|
(1 570 330
|
)
|
56.29
|
|
(1 253 595
|
)
|
—
|
|
|
|
|
|
|
||||
Balance at end of year
|
6 713 044
|
|
26.45
|
|
21 007 596
|
|
—
|
|
|
SARs
|
PS
|
RS
|
|||||
Activity on options and rights granted but not yet exercised
|
Number of options and rights
|
|
Weighted average option price (SA rand)
|
|
Number of rights
|
|
Number of rights
|
|
|
|
|
|
|
||||
For the year ended 30 June 2018
|
|
|
|
|
||||
|
|
|
|
|
||||
Balance at beginning of year
|
12 476 697
|
|
32.60
|
|
37 848 573
|
|
701 412
|
|
Options granted
|
—
|
|
—
|
|
14 406 437
|
|
—
|
|
Options exercised
|
(794 351
|
)
|
24.37
|
|
(3 873 467
|
)
|
(120 000
|
)
|
Options forfeited and lapsed
|
(1 834 486
|
)
|
52.86
|
|
(5 954 259
|
)
|
(30 416
|
)
|
|
|
|
|
|
||||
Balance at end of year
|
9 847 860
|
|
50.20
|
|
42 427 284
|
|
550 996
|
|
|
SARs
|
PS and RS
|
||||||
Options and rights vested but not exercised at year end
|
2019
|
|
2018
|
|
2019
|
|
2018
|
|
|
|
|
|
|
||||
Options and rights vested but not exercised
|
5 692 965
|
|
5 331 335
|
|
—
|
|
—
|
|
Weighted average option price (SA rand)
|
27.89
|
|
36.26
|
|
n/a
|
|
n/a
|
|
|
|
|
|
|
33
|
SHARE-BASED PAYMENTS continued
|
List of options and rights granted but not yet exercised (listed by grant date)
|
Number of options and rights
|
|
Award price (SA rand)
|
|
Remaining life (years)
|
|
|
|
|
||
As at 30 June 2019
|
|
|
|
||
|
|
|
|
||
Share appreciation rights
|
|
|
|
||
15 November 2013
|
3 652 807
|
|
33.18
|
|
0.4
|
17 November 2014
|
3 060 237
|
|
18.41
|
|
1.4
|
|
|
|
|
||
|
6 713 044
|
|
|
|
|
|
|
|
|
||
Performance shares
|
|
|
|
||
29 November 2016
|
7 944 126
|
|
n/a
|
|
0.4
|
15 November 2017
|
13 063 470
|
|
n/a
|
|
1.4
|
|
|
|
|
||
|
21 007 596
|
|
|
|
|
|
|
|
|
||
Total options and rights granted but not yet exercised
|
27 720 640
|
|
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Gain realised by participants on options and rights traded during the year
|
484
|
|
164
|
|
|
|
|
||
Fair value of options and rights exercised during the year
|
489
|
|
181
|
|
•
|
facilitate economic empowerment of Harmony’s employees;
|
•
|
incentivise Harmony’s employees, so as to promote the shared interests of employees and shareholders in the value growth of Harmony; and
|
•
|
further align the interests of the Harmony shareholders and those of the employees of Harmony.
|
Award
|
Vesting
|
Performance criteria
|
|
|
|
PU*
|
The PU will vest after three years from the date on which the service period commenced
|
The participant is still employed within the group
|
• Fault
|
All unvested and unexercised PU not yet vested are lapsed and cancelled.
|
• No fault
|
Accelerated vesting occurs and all unvested and unexercised PU are settled in accordance with the rules of the plan
|
33
|
SHARE-BASED PAYMENTS continued
|
|
Number of PU
|
|||
Activity on PU granted but not exercised
|
2019
|
|
2018
|
|
|
|
|
||
Balance at beginning of year
|
—
|
|
—
|
|
PU granted
|
6 974 500
|
|
—
|
|
Options vested
|
(107 100
|
)
|
—
|
|
Options forfeited and lapsed
|
(48 375
|
)
|
—
|
|
|
|
|
||
Balance at end of year
|
6 819 025
|
|
—
|
|
|
2019
|
|
2018
|
|
|
|
|
Gain realised by participants on options exercised during the year (R'million)
|
3
|
|
n/a
|
Weighted average share price at the date of exercise (SA rand)
|
27.16
|
|
n/a
|
Remaining life (years)
|
2.5
|
|
n/a
|
|
|
|
34
|
RELATED PARTIES
|
34
|
RELATED PARTIES continued
|
|
SA rand
|
|||
Figures in million
|
Executive directors
|
|
Non- executive directors
|
|
|
|
|
||
2019
|
|
|
||
|
|
|
||
Salaries
|
18
|
|
—
|
|
Retirement contributions
|
3
|
|
—
|
|
Bonuses
|
14
|
|
—
|
|
Exercise/settlement of share options
|
30
|
|
—
|
|
Directors' fees
|
—
|
|
12
|
|
|
|
|
||
|
65
|
|
12
|
|
|
|
|
||
|
|
|
||
2018
|
|
|
||
|
|
|
||
Salaries
|
17
|
|
—
|
|
Retirement contributions
|
2
|
|
—
|
|
Bonuses
|
13
|
|
—
|
|
Exercise/settlement of share options
|
3
|
|
|
|
Directors' fees
|
—
|
|
10
|
|
|
|
|
||
|
35
|
|
10
|
|
|
Number of shares
|
|||
Name of director/prescribed officer
|
2019
|
|
2018
|
|
|
|
|
||
Directors
|
|
|
||
|
|
|
||
Peter Steenkamp1
|
512 000
|
|
—
|
|
Andre Wilkens
|
101 301
|
|
101 301
|
|
Frank Abbott 1
|
1 142 010
|
|
747 817
|
|
Harry 'Mashego' Mashego2
|
593
|
|
593
|
|
Ken Dicks
|
35 000
|
|
35 000
|
|
|
|
|
||
Prescribed officers
|
|
|
||
|
|
|
||
Beyers Nel
|
42 486
|
|
42 486
|
|
Johannes van Heerden 1
|
160 000
|
|
75 000
|
|
Philip Tobias 1
|
169 294
|
|
42 916
|
|
|
|
|
34
|
RELATED PARTIES continued
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Sales and services rendered to related parties
|
|
|
||
|
|
|
||
Joint operations
|
3
|
|
11
|
|
|
|
|
||
Total
|
3
|
|
11
|
|
35
|
COMMITMENTS AND CONTINGENCIES
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Capital expenditure commitments
|
|
|
||
|
|
|
||
Contracts for capital expenditure
|
313
|
|
215
|
|
Share of joint venture's contracts for capital expenditure
|
105
|
|
58
|
|
Authorised by the directors but not contracted for
|
1 499
|
|
1 719
|
|
Total capital commitments
|
1 917
|
|
1 992
|
|
|
SA rand
|
|||
Figures in million
|
2019
|
|
2018
|
|
|
|
|
||
Guarantees
|
|
|
||
|
|
|
||
Guarantees and suretyships
|
143
|
|
143
|
|
Environmental guarantees1
|
479
|
|
479
|
|
|
|
|
||
Total guarantees
|
622
|
|
622
|
|
35
|
COMMITMENTS AND CONTINGENCIES continued
|
|
|
(a)
|
On 1 December 2008, Harmony issued 3 364 675 Harmony shares to Rio Tinto Limited (Rio Tinto) for the purchase of Rio Tinto’s rights to the royalty agreement entered into prior to our acquisition of the Wafi deposits in PNG. The shares were valued at R242 million on the transaction date. An additional US$10 million in cash will be payable when the decision to mine is made. Of this amount, Harmony is responsible for paying the first US$6 million, with the balance of US$4 million being borne equally by the joint operators.
|
(b)
|
The group may have a potential exposure to rehabilitate groundwater and radiation that may exist where the group has and/or continues to operate. The group has initiated analytical assessments to identify, quantify and mitigate impacts if and when (or as and where) they arise. Numerous scientific, technical and legal studies are underway to assist in determining the magnitude of the contamination and to find sustainable remediation solutions. The group has instituted processes to reduce future potential seepage and it has been demonstrated that Monitored Natural Attenuation (MNA) by the existing environment will contribute to improvement in some instances. Water treatment facilities were successfully implemented at Doornkop, Tshepong Operations and Kusasalethu. These facilities are now assisting in reducing our dependency on state supplied potable water and will be key in managing any post closure decant should it arise.
|
(c)
|
Due to the interconnected nature of mining operations in South Africa, any proposed solution for potential flooding and potential decant risk posed by deep groundwater needs to be a combined one, supported by all the mines located in these goldfields. As a result, the Department of Mineral Resources and Energy and affected mining companies require the development of a regional mine closure strategy. Harmony operations have conducted a number of specialist studies and the risk of surface decant due to rising groundwater levels has been obviated at the entire Free State region and Kalgold. In addition, the decant from the KOSH groundwater system tied with our Moab Khotsong operation has been managed through an appropriate groundwater closure plan and sufficient provision has been set aside for this. Therefore, there is no contingency arising from these operations. Additional studies have been commissioned at Doornkop and Kusasalethu. In view of the limitation of current information for accurate estimation of a liability, no reliable estimate can be made for these operations.
|
(d)
|
The individual Harmony mining operations have applied for the respective National Water Act, Section 21 Water Use Licenses (WUL) to the Department of Water and Sanitation (DWS). The respective Water Use License Applications (WULA’s) have subsequently not yet been approved by DWS. Two WUL have been issued by DWS for Kalgold and Kusasalethu (amendment currently being drafted for both operations), with neither licence having any material impact to the operation. The remaining WULA’s have not yet been approved by DWS. The WUL conditions for the respective operations are subsequently not yet known and the subsequent potential water resource impact liability as part of the mine rehabilitation and closure process (to which DWS is an important participant and decision maker) is uncertain. The existing WUL for Moab Khotsong, which was recently acquired by Harmony, has already been approved by the DWS. The transferral of the licence and its conditions to Harmony is currently being processed.
|
(e)
|
In terms of the sale agreements entered into with Rand Uranium, Harmony retained financial exposure relating to environmental disturbances and degradation caused by it before the effective date, in excess of R75 million of potential claims. Rand Uranium is therefore liable for all claims up to R75 million and retains legal liability. The likelihood of potential claims cannot be determined presently and no provision for any liability has been made in the financial statements.
|
(f)
|
Legal proceedings commenced in December 2010 against the Hidden Valley mine in PNG over alleged damage to the Watut River (which runs adjacent to the Hidden Valley mine), alleged to have been caused by waste rock and overburden run-off from the mine. The damages sought by the plaintiffs were not specified. No active steps had been taken by the plaintiffs in this proceeding for more than five years. During 2019, the court dismissed the case as there had been no furtherance of the issue by the plaintiffs.
|
36
|
SUBSEQUENT EVENTS
|
(a)
|
On 26 July 2019, the Johannesburg High Court approved the R5.2 billion settlement of the silicosis and tuberculosis class action suit between the Occupational Lung Disease Working Group – representing Gold Fields, African Rainbow Minerals, Anglo American SA, AngloGold Ashanti, Harmony and Sibanye Stillwater – and lawyers representing affected mineworkers. After a mandatory three-month period, during which potential beneficiaries can opt out of the settlement agreement, the settlement funds will be used to establish the Tshiamiso Trust. The trust will track and trace class members, process all submitted claims, including the undertaking of benefit medical examinations, and pay benefits to eligible claimants. The approval does not impact on the amount of the provision recognised. Refer to note 26.
|
(b)
|
On 19 August 2019, Harmony and a syndicate of local and international lenders entered into a loan facility agreement which was jointly arranged by Nedbank Limited and ABSA Bank Limited, comprising a revolving credit facility (RCF) of up to US$200 million and a term portion of up to US$200 million. The tenor of the facility is three years with an option to extend by another one year. The rate for the term loan is LIBOR plus 3.05% and LIBOR plus 2.90% for the RCF. Conditions precedent were fulfilled on 26 September 2019 and financial close was on 2 October 2019, with US$5 million (R76 million) being drawn on, resulting in an outstanding balance of US$300 million (R4.6 billion) and undrawn balance of US$100 million (R1.4 billion).
|
37
|
SEGMENT REPORT
|
|
|
37
|
SEGMENT REPORT continued
|
|
Revenue
30 June
|
Production cost
30 June
|
Production profit/(loss)
30 June
|
Mining assets
30 June
|
Capital expenditure#
30 June
|
Kilograms produced*
30 June
|
Tonnes milled*
30 June
|
|||||||||||||||||||||||||||||||||||
|
2019
|
2018
|
2017
|
2019
|
2018
|
2017
|
2019
|
2018
|
2017
|
2019
|
2018
|
2017
|
2019
|
2018
|
2017
|
2019
|
2018
|
2017
|
2019
|
2018
|
2017
|
|||||||||||||||||||||
|
Rand million
|
Rand million
|
Rand million
|
Rand million
|
Rand million
|
Kg
|
t'000
|
|||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
South Africa
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Underground
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Tshepong Operations
|
4 685
|
|
5 389
|
|
5 062
|
|
3 973
|
|
3 799
|
|
3 671
|
|
712
|
|
1 590
|
|
1 391
|
|
6 297
|
|
8 078
|
|
8 466
|
|
1 130
|
|
1 008
|
|
717
|
|
7 967
|
|
9 394
|
|
8 828
|
|
1 612
|
|
1 716
|
|
1 695
|
|
Moab Khotsong
|
4 470
|
|
1 672
|
|
—
|
|
3 101
|
|
952
|
|
—
|
|
1 369
|
|
720
|
|
—
|
|
3 634
|
|
3 670
|
|
—
|
|
559
|
|
173
|
|
—
|
|
7 928
|
|
3 296
|
|
—
|
|
970
|
|
327
|
|
—
|
|
Bambanani
|
1 477
|
|
1 616
|
|
1 576
|
|
994
|
|
896
|
|
871
|
|
483
|
|
720
|
|
705
|
|
562
|
|
659
|
|
745
|
|
61
|
|
64
|
|
77
|
|
2 515
|
|
2 821
|
|
2 750
|
|
230
|
|
233
|
|
231
|
|
Joel
|
957
|
|
954
|
|
1 309
|
|
971
|
|
920
|
|
936
|
|
(14
|
)
|
34
|
|
373
|
|
947
|
|
995
|
|
909
|
|
187
|
|
250
|
|
243
|
|
1 567
|
|
1 635
|
|
2 246
|
|
429
|
|
454
|
|
514
|
|
Doornkop
|
1 931
|
|
1 958
|
|
1 553
|
|
1 564
|
|
1 411
|
|
1 241
|
|
367
|
|
547
|
|
312
|
|
2 759
|
|
2 721
|
|
2 979
|
|
308
|
|
274
|
|
243
|
|
3 273
|
|
3 429
|
|
2 673
|
|
730
|
|
696
|
|
641
|
|
Target 1
|
1 585
|
|
1 630
|
|
1 506
|
|
1 491
|
|
1 318
|
|
1 345
|
|
94
|
|
312
|
|
161
|
|
1 076
|
|
1 260
|
|
2 021
|
|
297
|
|
309
|
|
324
|
|
2 653
|
|
2 854
|
|
2 669
|
|
588
|
|
680
|
|
745
|
|
Kusasalethu
|
2 975
|
|
2 483
|
|
2 575
|
|
2 395
|
|
2 026
|
|
2 080
|
|
580
|
|
457
|
|
495
|
|
1 300
|
|
2 151
|
|
2 846
|
|
316
|
|
289
|
|
289
|
|
4 989
|
|
4 429
|
|
4 394
|
|
742
|
|
670
|
|
607
|
|
Masimong
|
1 359
|
|
1 505
|
|
1 452
|
|
1 205
|
|
1 154
|
|
1 113
|
|
154
|
|
351
|
|
339
|
|
106
|
|
57
|
|
433
|
|
109
|
|
129
|
|
119
|
|
2 309
|
|
2 623
|
|
2 538
|
|
602
|
|
647
|
|
640
|
|
Unisel
|
713
|
|
733
|
|
915
|
|
564
|
|
771
|
|
838
|
|
149
|
|
(38
|
)
|
77
|
|
46
|
|
38
|
|
529
|
|
45
|
|
85
|
|
78
|
|
1 212
|
|
1 280
|
|
1 595
|
|
256
|
|
376
|
|
394
|
|
Surface
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
All other surface operations
|
2 403
|
|
2 009
|
|
1 816
|
|
1 938
|
|
1 521
|
|
1 404
|
|
465
|
|
488
|
|
412
|
|
724
|
|
553
|
|
486
|
|
84
|
|
136
|
|
261
|
|
4 099
|
|
3 570
|
|
3 178
|
|
15 931
|
|
14 143
|
|
11 045
|
|
Total South Africa
|
22 555
|
|
19 949
|
|
17 764
|
|
18 196
|
|
14 768
|
|
13 499
|
|
4 359
|
|
5 181
|
|
4 265
|
|
17 451
|
|
20 182
|
|
19 414
|
|
3 096
|
|
2 717
|
|
2 351
|
|
38 512
|
|
35 331
|
|
30 871
|
|
22 090
|
|
19 942
|
|
16 512
|
|
International
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Hidden Valley (a)
|
3 591
|
|
409
|
|
1 500
|
|
1 362
|
|
234
|
|
1 313
|
|
2 229
|
|
175
|
|
187
|
|
3 694
|
|
3 884
|
|
2 290
|
|
1 591
|
|
1 563
|
|
1 335
|
|
6 222
|
|
2 862
|
|
2 965
|
|
3 886
|
|
2 499
|
|
2 889
|
|
Total international
|
3 591
|
|
409
|
|
1 500
|
|
1 362
|
|
234
|
|
1 313
|
|
2 229
|
|
175
|
|
187
|
|
3 694
|
|
3 884
|
|
2 290
|
|
1 591
|
|
1 563
|
|
1 335
|
|
6 222
|
|
2 862
|
|
2 965
|
|
3 886
|
|
2 499
|
|
2 889
|
|
Total operations
|
26 146
|
|
20 358
|
|
19 264
|
|
19 558
|
|
15 002
|
|
14 812
|
|
6 588
|
|
5 356
|
|
4 452
|
|
21 145
|
|
24 066
|
|
21 704
|
|
4 687
|
|
4 280
|
|
3 686
|
|
44 734
|
|
38 193
|
|
33 836
|
|
25 976
|
|
22 441
|
|
19 401
|
|
Reconciliation of segment information to the consolidated income statement and balance sheet
|
766
|
|
94
|
|
230
|
|
766
|
|
82
|
|
230
|
|
—
|
|
12
|
|
—
|
|
15 591
|
|
15 455
|
|
17 179
|
|
|
|
|
|
|
|
|
|
|
|||||||||
|
26 912
|
|
20 452
|
|
19 494
|
|
20 324
|
|
15 084
|
|
15 042
|
|
6 588
|
|
5 368
|
|
4 452
|
|
36 736
|
|
39 521
|
|
38 883
|
|
4 687
|
|
4 280
|
|
3 686
|
|
44 734
|
|
38 193
|
|
33 836
|
|
25 976
|
|
22 441
|
|
19 401
|
|
#
|
Capital expenditure for international operations excludes expenditure spent on Wafi-Golpu of R350 million (2018: R288 million) (2017: R197 million).
|
(a)
|
Capital expenditure for 2018 comprises of expenditure of R2 609 million net of capitalised revenue of R1 046 million. No revenue was capitalised in 2017 or 2019.
|
*
|
Production statistics are unaudited.
|
38
|
RECONCILIATION OF SEGMENT INFORMATION TO CONSOLIDATED INCOME STATEMENTS AND BALANCE SHEETS
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Reconciliation of production profit to consolidated profit/(loss) before taxation
|
|
|
|
|||
|
|
|
|
|||
Revenue per segment report
|
26 146
|
|
20 358
|
|
19 264
|
|
Revenue per income statement
|
26 912
|
|
20 452
|
|
19 494
|
|
Other metal sales treated as by-product credits in the segment report
|
(766
|
)
|
(93
|
)
|
(230
|
)
|
Other adjustments
|
—
|
|
(1
|
)
|
—
|
|
|
|
|
|
|||
Production costs per segment report
|
(19 558
|
)
|
(15 002
|
)
|
(14 812
|
)
|
Production costs per income statement
|
(20 324
|
)
|
(15 084
|
)
|
(15 042
|
)
|
Other metal sales treated as by-product credits in the segment report
|
766
|
|
93
|
|
230
|
|
Other adjustments
|
—
|
|
(11
|
)
|
—
|
|
|
|
|
|
|||
|
|
|
|
|||
Production profit per segment report
|
6 588
|
|
5 356
|
|
4 452
|
|
Revenue not included in segments
|
—
|
|
1
|
|
—
|
|
Production costs adjustments not included in segments
|
—
|
|
11
|
|
—
|
|
Cost of sales items other than production costs
|
(8 545
|
)
|
(8 512
|
)
|
(4 827
|
)
|
|
|
|
|
|||
Amortisation and depreciation of mining assets
|
(3 961
|
)
|
(2 468
|
)
|
(2 441
|
)
|
Amortisation and depreciation of assets other than mining assets
|
(93
|
)
|
(102
|
)
|
(78
|
)
|
Rehabilitation expenditure
|
(33
|
)
|
(67
|
)
|
(23
|
)
|
Care and maintenance cost of restructured shafts
|
(134
|
)
|
(128
|
)
|
(109
|
)
|
Employment termination and restructuring costs
|
(242
|
)
|
(208
|
)
|
(74
|
)
|
Share-based payments
|
(155
|
)
|
(244
|
)
|
(391
|
)
|
Impairment of assets
|
(3 898
|
)
|
(5 336
|
)
|
(1 718
|
)
|
Other
|
(29
|
)
|
41
|
|
7
|
|
|
|
|
|
|||
Gross profit/(loss)
|
(1 957
|
)
|
(3 144
|
)
|
(375
|
)
|
Corporate, administration and other expenditure
|
(731
|
)
|
(813
|
)
|
(517
|
)
|
Exploration expenditure
|
(148
|
)
|
(135
|
)
|
(241
|
)
|
Gain on derivatives
|
484
|
|
99
|
|
1 025
|
|
Other operating expenses
|
(186
|
)
|
(667
|
)
|
(886
|
)
|
|
|
|
|
|||
Operating profit/(loss)
|
(2 538
|
)
|
(4 660
|
)
|
(994
|
)
|
Gain on bargain purchase
|
—
|
|
—
|
|
848
|
|
Loss on liquidation of subsidiaries
|
—
|
|
—
|
|
(14
|
)
|
Share on profit/(loss) from associate
|
59
|
|
38
|
|
(22
|
)
|
Acquisition-related costs
|
—
|
|
(98
|
)
|
—
|
|
Investment income
|
308
|
|
343
|
|
268
|
|
Finance costs
|
(575
|
)
|
(330
|
)
|
(234
|
)
|
|
|
|
|
|||
Profit/(loss) before taxation
|
(2 746
|
)
|
(4 707
|
)
|
(148
|
)
|
38
|
RECONCILIATION OF SEGMENT INFORMATION TO CONSOLIDATED INCOME STATEMENTS AND BALANCE SHEETS continued
|
|
SA rand
|
|||||
Figures in million
|
2019
|
|
2018
|
|
2017
|
|
|
|
|
|
|||
Reconciliation of total segment assets to consolidated assets includes the following:
|
|
|
|
|||
|
|
|
|
|||
Non-current assets
|
|
|
|
|||
|
|
|
|
|||
Property, plant and equipment
|
6 604
|
|
6 903
|
|
8 340
|
|
Intangible assets
|
533
|
|
545
|
|
603
|
|
Restricted cash
|
92
|
|
77
|
|
64
|
|
Restricted investments
|
3 301
|
|
3 271
|
|
2 658
|
|
Investments in associates
|
110
|
|
84
|
|
46
|
|
Inventories
|
43
|
|
46
|
|
38
|
|
Other non-current assets
|
334
|
|
264
|
|
189
|
|
Derivative financial asset
|
197
|
|
84
|
|
306
|
|
|
|
|
|
|||
Current assets
|
|
|
|
|||
|
|
|
|
|||
Inventories
|
1 967
|
|
1 759
|
|
1 127
|
|
Restricted cash
|
44
|
|
38
|
|
18
|
|
Trade and other receivables
|
1 064
|
|
1 139
|
|
1 003
|
|
Derivative financial assets
|
309
|
|
539
|
|
1 541
|
|
Cash and cash equivalents
|
993
|
|
706
|
|
1 246
|
|
|
|
|
|
|||
|
15 591
|
|
15 455
|
|
17 179
|
|