Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 1 of 26 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Transcription

1 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 1 of 26 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JAMES J HAYES, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v CASE NO 1:08 Civ BSJ-MHD HARMONY GOLD MINING COMPANY LIMITED, Defendant STIPULATION AND AGREEMENT OF SETTLEMENT This Stipulation and Agreement of Settlement (the Stipulation ) is submitted pursuant to Rule 23 of the Federal Rules of Civil Procedure Subject to the approval of the Court, this Stipulation is entered into among Class Counsel, on behalf of the Class (as defined below), and Defendant Harmony Gold Mining Company Limited ( Harmony Gold or Defendant ) DEFINITIONS As used in this Stipulation, the following capitalized terms shall have the following meanings: 1 Action means James J Hayes v Harmony Gold Mining Co, Ltd, Case No 08 Civ 3653, pending in the United States District Court for the Southern District of New York 2 Administration Expenses means all costs, disbursements, and expenses, other than Notification Costs, incurred in the implementation of this Settlement and that are approved by the Court, including, but not limited to, reasonable fees and expenses of an agent to administer the Settlement, reviewing Proofs of Claim filed by the Class, and the costs of transferring payments to Class Members entitled to recovery 1

2 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 2 of 26 3 Authorized Claimant means a Class Member whose claim for recovery has been allowed pursuant to the terms of the Stipulation 4 Cash Settlement Amount means 9,000,000 that Harmony Gold shall cause to be delivered to the Settlement Account pursuant to the terms of this Stipulation 5 Claim means a completed and signed Proof of Claim submitted to the Claims Administrator in accordance with the instructions on the Proof of Claim 6 Claimant means a person or entity that submits a Proof of Claim to the Claims Administrator seeking to share in the proceeds of the Net Settlement Fund 7 Claims Administrator means The Garden City Group, Inc, which shall administer the Settlement 8 Class means all persons and entities who, during the period between April 25, 2007 and August 7, 2007, inclusive, satisfy subsection (a) and/or subsection (b) below, and who suffered damages as a result: a) Purchased Harmony Gold ADRs on the New York Stock Exchange or NASDAQ, and who (i) Sold those same ADRs on August 6 or August 7, 2007; or (ii) Held those same ADRs through August 7, 2007; b) Sold put options or purchased call options on Harmony ADRs on the Chicago Board of Exchange, and who (i) Purchased those same put options on August 6 or 7, 2007; (ii) Sold those same call options on August 6 or 7, 2007; or (iii) Held those same option positions through August 7, 2007 Excluded from the Class are: (i) (ii) All persons or entities who purchased Harmony ADRs beginning on April 25, 2007 to the extent that they sold or otherwise disposed of those same Harmony ADRs prior to August 6, 2007; All persons or entities who sold put options or purchased call options on Harmony ADRs beginning on April 25, 2007, to the 2

3 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 3 of 26 (iii) (iv) (v) (vi) extent that the option contracts for those same options closed prior to August 6, 2007; Any entity in which Harmony had a controlling interest during the Class Period; Officers and directors of Harmony during the Class Period and their immediate families; The legal representatives, heirs, successors, or assigns of any of the excluded persons or entities who assert any interest in Harmony ADRs or put or call options on Harmony ADRs through or on behalf of any of the excluded persons or entities; and Any persons or entities who exclude themselves by filing a request for exclusion in accordance with the requirements set forth by the Court 9 Class Distribution Order means a Court order authorizing distribution of the Net Settlement Fund to Authorized Claimants 10 Class Member means a person or entity who falls within the definition of the Class, and includes each of their respective past or present officers, directors, shareholders, employees, agents, attorneys, partners, managers, members, affiliates, subsidiaries, shareholders, spouses, heirs, executors, administrators, representatives, successors and assigns 11 Class Period means the period between April 25, 2007 and August 7, 2007, inclusive 12 Class Counsel means Saxena White PA 13 Class Representative means James J Hayes 14 Court means the United States District Court for the Southern District of New York 15 Counsel Fees and Expenses means fees and expenses allowed by the Court that are sought and were incurred by Class Counsel, Liaison Counsel, or KTMC in the prosecution of the Action 16 Defendant means Harmony Gold 3

4 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 4 of Defendant s Counsel means Hogan Lovells US LLP 18 Effective Date means the first day after the Court enters the Order and Final Judgment and either (i) the expiration of any time for review or appeal of the Order and Final Judgment, or (ii) if any appeal is filed and not dismissed, the Order and Final Judgment is upheld on appeal in all material respects and is no longer subject to review upon appeal or review by writ of certiorari Any award of Counsel Fees and Expenses and/or the approval of any Plan of Allocation shall not be considered a material provision of the Order and Final Judgment, and any appeal of Counsel Fees and Expenses or Plan of Allocation shall not delay the Effective Date, and any modification as a result of such appeal shall not be considered a modification of a material term 19 Escrow Agent means Saxena White PA 20 Fairness Hearing means the hearing held by the Court to consider final approval of the Settlement of the Action, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure 21 KTMC means Kessler Topaz Meltzer & Check LLP (formerly Barroway Topaz Kessler Meltzer & Check LLP), which was Lead Counsel in the Action until withdrawing on May 14, Liaison Counsel means Law Offices of Curtis V Trinko, LLP 23 Net Settlement Fund means the Settlement Fund, less any Taxes, Tax Expenses, Notification Costs, Administration Expenses, Counsel Fees and Expenses, Representative Reimbursement, and any other expenses approved by the Court The Net Settlement Fund shall be distributed to the Authorized Claimants as provided in this Stipulation 4

5 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 5 of Notice means the Notice of Proposed Settlement of Class Action and Motion for Attorneys Fees and Settlement Fairness Hearing, which is to be distributed to Class Members substantially in the form attached as Exhibit A 25 Notification Costs means the costs of identification of Class Members, mailing the Notice to the Class, publication of the Summary Notice, and duplication or printing costs related thereto 26 Order and Final Judgment means the order and judgment entered by the Court approving the Settlement, substantially in the form attached as Exhibit D, or any alternative order and judgment entered by the Court which does not result in the election by Class Counsel and/or Harmony Gold to terminate this Settlement 27 Preliminary Order means the order, substantially in the form attached as Exhibit C, which shall provide, among other things, for preliminary approval of the proposed Settlement and a Fairness Hearing by the Court to consider the Settlement and the Notice contemplated to be provided to all reasonably identifiable Class Members 28 Proof of Claim means the document which is substantially in the form attached to the Notice 29 Released Parties and Released Party means any and all of Harmony Gold, as well as its present and former directors, officers (including Bernard Swanepoel and Nomfundo Qangule), employees, agents, consultants, attorneys, accountants, auditors, underwriters, partners, insurers, reinsurers, personal representatives, spouses, issues, heirs, executors, administrators, predecessors, successors, assigns, parent corporations, subsidiaries, divisions, affiliates, trusts, or any other individual or entity in which Harmony Gold has a controlling interest or which is affiliated with Harmony Gold or any of the parties listed above 5

6 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 6 of Representative Reimbursement means the payment that is approved by the Court to be paid to the Class Representative for reimbursement of his reasonable costs and expenses directly relating to this action 31 Settled Claims means any and all claims, debts, demands, rights, causes of action or liabilities, of every nature and description whatsoever, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, based in law or equity, or based on any foreign, federal, state, local, statutory or common law, or any other law, rule or regulation (including any claims for violations of Fed R Civ P 11), including both known claims and Unknown Claims that have been or could have been asserted in any forum by the Class Members or any of them, or the successors or assigns of any of them, whether directly, indirectly, derivatively, representatively or in any other capacity against any of the Released Parties, which arise out of, relate to, or are based upon, in any way, directly or indirectly, (a) the allegations, transactions, facts, events, matters, occurrences, acts, representations or omissions involved, set forth, or referred to, or that could have been asserted in the Action, including without limitation, claims for negligence, gross negligence, breach of duty of care, breach of duty of loyalty, breach of duty of candor, fraud, negligent misrepresentation, and breach of fiduciary duty, or (b) the purchase, acquisition, sale, disposition or transfer of Harmony Gold securities by any Class Member during the Class Period, including without limitation all claims arising out of or relating to any disclosures, public filings, registration statements or other statement by any or all of the Released Parties Settled Claims does not mean or include claims, if any, against the Released Parties arising under the Employee Retirement Income Security Act of 1974, 29 USC 1001, et seq, which are not common to all Class Members Additionally, Settled Claims does not include claims relating to the enforcement of the Settlement or the terms of this Stipulation 6

7 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 7 of Settled Defendant s Claims means any and all claims, rights, causes of action or liabilities, of every nature and description whatsoever, whether based in law or equity, on federal, state, local, statutory or common law or any other law, rule or regulation (including any claims for violations of Fed R Civ P 11), including both known claims and Unknown Claims, that have been or could have been asserted in the Action or any forum by the Released Parties, or any of them, or the successors and assigns of any of them against the Class Members or their attorneys, which arise out of or relate in any way to the institution, prosecution, or settlement of the Action (except for claims to enforce the Settlement) 33 Settlement means the settlement contemplated by this Stipulation 34 Settlement Account means a trust account at a federally chartered financial institution, or successor institution selected by the Escrow Agent The Settlement Account will be managed by the Escrow Agent 35 Settlement Fund means all cash or assets in the Settlement Account 36 Summary Notice means the Summary Notice of Proposed Settlement of Class Action and Motion for Attorneys Fees and Fairness Hearing, for publication in substantially the same form attached as Exhibit B 37 Taxes shall mean all taxes from any governmental entity (including any estimated taxes, interest, or penalties) arising with respect to the income earned by the Settlement Fund 38 Tax Expenses shall mean expenses and costs incurred in connection with the preparation, filing or litigation relating to the filing, of appropriate tax returns or related paperwork related to the Settlement 7

8 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 8 of Unknown Claims means any and all Settled Claims that any Class Member does not know or suspect to exist in his, her or its favor at the time of the release of the Released Parties, and any of Settled Defendant s Claims that Defendant does not know or suspect to exist in its favor, which if known by him, her, or it might have affected his, her or its decision(s) with respect to the Settlement With respect to any and all Settled Claims and Settled Defendant s Claims, the Released Parties and each Class Member, acting through Class Counsel, shall each, for themselves and all persons claiming by, through, or on behalf of them, be deemed to have waived, and by operation of the Order and Final Judgment shall have expressly waived, any and all provisions, rights and benefits conferred by any law of any state or territory of the United States, or principle of common law, that is similar, comparable, or equivalent to Cal Civ Code 1542, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor Each Class Member s and the Released Parties successors and assigns and any persons or entities claiming through or on behalf of them shall, by operation of law, be deemed to have acknowledged, that the inclusion of Unknown Claims in the definition of Settled Claims and Settled Defendant s Claims was separately bargained for and was a material element of the Settlement and Stipulation SCOPE AND EFFECT OF SETTLEMENT 40 This Settlement was reached as a result of arms length negotiations and in good faith, undertaken in the context of a mediation between the parties through the mediation services of the Hon Layn R Phillips (the Mediator ), and reflects a voluntary submission to the 8

9 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 9 of 26 terms of the Settlement On February 17, 2010, the Mediator, Class Counsel, the Class Representative, Defendant s Counsel and other authorized persons participated in an all-day mediation regarding the claims asserted in this Action This mediation session was followed by several months of telephonic and correspondence among some or all of these participants On May 25, 2011, based on the substance of these in-person, electronic and telephonic communications, the Mediator issued a settlement recommendation to the parties On June 1, 2011, that recommendation was accepted by Class Counsel, Defendant s Counsel, and the Defendant, and this Settlement reflects the material terms of that recommendation 41 The obligations incurred pursuant to this Stipulation shall be in full and final disposition of the Action as against the Defendant, and shall fully and finally release any and all Settled Claims as against all Released Parties and shall also release all Settled Defendant s Claims The Order and Final Judgment shall, among other things, provide for the dismissal with prejudice of the Action against the Defendant, without costs to any party, as such costs are identified in 28 USC Upon the Effective Date of this Settlement, Class Members, on behalf of themselves, their heirs, executors, administrators, predecessors, successors, and assigns, and any other person claiming by, through or on behalf of them, whether or not that Class Member executes and delivers a Proof of Claim or otherwise shares in the Settlement Fund, (a) shall be deemed by operation of law to have released, waived, dismissed and forever discharged each and every Settled Claim; (b) shall forever be enjoined from prosecuting, commencing, or instituting, either directly or indirectly, whether in the United States or elsewhere, any Settled Claims against any of the Released Parties; and (c) shall forever be enjoined from prosecuting, commencing, instituting, continuing, maintaining, or asserting, either directly or indirectly, 9

10 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 10 of 26 whether in the United States or elsewhere, any action, suit, cause of action, claim or demand against any person or entity who may claim any form of contribution or indemnity from any of the Released Parties in respect of any Settled Claim or any matter related thereto 43 Upon the Effective Date of this Settlement, the Released Parties, on behalf of themselves, their executors, administrators, predecessors, successors, assigns, and all persons and entities claiming through or on behalf of them, (a) shall be deemed by operation of law to have released, waived, dismissed and forever discharged each and every Settled Defendant s Claim; (b) shall forever be enjoined from prosecuting, commencing, or instituting, either directly or indirectly, whether in the United States or elsewhere, any Settled Defendant s Claim; and (c) shall forever be enjoined from prosecuting, commencing, instituting, continuing, maintaining, or asserting, either directly or indirectly, whether in the United States or elsewhere, any action, suit, cause of action, claim or demand against any person or entity who may claim any form of contribution or indemnity from Class Members or their counsel in respect of any Settled Defendant s Claim THE SETTLEMENT CONSIDERATION 44 In settlement of all Settled Claims against the Released Parties, and subject only to the terms and conditions of this Stipulation, Harmony Gold shall cause to be paid the Cash Settlement Amount (9,000,000) into the Settlement Account within ten (10) business days after the later of the Court s entry of the Preliminary Order and the receipt by Defendant of adequate wiring instructions for the Settlement Account and the Settlement Account s Form W-9 necessary to effect payment 45 The Settlement Fund shall be maintained in the Settlement Account from the date it is deposited until it is transferred in accordance with the provisions of this Stipulation or by 10

11 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 11 of 26 order of the Court The Settlement Account shall be managed by the Escrow Agent The Settlement Account shall remain subject to the jurisdiction of the Court until the funds are distributed pursuant to the Stipulation or further order of the Court 46 The Net Settlement Fund shall be the sole source of funds for payment of valid Claims to the Class Class Members will look solely to the Net Settlement Fund for settlement and satisfaction of any and all Settled Claims against the Released Parties 47 All Taxes and Tax Expenses shall be paid out of the Settlement Fund prior to distribution to Class Members without need for prior order from the Court The Escrow Agent shall be obligated to withhold from distribution to Class Members any funds necessary to pay such amounts The Settlement Fund shall indemnify and hold all Released Parties harmless for any Taxes and related expenses of any kind whatsoever (including without limitation taxes payable by reason of any such indemnification), if any, payable by Defendant by reason of any income and gains earned on the Settlement Fund Defendant shall notify the Escrow Agent promptly if it receives any notice of any claim for Taxes relating to the Settlement Fund 48 The Escrow Agent shall invest all funds in US government issued securities or guaranteed instruments (or a mutual fund invested solely in such instruments), and shall collect and reinvest all interest accrued thereon Any funds held in escrow in an amount not to exceed any applicable FDIC limits may be held in a bank account insured by the FDIC 49 The Settlement Fund is intended to be a Qualified Settlement Fund within the meaning of Treasury Regulation 1468B-1 and the Escrow Agent, as administrator of the Settlement Fund within the meaning of Treasury Regulation 1468B-2(k)(3), shall be responsible for filing tax returns for the Settlement Fund and paying from the Settlement Fund any Taxes owed with respect to the Settlement Fund The parties hereto agree that the 11

12 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 12 of 26 Settlement fund shall be treated as a Qualified Settlement Fund from the earliest date possible, and agree to any relation-back election required to treat the Settlement Fund as a Qualified Settlement Fund from the earliest date possible Defendant s Counsel agrees to provide promptly to the Escrow Agent the statement described in Treasury Regulation 1468B-3(e) ADMINISTRATION OF THE SETTLEMENT 50 The Claims Administrator shall administer the Settlement subject to the supervision, direction, and approval of Class Counsel and the Court; calculate the Claims submitted by Class Members; and oversee distribution of the Net Settlement Fund The Claims Administrator shall be responsible for distributing the Notice and Proofs of Claim, and publishing the Summary Notice, respectively 51 Class Counsel may pay Administration Expenses from the Settlement Fund without prior approval from Defendant s Counsel Notwithstanding this provision, prior to the Effective Date, Class Counsel shall not pay more than 200,000 from the Settlement Fund for such Administration Expenses without the approval of Defendant s Counsel, which shall not be unreasonably withheld 52 Any Class Member who does not submit a valid Proof of Claim will not be entitled to receive any of the proceeds from the Net Settlement Fund but will otherwise be bound by all of the terms of this Stipulation and the Settlement, including the terms of the Order and Final Judgment to be entered in the Action, and will be barred from bringing any action against the Released Parties concerning the Settled Claims The Claims Administrator shall provide Class Counsel with a list of all late-filed, but otherwise adequate Proofs of Claim for consideration by the Court for inclusion in the distribution 12

13 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 13 of The Claims Administrator shall process the Proofs of Claim and, after entry of the Class Distribution Order, distribute the Net Settlement Fund to the Authorized Claimants 54 For purposes of determining the extent, if any, to which a Class Member shall be entitled to be treated as an Authorized Claimant, the following conditions shall apply: (a) Each Class Member shall submit a Proof of Claim (attached to Exhibit A), supported by sufficient documentary evidence (including proof of the transactions claimed and the losses incurred as a result), or such other documents or proof as the Claims Administrator, in its discretion, may deem acceptable; (b) All Proofs of Claim must be submitted by the date specified in the Notice, unless such period is extended by Order of the Court All Class Members who fail to timely submit a valid Proof of Claim and all Class Members whose Claims are rejected by the Claims Administrator (or the Court if a timely contest to the rejection is filed), shall be forever barred from receiving any proceeds from the Net Settlement Fund, but will in all other respects be subject to and bound by the provisions of the Stipulation and Settlement, including the terms of the Order and Final Judgment to be entered in the Action, and will be barred from bringing any action against the Released Parties concerning the Settled Claims; (c) Each Proof of Claim shall be submitted to and reviewed by the Claims Administrator, who shall determine in accordance with this Stipulation and the approved Plan of Allocation the extent, if any, to which each Claim shall be allowed, subject to review by the Court pursuant to subparagraph (e) below; (d) Proofs of Claim that do not meet the submission requirements may be rejected Prior to rejection of a Proof of Claim, the Claims Administrator shall 13

14 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 14 of 26 communicate with the Claimant in order to attempt to remedy the curable deficiencies in the Proofs of Claim submitted The Claims Administrator shall notify, in a timely fashion and in writing, each Claimant whose Proofs of Claim they propose to reject in whole or in part, setting forth the reasons therefore, and shall indicate in such notice that the Claimant whose Claim is to be rejected has the right to a review by the Court if the Claimant so desires and complies with the requirements of subparagraph (e) below; (e) If any Claimant whose Claim has been rejected in whole or in part desires to contest such rejection, the Claimant must, within 20 days after the date of mailing of the notice required in subparagraph (d) above, serve upon the Claims Administrator a notice and statement of reasons indicating the Claimant s grounds for contesting the rejection along with any supporting documentation, and requesting a review thereof by the Court If a dispute concerning a Claim cannot be otherwise resolved, Class Counsel shall thereafter present the request for review to the Court; and (f) The administrative determinations of the Claims Administrator accepting and rejecting Claims shall be presented to the Court for approval by the Court in the Class Distribution Order 55 Each Claimant shall be deemed to have submitted to the jurisdiction of the Court with respect to the Claimant s Claim, and the Claim will be subject to investigation and discovery under the Federal Rules of Civil Procedure, provided that such investigation and discovery shall be limited to that Claimant s status as a Class Member, and the validity and amount of the Claimant s Claim No discovery shall be allowed on the merits of the Action or Settlement in connection with processing the Proofs of Claim 14

15 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 15 of Payment pursuant to this Stipulation shall be deemed final and conclusive against all Class Members All Class Members whose Claims are not approved by the Court shall be barred from participating in distributions from the Net Settlement Fund, but otherwise shall be bound by all of the terms of this Stipulation and the Settlement, including the terms of the Order and Final Judgment to be entered in the Action, and will be barred from bringing any action against the Released Parties concerning the Settled Claims 57 Class Counsel shall request that the deadline for submitting exclusions from the Class by potential Class Members be at least twenty-one (21) days prior to the Fairness Hearing Copies of all requests for exclusion from the Class received by the Claims Administrator (or other person designated to receive exclusion requests) shall be provided to Class Counsel and Defendant s Counsel no later than twenty-one (21) days prior to the Fairness Hearing In addition, at the same time, the Claims Administrator shall also deliver to Class Counsel and Defendant s Counsel a report of all exclusion requests received setting forth (1) the number of exclusion requests received; (2) the name, address and telephone number of persons requesting exclusion; and (3) the number of ADRs subject to such exclusion requests In that report, the Claims Administrator shall indicate which exclusion requests, if any, appear to fail to meet the requirements for obtaining exclusion from the Class as set forth in the Notice and therefore appear to be defective The Claims Administrator s report is for convenience only and any conclusions set forth therein shall not be binding on Class Counsel, the Class Members (or any of them), or Harmony Gold 58 All proceedings with respect to the administration, processing and determination of Claims described by this Stipulation, and the determination of all related controversies, 15

16 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 16 of 26 including disputed questions of law and fact with respect to the validity of Claims, shall be subject to the jurisdiction of the Court 59 The Net Settlement Fund shall be distributed to Authorized Claimants by the Claims Administrator only after the Effective Date and after: (i) all Claims have been processed, and all Claimants whose Claims have been rejected or disallowed, in whole or in part, have been notified and provided the opportunity to be heard concerning such rejection or disallowance; (ii) all objections with respect to all rejected or disallowed Claims have been resolved by the Court, and all appeals therefrom have been resolved or the time therefor has expired; (iii) all appeals have been resolved or the time therefor has expired; and (iv) all costs of administration have been paid 60 If, after 6 months from the date of distribution of the Net Settlement Fund (whether by reason of tax refunds, uncashed checks or otherwise) (the Reallocation Date ), there is a balance greater than 2% of the Cash Settlement Amount remaining in the Net Settlement Fund, the Claims Administrator shall reallocate the balance among Authorized Claimants in an equitable and economic fashion, but only to those Authorized Claimants who have cashed their first distribution check and would receive at least 1000 from the reallocation Any balance which still remains in the Net Settlement Fund four (4) months after the Reallocation Date (whether any reallocation was necessary), shall be donated to secular nonprofit organization(s) qualifying under Internal Revenue Code 501(c) as designated by Class Counsel COUNSEL FEES AND EXPENSES 61 Class Counsel, Liaison Counsel and KTMC will apply to the Court for an award from the Settlement Fund of attorneys fees not to exceed one-third of the Settlement Fund, and 16

17 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 17 of 26 for reimbursement of actual expenses Representative Reimbursement shall be paid only if ordered by the Court The Released Parties will not take any position on such applications Class Counsel, Liaison Counsel and KTMC shall request payment of attorneys fees or expenses in concert with their request for final approval of the Settlement Should the Court award any Counsel Fees and Expenses, Class Counsel, Liaison Counsel and KTMC shall be permitted to withdraw all awarded fees and expenses from the Settlement Fund upon entry of the Order and Final Judgment If the Settlement is thereafter terminated pursuant to the terms of paragraph 69, in addition to the obligations set forth in paragraphs 69 and 70, Class Counsel, Liaison Counsel and KTMC will return to the Defendant all previously awarded fees or expenses paid, plus interest actually earned, within 7 business days of the termination of the Settlement If, as a result of any appeal or further proceedings on remand, or successful collateral attack, the award of attorneys fees and/or actual expenses is reduced or reversed pursuant to a final court order, Class Counsel, Liaison Counsel and KTMC will return to the Defendant the amount of previously awarded fees and expenses, plus interest actually earned, that are not ultimately approved or sustained on appeal or pursuant to further proceedings on remand, within 7 business days of the appropriate order, decision or judgment The Settlement, however, is not in any way conditioned upon the Court's award of Counsel Fees and Expenses or Representative Reimbursement DISTRIBUTION TO AUTHORIZED CLAIMANTS 62 Class Counsel will apply to the Court for an order approving the Claims Administrator s determinations concerning the acceptance and rejection of the Claims submitted, and approving any fees and expenses not previously applied for (including the fees and expenses 17

18 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 18 of 26 of the Claims Administrator), and if the Effective Date has occurred, directing payment of the Net Settlement Fund to Authorized Claimants 63 The Claims Administrator shall determine each Authorized Claimant s pro rata share of the Net Settlement Fund based upon each Authorized Claimant s Recognized Claim, as defined in the Plan of Allocation that is approved by the Court Each Authorized Claimant shall be allocated a pro rata share of the Net Settlement Fund based on that Authorized Claimant s Recognized Claim compared to the total Recognized Claims of all Authorized Claimants 64 The Plan of Allocation is not a necessary term of this Stipulation and it is not a condition of this Stipulation that any particular Plan of Allocation be approved 65 The Released Parties shall not be entitled to get back any of the settlement monies on or after the Effective Date TERMS OF PRELIMINARY ORDER 66 Promptly after this Stipulation has been fully executed, Class Counsel and Defendant s Counsel shall jointly apply to the Court for entry of a Preliminary Order, substantially in the form attached as Exhibit C TERMS OF ORDER AND FINAL JUDGMENT 67 If the Settlement contemplated by this Stipulation is preliminarily approved by the Court, Class Counsel and Defendant s Counsel shall request that the Court enter an Order and Final Judgment substantially in the form attached as Exhibit D SUPPLEMENTAL AGREEMENT 68 Simultaneously with the execution of the Stipulation, Class Counsel and Defendant s Counsel are executing a Supplemental Agreement setting forth certain conditions under which this Settlement may be terminated by Harmony Gold if Class Members who, as 18

19 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 19 of 26 determined from their valid requests for exclusion, collectively during the Class Period (a) purchased Harmony Gold ADRs (b) purchased call options on Harmony Gold ADRs, or (c) sold put options on Harmony Gold ADRs (collectively, ADR and Option Transactions ), where such combined ADR and Option Transactions involved or implicated (by operation of the option contract) in excess of a certain number of Harmony Gold ADRs, validly exclude themselves from the Class The Supplemental Agreement shall not be filed unless required by the Court or a dispute arises as to its terms In the event of a termination of this Settlement pursuant to the Supplemental Agreement, this Stipulation shall be void, except that the provisions of 71 shall apply Notwithstanding the foregoing, the Stipulation shall not become null and void as a result of the election by Harmony Gold to exercise its option to withdraw from the Stipulation pursuant to the Supplemental Agreement until the conditions set forth in the Supplemental Agreement have been satisfied WAIVER OR TERMINATION 69 Defendant s Counsel or Class Counsel shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so to all other parties hereto within 30 days of: (a) the Court s refusal to enter the Preliminary Order in any material respect without leave to resubmit the Settlement for preliminary approval in a form that the Defendant and Class Counsel, on behalf of the Class Members, agree upon; (b) the Court s refusal to approve this Stipulation or any material part of it; (c) the Court s refusal to enter an order and final judgment approving the Settlement, substantially in the form as attached as Exhibit D; (d) the date upon which the Order and Final Judgment is modified or reversed in any material respect by the Second Circuit Court of Appeals or the United States Supreme Court; (e) Harmony Gold s election to rescind pursuant to the Supplemental Agreement; or (f) Harmony 19

20 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 20 of 26 Gold s refusal to enter into a litigation release with its insurers (who have separate and independent agreements with Harmony Gold regarding their contributions to the Settlement) in a form acceptable to Harmony Gold and its insurers However, any decision with respect to an application for Counsel Fees and Expenses, or with respect to any Plan of Allocation, shall not be considered material to the Settlement or this Stipulation and shall not be grounds for termination 70 Except as otherwise provided by this Stipulation, in the event the Settlement is terminated, then the parties to this Stipulation shall be deemed to have reverted to their respective status in the Action as of May 24, 2011 and, except as otherwise expressly provided, the parties shall proceed in all respects as if this Stipulation and any related orders had not been entered Neither the fact nor the specific terms of the Settlement shall be admissible in any action or proceeding, and any portion of the Settlement Fund and any interest earned on it, less any Taxes, Tax Expenses, Administration Costs and Notice Costs shall be returned to Defendant within 7 business days of the termination of the Settlement At the written request of Defendant s Counsel, the Escrow Agent or its designee shall apply for any tax refund owed to the Settlement Fund and pay the proceeds, after deduction of any Tax Expenses, to Defendant NO ADMISSION OF WRONGDOING 71 This Stipulation, whether or not consummated, and any proceedings taken pursuant to it: (a) shall not be offered or received against the Released Parties as evidence of, or construed to be evidence of, any presumption, concession, or admission by the Released Parties with respect to the truth of any fact alleged in the Action or the validity of any claim that has been or could have been asserted in the Action, or the deficiency of 20

21 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 21 of 26 any defense that has been or could have been asserted in the Action, or of any liability, negligence, fault, or wrongdoing of the Released Parties; (b) shall not be offered or received against the Released Parties as evidence of a presumption, concession or admission of any fault, misrepresentation or omission with respect to any statement or written document approved or made by any of the Released Parties; (c) shall not be offered or received against any of the Released Parties as evidence of a presumption, concession or admission with respect to any liability, negligence, fault or wrongdoing, or in any way referred to for any other reason as against any of the Released Parties, in any other civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation; provided, however, that if this Stipulation is approved by the Court, the Released Parties may refer to it to effectuate the liability protection granted them hereunder; (d) shall not be construed against any of the Released Parties as an admission or concession that the consideration to be given hereunder represents the amount which could be or would have been recovered after trial; and (e) shall not be construed as or received in evidence as an admission, concession or presumption against any of the Class Members that any of their claims are without merit, or that any defenses asserted by Harmony Gold have any merit, or that damages recoverable under the Complaint would not have exceeded the Settlement Fund 21

22 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 22 of 26 OBLIGATIONS OF THE RELEASED PARTIES 72 Harmony Gold shall be obligated to cause to be paid the Cash Settlement Amount into the Settlement Account Harmony Gold and Defendant s Counsel shall also cooperate in the production of information with respect to the identification of Class Members from Harmony Gold s transfer records 73 Except as specifically provided in paragraph 72 or otherwise mandated by law, the Released Parties shall have no obligation or responsibility in connection with providing Notice to the Class, the administration of the Settlement or the Claims process, the investment or administration of the Settlement Fund, the payment of Taxes or Tax Expenses from the Settlement Fund, reviewing or challenging Proofs of Claim submitted to the Claims Administrator, or disbursement of the Net Settlement Fund to Authorized Claimants, and shall have no liability whatsoever to any person, including, but not limited to, the Class Members, in connection with any such function or responsibility Notwithstanding the foregoing, Harmony Gold shall be responsible for providing any and all notifications required under 28 USC 1715 OBJECTION BY THE CLASS REPRESENTATIVE 74 Class Counsel and Harmony Gold acknowledge that the Class Representative has indicated his desire to object to the Settlement Any objection by the Class Representative to any part of the Settlement (including any facts, allegations or arguments put forth in support of the objection) shall not serve as a basis for terminating the Settlement MISCELLANEOUS PROVISIONS 75 All of the exhibits attached to this Stipulation and the Supplemental Agreement referenced herein are incorporated by reference as if fully set forth herein 22

23 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 23 of Consistent with the terms of the Confidentiality Stipulation and Order entered in this Action on July 8, 2010 (the Protective Order ), and in particular with Paragraph 15 thereof, within thirty (30) days after the Effective Date Class Counsel shall (a) return or cause to be returned all Discovery Material (as defined in the Protective Order) produced in this Action by Harmony Gold or (b) provide a certification stating that all such Discovery Material has been destroyed All of the terms of the Protective Order shall otherwise remain in full force and effect 77 If a case is commenced in respect of any Released Party contributing the Cash Settlement Amount under Title 11 of the United States Bankruptcy Code, or a trustee, receiver or conservator is appointed under any similar law, and in the event of the entry of a final order of a court of competent jurisdiction determining the transfer to the Settlement Account or any portion thereof by or on behalf of such Released Party to be a preference, voidable transfer, fraudulent transfer or similar transaction and any portion thereof is required to be returned, and such amount is not promptly deposited to the Settlement Account by others, then, at the election of Class Counsel, the parties shall jointly move the Court to vacate and set aside the releases given and Judgment entered in favor of the Harmony Gold pursuant to this Stipulation, which releases and Judgment shall be void, and the parties shall be restored to their respective positions in the litigation as of May 24, 2011 and any cash amounts in the Settlement Account shall be returned within 7 business days 78 Class Counsel and Harmony Gold agree that, other than disclosures required by law, any public comments from Class Counsel or Harmony Gold regarding this resolution will not substantially deviate from words to the effect that Class Counsel and Harmony Gold have reached a mutually acceptable resolution by way of a mediated settlement that will avoid 23

24 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 24 of 26 protracted and expensive litigation, and that Class Counsel and Harmony Gold are satisfied with this resolution 79 This Stipulation may not be modified or amended, nor may any of its provisions be waived except by a writing signed by all parties or their successors-in-interest, or by order of the Court 80 The headings herein are used for the purpose of convenience only and are not meant to have legal effect 81 The administration and consummation of the Settlement as embodied in this Stipulation shall be under the authority of the Court, and the Court shall retain jurisdiction for the purpose of entering orders to enforce the terms of this Stipulation 82 The waiver by one party of any breach of this Stipulation by any other party shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation 83 This Stipulation and its exhibits, and the Supplemental Agreement constitute the entire agreement among the parties hereto concerning the Settlement of the Action, and no representations, warranties, or inducements have been made by any party hereto concerning this Stipulation and its exhibits and the Supplemental Agreement other than those contained and memorialized in such documents 84 This Stipulation may be executed in one or more counterparts All executed counterparts and each of them shall be deemed to be one and the same instrument 85 This Stipulation shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto 86 The construction, interpretation, operation, effect and validity of this Stipulation, and all documents necessary to effectuate it, shall be governed by the internal laws of the State of 24

25 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 25 of 26 New York without regard to conflicts of laws, except to the extent that Federal law requires that Federal law governs 87 This Stipulation shall not be construed more strictly against one party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the parties, it being recognized that it is the result of arm s length negotiations between the parties and all parties have contributed substantially and materially to the preparation of this Stipulation 88 All counsel and any other person executing this Stipulation and any of the exhibits hereto, or any related settlement documents, warrant and represent that they have the full authority to do so and that they have the authority to take appropriate action required or permitted to be taken pursuant to the Stipulation to effectuate its terms 89 Class Counsel and Defendant s Counsel agree to cooperate fully with one another in seeking Court approval of the Order for Notice and Hearing, the Stipulation and the Settlement, and to promptly agree upon and execute all such other documentation as may be reasonably required to obtain final approval by the District Court of the Settlement 25

26 Case 1:08-cv BSJ-MHD Document 93 Filed 12/05/11 Page 26 of 26

27 Case 1:08-cv BSJ-MHD Document 93-1 Filed 12/05/11 Page 1 of 30 EXHIBIT A

28 Case 1:08-cv BSJ-MHD Document 93-1 Filed 12/05/11 Page 2 of 30 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JAMES J HAYES, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v CASE NO 1:08 Civ 3653-BSJ-MHD HARMONY GOLD MINING COMPANY LIMITED, Defendant NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION AND MOTION FOR ATTORNEYS FEES AND FAIRNESS HEARING IF YOU PURCHASED HARMONY GOLD MINING CO, LTD ( HARMONY GOLD ) AMERICAN DEPOSITORY RECEIPTS (ADRs) OR CALL OPTIONS ON HARMONY GOLD ADRs, OR SOLD PUT OPTIONS ON HARMONY GOLD ADRs, BETWEEN APRIL 25, 2007 AND AUGUST 7, 2007, YOU COULD GET A PAYMENT FROM A CLASS ACTION SETTLEMENT A federal court authorized this Notice This is not a solicitation from a lawyer If approved by the United States District Court for the Southern District of New York (the Court ), the Settlement will provide 9,000,000 (the Cash Settlement Amount ) to pay claims from investors who bought Harmony Gold ADRs or call options on Harmony Gold ADRs, or sold put options on Harmony Gold ADRs, between April 25, 2007 and August 7, 2007, inclusive (the Class Period ) The Settlement resolves a class action lawsuit, titled James J Hayes, et al v Harmony Gold Mining Company Limited, et al and filed in the Court under case number 1:08 Civ 3653-BSJ-MHD (the Action ), alleging that Harmony Gold misled investors about its financial performance, costs, cost allocations and internal controls during the Class Period The Class is represented in the Action by court-appointed Class Counsel, Saxena White, PA ( Class Counsel ) Your legal rights are affected whether you act or do not act Read this Notice carefully YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT Questions? Call toll-free , or visit wwwharmonygoldadrlitigationcom Page 1 of 21

29 Case 1:08-cv BSJ-MHD Document 93-1 Filed 12/05/11 Page 3 of 30 Submit a Claim Form by : Exclude Yourself by : Object by : Go to a Hearing on : Do Nothing The only way to get a payment Get no payment This is the only option that allows you to ever be part of any other lawsuit against Harmony Gold and the Released Parties about the Settled Claims Write to the Court about why you do not like the Settlement Ask to speak in Court about the Settlement Get no payment Give up rights These rights and options and the deadlines to exercise them are explained in this Notice The Court still has to decide whether to approve the Settlement Payments will be made if the Court approves the Settlement and after any appeals are resolved Please be patient Statement of Class Recovery SUMMARY NOTICE Pursuant to the Settlement described here and in the Stipulation and Agreement of Settlement, a Cash Settlement Amount in the amount of 9,000,000 has been established, and will be deposited into the Settlement Fund Class Counsel estimates that there were approximately 198 million Harmony Gold ADRs traded during the Class Period which allegedly may have been damaged Class Counsel estimates that the average recovery under the Settlement is 045 per allegedly damaged ADR, before damages are apportioned to eligible options holders and before deduction of Court-approved costs, expenses and attorneys fees A Class Member s actual recovery will be a proportion of the Net Settlement Fund determined by that Class Member s Recognized Claim as compared to the total Recognized Claims of all Class Members who submit valid Proofs of Claim Statement of Potential Outcome of Case Class Counsel and Defendant s Counsel disagree on both liability and damages, and do not agree on the amount of damages that would be recoverable if the Class were to have prevailed on each claim alleged Harmony Gold denies that it is liable to the Class and denies that the Class has suffered any loss While Class Counsel believes that the Class has meritorious claims, it recognizes that there are significant obstacles to be overcome before there could be any recovery Statement of Attorneys Fees and Costs Sought Class Counsel are moving the Court to award them attorneys fees not to exceed 33⅓ percent of the Settlement Fund, and for expenses actually incurred in connection with the prosecution of the Questions? Call toll-free , or visit wwwharmonygoldadrlitigationcom Page 2 of 21