james j. hayes, et al. v. harmony gold mining company...

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JAMES J. HAYES, Individually and on Behalf of All Others Similarly Situated,

Plaintiff, v. HARMONY GOLD MINING COMPANY LIMITED,

Defendant.

CASE NO. 1:08 Civ. 03653-BSJ-MHD

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.

Case 1:08-cv-03653-BSJ-MHD Document 93 Filed 12/05/11 of 26

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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) 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;

(ii) All persons or entities who sold put options or purchased call options on Harmony ADRs beginning on April 25, 2007, to the


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extent that the option contracts for those same options closed prior to August 6, 2007;

(iii) Any entity in which Harmony had a controlling interest during the Class Period;

(iv) Officers and directors of Harmony during the Class Period and their immediate families;

(v) 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

(vi) 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 P.A.

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.


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17. “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 P.A.

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, 2010.

22. “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.


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24. “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.


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30. “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 U.S.C. § 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.


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32. “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.


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39. “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


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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 e-mail 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 U.S.C. § 1920.

42. 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,


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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


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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 U.S. 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 § 1.468B-1 and the Escrow Agent, as administrator of the

Settlement Fund within the meaning of Treasury Regulation §1.468B-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


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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 § 1.468B-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.


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53. 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


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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.


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56. 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,


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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 $10.00 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 non-

profit 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


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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


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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


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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


20

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


21

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.


22

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 U.S.C. §

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.


23

76. 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


24

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


25

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.


EXHIBIT A

Case 1:08-cv-03653-BSJ-MHD Document 93-1 Filed 12/05/11 Page 1 of 30

Questions? Call toll-free 1-800-408-7518, or visit www.harmonygoldadrlitigation.com

Page 1 of 21




Defendant.


NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION AND MOTION FOR ATTORNEYS’ FEES AND FAIRNESS HEARING

IF YOU PURCHASED HARMONY GOLD MINING CO., LTD. (“HAR MONY 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, P.A. (“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



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Submit a Claim Form by ________: The only way to get a payment.

Exclude Yourself by ________: 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.

Object by __________: Write to the Court about why you do not like the Settlement.

Go to a Hearing on ____________: Ask to speak in Court about the Settlement.

Do Nothing 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.

SUMMARY NOTICE

Statement of Class Recovery

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 19.8 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 $0.45 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



Page 3 of 21

case. The requested attorneys’ fees would amount to an average of $0.15 per allegedly damaged ADR. Class Counsel has expended considerable time and effort in the prosecution of this Action on a contingent fee basis, and have advanced all the expenses of the litigation, in the expectation that if they were successful in obtaining a recovery for the Class they would be paid from such recovery. All Counsel Fees and Expenses must be approved by the Court. The fee requested is within the range of fees awarded to counsel under similar circumstances in litigation of this type.

Reasons for the Settlement

The principal reason for the Settlement is the benefit to be provided to the Class now. This benefit must be compared to the risk that no recovery might be achieved after a contested trial and likely appeals, possibly years into the future, and the risk that South African courts may not recognize or enforce an American securities fraud class action judgment.

For Harmony Gold, which has denied and continues to deny all allegations of wrongdoing or liability whatsoever, the principal reason for the Settlement is to eliminate the expense, risks, and uncertain outcome of the litigation.

Further Information

Further information regarding this case and Settlement may be obtained by contacting Class Counsel: Joseph E. White, III, Saxena White P.A., 2424 N. Federal Highway, Suite 257, Boca Raton, Florida, 33431, telephone 1-800-361-4128. Please do not contact the Court, Harmony Gold, or Defendant’s Counsel with questions about the Settlement.

WHAT THIS NOTICE CONTAINS SUMMARY NOTICE.................................................................................................................2

BASIC INFORMATION ............................................................................................................5

1. Why did I get this Notice package? ...................................................................................5

2. What is this lawsuit about? ................................................................................................5

3. Why is this a class action? .................................................................................................6

4. Why is there a settlement? .................................................................................................6

WHO IS IN THE SETTLEMENT ...............................................................................................6

5. How do I know if I am part of the Settlement? ..................................................................7

6. Are there exceptions to being included? ............................................................................7

7. What if I am still not sure I am included? ..........................................................................8

THE SETTLEMENT BENEFITS: WHAT YOU GET ................................................................8

8. What does the Settlement Provide? ...................................................................................8

9. How much will my payment be? .......................................................................................8



Page 4 of 21

HOW YOU GET A PAYMENT: SUBMITTING A PROOF OF CLAIM FORM .......................9

10. How can I get a payment? .................................................................................................9

11. When would I get my payment? ........................................................................................9

12. What am I giving up to get a payment or stay in the Class? ...............................................9

EXCLUDING YOURSELF FROM THE SETTLEMENT ........................................................ 10

13. How do I get out of the proposed Settlement? ................................................................. 11

14. If I do not exclude myself, can I sue Harmony Gold for the same thing later?.................. 11

15. If I exclude myself, can I get money from the proposed Settlement? ............................... 11

THE LAWYERS REPRESENTING YOU ................................................................................ 11

16. Do I have a lawyer in this case? ...................................................................................... 11

17. How will the lawyers be paid?......................................................................................... 12

OBJECTING TO THE SETTLEMENT .................................................................................... 12

18. How do I tell the Court that I do not like the proposed Settlement? ................................. 12

19. What is the difference between objecting and excluding? ................................................ 13

THE COURT’S SETTLEMENT FAIRNESS HEARING ......................................................... 13

20. When and where will the Court decide whether to approve the proposed Settlement?...... 13

21. Do I have to come to the hearing? ................................................................................... 13

22. May I speak at the hearing? ............................................................................................. 14

IF YOU DO NOTHING ............................................................................................................ 14

23. What happens if I do nothing at all? ................................................................................ 14

GETTING MORE INFORMATION ......................................................................................... 14

24. Are there more details about the proposed Settlement? .................................................... 14

25. How do I get more information?...................................................................................... 14

PLAN OF ALLOCATION OF NET SETTLEMENT FUND AMONG CLASS MEMBERS .... 14

SPECIAL NOTICE TO SECURITIES BROKERS AND OTHER NOMINEES ....................... 20



Page 5 of 21

BASIC INFORMATION

1. Why did I get this Notice package?

You or someone in your family may have purchased 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 Court directed that this Notice be sent to possible Class Members because they have a right to know about the proposed Settlement of this class action lawsuit, and about all of their options, before the Court decides whether to approve the Settlement. If the Court approves the Settlement, and after any appeals are resolved, an administrator appointed by the Court will make the payments that the Settlement allows.

This package explains the lawsuit, the Settlement, Class Members’ legal rights, what benefits are available, who is eligible for them, and how to get them.

The Court in charge of this case is the United States District Court for the Southern District of New York, Judge Barbara Jones presiding, Case No. 08 Civ. 3653-BSJ-MHD.

2. What is this lawsuit about?

Harmony Gold is a gold mining company that is incorporated in the Republic of South Africa.

The Amended Class Action Complaint (the “Complaint”) alleges that, as a result of the shortcomings of Harmony Gold’s legacy accounting system and the impending deadline to comply with the reporting requirements of the Sarbanes-Oxley Act, Harmony Gold determined that it was necessary to replace its old accounting system with a modern Oracle Enterprise Resource Planning (“ERP”) system. The Complaint alleges that the implementation of the ERP system was beset by problems, including uncaptured project costs, corrupted data files, insufficient employee training and the installation of incompatible computer servers. The Complaint alleges that despite knowledge of these problems, Harmony Gold took the ERP system live in January 2007 and then issued a series of misleading public statements regarding its financial and operating results, and internal controls, for the quarter ending March 31, 2007. The Complaint alleges that Harmony Gold’s alleged fraud was revealed to investors on August 6, 2007, when Harmony announced that its financial results for the quarter ending June 30, 2007 were expected to differ significantly from those of the three previous quarters as well as from securities analysts’ expectations, and that certain costs had not been captured in the quarter ending March 31, 2007 due to the newly installed accounting software system.

The Complaint was filed after an extensive investigation by counsel that included, among other things, review and analysis of: (a) documents filed publicly by Harmony Gold with the United States Securities and Exchange Commission (“SEC”); (b) press releases, newspaper articles, and other public statements issued by or concerning Harmony Gold and current or former officers of Harmony Gold; (c) research reports issued by financial analysts concerning Harmony Gold’s



Page 6 of 21

securities and business; (d) other publicly available information and data concerning Harmony Gold and its securities; and (e) interviews of persons involved in the implementation of the ERP system at Harmony Gold.

The Complaint alleges that Class Members purchased Harmony Gold ADRs during the Class Period at artificially inflated prices and were allegedly damaged when the truth about Harmony Gold’s alleged fraud was disclosed and the ADR price dropped. The lawsuit seeks money damages against Harmony Gold for alleged violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b). Harmony Gold denies all allegations of misconduct, and denies having engaged in any wrongdoing whatsoever.

3. Why is this a class action?

In a class action, one or more people called class representatives sue on behalf of people who have similar claims. All of these people are a Class or Class Members. Bringing a case, such as this one, as a class action allows adjudication of many similar claims of persons and entities that might be economically too small to bring in individual cases. One court resolves the issues for all class members, except for those who exclude themselves from the class.

4. Why is there a settlement?

The Court did not decide in favor of the Class or of Harmony Gold. Instead, both sides agreed to a Settlement. That way, they avoid the risks and costs of a trial, and the people affected will get compensation.

Class Counsel think the Settlement is in the best interests of the Class. Beginning in July 2010, the Parties have conducted fact discovery consisting of requests for documents, interrogatories, and commencing the legal process for taking certain third-party depositions in South Africa. Class Counsel received over 190,000 documents in response to its requests for documents, and has conducted an extensive review and analysis of all of the documents produced. Class Counsel has also consulted with experts in the fields of forensic accounting and damages. In January 2011, the Parties commenced a mediation and retained the services of a highly regarded former United States District Judge to serve as Mediator. After several months of mediation, the Mediator recommended a settlement amount to the Parties, which was based on his view of the facts and allegations (as presented to him by the Parties), his experience in trying and mediating class actions such as this lawsuit, his recognition of the logistical complications in obtaining evidence from parties and witnesses located in South Africa, and his assessment of the potential risks and costs of proceeding with the litigation from the perspective of both Harmony Gold and the Class. This recommendation was accepted by Class Counsel and by Harmony Gold, resulting in the proposed Settlement which is the subject of this Notice.

WHO IS IN THE SETTLEMENT

To see if you will get money from this Settlement, you first have to decide if you are a Class Member.



Page 7 of 21

5. How do I know if I am part of the Settlement?

The Court ordered that everyone who fits this description is a Class Member: 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, suffered damages as a result, and are not subject to any of the exclusions set forth in response to Question 6:


(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.

6. Are there exceptions to being included?

Yes. Excluded from the Class are:

(i) 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;

(ii) All persons or entities who sold put options or purchased call options on Harmony ADRs beginning on April 25, 2007, to the extent that the option contracts for those same options closed prior to August 6, 2007;






Page 8 of 21


If one of your mutual funds owns Harmony Gold ADRs, that alone does not make you a Class Member. You are a Class Member only if you bought Harmony Gold ADRs or call options on Harmony Gold ADRs, or sold put options on Harmony Gold ADRs individually. Check your investment records or contact your broker to see if you purchased or otherwise acquired these securities during the Class Period.

If you sold Harmony Gold ADRs or call options on Harmony Gold ADRs, or purchased put options on Harmony Gold ADRs, that alone does not make you a Class Member. You are a Class Member only if you purchased ADRs or call options, or sold put options during the Class Period.

7. What if I am still not sure I am included?

If you are still not sure whether you are included, you can ask for free help. You can call toll-free 1-800-408-7518, or visit www.harmonygoldadrlitigation.com for more information. Or you can fill out and return the Proof of Claim described in Question 10, to see if you qualify.

THE SETTLEMENT BENEFITS: WHAT YOU GET

8. What does the Settlement Provide?

In exchange for the settlement and dismissal of the case and the release of all Settled Claims (defined below), Harmony Gold has agreed to create a $9,000,000 fund to be divided, after the withdrawal of fees and expenses that are approved by the Court, among all Class Members who send in a valid Proof of Claim.

9. How much will my payment be?

If you are an eligible Class Member, your share of the fund will depend on how many Harmony Gold ADRs or call options you bought or put options you sold, the price at which you bought or sold those respective securities, and the date when you bought or sold those securities (or if you held them through the end of the Class Period).

You can calculate your claim in accordance with the formula shown below in the Plan of Allocation. It is unlikely that you will get a payment that covers all of your losses. After all Class Members have sent in their Proofs of Claim, the payment you get will be part of the Net Settlement Fund equal to your claim, divided by the total of everyone’s claim. See the Plan of Allocation for more information on your claim.



Page 9 of 21

HOW YOU GET A PAYMENT: SUBMITTING A PROOF OF CLAIM F ORM

10. How can I get a payment?

To qualify for payment, you must send in a Proof of Claim. A Proof of Claim is attached to this Notice. You may also get a Proof of Claim at www.harmonygoldadrlitigation.com, or by calling toll-free 1-800-408-7518. Read the instructions carefully, fill out the form, include all documents the form asks for, sign it, and mail it postmarked no later than ___________________.

11. When would I get my payment?

The Court will hold a hearing on ________________________, to decide whether to approve the Settlement. If the Court approves the Settlement, there may be subsequent appeals. It is always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps more than a year. It also takes time for all the Proofs of Claim to be processed. Please be patient.

12. What am I giving up by staying in the Class and seeking a payment?

Unless you exclude yourself, you are staying in the Class, and that means that once the Settlement becomes effective you will release all Settled Claims (as defined below) against the Released Parties (as defined below). You will not in the future be able to bring a case asserting any Settled Claims against the Released Parties. If you remain a member of the Class, all of the Court’s orders will apply to you and legally bind you.

“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 U.S.C. § 1001, et seq., which are not



Page 10 of 21

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.

“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.

“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..

EXCLUDING YOURSELF FROM THE SETTLEMENT

If you do not want a payment from this Settlement, but you want to keep any right you may have to sue or continue to sue the Released Parties, on your own, about the Settled Claims, then you must take steps to get out. This is called excluding yourself from the Settlement, or is sometimes referred to as “opting out” of the Settlement. Harmony Gold may withdraw from and terminate the Settlement if more than a certain number of claimants exclude themselves from the Settlement.



Page 11 of 21

13. How do I get out of the proposed Settlement?

You cannot exclude yourself by telephone or by email. To exclude yourself from the Settlement, you must send a signed letter by mail stating that you “request exclusion from the Settlement in the Harmony Gold Mining Co. Litigation, Case No. 08 Civ. 3653.” Your letter should state the dates, prices, and amount of all purchases and sales of ADRs, call options, and put options. Please be sure to include your name, address, telephone number and your signature. If the exclusion request is made by someone other than the Class Member directly, the person or entity submitting the exclusion request must provide documentation evidencing authority to submit the exclusion request on behalf of the Class Member. You must mail your exclusion request postmarked no later than ________________ to:

Harmony Gold Mining Co. ADR Litigation Exclusions c/o The Garden City Group, Inc. P.O. Box 9681 Dublin, OH 43017-4981

If you ask to be excluded, you will not get any Settlement payment, and you cannot object to the Settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) Harmony Gold or the Released Parties in the future.

14. If I do not exclude myself, can I sue Harmony Gold or the other Released Parties for the same thing later?

No. Unless you exclude yourself, you give up any right to sue Harmony Gold or any of the Released Parties for any and all Settled Claims. If you have a pending lawsuit, speak to your lawyer in that case immediately. You must exclude yourself from this Class to continue your own lawsuit. Remember, the exclusion deadline is ____________________.

15. If I exclude myself, can I get money from the proposed Settlement?

No. If you exclude yourself, do not send in a Proof of Claim to ask for any money. But you may sue, continue to sue, or be part of a different lawsuit against Harmony Gold or any of the Released Parties.

THE LAWYERS REPRESENTING YOU

16. Do I have a lawyer in this case?

The Court appointed the law firm Saxena White P.A. to represent all Class Members. This law firm and its lawyers are called Class Counsel. You will not be separately charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.



Page 12 of 21

17. How will the lawyers be paid?

Class Counsel has not received any payment for their services in pursuing the claims against Harmony Gold on behalf of the Class, nor have they been reimbursed for their litigation expenses. Class Counsel will ask the Court to award attorneys’ fees from the Settlement Fund in an amount not to exceed 33⅓ percent of the Settlement Fund, and for reimbursement of their expenses incurred in prosecuting the case. Class Counsel’s motion for attorneys’ fees and reimbursement of litigation expenses will be posted on the website for this case, www.harmonygoldadrlitigation.com, promptly after being filed. The fee requested by Class Counsel would compensate them for their efforts in achieving the Settlement for the benefit of the Class and for the risk in undertaking the Action on a contingency basis. A request of 33⅓ percent may be determined by the Court to be reasonable given: (a) the result achieved; (b) the novelty and difficulty of the claims; (c) the risk that the Class would not prevail; (d) the quality of counsels’ representation; and (e) the fees awarded in similar cases. The Court will determine the amount of the reward.

Class Counsel, without further notice to the Class, may subsequently apply to the Court for fees and expenses incurred in connection with administering and distributing the Settlement proceeds to the members of the Class and any proceedings subsequent to the Fairness Hearing.

OBJECTING TO THE SETTLEMENT

You can tell the Court that you do not agree with the Settlement or some part of it.

18. How do I tell the Court that I do not like the proposed Settlement?

If you are a Class Member, you can object to the Settlement or any of its terms, the Plan of Allocation and/or the application by Class Counsel for an award of fees and expenses. You may give your reasons why you think the Court should not approve any or all of the Settlement terms. The Court will consider your views if you serve a proper objection within the deadline identified, and according to the following procedures.

To object, you must send a signed letter by mail stating that you object to the Settlement in the Harmony Gold Mining Co. Litigation, Case No. 08 Civ. 3653. You cannot object by telephone or email. Be sure to include your name, address, telephone number, your signature, and the reasons why you object to the Settlement. Also be sure to include the dates, prices, and amount of all purchases and sales of ADRs, call options, and put options. Your objection must be sent to the Court, and served on all the following counsel on or before ________________________:

Court Class Counsel Defendant’s Counsel

Clerk of Court U.S. District Court Southern District of New York 500 Pearl Street New York, NY 10022

Joseph E. White, III SAXENA WHITE P.A. 2424 N. Federal Highway Suite 257 Boca Raton, FL 33431

Mark D. Gately HOGAN LOVELLS US LLP 100 International Drive Suite 2000 Baltimore, MD 21202



Page 13 of 21

Harmony Gold Mining Co. Litigation Case No. 08-Civ. 3653-BSJ-MHD

You do not need to go to the Fairness Hearing to have your written objection considered by the Court.

Unless otherwise ordered by the Court, any Class Member who does not object in the manner described in this Notice will be deemed to have waived any objection and will not be able to make any objection to the Settlement in the future.

19. What is the difference between objecting and excluding yourself?

Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be a part of the Class. If you exclude yourself, you have no basis to object because the case no longer affects you.

THE COURT’S SETTLEMENT FAIRNESS HEARING

The Court will hold a hearing to decide whether to approve the Settlement. You may attend and you may ask to speak, but you do not have to.

20. When and where will the Court decide whether to approve the proposed Settlement?

The Court will hold a Fairness Hearing at _____________, on ___________________, at the United States District Court, 500 Pearl Street, New York, NY 10022. At the Fairness Hearing, the Court will decide whether the Settlement is fair, reasonable and adequate. The Court will also consider the Plan of Allocation and the application for attorneys’ fees and reimbursement of expenses. If there are any objections, the Court will consider them. The Court will listen to people who have asked to speak at the hearing. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take.

You should be aware that the Court may change the date and time of the hearing. Thus, if you want to come to the hearing, you should check with the Court before coming to be sure that the date and/or time has not changed.

21. Do I have to come to the hearing?

No. Class Counsel will answer questions that the Court may have. But you are welcome to come at your own expense. If you send an objection, you do not have to come to the Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but your lawyer’s attendance is not necessary. Class Members do not need to appear at the hearing to indicate their approval of the Settlement.



Page 14 of 21

22. May I speak at the hearing?

If you object to the Settlement, you may ask the Court for permission to speak at the Fairness Hearing. To do so, you must include with your objection (see question 18 above) a statement saying that you intend to appear. You cannot speak at the hearing if you excluded yourself from the Class, or if you have not provided written notice of your intention to speak by the deadline identified, and in accordance with the procedures described in Questions 18 and 20.

IF YOU DO NOTHING

23. What happens if I do nothing at all?

If you do nothing, you will get no money from this Settlement and you will be precluded from filing or continuing a lawsuit against any of the Released Parties about any of the Settled Claims, as described in Question 12. To receive a payment, you must submit a valid Proof of Claim.

GETTING MORE INFORMATION

24. Are there more details about the proposed Settlement?

This Notice summarizes the proposed Settlement. More details are in the Stipulation and Agreement of Settlement filed with the Court. You can get a copy of the Stipulation and Agreement of Settlement by writing to Joseph E. White, III, Saxena White P.A., 2424 N. Federal Highway, Suite 257, Boca Raton, FL 33431, or by visiting www.harmonygoldadrlitigation.com.

25. How do I get more information?

For even more detailed information concerning the matters involved in this case, reference is made to the pleadings, the Stipulation and Settlement Agreement, the Orders entered by the Court and the other papers filed in the case, which may be inspected during regular business hours at the Office of the Clerk of the Court, U.S. District Court, 500 Pearl Street, New York, NY 10022. PLEASE DO NOT CONTACT THE COURT OR HARMONY GOLD REGARDING THIS NOTICE OR FOR MORE INFORMATION.

You can also call the Claims Administrator toll-free at 1-800-408-7518; write to Harmony Gold Mining Co. ADR Litigation, c/o The Garden City Group, Inc., P.O. Box 9681, Dublin, OH 43017; or visit www.harmonygoldadrlitigation.com.

PLAN OF ALLOCATION OF NET SETTLEMENT FUND AMONG CLA SS MEMBERS

The Settlement Fund, less all taxes, approved costs, fees and expenses (“Net Settlement Fund”) shall be distributed to Class Members who file valid Proofs of Claim (“Authorized Claimants”). Class Members who do not timely file valid Proofs of Claim will not share in the Settlement proceeds, but will otherwise be bound by the terms of the Settlement. The Court may approve



Page 15 of 21

the Plan of Allocation with or without modifications, or another plan of allocation, without further notice to the Class.

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.”

The proposed Plan of Allocation takes into account the Complaint’s allegations that the price of Harmony Gold’s securities was artificially inflated during the period from April 25, 2007 to August 7, 2007 due to allegedly misleading statements about its financial and operating results, and internal controls.

ADR Purchases

The amount of Recognized Claim from purchases of Harmony Gold ADRs on the New York Stock Exchange or NASDAQ will be calculated as follows:

For Harmony Gold ADRs purchased between April 25, 2007 and August 5, 2007: a) For ADRs sold on or before August 5, 2007, the Recognized Claim is zero; b) For ADRs sold at a loss on August 6, 2007, the Recognized Claim is the lesser of:

1) $2.82 per ADR; or 2) The purchase price paid less the sales proceeds received;

c) For ADRs sold at a loss on August 7, 2007, the Recognized Claim is the lesser of: 1) $4.69 per ADR; or 2) The purchase price paid less the sales proceeds received;

d) For ADRs sold at a loss between August 8, 2007 and November 5, 2007, the Recognized Claim is the lesser of:

1) $4.69 per ADR; or 2) The purchase price paid less the greater of (i) the sales proceeds received, or (ii)

the average closing price per ADR applicable to the date of sale as found in Table 1;

e) For ADRs sold at a loss after November 5, 2007, the Recognized Claim is the lesser of: 1) $4.69 per ADR; or 2) The purchase price paid less the greater of (i) the sales proceeds received, or (ii)

$10.31, the average closing price per ADR in the 90 days following the end of the Class Period.

For Harmony Gold ADRs purchased on August 6, 2007:

a) For ADRs sold on August 6, 2007, the Recognized Claim is zero; b) For ADRs sold at a loss on August 7, 2007, the Recognized Claim is $1.87 per ADR; c) For ADRs sold at a loss between August 8, 2007 and November 5, 2007, the Recognized

Claim is the lesser of: 1) $1.87 per ADR; or 2) The purchase price paid less the greater of (i) the sales proceeds received, or (ii)

the average closing price per ADR applicable to the date of sale as found in Table 1;

d) For ADRs sold at a loss after November 5, 2007, the Recognized Claim is the lesser of:



Page 16 of 21

1) $1.87 per ADR; or 2) The purchase price paid less the greater of (i) the sales proceeds received, or (ii)

$10.31, the average closing price per ADR in the 90 days following the end of the Class Period.

For Harmony Gold ADRs purchased on August 7, 2007, the Recognized Claim is zero.

Call Option Purchases

The amount of Recognized Claim from purchases of call options on Harmony Gold ADRs on the Chicago Board Options Exchange will be calculated as follows:

Harmony Gold ADRs acquired through the exercise of a call option purchased during the Class Period shall be treated as an ADR purchase on the date of call option purchase for the exercise price plus the cost of the call option (no call option calculation needed).

For call options purchased between April 25, 2007 and August 5, 2007: a) The Recognized Claim for any call options that were not owned as of the close of trading

on August 5, 2007 is zero; b) For call options sold on August 6, 2007, the Recognized Claim is the lesser of:

1) $1.53 per call option; or 2) The difference, if a loss, between the purchase price paid and the sales price

received; c) For call options sold or expired unexercised after August 6, 2007, the Recognized Claim

is the lesser of: 1) $2.66 per call option; or 2) The difference, if a loss, between the purchase price paid and the sales price

received;1 For call options purchased on August 6, 2007:

a) For call options sold on August 6, 2007, the Recognized Claim is zero; b) For call options sold on August 7, 2007, the Recognized Claim is $1.13 per call option; c) For call options sold or expired unexercised after August 7, 2007, the Recognized Claim

is the lesser of: 1) $1.13 per call option; or 2) The difference, if a loss, between the purchase price paid and the sales price

received; 1 For call options purchased on August 7, 2007, the Recognized Claim is zero.

Put Option Sales

The amount of Recognized Claim from sales (writing) of put options on Harmony Gold ADRs on the Chicago Board Options Exchange will be calculated as follows:

1 For expired unexercised call options, the net exercise proceeds received are zero.



Page 17 of 21

For put options written during the Class Period that were “put” to the Authorized Claimant (i.e. exercised) the Authorized Claimant’s “Recognized Claim” shall be calculated as a purchase of Harmony Gold ADRs on the date of the sale of the put option, and the purchase price paid shall be the strike price less the proceeds received on the sale of the put option (no put option calculation needed).

For put options sold (written) between April 25, 2007 and August 5, 2007: a) The Recognized Claim for any put options that were not the obligation of the Claimant as

of the close of trading on August 5, 2007 is zero; b) For put options repurchased on August 6, 2007, the Recognized Claim is the lesser of:

1) $1.73 per put option; or 2) The difference, if a loss, between the repurchase price and the amount received

for writing the put options; c) For put options repurchased after August 6, 2007, the Recognized Claim is the lesser of:


for writing the put options;2 For put options sold (written) on August 6, 2007:

a) For put options repurchased on August 6, 2007, the Recognized Claim is zero; b) For put options repurchased on August 7, 2007, the Recognized Claim is $0.82 per put

option; c) For put options repurchased after August 7, 2007, the Recognized Claim is the lesser of:


for writing the put options;2 For put options sold (written) on August 7, 2007, the Recognized Claim is zero.

Table 1

Date Closing Price[1]

Average Price

Date Closing Price1

Average Price

8/8/2007 $10.06 $10.06 9/22/2007 N/A 9.93

8/9/2007 9.65 9.86 9/23/2007 N/A 9.93

8/10/2007 9.87 9.86 9/24/2007 12.15 10

8/11/2007 N/A 9.86 9/25/2007 12.18 10.06 8/12/2007 N/A 9.86 9/26/2007 12.09 10.12

8/13/2007 9.95 9.88 9/27/2007 12.11 10.18

8/14/2007 9.43 9.79 9/28/2007 11.91 10.22

8/15/2007 9.44 9.73 9/29/2007 N/A 10.22

8/16/2007 8.82 9.6 9/30/2007 N/A 10.22

2 For expired unexercised put options, the Recognized Claim is zero.



Page 18 of 21

8/17/2007 8.98 9.53 10/1/2007 11.9 10.27

8/18/2007 N/A 9.53 10/2/2007 11.07 10.29

8/19/2007 N/A 9.53 10/3/2007 10.46 10.29 8/20/2007 8.97 9.46 10/4/2007 10.76 10.3

8/21/2007 8.77 9.39 10/5/2007 10.79 10.32

8/22/2007 8.94 9.35 10/6/2007 N/A 10.32

8/23/2007 8.48 9.28 10/7/2007 N/A 10.32

8/24/2007 9.01 9.26 10/8/2007 10.39 10.32 8/25/2007 N/A 9.26 10/9/2007 10.31 10.32

8/26/2007 N/A 9.26 10/10/2007 10.19 10.31

8/27/2007 8.96 9.24 10/11/2007 10.16 10.31

8/28/2007 8.96 9.22 10/12/2007 10.12 10.31

8/29/2007 9.14 9.21 10/13/2007 N/A 10.31 8/30/2007 9.04 9.2 10/14/2007 N/A 10.31

8/31/2007 8.95 9.19 10/15/2007 9.91 10.3

9/1/2007 N/A 9.19 10/16/2007 9.75 10.29

9/2/2007 N/A 9.19 10/17/2007 9.62 10.27

9/3/2007 N/A 9.19 10/18/2007 9.65 10.26 9/4/2007 9.5 9.21 10/19/2007 9.58 10.25

9/5/2007 9.33 9.21 10/20/2007 N/A 10.25

9/6/2007 9.86 9.24 10/21/2007 N/A 10.25

9/7/2007 10.19 9.29 10/22/2007 9.63 10.24 9/8/2007 N/A 9.29 10/23/2007 10 10.23

9/9/2007 N/A 9.29 10/24/2007 10.06 10.23

9/10/2007 10.43 9.34 10/25/2007 10.25 10.23

9/11/2007 10.66 9.39 10/26/2007 10.7 10.24

9/12/2007 11.05 9.46 10/27/2007 N/A 10.24 9/13/2007 11.13 9.52 10/28/2007 N/A 10.24

9/14/2007 11.21 9.58 10/29/2007 10.75 10.25

9/15/2007 N/A 9.58 10/30/2007 10.8 10.26

9/16/2007 N/A 9.58 10/31/2007 11.2 10.27

9/17/2007 11.13 9.64 11/1/2007 10.8 10.28 9/18/2007 11.61 9.71 11/2/2007 11.18 10.3

9/19/2007 11.78 9.78 11/3/2007 N/A 10.3

9/20/2007 12.22 9.86 11/4/2007 N/A 10.3

9/21/2007 12.31 9.93 11/5/2007 11.05 10.31 Source: Bloomberg, L.P.



Page 19 of 21

[1] N/A’s represent non-trading days, weekends and holidays, in which case no pricing data is available and thus is not included in the average calculation.

To the extent a Claimant had a gain from his, her or its overall transactions in Harmony Gold ADRs and/or options during the Class Period, the value of the Recognized Claim will be zero. To the extent that a Claimant suffered an overall loss on his, her or its overall transactions in Harmony Gold ADRs and/or options during the Class Period, but that loss was less than the Recognized Claim calculated above, then the Recognized Claim shall be limited to the amount of the actual loss.

For purposes of determining whether a Claimant had a gain from his, her or its overall transactions in Harmony Gold ADRs and/or options during the Class Period or suffered a loss, the Claims Administrator will:

(a) For Harmony Gold ADRs: (i) total the amount paid for all ADRs purchased during the Class Period by the Claimant (the “Total ADR Purchase Amount”); (ii) match any sales of ADRs during the Class Period first against the Claimant’s opening position in the ADRs (the proceeds of those sales will not be considered for purposes of calculating gains or losses); (iii) total the amount received for sales of the remaining ADRs sold during the Class Period (the “ADR Sales Proceeds”); (iv) ascribe a $10.31 per ADR holding value for the number of shares of ADRs purchased during the Class Period and still held at the end of the Class Period (“ADR Holding Value”). The difference between (i) the Total ADR Purchase Amount and the (ii) sum of the ADR Sales Proceeds and ADR Holding Value will be deemed a Claimant’s gain or loss on his, her or its overall transactions in Harmony Gold ADRs during the Class Period.

(b) For Harmony Gold call options: (i) total the amount paid for all call options purchased during the Class Period by the Claimant (the “Total Call Option Purchase Amount”); (ii) match any sales of call options during the Class Period first against the Claimant’s opening position in call options (the proceeds of those sales will not be considered for purposes of calculating gains or losses); (iii) total the amount received for sales of the remaining call options whenever sold (including after the Class Period) (the “Call Option Sales Proceeds”). The difference between (i) the Total Call Option Purchase Amount and the (ii) the Call Option Sales Proceeds will be deemed a Claimant’s gain or loss on his, her or its overall transactions in Harmony Gold call options.

(c) For Harmony Gold put options sold (written) during the Class Period: (i) total the amount received on the sale of all put options sold during the Class Period by the claimant (the “Total Put Option Sales Proceeds”); (ii) match any repurchases of put options whenever repurchased to cover the put options sold during the Class Period (“Total Put Option Cost”). The difference between the Total Put Option Cost and the Total Put Option Sales Proceeds will be deemed a Claimant’s gain or loss on his, her or its overall transactions in Harmony Gold Put Options.



Page 20 of 21

(d) If the overall total of the gains and losses from the Claimant’s transactions in Harmony Gold ADRs, call options and put options is a gain, then the Claimant shall have a Recognized Claim of zero. If the overall total of the gains and losses from the Claimant’s transactions in Harmony Gold ADRs, call options and put options is a loss, the amount of such loss shall, if lower than the Recognized Claim amount otherwise calculated, be the limit of such Claimant’s Recognized Claim amount.

Each Authorized Claimant shall be allocated a pro rata share of the Net Settlement Fund based on his, her or its Recognized Claim as compared to the total Recognized Claims of all Authorized Claimants.

Class Members who do not submit valid Proofs of Claim will not share in the Settlement proceeds. Class Members who do not either submit a request for exclusion or submit a valid Proof of Claim will nevertheless be bound by the Settlement and the Order and Final Judgment of the Court dismissing this case.

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 $10.00 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 non-profit organization(s) qualifying under Internal Revenue Code § 501(c) as designated by Class Counsel.

Harmony Gold, its counsel, Class Counsel, and all other Released Parties shall have no responsibility or liability whatsoever for the investment or distribution of the Settlement Fund, the Plan of Allocation, or the determination, administration, calculation, or payment of any Proof of Claim or non-performance of the Claims Administrator, the payment or withholding of taxes owed by the Settlement Fund, or any losses incurred in connection therewith.

SPECIAL NOTICE TO SECURITIES BROKERS AND OTHER NOMI NEES

If you purchased Harmony Gold ADRs or call options on Harmony Gold ADRs, or sold put options on Harmony Gold ADRs during the period from April 25, 2007 to August 7, 2007, inclusive, for the beneficial interest of a person or organization other than yourself, the Court has directed that, WITHIN 7 DAYS OF YOUR RECEIPT OF THIS NOTICE, you either (a) provide to the Claims Administrator the name and last known address of each person or organization for whom or which you transacted in such securities during such time period or (b) request additional copies of this Notice and the Proof of Claim form, which will be provided to you free of charge, and within 7 days mail the Notice and Proof of Claim form directly to the beneficial owners of the securities referred to herein. If you choose to follow alternative procedure (b), the Court has directed that, upon such mailing, you send a statement to the Claims Administrator confirming that the mailing was made as directed. You are entitled to reimbursement from the Settlement Fund of your reasonable expenses actually incurred in connection with the foregoing,



Page 21 of 21

including reimbursement of postage expense and the cost of ascertaining the names and addresses of beneficial owners. Those expenses will be paid upon request and submission of appropriate supporting documentation. All communications concerning the foregoing should be addressed to the Claims Administrator:

Harmony Gold Mining Co. ADR Litigation c/o The Garden City Group, Inc. P.O. Box 9681 Dublin, OH 43017-4981

Dated: New York, New York

, 2011

By Order of the Court CLERK OF THE COURT


Harmony Gold Mining Co. ADR Litigationc/o The Garden City Group, Inc.

PO Box 9681Dublin, OH 43017-4981

1-800-408-7518

HMY*P-HMY$F-POC/1*

Claim Number: Control Number:

Must be PostmarkedNo Later Than

__________, 2011

PROOF OF CLAIM FORMYOU MUST COMPLETE THIS PROOF OF CLAIM FORM

AND IT MUST BE POSTMARKED NO LATER THAN __________, 2011

TABLE OF CONTENTSPART I - CLAIMANT IDENTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2PART II - SCHEDULE OF TRANSACTIONS IN HARMONY GOLD ADRS . . . . . . . . . . . . . . . . . . . . . . . . . .3PART III - OPTIONS CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4-5PART IV - RELEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6PART V - CERTIFICATION & SIGNATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

PAGE #

QUESTIONS? PLEASE CALL 1-800-408-7518 OR VISIT WWW.HARMONYGOLDADRLITIGATION.COM


*P-HMY$F-POC/2*2

PART I - CLAIMANT IDENTIFICATION

Claimant or Representative Contact Information:The Claims Administrator will use this information for all communications relevant to this Claim (including the check, if eligiblefor payment). If this information changes, you MUST notify the Claims Administrator in writing at the address above.

Name of the Person you would like the Claims Administrator to Contact Regarding This Claim (if different from theClaimant Name(s) listed above):

Claimant Name(s) (as you would like the name(s) to appear on the check, if eligible for payment):

Street Address:

City:

NOTICE REGARDING ELECTRONIC FILES: Certain claimants with large numbers of transactions may request to, or may berequested to, submit information regarding their transactions in electronic files. To obtain the mandatory electronic filingrequirements and file layout, you may visit the website at www.harmonygoldadrlitigation.com or you may e-mail the ClaimsAdministrator at [email protected]. Any file not in accordance with the required electronic filing format will be subject torejection. No electronic files will be considered to have been properly submitted unless the Claims Administrator issues an emailafter processing your file with your claim numbers and respective account information. Do not assume that your file has beenreceived or processed until you receive this email. If you do not receive such an email within 10 days of your submission, youshould contact the electronic filing department at [email protected] to inquire about your file and confirm it was received andacceptable.NOTE: Separate Proofs of Claim should be submitted for each separate legal entity (e.g., a claim from Joint Owners should notinclude separate transactions of just one of the Joint Owners, an Individual should not combine his or her IRAtransactions with transactions made solely in the Individual’s name). Conversely, a single Proof of Claim should be submitted onbehalf of one legal entity including all transactions made by that entity no matter how many separate accounts that entity has(e.g., a Corporation with multiple brokerage accounts should include all transactions in Harmony Gold ADRs or options) duringthe Class Period on one Proof of Claim, no matter how many accounts the transactions were made in.

Last 4 digits of Claimant Social Security Number/Taxpayer ID Number:

State and Zip Code:

Country (Other than U.S.):

Email Address:

Daytime Telephone Number: ( ) - Evening Telephone Number: ( ) -

(Email address is not required, but if you provide it you authorize the Claims Administrator to use it in providing you with information relevant to this claim.)

Account Number: (not required)


Number ofShares of

Common StockSold

Sale PricePer Share of

Common Stock

Trade Date(s) of Sale(Exercise or AssignmentDate if obtained due to an

option transaction)(List Chronologically)

Month/Day/Year

Total AmountReceived for Shares

(excluding commissionand other expenses)

/ /

/ /

/ /

/ /

*P-HMY$F-POC/3*3

Trade Date(s) of Purchase(Exercise or AssignmentDate if obtained due to an

option transaction)(List Chronologically)

Month/Day/Year

Total AmountPaid for Shares

(excluding commissionand other expenses)

/ /

/ /

/ /

/ /

$

$

$

$

.

.

.

.

PART II - SCHEDULE OF TRANSACTIONS IN HARMONY GOLD ADRS

B. PURCHASES: List purchases of Harmony Gold Mining Co. ADRs between April 25, 2007, and August 7, 2007,inclusive (Must be documented).

A. BEGINNING HOLDINGS: Shares of Harmony Gold Mining Co. ADRs held at the close oftrading on April 24, 2007:

IF YOU NEED ADDITIONAL SPACE TO LIST YOUR TRANSACTIONS YOU MUSTPHOTOCOPY THIS PAGE AND CHECK THIS BOX �

IF YOU DO NOT CHECK THIS BOX THESE ADDITIONAL PAGES WILL NOT BE REVIEWED

D. SALES: List sales of Harmony Gold Mining Co. ADRs between April 25, 2007, and the date the claim form is completed, inclusive. Please list in chronological order (Must be documented):

E. UNSOLD HOLDINGS: Number of shares of Harmony Gold Mining Co. ADRs held as of the date of this filing (Must be documented):

C. PURCHASES: Number of Harmony Gold ADRs purchased between August 8, 2007 and the date the claim form is completed (If none, write “zero” or “0”)

Enter "E" ifExercised or "A"

if Assigned

Number ofShares of

Common StockPurchased

Purchase Price Per Share of

Common Stock

$

$.

.$

$.

.

$

$.

.$

$.

.

$

$

$

$

.

.

.

.

Complete only if purchasewas result of option

exercise or assignment

Enter "E" ifExercised or "A"

if Assigned

Complete only if salewas result of option

exercise or assignment


*P-HMY$F-POC/4*4



A. PURCHASES: I made the following purchases of call option contracts on Harmony Gold ADRs between April 25, 1999 and August 7, 2007, inclusive (must be documented):

Number ofContracts

Purchase Price Per Contract

B. SALES: I made the following sales of the above call option contracts on Harmony Gold ADRs which calloption contracts were purchased between April 25, 2007 and August 7, 2007 (include all such sales nomatter when they occurred) (must be documented):

Date of Purchase (List Chronologically)(Month/Day/Year)

Amount Paid (including

commissions, taxes,and fees)

Number ofContracts

Sale Price Per Contract

/ /$

Date of Sale (List Chronologically)(Month/Day/Year)

$

Amount Received (net of commissions,

taxes, and fees)

$$

Insert an “E”if Exercised or

an “X” if Expired

Exercise Date(Month/Day/Year)

Expiration Month andYear & Strike Price

of Options(ie. May 2002/$40)

Expiration Month and Year &Strike Price of Options(ie. May 2002/$40)

$

$$$

.

.

.

.

/ // // /

/ // // // /

/ // // // /

$

$$$

.

.

.

.

$

$$$

.

.

.

.

PART III - TRANSACTIONS IN CALL OPTIONS ON HARMONY GOLD ADRsYOU MUST SUBMIT DOCUMENTATION SUPPORTING THE INFORMATION BELOW

/ // /

/ // /

$$

.

.

$$

.

.

$$$

$..

/ // /


*P-HMY$F-POC/5*5



A. SALES (WRITING) OF PUT OPTIONS: I wrote (sold) put option contracts on Harmony Gold ADRs between April 25, 2007 and August 7, 2007, inclusive, as follows (must be documented):

Number ofContracts

Sale Price Per Contract

B. COVERING TRANSACTIONS (REPURCHASES): I made the following repurchases of the above putoption contracts on Harmony Gold ADRs that I wrote (sold) before August 7, 2007 (include all repurchases no matter when they occurred) (must be documented):

Date of Writing(Sale) (List

Chronologically)(Month/Day/Year)

Amount Received (net of commissions,

taxes, and fees)

Number ofContracts

Price Paid Per

Contract

/ /$

Date of Repurchase (List Chronologically)(Month/Day/Year)

$

Aggregate Cost (including commissions,

taxes, and fees)

$$

Insert an “A”if Assigned or

an “X” ifExpired

Assign Date(Month/Day/Year)

Expiration Month andYear & Strike Price

of Options(ie. May 2002/$40)

Expiration Month and Year &Strike Price of Options(ie. May 2002/$40)

$

$$$

.

.

.

.

/ // // /

/ // // // /

/ // // // /

PART III - TRANSACTIONS IN PUT OPTIONS ON HARMONY GOLD ADRsYOU MUST SUBMIT DOCUMENTATION SUPPORTING THE INFORMATION BELOW

/ // /

/ // /

$$$

$..

/ // /

$

$$$

.

.

.

.$$

.

.

$

$$$

.

.

.

.$$

.

.


PART IV - RELEASE*P-HMY$F-POC/6*

I (we) understand and acknowledge that, without further action by anyone, on and after the Effective Date, I (we) on behalfof myself (ourselves) and each of my (our) heirs, executors, administrators, successors, and assigns shall be deemed tohave released and forever discharged each and every Settled Claim as against each and every one of the ReleasedParties, and shall forever be barred and enjoined from commencing, instituting or maintaining any of the Settled Claimsagainst any of the Released Parties. “Effective Date” means the first day after the Court enters the Order and Final Judgment and either (i) the expiration of anytime for review or appeal of the Order and Final Judgment, or (ii) if any appeal is filed and not dismissed, the Order andFinal Judgment is upheld on appeal in all material respects and is no longer subject to review upon appeal or review bywrit 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 Planof Allocation shall not delay the Effective Date, and any modification as a result of such appeal shall not be considered amodification of a material term. “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 anyother individual or entity in which Harmony Gold has a controlling interest or which is affiliated with Harmony Gold or anyof the parties listed above.“Settled Claims” means any and all claims, debts, demands, rights, causes of action or liabilities, of every nature anddescription 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 beenor could have been asserted in any forum by the Class Members or any of them, or the successors or assigns of any ofthem, 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 beenasserted in the Action, including without limitation, claims for negligence, gross negligence, breach of duty of care, breachof 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 ClassPeriod, 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, ifany, against the Released Parties arising under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001,et seq., which are not common to all Class Members. Additionally, “Settled Claims” does not include claims relating to theenforcement of the Settlement or the terms of this Stipulation. “Unknown Claims” means any and all Settled Claims that any Class Member does not know or suspect to exist in his, heror its favor at the time of the release of the Released Parties, and any of Settled Defendant’s Claims that Defendant doesnot 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) withrespect to the Settlement. With respect to any and all Settled Claims and Settled Defendant’s Claims, the Released Partiesand 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 expresslywaived, any and all provisions, rights and benefits conferred by any law of any state or territory of the United States, orprinciple 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 orher favor at the time of executing the release, which if known by him or her must have materially affectedhis or her settlement with the debtor.

Each Class Member’s and the Released Parties’ successors and assigns and any persons or entities claiming through oron behalf of them shall, by operation of law, be deemed to have acknowledged, that the inclusion of “Unknown Claims” inthe definition of Settled Claims and Settled Defendant’s Claims was separately bargained for and was a material elementof the Settlement and Stipulation.

6Case 1:08-cv-03653-BSJ-MHD Document 93-1 Filed 12/05/11 Page 28 of 30

The undersigned represents and certifies UNDER PENALTY OF PERJURY that:1. I am (we are) not any entity in which Harmony had a controlling interest during the Class Period; an officer or

director of Harmony during the Class Period or a member of their immediate families; or a legal representative, heir, successor, or assign 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.

2. If signing this Proof of Claim Form on behalf of a corporation, partnership or other business entity, I have the legal authority to act on its behalf and execute this Proof of Claim Form.

3. I agree to submit to the jurisdiction of the United States District Court for the Southern District of New York for all purposes relating to this claim registration.

I (We) declare under penalty of perjury under the laws of the United States of America that all of the foregoing informationsupplied on this Proof of Claim Form by the undersigned is true and correct.

Executed this ______ day of __________________ in ____________________________________________________.(Month/Year) (City) (State/Country)

______________________________________ ______________________________________(Sign your name here) (Joint owner sign your name here)

______________________________________ ______________________________________(Type or print your name here) (Joint owner type or print your name here)

______________________________________(Capacity of persons signing, e.g., Beneficial

*P-HMY$F-POC/7*7

PART V - CERTIFICATION & SIGNATURE


REMINDER CHECKLIST1. Please sign the Certification & Signature section of the Proof of Claim form.2. If this claim is made on behalf of joint claimants, then both must sign.3. Please remember to attach supporting documents.4. DO NOT SEND ORIGINALS OF ANY SUPPORTING DOCUMENTS.5. Keep a copy of your Proof of Claim form and all documentation submitted for

your records.6. The Claims Administrator will acknowledge receipt of your Proof of Claim form by

mail, within 60 days. Your claim is not deemed filed until you receive an acknowledgment postcard. If you do not receive an acknowledgment postcard within 60 days, please call the Claims Administrator toll free at (800) 408-7518.

7. If you move, please send us your new address.8. Do not use highlighter on the Proof of Claim form or supporting

documentation.

*P-HMY$F-POC/8*8Case 1:08-cv-03653-BSJ-MHD Document 93-1 Filed 12/05/11 Page 30 of 30

EXHIBIT B


LEGAL NOTICE

IF YOU PURCHASED HARMONY GOLD MINING CO., LTD. (“HAR MONY 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 Settlement has been proposed in James J. Hayes v. Harmony Gold Mining Co., Ltd., Case No. 08 Civ. 3653, a class action lawsuit about the price of Harmony Gold ADRs, call options and put options currently pending in the United States District Court for the Southern District of New York (the “Court”). The Settlement will provide $9 million to pay claims to Harmony Gold investors who have transactions in these securities during the period from April 25, 2007 to August 7, 2007. If you qualify, you may send in a claim form to get benefits, or you can exclude yourself from the Settlement, or object to it. The Court authorized this Notice. Before any money is paid, the Court will hold a hearing to decide whether to approve the Settlement.

Who’s Included? You are a Class Member and could get benefits if you bought Harmony Gold ADRs or call options, or sold put options, during the period from April 25, 2007 to August 7, 2007, inclusive. You are a Class Member only if you have eligible transactions in these securities individually, not simply through a mutual fund. Contact your broker to see if you had transactions in these securities. If you are not sure if you are included, you can get more information, including a more detailed Notice, at www.harmonygoldadrlitigation.com, or by calling toll-free 1-800-408-7518.

What’s this About?

The lawsuit alleges that Harmony Gold misled investors by issuing a series of public statements falsely reporting its financial and operating results and internal controls, and seeks money damages for violations of the federal securities laws. Harmony Gold has denied and continues to deny all allegations of wrongdoing or liability whatsoever. The two sides also disagree on how much money could have been won if the investors had won at trial. The Court did not decide which side is right. But both sides agreed to the Settlement to resolve the case.

What does the Settlement Provide? Harmony Gold has created a fund of $9 million to be divided among all Class Members who send in valid Proofs of Claim, in exchange for the settlement of this case and the release by Class Members of these and other related claims. A Stipulation and Agreement of Settlement, available at the website below, describes all of the details about the proposed Settlement. Your share of the fund will depend on the number of valid Proofs of Claim that Class Members submit, the number of your securities transactions, and when they occurred. Generally, if you bought and retained more ADRs and call options and sold more put options during the identified period, you will get more money. This is further explained in the detailed Notice.


If every eligible Class Member sends in a valid Proof of Claim, the average claim will be $0.45 for each ADR before expenses and other Court-ordered deductions, as described in the detailed Notice. The number of claimants who send in claims varies widely from case to case. If less than 100% of the Class Members send in a Proof of Claim, you could get more money.

How do you Ask for a Payment? A detailed Notice and Proof of Claim package contains everything you need. Just call or visit the website below to get one. To qualify for a payment, you must send in a Proof of Claim. PROOFS OF CLAIM ARE DUE BY __________________________.

What are your Other Options? If you do not want to be legally bound by the Settlement, you must exclude yourself by ______________, or you will not be able to

sue (or continue to sue) Harmony Gold about the legal claims in this case. If you exclude yourself, you cannot get money from this Settlement. If you stay in the Settlement, you may object to it by _________________. The detailed Notice explains how to exclude yourself or object. The Court will hold a hearing in this case on ______________________ to consider whether to approve the Settlement and a request by the lawyers representing all Class Members (Saxena White P.A.), for up to 33⅓ percent in attorneys’ fees, plus actual expenses, for litigating the case and negotiating the Settlement. You may ask to appear at the hearing, but you don’t have to. For more information, call toll-free 1-800-408-7518, visit www.harmonygoldadrlitigation.com, or write to Harmony Gold Mining Co. ADR Litigation c/o The Garden City Group, Inc. P.O. Box 9681 Dublin, OH 43017-4981

1-800-408-7518 www.harmonygoldadrlitigation.com


EXHIBIT C


1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK



Defendant.


ORDER PRELIMINARILY APPROVING SETTLEMENT

AND PROVIDING FOR NOTICE OF SETTLEMENT

The Parties having made an application pursuant to Rule 23(e) of the Federal Rules of

Civil Procedure for an Order preliminarily approving the Settlement of this Action, and the

fairness of the terms and conditions of the Stipulation of Settlement (the “Stipulation”), dated

July 18, 2011; and

The Court, having read and considered the Stipulation, and the Exhibits attached to it,

with all capitalized terms contained in this Order having the same definitions as set forth in the

Stipulation, and any inconsistencies between the Stipulation and this Order being controlled by

the language of the Stipulation:

IT IS HEREBY ORDERED :

1. The Court preliminarily approves: (1) the Settlement of the Class Action and the

terms set forth in the Stipulation, and (2) the proposed Plan of Allocation described in the Notice,

as being fair, adequate and reasonable, subject to the right of any Class Member to challenge the

fairness, reasonableness, or adequacy of the Settlement, the proposed Plan of Allocation, or the


2

fairness and adequacy of their representation by Class Counsel, and to show cause, if any exists,

why a final judgment dismissing the Class Action based on the Stipulation should not be ordered

after due and adequate notice to the Class has been given in conformity with this Order.

2. A hearing in this Action (the “Fairness Hearing”) will be held before this Court on

__________________________________________________________________, at

_______________ ___.m., in Courtroom 17C, United States District Court, 500 Pearl Street,

New York, New York 10007. The purpose of the Fairness Hearing is to determine:

a. whether the terms of the Settlement described in the Stipulation are fair,

reasonable and adequate, and should be approved by the Court;

b. whether the proposed Plan of Allocation is fair and reasonable, and should

be approved by the Court;

c. whether the proposed Order and Final Judgment should be entered and the

Action should be dismissed, on the merits and with prejudice;

d. whether the application for Counsel Fees and Expenses should be

approved;

e. other such matters as the Court may deem appropriate.

3. The Court may approve the Settlement, with such modifications as may be agreed

to on the one hand by Class Counsel, on behalf of the Class, and on the other hand by Defendant,

if appropriate, without further notice to the Class. The Court further reserves the right to enter its

Order and Final Judgment approving the Settlement Agreement and dismissing the Action on the

merits and with prejudice regardless of whether it has approved the Plan of Allocation or

awarded Counsel Fees and Expenses.


3

4. Not later than 14 days after the Court’s entry of this Order (the “Notice Date”),

Class Counsel shall cause a copy of the Notice of Proposed Settlement of Class Action and

Motion for Attorneys’ Fees and Fairness Hearing (the “Notice”), substantially in the form

attached to the Stipulation as Exhibit A, and a Proof of Claim and Release form (the “Proof of

Claim”), substantially in the form contained in the Notice, to be mailed by first class mail,

postage prepaid, to each person or entity whose identity and address can reasonably be

determined or that has been determined from the records of Harmony Gold, its agents or other

entities as a person or entity who purchased Harmony Gold ADRs or call options, or sold

Harmony Gold put options, between April 25, 2007 and August 7, 2007, inclusive. Prior to the

Notice Date, Class Counsel will also cause a Summary Notice, substantially in the form attached

to the Stipulation as Exhibit B, to be published once in Investor’s Business Daily.

5. The Court approves Class Counsel’s choice of the Garden City Group, Inc. as

Claims Administrator to mail the Notice to the Class, publish the Summary Notice, identify and

to locate Class Members, and administer claims. At or before the Fairness Hearing, Class

Counsel shall file proof of such mailings and publication. The expenses of such notices and

publication shall be paid in accordance with the Stipulation.

6. The Court approves the form and content of the: (i) Notice; (ii) Proof of Claim;

and (iii) Summary Notice and finds that the mailing, distribution, and publication of such notices

substantially in the manner and form set forth in Paragraph 4 of this Order meets the

requirements of Rule 23 of the Federal Rules of Civil Procedure and due process and other

applicable law in the United States, and is the best notice practicable under the circumstances

and will constitute due and sufficient notice to all persons entitled to receive notice.


4

7. As provided in the Notice, nominees who purchased Harmony Gold ADRs or call

options, or sold Harmony Gold put options during the Class Period, beneficially owned by

another person or entity shall send the Notice and Proof of Claim to such persons or entities

within 7 days after receipt thereof, or send a list of names and addresses of such persons or

entities to the Claims Administrator within 7 days of receipt thereof, in which event the Claims

Administrator shall promptly mail the Notice and Proof of Claim to such persons or entities.

Class Counsel or its designee shall furnish, upon the request of any nominee, copies of the

Notice and Proof of Claim for mailing to beneficial owners of Harmony Gold securities. In

those cases where a nominee elects to provide a list of names and addresses of persons for whom

that nominee transacted in Harmony Gold securities during the Class Period, Class Counsel or its

designee shall, upon receipt of the list, cause to be mailed a copy of the Notice and Proof of

Claim to each person on it. Class Counsel shall offer to reimburse banks, brokerage houses, or

other nominees for their reasonable out-of-pocket expenses incurred in providing notice to

beneficial owners who are Class Members, which expenses would not have been incurred but for

the sending of such notice, subject to further order of the Court with respect to any dispute

concerning such compensation, and may be reimbursed pursuant to the Stipulation, subject to

review by the Court.

8. A Class Member who files a request for exclusion in the manner set forth in the

Notice no later than 21 days prior to the Fairness Hearing will be excluded from the Class by the

Court and will be free to pursue on his own behalf and at his own expense any rights he may

have, but will not participate in the Settlement. Any Class Member who has not properly or

timely filed a request for exclusion will be included in the Class and upon any approval of the


5

Settlement will be bound by such Settlement and any final judgment rendered in connection with

it.

9. Any Class Member who has not requested exclusion from the Class may appear

personally, or by counsel of his own choice and at his own expense, at the Fairness Hearing to

show cause why: (a) the Settlement and Plan of Allocation should or should not be approved as

fair, reasonable, and adequate; (b) a final judgment should or should not be entered; or (c)

counsel should or should not be awarded Counsel Fees and Expenses as requested. Class

Members desiring to be heard to contest the approval of any of these matters that may be

considered by the Court at the Fairness Hearing shall, no later than 21 days prior to the Fairness

Hearing, serve by first-class mail proof of membership in the Class and written objections and

copies of any supporting papers and briefs upon Class Counsel, Defendant’s Counsel, and the

Clerk of Court:

Court Class Counsel Defendant’s Counsel

Clerk of Court U.S. District Court Southern District of New York 500 Pearl Street New York, NY 10022 Harmony Gold Mining Co. Litigation Case No. 08 Civ. 3653-BSJ-MHD

Joseph E. White, III SAXENA WHITE P.A. 2424 N. Federal Highway Suite 257 Boca Raton, FL 33431

Mark D. Gately HOGAN LOVELLS US LLP 100 International Drive Suite 2000 Baltimore, MD 21202

10. Any Class Member who does not object to the Settlement of the Class Action in

the manner provided in this Order will be deemed to have waived such objection and will forever

be foreclosed from making any objection to the Settlement, Stipulation or any portions thereof.

11. To be entitled to a distribution from the Settlement Fund (as provided in the

Stipulation), a Class Member who has not requested exclusion must submit a Proof of Claim in

the manner set forth in Paragraph 12 below. Any Class Member who does not submit a Proof of


6

Claim in the manner set forth in Paragraph 12 will not be entitled to share in the Settlement

Fund, but nonetheless will be barred from asserting any Settled Claims against any of the

Released Parties.

12. Proofs of Claim will be submitted in accordance with the following procedures

and conditions:

a. A Proof of Claim must be submitted no later than 60 days after the

Fairness Hearing, unless such date is extended for cause shown. Any Class Member

claiming to be an Authorized Claimant shall be required to submit to the Claims

Administrator a completed Proof of Claim, signed under penalty of perjury and supported

by such documents as specified in the Proof of Claim and as are reasonably available to

the Authorized Claimant. Any Class Member who fails to timely submit the required

Proof of Claim will be precluded from receiving payment pursuant to the Stipulation, but

will in all other respects be subject to the provisions of the Stipulation including the

release provisions contained in it. A Proof of Claim will be submitted for purposes of the

Settlement when postmarked or submitted online to the Claims Administrator. If a Proof

of Claim contains incomplete or inadequate documentation, Class Counsel may provide

the Class Member an opportunity to substantiate such claim by providing further docu-

mentation or information.

b. By filing a Proof of Claim, each Class Member agrees to submit to the

jurisdiction of the Court for purposes of necessary discovery and the review of such claim

pursuant to the terms of the Stipulation.


7

c. If the person executing the Proof of Claim is acting in a representative

capacity, a certification of his or her authority to act on behalf of the Class Member must

be included with the Proof of Claim.

13. Class Counsel and the Claims Administrator will be responsible for processing all

Proofs of Claim and administering the Settlement, subject to review by the Court.

14. Pending the final determination of the fairness, reasonableness, and adequacy of

the Settlement, no Class Member may prosecute any Settled Claim against any of the Released

Parties, and the Released Parties may not prosecute any of Settled Defendant’s Claims.

15. Class Counsel is authorized to act on behalf of the Class Members in all respects

pursuant to the Stipulation or such other acts that are reasonably necessary to consummate the

Settlement.

16. The Court may change the date and time of the Fairness Hearing without any

further notice to members of the Class. The Court retains jurisdiction over the Action to

consider all further applications arising out of or connected with the Settlement.

17. This Order, the Stipulation, and the Settlement are not an admission or concession

by any of the Released Parties of the truth or validity of any claims in this Action or of any

wrongdoing by them or of any liability of them or any violation of law, and none shall be used as

an admission or concession with respect to any claim of any wrongdoing, fault, or omission by

any of the Released Parties or any other person in connection with any transaction or occurrence

or any statement, release, or written document issued, filed, or made; and neither this Order nor

the Stipulation and the Settlement nor any related document, proceeding, or action, nor any

reports or accounts thereof, shall be offered or received in evidence in any civil, criminal, or


8

administrative action or proceeding other than such proceedings as may be necessary to

consummate or enforce the Stipulation and the Settlement.

18. The Settlement Account and any funds or assets in it shall be in the Court’s legal

custody, and shall remain subject to the jurisdiction of the Court, until such time as such funds

shall be distributed under the Stipulation and/or further Court Order(s).

19. Class Counsel may pay, in accordance with the terms of the Stipulation, all Taxes,

Tax Expenses, Administration Expenses and Notification Costs, out of the Settlement Fund.

20. Neither the Released Parties nor Defendant’s Counsel shall have any

responsibility for the Plan of Allocation or any application for reimbursement of Counsel Fees

and Expenses, and such matters will be considered separately from the Settlement’s fairness,

reasonableness, and adequacy.

21. The Exhibits attached to the Stipulation filed with the Court are incorporated

herein as though set forth in this Order.

Dated: ____________________________

SO ORDERED:

THE HONORABLE BARBARA S. JONES

UNITED STATES DISTRICT JUDGE


EXHIBIT D


1




Defendant.


ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT

AND DISMISSING THE ACTION WITH PREJUDICE

THESE MATTERS have come before the Court to determine whether the proposed

Settlement should be finally approved pursuant to the terms set forth in the Stipulation of

Settlement, dated July 18, 2011 (the “Stipulation”), relating to this Action. The Court has

considered all papers filed and proceedings had herein and otherwise is fully informed in the

premises, and after holding a Fairness Hearing on ______________________, has determined

that the Settlement set forth in the Stipulation should be approved as fair, reasonable, and

adequate. The Court hereby enters this Order and Final Judgment, which constitutes a final

adjudication of this Action on the merits. Good cause appearing therefore, IT IS HEREBY

ORDERED:

1. The definitions of terms set forth in the Stipulation and in the Preliminary Order

entered by this Court on _____________________ are hereby incorporated as though fully set

forth in this Final Judgment. Any inconsistencies between the terms of the Stipulation and this

Final Judgment shall be resolved in favor of the Stipulation.


2

2. This Court has jurisdiction over the subject matter of the Class Action and over all

parties to the Class Action, including all Class Members, who are defined as: 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:


(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) 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;

(ii) All persons or entities who sold put options or purchased call options on Harmony ADRs beginning on April 25, 2007, to the extent that the option contracts for those same options closed prior to August 6, 2007;





3. With respect to the Class, the Court reaffirms that: (a) the members of the Class

are so numerous that joinder of all Class Members is impracticable; (b) there are questions of law


3

and fact common to the Class that predominate over any individual questions; (c) the claims as

asserted in the Complaint are typical of the claims of the Class; (d) Class Counsel has fairly and

adequately represented and protected the interests of the Class Members; and (e) a class action is

superior to other available methods for the fair and efficient adjudication of the controversies in

the Class Action, considering: (i) the interests of the Class Members in individually controlling

the prosecution of the separate actions; (ii) the extent and nature of any litigation concerning the

controversies already commenced by Class Members; (iii) the desirability or undesirability of

continuing the litigation of these claims in this particular forum; and (iv) the difficulties likely to

be encountered in the management of the Action as a class action.

4. The Notice was approved by the Court in the Preliminary Order. The Notice,

among other things, advised the Class Members of their right to appear and express their views

on the fairness of the Settlement of the Class Action at the Fairness Hearing before the Court

mentioned above. The Notice also advised Class Members of their right to exclude themselves

from the Class. _____ person(s) have submitted valid and timely requests for exclusion pursuant

to the terms of the Notice. These person(s) are listed on the attached Exhibit 1 and are not bound

by this Final Judgment.

5. The Court hereby finally approves the Settlement of the Class Action set forth in

the Stipulation and finds that said Settlement of the Class Action is, in all respects, fair,

reasonable, and adequate to the Class, and within the authority of the Parties. The Court further

finds that the Settlement set forth in the Stipulation is the result of arm’s length negotiations

between experienced counsel representing the interests of the Parties, and that it was negotiated

with the assistance of an experienced mediator. The Parties are directed to consummate the

Settlement in accordance with the terms and provisions of the Stipulation.


4

6. The Plan of Allocation is approved as fair and reasonable, and Class Counsel and

the Claims Administrator are directed to administer the Plan of Allocation in accordance with the

terms and provisions of the Stipulation.

7. Class Counsel shall continue to serve as Escrow Agent for the Settlement

Account, until such time as all funds in the Settlement Account are distributed pursuant to the

terms of the Stipulation or further Court Order.

8. The Amended Class Action Complaint, which the Court finds was filed in good

faith in accordance with the Private Securities Litigation Reform Act and Rule 11 of the Federal

Rules of Civil Procedure based upon all publicly available information, is dismissed with

prejudice with each party paying his, her or its own costs, except as provided in the Stipulation.

9. Upon the Effective Date, 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, 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, except with regard to claims to enforce any of

the terms of the Stipulation.


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10. 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.

11. The Notice given to the Class, which set forth the principal terms of the

Stipulation, was the best notice practicable under the circumstances, consisting of individual

notice to all Class Members who could be identified through reasonable efforts, as well as

Summary Notice to all others. The Notice and Summary Notice provided due and adequate

notice of these proceedings and of the matters set forth therein, including the Settlement, to all

persons entitled to such notice, and fully satisfied the requirements of Rule 23 of the Federal

Rules of Civil Procedure and the requirements of due process. The Court hereby finds that all

persons and entities who are Class Members were provided a full and fair opportunity to be

heard with respect to the foregoing matters. Thus, it is hereby determined that all Class

Members who did not timely and properly elect to exclude themselves by written communication

postmarked or otherwise delivered on or before the date set forth in the Preliminary Order, the

Notice and Summary Notice are bound by this Judgment.


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12. Neither this Final Order and Judgment, the Stipulation, nor any of its terms and

provisions, nor any of the negotiations or proceedings connected with it, nor any of the

documents or statements referred to therein shall be:

(a) offered or received against the Released Parties as evidence of or

construed as or deemed to be evidence of any presumption, concession, or admission by

any of the Released Parties with respect to the truth of any fact asserted in this Action or

the validity of any claim that had been or could have been asserted in this Action or in

any litigation, or the deficiency of any defense that has been or could have been asserted

in the Action or in any litigation, or of any liability, negligence, fault, or wrongdoing of

the Released Parties;

(b) 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 Released Party, or

against any Class Member as evidence of any infirmity in the claims of the Class;

(c) offered or received against the Released Parties or against any Class

Member 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 parties to the Stipulation, in any other civil, criminal or

administrative action or proceeding, other than such proceedings as may be necessary to

effectuate the provisions of the Stipulation; provided, however, that the Released Parties

may refer to the Stipulation to effectuate the liability protection granted them thereunder;

(d) construed against the Released Parties or any Class Member as an

admission or concession that the consideration to be given hereunder represents the


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amount which could be or would have been recovered after trial; or

(e) construed as or received in evidence as an admission, concession or

presumption against any Class Member that any of their claims are without merit or that

damages recoverable under the Complaint would not have exceeded the Cash Settlement

Amount.

13. Class Counsel are hereby awarded ___________% of the Settlement Fund in fees,

which sum the Court finds to be fair and reasonable, and $_______________ in reimbursement

of expenses, which shall be paid to Class Counsel from the Settlement Fund. The award of

Counsel Fees and Expenses may be allocated among all plaintiff’s counsel in a fashion which, in

the opinion of Class Counsel, fairly compensates plaintiff’s counsel for their respective

contributions in the prosecution of the Action.

14. In making this award of Counsel Fees and Expenses to be paid from the

Settlement Fund, the Court has considered and found that:

(a) the Settlement has resulted in the creation of the Cash Settlement Amount

of $9,000,000 that is already on deposit, and that numerous Class Members who submit

valid Proofs of Claim will benefit from the Settlement achieved by Class Counsel;

(b) over _________ copies of the Notice were distributed to putative Class

Members indicating that Class Counsel was moving for attorneys’ fees in an amount not

to exceed 33⅓ percent of the Settlement Fund and for reimbursement of actual expenses,

and _____ objections were filed against the terms of the proposed Settlement or the

ceiling on the fees and expenses to be requested as disclosed in the Notice;

(c) Class Counsel have conducted the litigation and achieved the Settlement

with skill, perseverance and diligent advocacy;


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(d) the Action involves complex legal and factual issues and, in the absence of

a settlement, would involve further lengthy proceedings with uncertain resolution of these

complex issues;

(e) had Class Counsel not achieved the Settlement, there would remain a

significant risk that the Class may have recovered less or nothing from Harmony Gold;

(f) the amount of Counsel Fees and Expenses reimbursed from the Settlement

Fund is fair and reasonable and consistent with awards in similar cases.

15. Without affecting the finality of this Final Judgment in any way, this Court hereby

retains exclusive jurisdiction over: (a) the implementation of this Settlement and any

distributions to Class Members pursuant to further orders of this Court; (b) the disposition of the

Settlement Fund; (c) this Class Action until this Final Judgment becomes final, non-appealable

and each and every act agreed to be performed by the parties has been performed pursuant to the

Stipulation; and (d) all Parties to this Class Action for the purpose of enforcing and

administering the Stipulation.

16. The Court finds, under Rules 54(a) and 54(b) of the Federal Rules of Civil

Procedure, that this Final Judgment constitutes the final adjudication on the merits of the Class

Action and should be entered without delay. Accordingly, the Clerk is directed to enter this

Judgment forthwith.

17. If the Settlement is terminated pursuant to the Stipulation, then this judgment

shall be rendered null and void to the extent provided by and in accordance with the Stipulation,

and shall be vacated to the extent provided by the Stipulation and, in such event: (a) all Orders

entered and releases delivered in connection herewith shall be null and void to the extent

provided by and in accordance with the Stipulation; (b) the fact of the Settlement shall not be


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admissible in any trial of this Action and the Parties shall be deemed to have reverted to their

respective status in this Action immediately prior to May 24, 2011; and (c) any portion of the

Settlement Amount previously paid or caused to be paid by Harmony Gold, including, but not

limited to, any funds disbursed in payment of Litigation Expenses and attorneys’ fees, together

with any interest actually earned or gains thereon, less any amounts for Taxes paid or owing with

respect to such interest income and/or gains and/or for Notice and Administration Costs actually

incurred and paid or payable, shall be returned by the Escrow Agent and/or Class Counsel, as

applicable, to Harmony Gold within seven business days after written notification of such event

by Harmony Gold, as specified in Paragraph 70 of the Stipulation.

18. Without further order of the Court, the parties may agree to reasonable extensions

of time to carry out any of the provisions of the Stipulation.

19. There is no just reason for delay in the entry of this Judgment and immediate

entry by the Clerk of the Court is expressly directed.

Dated: ________ __

THE HONORABLE BARBARA S. JONES UNITED STATES DISTRICT JUDGE


james j. hayes, et al. v. harmony gold mining company...

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