Sale of Shares Agreement - Randgold & Exploration Co. Ltd., Equitant Trading (Proprietary) Ltd. and Phikoloso Mining (Proprietary) Ltd.
SALE OF SHARES AGREEMENT
amongst
RANDGOLD & EXPLORATION COMPANY LIMITED
EQUITANT TRADING (PROPRIETARY) LIMITED
and
PHIKOLOSO MINING (PROPRIETARY) LIMITED
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TABLE OF CONTENTS
1. PARTIES 1
2. INTERPRETATION 1
3. INTRODUCTION 6
4. SALE 6
5. PURCHASE PRICE 7
6. PAYMENT OF THE PURCHASE PRICE 7
7. CLOSING 7
8. WARRANTIES 9
9. BENEFIT AND RISK 12
10. PHIKOLOSO UNDERTAKING 13
11. BREACH 15
12. DOMICILIUM 15
13. COSTS 17
14. GENERAL 17
SCHEDULE 1 - THE WARRANTIES
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SALE OF SHARES AGREEMENT
1. PARTIES
1.1 RANDGOLD & EXPLORATION COMPANY LIMITED
1.2 EQUITANT TRADING (PROPRIETARYLIMITED
1.3 PHIKOLOSO MINING (PROPRIETARY) LIMITED
2. INTERPRETATION
2. I The headnotes to the clauses of this agreement are inserted for
reference purposes only and shall in no way govern or affect the
interpretation hereof.
2.2 Unless inconsistent with the context, the expressions set forth below
shall bear the following meanings:
"the Act" the Companies Act, 1973 (Act No. 61 of 1973)
as amended from time to time
"the AFL shares" 7 300 000 shares, fully paid up, in the
issued share capital of The Afrikander Lease
Limited
"the Amplats shares" 235 000 shares, fully paid up, in the issued
share capital of Anglo American Platinum
Corporation Limited
"business day" every day except Saturdays, Sundays and
official public holidays
"the claims" the total amount owing by the company to
Equitant on any account whatsoever at the
closing date
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"the closing date" the date on which the consideration
shares shall be listed on the JSE in
terms of clause 6.2
"the company" Viking Pony Properties 359 (Proprietary)
Limited, registration no. 2003/015623/07
"the consideration shares" 8 800 000 ordinary shares of R0.01 (one
cent) each, issued at fully paid up, in
the issued share capital of R&E
"Equitant" Equitant Trading (Proprietary) Limited,
registration no. 2003/008512/07
"the Harmony shares" 315 000 shares, fully paid up, in the
issued share capital of Harmony Gold
Mining Company Limited
"Historically Disadvantaged" an historically disadvantaged person as
Person" defined in terms of the MPRD Act
"the JSE" the JSE Securities Exchange South Africa
"Kabusha" Kabusha Mining and Finance (Proprietary)
Limited, registration no. 2003/010722/07
"the Kabusha shares" collectively:
1. 100 B ordinary shares of R1,00 each,
fully paid up, in the issued share
capital of Kabusha, constituting the
entire issued B ordinary share
capital of Kabusha and
2. 460 A ordinary shares of R1, 00
each, fully paid up, in the issued
share capital of Kabusha
constituting 50% of the entire
issued A ordinary capital of Kabusha
"the MPRD Act" the Mineral and Petroleum Resources
Development Act, 2002 (Act 28 of 2002)
as amended from time to time
"the parties" R&E, Equitant and Phikoloso
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"Phikoloso" Phikoloso Mining (Proprietary) Limited,
registration no. 2002/007637/07
"R&E" Randgold & Exploration Company Limited,
registration no. 1992/005642/06
"the sale shares" 100 ordinary shares of R0, 01
(one cent) each, fully paid up, in the
issued share capital of the company,
constituting the entire issued share capital
of the company
"the share portfolio" collectively the Kabusha shares, the AFL
shares, the Amplats shares and the Harmony
shares
"the signature date" the date of last signature of this agreement
"the warranties" the warranties set out in Schedule 1.
2.3 If any provision in a definition is a substantive provision conferring
rights or imposing obligations on any party, notwithstanding that it is
only in the definition clause, effect shall be given to it as if it were
a substantive provision of this agreement.
2.4 Any reference to an enactment is to that enactment as at the signature
date.
2.5 Unless inconsistent with the context, an expression which denotes:
2.5.1 any gender includes the other genders;
2.5.2 a natural person includes an artificial person and vice versa;
2.5.3 the singular includes the plural and vice versa.
2.6 Where any term is defined within the context of any particular clause in
this agreement, the term so defined, unless it is clear from the clause
in question that the term so defined has limited application to the
relevant clause, shall bear the meaning ascribed to it for all purposes
in terms of this agreement, notwithstanding that that term has not been
defined in this interpretation clause.
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2.7 The rule of construction that the contract shall be interpreted against
the party responsible for the drafting or preparation of this agreement,
shall not apply.
2.8 The schedule to this agreement forms an integral part hereof and words
and expressions defined in this agreement shall bear, unless the context
otherwise requires, the same meaning in such schedule.
3. INTRODUCTION
3.1 Equitant
3.1.1 is a wholly owned subsidiary of Phikoloso, which is a company
beneficially owned and controlled by Historically Disadvantaged
Persons;
3.1.2 is the beneficial owner of the sale shares and the claims and is
entitled to dispose of same.
3.2 The company is the beneficial owner of the share portfolio.
3.3 Equitant wishes to sell and R&E wishes to purchase the sale shares and
the claims upon the terms and conditions contained in this agreement.
4. SALE
Equitant hereby sells to R&E, which hereby purchases, the sale shares
and the claims with effect from the signature date.
5. PURCHASE PRICE
5.1 The purchase price payable by R&E to Equitant for the shares and the
claims shall be an amount equal to the aggregate closing price of the
consideration shares on the closing date.
5.2 A portion of the purchase price equal to the face value of the claims
shall be
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allocated to the claims, and the balance of the purchase price shall be
allocated to the sale shares.
6. PAYMENT OF THE PURCHASE PRICE
R&E shall:
6.1 on the closing date, allot and issue the consideration shares to
Equitant; and
6.2 as soon as possible in the circumstances, apply for a listing of the
consideration shares on the JSE and shall use its best endeavours to
procure such listing.
7. CLOSING
On the closing date, and against the allotment and issue of the
consideration shares to Equitant on the basis recorded in clause 6,
Equitant shall deliver to R&E:
7.1 certificates in respect of the sale shares, together with a currently
dated transfer form relating thereto, duly signed be Equitant and in
favour of R&E as the transferee;
7.2 a written cession of the claims in favour of R&E;
7.3 the written resignations of all the existing directors, secretary and
public officer of the company;
7.4 the written undertaking of the auditors of the company to resign if so
requested by the company;
7.5 a certified copy of a resolution of the directors of the company:
7.5.1 approving the transfer of the sale shares to R&E;
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7.5.2 noting the cession of the claims;
7.5.3 appointing the nominees of R&E as directors of the company; and
7.5.4 accepting the resignations of the existing directors, secretary and
public officer of the company; and
7.6 all books, documents and records of the company.
8. WARRANTIES
8.1 EQUITANT WARRANTIES
8.1.1 Equitant gives to R&E the warranties set out in Part 1 of Schedule 1
hereto in respect of the sale shares, the claims and the company, it
being agreed that:
8.1.1.1 the warranties shall also be deemed to be representations
undertakings by Equitant in favour of R&E;
8.1.1.2 each warranty shall prima facie be deemed to be a representation
of fact inducing R&E to enter into this agreement;
8.1.1 .3 each warranty shall be presumed to be material unless the
contrary is proved;
8.1.1.4 insofar as any of the warranties is promissory or relates to a
future event, it shall be deemed to have been given as at the
due date for fulfilment of the promise or for the happening of
the event, as the case may be; and
8.1.1.5 each warranty shall be a separate warranty and in no way Iimited
or restricted by reference to or inference from the terms of any
other warranty.
8.1.2 R&E is entering into this agreement relying upon the warranties.
8.1.3 Unless otherwise stated or otherwise required by the context the
warranties shall apply as at the signature date and the closing date and
during the period between those dates.
8.1.4 In the event of any breach or non- fulfillment on or before the closing
date of any of the representations, warranties or undertakings given by
Equitant
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or in the event of any matter or thing arising or becoming known or
being notified to R&E which is inconsistent with any such
representation, warranty or undertaking or with any other provision of
this agreement and which would give rise to a claim under any provision
of this agreement or in the event of Equitant becoming unable or failing
to do anything required to be done by Equitant on or before the closing
date, R&E shall not be bound to complete the purchase of the shares and
claims and may by notice in writing terminate this agreement without
liability on its part. The right conferred upon R&E by this paragraph is
in addition to and without prejudice to any other rights of R&E
(including any rights to claim damages or compensation from Equitant by
reason of such breach or non- fulfillment) and failure to exercise it
shall not constitute a waiver of any of such rights.
8.2 R&E WARRANTIES
8.2.1 R&E gives to Equitant the warranties set out in Part II of Schedule 1
hereto in respect of the consideration shares, it being agreed that:
8.2.1.1 the warranties shall also be deemed to be representations and
undertakings by R&E in favour of Equitant;
8.2.1.2 each warranty shall prima facie be deemed to be a representation
of fact inducing Equitant to enter into this agreement;
8.2.1.3 each warranty shall be presumed to be material unless the
contrary is proved;
8.2.1.4 insofar as any of the warranties is promissory or relates to a
future event, it shall be deemed to have been given as at the
due date for fulfillment of the promise or for the happening of
the event, as the case may be; and
8.2.1.5 each warranty shall be a separate warranty and in no way limited
or restricted by reference to or inference from the terms of any
other warranty.
8.2.2 Equitant is entering into this agreement relying upon the warranties.
8.2.3 Unless otherwise stated or otherwise required by the context the
warranties shall apply as at the signature date and the closing date and
during the period between those dates.
8.2.4 In the event of any breach or non- fulfillment on or before the closing
date of any of the representations, warranties or undertakings given by
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R&E or in the event of any matter or thing arising or becoming known or
being notified by Equitant which is consistent with any such
representation, warranty or undertaking, or with any other provision of
this agreement and which would give rise to a claim under any provision
of this agreement or in the event of R&E becoming unable or failing to
do anything required to be done by R&E on or before the closing date,
Equitant shall not be bound to complete the purchase of the shares and
claims and may by notice in writing terminate this agreement without
liability on its part. The right conferred upon Equitant by this
paragraph is in addition to and without prejudice to any other rights of
Equitant (including any rights to claim damages or to compensation from
R&E by reason of such breach or non-fulfillment) and failure to exercise
it shall not constitute a waiver of any of such rights.
9. BENEFIT AND RISK
9. 1 The benefit in and risk relating to the sale shares, the claims and the
company shall he deemed to have passed to R&E with effect from the
signature date.
9.2 The benefit in and risk relating to the consideration shares shall pass
to Equitant on the closing date.
10. PHIKOLOSO UNDERTAKING
10.1 Phikoloso hereby warrants that, as at the closing date, it shall be the
registered and beneficial owner of the entire issued share capital of
Equitant.
10.2 Phikoloso hereby irrevocably and unconditionally undertakes in favour of
R&E that it shall not, at any time before the third anniversary of the
closing date, sell, transfer, dispose of and/or otherwise alienate
(collectively "dispose") any of its shares in and/or claims against
Equitant (collectively "the interest"), without the prior written
consent of R&E, which (for the avoidance of doubt) may be withheld in
the unfettered discretion of R&E.
10.3 Subject to clause 10.2, Phikoloso hereby undertakes that, in the event
that it intends to dispose of the interest, or any portion thereof ("the
sale interest"), it shall, before such disposal, offer in writing to R&E
to sell the interest to R&E.
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Phikoloso shall, in such offer, set out the details of the sale
interest, the terms and conditions of the offer, and the price at which
Phikoloso offers to sell thee sale interest to R&E (which price shall
sound in money in South African Rand).
10.4 R&E shall he entitled, at any time within a period of 20 business days
following receipt of the offer, to accept the offer in full and not in
part only, by giving written notice to that effect to Phikoloso.
Phikoloso shall forthwith on acceptance of the offer deliver the sale
interest to R&E together with a share transfer form and a cession (if
applicable) of the claims against the company, duly signed by Phikoloso
as transferor and cedent and left in blank as to the transferees and
cessionaries, against payment of the purchase price in respect of the
interest.
10.5 During the 20 business day period referred to in10.4, the offer shall be
irrevocable.
10.6 If R&E rejects or does not accept the offer in full within the 20
business day period referred to in clause 10.4, Phikoloso shall be
entitled, within a period of 20 business days after the rejection and/or
non-acceptance of the offer by R&E, as the case may be, to sell the sale
interest to a bona fide third party purchaser which wishes to purchase
the sale interest, on the terms and conditions and at a price no more
favourable to the third party than as offered to R&E. R&E. If the sale
interest shall not be sold to a third party purchaser within the
aforesaid 20 business day period on the basis stipulated in this clause
10, then Phikoloso shall again be obliged to follow the procedures set
out and stipulated in this clause 10 if it wishes to dispose of the
interest or any portion thereof.
11. BREACH
Should any party ("the defaulting party") commit a breach of any of the
provisions hereof, then any of the other parties ("the aggrieved party")
shall, if it wishes to enforce its rights hereunder, be obliged to give
the defaulting party I4days written notice to remedy the breach. If the
defaulting party fails to comply with such notice, the aggrieved party
shall be entitled to cancel this agreement against the defaulting party
or to claim immediate payment and/or performance by the defaulting party
of all of the defaulting party's obligations whether or not the due date
for payment and/or performance shall have arrived, in either event
without prejudice to the aggrieved party's rights to claim damages. The
foregoing is without prejudice to such other rights as the aggrieved
party may have at law.
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12. DOMICILIUM
12.1 The parties hereto choose domicilia citandi et executandi for all
purposes of and in connection with this agreement as follows:
R&E: 5 Press Avenue
SELBY
Johannesburg
2001
Equitant: 213 Oxford Road
DUNKELD
Johannesburg
2196
Phikoloso: 213 Oxford Road
DUNKELD
Johannesburg
2196
12.2 Any party hereto shall be entitled to change its domicilium from time to
time, provided that any new domicilium selected by it shall be an
address other than a box number in the Republic of South Africa, and any
such change shall only be effective upon receipt of notice in writing by
the other parties of such change.
12. 3 All notices, demands, communications or payments intended for any party
shall be made or given at such party's domicilium for the time being.
12.4 A notice sent by one party to another party shall be deemed to be
received:
12.4.1 on the same day, if delivered by hand;
12.4.2 on the same day, if transmitted electronically with receipt
received confirming completion of transmission;
12.4.3 on the same day of transmission if sent by telefax with receipt
received confirming completion of transmission;
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12.4.4 on the seventh day after posting, if sent by prepaid registered mail.
12.5 Notwithstanding anything to the contrary herein contained a written
notice or communication actually received by a party shall be an
adequate written notice or communication to it notwithstanding that it
was not sent to or delivered at its chosen domicilium citandi et
executandi.
13. COSTS
13.1 Each of the parties shall bear its own costs of and incidental to the
negotiation, preparation and execution of this agreement.
13.2 Any stamp duty payable in connection with the transfer of the sale
shares to R&E shall be paid by R&E.
13.3 Any stamp duty payable in connection with the issue of the R&E shares to
Equitant shall be paid by Equitant.
14. GENERAL
14.1 This document constitutes the sole record of the agreement between the
parties in regard to the subject matter thereof.
14.2 No, party shall be bound by any express or implied term, representation,
warranty, promise or the like, not recorded herein.
14.3 No addition to, variation or consensual cancellation of this agreement
shall be of any force or effect unless in writing and signed by or on
behalf of all the parties.
14.4 No indulgence which any of the parties ("the grantor") may grant to any
other or others of them ("the grantee(s)") shall constitute a waiver of
any of the rights of the grantor, who shall not thereby be precluded
from exercising any rights against the grantee(s) which might have
arisen in the past or which might arise in the future.
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14.5 The parties undertake at all times to do all such things, to perform all
such acts and to take all such steps and to procure the doing of all
such things, the performance of all such actions and the taking of all
such steps as may be open to them and necessary for or incidental to the
putting into effect or maintenance of the terms, conditions and import
of this agreement.
14.6 No party shall be entitled to cede, delegate or otherwise transfer all
or any of its rights, interest or obligations under and in terms of this
agreement except with the prior written consent of the other parties.
THUS DONE and SIGNED at Johannesburg on this the 28th day of July 2003
For and behalf of
RANDGOLD & EXPLORATION
COMPANY LIMITED
by RB Kebble
/s/ R.B. Kebble
---------------------------------
who warrants his authority hereto
THUS DONE and SIGNED at Johannesburg on this the 28th day of July 2003
For and behalf of
EQUITANT TRADING (PROPRIETARY)
LIMITED
by L.R. Ncwana
/s/ L.R. Ncwana
---------------------------------
who warrants his authority hereto
<PAGE>
THUS DONE and SIGNED at Johannesburg on this the 28th day of July 2003
For and behalf of
PHIKOLOSO MINING (PROPRIETARY)
LIMITED
by L.R. Ncwana
/s/ L.R. Ncwana
---------------------------------
who warrants his authority hereto
<PAGE>
FIRST ADDENDUM TO SALE OF SHARES AGREEMENT
amongst
RANDGOLD & EXPLORATION COMPANY LIMITED
EQUITANT TRADING (PROPRIETARY) LIMITED
and
PHIKOLOSO MINING (PROPRIETARY) LIMITED
<PAGE>
TABLE OF CONTENTS
1. PARTIES 1
2. INTERPRETATION 1
3. AMENDMENT 1
4. SAVING 2
<PAGE>
FIRST ADDENDUM TO SALE OF SHARES
AGREEMENT
1. PARTIES
1.1 RANDGOLD & EXPLORATION COMPANY LIMITED
1.2 EQUITANT TRADING (PROPRIETARY) LIMITED
1.3 PHIKOLOSO MINING (PROPRIETARY) LIMITED
2. INTERPRETATION
2.1 The headnotes to the clauses of this agreement are inserted for
reference purposes only and shall in no way govern or affect the
interpretation hereof.
2.2 Unless inconsistent with the context, the expressions set forth in this
first addendum shall bear the same meanings as in the sale of shares
agreement.
3. AMENDMENT
The parties hereby amend the sale of shares agreement by the addition as
clause 8bis of the following:
"EQUITANT ACKNOWLEDGEMENT"
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Equitant hereby acknowledges that:
1. The consideration shares shall not, as at the closing date, have been
registered under the US Securities Act of 1933 ("the Securities Act"')
and may not be offered or sold in the United States or to for the
account or benefit of US persons unless the shares are registered under
the Securities Act, or an exemption from the registration requirements
of the Securities Act is available. Accordingly, the consideration
shares are being offered and sold only outside the United Slates to
Equitant, a company located and domiciled outside the United States, in
reliance upon Regulation S promulgated under the Securities Act. The
offer of the consideration shares is not being made directly or
indirectly in, or by use of the mails of or by any means or
instrumentality (including, without limitation, the mail, facsimile
transmission, telex or telephone) of interstate or foreign commerce or
any facilities of a nation securities exchange of, the United States;
2. Equitant has received and reviewed copies of R&E's publicly available
disclosure documents, and has had the opportunity to review any other
documents relating to R&E that it has requested and to conduct a due
diligence review of R&E, and such due diligence review has been fully
satisfactory to Equitant; and
3. Equitant is not an affiliate of R&E or a person acting on behalf of such
affiliate.
4. SAVING
Save as amended herein, the sale of shares agreement remains of full force
and effect in accordance with its terms.
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THUS DONE and SIGNED at Johannesburg on this the 7th day of August 2003
For and on behalf of
RANDGOLD & EXPLORATION
COMPANY LIMITED
By R.B. KEBBLE
/s/ R.B. Kebble
---------------------------------
who warrants his authority hereto
THUS DONE and SIGNED at Johannesburg on this the 7th day of August 2003
For and on behalf of
EQUITANT TRADING (PROPRIETARY)
LIMITED
By L.R. Ncwana
/s/ L.R. Ncwana
---------------------------------
who warrants his authority hereto
<PAGE>
THUS DONE and SIGNED at Johannesburg on this the 7th day of August 2003
For and on behalf of
PHIKOLOSO MINING (PROPRIETARY)
LIMITED
By L.R. Ncwana
/s/ L.R. Ncwana
---------------------------------
who warrants his authority hereto