Agreement - Randgold & Exploration Co. Ltd. and Notable Holdings (Proprietary) Ltd.
AGREEMENT
between
RANDGOLD AND EXPLORATION COMPANY LIMITED
(Registration No: 1992/005642/06)
and
NOTABLE HOLDINGS (PROPRIETARY) LIMITED
(Registration No: 000 927 1621)
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TABLE OF CONTENTS
1. INTERPRETATION AND PRELIMINARY 2
2. PAYMENT BY NOTABLE HOLDINGS 3
3. TRANSFER OF THE SETTLEMENT SHARES 4
4. CASH PAYMENT 4
5. SECURITY 4
6. WARRANTIES AND REPRESENTATIONS 4
7. BREACH 5
8. ARBITRATION 5
9. WHOLE AGREEMENT 8
10. SEVERABILITY 8
11. NO ASSIGNMENT 9
12. CONFIDENTIALITY AND PUBLICITY 9
13. CHOICE OF LAW 9
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1. INTERPRETATION AND PRELIMINARY
The headings of the clauses in this agreement are for the purpose of
convenience and reference only and shall not be used in the interpretation
of nor modify nor amplify the terms of this agreement nor any clause
hereof. Unless a contrary intention clearly appears --
1.1 words importing--
1.1.1 any one gender include the other two genders;
1.1.2 the singular include the plural and vice versa; and
1.1.3 natural persons include created entities (corporate or
unincorporate) and the state and vice versa;
1.2 the following terms shall have the meanings assigned to them
hereunder and cognate expressions shall have corresponding meanings,
namely --
1.2.1 "agreement" means this agreement;
1.2.2 "cash payment" means a cash payment in South African
currency of R27 000 000 (twenty seven million rand);
1.2.3 "DRD" means Durban Roodepoort Deep Limited, with
registration number: 1895/000926/06, being a company
incorporated and carrying on business in accordance with the
company laws of the Republic of South Africa;
1.2.4 "effective date" means 22 July 2003;
1.2.5 "Notable Holdings" means Notable Holdings (Proprietary)
Limited, with registration number: 000 927 1621, being a
company incorporated and carrying on business in accordance
with the company laws of Australia;
1.2.6 "parties" means Notable Holdings and Randgold;
1.2.7 "Randgold" means Randgold and Exploration Company Limited,
with registration number: 1992/005642/06 being a company
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incorporated and carrying on business in accordance with the
company laws of the Republic of South Africa;
1.2.8 "script lending agreement" means the script lending
agreement concluded by and between Randgold and Notable
Holdings on 3 March 2000 with subsequent addendums;
1.2.9 "script lending shares" means 3 000 000 (three million)
ordinary shares of no par value each in the issued ordinary
share capital of DRD;
1.2.10 "settlement shares" means 660 000 (six hundred and sixty
thousand) ordinary shares of R1 each in the issued ordinary
share capital of Western Areas;
1.2.11 "Stamp Duties Act" means the Stamp Duties Act, No 77 of
1968;
1.2.12 "Western Areas" means Western Areas Limited with
registration number: 1959/003209/06, being a company
incorporated and carrying on business in accordance with the
company laws of the Republic of South Africa.
1.2.13 "Closing date" means fourteen (14) days after signature.
2. PAYMENT BY NOTABLE HOLDINGS
2.1 Randgold and Notable Holdings concluded the script lending agreement.
2.2 The loan of the script lending shares under the script
lending agreement remains outstanding inclusive of all
outstanding interest and fees.
2.3 This agreement is an amendment to the script lending
agreement and this agreement is not a novation of the rights
and obligations of the parties to and under the script
lending agreement.
2.4 In lieu of the redelivery of the script lending shares as
contemplated in clause
2 of addendum no. 3 of the script lending agreement, Notable
Holdings shall in full and final settlement of the
obligations of Notable Holdings under the script lending
agreement:
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2.4.1 transfer to and in favour of Randgold, the settlement
shares; and
2.4.2 make the cash payment.
3. TRANSFER OF THE SETTLEMENT SHARES
On the closing date, representatives of the parties shall meet at the
domicilium of Randgold. At that meeting Notable Holdings shall:
3.1 deliver to Randgold the share certificates in respect of the
settlement shares, together with declarations for the transfer
thereof in blank as to transferee, duly signed by Notable
Holdings/registered holders complying in all respects with the
provisions of the articles of association of Western Areas and
the Stamp Duties Act;
4. CASH PAYMENT
A cash payment of R27,000,000 (Twenty Seven Million Rand) into a bank
account nominated by Randgold by inter-branch electronic transfer by no
later than 30 June 2004.
5. SECURITY
As security for the cash payment referred to in clause 4 above, Notable
Holdings shall lodge with Randgold 660,000 (six hundred and sixty thousand)
ordinary shares of R1 each in the issued ordinary share capital of Western
Areas.
6. WARRANTIES AND REPRESENTATIONS
On the effective date:
6.1 Notable Holdings will be entitled and able to give free and
unencumbered title of the settlement shares to Randgold;
6.2 no person will have any right (including any option or right of first
refusal) to acquire any of the settlement shares;
6.3 Notable Holdings will be the sole beneficial owner of the settlement
shares.
6.4 The settlement shares will be part of the issued share capital of
Western Areas listed on the JSE Securities Exchange.
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7. BREACH
If any party breaches any of the provisions of this agreement ("defaulting
party"), then, without prejudice to any remedy in favour of the innocent
party ("innocent party") arising from such breach, the innocent party shall
be entitled to apply for:
7.1 an order of specific performance against the defaulting party; and/or
7.2 an interdict against the defaulting party; and/or
7.3 damages from the defaulting party,
subject always to the condition that in the event that Notable Holdings is
the innocent party, Notable Holdings shall not be entitled to cancel this
agreement.
8. ARBITRATION
8.1 Save in respect of those provisions of the agreement which provide
for their own remedies which would be incompatible with
arbitration, a dispute which arises in regard to --
8.1.1 the interpretation of; or
8.1.2 the carrying into effect of; or
8.1.3 any of the parties' rights and obligations arising from; or
8.1.4 the termination or purported termination of or arising from
the termination of; or
8.1.5 the rectification or proposed rectification of,
this agreement, or out of or pursuant to this agreement or on any
matter which in terms of this agreement requires agreement by the
parties, (other than where an interdict is sought or urgent relief
may be obtained from a court of competent jurisdiction) shall,
subject to the provisions of clause 8.2, be submitted to and decided
by arbitration.
8.2 Upon the happening of a dispute, prior to the dispute being submitted
to and decided by arbitration, the parties undertake to negotiate in
good faith with the other in regard to the dispute for a period of 2
(two) business days ("two day
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period"), it being agreed that either party may address a written
notice to the other to record the commencement of the two day
period. In the event that the parties do not reach agreement by the
conclusion of the two day period in regard to the dispute, the
negotiations shall be deemed to have been concluded and the said
dispute shall be submitted (by either of the parties) to and decided
by arbitration as contemplated in this clause 8.
8.3 That arbitration shall be held--
8.3.1 with only the parties and their representatives other than
legal representatives, present thereat;
8.3.2 at Cape Town.
8.4 It is the intention that the arbitration shall, where possible, be
held and concluded in 21 (twenty one) business days after it has been
demanded. The parties shall use their best endeavours to procure the
expeditious completion of the arbitration.
8.5 Save as expressly provided in this agreement to the contrary, the
arbitration shall be subject to the arbitration legislation for the
time being in force in South Africa.
8.6 The arbitrator shall be, if the matter in dispute is principally--
8.6.1 a legal matter, an impartial practising advocate of not less
than 10 (ten) years' standing, or an impartial admitted
attorney of not less than 10 (ten) years' standing;
8.6.2 an accounting matter, an impartial practising chartered
accountant of not less than 10 (ten) years' standing;
8.6.3 any other matter, an independent person agreed upon between
the parties.
8.7 If the parties fail to agree on an arbitrator within 10 (ten) days
after the arbitration has been demanded, the arbitrator shall be
nominated, at the request of either of the parties by the President
(or his nominee) for the time being of the Cape of Good Hope Law
Society (or its successor body). If that person fails or refuses to
make the nomination, either party may approach the
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High Court of South Africa to make such an appointment. To the
extent necessary, the court is expressly empowered to do so.
8.8 If the parties fail to agree whether the dispute is of a legal,
accounting or other nature within 5 (five) business days after the
arbitration has been demanded, it shall be considered a matter
referred to in clause 8.6.1
8.9 The arbitrator shall have the fullest and freest discretion with
regard to the proceedings save that he shall be obliged to give his
award in writing fully supported by reasons. His award shall be
final and binding on the parties to the dispute.
8.10 Furthermore the arbitrator.-.
8.10.1 may by notice to the parties within 7 (seven) business
days after his appointment, dispense wholly or in part
with formal submissions or pleadings provided that the
parties are given the opportunity to make submissions;
8.10.2 shall determine the applicable procedure and shall not
be bound by strict rules of evidence;
8.10.3 shall allow any party to the arbitration to call any
witnesses he determines and shall permit cross
examination of witnesses;
8.10.4 may, in addition to any other award he may be able to
make, award interest with effect from any date, and on
any other basis he considers appropriate in the
circumstances;
8.1 0.5 shall make such order as to costs as he deems just.
8.11 Either party shall be entitled to have the award made an order of
court of competent jurisdiction.
8.12 Any dispute shall be deemed to have been referred or subjected to
arbitration hereunder when either party gives written notice to the
other of the dispute, demands an arbitration and requests agreement
on an arbitrator.
8.13 The provisions of this clause are severable from the rest of this
agreement and shall remain in effect even if this agreement is
terminated for any reason.
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8.14 The parties shall keep the evidence in the arbitration proceedings
and any order made by any arbitrator confidential unless otherwise
contemplated herein.
8.15 The arbitrator shall have the power to give default judgment if any
party fails to make submissions on due date and/or fails to appear
at the arbitration.
9. WHOLE AGREEMENT
9.1 This agreement constitutes the whole agreement between the parties
relating to the subject matter hereof.
9.2 No amendment or consensual cancellation of this agreement or any
provision or term hereof or of any agreement, bill of exchange or
other document issued or executed pursuant to or in terms of this
agreement and no settlement of any disputes arising under this
agreement and no extension of time, waiver or relaxation or
suspension of or agreement not to enforce or to suspend or postpone
the enforcement of any of the provisions or terms of this agreement
or of any agreement, bill of exchange or other document issued
pursuant to or in terms of this agreement shall be binding unless
recorded in a written document signed by the parties. Any such
extension, waiver or relaxation or suspension which is so given or
made shall be strictly construed as relating strictly to the matter
in respect whereof it was made or given.
9.3 No extension of time or waiver or relaxation of any of the
provisions or terms of this agreement or any agreement, bill of
exchange or other document issued or executed pursuant to or in
terms of this agreement, shall operate as an estoppel against any
party in respect of its rights under this agreement, nor shall it
operate so as to preclude such party thereafter from exercising its
rights strictly in accordance with this agreement.
9.4 To the extent permissible by law no party shall be bound by any
express or implied term, representation, warranty, promise or the
like not recorded herein, whether it induced the contract and/or
whether it was negligent or not.
10. SEVERABILITY
Any provision in this agreement which is or may become illegal,
invalid or unenforceable in any jurisdiction affected by this
agreement shall, as to such
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jurisdiction, be ineffective to the extent of such prohibition or
unenforceability and shall be treated pro non scripto and severed
from the balance of this agreement, without invalidating the
remaining provisions of this agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
11. NO ASSIGNMENT
None of the parties shall be entitled to cede and delegate any or
all of their rights and obligations under this agreement to any
third party.
12. CONFIDENTIALITY AND PUBLICITY
Any information obtained by any of the parties to this agreement in
terms, or arising from the implementation, of this agreement shall
be treated as confidential by the other parties and shall not be
used, divulged or permitted to be divulged to any person not being a
party to this agreement, without the prior written consent of the
other parties save that any information which is required to be
furnished by law or by existing contract or by any stock exchange on
which the shares of either party to this agreement are listed may be
so furnished.
13. CHOICE OF LAW
This agreement shall be governed and interpreted by the substantive
laws of South Africa (and if the prescription laws of the Republic
of South Africa are not considered to be substantive laws thereof,
by the prescription laws as well), provided that if the major part
of the agreement is to be performed outside the Republic of South
Africa, no laws of the Republic of South Africa which promote
competition in the Republic of South Africa shall govern.
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SIGNED by the parties and witnessed on the following dates and at the following
places respectively:
DATE PLACE WITNESS SIGNATURE
---- ----- ------- ---------
9 Dec 2003 Johannesburg
For: RANDGOLD AND
EXPLORATION COMPANY
LIMITED
1. /s/ J. Bailey
/s/ R.B. Kebble
R.B.Kebble
(The signatory who warrants that he
Is duly authorized)
RB Kebble
(print name)
2. /s/ M.M. Brown
For: NOTABLE HOLDINGS
LIMITED
1. /s/ J. Bailey
/s/ J. Stratton
J.Stratton
(The signatory who warrants that he
is duly authorized)
J Stratton
(print name)
2. /s/ M.M. Brown