Sale Agreement - Platgold Pacific Ltd. NL and Hazcare Pty Ltd. and Randgold & Exploration Co. Ltd.
SALE AGREEMENT
between
PLATGOLD PACIFIC LIMITED NL
and
HAZCARE PTY LIMITED
and
RANDGOLD & EXPLORATION COMPANY
LIMITED
1. INTERPRETATION
1.1 Unless otherwise expressly stated, or the context otherwise
requires, the words and expressions listed below shall, when
used in this agreement or in any Schedules hereto, bear the
meanings ascribed to them:
1.1.1 "PURCHASER" means R.ANDGOLD & EXPLORATION COMPANY LIMITED,
Registration No 1992/005642/06 incorporated in South Africa,
herein represented by WILLIAM CROSLEY duly authorised thereto;
1.1.2 "CLAIMS" means all claims on loan account owing by the COMPANY
to the SELLER as at the SIGNATURE DATE;
1.1.3 "COMPANY" means HAZCARE PTY LIMITED, Registration No A.C.N. 009
241 954, a wholly owned subsidiary of the SELLER, incorporated
in Australia, herein represented by HENDRIK
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CHRISTOFFEL BUITENDAG duly authorised thereto;
1.1.4 "EFFECTIVE DATE" means, notwithstanding the date of signature
of this agreement, 15 (fifteen) days after the date of
fulfillment of the suspensive conditions in clause 9;
1.1.5 "the MINING RIGHTS" means the Special Exclusive Prospecting
Licence 2151 for rutile, ilmenite and zircon, which licence was
originally issued on 20 March 1990 for a period of 2 (two)
years and which has subsequently on application by the COMPANY
been considered and recommended by the Mineral Advisory Board,
Sierra Leone for conversion into a mining lease for 25 (twenty
five years) in respect of the PROJECT;
1.1.6 "the PROJECT" means the Rotifunk Mineral Sands Project situated
in the Bradford area, Sierra Leone, West Africa, more fully
described on Annexure "A" hereto;
1.1.7 "SELLER" means PLATGOLD PACIFIC LIMITED NL, Registration No
A.C.N. 009 155 971, incorporated in Australia, herein
represented by William Crosby, duly authorised thereto;
1.1.8 "SHARES" means all of the issued shares of the COMPANY
beneficially owned by the SELLER as at the EFFECTIVE DATE being
100% of the total issued share capital of the COMPANY;
1.1.9 "SIGNATURE DATE" means the date of signature of this agreement
by the parties hereto.
1.2 Clause and paragraph headings are for purposes of reference
only and shall not be used in interpretation.
1.3 Unless the context clearly indicates a contrary intention, any
word connoting:
1.3.1 any gender includes the other two genders;
1.3.2 the singular includes the plural and vice versa;
1.3.3 natural persons includes artificial persons and vice
versa;
1.3.4 insolvency includes provisional or final sequestration,
liquidation or judicial management.
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1.4 When any number of days is prescribed such number shall exclude
the first and include the last day unless the last day falls on
a Saturday, Sunday, or a public holiday in the Republic of
South Africa, in which case the last day shall be the next
succeeding day which is not a Saturday, Sunday or a public
holiday in the Republic of South Africa.
1.5 A reference to a day is a reference to a business day in the
Republic of South Africa, which excludes Saturdays, Sundays and
public holidays.
1.6 A reference to an enactment is a reference to that enactment as
at the date of signature hereof and as amended or re-enacted
from time to time.
2. INTRODUCTION
2.1 The SELLER is the beneficial owner of the SHARES and the
CLAIMS.
2.2 The COMPANY is the beneficial holder of the MINING RIGHTS
relating to the PROJECT.
2.3 The SELLER wishes to dispose of the PROJECT, either through the
sale of the SHARES and the CLAIMS or the transfer of the MINING
RIGHTS to the PURCHASER.
2.4 The PURCHASER wishes to purchase either the SHARES and the
CLAIMS or the MINING RIGHTS from the SELLER on the terms and
conditions set out hereunder.
3. SALE
Subject to fulfillment of the suspensive conditions in clause 9
and the exercise of the option by the PURCHASER in terms of
clause 10, the SELLER sells to the PURCHASER as one indivisible
transaction: EITHER
3.1 the SHARES and the CLAIMS; or
3.2 the MINING RIGHTS;
and the PURCHASER purchases either the SHARES and the CLAIMS or
the MINING RIGHTS with effect from the EFFECTIVE DATE.
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4. PRICE AND PAYMENT
4.1 The purchase price payable for either the SHARES and the CLAIMS
or the PROJECT is the sum of R40,500,000-00 (forty million five
hundred thousand South African Rand).
4.2 The purchase price shall be allocated in the following manner:
EITHER
4.2.1 as to the CLAIMS, the face value thereof; and
4.2.2 as to the SHARES, the balance; OR
4.2.3 as to the MINING RIGHTS, the full amount.
4.3 The purchase price stipulated in 4.1 above shall be payable by
the PURCHASER to the SELLER'S nominated wholly owned South
African subsidiary company in cash in South Africa on the
EFFECTIVE DATE.
4.4 The purchase price stipulated in 4.1 above shall be exclusive
of all or any stamp duties, transfer duties, value added taxes
or any other impost or levy which may be imposed by any law in
South Africa, Sierra Leone or Australia.
5. DELIVERY
5.1 On the EFFECTIVE DATE, the PURCHASER shall effect payment of
the purchase price to the SELLER by making payment to the
SELLER'S wholly owned South African subsidiary company.
5.2 The SELLER shall, at least 3 (three) days before the EFFECTIVE
DATE, notify the PURCHASER in writing of the details of its
South African subsidiary company which it nominates and to
which the PURCHASER must effect payment of the purchase price.
5.3 Within 5 (five) days following the EXERCISE DATE and at a venue
to be agreed between the parties, and failing agreement, at the
PURCHASER'S premises referred to in 12, the SELLER shall
deliver the following to the PURCHASER: EITHER
5.3.1 certificates evidencing the SHARES; and
5.3.2 all other documents or consents which may be required in
order to procure the registration of the SHARES into the
name of the
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PURCHASER or its nominee; OR
5.3.3 all other documents or consents and, in particular the
approval referred to in 6.2.1, which may be required in
order to procure the registration of transfer of the
MINING RIGHTS into the name of the PURCHASER or its
nominee.
6. RISK, BENEFIT AND OWNERSHIP
6.1 In the event of the PURCHASER exercising its option to purchase
the SHARES and CLAIMS:
6.1.1 All risks in and benefits arising out of the SHARES and
the CLAIMS shall be deemed to have passed to the
PURCHASER with effect from the EFFECTIVE DATE, provided
that the suspensive conditions in clause 9 have been
fulfilled.
6.1.2 Ownership of the SHARES and the CLAIMS shall be deemed
to have passed to the PURCHASER on the EFFECTIVE DATE.
6.2 In the event of the PURCHASER exercising its option to purchase
the MINING RIGHTS:
6.2.1 The SELLER shall, with the assistance of the PURCHASER
and the COMPANY, procure the approval of the Secretary
of State in terms of section 72 of The Mines and
Minerals Decree dated 4 March 1994 to the transfer into
the name of the PURCHASER of the mining lease granted in
respect of the PROJECT.
6.2.2 The PURCHASER shall be responsible for all costs
incurred in connection with the application and transfer
envisaged in 6.2.1.
7. WARRANTIES AND INDEMNITIES
7.1 The SELLER gives to the PURCHASER the following warranties in
respect of the SHARES and the CLAIMS:
7.2.1 The SELLER is the beneficial holder of the SHARES and
the CLAIMS in the COMPANY and the COMPANY is the
beneficial holder of the rights to the PROJECT;
7.2.2 The shares in the COMPANY are free and unencumbered and
not subject to any option or right of first refusal in
favour of any person;
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7.2.3 The COMPANY is or will not be liable, whether
contingently or otherwise and whether as surety or
co-principal debtor, guarantor or indemnitor, for the
liabilities of any third party;
7.2.4 The COMPANY has no employees and no assets other than
the MINING RIGHTS.
7.2.5 The SELLER hereby indemnifies and holds the PURCHASER
harmless in respect of all or any claims that may be
made against the COMPANY by the Receiver of Revenue for
Income Tax and/or Value Added Tax whether incurred or to
be incurred by the COMPANY including any other
liabilities of the COMPANY as at the EFFECTIVE DATE in
respect of periods prior to the EFFECTIVE DATE.
7.2 The SELLER gives to the PURCHASER the following warranties in
respect of the SHARES and the CLAIMS:
7.2.1 The SELLER and the COMPANY warrant that the COMPANY has
or will have obtained a mining lease valid for a period
of at least 25 (twenty-five) years in respect of the
PROJECT in terms of Part VII of The Mines and Minerals
Decree dated 4 March 1994 by the EFFECTIVE DATE.
7.2.2 The SELLER and the COMPANY warrant that the PURCHASER
shall have the exclusive rights to the PROJECT and that
no participation rights have been granted to any third
party.
8. BREACH
Should any party breach any provision of this agreement and fail to
remedy that breach within 7 days of receiving written notice from any
other party requiring it to do so, then that party shall be entitled,
without prejudice to any other rights that it may have, whether under
this agreement or in law, to cancel this agreement without notice or
to claim immediate specific performance of all the defaulting party's
obligations, whether or not due performance, in either event without
prejudice to the aggrieved party's right to claim damages.
9. SUSPENSIVE CONDITIONS
9.1 This agreement is subject to the fulfillment of the following
suspensive conditions within 15 (FIFTEEN) days after the
SIGNATURE DATE:
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9.1.1 That the PURCHASER conducts a due diligence exercise on
the financial affairs and legal status of the COMPANY to
its sole satisfaction; and
9.1.2 That the PURCHASER satisfies itself that the COMPANY
holds the MINING RIGHTS.
9.2 The PURCHASER shall notify the SELLER and the COMPANY of its
decision following the completion of its due diligence within
the time limit stipulated in 9.1, failing which this agreement
shall lapse and be of no further force or effect.
10. PURCHASER'S OPTION
10.1 On or before 15 July 2004, the PURCHASER shall have the option
at its sole discretion, to advise the COMPANY whether it elects
to purchase either the SHARES and the CLAIMS or the MINING
RIGHTS.
10.2 The PURCHASER shall exercise the aforesaid option in writing by
notice to the SELLER and the COMPANY on or before the date
stipulated in 10.1 above, failing which the PURCHASER shall be
deemed to have elected to purchase the SHARES and the CLAIMS.
11. PUBLICITY
None of the parties hereto shall publish to any third party the
fact or any information concerning the conclusion of this
agreement, the terms hereof or the fact that the SELLER wishes
to sell the SHARES and the CLAIMS or the MINING RIGHTS or is
negotiating in this regard without the consent of the other
party save as necessary to implement this agreement or as may
be required by any stock exchange on which any of the parties
is listed.
12. NOTICES
12.1 Each party chooses as its address for all purposes under this
agreement ("domicilium address"), whether for serving any court
processes or documents, giving any notice, or making any other
communications of whatsoever nature and for any other purpose arising
from this agreement ("notice"), as follows:
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SELLER: 4 Parker Place
Bentley
Western Australia, 6983
P 0 Box 1002 Bentley, W.A. 6983
Fax No: (0961)893-554-433
Tel No: (0961)893-554-155
COMPANY: 4 Parker Place
Bentley
Western Australia, 6983
P 0 Box 1002 Bentley, W.A. 6983
Fax No: (0961)893-554-433
Tel No: (0961)893-554-155
PURCHASER: 5 Press Avenue, Selby
Johannesburg, 2001
P 0 Box 82291 Southdale, 2135
Fax No: (011) 837-3840
Tel No: (011) 309-6000
12.2 Any notice required or permitted to be given under this
agreement shall be valid and effective only if in writing.
12.3 Any party may by notice to the other party, change its
domicilium address to another physical address in the Republic
of South Africa and such change shall take effect on the
seventh day after the date of receipt by the party who last
receives the notice.
12.4 Any notice to a party contained in a correctly addressed
envelope and:
12.4.1 sent by prepaid registered post to it at its domicilium
address; or
12.4.2 delivered by hand to a responsible person during
ordinary business hours at its domicilium address,
shall be deemed to have been received, in the case of 12.4.1,
on the seventh business day after posting (unless the contrary
is proved) and, in the case of 12.4.2, on the date of delivery.
12.5 Notwithstanding anything to the contrary herein, a written
notice actually received by a party, including a notice sent by
telefax (`the first notice"), shall be an adequate notice to it
notwithstanding that it was not sent or delivered to its
domicilium address, provided that, within the next 3 (three)
days, a copy of the first notice is delivered to the domicilium
address, accompanied by a notice giving the following
particulars:
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12.5.1 where the first notice was sent by telefax, the date and
time of despatch and the telefax number to which it was
sent; and
12.5.2 where the first notice was delivered in a manner other
than by telefax, the manner of delivery, the date on
which it was delivered, the person by whom it was
received and where it was received.
13. GENERAL
13.1 This agreement constitutes the sole record of the agreement
between the parties with regard to the subject matter hereof.
No party shall be bound by any express or implied term,
representation, warranty, promise or the like not recorded
herein.
13.2 No addition to, variation of, or agreed cancellation of this
agreement shall be of any force or effect unless in writing and
signed by or on behalf of the parties.
13.3 No relaxation or indulgence which any party may grant to any
other shall constitute a waiver of the rights of that party and
shall not preclude that party from exercising any rights which
may have arisen in the past or which might arise in the future.
13.4 Any provision of this agreement which contemplates performance
or observance subsequent to any termination or expiration of
this agreement shall survive any termination or expiration of
this agreement and continue in full force and effect.
13.5 Unless expressly provided as being in the sole discretion of a
party, where approval, acceptance, consent or similar action by
a party is required under this agreement, such action shall not
be unreasonably delayed or withheld. Any approval or consent
given by a party under this agreement shall only be valid if in
writing and shall not relieve the other party from
responsibility for complying with the requirements of this
agreement nor shall it be construed as a waiver of any rights
under this agreement except as and to the extent otherwise
expressly provided in such approval or consent, or elsewhere in
this agreement.
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14. GOVERNING LAW
This agreement shall in all respects be governed by the laws of the
Republic of South Africa, except insofar as it relates to the
transfer of the MINING RIGHTS, which shall be governed by the
applicable laws of Sierra Leone.
15. COSTS
The PURCHASER shall bear the costs of and incidental to the drafting
and implementation of this agreement, including the stamp duty
payable.
SIGNED AT Johannesburg ON THIS THE 20th DAY OF June 2003 IN THE PRESENCE OF THE
UNDERMENTIONED WITNESSES.
AS WITNESSES: For and on behalf of the SELLER
PLATGOLD PACIFIC
LIMITED NL
1. /s/ J. Bailey /s/ W. Crosley
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2. signed - illegible DIRECTOR
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SIGNED AT JOHANNESBURG ON THIS THE 20th DAY OF JUNE 2003 IN THE PRESENCE OF THE
UNDERMENTIONED WITNESSES.
AS WITNESSES: For and on behalf of the
COMPANY
HAZCARE PTY LIMITED
3. /s/ J. Bailey /s/ W. Crosley
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4. signed - illegible
DIRECTOR
SIGNED AT Johannesburg ON THIS THE 20th DAY OF JUNE 2003 IN THE PRESENCE OF THE
UNDERMENTIONED WITNESSES.
AS WITNESSES: For and on behalf of the
PURCHASER
RANDGOLD &
EXPLORATION COMPANY
LIMITED
1. /s/ J. Bailey /s/ H.C. Buitendag
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2. signed - illegible
DIRECTOR