Settlement Agreement - Rolls-Royce Power Ventures Ltd., Syana Power Plant Sales Ltd., Operation D'Energie de Syama SA, Societe des Mines de Syama SA, Randgold Resources Ltd. and Randgold & Exploration Co. Ltd.
THIS AGREEMENT is made the 16th day of December 2002
BETWEEN: -
(1) ROLLS-ROYCE POWER VENTURES LIMITED whose registered office is at
Allington House, 150 Victoria Street, London SW1E 5LB ("RRPV");
(2) SYAMA POWER PLANT SALES LIMITED whose registered office is at Allington
House, 150 Victoria Street, London SW1E 5LB ("SYPPS");
(3) OPERATION D'ENERGIE DE SYAMA S.A. whose registered office is at Avenue de
l'OUA, BP 3013, Barnako, Mali ("OES");
(4) SOCIETE DES MINES DE SYAMA S.A. whose registered office is at 104, Rue
21, Hippodrome, BP E1160, Barnako, Mali ("SOMISY");
(5) RANDGOLD RESOURCES LIMITED whose registered office is at La Motte
Chambers, St. Helier, Jersey JE1 1BL ("RRL"); and
(6) RANDGOLD & EXPLORATION COMPANY LIMITED whose registered office is at 5
Press Avenue, Selby, Johannesburg 2025, South Africa ("RECL")
WHEREAS: -
A. SOMISY and RRPV (on behalf of itself and, after notice was given on 23
February 2001 pursuant to Clause 2.4 of the DTA, SYPPS) entered into an
agreement dated 25 February 2000 (the "DTA") for the provision of works
and services in relation to the provision of power to a gold mine at
Syama, Mali, as more particularly described in the DTA;
B. By a guarantee dated 25 August 2000 (the "Guarantee"), RRL and RECL
guaranteed the obligations of SOMISY under the DTA;
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C. SOMISY and RRPV (on behalf of itself and, once notice was given on 23
February 2001, OES) entered into an agreement dated 25 February 2000 (the
"ESA") under which OES agreed to operate and maintain the power
generation facility for the provision of electricity to SOMISY for 10
years;
D. Disputes have arisen between SOMISY and SYPPS under the DTA and between
SYPPS and RRL and RECL under the Guarantee in relation to which SYPPS
issued a Claim Form in the Technology and Construction Court (reference
number HT-02-41) on 8 February 2002;
E. The parties have agreed to resolve the disputes and potential disputes
arising under and in connection with the DTA, the ESA and the Guarantee
on the terms set out in this Agreement provided always that nothing
contained in this Agreement constitutes any admission of liability by any
party in relation to any claims that any other party might have against
them in relation to the DTA, the ESA or the Guarantee whether pleaded in
the Litigation or not.
NOW IT IS HEREBY AGREED as follows: -
1. DEFINITIONS
1.1 Whenever the following terms appear in this Agreement they shall have the
meanings stated below, unless the context requires otherwise:
"AGREEMENT" means this agreement;
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"ASSOCIATED COMPANY" means any company, body corporate, firm, partnership
or other legal entity in respect of which any of the Somisy Parties have
or establish or acquire for the purposes of the New Project a Controlling
Interest within a two (2) year period from the date of this Agreement;
"BANKING DAY" means a day on which banks are open for business in London;
"CONTROLLING INTEREST" means in relation to another company or other
legal entity:-
(i) the majority of the voting rights; or
(ii) the right to appoint or remove a majority of the board of
directors; or
(iii) the right to exercise a dominant influence by virtue of
provisions contained in the memorandum or articles or by
virtue of a control contract;
or
(iv) control pursuant to an agreement with other shareholders
or members of a majority of the voting rights
in that other company;
"INTEREST RATE" means the rate per annum, which is the aggregate of LIBOR
plus 2%;
"LIBOR" means the US Dollar Libor rate for the relevant period set out in
Clause 2.4 as set out in the "Financial Times" of London by convention on
the day following the commencement of such period;
"LITIGATION" means the proceedings between SYPPS, RRL and RECL in the
Technology and Construction Court (reference number HT-02-41);
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"NEW PROJECT" means the next gold mine to be developed or opened by any
of the Somisy Parties or any Associated Company at either Loulo in Mali
or Tongon in the Ivory Coast, for which any person is requested or
invited to bid for the supply of power thereto in an amount of at least 3
MW within a period of two (2) years from the date of this Agreement;
"RANDGOLD COMPANY" means any of SOMISY, RRL, RECL and/or any company,
body corporate, firm, partnership or other legal entity in which any of
them, whether jointly or severally, hold an interest;
"RR COMPANY" means any of RRPV, SYPPS, OES and/or any company, body
corporate, firm, partnership or other legal entity in which any of them,
whether jointly or severally, hold an interest;
"SETTLEMENT SUM" means the sum of US$5,300,000 (five million and three
hundred thousand US Dollars);
"SOMISY PARTIES" means, together, SOMISY, RRL and/or RECL;
"TAX" or "TAXATION" means all forms of taxation and statutory,
governmental, state, federal, provincial, local government or municipal
charges, duties, imposts, contributions, levies, withholdings or
liabilities wherever chargeable and whether of the UK or any other
jurisdiction, and any penalty, fine, surcharge, interest, charges or
costs payable in connection with any Taxation within this definition; and
"VAT" means value added tax.
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Defined terms used in this Agreement, which are not defined in Clause 1.1
above, shall have the meanings assigned to them in the DTA, unless the
context requires otherwise.
2. PAYMENT
2.1 Any one or more of the Somisy Parties shall pay to SYPPS the Settlement
Sum, as damages, to the account of SYPPS, account number 23957201, JP
Morgan Chase, 125 London Wall, London EC2Y 5AJ, Swift code CHASGB2L, or
to such other account as SYPPS may from time to time nominate in writing
in the following installments:
2.1.1 US$2,650,000 (two million six hundred and fifty thousand US
Dollars) shall be payable within twenty-one (21) days of the date
of this Agreement;
2.1.2 US$1,325,000 (one million three hundred and twenty five thousand
US Dollars) shall be payable on the first anniversary of the date
of this Agreement;
2.1.3 US$1,325,000 (one million three hundred and twenty five thousand
US Dollars) shall be payable on the second anniversary of the date
of this Agreement;
For the avoidance of doubt SYPPS shall be obliged to pay all Taxation
(including VAT, if applicable) due on the Settlement Sum other than any
and all Taxation arising from the original importation of the Equipment
into Mali.
2.2 Interest shall accrue on any outstanding part of the Settlement Sum at
the Interest Rate and be calculated on a day to day basis on a year of
three hundred and sixty (360) days:-
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2.2.1 in respect of the period from the date of this Agreement until the
first anniversary of the date of this Agreement, using LIBOR for
the twelve (12) month period commencing on the date of this
Agreement;
2.2.2 in respect of the period from the first anniversary of the date of
this Agreement until the second anniversary of the date of this
Agreement, using LIBOR for the twelve (12) month period commencing
on the date which is the first anniversary of the date of this
Agreement; and
2.2.3 in respect of any amount not paid when due and in respect of the
period whilst unpaid, using overnight LIBOR as quoted for each day
during which such amount is unpaid.
2.3 Any interest unpaid when due shall be compounded with and added to the
Settlement Sum and shall itself bear interest at the Interest Rate.
2.4 If any period would commence or payment is due on a day, which is not a
Banking Day, the Interest Rate for each period shall instead commence on
or such payment date shall be extended to the next following Banking Day.
2.5 Interest accrued in accordance with Clause 2.2 above shall be payable by
the Somisy Parties to SYPPS together with the payment of the relevant
part of the Settlement Sum in accordance with Clause 2.1 above.
<PAGE>
3. RETURN OF EQUIPMENT
3.1 SOMISY shall allow SYPPS, on fourteen (14) days' written notice to SOMISY
given at any time prior to 31 August 2003, to enter the Site for the
purposes of decommissioning and removing all items listed in Appendix 1
(the "Equipment"). SYPPS shall be responsible for and shall pay for the
decommissioning, packaging, loading and transport of the Equipment, and
SYPPS shall leave the Site in a proper state of repair. SYPPS must obtain
permission from SOMISY should SYPPS decide not to remove a particular
item or items of the Equipment.
SOMISY shall pay any outstanding import duties or other charges relating
to the original importation of the Equipment into Mali but otherwise
shall not be liable for any new or other Taxation arising from the
removal by SYPPS of the Equipment.
SOMISY hereby grants to SYPPS and its representatives a licence to enter
the Site for the purposes stated in this Clause 3.1 and agrees to do all
further acts and execute all further documents which may be necessary to
effect such removal and to allow the export of any of the Equipment from
Mali and/or the removal thereof from the Site to another location in
Mali. For the avoidance of doubt for the purposes of this Clause 3.1
should SYPPS require the export from Mali of any items of the Equipment,
SOMISY agrees to be named as exporter of such items, and to execute all
necessary documents required, and give any other reasonable assistance to
effect such export.
3.2 Risk in and title to the Equipment shall remain with SYPPS.
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3.3 Any costs, which may be incurred by any party in complying with its
obligations under this Clause 3, shall be borne by that party except as
otherwise provided in Clause 3.1.
3.4 For the avoidance of doubt, unless an item is specifically listed as
Equipment, the items referred to in the DTA as the `Balance of Plant'
shall be retained by, and risk in and title to such items shall remain
vested in, SOMISY.
4. INVITATIONS TO TENDER
4.1 RRL agrees to grant, or to procure that any of its Associated Companies
grant RRPV (or such other RR Company as from time to time may be notified
by RRPV to RRL) the opportunity to bid for any contract for the supply of
power to the New Project.
4.2 If such RR Company does not submit a bid in a compliant form with respect
to the New Project, then RRL (or its Associated Company, as the case may
be) may award the contract for the power supply to the New Project to any
third party.
4.3 In the event that a RR Company submits a compliant bid and, after
consideration of all compliant bids submitted for the New Project, RRL or
its Associated Company does not intend to award the New Project power
supply to such RR Company, then, before awarding the same to any third
party, RRL agrees that it (or its Associated Company, as the case may be)
shall invite such RR Company to submit a revised bid with respect to the
New Project and shall consider any revised bid so submitted by such RR
Company.
4.4 Such RR Company shall then either submit a revised bid in response to
such invitation or advise RRL or its Associated Company that it does not
intend to do so.
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4.5 RRL agrees, on behalf of itself and its Associated Companies, that any
bids submitted by any RR Company pursuant to this Clause 4 shall be given
fair and proper consideration.
4.6 For the avoidance of doubt the provisions of this Clause 4, which impose
obligations on RRL and its Associated Companies, are not intended to
impose obligations on any person other than RRL and its Associated
Companies.
5. SETTLEMENT
5.1 The parties to this Agreement agree that the terms of this Agreement are
in full and final settlement of all and any claims any of them may have
under or in relation to the DTA and/or the ESA and/or the Guarantee
(whether pleaded in the Litigation or not, whether presently existing or
yet to arise, whether presently known to the parties or not, and whether
arising pursuant to the terms of the DTA and/or the ESA and/or the
Guarantee, for breach of the DTA and/or the ESA and/or the Guarantee, in
tort, for breach of statutory duty or otherwise).
5.2 The parties agree that nothing contained in this Agreement constitutes an
admission of liability by any party in relation to any claims that any
other party might have against them in relation to the DTA, the ESA or
the Guarantee, whether pleaded in the Litigation or not.
5.3 Each party to this Agreement agrees that it shall bear its own costs of
negotiating and executing this Agreement.
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5.4 SYPPS, RECL and RRL shall each bear their own costs incurred in relation
to the Litigation.
5.5 Upon execution of this Agreement, the parties to the Action pending in
the Technology and Construction Court (reference HT-02-41) shall take all
steps necessary to obtain the dismissal of that Action, with each party
bearing its own costs, and in particular shall lodge with the Court a
signed Minute of Order in the form of the attached draft, Appendix 3.
6. GENERAL
6.1 Any obligations owed by SOMISY under this Agreement are owed by SOMISY,
RRL and RECL, jointly and severally. Likewise any obligations owed by
SYPPS under this Agreement are owed by RRPV, SYPPS and OES jointly and
severally.
6.2 SYPPS agrees on behalf of itself and all RR Companies, and the Somisy
Parties agree on behalf of themselves and all Randgold Companies, that
they shall hold in confidence this Agreement and all information and
documents relating to it and/or to the Litigation and that none of them
shall issue any public statement(s) whatsoever concerning the Litigation
and/or the existence or terms of this Agreement or any information or
documents relating thereto except:-
6.2.1 with the prior written consent of either RRPV, in the case of a
Somisy Party or any Randgold Company, or RRL in the case of a RR
Company, such consent not to be unreasonably withheld; or
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6.2.2 as may necessarily be required by law, any relevant stock exchange
or other competent regulatory authority; or
6.2.3 in the case of a public statement which is in the form of the
jointly approved statement attached hereto as Appendix 2.
7. RESIDUAL LIABILITIES
The parties to this Agreement agree for the avoidance of doubt that there
are no residual liabilities arising under or in connection with the DTA,
ESA, the Guarantee or any associated agreements and that all obligations
under the DTA, ESA, the Guarantee or any associated agreements are to be
regarded as fully discharged.
8. APPLICABLE LAW
8.1 This Agreement shall be governed by and construed in accordance with the
law of England and Wales.
8.2 The parties hereto hereby submit to the exclusive jurisdiction of the
High Court of England and Wales for the resolution of any dispute arising
under or in connection with this Agreement, subject only to the rights of
the parties to enforce a judgment obtained in the English courts in any
other jurisdiction.
8.3 For the purposes of Clause 8.2, SOMISY, RECL and RRL hereby irrevocably
appoint Herbert Smith, solicitors, of Exchange House, Primrose Street,
London EC2A 2HS to accept service of any documents served in relation to
any proceedings relating to any dispute arising under or in connection
with this Agreement on their behalf, and RRPV,
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SYPPS and OES hereby irrevocably appoints CMS Cameron McKenna,
solicitors, of Mitre House, 160 Aldersgate Street, London EC1A 4DD to
accept service of any documents served in relation to any proceedings
relating to any dispute arising under or in connection with this
Agreement on their behalf.
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SIGNED:
ROLLS-ROYCE POWER VENTURES LIMITED
By: /s/ John B. Cheatham
------------------------
Name: John B. Cheatham
------------------------
Title:
------------------------
SYAMA POWER PLANT SALES LIMITED
By: /s/ John B. Cheatham
------------------------
Name: John B. Cheatham
------------------------
Title:
------------------------
OPERATION D'ENERGIE DE SYAMA S.A.
By: /s/ Mark Mencel
------------------------
Name: Mark Mencel
------------------------
Title:
------------------------
SOCIETE DES MINES DE SYAMA S.A.
By: /s/ C.J. Prinsloo
------------------------
Name: C.J. Prinsloo
------------------------
Title: Financial Director
------------------------
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RANDGOLD RESOURCES LIMITED
By: /s/ D. M. Bristow
------------------------
Name: D. M. Bristow
------------------------
Title: Director
------------------------
RANDGOLD & EXPLORATION COMPANY LIMITED
By: /s/ R.A.R. Kebble
------------------------
Name: R.A.R. Kebble
------------------------
Title: Director
------------------------
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APPENDIX 1
THE EQUIPMENT
5012 Engine 2 Units
Turbo-chargers 2 Pairs
Engine Flexibles (set of 4) 2 Sets
Exhaust transition pieces 2 Sets
Air intake transition pieces 2 Units
Platforms and ladders 2 Sets
Flexible coupling 2 Units
Oil mist detector 2 Units
Motor driven compressor 2 Units
Compressor control panel 1 Unit
Starting Air Receiver 2 Units
Strainer assemblies 2 Units
Filter / drier assembly 2 Units
Lubricating oil filter and cooler module 2 Units
Fill valve assembly 2 Units
Diesel transfer pump 2 Units
Flowmeter assembly 2 Units
Fuel oil bus rail module 2 Units
Control oil module 2 Units
Exhaust details (Silencer, Manifold and spares) 2 Sets
Exhaust flexibles (turbocharger side) 4 Units
Exhaust flexible (silencer side) 2 Units
Charge air filter, site mounted 2 Units
Charge air silencer 2 Units
Charge air flexibles 4 Units
Jacket water thermostat 2 Units
Secondary cooling water thermostat 2 Units
Jacket water heating module (attached to engine) 2 Units
Air blast cooler 2 Units
Special engine tools 1 Lot
AC Generator (1 x 3.3kV and 1 x 11kV) 2 Units
Generator neutral earthing contactor board 2 Units
Generator neutral earthing resistor 2 Units
LV Engine Auxiliary MCC, including local LV cables 2 Units
24V DC batteries and charger 1 Unit
Engine Local Control Panels including cables 2 Units
Fuel treatment module (Alfa Laval) 1 Unit
Oil treatment trolley (Alfa Laval) 1 Unit
Steel structures for charge air duct and silencer support 1 Lot
Steel structures for exhaust duct and silencer support 1 Lot
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APPENDIX 2
DRAFT FORM OF PUBLIC STATEMENT
"Following the closure of Randgold's Syama mine in Mali, Randgold Resources and
Rolls-Royce Power Ventures have settled their dispute regarding the power supply
to that mine. The settlement includes the return to Rolls-Royce Power Ventures
of the power generation equipment. Rolls-Royce Power Ventures will be paid $5.3
million, and Randgold will retain the balance of plant relating to the mine.
Rolls-Royce Power Ventures and Randgold will continue their relationship at the
Morila mine in Mali."
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APPENDIX 3
IN THE HIGH COURT OF JUSTICE
---------------------------- CLAIM NO.
HT-02-41 --------
--------
QUEEN'S BENCH DIVISION
----------------------
TECHNOLOGY AND CONSTRUCTION COURT
---------------------------------
B E T W E E N :-
SYAMA POWER PLANT SALES LIMITED
CLAIMANT
-------
- AND -
(1) RANDGOLD RESOURCES LIMITED
(2) RANDGOLD AND EXPLORATION COMPANY
LIMITED
DEFENDANTS
----------
------------------------------------------------------------
DRAFT / ORDER
------------------------------------------------------------
UPON terms of settlement having been agreed by the parties
AND UPON the parties agreeing not to enforce any existing orders for costs
BY CONSENT IT IS ORDERED THAT:-
1. this Action be dismissed; and
2. there be no Order as to costs.
Dated the day of 2002
We agree to an Order in the above terms We agree to an Order in the above terms
--------------------------------------- ---------------------------------------
CMS Cameron McKenna Herbert Smith
Solicitors for the Claimant Solicitors for the Defendants