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XXXXXXXX XXXXX AGREEMENT
EXCHANGE AGENT AGREEMENT (this "Agreement") dated as of ______________,
2002 between RANDGOLD RESOURCES LIMITED, a corporation organized under the laws
of the Jersey (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation (the "Bank" or the "Exchange Agent").
W I T N E S S E T H:
WHEREAS, the Company and the Bank, as Depositary (the "GDR
Depositary"), entered into a Deposit Agreement dated as of July 1, 1997, as
amended and restated as of ____________, 2002, providing for issuance of Rule
144A Global Depositary Receipts ("GDRs") subject to restrictions on transfer as
specified therein representing ordinary shares, nominal value $0.10 per share
("Shares"), of the Company; and
WHEREAS, the Company and the Bank, as Depositary (the "Depositary"),
entered into a Deposit Agreement, dated as of ____________, 2002 (the "Deposit
Agreement"), providing for the issuance of American Depositary Receipts ("ADRs")
evidencing American Depositary Shares ("ADSs") representing Shares deposited
with the Depositary thereunder, which ADSs have been registered on Form F-6
under Registration Statement No. 333-______________ under the Securities Act of
1933, as amended; and
WHEREAS, the Company is offering to provide for issuance of ADSs to be
issued pursuant to the Deposit Agreement in exchange for any and all of its GDRs
(the "Exchange Offer") pursuant to an Exchange Offer Prospectus dated
_____________, 2002 (the "Prospectus") and, in connection with the Exchange
Offer, has registered the Shares underlying the ADRs on Form F-4 under the
Securities Act of 1933, as amended, under Registration Statement No.
333-____________; and
WHEREAS, the Company wishes to appoint the Exchange Agent as its agent
for the purpose of administering the Exchange Offer.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein, the parties agree as follows:
1. Appointment of Exchange Agent; Performance of Duties. The Company
hereby appoints the Exchange Agent as its agent for the exchange of GDRs into
ADSs, and the Exchange Agent accepts such appointment subject to the terms and
conditions contained in this Agreement.
2. Records of GDR Holders. The Company shall instruct the GDR
Depositary to provide to the Exchange Agent a list of the record holders of GDRs
(the
"Holders") and of the participants (the "Participants") in The Depository Trust
Company ("DTC") shown on DTC's records as having GDRs credited to their
respective DTC accounts, in each case as of the date of the Exchange Offer
Prospectus (the "Effective Date").
3. Documents. The Company shall provide the Exchange Agent with copies
of a letter of transmittal substantially in the form of Exhibit A attached
hereto (each a "Letter of Transmittal" and collectively the "Letter of
Transmittal"). The Exchange Agent shall take such action as my from time to time
be requested by the Company or its counsel to furnish copies of the Letters of
Transmittal to all persons requesting such documents.
4. Exchange Agent Responsibilities. The Exchange Agent shall examine
any GDRs, Letters of Transmittal, and messages received through the DTC system
relating to tenders of GDRs stating, in substance, that the Participant has
received a copy of the Letter of Transmittal and that such Participant and its
tendering customer agree to be bound by the terms of the Letter of transmittal
(each such message, an "Agent's Message") and other documents received by it to
ascertain that (a) each Letter of Transmittal is completed and duly executed in
accordance with the instructions therefor, (b) any other document required by
the instructions accompanying the Letters of Transmittal is completed and duly
executed in accordance with such instructions, (c) the names shown on such GDRs
or on any confirmation received from DTC evidencing the transfer of GDRs to the
account of the Exchange Agent and the corresponding Letter of Transmittal or
Agent's Message correspond exactly with the names shown on the list supplied
pursuant to Paragraph 2 of this Agreement, and (d) no "stop transfer" notations
are in effect against the GDRs submitted for exchange. Except as otherwise
provided in this Paragraph 4, GDRs shall not be deemed to be properly tendered
unless all of the foregoing requirements are met prior to the Expiration Date
(to be be defined as per the Prospectus). The Exchange Agent shall take all
steps as it shall deem reasonable and appropriate to inform the person tendering
GDRs pursuant to the Exchange Offer to correct any defect that exists in any
Letter of Transmittal or accompanying document or Agent's Message. In the event
such defect is not cured by the tendering Holder or Participant, as the case may
be, the Exchange Agent shall promptly send to the Company any Letter of
Transmittal or Agent's Message or other document or copies thereof containing
any defect therein, which in its judgment would prevent acceptance thereof,
together with a request for instructions as to actions to be taken with respect
thereto in accordance with Paragraph 10(f) of this Agreement. A Letter of
Transmittal need not accompany GDRs tendered for exchange if the Exchange Agent
has received an Agent's Message in proper form with respect to such GDRs. The
Company reserves the right, if it so elects in its discretion, to waive the
failure of any delivery of GDRs, Letter of Transmittal or other document
pursuant to the Exchange Offer to comply with any requirement of this Paragraph
4 or the Letter of Transmittal.
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The Company reserves the right to terminate or, prior to the Expiration
Date, amend the Exchange Offer as provided in the Prospectus. If notified in
writing by the Company of termination of the Exchange Offer, the Exchange Agent
shall as promptly as practicable return all tendered GDRs to the tendering
Holder or Participant. If notified by the Company of an amendment of the
Exchange Offer, the Exchange Agent shall follow the reasonable instructions of
the Company contained in such notice to the extent consistent with this
Agreement.
5. Withdrawal Rights. It is understood that Holders and Participants,
on behalf of their customers which beneficially own GDRs, tendering pursuant to
the Exchange Offer are not entitled to withdraw their tenders.
6. Acceptance and Exchange.
(a) At any time after the Expiration Date, upon receiving a
notice from the Company directing the exchange of properly tendered GDRs, the
Exchange Agent shall, as agent of the Company and subject to all the conditions
of the Exchange Offer, accept for exchange all GDRs properly tendered in
accordance with this Agreement which are not properly withdrawn prior to the
Expiration Date. Thereafter, unless notified otherwise by the Company, the
Exchange Agent shall continue to accept for exchange all GDRs which are properly
delivered to the Exchange Agent pursuant to Notices of Guaranteed Delivery (as
defined in the Prospectus) but shall not accept any other GDRs for exchange.
(b) Following such acceptance of GDRs, the Exchange Agent shall
promptly present all such GDRs to the GDR Depositary with instructions that the
GDR Depositary (1) cancel such GDRs and (2) instruct its custodian that the
Shares represented by such GDRs shall be held for the Depositary under the
Deposit Agreement. The Exchange Agent properly shall notify the Depositary of
(A) the names of the Holders and Participants on whose behalf GDRs have been so
presented and the number of GDRs so presented on behalf of each and (B) the
instructions for delivery of ADSs provided in the Letter of Transmittal or
Agent's Message submitted by each such Holder and Participant.
(c) Each day upon which the Exchange Agent receives one or more
Letters of Transmittal or Agent's Messages, the Exchange Agent shall provide the
Company with a written account of the following information: (1) the number of
properly tendered GDRs submitted that day; and (2) the cumulative number of
properly tendered GDRs submitted and not properly withdrawn through such day.
Upon the request of the Company, the Exchange Agent shall provide the Company
with a written account of (1) the number of GDRs covered by defective tenders
submitted up to the date of such request; and (2) the cumulative number of GDRs
covered by uncorrected defective tenders up to the date of such request.
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(d) The Exchange Agent shall request the Depositary to deliver
such ADSs as are required for delivery hereunder.
7. Assignees; Signatures. If an ADR or beneficial ownership thereof is
to be delivered to or reflected on DTC's records as belonging to an assignee of
the Holder or beneficial owner of the surrendered GDRs, the Exchange Agent shall
first require a check from the assignee or the Holder or beneficial owner in the
amount of any stock transfer taxes applicable to such transfer unless
satisfactory evidence of the payment of such tax, or exemption therefrom, is
submitted.
The signature (or signatures, in the case of any GDRs owned by two or
more joint holders) on a Letter of Transmittal must correspond exactly with the
name(s) appearing on the list furnished pursuant to Paragraph 2 of this
Agreement.
8. Records. The Exchange Agent shall maintain, on a continuing basis,
in addition to the information required by Paragraph 6 of this Agreement, a
record showing the following: (i) the names and addresses of all Holders and
Participants who have tendered GDRs for exchange and of all Holders and
Participants to whom ADSs have been issued or to whose DTC account ADSs have
been credited, (ii) the number of GDRs held by each such Holder or Participant,
(iii) the number of GDRs tendered by and ADSs issued to each such Holder or
Participant, (iv) the number, if any, of GDRs not tendered by such Holder or
Participant, and (v) the names of all Holders and Participants who have not
tendered their GDRs for exchange and the number of such untendered GDRs held by
each such Holder or Participant. Upon the request of the Company, the Exchange
Agent shall provide the Company with a report setting forth the information
maintained pursuant to this Paragraph 8 of this Agreement, together with such
other information as may from time to time be reasonably requested.
9. Fees.
(a) In consideration of the services to be rendered pursuant to
this Agreement, the Company shall compensate the Exchange Agent in accordance
with and pursuant to a written Fee Schedule as may be agreed upon by the Company
and the Exchange Agent from time to time plus the Exchange Agent's reasonable
and necessary disbursements, charges and out-of-pocket expenses and counsel fees
and expenses incurred in connection with the preparation and execution of this
Agreement and the services rendered by the Exchange Agent hereunder.
(b) No provision of this Agreement shall require the Exchange
Agent to expend or risk the Exchange Agent's own funds or otherwise incur any
financial liability in the performance of any of the Exchange Agent's duties
hereunder or in the exercise of the Exchange Agent's rights.
(c) It is understood that the GDR Depositary will waive surrender
fees for GDRs accepted in the Exchange Offer, but that the Depositary and the
GDR
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Depositary may charge presenting brokers or holders any and all other fees and
charges provided under the deposit agreements including, without limitation, the
Depositary's fee for the issuance of ADSs.
10. Limitation of Duties. As Exchange Agent hereunder, the Exchange Agent:
(a) shall have no duties or obligations other than those specifically
set forth herein;
(b) will be regarded as making no representations and having no
responsibilities with regard to determining the validity, sufficiency, value or
genuineness of any GDRs or ADSs or any Letter of Transmittal or Agent's Message
or other documents deposited with or delivered to the Exchange Agent hereunder
or any signature or endorsement in connection therewith and will not be required
and will make no representations as to their validity, value or genuineness;
(c) shall not be obligated to take any legal action hereunder which
might in the judgment of the Exchange Agent involve any expense or liability
unless the Exchange Agent shall have been furnished with indemnity satisfactory
to it as often as may be required;
(d) may apply to the Company for written instructions with respect to
any matter arising in connection with the Exchange Agent's duties and
obligations arising under this Agreement (which application shall be made via
facsimile to the Company's facsimile number set forth in Section 14 below), and
such application by the Exchange Agent for written instructions from the Company
may, at the option of the Exchange Agent, set forth in writing any action
proposed to be taken or omitted by the Exchange Agent with respect to its duties
or obligations under this Agreement and the date or dates on or after which such
action shall be taken. The Exchange Agent shall not be liable for any delay in
acting while waiting for those instructions nor shall the Exchange Agent be
liable for any action taken or omitted in accordance with a proposal included in
any such application on or after the date specified therein (which date shall
not, without the Company's consent, be less than two business days after the
Company is deemed to have received such application) unless, prior to taking or
omitting any such action, the Exchange Agent has received written instructions
from the Company in response to such application specifying the action to be
taken or omitted. The right conferred by this Paragraph 10(f) shall be limited
by the requirement in Paragraph 4 of this Agreement that, with respect to
defects in any Letter of Transmittal or accompanying document, the Exchange
Agent shall take such steps as it shall deem reasonable and appropriate to
correct the same before applying to the Company under this Paragraph 10(f) for
instructions.
(e) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity
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and effectiveness of its provisions, but also as to the truth and accuracy of
any information contained therein, which you shall in good faith believe to be
genuine or to have been signed or represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from any officer of the Company;
(g) may consult with the Company's counsel with respect to any
questions relating to your duties and responsibilities and the opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by you hereunder in good faith
and in accordance with the advice or opinion of such counsel; and
(h) may rely upon and comply with, and shall incur no liability for
relying upon and complying with, any Letter of Transmittal, certificate,
instrument, opinion of counsel, notice, letter, telegram or other document or
security delivered to it in connection with this Agreement, and shall have no
duties, responsibilities or obligations with respect to determining the
validity, sufficiency or genuineness of such document or security;
(i) may consult with counsel for the Company or its own counsel (which
may be in-house counsel) and rely upon any opinion of such counsel, and shall
have no liability in respect of any action taken, omitted or suffered by the
Exchange Agent hereunder in reliance upon, and in accordance with, any such
opinion;
(j) shall escheat any property held by the Exchange Agent in
accordance with applicable law; and
(k) may perform any duties hereunder either directly or by of through
the Exchange Agent's nominees, correspondents, designees, agents, subagents or
subcustodians and the Exchange Agent shall not be responsible for any misconduct
or negligence on the part of any nominee, correspondent, designee, agent,
subagent or subcustodian.
(l) shall not advise any person tendering GDRs pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market value
or decline or appreciation in market value of any GDRs.
11. Court Orders. If any property subject hereto is at any time attached,
garnished or levied upon under any court order or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by any court affecting such property or any part
thereof, then and in any such event the
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Exchange Agent is authorized, in its sole discretion, to rely upon and comply
with any such order, writ, judgment or decree which it is advised by legal
counsel of its own choosing is binding upon it; and, if it complies with any
such order, writ, judgment or decree, it shall not be liable to any of the
parties hereto or to any other person, firm or corporation by reason of such
compliance even though such order, writ, judgment or decree may be subsequently
reversed, modified, annulled, set aside or vacated.
12. Indemnification.
(a) The Exchange Agent shall not be liable for any Losses (as defined
below) or action taken or omitted or for any loss or injury resulting from its
actions or performance or lack of performance of its duties hereunder in the
absence of gross negligence or willful misconduct on its part, in which case it
shall be liable for only those Losses caused by such conduct. In no event shall
the Exchange Agent be liable for (i) acting in accordance with the instructions
from the Company or its counsel or any agent appointed by the Company to act on
behalf of the Company, (ii) special, consequential or punitive damages, for lost
profits or for loss of business, or (iii) any Losses due to forces beyond the
control of the Exchange Agent, including without limitation, strikes, work
stoppages, acts of war or terrorism, insurrection, revolution, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services.
(b) The Company shall be liable for and shall indemnify hold harmless
the Exchange Agent from and against any and all claims, losses, liabilities,
damages, expenses or judgments (including attorneys' fees and expenses)
(collectively referred to herein as "LOSSES") howsoever arising from or in
connection with this Agreement or the performance of the Exchange Agent's duties
hereunder, the enforcement of this Agreement and disputes between the parties
hereto; provided, however, that nothing contained herein shall require that the
Exchange Agent be indemnified for the liability it has accepted under the
preceding paragraph 12(a).
13. Amendments. This Agreement may be amended only by an instrument in
writing executed by the parties hereto or their successors and assigns.
14. Reports; Notices. All reports, notices, applications (including
applications for instructions in accordance with Paragraph 10(f) of this
Agreement) and other communications required or permitted hereunder shall be in
writing and shall be deemed given when addressed and delivered by facsimile
transmission, which delivery may be followed by delivery by hand or overnight
delivery service, to the address for the party set forth below or at such other
address as a party may furnish by like notice to the other parties hereto.
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If to the Company:
Randgold Resources Limited
Attention: Director (Finance)
Facsimile: 00-00-000-0000
If to the Exchange Agent:
The Bank of New York
Attention: [ADR Administration]
Facsimile No.: (000) 000-0000
Delivery of a notice sent by facsimile transmission shall be deemed to be
effective when delivery has been confirmed by telephone.
15. Lost , Stolen or Destroyed Certificates. If any Holder reports to the
Exchange Agent that such Holder's failure to surrender a GDR registered in such
Holder's name prior to the Expiration Date is due to the loss or destruction of
such Holder's GDR, the Exchange Agent will require such Holder to furnish an
affidavit of loss in a form satisfactory to the Exchange Agent and a bond of
indemnity on the Exchange Agent's standard loss security blanket bond form. Upon
receipt of such affidavit of loss and bond of indemnity, the Exchange Agent will
effect an exchange for the Holder as though such Holder had surrendered its GDR.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one agreement.
17. Instructions. The Exchange Agent may rely upon and comply with any
written instructions signed by _____________________________ of the Company or
by counsel to the Company with respect to matters pertaining to this Agreement
and to all of the transactions contemplated hereby.
18. Termination. This Agreement shall terminate on _______________, 200[2]
or on such earlier date as may be agreed in a signed writing between the Company
and the Exchange Agent.
Upon termination, copies of all information maintained by the Exchange
Agent for the Company under this Agreement shall be delivered to the Company as
soon as practicable following the Company's request for such information. The
right of the Exchange Agent to be reimbursed for out-of-pocket expenses as
provided in Paragraph 9 of this Agreement and the indemnification provisions of
Paragraph 12 of this Agreement shall survive termination of this Agreement.
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19. Entire Agreement; Amendment. This Agreement shall constitute the entire
agreement of the parties with respect to the subject matter and supersedes all
prior oral or written agreements in regard thereto. References to the Prospectus
or any other document or agreement shall not incorporate by reference such other
document or agreement into this Agreement and shall not impose any duties or
responsibilities, obligations or liabilities on the Exchange Agent under such
other document or agreement. Except as otherwise specifically provided herein,
this Agreement may be amended only by an instrument in writing duly executed by
both parties hereto.
20. Representations and Warranties. The Company hereby represents, warrants
and covenants that:
(a) The Company is a corporation duly organized and validly existing
under the laws of [Jersey].
(b) This Agreement has been duly authorized, executed and delivered on
its behalf and constitutes the legal, valid and binding obligation of the
Company. The execution, delivery and performance of this Agreement by the
Company does not and will not violate any applicable law or regulation and does
not require the consent of any governmental or other regulatory body except for
such consents and approvals as have been obtained and are in full force and
effect. For the avoidance of doubt, all the Company Shares to be issued and
deposited with the Depositary against the issuance of ADSs to be delivered
hereunder have been registered with the Securities and Exchange Commission and
all transactions contemplated by this Agreement are in compliance with, and not
in violation of, the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended.
21. No Third Party Beneficiaries. This Agreement is for the exclusive
benefit of the parties hereto and shall not be deemed to give any legal or
equitable right, remedy or claim whatsoever to any other person.
22. Governing Law.
(a) This Agreement shall be interpreted and construed in accordance
with the internal substantive laws of the State of New York. All actions and
proceedings brought by the Exchange Agent relating to or arising from, directly
or indirectly, this Agreement may be litigated in courts located within the
State of New York. The Company hereby submits to the personal jurisdiction of
such courts; hereby waives personal service of process and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified for
notices hereunder; and hereby waives the right to a trial by jury in any action
or proceeding with the Exchange Agent. All actions and proceedings brought by
the Company against the Exchange Agent relating to or arising from,
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directly or indirectly, this Agreement shall be litigated only in courts located
within the State of New York.
(b) The invalidity, illegality or unenforceability of any
provision of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision; and if any provision is held to be
unenforceable as a matter of law, the other provisions shall not be affected
thereby and shall remain in full force and effect.
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IN WITNESS WHEREOF, RANDGOLD RESOURCES LIMITED and THE BANK OF NEW YORK
have duly executed this Agreement as of the date first set forth above.
RANDGOLD RESOURCES LIMITED
By:_________________________________
Name:___________________________
Title:__________________________
THE BANK OF NEW YORK
By:_________________________________
Name:___________________________
Title:__________________________
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EXHIBIT A
[Form of Letter of Transmittal]
