THIRD CONTRACT OF EMPLOYMENT
between
RANDGOLD RESOURCES LIMITED
(registration number 62686)
a Company incorporated in Jersey, Channel Islands
("the Company")
and
XXXXX XXXXXXX XXXXX KEBBLE
(the "Employee")
TABLE OF CONTENTS
PAGE
1. INTRODUCTION..........................................................2
2. EMPLOYMENT............................................................2
3. DUTIES................................................................2
4. SECOND CONTRACT OF EMPLOYMENT.........................................4
5. REMUNERATION PACKAGE..................................................4
6. SECURITY..............................................................5
7. EXPENSES..............................................................5
8. BONUS SCHEME..........................................................5
9. HOLIDAYS..............................................................8
10. LIFE ASSURANCE........................................................8
11. APPLICATION OF PROVISIONS OF PERSONNEL MANUALS........................8
12. INCAPACITY............................................................9
13. TERMINATION...........................................................9
14. CONFIDENTIALITY AND RESTRAINT........................................10
15. RETURN OF COMPANY PROPERTY...........................................12
16. DOMICILIUM...........................................................13
17. GENERAL..............................................................14
THE PARTIES AGREE AS FOLLOWS:
1. INTRODUCTION
It is recorded that--
1.1 the Employee is at present employed by the Company in the
position of Executive Chairman in terms of a written contract
of employment ("Second Contract of Employment").
1.2 the parties have negotiated and now wish to record the terms
of a further contract of employment ("Third Contract of
Employment").
2. EMPLOYMENT
2.1 Notwithstanding the date of signature hereof, the Employee
shall be deemed to have been employed by the Company under
this Third Contract of Employment as from the 1st OCTOBER 2002
("Commencement date").
2.2 The employment of the Employee as Executive Chairman of the
Company shall continue for a minimum fixed term until 31st May
2006 and shall continue for an indefinite period thereafter,
until terminated on not less than 6 (six) month's written
notice given by one party to the other, which notice may be
given so as to terminate the Employee's employment with effect
from the expiry date of the minimum fixed term or any later
date.
3. DUTIES
3.1 As Executive Chairman of the Company, the Employee shall:
3.1.1 discharge the responsibilities and duties as set out in the
Job description attached hereto and undertake such duties and
exercise such powers in relation to the Company, its
associated companies and them businesses as the board of
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directors of the Company (the "Board") shall from time to time
assign to or vest in him, provided however, that the Board
shall procure that such duties and powers shall not conflict
with one another;
3.1.2 in the discharge of such duties and in the exercise of such
power observe and comply with all resolutions, regulations and
directives from time to time made or given by the Board; and
3.1.3 use his best endeavours to properly conduct, improve, extend,
develop, promote, protect and preserve the business interest,
reputation and goodwill of the Company and its associated
companies.
3.2 For the purposes of this Agreement, "associated company" or
"associated companies" means--
3.2.1 any company or entity which is directly or indirectly
controlled by the Company.
3.2.2 any company or entity which directly or indirectly controls
the Company, or
3.2.3 any company or entity which is directly or indirectly
controlled by any company which also directly or indirectly
controls the Company.
3.3 The Employee shall at all times promptly give to the Board (in
writing, it so requested) all such information and
explanations as it requires in connection with matters
relating to his employment or with the business of the Company
and/or its associated companies.
3.4 It shall be part of the normal duties of the Employee at all
times to consider in what manner and by what new methods or
devices the products, services, processes, equipment or
systems of the Company and associated companies might be
improved, and promptly to give to the Secretary of the Company
full details of any invention or improvement which he may from
time to time make or discover in the course of his duties, and
to further the interests of the
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Company and its associated companies', undertakings with
regard thereto. Any such invention or improvement shall be
the property of the Company and the Employee shall take all
steps as may be necessary and reasonably required by the
Company, at the sole expense of the Company, to procure that
the Company obtains complete and exclusive legal title to
any such invention or improvement.
4. SECOND CONTRACT OF EMPLOYMENT
4.1 This Third Contract of Employment supersedes the Second
Contract of Employment as from the commencement Date.
5. REMUNERATION PACKAGE
5.1 As from the Commencement Date, the Employee's remuneration
package shall be US $ 375,000 per annum, which shall be
reviewed annually with a view to effecting appropriate annual
increases.
5.2 The composition of the Employee's remuneration package shall
be the following--
5.2.1 a salary, which shall be equal to the difference between US
$375,000 and the cost to the Company of providing the other
components of the package set out in 5.2.2 and 5.2.3;
5.2.2 the contributions payable by the Company in respect of the
Employee and his wife and children to the medical aid scheme
of which the Employee is a member, all of which shall be for
the account of the Company,
5.2.3 the monthly contributions payable by the Company in respect of
the Employee to any pension, provident and retirement annuity
funds nominated by the Employee, all of which shall be for the
account of the Company.
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5.3 The Employee's salary shall be payable by equal monthly
installments (and proportionately for any lesser period, each
monthly installment being deemed to accrue rateably from day
to day) in arrears on the last day of each month.
6. SECURITY
The Company shall at its cost provide appropriate security and security
services at the Employee's residence.
7. EXPENSES
7.1 The Employee shall be reimbursed for all traveling, hotel and
other out-of-pocket expenses reasonably incurred by him in or
about the discharge of his duties hereunder.
7.2 The Employee shall be reimbursed all costs and expenses
incurred by him in connection with his home telephone.
7.3 The Company requires the Employee to be a member of an
appropriate club for various reasons, including the
entertainment of clients and customers of the Company and
shall pay the annual membership fees of such club.
7.4 Should it become necessary during the Employee's periods of
work in West and East Africa to be evacuated from his place of
work for medical reasons, the Company shall arrange for such
evacuation and the costs thereof shall be for the Company's
account.
7.5 The Company shall meet the Employee's membership fees of such
professional bodies as it deems are required.
8. BONUS SCHEME
8.1 Over and above the remuneration package and other benefits
stipulated in this Third Contract of Employment, the Employee
shall be eligible for an annual bonus.
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8.2 The Employee shall be entitled to be paid a bonus in United
States Dollars in respect of each successive 12 month period
of employment with the Company, ending on 31st March 2003,
31st March 2004, 31st March 2005 and 31st March 2006
("employment period") if the ruling price of ordinary shares
in the Company for that Employment Period as defined in 8.4,
is higher than the base price for that Employment Period, as
defined in 8.3.
8.3 The base price shall be in the case of each of the employment
periods in respect of which a bonus is to be calculated, the
weighted average price of ordinary shares in the Company
quoted on the London Stock Exchange over the last calendar
month preceding the employment period in respect of which the
bonus is being calculated.
8.4 The ruling price for each employment period shall be the
weighted average price of ordinary shares in the Company
quoted on the London Stock Exchange over the last calendar
month of that employment period.
8.5 Should a bonus become payable to the Employee in respect of
any employment period, then the amount of such bonus shall be
calculated in accordance with the following formula:
B = 150 000 (P(2) - P(1))
-------------------------
Where B is the amount of the bonus, in United States
Dollars;
P(2) is the ruling price for the employment
period in respect of which the bonus is
being calculated, as defined in 8.4,
converted to United States Dollars at the
exchange rate prevailing on the last
business day of that employment period, and
P(1) is the base price for the employment period
in respect of which the bonus is being
calculated, converted to United States
Dollars at the exchange rate prevailing on
the last business day of the employment
period in respect of which the bonus is
being calculated.
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8.6 For the purposes of this Clause 8, the exchange rate which
shall be applied for the conversion of a Sterling amount to a
United States Dollar amount on a particular date shall be the
closing buying rate for purchases of United States Dollars in
London on that date, as certified by Standard Chartered Bank,
whose certificate shall be binding upon the parties.
8.7 In the above formula, the factor 150,000 (One hundred and
fifty thousand) represents a fictional shareholding of 150,000
(One hundred and fifty thousand) shares in the share capital
of the Company as presently constituted. Should the ordinary
shares in the Comply which are listed in the London Stock
Exchange be consolidated or sub-divided, then the ruling price
and the base price stipulated in 8.2 and the formula in 8.5
shall be modified by agreement between the parties in such a
way as to give effect to the original intention of the
parties. In the event that the parties do not agree on the
terms of such modification, the matter shall be referred to
the Company's Remuneration Committee, whose decision shall be
final and binding upon the parties.
8.8 Should the Company become subject to or involved in any
re-organisation, unbundling, scheme of arrangement or other
change of circumstances which directly or indirectly
prejudices the Employee's prospective bonus(es) under the
bonus scheme as set out in this clause, then the parties shall
endeavor to reach agreement on a modified or substituted bonus
scheme which will give effect to the original intent of the
bonus scheme. Failing such agreement. the terms of the
modified or substituted bonus scheme shall be determined by
the Company's Remuneration Committee, whose decision shall be
final and binding upon the parties.
8.9 Should this agreement be terminated during the minimum fixed
term in terms of 13 or by mutual agreement between the Company
and the Employee any bonus due to the Employee in terms of 8.2
shall be calculated proportionately over a 12 month employment
period.
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9. HOLIDAYS
The Employee shall be entitled to 33 (thirty three) working days paid
holiday in each successive period of 12 (twelve) months commencing on 1
October 2002, to be taken at such times as the Board shall consider
most convenient, having regard to the requirements of the Company's
business.
10. LIFE ASSURANCE
Subject to the insurance company's requirements, life assurance cover
against death is provided for the Employee whilst the Employee is a
member of the Company's Provident Fund, as follows:
10.1 3 (three) years' pensionable salary; and
10.2 non contributory cover equal to 2 (two) years' pensionable
salary, payable in South African Rands.
11. APPLICATION OF PROVISIONS OF PERSONNEL MANUALS
11.1 The terms and conditions of employment as contained in any of
the Company's personnel policies and manuals are incorporated
into this Agreement and the Employee shall be bound by the
provisions thereof.
11.2 The Employee's entitlement to any benefit other than those
recorded in this Agreement shall be governed by the
appropriate provisions of the Company's personnel policies and
manuals.
11.3 It is expressly provided that such policies and manuals may be
changed, added to and/or deleted from time to time at the
discretion of the Company and it is agreed that by accepting
these terms and conditions, the Employee hereby accepts any
such changes, which will be appropriately communicated to him.
11.4 In the event of a conflict between the provisions of the
personnel policies and manuals and the provisions of this
Agreement, the provisions of this
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Agreement shall override those contained in the personnel
policies and manuals.
12. INCAPACITY
12.1 If the Employee at any time be incapacitated or prevented by
illness, injury, accident or any other circumstance beyond his
control (the "incapacity") from discharging his full duties
hereunder for a total of 180 (one hundred and eighty) or more
days in any 12 (twelve) consecutive calendar months, the
Company may by notice in writing to the Employee given at any
time so long as the incapacity shall continue:
12.1.1 discontinue payment in whole or in part of the salary on and
from such dates as may be specified in the notice until the
incapacity shall cease; or
12.1.2 whether or not payment shall already have been discontinued,
terminate this Agreement forthwith or on such date as may be
specified in the notice.
12.2 Save as hereinafter provided the salary shall, notwithstanding
the incapacity, continue to be paid to the Employee in
accordance with 5, in respect of the period of incapacity
prior to such discontinuance or termination.
12.3 Notwithstanding the above, whilst the Employee is a member of
the Company's Provident Fund, the Employee shall be covered
against temporary and permanent disability under the Company's
insurance policies.
Therefore, to the extent that the Employee receives payment of a
disability benefit in terms of any such insurance policies, the Company
will pay to the Employee his salary in terms of clause 5 above less the
disability benefit
13. TERMINATION
This Agreement may be terminated forthwith by the Company without prior
notice if the Employee shall at any time:
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13.1 commit any serious or persistent breach of any provision
contained in this Agreement;
13.2 be guilty of misconduct or wilful neglect in the discharge of
his duties;
13.3 became insolvent or make any arrangement or composition with
his creditors;
13.4 notwithstanding the provisions of clause 12 above, become
permanently incapacitated by accident or ill health from
performing his duties under this Agreement and for the
purposes of this sub-clause incapacity for 3 (three)
consecutive months or an aggregate period of 6 (six) months in
any period of 12 (twelve) months shall be deemed to be
permanent incapacity.
14. CONFIDENTIALITY AND RESTRAINT
14.1 It is recorded that in the performance of his duties for the
Company, including those performed in West and East Africa,
the Employee will:
14.1.1 acquire knowledge of the know-how, trade secrets and other
confidential information of the Company relating to its and
associated companies' activities;
14.1.2 derive considerable benefit from the technical and/or business
experience which he will obtain from the Company and
associated companies.
14.2 For one or more or all of the reasons set forth in 14.1, it is
agreed that in order to protect the proprietary interests of
the Company and associated companies the Employee shall not:
14.2.1 either during the continuance of his employment or thereafter,
divulge or disclose or use any information or knowledge so
acquired by him relating to the matters set forth in 14.1.1,
to any person whomsoever, whether for his own benefit or
otherwise, except to those officials of the Company whose
province it is to know the same, or
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14.2.2 during the continuance of his employment and for a period of
12 (Twelve) months thereafter, entice or solicit or canvass
the services of any person, company or entity with whom the
Company or any associated company has a written agreement at
the date of termination of the Employee's employment, away
from any such company, or accept or be interested in any such
services, whether for his own benefit or otherwise.
14.3 The Employee undertakes not to do any of the things set forth
in 14.2 either directly or indirectly and whether as a
director or partner or owner or principal or agent or
representative or shareholder or financier or employee
14.4 The Employee agrees that:
14.4.1 the restraints set out above are reasonable as to their
subject matter, area and duration, to protect the Company's
proprietary interests;
14.4.2 each of the restraints set out in clause 14.2 are separate and
independent restraints severable from any of the other
restraints set out therein;
14.4.3 the time period for which he is restrained from doing any of
the things set out above shall be severable as to each
calendar month within that period; and
14.4.4 if any one or more of the restraints set out above are invalid
or unenforceable for any reason, the validity of any of the
other restraints shall not be affected thereby.
14.5 The Employee may request the Company to release the Employee
from any or all of the restraints described above or to relax
the application of any or all of such restraints. The Company
agrees to act reasonably in granting or refusing any such
request. Any request by the Employee in terms hereof shall be
made by the Employee to the Company in writing. Likewise, the
decision of the Company in respect of any such request shall
be given in writing by the Company to the Employee. Any
conditions which the Company may impose,
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in the event of the Company agreeing to any such request,
shall be contained in such written communication by the
Company to the Employee.
14.6 Nothing contained in this clause shall preclude the Employee
from holding or acquiring shares or other securities of any
other company which are quoted on any recognised stock
exchange by way of bona fide investment, provided however,
that any such investment shall not exceed 5% (five per centum)
of the entire issued share capital or class of shares or other
securities, as the case may be, of the company in question
without the prior written consent of the Company which shall
not be unreasonably withheld and provided further, that the
Company shall be entitled to require him not to do so in any
particular case on the ground that such other company is or
may be carrying on a business competing or tending to compete
with the business of the Company or any associated company.
14.7 As consideration for the Employee agreeing to the restraints
described in 14.2, it is recorded and agreed that the Company
will forthwith pay the Employee an amount equal to twice the
gross amount of the Employee's remuneration package stated in
5.1 of US $375,000 less the amount of US $648,000 paid
previously to the Employee during his First and Second
Contracts of Employment; which amounts to US $102,000, on the
following basis:
14.7.1 should the Employee commit a material breach of the restraint
undertakings given by the Employee in this Clause, then if the
breach is one which is not capable of being remedied or being
a breach which is capable of being remedied is not remedied
within 30 (thirty) days after written demand given by the
Company to the Employee, the Company shall be entitled to
institute action against the Employee for agreed damages of US
$750,000, in order to compensate the Company for the harm
suffered by the Company.
15. RETURN OF COMPANY PROPERTY
The Employee shall promptly whenever requested by the Company and, in
any event
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upon the termination of his employment with the Company, deliver to the
Company all lists of clients or customers, correspondence and all other
documents papers and records which may have been prepared by him or
have come into his possession in the course of his employment with the
Company. and the Employee shall not be entitled and shall not retain
any copies thereof. Title and copyright therein shall vest in the
Company and, where appropriates, any associated company.
16. DOMICILIUM
16.1 The parties hereto respectively choose domicilium citandi et
executandi for all purposes of and in connection with this
Agreement as follows:
16.1.1 the Company La Motte Xxxxxxxx
St Helier
Jersey, Channel Islands
16.1.2 the Employee La Motte Xxxxxxxx
St Helier
Jersey, Channel Islands
16.2 Any notice to any party shall be addressed to it at its
domicilium as aforesaid and either sent by pre-paid registered
post, delivered by hand, or sent by telefax transmission.
In case of any notice:
16.2.1 delivered by hand, it shall be deemed to have been received,
unless the contrary is proved, on the date of delivery,
provided such date is a business day, otherwise on the
following business day;
16.2.2 sent by pre-paid registered post it shall be deemed to have
been received, unless the contrary is proved, on the seventh
business day after posting;
16.2.3 sent via telefax transmission, shall be deemed to have been
received on the same day, provided such day is a business day,
otherwise on the following
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business day. The party giving notice by telefax transmission
shall have the onus of proving that the telefax was received
by the addressee.
16.3 Any party shall be entitled by notice to the other to change
its domicilium provided that the change will become effective
only business days after service of the notice in question.
16.4 For the purposes hereof, "business day" means any day Other
than a Saturday Sunday or public holiday.
17. GENERAL
17.1 No alteration, cancellation, variation of, or addition hereto
shall be of any force or effect unless reduced to writing and
signed by the parties as an addendum to this Agreement or
their duly authorised signatures.
17.2 Subject only to 17.1, this document contains the entire
agreement between the parties and neither party shall be bound
by any undertakings, representations or warranties not
recorded herein.
17.3 No indulgence, leniency or extension of time which either
party (the "grantor") may grant or show to the other, shall in
any way prejudice the grantor or preclude the grantor from
exercising any of its/his rights in the future.
17.4 Neither party may cede or assign its/his rights and delegate
its/his obligations in terms of this Agreement without the
prior written approval of the other party.
17.5 Each party warrants and undertakes to the other that -
17.5.1 it is not acting as undisclosed agent or nominee in entering
into this Agreement; and
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17.5.2 it is entering into this Agreement to secure the benefits of
this Agreement for itself only and for no other person.
17.6 The headings appearing in this Agreement have been used for
reference purposes only and shall not affect its
interpretation.
17.7 The Company shall bear the costs of and incidental to the
negotiation, preparation and conclusion of this Agreement.
17.8 The interpretation and enforcement of this Agreement shall at
all times be governed by Jersey law prevailing from time to
time, and the parties hereto hereby consent and submit to the
jurisdiction of the Courts of Jersey in all matters arising
from or concerning this Agreement.
17.9 If any clause or term of this Agreement should be invalid,
unenforceable or illegal, then the remaining terms and
provisions of this Agreement shall be deemed to be severable
therefrom and shall continue in full force and effect unless
such invalidity. unenforceability or illegality goes to the
root of this Agreement.
17.10 The Employees rights under this Agreement are not capable of
assignment or hypothecation, nor of attachment by the
Employee's creditors.
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THUS DONE and SIGNED by X. Xxxxxxxx and X.X. Xxxxxxxx at Jersey on this the 5th
day of May 2003 in the presence of the undersigned witnesses, the signatories
hereby warranting their signature that they are duly authorised thereto.
AS WITNESSES:
1. /s/ Xxxxx Xxxx
2. /s/ X.X. Xxxxxxxx
/s/ X.X. Xxxxxxxx
/s/ X. Xxxxxxxx
-----------------------------------------
For and on behalf of:
RANDGOLD RESOURCES LIMITED
THUS DONE and SIGNED by the EMPLOYEE at Jersey on this the 5th day of May 2003,
in the presence of the undersigned witnesses, the signatory hereby warranting by
his signature that he is duly authorised hereto.
AS WITNESSES:
1. /s/ Xxxxx Xxxx
2. /s/ X.X. Xxxxxxxx
/s/ R.A.R. Kebble
-----------------------------------------
XXXXX XXXXXXX XXXXX KEBBLE
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JOB DESCRIPTION FOR TILT EXECUTIVE CHAIRMAN OF RANDGOLD RESOURCES LIMITED
TITLE: EXECUTIVE CHAIRMAN INCUMBENT: MR RA.R. KEBBLE
REPORTS TO: SHAREHOLDERS AND BOARD OF DIRECTORS
GENERAL PURPOSE:
The add value to the Company for the benefit of all stakeholders.
DUTIES AND RESPONSIBILITIES:
1. Convening and Chairing of Board of Directors meetings and ensuring the
effective of the Board.
2. Ensuring the maintenance of the Corporate image through effective
Communications and Public Relations with shareholders, the investment
community, Government of countries in which the Company operates,
employees, the Board and other stakeholders.
3. Gain acceptance by the Board of Directors, of the long-term strategic
direction of the Company as formulated and proposed by the Chief
Executive Officer and his management team.
4. Selecting providing leadership to, team building. succession planning
and remuneration of his executive team.
5. Ensure good Corporate Governance to world best standards.
6. Familiarising himself with all of the Company's activities and keeping
abreast of major developments in the Industry to ensure best practice
and effectiveness.
DIRECT REPORTS:
The Chief Executive Officer and the external Public Relations Consultant report
directly to the Chairman.
CONTACTS:
Frequent contact with the Board of Directors.
Frequent contact with the Chief Executive Officer.
Regular contacts with the Chairmen of other companies in the Industry.
Regular contacts with Heads of State of countries in which the Company operates.
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Regular contacts with major shareholders of the Company.
Regular communication with the investment community and national and
international media.
EDUCATION:
University degree level, ideally in technical and business related fields.
EXPERIENCE AND PROFILE:
The Chairman of an international company such as Randgold Resources Limited must
be an eminent person with a long and substantial history of business success and
he highly regarded by the international business community.
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