SECOND CONTRACT OF EMPLOYMENT
between
RANDGOLD RESOURCES LIMITED
(registration number 65832)
a Company incorporated in Jersey, Channel Islands
("the Company")
and
XXXXX XXXXXXX XXXXX KEBBLE
(the "Employee")
____________________________________________
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TABLE OF CONTENTS
1. INTRODUCTION .................................................. 3
2. EMPLOYMENT .................................................... 3
3. DUTIES ........................................................ 4
4. FIRST CONTRACT OF EMPLOYMENT .................................. 5
5. REMUNERATION PACKAGE .......................................... 6
6. SECURITY ...................................................... 7
7. EXPENSES ...................................................... 7
8. BONUS SCHEME .................................................. 8
9. HOLIDAYS ..................................................... 11
10. LIFE ASSURANCE ............................................... 11
11. APPLICATION OF PROVISIONS OF PERSONNEL MANUALS ............... 12
12. INCAPACITY ................................................... 12
13. TERMINATION .................................................. 13
14. CONFIDENTIALITY AND RESTRAINT ................................ 14
15. DOMICILIUM ................................................... 18
16. GENERAL ...................................................... 19
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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
("First Contract of Employment"),
1.2 the parties have negotiated and now wish to record the terms of a
further contract of employment ("Second 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 Second Contract
of Employment as from 1 June 2000 ("Commencement date").
2.2 The employment of the Employee as Executive Chairman of the Company
shall continue for a minimum fixed term until 31 May 2003 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.
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3. DUTIES
3.1 As Executive Chairman of the Company, the Employee shall:
3.1.1 undertake such duties and exercise such powers in relation to the
Company, its associated companies and their businesses as the board of
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 powers
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
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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 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 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. FIRST CONTRACT OF EMPLOYMENT
4.1 This Second Contract of Employment supersedes the First Contract of
Employment as from the Commencement Date.
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5. REMUNERATION PACKAGE
5.1 As from the Commencement Date, the Employee's remuneration package
shall be US $324 000 (xxxxx xxxxxxx xxx xxxxxx xxxx xxxxxxxx Xxxxxx
Xxxxxx Dollars) 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 $324 000
(xxxxx xxxxxxx xxx xxxxxx xxxx xxxxxxxx Xxxxxx Xxxxxx Dollars) 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 instalments
(and proportionately for any lesser period, each monthly instalment
being deemed to accrue rateably from day to day) in arrear 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 travelling, 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.
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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.
8.2 The Employee shall be entitled to be paid a bonus in United States
Dollars in respect of each successive period of employment by the
Company ending on 31 March 2001, 31 March 2002 and 31 March 2003
("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.
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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, 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 Company 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.
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8.8 Should the Company become subject to or involved in any
reorganisation, 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 endeavour 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.
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 June 2000, 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
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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 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 manuals from time to time.
11.2 In the event of a conflict between the provisions of the personnel
manuals and the provisions of this Agreement, the provisions of this
Agreement shall override those contained in the personnel manuals.
12. INCAPACITY
12.1 If the Employee at any time be incapacitated or prevented by I
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
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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.
12.1.3 Subject 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.
13. TERMINATION
This Agreement may be terminated forthwith by the Company without prior
notice if the Employee shall at any time
13.1 commit any serious or persistent breach of any provisions contained in
this Agreement;
13.2 be guilty of grave misconduct or wilful neglect in the discharge of
his duties;
13.3 become insolvent or make any arrangement or composition with his
creditors;
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13.3.1 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 in West and East
Africa the Employee will:
14.1.1 acquire knowledge of the know-how 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,
therefore, that in order to protect the proprietary interests of the
Company and associated companies the Employee shall not:
14.2.1 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 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 period of the restraint set forth in 14.2 shall be as follows:
14.4.1 all the restraints set forth in 15.2 shall apply during the
Employee's employment by the Company;
14.4.2 the restraints set forth in 14.2.1, insofar as they relate to any
information or knowledge appertaining to any matter set forth in
14.1.1 shall also apply for so long as such information or knowledge
is not generally available to the public or has not been disclosed to
the Employee by some third party who was required by the Company to
hold such knowledge or information in confidence or who did not
acquire such knowledge or information, directly or indirectly, from
the Company under an obligation of secrecy;
14.4.3 the retrains set forth in 14.2.2 shall also apply for a period 1
(one) year after the date of termination of the Employee's employment
by the Company.
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14.5 The restraints set forth in 14.2.1 and 14.2.2 shall be binding on the
Employee world-wide.
14.6 The Employee agrees that:
14.6.1 the restraints set forth above are reasonable as to their subject
matter, area and duration, to protect the Company's proprietary
interests;
14.6.2 each of the restraints set forth in 14.2 is a separate and
independent restraint severable from any of the other restraints
therein set forth;
14.6.3 each of the ways set forth in 14.3 in which the Employee is
restrained from doing any of the things set forth in 14.2 shall be a
separate and independent restraint severable from any other of the
ways in which he is restrained; and
14.6.3.1 if any one or more of the restraints set forth above are invalid
or unforceable for any reason, the validity of any of the other
restraints shall not be affected thereby.
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14.7 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, in the event of the Company
agreeing to any such request, shall be contained in such written
communication by the Company to the Employee.
14.8 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,
however, 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.
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14.9 As consideration for the Employee agreeing to the restraints described
in 14.2.1 and 14.2.2, 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 $324 000
(xxxxx xxxxxxx xxx xxxxxx xxxx xxxxxxxx Xxxxxx Xxxxxx Dollars) less
the amount of US $240 000 (two hundred and forty thousand United
States Dollars) paid to the Employee in his First Contract of
Employment which amounts to US $ 408 000 (four hundred and eight
thousand United States Dollars), on the following basis:
14.9.1 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 $648 000 (xxx xxxxxxx xxx xxxxx xxxxxx xxxxxxxx Xxxxxx
Xxxxxx Dollars), in order to compensate the Company for the harm
suffered by the Company.
15. DOMICILIUM
15.1 The parties hereto respectively choose domicilium citandi et
executandi for all purposes of and in connection with this Agreement
as follows:
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15.1.1 the Company La Motte Xxxxxxxx
St Helier
Jersey, Channel Islands
15.1.2 the Employee La Motte Xxxxxxxx
St Helier
Jersey, Channel Islands
15.2 The parties shall be entitled to change their domicilia from time to
time, provided that any such change shall only be effective upon
receipt of notice in writing by the other party of such change. All
notices of communications intended for any party shall be sent to or
delivered at such party's domicilium for the time being.
16. GENERAL
16.1 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.
16.2 Subject only to 16.1, this document contains the entire agreement
between the parties and neither party shall be bound by any
undertakings, representations or warranties not recorded herein.
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16.3 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.
16.4 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.
16.5 Each party warrants and undertakes to the other that-
16.5.1 it is not acting as undisclosed agent or nominee for any person in
entering into this Agreement; and
16.5.2 it is entering into this Agreement to secure the benefits of this
Agreement for itself only and for no other person.
16.6 The headings appearing in this Agreement have been used for reference
purposes only and shall not affect its interpretation.
16.7 The Company shall bear the costs of and incidental to the negotiation,
preparation and conclusion of this Agreement.
16.8 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.
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16.9 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.
16.10 The Employee's rights under this Agreement are not capable of
assignment or hypothecation, nor of attachment by the Employee's
creditors.
THUS DONE and SIGNED by RANDGOLD RESOURCES at Johannesburg on this the 31st day
of August 2000, in the presence of the undersigned witnesses, the signatory
hereby warranting by his signature that he is duly authorised thereto.
AS WITNESSES:
1. /s/ [ILLEGIBLE]
2. /s/ [ILLEGIBLE]
/s/ [ILLEGIBLE]
__________________________
For and on behalf of: RANDGOLD
RESOURCES DIRECTORS LIMITED
Capacity: Directors
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THUS DONE and SIGNED by the EMPLOYEE at Johannesburg on this the 31st day of
August 2000, in the presence of the undersigned witnesses, the signatory hereby
warranting by his signature that he is duly authorised hereto.
AS WITNESSES:
1. /s/ [ILLEGIBLE]
2. /s/ [ILLEGIBLE]
/s/ XXXXX XXXXXXX XXXXX KEBBLE
_______________________________
XXXXX XXXXXXX XXXXX KEBBLE
