EXHIBIT 4.78
SUBSCRIPTION AGREEMENT
THIS AGREEMENT is made on 21 September 2004
Between
(1) DRD (ISLE OF MAN) LIMITED, a company incorporated as a limited company in
accordance with the laws of the Isle of Man having registration number 94445 C
and its registered address at Xxxxxxxxx Xxxxx, 00/00 Xxxxx Xxxxxx, Xxxxxxx, Xxxx
xx Xxx ("THE Company");
(2) DURBAN ROODEPOORT DEEP LIMITED, a company incorporated as a limited company
in accordance with the laws of the Republic of South Africa having registration
number 1895/000926/06 and its registered address at 00 Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxxx, Xxxxx Xxxxxx, 0000 ("DRD")
RECITALS
A. The Company is a wholly owned subsidiary of DRD
B. DRD wishes to subscribe for 135 of the Company's shares in accordance with
the terms of this agreement. On completion, DRD will pay the Subscription
Price in return for 135 fully paid shares in the Company
It is agreed as follows:
1. INTERPRETATION
1.1 In this agreement and the Schedules, unless the contrary intention
appears:
1.1.1 "COMPLETION" means the completion of the transactions and
matters specified in clause 3;
1.1.2 "ENCUMBRANCE" means a mortgage, charge, pledge, lien, option,
restriction, right of first refusal, right of pre-emption,
third party right or interest, or other encumbrance or
security of any kind;
1.1.3 "SHARES" means ordinary shares of 1 (one) United Kingdom Pound
each in the Company;
1.1.4 "SUBSCRIPTION PRICE" means U$100,000.00 (one hundred thousand
United States dollars) being the aggregate of the nominal
value and the premium payable in respect of each Subscription
Share
1.1.5 "SUBSCRIPTION SHARES" means 135 (one hundred and thirty five)
fully paid ordinary shares in the Company of Pound Sterling1
each for which DRD is subscribing under clause 2;
1.1.6 "WARRANTIES" means the warranties referred to in Schedule 1.
1.2 In this agreement and the Schedules unless the context otherwise
requires:
1.2.1 Words denoting any one gender include all other genders and
words denoting the singular shall include the plural and vice
versa.
1.2.2 A reference to:
(a) a "subsidiary" or "holding company" shall be construed
in accordance with section 736 of the English Companies
Xxx 0000, as amended and in force at the date of this
agreement;
(b) a "clause" or a "Schedule" is a reference to a clause
of, or a Schedule to, this agreement;
(c) a person includes a reference to a body corporate, an
unincorporated association or a partnership and that
person's legal and personal representatives and
successors; and
(d) any statutory provision includes a reference to the
statutory provision as modified or re-enacted or both
from time to time (whether before or after the date of
this agreement).
1.3 When any payment falls due or any other obligation falls to be
performed on a Saturday, Sunday or a day on which banks are not open
for the transaction of normal business in the Isle of Man, then such
payment shall be made, or such obligation performed, on the next
succeeding day on which banks are open for the transaction of normal
business in the Isle of Man.
1.4 Headings are for ease of reference only and shall not affect the
interpretation of this agreement.
2. SUBSCRIPTION
DRD will subscribe for the Subscription Shares being 135 fully paid,
ordinary shares at a premium of U$99,998.21 per share, in accordance with
the terms of this agreement. For the avoidance of doubt the Subscription
Shares will be subscribed for by, and issued and allotted to DRD, and not
by or to, any nominee of DRD.
3. COMPLETION
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3.1 Completion will take place immediately after the signing of this
agreement at the offices of the Company, Xxxxxxxxx Xxxxx, 00/00
Xxxxx Xxxxxx, Xxxxxxx, Xxxx xx Xxx or at such other place as the
parties agree, when:
3.1.1 DRD will pay to the Company the sum of US$13,500,000 (thirteen
million and five hundred thousand United States dollars) being
the Subscription Price due for the Subscription Shares;
3.1.2 The Company will:
(a) duly issue and allot the Subscription Shares to DRD on
the basis that the Subscription Shares will be issued
and allotted to DRD as fully paid up Shares; and
(b) deliver to DRD (or as it directs) a share certificate or
certificates relating to the same;
3.2 All payments made by DRD to the Company will be made either by
telegraphic or electronic transfer of funds for same day value to
such bank account as the Company has previously advised DRD.
4. WARRANTIES
4.1 DRDIOM hereby warrants to DRD that each of the Warranties is true
and accurate at the date of this agreement.
4.2 The maximum aggregate liability of the Company in relation to the
Warranties shall under no circumstances exceed the Subscription
Price for the Subscription Shares or part thereof that the Company
has actually received from DRD in cleared funds.
5. CONFIDENTIALITY
5.1 Any communication between DRD on the one hand, and the Company on
the other (each to be regarded for the purpose of this clause 5 and
clause 7 as one party), and between any of their respective
subsidiaries, or their representatives which is marked confidential
or which is of a commercially sensitive, proprietary or confidential
nature will be kept strictly confidential by the party receiving
such communication.
5.2 Each of such parties will take reasonable precautions to ensure that
its officers and employees and the officers and employees of each of
its subsidiaries comply with the provisions of this clause and that
none of such individuals discloses any term of this agreement, or
discloses or uses any confidential information which it acquires in
connection with this agreement or in connection with the
negotiations leading up to the same, unless the other party agrees.
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5.3 Nothing in this clause will prevent the disclosure of any
information required by law or any regulation or rule of any stock
exchange or other regulatory authority, save that such disclosure
shall be made by the party concerned only after reasonable
consultation, if practicable, with the other and, so far as
practicable, taking into account the reasonable requirements (as to
timing, contents and manner of making or despatch of such
disclosure) of the other.
6. DURATION AND TERMINATION
6.1 Without prejudice to any accrued rights and obligations this
agreement shall continue in full force and effect until the earlier
of:
6.1.1 the date on which the parties agree in writing that this
agreement is to terminate;
6.1.2 the date of the commencement of winding up of the Company.
6.2 The termination of this agreement shall be without prejudice to the
rights of the parties in respect of any breach of this agreement
occurring prior to such termination.
6.3 Notwithstanding the above provisions, the obligations of the parties
pursuant to clause 5 will survive termination.
7. ANNOUNCEMENTS
7.1 Subject to clause 7.2 no announcement, communication or circular
concerning the transactions referred to in this agreement shall be
made or despatched at any time (whether before or after Completion)
by either party without the prior written consent of the other (such
consent not to be unreasonably withheld or delayed).
7.2 Where the announcement, communication or circular is required by law
or any regulation or rule of any stock exchange or other regulatory
authority, it shall be made by the party concerned only after
reasonable consultation, if practicable, with the other and, so far
as practicable, taking into account the reasonable requirements (as
to timing, contents and manner of making or despatch of the
announcement, communication or circular) of the other.
8. FURTHER ASSURANCE
Each of the parties agrees to perform all further acts and things as the other
parties may reasonably require to implement and give effect to the provisions of
this agreement and for the purposes of vesting in the parties the full rights
and benefits to be vested in the parties under this agreement, including voting
any of its shares in the Company.
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9. GENERAL
9.1 This agreement and the documents referred to in it contain the whole
agreement between the parties relating to the transaction
contemplated by this agreement and supersede all previous agreements
between the parties in relation to these transactions.
9.2 No variation or agreed termination of this agreement shall be of any
force or effect unless in writing and signed by each party.
9.3 The failure to exercise or any delay in exercising any right or
remedy under this agreement shall not constitute a waiver of that
right or remedy or a waiver of any other right or remedy and no
single or partial exercise of any right or remedy under this
agreement shall prevent any further exercise of that right or remedy
or the exercise of any other right or remedy.
9.4 This agreement shall be personal to the parties and save where
specified otherwise no party shall be entitled to assign its rights
or obligations under this agreement to any person without the prior
written consent of the other parties.
9.5 Save as provided below a person who is not a party to this agreement
has no right under the Isle of Man Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term of this agreement but this
does not affect any right or remedy of a third party which exists or
is available apart from that Act).
9.6 Each party will bear its own costs in connection with the
preparation and execution of this agreement.
9.7 In the event of an ambiguity or conflict between the provisions of
this agreement and the articles of association of the Company the
provisions of this agreement will prevail as between the parties.
10. NOTICES
10.1 Any notice or other communication under or in connection with this
agreement shall be in writing and shall be delivered personally or
by commercial courier to each party due to receive the notice or
communication at its address set out below:
10.1.1 The Company: Xxxxxxxxx Xxxxx
00/00 Xxxxx Xxxxxx
Xxxxxxx
Isle of Man
British Isles
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Fax: 0000 0000 000 000
10.1.2 DRD 00 Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxx
Xxxxx Xxxxxx
0000
Fax: x0000 000-0000
or at such other address as the relevant party may specify by notice
in writing to the other parties.
10.2 Any notice or other communication shall be deemed to have been duly
given if delivered personally when left at the address referred to
in the immediately preceding clause, or if delivered by commercial
courier on the date of signature of the courier's receipt.
11. GOVERNING LAW
11.1 The construction, validity and performance of this agreement shall
be governed and construed in all respects by the laws of the Isle of
Man and the parties hereby submit to the non-exclusive jurisdiction
of the Isle of Man.
11.2 Each of the parties irrevocably agrees and submits to the
non-exclusive jurisdiction of the courts of the Isle of Man to hear
and determine any suit, action or proceeding which may arise out of
or in connection with this agreement.
12. COUNTERPARTS
This agreement may be executed in any number of counterparts, each of
which when executed and delivered shall be an original, but the
counterparts together shall constitute one and the same instrument.
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SCHEDULE 1
WARRANTIES
1. CORPORATE
1.1 The Company is a duly organised limited liability company validly
existing under the laws of the Isle of Man.
1.2 The share register of the Company contains true, complete and
accurate records of the members of the Company at the date hereof.
1.3 True copies of the memoranda and articles of association of the
Company have been disclosed to DRD and set out all rights attaching
to the share capital of the Company.
2. SUBSCRIPTION SHARES AND TITLE TO SHARES
2.1 On issue, the Subscription Shares will be free from any Encumbrance.
2.2 The unissued share capital of the Company is free from any
Encumbrance and there are no arrangements in force or claimed
entitling any person to, or to the creation of, any Encumbrance or
to the issue or creation of any shares, stock, debentures or loan
capital of the Company.
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THIS AGREEMENT has been entered into on the date stated at the beginning of this
document.
Signed by: )
for and on behalf of )
DRD (ISLE OF MAN) LIMITED ) /s/ I.L. Xxxxxx
in the presence of: )
Signed by: )
for and on behalf of: )
DURBAN ROODEPOORT DEEP LIMITED ) /s/ X. Xxxxx
in the presence of: )
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DATED
(1) DRD (ISLE OF MAN) LIMITED
(2) DURBAN ROODEPOORT DEEP LIMITED
Subscription Agreement
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