FOURTH CONTRACT OF EMPLOYMENT
between
RANDGOLD RESOURCES LIMITED
(registration number 62686)
a Company incorporated in Jersey, Channel Islands
("the Company")
and
XXXXXX XXXX XXXXXXX
(the "Employee")
TABLE OF CONTENTS
PAGE
1. INTRODUCTION.........................................................1
2. EMPLOYMENT...........................................................1
3. DUTIES...............................................................1
4. THIRD CONTRACT OF EMPLOYMENT.........................................3
5. REMUNERATION PACKAGE.................................................3
6. SECURITY.............................................................4
7. EXPENSES.............................................................4
8. BONUS SCHEME.........................................................4
9. HOLIDAYS.............................................................6
10. LIFE ASSURANCE.......................................................7
11. APPLICATION OF PROVISIONS OF PERSONNEL MANUALS.......................7
12. INCAPACITY...........................................................7
13. TERMINATION..........................................................8
14. CONFIDENTIALITY AND RESTRAINT........................................9
15. RETURN OF COMPANY PROPERTY..........................................11
16. DOMICILIUM..........................................................11
17. GENERAL.............................................................13
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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 Chief Executive Officer in terms of a written contract of employment ("Third
Contract of Employment").
1.2 the parties have negotiated and now wish to record the terms of a
further contract of employment ("Fourth 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 Fourth Contract of
Employment as from the 1st OCTOBER 2002 ("Commencement date").
2.2 The employment of the Employee as Chief Executive Officer 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 Chief Executive Officer 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 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 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, if 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 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
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procure that the Company obtains complete and exclusive legal title to any such
invention or improvement.
4. THIRD CONTRACT OF EMPLOYMENT
4.1 This Fourth Contract of Employment supersedes the Third 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 $462,000 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 $462,000 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.
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.
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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 far 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 Fourth 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 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.
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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))
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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 an 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.
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.
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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.
8.8 Should the Company became 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 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.
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.
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.
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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 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
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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
13.1 commit any serious or persistent breach of any provisions
contained in this Agreement;
13.2 be guilty of 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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13.4 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
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.
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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, 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
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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 $462,000 less the amount of US $760,000
paid previously to the Employee during his Second and Third Contracts of
Employment; which amounts to US $164,000, 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 $924,000, 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 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 appropriate 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:
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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 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.
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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 for
any person in entering into this Agreement; and
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.
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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 he 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 Employee's 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 R.A.R. Kebble at Jersey on this 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. Xxxxxxxx
/s/ R.A.R. Kebble
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For and on behalf of:
RANDGOLD RESOURCES LIMITED
THUS DONE and SIGNED by the EMPLOYEE at Jersey on this 5th day of May 2003, in
the presence of the undersigned witnesses, the signatory hereby warranting his
signature that he is duly authorised thereto.
AS WITNESSES:
1. /s/ Xxxxx Xxxx
2. /s/ X.X. Xxxxxxxx
/s/ D. Xxxx Xxxxxxx
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XXXXXX XXXX XXXXXXX
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JOB DESCRIPTION FOR THE CHIEF EXECUTIVE OFFICER OF RANDGOLD RESOURCES LIMITED
TITLE: CHIEF EXECUTIVE OFFICER INCUMBENT: XX X.X. XXXXXXX
REPORTS TO: EXECUTIVE CHAIRMAN
GENERAL PURPOSE:
To add value for stakeholders of Randgold Resources Limited in accordance with
the values and strategic direction agreed with the Board of Directors.
DUTIES AND RESPONSIBILITIES
1. The formulation and ownership of the long-term strategic
direction of the Company and obtaining the approval of the resultant plan by the
Executive Chairman.
2. Raise the required funds.
3. Build, lead, organise, maintain and motivate his management
team.
4. Develop a strategic filter and a business plan, including
short-term budgets, which are congruent with the long-term strategic direction
set for the Company and which are approved by the Board of Directors.
5. Deliver on size, growth and return guidelines agreed with
the Board and contained in the strategic plan, while ensuring values and budgets
are adhered to, i.e. manage the implementation of the strategic plan.
6. Where required, establish Joint Ventures in pursuance of
the strategy, and ensure they operate within agreed parameters.
7. Staying in contact with all of the Company's functional and
business unit activities and keeping abreast of major developments in the
industry to ensure best practice and effectiveness are achieved and growth
opportunities are identified.
8. Approving Human Resources, Industrial Relations, Corporate
Responsibility and Reward/Remuneration policies and ensuring they are applied
effectively.
9. Effecting a comprehensive communication strategy covering
all stakeholders.
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DIRECT REPORTS:
The Chief Operating Officer, the Financial Director and the following General
Managers report directly to the Chief Executive Officer: Technical Services,
Exploration, Human Resources and Capital Projects.
CONTACTS:
Frequent contact with the Board of Directors. The incumbent is a member of the
Board of Directors.
Frequent contact with the Executive Chairman.
Regular contacts with the C.E.O.s of other companies in the Industry.
Regular contacts with Ministers and Heads of State of countries in which the
Company operates.
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 CEO of an international company such as Randgold Resources Limited must have
a proven record of success at a senior executive level, preferably within the
mineral resource industry, and be highly regarded by his peers in the industry
and by the investment community.
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