EXECUTION VERSION
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SHARE SUBSCRIPTION AGREEMENT
THIS SHARE SUBSCRIPTION AGREEMENT dated as of April 18, 2005, (the "Agreement")
is entered into between JENINGTON INTERNATIONAL Inc., a company incorporated
under the laws of BVI, whose registered office is at Akara Bldg., 00 Xx Xxxxxx
Xxxxxx, Xxxxxxxx Cay I, Road Town, Tortola, British Virgin Islands (the
"Company") and OJSC "Mining and Metallurgical Company "NORILSK NICKEL", an open
joint stock company incorporated under the laws of Russia, whose registered
office is at Taimirskiy (Dolgano-Nenetskiy Autonomous Region), Dudinka, Russian
Federation (the "Subscriber").
The parties hereto are hereinafter referred to collectively as "Parties" or
individually as "Party".
1. SUBSCRIPTION
1.1 Subject to the terms and conditions set forth in this Agreement the
Company hereby irrevocably agrees to issue one million (1,000,000) of
the common voting shares having a nominal value of one US dollar (USD
1) (the "Shares") to the Subscriber, and the Subscriber irrevocably
agrees to subscribe for and purchase the Shares from the Company.
2. CONSIDERATION.
2.1 The Parties hereby agree that in full consideration for the Shares, the
Subscriber shall transfer to the Company full legal title to 98,467,758
(ninety eight million four hundred sixty seven thousand seven hundred
fifty eight) ordinary common shares, par value 0.50 Rand each of Gold
Fields Limited, a company incorporated under the laws of the Republic
of South Africa (the "GFL Shares"). The Subscriber shall transfer the
GFL Shares to the Company not later than fifteen (15) days following
the date when the Shares were credited to the depo account of the
Subscriber as provided in Clause 4.4. The aggregate purchase price of
the Shares shall be determined as the price of the GFL Shares
calculated on the basis of the closing price for one GFL Share on the
NYSE on the day preceding the Completion Date. If such day falls on a
day when the NYSE is closed for business or when no transactions with
such shares have been made, then the price shall be calculated on the
basis of the latest available closing price for one GFL Share on the
NYSE.
3. COMPLETION
3.1 Completion Date. Completion of the transaction shall take place at the
office of OJSC ROSBANK (the "Depositary") on the date when the
Depositary credited the depo account of the Company with the GFL Shares
pursuant to Clause 3.23. Such date is herein referred to as the
"Completion Date".
3.2 Actions at Completion. At the Completion, each and all of the following
actions shall take place:
3.2.1 Subscriber and the Company shall each confirm to the other
that the covenants and undertakings specified in Clause 4 have
been duly performed by each Party.
3.2.2 Subscriber shall duly execute and deliver to the Depositary a
written instruction authorizing the transfer of GFL Shares
from the depo account of the Subscriber opened with the
Depositary to the depo account of the Company opened with the
Depositary, and the Company shall duly execute and deliver to
the Depositary the GFL Shares acceptance instruction.
3.2.3 Following the actions described in Clause 3.2.2 the Depositary
shall credit the depo account of the Company with the GFL
Shares and provide each Party with a document evidencing the
transfer.
4. COVENANTS AND UNDERTAKINGS PRIOR TO COMPLETION
4.1 The Company shall provide the Subscriber with all necessary documents
as may be requested by the Subscriber evidencing that:
4.1.1 The Shares of the Company were duly authorized and validly
issued by the Company and the Agreement has been duly
authorized by the Company as required by applicable laws and
regulations;
4.1.2 Following the transfer of the Shares to the Subscriber in the
Depositary, the Subscriber will acquire full legal title to
all Shares free and clear of any liens and encumbrances.
4.2 The Subscriber shall provide the Company with all necessary documents
as may be requested by the Company evidencing that:
4.2.1 The Agreement and transactions contemplated hereby have been
duly authorized by the Subscriber as required by applicable
laws and regulations;
4.2.2 The Subscriber has a valid depo account with the Depositary
and has properly transferred the GFL Shares in the nominal
holding of the Depositary;
4.2.3 Following the transfer of GFL Shares from the depo account of
the Subscriber to the depo account of the Company in the
Depositary, the Company will acquire full legal title to the
GFL Shares free and clear of any liens and encumbrances.
4.3 The Company shall duly transfer the Shares to the depo account of the
Subscriber opened with the Depositary, and the Subscriber shall duly
execute and deliver to the Depositary the Shares acceptance
instruction.
4.4 Following the actions described in Clause 4.3 the Depositary shall
credit the depo account of the Subscriber with the Shares and provide
the Subscriber with a document evidencing the transfer of the Shares.
5. INDEMNITY
5.1 Indemnification. From and after the Completion Date, each Party shall
indemnify the other Party in respect of, and hold the other Party
harmless against, any and all debts, obligations and other liabilities,
monetary damages, fines, fees, penalties, interest obligations,
deficiencies, losses, costs and expenses (including without limitation,
reasonable attorneys' fees and expenses), incurred or suffered by the
other Party resulting from or relating to failure by such Party to
perform in whole or in part any covenant or agreement contained in this
Agreement.
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6. TERMINATION
6.1 Termination prior to Completion. This Agreement may be terminated and
the transactions contemplated hereby may be terminated, at any time
prior to the Completion:
6.1.1 by mutual written consent of the Parties; or
6.1.2 by either Party if there has been a breach of any covenant by
the other Party;
7. ENTIRE AGREEMENT
7.1 This Agreement contains the entire agreement and understanding of the
Parties hereto with respect to the transaction contemplated hereby.
This Agreement supersedes and terminates all prior agreements and
understandings, whether written or oral, between the Parties hereto
with respect to such transaction, and replaces in its entirety all
existing documents with respect to such transaction.
8. VARIATION
8.1 No variation of this Agreement (or of any of the documents referred to
in this Agreement) shall be valid unless it is in writing and signed by
or on behalf of each of the Parties. The expression "variation" shall
include any variation, supplement, deletion or replacement however
effected. Unless expressly agreed, no variation shall constitute a
general waiver of any provisions of this Agreement, nor shall it affect
any rights, obligations or liabilities under or pursuant to this
Agreement which have already accrued up to the date of variation, and
the rights and obligations of the Parties under or pursuant to this
Agreement shall remain in full force and effect, except and only to the
extent that they are so varied.
9. COSTS
9.1 Each of the Parties shall pay its own costs incurred in connection with
the negotiation, preparation and implementation of this Agreement.
10. SEVERABILITY
10.1 If any provision of this Agreement is held to be invalid or
unenforceable, then such provision shall (so far as it is invalid or
unenforceable) be given no effect and shall be deemed not to be
included in this Agreement but without invalidating any of the
remaining provisions of this Agreement. The Parties shall then use all
reasonable endeavours to replace the invalid or unenforceable
provisions by a valid and enforceable substitute provision the effect
of which is as close as possible to the intended effect of the invalid
or unenforceable provision.
11. COUNTERPARTS; LANGUAGE
11.1 Counterparts. This Agreement may be executed in any number of
counterparts and by the Parties to it on separate counterparts, each of
which is an original but all of which together constitute one and the
same instrument.
11.2 Language. This Agreement is prepared in English and Russian. In the
event of discrepancy between the two versions, the English language
version shall prevail.
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12. WAIVERS; RIGHTS AND REMEDIES
12.1 Waivers. No failure or delay by a Party in exercising any right or
remedy provided by Law under or pursuant to this Agreement shall impair
such right or remedy or operate or be construed as a waiver or
variation of it or preclude its exercise at any subsequent time and no
single or partial exercise of any such right or remedy shall preclude
any other or further exercise of it or the exercise of any other right
or remedy.
12.2 Company's Rights and Remedies. The rights and remedies of a Party under
or pursuant to this Agreement are cumulative, may be exercised as often
as such Party considers appropriate and are in addition to its rights
and remedies under general Law.
13. FURTHER ASSURANCE
13.1 Each Party agrees to perform (or procure the performance of) all
further acts and things, and execute and deliver (or procure the
execution and delivery of) such further documents, as may be required
by Law or as the Company may reasonably require, whether on or after
Completion, to implement and/or give effect to this Agreement and the
transaction contemplated by it.
14. NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
14.1 Nothing in this Agreement is intended to confer on any Person any right
to enforce any term of this Agreement which that Person would not have
had but for the Contracts (Rights of Third Parties) Xxx 0000 except
that a Person who is the permitted successor to or assignee of the
rights of a Party is deemed to be a party to this Agreement and the
rights of such successor or assignee shall, subject to and upon any
succession or assignment permitted by this Agreement, be regulated by
the terms of this Agreement.
15. NOTICES
15.1 Notice. Any notice or other communication given or made under this
Agreement shall be by letter or by facsimile transmission and may be
delivered personally or by courier to the relevant Party or facsimile
transmission to the address or facsimile transmission number of that
Party set out in this Clause or such other address or number as may be
notified hereunder by that Party from time to time for this purpose.
The Parties' addresses and fax numbers for the purposes of this Agreement are:
(a) In the case of the Company:
JENINGTON INTERNATIONAL Inc.
Address: Geneva, 00, xxx xx Xxxxx, PO Box 3398, 1211 Geneva 3
Attention: Xx. Xxxxxxxxx Xxxxxxx, Director
Fax No: 0000 00 000 00 00
(b) In the case of the Subscriber:
OJSC <
