DATED 26 JUNE 1997
_____________________________
RANDGOLD & EXPLORATION COMPANY LIMITED (1)
AND
RANDGOLD RESOURCES LIMITED (2)
_____________________________
DEED GOVERNING THE RELATIONSHIP
BETWEEN THE PARTIES
UPON ADMISSION
_____________________________
XXXXXX XXXX
LONDON
CONTENTS
CLAUSE HEADING PAGE
1 Interpretation .................................................... 2
2 Conditions ........................................................ 6
3 Undertakings in respect of RRL .................................... 6
4 Restrictions on competition ....................................... 7
5 Contracts with R&E Related Parties ................................11
6 Licence to use the "Randgold" name ................................11
7 Continuance of certain provisions of the Memorandum of Agreement ..11
8 Duration and Termination ..........................................12
9 Confidentiality ...................................................13
10 Miscellaneous .....................................................14
11 Notices ...........................................................15
12 Governing Law and jurisdiction ....................................16
SCHEDULE
1 Licence ...........................................................17
THIS DEED is made on 26 June 1997 BETWEEN:
(1) RANDGOLD & EXPLORATION COMPANY LIMITED (No. 92/05642/06) of 0 Xxxxx
Xxxxxx. Xxxxx, Johannesburg. South Africa ("R&E"); and
(2) RANDGOLD RESOURCES LIMITED (No. 62686) whose registered office is at La
Motte Xxxxxxxx, La Motte Street, St. Helier, Jersey, JE1 1BJ, Channel
Islands ("RRL").
WHEREAS:
(A) RRL is a public company incorporated in Jersey under the Companies
(Jersey) Law 1991 with registered number 62686.
(B) As at the date hereof, RRL has an authorised share capital of
US$3,000,000 consisting of 30,000,000 ordinary shares of US$0.10 each.
(C) R&E and RRL have agreed, subject to market conditions, to seek a listing
of the issued ordinary shares, together with those new ordinary shares
to be issued as part of or in connection with the International Offer,
and the GDSs on the London Stock Exchange.
(D) Following the International Offer it is expected that R&E will hold
11,340,019 ordinary shares and/or GDSs carrying approximately 57.3 per
cent. of the total Voting Rights in RRL.
(E) Under Rule 3.13 of the Listing Rules it is a requirement for admission
of the ordinary shares to listing on the London Stock Exchange that RRL
must be capable at all times of operating and making decisions
independently of any controlling shareholder and all transactions and
relationship in the future between RRL and R&E must be at arms length
and on a normal commercial
1
basis and that all decisions are taken by directors of whom the majority
are independent of any controlling shareholder.
(F) The Memorandum of Agreement between RRL and R&E dated 25 August 1995 as
amended by an addendum to such agreement between RRL and R&E dated 21
September 1995 (the "MEMORANDUM OF AGREEMENT") was terminated in
accordance with its terms on 1 March 1996. It is intended that certain
of the terms should be reinstated pursuant to this Agreement so that
they continue to remain in force.
(G) The parties have agreed to enter into this Agreement to regulate the
relationship between the RRL Group on the one hand and R&E Related
Parties on the other.
NOW IT IS HEREBY AGREED as follows:
1 INTERPRETATION
1.1 DEFINITIONS
In this Deed, including the recitals, the headings shall not affect its
interpretation and, unless the context requires otherwise:
"ADMISSION" means the admission of the ordinary shares and GDSs to the
Official List of the London Stock Exchange becoming effective in
accordance with the Listing Rules;
"ARMS' LENGTH TERMS" means a transaction where:
(a) the parties in negotiating the transaction have sought to
promote their own best interests in accordance with fair and
honest business methods;
(b) the consideration expressed in the agreement for the
transaction entered into is the only consideration for the
transaction; and
2
(c) if the transaction is a sale, and if it is entered into for the
purposes or in contemplation of the products or services
obtained pursuant to the relevant transaction being
subsequently disposed of by the buying party, neither the
selling party, nor any person or company over which it has
Control, has any direct or indirect interest in the subsequent
disposal by the buying party of any of such products or
services.
"ARTICLES" means the Articles of Association of RRL to be adopted
conditional on Admission in substitution for and to the exclusion of the
existing Articles of Association of RRL;
"CONTROL" means, in relation to any Undertaking, the right, directly or
indirectly, to control or direct management or policies of that
Undertaking as a result of the ownership of at least 30 per cent. of an
Equity Interest.
"DIRECTORS" or "BOARD" means the board of directors for the time being
of RRL and "DIRECTOR" means any one of them;
"EQUITY INTEREST" means any interest, whether by the holding of any
securities or otherwise, entitling the holder to participate, without
specific limitation as to amount, in any distribution of the profits or
capital of any Undertaking, or generally to exercise Voting Rights in
respect of any Undertaking at any general meeting of such Undertaking's
sharesholders or proprietors or partners;
"GDSS" means Global Depositary Shares each representing the right to
receive one ordinary share;
"INTERNATIONAL OFFER" means the proposed offer of ordinary shares
(including ordinary shares to be represented by GDSs) by means of an
offer to institutional investors in Europe (including the United
Kingdom) and the United States of America including the ordinary shares
and GDSs to be issued pursuant to an over-allotment option granted in
favour of the underwriters to the International Offer by RRL;
3
"INDEPENDENT DIRECTORS" means Directors who are not officers or
employees of an R&E Related Party and, for the avoidance of doubt any
Director who is an employee or officer of any member of the RRL Group
shall not be precluded from being regarded as an Independent Director;
"INTERESTED" means any matter in which or with which R&E or any of the
R&E Related Parties have some interest, involvement or connection which
R&E ought to have known conflicts or is reasonably likely to conflict in
the immediately foreseeable future with the interests of RRL;
"LICENCE" means the licence between R&E and RRL pursuant to which RRL
shall be licensed to use the "Randgold" name contained in the schedule
to this Agreement;
"LISTING RULES" means the rules applicable to the admission of
securities to listing published by the London Stock Exchange;
"LONDON STOCK EXCHANGE" means London Stock Exchange Limited;
"MEMORANDUM OF AGREEMENT" means the memorandum of agreement referred to
in Recital (F) of this Agreement;
"ORDINARY SHARES" means ordinary shares of US$0.10 in the share capital
of RRL;
"R&E ASSOCIATE" means any Undertaking over which R&E has Control (a
"CONTROLLED UNDERTAKING");
"R&E DIRECTOR" means any Director who is also an officer or employee of
a R&E Related Party;
"R&E RELATED PARTIES" means R&E and the R&E Associates and "R&E RELATED
PARTY" means either one of them;
4
"R&E SHAREHOLDERS" means any R&E Related Party from time to time holding
Shares or GDSs and any person holding Shares or GDSs as trustee or
nominee for any R&E Related party and "R&E SHAREHOLDER" means any one of
them;
"RELEVANT INTEREST" means any direct or indirect interest in assets or
shares including any interest in indebtedness of any Undertaking;
"RRL GROUP" means RRL, its subsidiary undertakings from time to time,
any parent undertaking of RRL for the time being (other than R&E or any
of the R&E Associates) and any subsidiary undertakings of such parent
undertaking, and references to a member of the RRL Group shall be
construed accordingly;
"SHARES" means shares in the capital of RRL which carry Voting Rights;
"UNDERTAKING" means a company, body corporate, or other economic
enterprise carrying on a business (whether or not for profit); and
"VOTING RIGHT" means, in relation to any Undertaking the voting rights
attaching to securities of the relevant Undertaking which are generally
exercisable at meetings of shareholders of the relevant Undertaking.
1.2 In this Agreement, save where the context otherwise requires:
(a) words in the singular shall include the plural, and vice versa;
(b) a reference to a clause, sub-clause shall be a reference to a
clause, sub-clause (as the case may be) of or to this
Agreement;
(c) references to writing shall include any modes of reproducing
words in a legible and non-transitory form; and
(d) references to this Agreement include this Agreement as amended
or supplemented in accordance with its terms.
5
2 CONDITIONS
2.1 This Agreement (other than clause 2.2, 7 and 9) is conditional in all
respects upon the Admission becoming effective in accordance with the
Listing Rules.
2.2 If the condition referred to in Clause 2.1 shall not have been satisfied
on or before 8 July 1997 (or such later date as the parties may agree)
this Agreement shall (subject as provided below) lapse and be of no
further force and effect and no party shall have any claim hereunder
against any other party.
3 UNDERTAKINGS IN RESPECT OF RRL
3.1 R&E agrees to exercise, and agrees to procure that each of the R&E
Shareholders exercises, its respective rights hereunder or as a
shareholder in RRL (and R&E agrees to use its best efforts to procure
that any R&E Director votes (whether at a meeting of the Board, any
committee thereof or by way of a written resolution of Directors in
accordance with the Articles)) at all times in the manner required, so
as to ensure (in so far as they are respectively able) that:
(a) the terms of this Agreement are implemented in full;
(b) RRL performs and complies with its obligations under this
Agreement, the Articles and the Listing Rules;
(c) the independence of the Board is maintained in accordance with
Rule 3.13 of the Listing Rules and the requirements of the
London Stock Exchange such that the majority of the Board is
comprised of Independent Directors; and
(d) all existing, proposed and future transactions between members
of the RRL Group and an R&E Related Party (including trading
arrangements) are on Arms' Length Terms and on a normal
commercial basis (the parties acknowledging that this Agreement
has been concluded on such a basis).
6
3.2 Without limitation to its obligations under Clause 3.1, R&E undertakes
to procure that no R&E Shareholder shall vote as a shareholder of RRL
nor shall any R&E Director (or any alternate nominated by one of them)
vote (whether at a meeting of the Board, any committee thereof or by way
of a written resolution of the Directors in accordance with the
Articles) in relation to:
(a) any actual or proposed transaction between, on the one hand, a
member of the RRL Group and, on the other hand, an R&E Related
Party (including any director, officer or employee thereof)
including for the avoidance of doubt any transaction to be
entered into on Arms' Length Terms; or
(b) in relation to any matter in which an R&E Related Party is
materially interested; or
(c) in relation to any decision by RRL concerning the enforcement
of its rights under, and the operation of, this Agreement or
any agreement between any member of the RRL Group and a R&E
Related Party.
3.3 For the avoidance of doubt the prohibition in Clause 3.2 shall not apply
to:
(a) the entering into of any agreement or the doing of any act
expressly provided for in this Agreement; and
(b) any vote on a resolution to appoint or re-appoint as a Director
a person who, if so appointed or re-appointed, would be an R&E
Director or to remove an R&E Director as a Director.
4 RESTRICTIONS ON COMPETITION
4.1 R&E hereby undertakes to RRL that it shall not, and shall procure that
no R&E Related Party shall, either on its or his own account or in
conjunction with or on behalf of any Undertaking:
7
(a) carry on. directly or indirectly, or be engaged in any business
which prospects, explores or operates gold mines anywhere in
the world other than within the Republic of South Africa or the
Republic of Namibia (a "COMPETING BUSINESS"); and
(b) acquire or hold a Relevant Interest in any Undertaking carrying
on directly or indirectly any Competing Business (which for the
avoidance of doubt, shall include the acquisition of any Equity
Interest where the proceeds of the issuance of such Equity
Interest are to be used to acquire a Relevant Interest in an
Undertaking carrying on a Competing Business).
4.2 Clause 4.1 shall not prevent any R&E Related Party from being interested
in a Competing Business or acquiring or holding a Relevant Interest in
any Undertaking interested, directly or indirectly, in the carrying on
of a Competing Business:
(a) where the Undertaking is a member of the RRL Group;
(b) to the extent that an R&E Related Party is interested, directly
or indirectly, in any Competing Business only because it or he
has agreed in the ordinary course of its business to provide
technical services on bona fide Arms' Length Terms to an
Undertaking carrying on a Competing Business;
(c) where the Relevant Interest is a direct or indirect holding
(for investment purposes only) of not more than 30 per cent. of
the shares of a company listed on a recognised stock exchange
whose core business involves the prospecting, exploration and
operation of gold mines in the Republic of South Africa and the
Republic of Namibia;
(d) where R&E (or a R&E Associate) acquires a Relevant Interest in
an Undertaking and:
8
(i) the profit before interest and tax and turnover of
such Undertaking and its associates taken as a whole
attributable to the carrying on of the Competing
Business in the immediately preceding financial year
prior to the acquisition are each less than 10 per
cent. of the total profit before interest and tax and
turnover respectively of the Undertaking and its
associates taken as a whole for such period; and
(ii) the turnover of such Undertaking and its associates
attributable to the carrying on of the Competing
Business in such period is less than US$5 million;
and for the purpose of this clause 4.2(d) profit before
interest and tax and turnover shall be calculated according to
the applicable generally accepted accounting principles using
the latest published annual accounts of the Undertaking or the
relevant consolidated accounts where the Undertaking is the
holding company of a group of companies;
(e) where the Relevant Interest is acquired in accordance with
clause 4.5.
4.3 Subject to the terms of any relevant legally binding confidentiality
obligation to which R&E or any R&E Related Party is for the time being a
party, R&E undertakes to inform RRL as soon as is reasonably practicable
if at any time it is offered, or there is offered to any R&E Related
Party, any opportunity to acquire or hold a Relevant Interest in an
Undertaking which is or is proposing to become directly or indirectly
interested in any Competing Business which such persons are restricted
from acquiring or holding in accordance with Clauses 4.1 and 4.2 above.
4.4 Where any R&E Related Party has been offered the chance to participate
in any such opportunity referred to clause 4.3 and RRL has the financial
resources to participate in such opportunity then R&E further undertakes
forthwith to use all reasonable endeavours to procure, insofar as it is
able, that such opportunity is offered to the RRL Group so as to enable
any member of the RRL Group to take
9
up such opportunity and that the terms on which the opportunity is
available are made known to the RRL Group.
4.5 In the event that any such opportunity is offered to the RRL Group and
RRL:
(i) informs R&E that the RRL Group does not wish to pursue such
opportunity after the passing of a resolution to that effect
having been passed by a majority of the Independent Directors;
or
(ii) does not within 60 days of being so notified inform R&E that it
does intend to pursue it after such matter having been
discussed at a board meeting of RRL and a resolution to that
effect having been passed by a majority of the Independent
Directors; or
(iii) having notified R&E that it wishes to pursue an opportunity
offered to it pursuant to clause 4.3, does not then take active
steps to take advantage of such opportunity within 60 days of
such notification.
in which case, any R&E Related Party may forthwith, and notwithstanding
the provisions of Clauses 4.1 and 4.2 above, take up (either alone or
together with others) the opportunity referred to in clause 4.3.
4.6 If a R&E Related Party acquires a business which includes a Competing
Business when the main purpose of the acquisition is not the acquisition
of a Competing Business and the Competing Business is not a major part
of the business so acquired then R&E shall procure that the relevant R&E
Related Party offers to RRL the Competing Business at a price which is
no more than the acquisition price paid by the Relevant R&E Related
Party for the Competing Business. Any decision by RRL as to whether to
accept such an offer must be made by a majority of Independent
Directors.
10
5 CONTRACTS WITH R&E RELATED PARTIES
5.1 Without prejudice to the provisions of Clause 3, each of R&E and RRL
agree that no contract or arrangement of any nature whatsoever shall be
entered into between any R&E Related Party and any member of the RRL
Group following Admission, save with the prior written consent of a
majority of the Independent Directors.
5.2 R&E hereby agrees to provide certain support services to RRL in the
Republic of South Africa as requested by RRL from time to time
(including in particular providing office facilities to RRL in the
Republic of South Africa); it being hereby agreed between R&E and RRL
that R&E will be reimbursed by RRL for the actual cost of the provision
of such services to RRL. Any services provided to RRL pursuant to this
clause 5.2 must first be approved in writing by a majority of the
Independent Directors.
6 LICENCE TO USE THE "RANDGOLD" NAME
6.1 R&E and RRL hereby agree to enter into the Licence on the date of
Admission.
7 CONTINUANCE OF CERTAIN PROVISIONS OF THE MEMORANDUM OF AGREEMENT
7.1 XXX and R&E hereby agree that:
(a) R&E will obtain the necessary consents from those authorities
or persons where consent is required to the transfer of its
interests in the Mineral Rights (as defined in the Memorandum
of Agreement) to RRL and the Exploration Companies (as defined
in the Memorandum of Agreement);
(b) if RRL is unable to obtain any such consent, then it will hold
such Mineral Rights (as defined in the Memorandum of Agreement)
in trust for the benefit and risk of RRL and the Exploration
Companies (as defined in the Memorandum of Agreement); and
11
(c) R&E will not (i) transfer, sell or assign such rights held in
trust unless instructed to do so by RRL and the Exploration
Companies (as defined in the Memorandum of Agreement); nor (ii)
allow them to lapse or be terminated without (except where such
lapsing or termination is by operation of any law or expiry of
a time period which the relevant authorities will not agree to
extend) such action being sanctioned by RRL and the Exploration
Companies (as defined in the Memorandum of Agreement), provided
that if R&E has timeously advised RRL of any action which is
required to be taken to prevent such lapsing or termination and
if, in the case of action requiring payment of money, RRL fails
to pay such money or in the case of any other action which RRL
ought to have been able to take but failed to do so (in either
case, whether timeously, fully, properly or at all), then R&E's
obligations in terms of this clause 7.1(c)(ii) in respect of
the particular right in question shall fall away.
7.2 RRL hereby agrees to reimburse R&E for all reasonable costs and expenses
incurred by R&E in connection with the obtaining of the consents
referred to in clause 7.1(a) and in connection with maintaining the
rights in force as referred to in 7(c)(ii) and contemplated by clause
7.1 (b).
8 DURATION AND TERMINATION
8.1 Except as otherwise provided herein, this Deed shall continue in full
force and effect for so long as any R&E Shareholders continue to own
beneficially (whether directly or indirectly) shares in the capital of
RRL carrying 30 per cent. or more of the Voting Rights in RRL and shall
terminate if the ownership of R&E Shareholders falls below this level.
8.2 Any termination of this Deed shall be without prejudice to any
provisions hereof which are expressed to continue in force thereafter
and shall be without prejudice to any rights or obligations which may
have accrued prior to termination pursuant to clause 8.1.
12
9 CONFIDENTIALITY
9.1 R&E undertakes that it shall, and will procure that each of the other
R&E Related Parties shall, (unless the prior written consent of RRL
shall first have been obtained) keep confidential and not disclose to
any third party or use or exploit commercially for his or its own
purposes any of the trade secrets, confidential knowledge or information
of the RRL Group which any of them may from time to time receive or
obtain as a result of entering into any agreement with any member of the
RRL Group or this Agreement or through a person who is both a director
of a company in the RRL Group and an R&E Director. Each of the R&E
Related Parties shall use all reasonable endeavours to ensure that
employees of and professional advisers to, the R&E Related Parties
observe such confidentiality.
9.2 RRL undertakes in like manner that it shall, and shall procure that all
members of the RRL Group shall, (unless the prior written consent of the
party to which the information relates shall first have been obtained)
keep confidential and not disclose to any third party or use or exploit
commercially for its own purposes any of the trade secrets, confidential
knowledge or information of any of the R&E Related Parties which any of
them may receive or obtain as a result of entering into any agreement
with any R&E Related Parties or otherwise during the course of this
Agreement or through a person who is both a director of a company in the
RRL Group and an R&E Director. RRL shall use all reasonable endeavours
to ensure that the employees of and professional advisers to the RRL
Group observe such confidentiality.
9.3 Notwithstanding the provisions of Clauses 9.1 and 9.2, the consent
referred to therein shall not be required for disclosure of any trade
secrets, confidential knowledge or information by the recipient party:
(a) to persons professionally engaged by such party or to employees
of such party, in each case to the extent required for the
proper execution of their work;
13
(b) to any government department or any governmental or regulatory
agency but only to the extent that disclosure thereto is
necessary in connection with any application for a licence or
other regulatory approval or otherwise compellable by law;
(c) to the extent required by an applicable law or by the
regulations of any relevant stock exchange or pursuant to any
order of court or other competent authority or tribunal;
(d) to the extent that the relevant trade secrets, confidential
knowledge or information have fallen into the public domain or
come into the disclosing party's possession otherwise than by
breach of this Deed by the disclosing party or, to the best of
the knowledge and belief of the disclosing party, by any person
subject to an obligation of confidentiality; or
(e) to the extent that the relevant trade secrets, confidential
knowledge or information have been independently discovered or
developed by the disclosing party (the onus being on that party
to produce written evidence of such independent discovery or
development);
provided that the disclosing party shall make reasonable efforts to
minimise the extent of such disclosure and, to the extent reasonably
practicable, disclosure referred to in (a) shall be covered by
confidentiality protection no less onerous than the provisions contained
in Clauses 9.1 or 9.2 (as the case may be).
10 MISCELLANEOUS
10.1 The provisions of this Deed shall be binding on and enure for the
benefit of the parties' successors, assigns and personal representatives
and no party shall be entitled to assign its obligations under this Deed
without the prior written consent of the other party.
14
10.2 This Deed represents the entire understanding, and constitutes the whole
agreement, in relation to its subject matter and supersedes any previous
agreement between the parties with respect thereto and without prejudice
to the generality of the foregoing excludes any warranty, condition or
other undertaking implied at law or by custom.
10.3 Nothing in this Deed shall be deemed to constitute a partnership between
the parties hereto nor constitute any party the agent of another party
for any purpose.
11 NOTICES
11.1 A notice, approval, consent or other communication in connection with
this Deed must be in writing and must be left at the address of the
addressee, or sent by prepaid ordinary post to the address of the
addressee or sent by facsimile to the facsimile number of the addressee
which is specified in this clause.
The address, telex number and facsimile number of each party is:
R&E
Address: 0 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxxxxxx, Xxxxx Xxxxxx
Facsimile: 2711 837 0813
Attention: Company Secretary
RRL
Address: La Motte Xxxxxxxx, La Motte Street. St. Helier,
Jersey JEI 1BJ. Channel Islands
Facsimile: 44 1534 602002
Attention: Company Secretary
11.2 A notice, approval, consent or other communication shall take effect
from the time it is received (or, if earlier, the time it is deemed to
be received in accordance with sub-clause 11.3) unless a later time is
specified in it.
11.3 A letter or facsimile is deemed to be received:
15
(a) in the case of a posted letter, unless actually received
earlier, on the sixth day after posting; and
(b) in the case of facsimile, on production of a transmission
report from the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient.
12 GOVERNING LAW AND JURISDICTION
12.1 This Deed shall be governed by, and construed in accordance with,
English law.
12.2 Each party irrevocably agrees that the Courts of England shall have
non-exclusive jurisdiction in relation to any claim, dispute or
difference concerning this Deed and any matter arising therefrom.
Nothing in this clause 12 shall limit the right of any party to take
proceedings in any manner permitted by law or in any other court of
competent jurisdiction nor shall the taking of proceedings in any one or
more jurisdiction preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.
12.3 Each of R&E and RRL hereby appoint Norose Service Company Limited of
Kempson House, Camomile Street, London EC3A 7AN as their respective
agent for service of process.
12.4 Each party irrevocably waives any right that it may have to object to an
action being brought in those Courts, to claim that the action has been
brought in an inconvenient forum, or to claim that those Courts do not
have jurisdiction.
12.5 Each party agrees that without preventing any other mode of service any
document in an action (including, but not limited to, any writ of
summons or other originating process or any third or other party
notice) may be served on any party by being delivered to or left for
that party at its address for service of notices under clause 11 and to
notify the other party in advance of any change from time to time of the
details of such address in accordance with the manner prescribed for
service of notices under clause 11.
16
SCHEDULE 1
LICENCE
DATED 26 JUNE 1997
___________________________________
RANDGOLD & EXPLORATION COMPANY LIMITED (1)
AND
RANDGOLD RESOURCES LIMITED (2)
___________________________________
LICENCE
___________________________________
XXXXXX XXXX
LONDON
17
THIS AGREEMENT is made on the 26 June 1997 BETWEEN:
(1) RANDGOLD & EXPLORATION COMPANY LIMITED (No. 92/05642/06) of 0 Xxxxx
Xxxxxx, Xxxxx, Xxxxxxxxxxxx, Xxxxx Xxxxxx ("R&E"); and
(2) RANDGOLD RESOURCES LIMITED (No 62686) of La Motte Xxxxxxxx, Xx Xxxxx
Xxxxxx, Xx. Xxxxxx, Xxxxxx, XX0 0XX, Channel Islands ("RRL").
IT IS AGREED as follows:
1 DEFINITIONS
1.1 References herein to clauses are references to clauses of this Deed.
1.2 The headings to clauses shall not affect their interpretation.
1.3 Unless the context otherwise requires, words denoting the singular shall
include the plural and vice versa.
2 GRANT
2.1 For consideration of US$1 now paid by RRL to R&E (receipt of which is
hereby acknowledged), R&E hereby grants to RRL an irrevocable
non-exclusive royalty-free licence to the fullest extent it is able to
continue to use the word "Randgold" anywhere in the world.
2.2 If for any reason R&E ceases to use the word "Randgold" at any time or
removes it from its corporate name, it shall for a consideration of
US$1, assign absolutely all its rights and interest in the word
"Randgold".
18
2.3 R&E undertakes that it will, at the request of RRL. execute or procure
the execution of any document or do any such act which may be necessary
to allow the recordal of the rights granted to RRL by this Agreement.
3 R&E WARRANTIES
3.1 R&E warrants that:
(a) it is not aware of any present or proposed litigation
concerning the word "Randgold" relating to its use of such word
by RRL or R&E; and
(b) it is not aware of any claim that the use of the "Randgold"
name infringes the rights of any third party anywhere in the
world.
3.2 R&E undertakes to RRL that for as long as R&E or any of its subsidiaries
have the word "Randgold" in its or their corporate names, R&E will
either use its reasonable endeavours to protect and maintain the
"Randgold" name in the countries in which is so used or will notify RRL
of any infringement of the "Randgold" name of which R&E becomes aware.
In such event, RRL may, at RRL's cost and against RRL furnishing R&E
with an indemnity reasonably acceptable to R&E, take steps to prevent
such infringement in R&E's name and R&E shall provide such advice and
assistance as RRL may reasonably require.
3.3 R&E undertakes to RRL that it shall not, nor shall it grant to any third
party a licence to, use the "Randgold" name for the purpose of gold
mining (including exploration and prospecting or any other associated or
ancillary purpose) in the continent of Africa (but excluding the
Republic of South Africa and the Republic of Namibia).
3.4 It is expressly agreed that R&E does not warrant, represent or undertake
that it has the right to use the name "Randgold" in any country in which
such name is not registered by or on behalf of R&E and/or its
subsidiaries.
19
4 NO PARTNERSHIP OR AGENCY
4.1 Nothing in this Agreement shall be deemed to constitute a partnership
between the parties or constitute one party being the agent of the other
for any purpose or entitle either party to commit or bind the other
party in any manner.
5 GOVERNING LAW
5.1 This Agreement shall be governed by and construed in accordance with the
laws of England and the parties hereby submit to the non-exclusive
jurisdiction of the English courts.
5.2 Nothing in this clause 5 shall limit the right of any party to take
proceedings in any manner permitted by law or in any other court of
competent jurisdiction nor shall the taking of proceedings in any one or
more jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.
5.3 Each of R&E and RRL hereby appoint Norose Service Company Limited of
Kempson House, Camomile Street, London EC3A 7AN as their respective
agent for service of process.
IN WITNESS whereof the parties have caused this Agreement to be executed on the
day and year first above written.
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SIGNED by )
for and on behalf of )
RANDGOLD & EXPLORATION )
COMPANY LIMITED ) _____________________________________
in the presence of: Director
SIGNED by )
for and on behalf of )
RANDGOLD RESOURCES LIMITED ) _____________________________________
in the presence of: Director
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IN WITNESS whereof this Deed has been entered into and executed on the day and
year first above written.
EXECUTED as a DEED ) /s/ [illegible]
and DELIVERED by ) _____________________________________
RANDGOLD & EXPLORATION ) Director
COMPANY LIMITED )
/s/ [illegible]
_____________________________________
Director/Secretary
EXECUTED as a DEED ) /s/ [illegible]
and DELIVERED by ) _____________________________________
RANDGOLD RESOURCES ) Director
LIMITED )
/s/ [illegible]
_____________________________________
Director/Secretary
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