OPTION AGREEMENT
between
RANDGOLD & EXPLORATION COMPANY LIMITED
and
CHESTNUT HILL INVESTMENTS 60 (PROPRIETARY)
LIMITED
[TABACKS LOGO]
TABLE OF CONTENTS
1. PARTIES..............................................................1
2. INTERPRETATION.......................................................1
3. INTRODUCTION.........................................................5
4. CONDITIONS PRECEDENT.................................................6
5. OPTION...............................................................7
6. OPTION FEE...........................................................9
7. BREACH...............................................................9
8. DOMICILIUM..........................................................10
9. COSTS...............................................................11
10. GENERAL.............................................................12
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OPTION AGREEMENT
1. PARTIES
1.1 RANDGOLD & EXPLORATION COMPANY LIMITED
1.2 CHESTNUT HILL INVESTMENTS 60 (PROPRIETARY) LIMITED
2. INTERPRETATION
2.1 The headnotes to the clauses of this agreement are inserted for
reference purposes only and shall in no way govern or affect the
interpretation hereof.
2.2 Unless inconsistent with the context, the expressions set forth below
shall bear the following meanings:
"the Act" the Companies Act, 1973 (Act 61 of 1973) as
amended from time to time
"Anglo" Anglo South African Capital (Proprietary) Limited
"Business Day" every day except Saturdays, Sundays and official
public holidays
"the Call Notice" the notice described in clause 5.1
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"the Closing Date" 3 days after the Exercise Date
"the Company"
Western Areas Limited, registration no.
1959/003209/06
"the Conditions" the conditions precedent in clause 4.1
"the Consortium Sale Agreement" the agreement in terms whereof the Purchaser shall
purchase 13 738 507 shares in the Company from Anglo
"the Exercise Date" the date on which the Purchaser shall deliver the
Call Notice to the Seller
"the Option Shares" 5 268 800 ordinary shares of R1 each, fully paid
up, in the issued share capital of the Company
"the Parties" the Purchaser and the Seller
"the Pledge" the pledge of the Option Shares by the Seller in
favour of the Anglo, to be executed simultaneously
with the Randgold Sale Agreement
"Prime" the published prime overdraft rate charged from time
to time by The
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Standard Bank of South Africa Limited to its corporate
customers on an unsecured basis, as determined by any
general manager or his delegee, whose authority need
not be proved, calculated daily on the basis of a 365
day year and compounded monthly in arrears
"the Purchase Date" the date on which the Seller shall have paid the
purchase price to Anglo in respect of the Option
Shares, in terms of the Randgold Sale Agreement
"the Purchaser" Chestnut Hill Investments 60 (Proprietary) Limited,
registration no. 2004/002172/07
"the Randgold Sale Agreement" the agreement in terms whereof the Seller shall
purchase the Option Shares from Anglo
"the Release Date" the date on which the Option Shares shall be released
from the Pledge by Anglo to the Seller
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"the Seller" Randgold & Exploration Company Limited, registration
no. 1992/005642/06
"the Signature Date" the date of last signature of this agreement.
2.3 If any provision in a definition is a substantive provision
conferring rights or imposing obligations on any party,
notwithstanding that it is only in the definition clause, effect
shall be given to it as if it were a substantive provision of this
agreement.
2.4 Any reference to an enactment is to that enactment as at the
Signature Date.
2.5 Unless inconsistent with the context, an expression which denotes:
2.5.1 any gender includes the other genders;
2.5.2 a natural person includes an artificial person and vice versa;
2.5.3 the singular includes the plural and vice versa.
2.6 Where any term is defined within the context of any particular
clause in this agreement, the term so defined, unless it is clear
from the clause in question that the term so defined has limited
application to the relevant clause, shall bear the meaning
ascribed to it for all purposes in terms of this
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agreement, notwithstanding that that term has not been defined in
this interpretation clause.
2.7 The rule of construction that the contract shall be interpreted
against the party responsible for the drafting or preparation of
this agreement, shall not apply.
3. INTRODUCTION
3.1 The Seller:
3.1.1 has entered into the Randgold Sale Agreement;
3.1.2 shall, on the completion of the Randgold Sale Agreement in
accordance with its terms, acquire the Option Shares;
3.1.3 shall, on the release of the Option Shares from the Pledge,
be entitled to deal with the Option Shares as it deems fit;
and
3.1.4 wishes, on its acquisition of and entitlement to deal with
the Option Shares as it deems fit, to sell the Option Shares
to the Purchaser.
3.2 The Purchaser wishes to purchase the Option Shares.
3.3 The Seller is prepared to grant an option to the Purchaser, which
wishes to accept such option, to purchase the Option Shares on the
terms and conditions recorded herein.
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4. CONDITIONS PRECEDENT
4.1 This entire agreement (save in respect of this clause 4 and
clauses 6 to 10 (both inclusive), which shall be of immediate
force and effect) shall be subject to the fulfilment of the
conditions precedent, by not later than 1 November 2004, or such
later date as the Parties may agree in writing that:
4.1.1 respectively the Randgold Sale Agreement and the Consortium
Sale Agreement shall have been entered into and executed by
the parties to those agreements, that the conditions
precedent to those agreements shall have been fulfilled and
that those agreements shall have been completed in
accordance with their respective terms, it being recorded
(for the avoidance of doubt) that the Consortium Sale
Agreement shall not have been completed in accordance with
its terms unless and until the Purchaser shall have paid to
Anglo the full amount due to Anglo in terms of the
Consortium Sale Agreement; and
4.1.2 the Option Shares shall have been released by Anglo from
the operation of the Pledge and the Seller shall be
entitled freely and in its discretion to deal with the
Option Shares.
4.2 The Parties shall use their respective reasonable commercial
endeavours to procure the fulfilment of the Conditions as soon as
reasonably possible after the Signature Date. In the event that
the conditions precedent shall not be fulfilled by the date
specified in clause 4.1, this agreement (save in
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respect of the provisions of clauses 6 to 10 (both inclusive),
which shall continue to be of force and effect) shall be of no
force or effect and neither Party shall have any right and/or
entitlement arising hereout.
5. OPTION
5.1 The Seller hereby grants to the Purchaser, which hereby accepts,
an option ("the Call Option") to purchase the Option Shares, or
such portion of the Option Shares as the Purchaser may in its
unfettered discretion determine, at any time during the period
commencing on the Release Date and terminating on the first
anniversary of the Release Date ("the Option Period"). The
Purchaser shall be entitled to exercise the Call Option by the
delivery of a written notice ("the Call Notice") to the Seller,
specifying the number of call shares in respect of which the Call
Option shall be exercised, it being recorded that the Purchaser
shall be entitled to exercise the Call Option piecemeal and on
more than one occasion during the Option Period, provided that the
aggregate number of shares in the Company in respect of which the
Purchaser shall be entitled to exercise the Call Option shall not
exceed the Option Shares.
5.2 On the delivery of the Call Notice to the Seller, an agreement
shall be deemed to have been entered into between the Seller and
the Purchaser in terms whereof the Seller sells and the Purchaser
purchases the number of Option Shares ("the Sold Option Shares")
specified in the Call Notice. The terms of such agreement shall
be:
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5.2.1 the purchase price of the Sold Option Shares shall be
calculated by reference to the formula:
P = (A x B) + C
where:
P is the purchase price payable by the Purchaser to the
Seller in respect of the Sold Option Shares;
A is the number of Option Shares constituting the Sold
Option Shares;
B is R37,50 per share; and
C an amount equal to notional interest calculated at Prime
plus 0.5% on the product of A and B for the period from
the Purchase Date to the Closing Date (both days
inclusive);
5.2.2 the Purchaser shall pay the purchase price described in
clause 5.2.1 to the Seller in immediately available funds,
without set-off or deduction, on the Closing Date to such
bank account as the Seller may reasonably specify in writing
by not later than the Exercise Date;
5.2.3 against payment of the purchase price by the Purchaser, the
Seller shall deliver to the Purchaser a copy of an
irrevocable and unconditional written instruction to the
Seller's Central Securities Depository Participant ("the
CSDP") to effect transfer of the Sold
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Option Shares on the Closing Date into the account notified
in writing by the Purchaser to the Seller by not later than
the Exercise Date, together with the unconditional
irrevocable written undertaking of the CSDP to act in
accordance with such instruction;
5.2.4 the Seller makes no representations and gives no warranties
in respect of the Option Shares, which are sold voetstoots
and as they stand; and
5.2.5 the Purchaser shall pay all stamp duties and/or uncertified
securities tax and/or brokerage fees in respect of the
transfer of the Sold Option Shares into the name of the
Purchaser.
6. OPTION FEE
The Purchaser shall pay to the Seller, by not later than the Exercise
Date, by way of a non-refundable option fee, an amount of R2 500 000.00.
The Purchaser shall make payment to the Seller in immediately available
funds, without set-off or deduction, to such bank account as the Seller
may reasonably specify in writing, by not later than 5 Business Days
after the Signature Date.
7. BREACH
Should either Party ("the Defaulting Party") commit a breach of any of
the provisions hereof, then the other Party ("the Aggrieved Party")
shall, if it wishes to enforce its rights hereunder, be obliged to give
the Defaulting Party 14 days written notice to remedy the breach. If the
Defaulting Party fails to comply with
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such notice, the Aggrieved Party shall be entitled to cancel this
agreement against the Defaulting Party or to claim immediate payment
and/or performance by the Defaulting Party of all of the Defaulting
Party's obligations whether or not the due date for payment and/or
performance shall have arrived, in either event without prejudice to the
Aggrieved Party's rights to claim damages. The foregoing is without
prejudice to such other rights as the Aggrieved Party may have at law.
8. DOMICILIUM
8.1 The Parties hereto choose domicilia citandi et executandi for all
purposes of and in connection with this agreement as follows:
the Seller: 3rd Floor
28 Harrison Street
JOHANNESBURG
2001
the Purchaser: 3rd Floor
28 Harrison Street
JOHANNESBURG
2001
8.2 Either Party hereto shall be entitled to change its domicilium
from time to time, provided that any new domicilium selected by it
shall be an address other than a box number in the Republic of
South Africa, and any such
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change shall only be effective upon receipt of notice in writing
by the other Party of such change.
8.3 All notices, demands, communications or payments intended for
either Party shall be made or given at such Party's domicilium for
the time being.
8.4 A notice sent by one Party to another Party shall be deemed to be
received:
8.4.1 on the same day, if delivered by hand;
8.4.2 on the same day of transmission if sent by telefax and if
sent by telefax with receipt received confirming completion
of transmission;
8.4.3 on the fifth day after posting, if sent by prepaid registered
mail.
8.5 Notwithstanding anything to the contrary herein contained a
written notice or communication actually received by a Party shall
be an adequate written notice or communication to it
notwithstanding that it was not sent to or delivered at its chosen
domicilium citandi et executandi.
9. COSTS
Each of the Parties shall bear its own costs of and incidental to the
negotiation, preparation and execution of this agreement.
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10. GENERAL
10.1 This document constitutes the sole record of the agreement between
the Parties in regard to the subject matter thereof.
10.2 Neither Party shall be bound by any express or implied term,
representation, warranty, promise or the like, not recorded
herein.
10.3 No addition to, variation or consensual cancellation of this
agreement shall be of any force or effect unless in writing and
signed by or on behalf of the Parties.
10.4 No indulgence which either of the Parties ("the Grantor") may
grant to the other ("the Grantee") shall constitute a waiver of
any of the rights of the Grantor, who shall not thereby be
precluded from exercising any rights against the Grantee which
might have arisen in the past or which might arise in the future.
10.5 The Parties undertake at all times to do all such things, to
perform all such acts and to take all such steps and to procure
the doing of all such things, the performance of all such actions
and the taking of all such steps as may be open to them and
necessary for or incidental to the putting into effect or
maintenance of the terms, conditions and import of this agreement.
10.6 Neither Party shall be entitled to cede, delegate or otherwise
transfer all or any of its rights, interest or obligations under
and in terms of this agreement except with the prior written
consent of the other Party.
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THUS DONE and SIGNED at Johannesburg on this the 9th day of June 2004.
For and on behalf of
RANDGOLD & EXPLORATION COMPANY LIMITED
By: /s/. R. B. Kebble
-------------------------------------
who warrants his authority hereto
THUS DONE and SIGNED at Johannesburg on this the 9th day of June 2004.
For and on behalf of
CHESTNUT HILL INVESTMENTS 60
(PROPRIETARY) LIMITED
By: M.E. Mkwanazai
-------------------------------------
who warrants his authority hereto
