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EXHIBIT 4.40
SUBSCRIPTION AGREEMENT
between:
KHUMO BATHONG HOLDINGS (PROPRIETARY) LIMITED
(Registration number 1998/007546/07)
("KBH")
and
DURBAN ROODEPOORT DEEP, LIMITED
(Registration number 1895/000926/06)
("the Company")
BOWMAN GILFILLAN INC.
9th Floor, Twin Towers West
Sandton City
Sandton, 2146
Telephone: (011) 881-9800
Fax: (011) 883-4505
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TABLE OF CONTENTS
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1. INTERPRETATION............................................................3
2. CONDITIONS PRECEDENT......................................................6
3. AGREEMENT TO SUBSCRIBE FOR AND ISSUE SHARES...............................8
4. ISSUE OF SHARES...........................................................8
5. RESTRICTIONS ON KBH.......................................................9
6. CO-OPERATION.............................................................10
7. CONFIDENTIALITY..........................................................11
8. ARBITRATION..............................................................11
9. COSTS....................................................................12
10. GENERAL..................................................................13
11. ADDRESSES................................................................14
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WHEREAS:
KBH wishes to invest R68 027 000 (sixty eight million and twenty seven thousand
Rand) in the Company by subscribing for 4 794 889 (four million seven hundred
and ninety four thousand and eight hundred and eighty nine) Ordinary Shares, and
the Company is willing to allot and issue to KBH 4 794 889 (four million seven
hundred and ninety four thousand and eight hundred and eighty nine) Ordinary
Shares, on the terms and subject to the conditions set out in this Agreement.
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
For the purposes of this Agreement, and the preamble, unless the
context requires otherwise, the parties defined in the heading
of this Agreement shall retain such definitions and the words
and expressions set out below shall have the meanings assigned
to them, namely:
1.1.1 "the Act" means the Companies Act, 1973, as
amended;
1.1.2 "this Agreement" means this Subscription Agreement;
1.1.3 "Board of Directors" means the board of directors of the
Company or any duly appointed
committee thereof from time to
time;
1.1.4 "Business Day" means any day other than a
Saturday, Sunday or statutory
holiday in South Africa;
1.1.5 "the Company" means Durban Roodepoort Deep,
Limited, a company registered in
accordance with the laws of South
Africa under Registration Number
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1895/000926/06;
1.1.6 "Effective Date" means the date on which all the
conditions set out in clause 2.1
are fulfilled or deemed to be
fulfilled and upon which this
Agreement becomes unconditional and
accordingly takes effect;
1.1.7 "the JSE" means The JSE Securities Exchange
South Africa;
1.1.8 "KBH" means Khumo Bathong Holdings,
(Proprietary) Limited, a company
registered in accordance with the
laws of South Africa under
Registration Number 1998/007546/07;
1.1.9 "Ordinary Shares" means ordinary no par value shares
in the stated capital of the
Company;
1.1.10 "Parties" means KBH and the Company and
"Party" means any one of them;
1.1.11 "South Africa" means the Republic of South Africa
as constituted from time to time;
1.1.12 "Signature Date" means the last date on which this
Agreement is signed by the Parties;
1.1.13 "the Subscription Date" means the date and time on which
the matters referred to in clause 4
are duly completed in accordance
with the requirements of that
clause; and
1.1.14 "Subscription Shares" means the 4 794 889 (four million
seven hundred and ninety four
thousand and eight
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hundred and eighty nine) Ordinary
Shares which KBH is desirous of
subscribing for in terms of this
Agreement.
1.2 GENERAL INTERPRETATION
In addition to the definitions in clause 1.1, unless the context
requires otherwise:
1.2.1 the singular shall include the plural and vice versa;
1.2.2 a reference to any one gender, whether masculine,
feminine or neuter, includes the other two;
1.2.3 any reference to a natural person includes an artificial
person and vice versa;
1.2.4 any word or expression defined in and for the purposes
of this Agreement shall, if expressed in the singular,
include the plural and vice versa and a cognate word or
expression shall have a corresponding meaning;
1.2.5 words and expressions defined in the Act, which are not
defined in this Agreement, shall bear the same meanings
in this Agreement as those ascribed to them in the Act;
1.2.6 references to a statutory provision include any
subordinate legislation made from time to time under
that provision, references to a statutory provision
include that provision as from time to time modified or
re-enacted as far as such modification or re-enactment
applies, or is capable of applying, to this Agreement or
any transaction entered into in accordance with this
Agreement;
1.2.7 references in this Agreement to "clauses" are to clauses
to this Agreement; and
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1.2.8 where an obligation pursuant to this Agreement is
expressed to be undertaken or assumed by any Party, such
obligation shall be construed as requiring the Party
concerned to exercise all rights and powers of control
over the affairs of any other person which that Party is
able to exercise (whether directly or indirectly) in
order to secure performance of that obligation.
2. CONDITIONS PRECEDENT
2.1 The whole of this Agreement (except for this clause 2 and
clauses 1, 6, 7, 8, 9, 10 and 11) shall be subject to the
fulfilment or deemed fulfilment of all the following conditions
precedent within 120 (one hundred and twenty) days of the
Signature Date or by such later date as the Parties may agree
upon in writing:
2.1.1 KBH raising adequate finance in the amount of R66 303
550 (sixty six million three hundred and three thousand
five hundred and fifty Rand) for the purpose of
acquiring the Subscription Shares;
2.1.2 the passing of resolutions by the Company in general
meeting authorising the Company to allot and issue to
KBH the Subscription Shares in accordance with the
provisions of section 82(1) of the Act, and the
registration of those resolutions in accordance with the
requirements of the Act, if so required;
2.1.3 the passing of a resolution by the Board of Directors
approving the terms of, and the transactions
contemplated by, this Agreement and authorising any of
the directors of the Company to execute this Agreement
and any ancillary documentation;
2.1.4 the passing of a resolution by the board of directors of
KBH approving the terms of, and the transactions
contemplated by, this Agreement and authorising any of
the directors of KBH to execute this Agreement and any
ancillary documentation;
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2.1.5 all appropriate approvals and processes, to the extent
required, having been obtained and complied with, in
accordance with the Listings Requirements of the JSE;
2.1.6 all appropriate approvals and processes, to the extent
required, having been obtained and complied with, in
accordance with the Listings Requirements of the London
Stock Exchange;
2.1.7 all appropriate approvals and processes, to the extent
required, having been obtained and complied with, in
accordance with the Listings Requirements of the
Australian Stock Exchange;
2.1.8 all appropriate approvals and processes, to the extent
required, having been obtained and complied with, in
accordance with the Listings Requirements of the Paris
Bourse;
2.1.9 all appropriate approvals and processes, to the extent
required, having been obtained and complied with, in
accordance with NASDAQ;
2.1.10 KBH and The Industrial Development Corporation of South
Africa Limited having become the owners of 3% (three per
cent) and 57% (fifty seven per cent) respectively of the
issued share capital of Crown Gold Recoveries
(Proprietary) Limited.
2.2 The condition precedent in clause 2.1.1 is stipulated for the
sole benefit of KBH and KBH may waive such condition precedent
in writing to that effect, and upon any such waiver the
condition precedent shall be deemed to have been fulfilled. It
is recorded that the conditions precedent in clauses 2.1.2 to
2.1.10 are stipulated for the benefit of both Parties.
2.3 Except for the provisions of clause 2.1.1 and clause 2.1.10, if
any approval or consent required for the fulfilment of any
condition precedent is granted subject to any condition which
adversely affects the Company to a material extent, the approval
shall be deemed not to have been given if the Company so
requires, and gives written notice to that effect to KBH within
30 (thirty) days from the date on which the approval in question
is granted.
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2.4 If any one of the conditions precedent is not fulfilled, deemed
to be fulfilled or waived during the period set out in clause
2.1, then this Agreement (except for this clause 2 and clauses
1, 6, 7, 8, 9, 10 and 11) shall not take effect unless otherwise
agreed in writing by the Parties.
2.5 The Parties shall use their reasonable endeavours to do whatever
may be necessary to procure the fulfilment of the conditions
precedent set out in clause 2.1 and shall co-operate fully with
each other for that purpose.
3. AGREEMENT TO SUBSCRIBE FOR AND ISSUE SHARES
KBH agrees to subscribe for, and the Company agrees to allot and issue
to KBH, the Subscription Shares for a cash subscription price of
R68 027 000 (sixty eight million and twenty seven thousand Rand), with
effect from the Subscription Date and in accordance with the terms and
subject to the conditions of this Agreement.
4. ISSUE OF SHARES
Unless otherwise agreed by the Parties in writing, a meeting shall be
held within 7 (seven) Business Days from the Effective Date, provided
that such date shall not be earlier than the Closing Date (as defined in
the Share Purchase Agreement entered into between Crown Consolidated
Gold Recoveries Limited, The Industrial Development Corporation of South
Africa Limited, KBH and the Company simultaneously with the signature of
this Agreement), at the offices of Bowman Gilfillan Inc., 9th Floor,
Twin Towers West, Sandton City, Sandton at 14h00 or such later date and
time as the Parties may agree upon in writing, at which KBH shall
subscribe for the Subscription Shares and the Company will allot and
issue the Subscription Shares to KBH against receipt in cash of the
subscription of R68 027 000 (sixty eight million and twenty seven
thousand Rand) by means of a telegraphic transfer, for value at the
Subscription Date, to a bank account of the Company in South Africa,
which shall have been designated by the Company giving written notice to
KBH at least 24 (twenty four) hours before the Subscription Date..
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5. RESTRICTIONS ON KBH
5.1 KBH undertakes that it will not sell, alienate or otherwise
dispose of the Subscription Shares other than in accordance with
the provisions of clause 5.2.
5.2 If KBH wishes to sell, alienate or otherwise dispose of all or
some of the Subscription Shares, KBH shall first offer for sale
to the Company all or some of the Subscription Shares by means
of written notice to that effect (a "Transfer Notice") on the
same terms and conditions of any proposed transfer as those
offered to a proposed third party (the "Third Party Purchaser")
together with details of the Third Party Purchaser, the purchase
price and other material terms offered by KBH to the Third Party
Purchaser. To give effect to this provision, the Company shall
issue the Subscription Shares in a material form and KBH hereby
authorises the Company to hold the share certificate evidencing
the ownership of the Subscription Shares in trust on behalf of
KBH and the Company shall not be bound to release such share
certificate at the instruction of KBH if such instruction is
pursuant to a transaction which is in breach of this clause 5.
5.3 On receipt of the Transfer Notice, the Company shall have the
right but shall not be bound to place the Subscription Shares at
the purchase price specified in the Transfer Notice (or at such
other price as may be agreed between KBH and the Company) with
another purchaser of the Company's choice, by giving written
notice to KBH to that effect within 21 (twenty one) days of the
receipt of the Transfer Notice.
5.4 If the Company does not exercise its rights under clause 5.3,
KBH shall be entitled to sell and transfer the Subscription
Shares on a bona fide arm's length sale to the Third Party
Purchaser with the written consent of the Company at a price
which is not less than the purchase price specified in the
Transfer Notice.
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5.5 DRD acknowledges that KBH intends to pledge the Subscription
Shares to The Industrial Development Corporation of South Africa
Limited as security for a loan of R66 303 550 (sixty six million
three hundred and three thousand and five hundred and fifty) by
The Industrial Development Corporation of South Africa Limited
to Crown Gold Resources (Proprietary) Limited. The Parties agree
that the pledge by KBH of the Subscription Shares for that
purpose shall not constitute a breach of clause 5.1, and that
the transfer or sale of the Subscription Shares by The
Industrial Development Corporation of South Africa Limited
pursuant to its due enforcement of such pledge shall not
constitute a breach of clause 5.2.
5.6 KBH undertakes to DRD to procure that, forthwith upon lapse of
the pledge referred to in clause 5.5 for any reason, the share
certificate evidencing the ownership of the Subscription Shares
is delivered to DRD, to be held by DRD for the purposes of, and
in accordance with, the provisions of clause 5.2.
6. CO-OPERATION
Each Party to this Agreement undertakes to do such things, perform such
acts, to take all such steps and to procure the doing of all such
things, the performance of all such acts and the taking of all such
steps as may be necessary, incidental and conducive to give effect to
the terms, conditions and import of this Agreement.
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7. CONFIDENTIALITY
7.1 Each Party undertakes to the other that this Agreement and all
negotiations relating to its conclusion shall remain strictly
confidential between them and no disclosure thereof shall be
made to any third party other than the professional advisers of
the Parties, The Industrial Development Corporation of South
Africa Limited, Crown Consolidated Gold Recoveries Limited and
Crown Gold Recoveries (Proprietary) Limited and their
professional advisers or as is necessary to give effect to its
provisions and to comply with the listing requirements of the
various stock exchanges and the Act as set out in clause 2. Only
such disclosures as have been agreed by both Parties in writing
shall be made.
7.2 KBH undertakes that while this Agreement remains in force it
shall keep confidential and not disclose any information about
the Company or its business to any third party unless KBH is
under a legal obligation to make the disclosure or the
information is in the public domain.
8. ARBITRATION
8.1 Any dispute arising out of this Agreement or the interpretation
thereof, both while in force and after its termination, may at
the election of the Party claiming such dispute, be submitted to
and determined by arbitration. Such arbitration shall be held in
Johannesburg unless otherwise agreed to and shall be held in a
summary manner with a view to it being completed as soon as
possible.
8.2 There shall be one arbitrator who shall be, if the question in
issue is:
8.2.1 primarily an accounting matter, an independent chartered
accountant of 10 (ten) years standing;
8.2.2 primarily a legal matter, a practising Senior Counsel;
and
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8.2.3 primarily a technical matter, a suitably qualified
person.
8.3 The appointment of the arbitrator shall be agreed upon between
the Parties, but failing agreement between them within a period
of 14 (fourteen) days after the arbitration has been demanded,
either of the Parties shall be entitled to request the Chairman
for the time being of the Arbitration Foundation of Southern
Africa to make the appointment who, in making his appointment,
shall have regard to the nature of the dispute.
8.4 The arbitrator shall have the powers conferred upon an
arbitrator under the Arbitration Act, 1965, as amended, or
re-enacted in some other form from time to time, but shall not
be obliged to follow the procedures described in that Act and
shall be entitled to decide on such procedures as he may
consider desirable for the speedy determination of the dispute,
and in particular he shall have the sole and absolute discretion
to determine whether and to what extent it shall be necessary to
file pleadings, make discovery of documents or hear oral
evidence.
8.5 The decision of the arbitrator shall be final and binding on the
Parties, and may be made an order of any court of competent
jurisdiction. Each of the Parties hereby submits itself to the
non-exclusive jurisdiction of the Witwatersrand Local Division
of the High Court of South Africa should the other Party wish to
make the arbitrator's decision an order of that Court.
9. COSTS
Each Party shall bear its own legal costs in respect of the negotiation,
preparation and conclusion of this Agreement and all other documents
necessary to give effect to this Agreement.
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10. GENERAL
10.1 REMEDIES
No remedy conferred by this Agreement is intended to be
exclusive of any other remedy which is otherwise available at
law, by statute or otherwise and each remedy shall be cumulative
and in addition to every other remedy given hereunder or now or
hereafter existing at law, by statute or otherwise. The election
of any one or more remedy by any of the Parties shall not
constitute a waiver by such party of the right to pursue any
other remedy.
10.2 SEVERANCE
If any provision of this Agreement is rendered void, illegal or
unenforceable in any respect under any law it shall be severable
from this Agreement, and the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
10.3 SURVIVAL OF RIGHTS, DUTIES AND OBLIGATIONS
Termination of this Agreement for any cause shall not release a
Party from any liability which at the time of termination has
already accrued to that Party or which thereafter may accrue in
respect of any act or omission prior to such termination.
10.4 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
Parties in regard to its subject matter and save as otherwise
expressly provided no modification, amendment or waiver of any
of the provisions of this Agreement shall be effective unless
made in writing specifically referring to this Agreement and
duly signed by the Parties.
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10.5 BINDING AGREEMENT
This Agreement shall be binding on the Parties hereto and their
respective successors and assigns.
10.6 NO PARTNERSHIP
Nothing in this Agreement shall be deemed to constitute a
partnership between the Parties (or any of them) or constitute
any Party the agent of any other Party for any purpose.
10.7 COUNTERPARTS
This Agreement may be signed in any number of counterparts, all
of which taken together shall constitute one and the same
instrument. Any Party may enter into this Agreement by signing
any such counterpart.
11. ADDRESSES
11.1 Each Party to this Agreement chooses the address set out
opposite its name below as its address at which all notices,
legal processes and other communications must be delivered for
the purposes of this Agreement.
11.1.1 The Company: 45 Empire Road
Parktown
Johannesburg
South Africa
Attn: M Eloff (the Company Secretary)
Fax No. 011 482 1022
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11.1.2 KBH: ERPM Main Office
Cnr Main Reef and Pretoria road
Boksburg
Attn: Dr P Ncholo (Chief Executive)
Fax No: 011 917 2542
11.2 Any notice or communication required or permitted to be given in
terms of this Agreement shall be valid and effective only if in
writing.
11.3 Any Party may by written notice to the other change its chosen
address to another physical address in South Africa, provided
that the change shall become effective on the 14th (fourteenth)
day after the receipt of the notice by the addressees.
11.4 Any notice or communication to a Party -
11.4.1 sent by telefax to it at its telefax number; or
11.4.2 delivered by hand to a responsible person during
ordinary business hours at its chosen address,
shall be deemed to have been received, in the case of clause
11.4.1, on the first Business Day after transmission thereof
and, in the case of clause 11.4.2, on the day of delivery.
11.5 A copy of any notice or communication sent by telefax to a Party
at its telefax number shall forthwith be sent by prepaid
registered post to it at its chosen address.
11.6 Notwithstanding anything to the contrary in this clause 11, a
written notice or other communication actually received by a
Party shall be adequate written notice or communication to it
notwithstanding that it was not sent to or delivered at its
chosen address.
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SIGNED at Sandton on 12 June 2002
For: KHUMO BATHONG HOLDINGS
(PTY) LIMITED
/s/ M.P. Ncholo
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Signatory: M.P. Ncholo
Capacity: CEO
Authority: Resolution
SIGNED at Johannesburg on 12 June 2002
For: DURBAN ROODEPOORT DEEP,
LIMITED
/s/ Mark Wellesley-Wood
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Signatory: Mark Wellesley-Wood
Capacity: Director
Authority: Resolution