Draft 12 June 2002
RANDGOLD RESOURCES LIMITED
5,000,000 Ordinary Shares
in the form of Ordinary Shares or American Depositary Shares
(US$0.10 par value)
UNDERWRITING AGREEMENT
________, 2002
HSBC Securities (USA) Inc.
As Representative of the several Underwriters
named in Schedule I hereto
and as Global Coordinator
000 Xxxxx Xxxxxx, Xxxxx 0
Xxx Xxxx, XX 00000
United States of America
Ladies and Gentlemen:
Randgold Resources Limited, a corporation organized under the laws of Jersey,
the Channel Islands (the "COMPANY"), proposes, subject to the terms and
conditions stated herein, to issue and sell to, or upon the order of, the
several Underwriters named in Schedule I annexed hereto (the "UNDERWRITERS"),
and the Underwriters propose, subject to the terms and conditions stated herein,
to purchase, severally and not jointly, from the Company an aggregate of
5,000,000 ordinary shares of US$0.10 each in the capital of the Company (the
"FIRM SHARES").
In addition, solely for the purpose of covering over-allotments and subject to
the terms and conditions set forth herein, International Finance Corporation
(the "SELLING SHAREHOLDER") proposes to grant an option to the Underwriters,
exercisable at the discretion of the Representative, as defined below, to
purchase, severally and not jointly, up to an additional 750,000 ordinary shares
of US$0.10 each in the capital of the Company (the "OPTION SHARES"). The Firm
Shares and the Option Shares are herein collectively called the "SHARES". The
ordinary shares of US$0.10 each in the capital of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to
as the "CAPITAL STOCK". The Company and the Selling Shareholder are hereinafter
sometimes referred to collectively as the "SELLERS".
It is understood that, subject to the conditions hereinafter stated, the Shares
will be sold to, or upon the order of, the Underwriters in connection with the
offer and sale of such Shares in the United States (the "US OFFERING") and
outside the United States (the "INTERNATIONAL OFFERING"). Each of HSBC
Securities (USA) Inc. and BMO Xxxxxxx Xxxxx Corp. through their respective
affiliates, HSBC Investment Bank plc and [Xxxxxx Xxxxx' affiliate?], will make
offers and sales of the Shares outside the United States. The US Offering and
the International Offering are hereinafter collectively referred to as the
"GLOBAL OFFERING".
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HSBC Securities (USA) Inc. shall act as global coordinator (the "GLOBAL
COORDINATOR") for the Global Offering. The Shares to be offered and sold in the
US Offering are sometimes referred to herein as the "US SHARES" and the Shares
to be offered and sold in the International Offering are sometimes referred to
herein as the "INTERNATIONAL SHARES."
The Underwriters may elect to take delivery of the Shares issued pursuant to
this Agreement in the form of ordinary shares of US$0.10 each in the capital of
the Company or in the form of American Depositary Shares ("ADSS") evidenced by
American Depositary Receipts ("ADRS"). The ADSs are to be issued pursuant to a
Deposit Agreement, dated as of July 1, 1997, as amended and restated as of
_______, 2002, and further amended and restated as of _______, 2002 (the
"DEPOSIT AGREEMENT"), by and among the Company, The Bank of New York, as
depositary (the "DEPOSITARY"), and all owners and holders from time to time of
the ADRs issued thereunder by the Depositary and evidencing the ADSs. Each ADS
will initially represent the right to receive two Shares deposited pursuant to
the Deposit Agreement. Except as the context may otherwise require, references
herein to the Shares (whether Firm Shares or Option Shares, US Shares or
International Shares) shall include all of the Shares whether in the form of
Shares or ADSs.
Two forms of prospectus are to be used in connection with the Global Offering,
one for the US Offering and the other relating to the International Offering.
The international form of the prospectus will be identical to the US form of the
prospectus except for certain additional pages referred to as the Supplement
dated _______, 2002. The Company has filed, in accordance and in conformity with
the requirements of the Securities Act of 1933, as amended (the "SECURITIES
ACT"), and the rules and regulations thereunder, with the US Securities and
Exchange Commission (the "COMMISSION") a registration statement on Form F-1
(File No. 333-_________), including a form of prospectus meeting the
requirements of the Securities Act furnished to the Representative for use in
connection with the US Offering (each a "PRELIMINARY US PROSPECTUS"). Except
where the context otherwise requires, the registration statement, as amended
when it becomes effective, including any information contained in any prospectus
subsequently filed with the Commission pursuant to Rule 424(b) under the
Securities Act and deemed to be a part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act, and also
including any registration statement filed pursuant to Rule 462(b) under the
Securities Act, is herein called the "REGISTRATION STATEMENT". The prospectus,
in the form filed by the Company with the Commission pursuant to Rule 424(b)
under the Securities Act on or before the second Business Day after the date
hereof (or such earlier time as may be required under the Securities Act and the
rules and regulations thereunder) or, if no such filing is required, the form of
final prospectus included in the Registration Statement at the time it became
effective, are collectively herein called the "US PROSPECTUS".
The Company has furnished to the Representative, for use in connection with the
International Offering, copies of one or more preliminary prospectuses (each a
"PRELIMINARY INTERNATIONAL PROSPECTUS") relating to the offer and sale of the
Shares. That prospectus in final form is referred to as the "INTERNATIONAL
PROSPECTUS". The Preliminary International Prospectus and Preliminary US
Prospectus are herein collectively referred to as the "PRELIMINARY PROSPECTUSES"
and the International Prospectus and the US Prospectus are herein collectively
referred to as the "PROSPECTUSES".
A registration statement on Form F-6 (no. 333-_______) relating to the ADSs has
also been filed, in accordance and in conformity with the requirements of the
Securities Act. The Registration Statement on Form F-6, as amended at the time
when it became effective, is referred to in this Agreement as the "ADS
REGISTRATION STATEMENT".
For purposes of this Agreement, "BUSINESS DAY" means any day, excluding Saturday
and Sunday, on which banking institutions are generally open for normal banking
business in London and New York City.
The Company understands that: (i) the Underwriters intend to make a public
offering of the US Shares as soon after the Registration Statement and this
Agreement have become effective as in the judgment of the Representative is
advisable and initially to offer the US Shares upon the terms set forth in the
US Prospectus, and (ii) the Underwriters, through their affiliates, intend to
make an offering of the International
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Shares concurrently with the offering of the US Shares and initially to offer
the International Shares upon the terms set forth in the International
Prospectus.
The Company and the Underwriters agree as follows:
1 SALE AND PURCHASE
(a) On the basis of the representations, warranties and covenants contained
in this Agreement, and subject to its terms and conditions herein set
forth, the Company agrees to issue and sell 5,000,000 Firm Shares to, or
upon the order of, each Underwriter in accordance with Section 2 of this
Agreement and each Underwriter, severally and not jointly, agrees to
purchase from the Company the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I and Schedule II annexed hereto
(subject to such adjustments to eliminate fractional Shares or ADSs as
the Representative may determine), which shall be deliverable in the form
of Shares or ADSs (as designated by the Representative on behalf of the
Underwriters), in each case at a price of: (i) US$_______ per Share (or
at a price of US$_______ per ADS) offered and sold to institutional
investors (the "INSTITUTIONAL PURCHASE PRICE") and (ii) US$_______ per
Share (or at a price of US$_______ per ADS) offered and sold to retail
investors (the "RETAIL PURCHASE PRICE"). The Institutional Purchase Price
and the Retail Purchase Price are herein collectively called the PURCHASE
PRICE. This Purchase Price represents a discount to the per share price
to the public in the Global Offering. This purchase price includes a
selling commission of US$_______ per Share (or US$_______ per ADS), an
underwriting commission of US$_______ per Share (or US$_______ per ADS)
and a management commission of US$_______ per Share (or US$_______ per
ADS). For the purposes of this Underwriting Agreement, sales to
individuals other than to: (i) those individuals holding securities in
accounts which have more than two individuals as account holders, or (ii)
partnerships, trusts and legal entities shall constistute sales to
"retail investors." All sales not made to "retail investors" shall be
deemed to be made to "institutional investors."
(b) In addition, the Selling Shareholder hereby grants to the Representative
on behalf of the several Underwriters the option to purchase, and on the
basis of the representations, warranties and covenants contained in this
Agreement, and subject to its terms and conditions herein set forth, the
Underwriters have the right to purchase, severally and not jointly, from
the Selling Shareholder, all or a portion of the Option Shares, which
shall be deliverable in the form of Shares or ADSs (as designated by the
Representative on behalf of the Underwriters), solely to cover
over-allotments made in connection with the offering of the Firm Shares
at the same Purchase Price per Share or ADS, as the case may be, to be
paid by the Underwriters to the Company for the Firm Shares (unless the
Representative shall exercise the option to purchase fewer than 656,250
Option Shares, in which case the price per share shall be US$_______ (or
at a price of US$_______ per ADS). This option may be exercised at the
election of the Representative on behalf of the several Underwriters in
whole or in part at any time or from time to time on or before the 30th
calendar day following the First Time of Purchase (as defined in Section
2(a) below), by written notice, in the form of Schedule III annexed
hereto, to the Selling Shareholder and the Company from the
Representative at least two Business Days before the Additional Time of
Purchase (as defined in Section 2(a) below). Such notice shall be
irrevocable and shall set forth the aggregate number of Option Shares as
to which the option is being exercised and the Time of Purchase when the
Option Shares are to be delivered. The number of Option Shares to be sold
to, or upon the order of, each Underwriter in accordance with Section 2
of this Agreement shall be the number which bears the same proportion to
the aggregate number of Option Shares being purchased as the number of
Firm Shares set forth opposite the name of such Underwriter on Schedule I
and Schedule II annexed hereto bears to the total number of Firm Shares
issued and sold pursuant to the terms hereof (subject to such adjustments
to eliminate fractional shares or ADSs as the Representative may
determine).
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(c) Upon the authorization by the Company of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale and
issuance by the Company in accordance with Section 2 of this Agreement
upon the terms and conditions set forth in the Prospectuses. Each
Underwriter represents and warrants to, and agrees with, the Company that
it, its affiliates and any persons acting on its or their behalf have
complied and will comply with all applicable securities laws and
regulations in each jurisdiction in or into which it or they offers or
sells Shares or has in its or their possession or distributes a
Prospectus.
2 PAYMENT AND DELIVERY
(a) Payment of the aggregate Purchase Price for the Firm Shares to be sold
and issued by the Company shall be made by the Representative on behalf
of the Underwriters in US dollars in immediately available funds by wire
transfer to the account of the Company specified by the Company to the
Representative. If the option to purchase Option Shares provided for in
Section 1(b) hereof shall have been exercised, payment of the aggregate
Purchase Price for the Option Shares to be sold by the Selling
Shareholder shall be made by the Representative on behalf of the
Underwriters in US dollars in immediately available funds by wire
transfer to the account of the Selling Shareholder specified by the
Selling Shareholder to the Representative. The time and date of such
payment shall be, with respect to the Firm Shares, immediately prior to
9:00 a.m. New York City time on ________, 2002, or at the same time on
such other date, not later than __________, 2002, as shall be designated
in writing by the Representative after consultation with the Company
where practicable, and, if the option to purchase Option Shares provided
for in Section 1(b) hereof shall have been exercised, on the date and at
the time specified by the Representative in the written notice given by
the Representative of its election, on behalf of the Underwriters, to
purchase such Option Shares in accordance with the terms of Section 1(b)
hereof. Such time and date for delivery of the Firm Shares is herein
called the "FIRST TIME OF PURCHASE", such time and date for delivery of
the Option Shares, if not the First Time of Purchase, is herein called
the "ADDITIONAL TIME OF PURCHASE", and each such time and date for
delivery is herein called a "TIME OF PURCHASE". At each Time of Purchase,
(i) the Company shall pay in US dollars in immediately available funds
by wire transfer to or for the account of the Representative
specified by the Representative to the Company the total of all
expenses (as set forth in Section 4.1(l) hereof and including the
value added taxes payable by the Underwriters in the UK with respect
to the selling, underwriting or management commission due and owing
to the Underwriters pursuant to Section 1 hereof as well as the
applicable stamp duty on the Shares sold pursuant to Section 1) then
due and owing to the Underwriters and the Underwriters counsel, if
any, to the extent they have been ascertained by the Underwriters,
and
(ii) the Selling Shareholder shall pay in US dollars in immediately
available funds by wire transfer to or for the account of the
Representative specified by the Representative to the Company the
total of all expenses (as set forth in Section 4.2(a) hereof and
including the value added taxes payable by the Underwriters in the
UK with respect to the selling, underwriting or management
commission due and owing to the Underwriters pursuant to Section 1
hereof as well as the applicable stamp duty on the Shares sold
pursuant to Section 1) then due and owing to the Underwriters and
the Underwriters counsel, if any, to the extent they have been
ascertained by the Underwriters.
all as set forth in an invoice to be delivered by the Representative to
the Company or the Selling Shareholder, as applicable, no later than two
Business Days prior to the Time of Purchase. The Representative shall in
its sole and absolute discretion, have the right to elect to deduct from
its payment of the aggregate Purchase Price for the Firm Shares and/or
the Option Shares under this Section 2(a), the amounts payable by the
Company or, as applicable, the Selling Shareholder under this section in
lieu of a wire transfer of the funds from the Company.
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(b) Immediately after 9:00 a.m. New York City time on each Time of Purchase,
the Company shall issue the Firm Shares and the Selling Shareholder shall
transfer the Option Shares, as the case may be, in registered form and
procure (i) that the Firm Shares and the Option Sharers, as the case may
be, are registered on the Company's share register in Jersey, Channel
Islands, in the names of the initial purchasers of the Firm Shares and
the Option Shares, as the case may be, procured by the Underwriters or in
the name of the London office of the Depositary, as the custodian of the
Depositary (the "CUSTODIAN") with respect to Firm Shares or Option Shares
represented by ADSs, and (ii) that such Firm Shares and Option Shares, as
the case may be, are delivered to the accounts of the initial purchasers
of the Shares procured by the Underwriters, or in the case of Firm
Shares, or Option Shares, as the case may be, represented by ADSs, to the
deposit account of the Depositary established with the Custodian. The
Company will issue the Shares in registered certificated form.
(c) With respect to Firm Shares or Option Shares, as the case may be, to be
delivered in the form of ADSs, against such payment and delivery, the
Company and the Selling Shareholder, as the case may be, shall deposit
the Shares with the Depositary pursuant to the terms of the Deposit
Agreement and procure that the Depositary issues and delivers to the
several Underwriters or to their order in such place as the
Representative may reasonably require, ADRs duly executed in accordance
with the provisions of the Deposit Agreement. ADR certificates for the
ADSs which represent Firm Shares and Option Shares, if any, shall be in
such denominations and registered in such names as the Representative may
request in writing no later than three Business Days before the First
Time of Purchase and no later than two Business Days before any
Additional Time of Purchase. The Company and, in the case of Option
Shares, the Selling Shareholder will cause the form of ADR evidencing the
ADSs to be made available for checking at least 24 hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of
the Depositary or its designated custodian.
(d) With respect to Firm Shares or Option Shares, as the case may be, to be
delivered in certificated form, against such payment and delivery, the
Company and the Selling Shareholder, as the case may be, shall: (i)
deliver the Shares to the Representative, or (ii) deposit the Shares
through CREST, being the UK system for settlement in uncertificated form.
Certificates evidencing the Shares shall be in such denominations and
registered in such names as the Representative may request in writing no
later than three Business Days before the First Time of Purchase and no
later than two Business Days before any Additional Time of Purchase. The
Company and, in the case of Option Shares, the Selling Shareholder will
cause any certificates evidencing the Shares to be made available for
checking at least 24 hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of the transfer agent.
3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING SHAREHOLDER
3.1 The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Registration Statement has been filed with the Commission; such
Registration Statement and any post-effective amendment thereto (each in
the form heretofore delivered to the Representative for each of the other
Underwriters) have been declared effective by the Commission in such
form. The Commission has not issued an order preventing or suspending the
use of the Registration Statement or the US Prospectus nor instituted or
threatened proceedings for that purpose.
(b) Each Preliminary US Prospectus, at the time of filing thereof with the
Commission, conformed in all material respects to the requirements of the
Securities Act and the rules and regulations thereunder, and did not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes
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no representation or warranty as to any statement contained or omission
made in the Preliminary US Prospectus in reliance upon and in conformity
with information furnished in writing by or on behalf of any Underwriter
through the Representative to the Company expressly for use therein.
(c) The Registration Statement conforms, and the US Prospectus and any
further amendments or supplements to the Registration Statement or the US
Prospectus will conform, in all material respects to the requirements of
the Securities Act and the rules and regulations thereunder. The
Registration Statement does not contain and will not, as of the
applicable effective date as to the Registration Statement and any
amendment or supplement thereto, contain an untrue statement of material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The US
Prospectus does not and will not, as of the applicable filing date as to
the US Prospectus or any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation
or warranty as to any statement contained or omission made in the
Registration Statement or the US Prospectus in reliance upon and in
conformity with information furnished in writing by or on behalf of any
Underwriter through the Representative to the Company expressly for use
in the Registration Statement or the US Prospectus.
(d) The Preliminary International Prospectus as of the date thereof did not,
and the International Prospectus as of the date thereof, does not or did
not, and any further amendments or supplements to the International
Prospectus, as of the date of any such amendment or supplement, will not,
contain an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty
as to any statement contained or omission made in conformity with
information furnished in writing by or on behalf of any Underwriter
through the Representative to the Company expressly for use therein.
(e) The ADS Registration Statement has been filed with the Commission; the
ADS Registration Statement and any post-effective amendment thereto (each
in the form heretofore delivered to the Representative for each of the
other Underwriters) have been declared effective by the Commission in
such form. The Commission has not issued an order preventing or
suspending the use of the ADS Registration Statement nor instituted or
threatened proceedings for that purpose. The ADS Registration Statement
conforms, and any further amendments to the ADS Registration Statement
will conform, in all material respects to the requirements of the
Securities Act and the rules and regulations thereunder. The ADS
Registration Statement does not contain and will not, as of the
applicable effective date as to the ADS Registration Statement and any
amendment thereto, contain an untrue statement of material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(f) Since the respective dates as of which information is given in the
Registration Statement and the Prospectuses, there has not been any
material change in the capital stock (other than as a result of grants or
exercises under the Company's benefits plans) or increase in long-term
debt of the Company or any of its subsidiaries (as listed in Exhibit 21.1
of the Registration Statement), Morila Limited and Morila SA (such
subsidiaries collectively, with Morila Limited and Morila SA, the
"SUBSIDIARIES"), or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, financial position, stockholders'
equity or results of operations of the Company and its Subsidiaries taken
as a whole (a "MATERIAL ADVERSE EFFECT") otherwise than as set fort or
contemplated in the Prospectuses as amended or supplemented; and except
as set forth or contemplated in the Prospectuses as amended or
supplemented neither the Company nor
6
any of its Subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the
Company and its Subsidiaries taken as a whole;
(g) Each of the Company and its Subsidiaries has been duly incorporated, is
validly existing as a corporation under the laws of its jurisdiction of
incorporation and has the corporate power and authority (corporate or
otherwise) to own, lease and operate its properties and conduct its
business as described in the Prospectuses as amended or supplemented, and
is in good standing under the laws of its jurisdiction of incorporation
and each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, other than
where failure to be in good standing would not have a Material Adverse
Effect. The Subsidiaries are the only subsidiaries, direct or indirect,
of the Company.
(h) The Company has the authorized capitalization set forth in the
Prospectuses as amended or supplemented, and all the issued and
outstanding ordinary shares have been duly authorized and validly issued
and are fully paid and non-assessable.
(i) The Shares to be issued by the Company and sold to, or upon the order of,
the Underwriters have been duly authorized and, when issued and paid for
pursuant to this Agreement will have been duly and validly issued, fully
paid and non-assessable. The statements set forth under the heading
"Description of Our Memorandum and Articles of Association and Ordinary
Shares" in the Prospectuses as amended or supplemented, insofar as such
statements purport to summarize certain provisions of the Company's
ordinary shares and the Company's Memorandum and Articles of Association,
provide a fair and accurate summary of such provisions in all material
respects. There are no restrictions on transfers of the Shares except as
described in the Prospectuses as amended or supplemented and they may
freely deposited by the Company with the Depositary or its custodian.
Neither the filing of the Registration Statement nor the offering or sale
of the Shares as contemplated by this Agreement gives rise to any rights,
other than those which have been waived or satisfied, for or relating to
the registration of any Capital Stock.
(j) The Deposit Agreement has been duly authorized, executed and delivered by
the Company, and constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights generally and to general equity principles.
(k) Upon due issuance by the Depositary of ADRs evidencing ADSs against the
deposit of Shares in respect thereof in accordance with the provisions of
the Deposit Agreement, such ADRs evidencing ADSs will be duly and validly
issued and the persons in whose names the ADRs evidencing ADSs are
registered will be entitled to the rights specified therein and in the
Deposit Agreement. There are no restrictions on subsequent transfers of
ADSs except as described in the Prospectuses as amended or supplemented.
The statements set forth under the heading "Description of American
Depositary Receipts" in the Prospectuses as amended or supplemented,
insofar as such statements purport to summarize certain provisions of the
ADSs, ADRs and the Deposit Agreement, provide a fair and accurate summary
of such provisions in all material respects.
(l) All of the outstanding shares of each of the Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and
are owned by the Company, directly or indirectly through one or more
Subsidiaries, in the percentages set forth in Exhibit 21.1 of the
Registration Statement free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature, except as described
in the Prospectuses as amended or supplemented. With respect to such
shares owned by the Company, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to
convert any obligation into shares of, or ownership interest in, the
Subsidiaries are outstanding, except as described in the Prospectuses as
amended or supplemented.
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(m) Except as described in the Prospectuses as amended or supplemented, no
person has preemptive rights, co-sale rights, rights of first refusal or
other rights to purchase any of the Shares other than those that have
been expressly waived prior to the date hereof; except as described in
the Prospectuses as amended or supplemented, no person has the right,
contractual or otherwise, to cause the Company to issue to such person,
or register pursuant to the Securities Act and the rules and regulations
thereunder, any ordinary shares or other equity securities of the
Company, including, but not limited to, preference shares.
(n) Except as described in the Prospectuses as amended or supplemented, there
are no outstanding (i) securities or obligations of the Company or any of
its Subsidiaries convertible into or exchangeable for any ordinary shares
of the Company or any of its Subsidiaries, (ii) warrants, rights or
options to subscribe for or purchase from the Company or any of its
Subsidiaries any ordinary shares or any such convertible or exchangeable
securities or (iii) obligations of the Company or any of its Subsidiaries
to issue any ordinary shares, any such convertible or exchangeable
securities or obligations or any such warrants, rights or options.
(o) The form of certificate for the Shares (to the extent Shares are issued
in certificated form) conforms to the requirements of the laws of Jersey
and the Memorandum and Articles of Association of the Company; the form
of certificate for the ADRs conforms in all material respects to the
requirements of the Deposit Agreement.
(p) This Agreement has been duly authorized, executed and delivered by the
Company.
(q) Each of the Company and its Subsidiaries has all permits, licenses,
consents, approvals, authorizations, orders, registrations, clearances
and qualifications (collectively, "GOVERNMENTAL AUTHORIZATIONS") and has
made all filings required under any statute or any order, regulation or
rule of any governmental or regulatory agency or body having jurisdiction
over the Company or its Subsidiaries, as the case may be, or over any of
their respective properties (each, a "GOVERNMENTAL AGENCY"), in each case
necessary to conduct its business as described in the Prospectuses as
amended or supplemented, except for such Governmental Authorizations or
filings the failure of which to obtain or make would not have a Material
Adverse Effect.
(r) The issuance of the Shares, the deposit by the Company of the Shares with
the Depositary against receipt of ADRs evidencing ADSs, the issuance of
the ADRs, the sale of the Shares and compliance by the Company with all
of the provisions of this Agreement and the Deposit Agreement, and the
consummation of the transactions herein and therein contemplated, will
not conflict with, or result in a breach or violation of any of the terms
or provisions of, or constitute a default under (or constitute any event
which with notice, lapse of time, or both would result in any breach or
violation of any of the terms or provisions of, or constitute a default
under), the Memorandum or Articles of Association or other charter
document of the Company or any of its Subsidiaries or, except as
described in the Prospectuses as amended or supplemented and except for
such matters as would not have a Material Adverse Effect, the performance
or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or
other evidence of indebtedness, or any lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or
by which any of them or their respective properties is or may be bound or
affected, nor will such action result in any violation of any statute or
any order, rule or regulation of any Governmental Agency, except as
described in the Prospectuses as amended or supplemented; and no
Governmental Authorizations of or filing with any Governmental Agency is
required to be obtained or made by the Company for the issue of the
Shares and the ADRs evidencing ADSs, the sale of the Shares and the ADRs,
the application of the proceeds of such sale and issuance as set forth in
the Prospectuses as amended or supplemented or the consummation by the
Company of the transactions contemplated by this Agreement or the Deposit
Agreement, except such as have been
8
obtained and are in full force and effect or will have been obtained
prior to the Time of Purchase and such Governmental Authorizations as may
be required under state securities or "blue sky" laws in connection with
the purchase and distribution of the Shares by the Underwriters.
(s) Except as described in the Prospectuses as amended or supplemented, no
Governmental Authorizations (including any foreign exchange or foreign
currency Governmental Authorizations) are required for the Company to pay
dividends, if any, declared by the Company to the holders of Shares,
including the Depositary.
(t) Except as described in the Prospectuses as amended or supplemented and
except for such matters as would not have a Material Adverse Effect, (i)
the Company and its Subsidiaries are each in compliance with all
applicable Environmental Laws (as defined below), (ii) the Company and
its Subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are in compliance with their
requirements, (iii) there are no pending or, to the Company's knowledge,
threatened Environmental Claims against the Company or any of its
Subsidiaries. There are no costs or liabilities of the Company or any of
its Subsidiaries associated with Environmental Laws (including, without
limitation, any capital or operating expenditure required for clean-up,
closure of properties or compliance with Environmental Laws or any
Governmental Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would,
singly or in the aggregate, have a Material Adverse Effect. For purposes
of this Section 3.1(t), the following terms shall have the following
meanings: "ENVIRONMENTAL LAW" means federal, provincial, state, local or
municipal statute, law, rule, regulation, ordinance, code, policy or rule
of common law and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or
judgement, relating to the environment, human health, safety or any
hazardous or toxic chemical, material or substance, exposure to which or
release of which is prohibited, limited or regulated by any Governmental
Agency. "ENVIRONMENTAL CLAIM" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, lien, notice of
noncompliance or violation, investigation or proceeding arising under any
Environmental Law.
(u) Except as described in the Prospectuses as amended or supplemented and
except for such matters as would have a Material Adverse Effect, (i)
neither the Company nor any of its Subsidiaries is in breach or violation
of any of the terms or provisions of, or in default under (nor has any
event occurred which with notice, lapse of time, or both would result in
any breach or violation of any of the terms or provisions of, or
constitute a default under), its respective Memorandum or Articles of
Association or other charter document or in the performance or observance
of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other evidence of
Indebtedness, or any lease or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any of them or
any of their respective properties is or may be bound or affected, and
(ii) neither the Company nor any of its Subsidiaries is in violation of,
or in default under, any Governmental Authorization or any statute or any
order, regulation or rule of any Governmental Agency.
(v) Except as described in the Prospectuses as amended or supplemented, there
is no action, suit, claim or proceeding pending or, to the Company's
knowledge, threatened to which the Company, any of its Subsidiaries or
any executive officer or director of the Company is a party before any
court or administrative agency or otherwise which if determined adversely
to the Company or any of its Subsidiaries could reasonably be expected to
have a Material Adverse Effect or to prevent the consummation of the
transaction contemplated hereby.
(w) Each of the Company and its Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is customary of
companies engaged in similar industries.
9
(x) Each of the Company and its Subsidiaries have good title in fee simple to
all real property and good and marketable title to all other properties
and assets reflected in the financial statements (or as described in the
Prospectuses as amended or supplemented) hereinabove described, subject
to no liens, mortgage, pledge, charge or encumbrance of any kind except
those reflected in such financial statements (or as described in the
Prospectuses as amended or supplemented) or which are not material in
amount. Any real property and buildings held under lease by the Company
and its Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its Subsidiaries.
(y) The Company or one of its Subsidiaries holds freehold title, mining
leases, mining claims or other conventional proprietary interests or
rights recognized in the jurisdiction in which each property described in
the Prospectuses as amended or supplemented is located, in the ore bodies
and mineral inventories and the milling facilities described in the
Prospectuses as amended or supplemented (and all properties respectively
relating thereto) under valid, subsisting and enforceable title
documents, contracts, leases, licenses or occupation, mining concessions,
permits, or other recognized and enforceable instruments and documents,
sufficient to permit the Company or one of its Subsidiaries, as the case
may be, to explore for, extract, exploit, remove, process and refine the
minerals relating thereto, except as described in the Prospectuses as
amended or supplemented or where the failure so to hold would not have a
Material Adverse Effect. In addition, except as described in the
Prospectuses as amended or supplemented or where the failure so to have
would not have a Material Adverse Effect, either the Company or one of
its Subsidiaries has all necessary surface rights, water rights and
rights in water, rights of way, licenses, easements, ingress, egress and
access rights, and all other necessary rights and interests granting the
Company or one of its Subsidiaries, as the case may be, the rights and
ability to explore for, mine, extract, remove and process the minerals
derived from the ore bodies and mineral inventories described in the
Prospectuses as amended or supplemented and to transport for refinement,
market or distribute the ore and metals produce at the milling and
processing facilities described in the Prospectuses as amended or
supplemented. Each of the aforementioned interests and rights is
currently in good standing, except where the failure to be in good
standing would not have a Material Adverse Effect.
(z) No labor dispute with the employees of the Company or any of its
Subsidiaries exists or, to the best knowledge of the Company, is imminent
that individually or in the aggregate is reasonably likely to have a
Material Adverse Effect.
(aa) Each of the Company and its Subsidiaries have filed all income, franchise
and other tax returns required to be filed through the date hereof and
have paid all taxes indicated by said returns and all assessments
received by them or any of them to the extent that such taxes have become
due and are not being contested in good faith and for which an adequate
reserve for accrual have been established in accordance with generally
accepted accounting principles except insofar as the failure to file such
returns or to pay such taxes or assessments is not reasonably likely to
have a Material Adverse Effect. All tax liabilities have been adequately
provided for in the financial statements of the Company, and the Company
does not know of any actual or proposed additional material tax
assessments. Neither the Company nor any of its Subsidiaries have been
involved in any material dispute with any tax authority.
(bb) Neither the Company nor any of its Subsidiaries has violated any
applicable law or regulation relating to the Foreign Corrupt Practices
Act or the rules and regulations promulgated thereunder, except for such
violations which, singly or in the aggregate, would not have a Material
Adverse Effect.
10
(cc) PricewaterhouseCoopers and PricewaterhouseCoopers Inc., who have
certified certain of the financial statements filed with the Commission
as part of the Registration Statement, are independent public accountants
with respect to the Company and its Subsidiaries as required by the
Securities Act and the rules and regulations thereunder.
(dd) The consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectuses (and any
amendment or supplement thereto), together with related schedules and
notes, present fairly, in all material respects, the financial position,
results of operations and cash flows and changes in the consolidated
financial position of the Company and its Subsidiaries on the basis
stated therein at the respective dates or for the respective periods to
which they apply. Except as otherwise stated in the Registration
Statement and the Prospectuses such consolidated financial statements and
related schedules and notes have been prepared in accordance with
International Accounting Standards consistently applied throughout the
periods involved, and all adjustments necessary for a fair presentation
of results for such periods have been made. The summary consolidated
financial and operating data and selected historical financial data
included in the Registration Statement and the Prospectuses as amended or
supplemented presents fairly in all material respects the information
shown therein and such data has been compiled on a basis consistent with
the financial statements presented therein and the books and records of
the Company.
(ee) The Company maintains a system of internal accounting controls sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with the management's general or specific authorization, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with International Accounting Standards and
generally accepted accounting principles in the United States and to
maintain accountability of assets, (iii) access to assets is permitted
only in accordance with management's general or specific authorization,
and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ff) Neither the Company nor any of its Subsidiaries is and, giving
consideration to the consummation of the transactions contemplated hereby
and the application of proceeds as described in the Prospectuses under
the caption "Use of Proceeds", will be a "passive foreign investment
company" or a "foreign personal holding company" within the meaning of
Section 1296(a) of the United States Internal Revenue Code of 1986, as
amended.
(gg) The Company intends to apply to the UK Financial Services Authority in
its capacity as competent authority under the UK Financial Services and
Markets Act 2000 (the "UK LISTING AUTHORITY") for the Shares and ADSs to
be admitted to the official list maintained by the UK Listing Authority
(the "OFFICIAL LIST") and to London Stock Exchange plc (the "LONDON STOCK
EXCHANGE") for such Shares and ADSs to be admitted to trading on the
London Stock Exchange's market for listed securities, which applications,
once granted, will together constitute admission of the Shares to the
Official List and to trading on the London Stock Exchange ("ADMISSION");
the Company intends to submit to the UK Listing Authority for formal
approval a document comprising UK listing particulars relating to the
Global Offering for the purposes of obtaining Admission (the "UK LISTING
PARTICULARS", which definition shall include the UK listing particulars
in preliminary and final form, including as amended or supplemented
hereafter); with respect to the UK Listing Particulars:
(i) the UK Listing Particulars (when approved) will comply in all
respects with the requirements of the UK Financial Services and
Markets Xxx 0000 ("UK FSMA") and the listing rules (the "UK LISTING
RULES") made by the UK Listing Authority under the UK FSMA; and
11
(ii) taking into consideration the net proceeds of the Global Offering
receivable by the Company, the Company and its Subsidiaries will
have sufficient working capital available for their requirements and
their requirements for at least the next 12 months from the date of
publication of the UK Listing Particulars.
(hh) The Company is in compliance in all material respects with the reporting,
filing and other applicable requirements of all statutes, laws, rules and
regulations of any jurisdiction or any statutory or regulatory board,
authority or other body which apply to the Company as a result of the
listing of its ordinary shares on and global depositary shares on the
London Stock Exchange.
(ii) The ADSs have been approved for quotation on the Nasdaq National Market,
subject to notice of issuance.
(jj) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in
the Prospectuses, will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended and the rules and regulations
of the Commission thereunder.
(kk) Neither the Company nor any of its affiliated purchasers (as defined) in
Rule 100 of Regulation M under the Securities Act and the rules and
regulations thereunder and the US Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and the rules and regulations thereunder,
including Regulation M ("REGULATION M")), has, either alone or with one
or more other persons, bid for or purchased, for any account in which the
Company or any of its affiliated purchasers has a beneficial interest,
any Shares, any instruments exchangeable for, representing interests in,
or the right to an allotment of, any such securities or any right to
purchase any such securities (collectively, the "SUBJECT SECURITIES") or
attempted to induce any person to purchase any Subject Securities, except
as otherwise provided in this Agreement or to the extent otherwise
permitted by Regulation M; and neither the Company nor any of its
affiliated purchasers has made bids or purchases for the purpose of
creating actual or apparent active trading in, or of raising the price
of, the Shares or other Subject Securities.
(ll) Neither the Company nor any of its Subsidiaries has taken or may take,
directly or indirectly any action which was designed to stabilize or
manipulate or which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares
and ADSs.
(mm) The Company has not (i) other than the International Prospectus, provided
prospective purchasers in in the provinces of [Ontario, Quebec, British
Columbia, [others]] (the "QUALIFYING PROVINCES") with any document or
other material that would constitute an offering memorandum with the
meaning of Canadian Securities Laws; or (ii) engaged in any form of
general solicitation or general advertising in connection with the offer
and sale of the Shares.
(nn) The Company has complied with all applicable laws in each of the
Qualifying Provinces and the respective regulations made thereunder,
together with applicable published fee schedules, prescribed forms,
policy statements, orders, blanket rulings and other regulatory
instruments of the securities regulatory authorities in each such
province (the "CANADIAN SECURITIES LAWS") that are necessary to ensure
that the purchase and sale of the Shares as contemplated in this
Underwriting Agreement may lawfully occur in each of the Qualifying
Provinces without the necessity of the filing of a prospectus in any
Qualifying Province.
12
3.2 The Selling Shareholder represents and warrants to, and agrees with, each
of the Underwriters that:
(a) The Selling Shareholder is the lawful owner of the Option Shares pursuant
to this Agreement and has, and on the Time of Purchase of the Option
Shares will have, good and clear title to such Option Shares, free of all
restrictions on transfer, liens, mortgages, pledges, charges or
encumbrances of any kind.
(b) The Option Shares to be sold by the Selling Shareholder have been duly
authorized and are validly issued, fully paid and non-assessable.
(c) This Agreement has been duly authorized, executed and delivered by the
Selling Shareholder.
(d) The Custody Agreement and Power of Attorney (the "CUSTODY AGREEMENT")
signed by the Selling Shareholder and HSBC Investment Bank plc, as
Attorney-in-Fact and Custodian, relating to: (i) the appoiontment of HSBC
Investment Bank plc as the Selling Shareholder's attorney-in-fact (the
"ATTORNEY") to the extent set forth therein, relating to the transactions
contemplated hereby (the "POWER OF ATTORNEY") and (ii) the deposit of the
Option Shares, has been duly authorized, executed and delivered by the
Selling Shareholder, and constitutes a valid and legally binding
agreement of the Selling Shareholder, enforceable against the Selling
Shareholder in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization and similar laws of general
applicability relating to or affecting creditors' rights generally and to
general equity principles. Pursuant to such Power of Attorney, the
Selling Shareholder has, among other things, authorized the Attorney to
execute and deliver on the Selling Shareholder's behalf this Agreement
and any other document that it may deem necessary or desirable in
connection with the transactions contemplated hereby and thereby and to
deliver the Option Shares to be sold by the Selling Shareholder pursuant
to this Agreement.
(e) Upon delivery of and payment for the Option Shares to be sold by the
Selling Shareholder pursuant to this Agreement, good and clear title to
such Option Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, mortgages, pledges, charges or
encumbrances of any kind.
(f) From the date of this Agreement until _______, 2003 [date 180 days
thereafter], the Selling Shareholder will not sell, transfer, mortgage,
charge or otherwise dispose of or agree to sell, transfer, mortgage,
charge or otherwise dispose of, directly or indirectly, any of the
Company's ordinary shares or any interest therein or enter into any
transaction having the same economic effect other than through HSBC
Investment Bank plc with a view to maintaining an orderly market in the
Company's securities.
13
(g) The execution, delivery and performance by the Selling Shareholder with
all of the provisions of this Agreement, the Custody Agreement and the
Power of Attorney, and the consummation of the transactions herein and
therein contemplated: (i) will not conflict with, or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under (or constitute any event which with notice, lapse of time,
or both would result in any breach or violation of any of the terms or
provisions of, or constitute a default under), the organizational
documents of the Selling Shareholder or the performance or observance of
any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other evidence of
indebtedness, or any lease or other agreement or instrument to which the
Selling Shareholder is a party, (ii) will not result in any violation of
any statute or any order, rule or regulation of any governmental or
regulatory agency or body having jurisdiction over the Selling
Shareholder, and (iii) will not require any permit, license, consent,
approval, authorization, order, registration, clearance, qualification or
filing of any kind, except such as have been obtained and are in full
force and effect or will have been obtained prior to the Time of Purchase
and such as may be required under state securities or "blue sky" laws in
connection with the purchase and distribution of the Option Shares by the
Underwriters.
(h) The information in the Registration Statement under the heading
"Principal and Selling Shareholders" which specifically relates to the
Selling Stockholder does not, and will not at any Time of Purchase
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(i) At any time during the period described in Section 4.1(b) if there is any
change in the information referred to in this Section 3.2, the Selling
Shareholder will immediately notify the Underwriters of such change.
4 AGREEMENTS OF THE COMPANY AND THE SELLING SHAREHOLDER
4.1 The Company agrees:
(a) To use its best efforts to cause the Registration Statement and the ADS
Registration Statement to become effective at the earliest possible time
and, if required, to file the US Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A under the
Securities Act.
(b) To make available to the Underwriters in such cities and locations as the
Representative shall reasonably designate, as soon as practicable after
the Registration Statement becomes effective (and in any event by 10:00
a.m., New York City time, on the Business Day next succeeding the date of
this Agreement), and thereafter from time to time to furnish to the
Underwriters, as many copies of the US Prospectus and the International
Prospectus (or of the Prospectuses as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may
request; if the delivery of a prospectus is required in connection with
offers and sales of the Shares, and if at such time any event shall have
occurred as a result of which the Prospectuses as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made
when such Prospectuses are delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Registration Statement in order to comply with the
Securities Act and the rules and regulations thereunder, the Company
shall notify the Underwriters and upon their request file such document
and prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Underwriters may from time to
time reasonably request of amended Prospectuses or supplements thereto
which will correct such statement or omission or effect such compliance;
14
(c) To deliver to the Representative, at the expense of the Company, two
signed copies of the Registration Statement (as originally filed) and
each amendment thereto or as supplemented, in each case including
exhibits, and to each Underwriter a conformed copy of the Registration
Statement (as originally filed) and each amendment thereto or as
supplemented, in each case without exhibits; and in case any Underwriter
is required to deliver a prospectus in connection with sales of the
Shares in the United States at any time nine months or more after the
time of issue of the Prospectuses, upon the request of the Representative
but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as the Representative may reasonably request
of an amended or supplemented US Prospectus complying with Section
10(a)(3) of the Securities Act.
(d) To advise the Representative promptly, confirming such advice in writing,
(i) when each of the Registration Statement and the ADS Registration
Statement has become effective, (ii) when any post-effective amendment to
the Registration Statement becomes effective and (iii) when a US
Prospectus is filed with the Commission pursuant to Rule 424(b) under the
Securities Act (which the Company agrees to file in a timely manner under
such Rule).
(e) To advise the Representative promptly, confirming such advice in writing,
of the receipt of any comments from the Commission or of any request by
the Commission for amendments or supplements to the Registration
Statement, ADS Registration Statement or US Prospectus, as then amended
or supplemented, or for additional information with respect thereto, or
of notice of the institution of proceedings for, or the entry of, a stop
order suspending the effectiveness of the Registration Statement or the
ADS Registration Statement or of any order preventing or suspending the
use of any Preliminary US Prospectus or the US Prospectus, as then
amended or supplemented, and promptly to use every reasonable effort (i)
to prevent the issuance of any stop order and (ii) if any stop order is
issued, to obtain the lifting or withdrawal of such order as soon as
possible.
(f) To advise the Representative promptly of any proposal to file, amend or
supplement the Registration Statement, the ADS Registration Statement or
either of the Prospectuses, as then amended or supplemented, to furnish
the Representative with copies of any such documents, amendments or
supplements a reasonable amount of time prior to such filing or use, and
to file no such amendment or supplement to which the Representative or
counsel to the Underwriters shall object in writing.
(g) To furnish such information as may be required and otherwise to cooperate
in qualifying the Shares for offer and sale under the securities or "blue
sky" laws of such states and other jurisdictions (which shall include,
without limitation, France and Switzerland) as the Representative may
designate and to use its best efforts to maintain such qualifications in
effect so long as required for the distribution of the Shares; provided
that the Company shall not be required to qualify as a foreign
corporation in any such state or other jurisdiction, to subject itself to
taxation as doing business in any such state or other jurisdiction or to
file a general consent to the service of process under the laws of any
such state or other jurisdiction; and to promptly advise the
Representative of the receipt by the Company of any notification with
respect to (i) the suspension of the qualification of the Shares for sale
in any jurisdiction or (ii) the initiation or threatening of any
proceeding for such purpose.
(h) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so
covered in compliance with Rule 462(b) by 10:00 p.m., New York City time,
on the date of this Agreement and to pay to the Commission the filing fee
for such Rule 462(b) Registration Statement at the time of the filing
thereof or to give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Securities Act.
(i) To make generally available to its shareholders (within the meaning of
the Securities Act and the rules and regulations thereunder) as soon as
practicable and in any event within the
15
period required by law, an earnings statement of the Company and its
Subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act (including, at the option of the Company, Rule 158
under the Securities Act).
(j) To furnish to its shareholders within the period required under the
Exchange Act and the rules and regulations thereunder after the end of
each financial year an annual report, including a balance sheet,
statements of income and of cash flow of the Company for such financial
year, accompanied by a copy of the certificate or report thereon of
internationally recognized independent certified public accountants.
(k) To furnish or make available to each of the Representative and, upon
request, to each of the other Underwriters for three years, as soon as
they are available, (i) a copy of any reports or other communications
which the Company shall send to its shareholders or shall from time to
time publish or publicly disseminate, (ii) a copy of all annual and
current reports filed with the Commission on Forms 20-F and 6-K, or such
other similar form as may be designated by the Commission, and (iii) a
copy of documents or reports filed with the Commission or any securities
exchange on which any class of securities of the Company is listed.
(l) To pay or cause to be paid all costs and expenses relating to the
performance of the obligations of the Company under this Agreement and
any related arrangement, including, without limitation, (i) the
preparation, printing and filing of the Registration Statement, the ADS
Registration Statement, the Preliminary Prospectuses, the Prospectuses
and any amendments or supplements thereto, as well as the mailing and
delivery of copies of the Preliminary Prospectuses, the Prospectuses and
any amendments or supplements thereto in such quantities as the
Underwriters may reasonably require, (ii) the preparation, printing and
delivery to the Underwriters of the Underwriting Agreement, the Deposit
Agreement and such other documents as may be reasonably required in
connection with the Global Offering, or the purchase, sale or delivery,
as applicable, of the Shares, (iii) the preparation, issuance and
delivery of any certificates for the Shares to the order of the
Underwriters, (iv) the reasonable fees and disbursements of each of the
Company's counsel, accountants and other advisors, (v) the reasonable
fees and disbursements of the Underwriters' counsel (vi) the
qualification of the Shares under the securities or "blue sky" laws in
accordance with the provisions of Section 4.1(g) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation, printing and distribution of any Blue Sky Memoranda (up to
the agreed cap of US$15,000), (vii) the fees and expenses of any transfer
secretary or registrar for the Shares, (viii) the filing fees incident to
the review by the NASD of the terms of the sale of the Shares, (ix) the
filing fees of the Commission, (x) the fees and expenses incurred in
connection with the listing or supplemental listing, if any, of the ADSs
representing shares of the Company on Nasdaq National Market and the
listing of the Shares and ADSs on the London Stock Exchange, (xi) the
fees payable by the Company, if any, for depositing the Shares under the
Deposit Agreement with the Depositary against issuance of the ADRs, (xii)
the fees and expenses payable by the Company, if any, of the Depositary
and any custodian appointed under the Deposit Agreement, (xiii) all taxes
and duties, if any, incident to the sale and issuance, in accordance with
Section 2 of this Agreement, or delivery of the Shares, including any
stamp duty or transfer taxes or other duties payable upon the sale and
issuance, in accordance with Section 2 of this Agreement or delivery of
the Shares to the Underwriters, their transfer between Underwriters
pursuant to the Agreement Among Underwriters, and their onward sale to
purchasers as contemplated in the Global Offering, (xiv) all marketing
and roadshow expenses, including the reasonable fees and expenses of the
roadshow coordinator, if any, the preparation of all promotional
materials (including but not limited to slides, videos and brochures) in
connection with the investor presentations, and including but not limited
to, travel and lodging expenses of the Company and the Underwriters, (xv)
all reasonable advertising expenses and the fees of any media relations
or publicity agents in connection with the Global Offering and (xvi) all
other reasonable out-of-pocket expenses. All amounts paid or reimbursed
to the Underwriters under this Section 4.1(l) shall also include any
value
16
added tax or applicable taxes with respect thereto, and shall, to the
extent ascertained by the Underwriters at the Time of Purchase, be paid
in accordance with Section 2 hereof (amounts which are ascertained by the
Underwriters after such time to be paid promptly in immediately available
funds by wire transfer to an account designated by the Representative
upon written notification by the Representative). The parties hereto
agree that to the extent that any Underwriter is entitled to be
reimbursed for costs or expenses both under this Section 4.1(l) and the
Engagement Letter between the Company and HSBC Investment Bank plc dated
22 April 2002, the Company shall only be obligated to reimburse such
costs or expenses once in accordance with the terms of this Agreement.
(m) To obtain from the Registrar of Companies in accordance with Article 6 of
the Companies (General Provisions) (Jersey) Order 1992, as amended,
consent to the circulation of the Prospectuses; and to obtain from the
Jersey Financial Services Commission its consent under Article 4 of the
Control of Borrowing (Jersey) Order 1958 as amended to the issue of the
Shares by the Company.
(n) As soon as practicable after the date of this Agreement, to submit a copy
of the UK Listing Particulars to the UK Listing Authority for approval in
accordance with the UK FSMA and the UK Listing Rules and (subject to
obtaining such approval) to have a copy of the UK Listing Particulars
delivered to the Registrar of Companies in England and Wales for
registration as required by Section 149 of the UK FSMA; to make available
sufficient copies of the UK Listing Particulars at its registered office
and at the Document Viewing Facility of the UK Listing Authority for such
periods as may be required by the UK Listing Rules; to make publicly
available copies of all documents stated in the UK Listing Particulars as
being available for inspection at the address stated therein for such
periods as may be required by the UK Listing Rules.
(o) To list for quotation the ADSs on Nasdaq National Market and to list the
Shares and ADSs on the Official List and the London Stock Exchange.
(p) To comply with the Deposit Agreement so that ADRs evidencing ADSs to be
delivered to the Underwriters at each Time of Purchase are executed by
the Depositary (and, if applicable, countersigned).
(q) Except pursuant to transactions in connection with the exchange offer
referenced on the cover of the Prospectus, that neither the Company nor
any of its affiliated purchasers (as defined in Rule 100 of Regulation M)
will, either alone or with one or more other persons, until such time as
the Representative shall have notified the Company of the completion of
the distribution of the Shares by the Underwriters and that all
stabilization activities with respect to such distribution have been
terminated, bid for or purchase, for any account in which the Company or
any of its affiliated purchasers has a beneficial interest, any Shares or
attempt to induce any person to purchase any Shares, except as otherwise
provided in this Agreement or to the extent otherwise permitted by the
Exchange Act and the rules and regulations thereunder; and neither the
Company nor any of its affiliated purchasers will, until such time
described above, make bids or purchases for the purpose of creating
actual or apparent active trading in, or of raising the price of, the
Shares or the ADSs.
(r) To use the net proceeds received by the Company from the sale of the
Shares by the Company pursuant to this Agreement in the manner specified
in the Prospectuses under the heading "Use of Proceeds".
(s) To execute and deliver to the Representative the Lock-up Deed among
Randgold & Exploration Company Limited and the Company, to procure
Randgold & Exploration Company Limited's execution thereof and to obtain
from each of the Company's executive directors an executed lock-up
agreement in the form attached hereto as Exhibit H, in each case prior to
the First Time of Purchase.
17
4.2 The Selling Shareholder agrees with the Underwriters and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in
connection with the transfer of the Option Shares to be sold by the
Selling Shareholder to the Underwriters.
(b) To do and perform all things required or necessary to be done and
performed under this Agreement by the Selling Shareholder prior to
the Time of Purchase of the Option Shares and to satisfy all
conditions precedent to the delivery of the Option Shares.
(c) That neither the Selling Shareholder, nor any of its affiliates (as
defined in Rule 405 under the Securities Act) nor any person acting
on its behalf will engage in any "directed selling efforts" (as
defined in Regulation S) with respect to the International Offering.
5 REIMBURSEMENT OF EXPENSES
If the Shares are not delivered for any reason, the Company shall,
notwithstanding anything contained in Section 4.1(l) hereof to the
contrary, pay any and all amounts due and owing to all parties as
described in Section 4.1(l) hereof; provided, however, that the Company
shall be obligated to pay such amounts due and owing to the Underwriters
only to the extent such amounts are accountable out-of-pocket expenses or
fees and disbursements of legal counsel to the Underwriters.
6 CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The several obligations of the Underwriters hereunder to purchase the
Shares at the First Time of Purchase or any Additional Time of Purchase,
as the case may be, are subject to the performance by the Company and the
Selling Shareholder of their respective obligations hereunder and to the
following additional conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct at the Time of Purchase
with the same force and effect as if made at the Time of Purchase.
(b) The Company shall, at the Time of Purchase, have delivered to the
Representative a certificate dated the Time of Purchase from two of
the Company's authorized officers to the effect that (i) the Company
shall have performed such of its obligations under this Agreement as
are to be performed at or before the Time of Purchase and (ii) the
conditions described in paragraphs (n), (o), (p) and (q) of this
Section 6 have been met.
(c) All the representations and warranties of the Selling Shareholder
contained in this Agreement shall be true and correct on the Time of
Purchase with the same force and effect as if made on and as of the
Time of Purchase.
(d) The Selling Shareholder shall have delivered to the Representative a
certificate dated the Time of Purchase from an authorized officer of
the Selling Shareholder to the effect that (i) the Selling
Shareholder shall have performed such of its obligations under this
Agreement as are to be performed at or before the Time of Purchase
and (ii) the condition described in paragraph (c) of this Section 6
has been met.
(e) The Underwriters shall have received at the Time of Purchase the
opinion of Fulbright & Xxxxxxxx L.L.P., special US counsel for the
Company, dated the Time of Purchase, in form and substance
satisfactory to the Representative, and substantially in the form of
Exhibit A to this Agreement.
(f) The Underwriters shall have received at the Time of Purchase the
opinion of Ogier & Le Masurier, Jersey counsel for the Company,
dated the Time of Purchase, in form and
18
substance satisfactory to the Representative, and substantially in
the form of Exhibit B to this Agreement.
(g) The Underwriters shall have received at the Time of Purchase the
opinion of Maitre XXXXXX XXXXX, Mali counsel for the Company, dated
the Time of Purchase, in form and substance satisfactory to the
Representative, and substantially in the form of Exhibit C to this
Agreement.
(h) The Underwriters shall have received at the Time of Purchase the
opinion of Xxxx Xxxxx, in-house counsel to the Company, dated the
Time of Purchase, in form and substance satisfactory to the
Representative, and substantially in the form of Exhibit D to this
Agreement.
(i) The Underwriters shall have received at the Time of Purchase the
opinion of Fasken Xxxxxxxxx Du Moulin, Canadian counsel for the
Company, dated the Time of Purchase, in form and substance
satisfactory to the Representative, and substantially in the form of
Exhibit E to this Agreement.
(j) The Underwriters shall have received at the Time of Purchase the
opinion of Xxxxxx Xxxx, special US counsel for the Underwriters,
dated the Time of Purchase.
(k) The Underwriters shall have received at the Time of Purchase the
opinion of Xxxxx, Xxxxxx & Xxxxxx LLP, special US counsel for the
Depositary dated the Time of Purchase, in form and substance
satisfactory to the Representative, and substantially in the form of
Exhibit F to this Agreement.
(l) The Representative shall have received from PricewaterhouseCoopers
and PricewaterhouseCoopers Inc., letters dated the date of this
Agreement and the Time of Purchase and addressed to the Underwriters
(with reproduced copies for each of the Underwriters) in the forms
heretofore approved by the Representative, and substantially in the
form prescribed by Statement on Auditing Standards 72: "Letter for
Underwriters and Certain other Requesting Parties".
(m) No amendment or supplement to the Registration Statement, the ADS
Registration Statement or the US Prospectus shall be filed prior to
the time the Registration Statement becomes effective to which the
Representative reasonably objects in writing.
(n) The Registration Statement shall have become effective at or before
5:30 p.m., New York City time, on the date of this Agreement and the
US Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) under the Securities Act not later the second full
Business Day after the date of this Agreement; provided, however,
that the Company and the Representative may from time to time agree
on a later date.
(o) Prior to the Time of Purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement or the ADS Registration
Statement shall have been issued under the Securities Act or
proceedings initiated for that purpose shall have been commenced or
threatened by or shall be pending before the Commission; (ii) the
Registration Statement and the ADS Registration Statement, and all
amendments thereto, or modifications thereof, if any, shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and (iii) neither of the
Prospectuses nor any amendments or supplements thereto, or
modifications thereof, if any, shall contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they are made, not
misleading.
19
(p) (i) Neither the Company nor any of its Subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectuses any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as described or
contemplated in the Prospectuses, and (ii) since the respective
dates as of which information is given in the Registration Statement
and the Prospectuses, there shall not have been any material change
in the capital stock (other than as a result of grants or exercises
under the Company's benefit plans) or increase in short-term or
long-term debt of the Company or any of its Subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
business, prospects, directors of the Company, executive officers of
the Company, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries, taken as a whole,
otherwise than as described or contemplated in the Prospectuses as
amended or supplemented, the effect of which, in any such case
described in clause (i) or (ii), in the judgment of the
Representative makes it impracticable or inadvisable to proceed with
the Global Offering or the delivery of the Shares on the terms and
in the manner contemplated in the Prospectuses.
(q) The Shares issued in the form of ADSs shall have been listed for
quotation on the Nasdaq National Market and such listing shall not
have been withdrawn and Admission shall have occurred by no later
than 2:30 PM on _______, 2002.
(r) The Representative shall have received each of the lock-up
agreements specified in Section 4.1(u) of this Agreement, which
agreements shall be in full force and effect at the Time of
Purchase.
(s) The Representative on behalf of the Underwriters shall have received
such other resolutions, consents, authorizations, opinions, letters
and other documents relating to the Global Offering as the
Underwriters may reasonably require.
(t) The Underwriters shall have received at the Time of Purchase the
opinion of _________________, counsel for the Selling Shareholder,
dated the Time of Purchase, in form and substance satisfactory to
the Representative, and substantially in the form of Exhibit G to
this Agreement.
(u) The offer and sale of the Shares in the Qualifying Provinces of
Canada shall be exempt from the prospectus requirements of, and in
compliance with, all Canadian Securities Laws and no approval or
consent of or filing with any governmental authority or stock
exchange in the Qualifying Provinces is required in connection with
such offer and sale except as have been made or received, as
applicable.
7 EFFECTIVE DATE OF AGREEMENT; TERMINATION
(a) This Agreement shall become effective (i) if Rule 430A under the
Securities Act is not used, when the Representative shall have
received notification of the effectiveness of the Registration
Statement, or (ii) if Rule 430A under the Securities Act is used,
when the parties hereto have executed and delivered this Agreement.
(b) Notwithstanding anything herein contained to the contrary, this
Agreement (or the several obligations of the several Underwriters
with respect to the Option Shares) may be terminated in the absolute
discretion of the Representative, by written notice given to the
Company and the Selling Shareholder, if after the execution and
delivery of this Agreement and prior to the Time of Purchase (or, in
the case of the Option Shares, any Additional Time of Purchase) (i)
trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the NASD, the Chicago Board Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of
20
Trade or the London Stock Exchange, (ii) trading of any securities
of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in (A) New York shall
have been declared by either federal US or New York State
authorities or (B) Canada or London shall have been declared by
relevant Canadian or U.K. authorities, as the case may be, (iv) (a)
there shall have occurred any outbreak or escalation of hostilities
or acts of terrorism involving the United States or there is a
declaration of a national emergency or war by the United States, or
(b) there shall have been any other calamity or crisis or any change
in political, financial or economic conditions, or (v) there shall
have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the
judgment of the Representative, is material and adverse and which,
in the judgment of the Representative, makes it impracticable to
market the Shares on the terms and in the manner contemplated in the
Prospectuses.
(c) If the Representative elects to terminate this Agreement as provided
in this Section 7, the Company, the Selling Shareholder and each
other Underwriter shall be notified promptly by letter or facsimile.
(d) In the event that this Agreement is terminated pursuant to this
Section 7, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in
Sections 4.1(l), 5 and 9 hereof which sections shall survive any
termination hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except
to the extent provided in Section 9 hereof which section shall
survive any termination hereof) or to one another hereunder.
8 INCREASE IN UNDERWRITERS' COMMITMENTS
If at the Time of Purchase, any one or more of the Underwriters shall
fail or refuse to purchase Shares which it or they have agreed to
purchase hereunder on such date, and the aggregate number of Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of Shares
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the aggregate number of Shares set
forth opposite their respective names in Schedule I bears to the
aggregate number of Shares described opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the
Representative may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on
such date; provided that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 8 by an amount in excess of one-tenth of such
number of Shares without the written consent of such Underwriter. If at
the Time of Purchase any Underwriter or Underwriters shall fail or refuse
to purchase the Shares which it or they have agreed to purchase hereunder
on such date, and the aggregate number of Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of
Shares to be purchased on such date, the Representative may in its
discretion arrange for itself or another party or other parties to
purchase such Shares on the terms contained in this Agreement. If within
36 hours after such default by any Underwriter the Representative does
not arrange for the purchase of such Shares, then the Company shall be
entitled to a further period of 36 hours within which to procure another
party or other parties satisfactory to the Representative to purchase
Shares on such terms. In the event that, within the respective prescribed
periods, the Representative notifies the Company that it has so arranged
for the purchase of such Shares, or the Company notifies the
Representative that it has so arranged for the purchase of such Shares,
then either the Representative or the Company shall have the right to
postpone the Time of Purchase, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and in the Prospectuses or in any other documents or
arrangements may be effected. If no such arrangements for the purchase of
such Shares are made within the respective prescribed periods, this
Agreement (or the obligations of the several Underwriters to Purchase the
Option Shares, as the case may be) shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. Any action
21
taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
9 INDEMNITY AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless each Underwriter,
each affiliate of any Underwriter which assists such Underwriter in
the distribution of the Shares and each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim
asserted) arising out of, based upon or caused by (i) any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement or the ADS Registration Statement
(each as amended or supplemented), or caused by any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (as amended or
supplemented) or any Preliminary Prospectus, or caused by any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except in any case insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein.
(b) The Selling Shareholder agrees to indemnify and hold harmless each
Underwriter, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Shares and each person, if
any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any
claim asserted) arising out of, based upon or caused by (i) any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the ADS Registration
Statement (each as amended or supplemented), or caused by any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as
amended or supplemented) or any Preliminary Prospectus, or caused by
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based
on any untrue statement or omission made in such Registration
Statement or Prospectus in reliance upon or in conformity with
written information furnished to the Company or the Underwriters by
the Selling Shareholder and stated to be specifically for use
therein, or any violation by the Selling Shareholder of the
Securities Act or the Exchange Act or any rule or regulation
thereunder, except in any case insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Selling Shareholder in writing by such Underwriter
through the Representative expressly for use therein.
Notwithstanding the foregoing, the aggregate liability of the
Selling Shareholder pursuant to this Section 9(b) shall be limited
to an amount equal to the total proceeds (before deducting
underwriting discounts and commissions and expenses) received by the
Selling Shareholder from the Underwriters for the sale of the Option
Shares sold by the Selling Shareholder hereunder.
22
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Shareholder and the
Company's directors and officers who sign the Registration Statement
and each person who controls the Company or the Selling Shareholder
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity
from the Sellers to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly for
use in the Registration Statement, any Prospectus, any amendment or
supplement thereto, or any Preliminary Prospectus.
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such
person (the "INDEMNIFIED PERSON") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING
PERSON") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may designate in such proceeding
and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceedings, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall
have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the
distribution of the Shares and such control persons of Underwriters
shall be designated in writing by the Representative and any such
separate firm for the Company, the Selling Shareholder and the
Company's directors and officers who sign the Registration Statement
and control persons of the Company shall be designated in writing by
the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason
of such settlement or judgement. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested
an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect
any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
(e) If the indemnification provided for in paragraphs (a), (b) and (c)
of this Section 9 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under
either such
23
paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Shareholder
and the Underwriters from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, the Selling Shareholder and the
Underwriters in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Company, the Selling Shareholder and the
Underwriters shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Shareholder and
the total underwriting discounts and the commissions received by the
Underwriters, in each case as set forth in the table on the cover of
the US Prospectus, bear to the aggregate public offering price of
the Shares. The relative fault of the Company, the Selling
Shareholder and the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company
or the Selling Shareholder or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purposes) or by any other method of allocation that
does not take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations described above,
any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, in no event shall
an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by
it and distributed to the public were offered to the public exceeds
the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9
are several in proportion to the respective number of Shares
described opposite their names in Schedule I hereto and not joint.
(g) The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
10 REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
The indemnity and contribution agreements contained in Section 9 and the
agreements, representations, warranties and other statements of the
Company and the Selling Shareholder, as described in this Agreement or
made by or on behalf of them pursuant to this Agreement, shall remain
operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter, its directors or officers or any person (including each
officer or director of such person) controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any other person
controlling the Company or the Selling Shareholder and (iii) acceptance
of and payment for any of the Shares. Each of the parties hereto agrees
to notify each other party promptly of the commencement of any proceeding
against it and, in the case of the Company, against any of the Company's
executive officers, directors or the
24
Secretary of the Company in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement or either of the
Prospectuses.
11 JUDGMENT CURRENCY
Each of the parties hereto acknowledges that the US dollar (the
"CONTRACTUAL CURRENCY") is the sole currency of payment for all sums
payable by any party under or in connection with Section 9 of this
Agreement. If, under any applicable law and whether pursuant to a
judgment being made or registered against any party or for any other
reason, any payment under or in connection with Section 9 of this
Agreement is made or fails to be satisfied in a currency (the "OTHER
CURRENCY") other than the Contractual Currency then, to the extent that
the payment (when converted into the Contractual Currency at the rate of
exchange on the date of payment or, if it is not practicable for the
relevant party to purchase the Contractual Currency with the other
currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for it to do so) actually received by the
relevant party falls short of the amount due under the terms of Section 9
of this Agreement, the other party shall as a separate and independent
obligation, indemnify and hold harmless such party against the amount of
such shortfall. For the purpose of this Section 11, "RATE OF EXCHANGE"
means the rate at which the relevant party is able on the relevant date
in London to purchase the Contractual Currency with the other currency
and shall take into account any premium and other costs of exchange.
12 NOTICES
Any action by the Underwriters hereunder may be taken by the
Representative on behalf of the Underwriters, and any such action taken
by the Representative shall be binding upon the Underwriters. Except as
otherwise herein provided, all statements, requests, notices and
agreements shall be in writing and shall be delivered or sent by
messenger, telex, overnight courier or facsimile transmission and, (i) if
to the Underwriters, shall be sufficient in all respects if delivered or
sent to HSBC Investment Bank plc, Vintners Place, 00 Xxxxx Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx (fax: 000 0000 0000), Attention: Xxxxxx
Xxxxxxxxxx, with a copy to: Xxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (fax: 000 0000 0000) Attention: Xxxxxx Xxxx, (ii) if to
the Company, shall be sufficient in all respects if delivered or sent to
the Company at the offices of the Company at Randgold Resources Limited,
La Motte Xxxxxxxx, La Xxxxx Xxxxxx, Xx. Xxxxxx Xxxxxx XX0 0XX, Channel
Islands (fax: ________), Attention: ____________ with a copy to:
Fulbright & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxxxx 0, Xxx Xxxx, XX 00000
(fax: 000 000 0000), Attention: Xxxxxx Xxxxxx and (iii) if to the Selling
Shareholder, to [Attorney-in-Fact], [address], [fax], Attention:
____________.
13 GOVERNING LAW; CONSTRUCTION; HEADINGS
This Agreement and any claim, counterclaim or dispute of any kind or
nature whatsoever arising out of or in any way relating to this
Agreement, directly or indirectly, shall be governed by, and construed in
accordance with, the laws of the State of New York. The Section headings
in this Agreement have been inserted as a matter of convenience of
reference and are not a part of this Agreement.
14 SUBMISSION TO JURISDICTION
To the fullest extent permitted by applicable law, each of the parties
hereto irrevocably agrees that any legal suit, action or proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereby may be instituted in any New York State or US federal
court of competent jurisdiction located in the Borough of Manhattan, The
City of New York, New York, and irrevocably waives, to the fullest extent
it may effectively do so, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding
and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum, and irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding.
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Each of the parties hereto waives any immunity to jurisdiction to which
it may otherwise be entitled or become entitled (including immunity to
pre-judgment attachment and execution) in any legal suit, action or
proceeding against it arising out of this Agreement or the transactions
contemplated hereby which is instituted in any New York State or US
federal court of competent jurisdiction located in the Borough of
Manhattan, The City of New York, New York, or in any foreign court. To
the extent permitted by law, each of the parties hereto hereby waives any
objection to the enforcement by any competent foreign court of any
judgment validly obtained in any such proceeding. Each of the Company and
the Selling Shareholder hereby appoints, without power of revocation, CT
Corporation System, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "PROCESS AGENT") as its agent to accept and acknowledge on its
behalf service of any and all process which may be served in any action,
proceeding or counterclaim in any way relating to or arising out of this
Agreement or the transactions contemplated hereby brought in such New
York State or Federal court of competent jurisdiction sitting in the
Borough of Manhattan, The City of New York, New York. Such service may be
made by delivering a copy of such process to the Company or the Selling
Shareholder, as the case may be, in care of the Process Agent at the
address specified above for the Process Agent and obtaining a receipt
therefor, and each of the Company and or the Selling Shareholder hereby
irrevocably authorizes and directs such Process Agent to accept such
service on its behalf. Each of the Company and or the Selling Shareholder
represents and warrants that the Process Agent has agreed to act as said
agent for service of process, and agrees that service of process in such
manner upon the Process Agent shall be deemed, to the fullest extent
permitted by applicable law, in every respect effective service of
process upon the Company or the Selling Shareholder, as the case may be,
in any such suit, action or proceeding.
15 PARTIES OF INTEREST
The Agreement herein described has been and is made solely for the
benefit of the Underwriters, the Company and the Selling Shareholder and
to the extent provided in Section 9 hereof the controlling persons,
directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters)
shall acquire or have any right under or by virtue of this Agreement.
16 COUNTERPARTS
This Agreement may be signed by the parties in one or more counterparts
which together shall constitute one and the same agreement among the
parties.
17 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the Underwriters, the Company and
the Selling Shareholder and their successors and assigns and any
successor or assign of any substantial portion of the Company's and any
of the Underwriters' respective businesses and/or assets.
18 MISCELLANEOUS
(a) The parties hereto acknowledge and agree that the Representative, on
behalf of the Underwriters, to the extent permitted by applicable
laws, may effect transactions in the open market or otherwise in
connection with the distribution of the Shares with a view to
stabilizing or maintaining the market price of the Shares or the
ADSs at levels other than those which might otherwise prevail in the
open market. The parties hereto further agree than any loss
(including expenses) or profit sustained as a consequence of any
such over-allotment or stabilizing activity shall be for the account
of the Underwriters (in their capacity as such) and shall not be for
the account of the Company. The Representative may make short sales
of the Shares and the ADSs in connection with the Global Offering,
resulting in the sale by the Representative of a greater number of
Shares and ADSs than it is required to purchase pursuant to the
Underwriting Agreement. The short position resulting from those
short sales
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will be deemed a "covered" short position to the extent that it does
not exceed the Shares and the ADSs subject to the over-allotment
option and will be deemed a "naked" short position to the extent
that it exceeds that number. A naked short position is more likely
to be created if the Representative is concerned that there may be
downward pressure on the trading price of the Shares or the ADSs in
the open market that could adversely affect investors who purchase
Shares or ADSs in the Global Offering. The Representative may reduce
or close out its covered short position either by exercising the
over-allotment option or by purchasing Shares or ADSs in the open
market. In determining which of these alternatives to pursue, the
Representative will consider the prices at which ordinary shares or
ADSs are available for purchase in the open market as compared to
the price at which it may purchase through the over-allotment
option. Any naked short position will be closed out by purchasing
Shares or ADSs in the open market. Similar to other stabilizing
transactions described below, open market purchases made by the
Representative to cover all or a portion of its short position may
have the effect of preventing or retarding a decline in the market
price of the Shares or the ADSs following the Global Offering. As a
result, the Shares or the ADSs may trade at a price that is higher
than the price that otherwise might prevail in the open market.
(b) This Agreement, together with the Engagement Letter, embodies the
entire agreement and understanding among the Company, the Selling
Shareholder, HSBC Investment Bank plc and the Underwriters and
supersedes all prior agreements and understandings among the
Company, the Selling Shareholder and the Underwriters relating to
the subject matter hereof.
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If the foregoing correctly sets forth the understanding among the Company, the
Selling Shareholder and the Underwriters, please sign and return two
counterparts hereof, whereupon this letter and your acceptance shall constitute
a binding agreement among the Company, the Selling Shareholder and the
Underwriters, severally.
Very truly yours,
RANDGOLD RESOURCES LIMITED
By:________________________________
Name:______________________________
Title:_____________________________
INTERNATIONAL FINANCE CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
Accepted as of the date hereof
HSBC SECURITIES (USA) INC.
As Global Coordinator and as
Representative of the several Underwriters
named in Schedule I hereto.
By: HSBC SECURITIES (USA) INC.
By: _______________________
Name: _____________________
Title: ____________________
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