THIRD CONTRACT OF EMPLOYMENT
between
RANDGOLD RESOURCES LIMITED
(registration number 62686)
a Company incorporated in Jersey, Channel Islands
("the Company")
and
XXXXX XXXX XXXXXXXX
(the "Employee")
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TABLE OF CONTENTS
1. INTRODUCTION ........................................................ 3
2. EMPLOYMENT .......................................................... 3
3. DUTIES .............................................................. 4
4. SECOND CONTRACT OF EMPLOYMENT ....................................... 6
5. REMUNERATION PACKAGE ................................................ 6
6. SECURITY ............................................................ 7
7. EXPENSES ............................................................ 7
8. BONUS SCHEME ........................................................ 8
9. HOLIDAYS ............................................................ 10
10. LIFE ASSURANCE ...................................................... 10
11. APPLICATION OF PROVISIONS OF PERSONNEL MANUALS ...................... 11
12. INCAPACITY .......................................................... 11
13. TERMINATION ......................................................... 12
14. CONFIDENTIALITY AND RESTRAINT ....................................... 13
15. RETURN OF COMPANY PROPERTY .......................................... 16
16. OTHER EMPLOYMENT .................................................... 17
17. DOMICILIUM .......................................................... 17
18. GENERAL ............................................................. 18
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THE PARTIES AGREE AS FOLLOWS:
1. INTRODUCTION
It is recorded that -
1.1 the Employee is at present employed by the Company in the position of
Financial Director in terms of a written contract of employment ("Second
Contract of Employment"),
1.2 the parties have negotiated and now wish to record the terms of a further
contract of employment ("Third Contract of Employment")
2. EMPLOYMENT
2.1 The Employee shall serve the Company as Financial Director or in such
other capacity of a like status as the Company may require.
2.2 Notwithstanding the date of signature hereof, the Employee shall be
deemed to have been employed by the Company as Financial Director under
this Third Contract of Employment as from 1 January 2006 ("Commencement
Date").
2.3 The employment of the Employee as Financial Director of the Company shall
continue for a minimum fixed term until the 31 December 2008 and shall
continue for an indefinite period thereafter, until terminated on not
less than six months' written notice given by one party to the other,
which notice may be given so as to terminate the Employee's employment
with effect from the expiry date of the minimum fixed term or any later
date.
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3. DUTIES
3.1 As Financial Director of the Company, the Employee shall:
3.1.1 undertake such duties and exercise such powers in relation to the
Company, its associated companies and their businesses as the board of
directors of the Company (the "Board") shall from time to time assign to
or vest in him, provided however, that the Board shall procure that such
duties and powers shall not conflict with one another. The Employee has a
copy of his current Job Description. It is specifically agreed that the
duties and responsibilities outlined in the Job Description are not an
exhaustive list of the Employee's duties and responsibilities and they
may change from time to time at the discretion of the "Board";
3.1.2 in the discharge of such duties and in the exercise of such powers,
observe and comply with all resolutions, regulations and directives from
time to time made or given by the Board; and
3.1.3 use his best endeavours to properly conduct, improve, extend, develop,
promote, protect and preserve the business interest, reputation and
goodwill of the Company and its associated companies.
3.2 For the purposes of this Agreement, "associated company" or "associated
companies" means -
3.2.1 any company or entity which is directly or indirectly controlled by the
Company,
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3.2.2 any company or entity which directly or indirectly controls the Company,
or
3.2.3 any company or entity which is directly or indirectly controlled by any
company which also directly or indirectly controls the Company.
3.3 The Employee shall at all times promptly give to the Board (in writing,
if so requested) all such information and explanations as it requires in
connection with matters relating to his employment or with the business
of the Company and/or its associated companies.
3.4 It shall be part of the normal duties of the Employee at all times to
consider in what manner and by what new methods or devices the products,
services, processes, equipment or systems of the Company and associated
companies might be improved, and promptly to give to the Secretary of the
Company full details of any invention or improvement which he may from
time to time make or discover in the course of his duties, and to further
the interests of the Company and its associated companies' undertakings
with regard thereto. Any such invention or improvement shall be the
property of the Company and the Employee shall take all steps as may be
necessary and reasonably required by the Company, at the sole expense of
the Company, to procure that the Company obtains complete and exclusive
legal title to any such invention or improvement.
3.5 The Employee's normal place of work (excluding the extensive business
travelling he is required to undertake) shall be as the Company may from
time to time direct. It is specifically recorded that due to the changing
nature of the
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Company's work requirement it may be necessary for the Employee to
relocate and the Employee hereby agrees to do so.
4 SECOND CONTRACT OF EMPLOYMENT
4.1 This Third Contract of Employment supersedes the Second Contract of
Employment as from the Commencement Date.
5 REMUNERATION PACKAGE
5.1 As from the "Commencement Date", the Employee's total remuneration
package shall be US $320,000 (three hundred and twenty thousand United
States Dollars) per annum, which shall be reviewed annually with a view
to effecting appropriate annual increases.
5.2 The composition of the Employee's remuneration package shall be the
following -
5.2.1 An annual salary, which shall be equal to US $320,000 (three hundred and
twenty thousand United States Dollars) and will include the annual basic
salary plus the cost to the Company of providing the other components of
the package set out in 5.2.2 and 5.2.3;
5.2.2 the contributions payable by the Company in respect of the membership of
the Employee and his wife and children to the medical aid scheme of which
the Employee is a member, all of which shall be for the account of the
Company,
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5.2.3 the monthly contributions payable by the Company in respect of the
Employee's membership to any pension, provident and retirement annuity
funds nominated by the Employee, all of which shall be for the account of
the Company.
5.3 The Employee's basic salary shall be payable in equal monthly instalments
(and proportionately for any lesser period, each monthly instalment being
deemed to accrue rateably from day to day) in arrears on the last day of
each month.
6 SECURITY
The Company shall at its cost provide appropriate security and security
services at the Employee's residence.
7 EXPENSES
7.1 The Employee shall be reimbursed for all travelling, hotel and other
out-of-pocket expenses reasonably incurred by him in or about the
discharge of his duties hereunder.
7.2 The Employee shall maintain a dedicated work telephone line at home and
shall be reimbursed all work related costs and expenses incurred by him
in connection with this home telephone.
7.3 The Company requires the Employee to be a member of an appropriate club
for various reasons, including the entertainment of clients and customers
of the Company, and shall pay the joining and annual membership fees of
such club.
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7.4 Should it become necessary during the Employee's periods of work to be
evacuated from his place of work for medical reasons, the Company shall
arrange for such evacuation and the costs thereof shall be for the
Company's account.
7.5 The Company shall meet the Employee's membership fees of such
professional bodies as it deems are required.
8 BONUS SCHEME
8.1 Over and above the remuneration package and other benefits stipulated in
this Third Contract of Employment, the Employee shall be eligible for an
annual bonus.
8.2 The Employee shall be entitled to be paid a bonus in United States
Dollars in respect of this Third Contract of Employment, with regard to
the bonus period of 1st April 2006 and ending 31st March 2007, and
thereafter in respect of each 12 month period of employment with the
Company, commencing on 1st April each year and ending on 31 March ("Bonus
Period") if the ruling price of ordinary shares in the Company for that
bonus period as defined in 8.4, is higher than the base price for that
Employment Period, as defined in 8.3.
8.3 The base price shall be in the case of each of the bonus periods in
respect of which a bonus is to be calculated, the weighted average price
of ordinary shares in the Company quoted on the Nasdaq Stock Market over
the last calendar month preceding the Bonus period in respect of which
the bonus is being calculated.
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8.4 The ruling price for each Bonus period shall be the weighted average
price of ordinary shares in the Company quoted on the Nasdaq Stock Market
over the last calendar month of that Bonus period.
8.5 Should a bonus become payable to the Employee in respect of any bonus
period, then the amount of such bonus shall be calculated in accordance
with the following formula:
B = 100 000 (P(2) - P(1))
Where B is the amount of the bonus, in United States Dollars;
P(2) is the ruling price for the bonus period in respect of which the
bonus is being calculated, as defined in 8.4, and
P(1) is the base price for the bonus period in respect of which the
bonus is being calculated.
8.6 In the above formula, the factor 100,000 (One hundred thousand)
represents a fictional shareholding of 100,000 (One hundred thousand)
shares in the share capital of the Company as presently constituted.
Should the ordinary shares in the Company which are listed on the Nasdaq
Stock Market be consolidated or sub-divided, then the ruling price and
the base price stipulated in 8.2 and the formula in 8.5 shall be modified
by agreement between the parties in such a way as to give effect to the
original intention of the parties. In the event that the parties do not
agree on the terms of such modification, the matter shall be referred to
the Company's Remuneration Committee, whose decision shall be final and
binding upon the parties.
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8.7 Should the Company become subject to or involved in any reorganisation,
unbundling, scheme of arrangement or other change of circumstances which
directly or indirectly prejudices the Employee's prospective bonus(es)
under the bonus scheme as set out in this clause, then the parties shall
endeavour to reach agreement on a modified or substituted bonus scheme
which will give effect to the original intent of the bonus scheme.
Failing such agreement, the terms of the modified or substituted bonus
scheme shall be determined by the Company's Remuneration Committee, whose
decision shall be final and binding upon the parties.
8.8 Should this agreement be terminated during the minimum fixed term in
terms of paragraph 13 or by mutual agreement between the Company and the
Employee, any bonus due to the Employee in terms of paragraph 8.2, shall
be calculated proportionately (on a pro-rated basis) for the 12 month
employment period during which employment is terminated.
9. HOLIDAYS
The Employee shall be entitled to 33 (thirty three) working days paid
holiday in each successive period of 12 (twelve) months' continued
employment with the Company, commencing on 1 January 2006, to be taken at
such times as the Board shall consider most convenient, having regard to
the requirements of the Company's business.
10. LIFE ASSURANCE
Subject to the insurance company's requirements, life assurance cover
against death and disability is provided for the Employee whilst the
Employee is a member of the Company's Provident Fund, as follows:
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10.1 3 (three) years' pensionable salary to a maximum as outlined in the rules
of the scheme; and
10.2 non contributory cover equal to 2 (two) years' pensionable salary,
payable in US Dollars.
11. APPLICATION OF PROVISIONS OF PERSONNEL MANUALS
11.1 The terms and conditions of employment as contained in any of the
Company's personnel policies and manuals are incorporated into this
Agreement and the Employee shall be bound by the provisions thereof.
11.2 The Employee's entitlement to any benefit other than those recorded in
this Agreement shall be governed by the appropriate provisions of the
Company's personnel policies and manuals.
11.3 It is expressly provided that such policies and manuals may be changed,
added to and/or deleted from time to time at the discretion of the
Company and it is agreed that by accepting these terms and conditions,
the Employee hereby accepts any such changes, which will be appropriately
communicated to him.
11.4 In the event of a conflict between the provisions of the personnel
policies and manuals and the provisions of this Agreement, the provisions
of this Agreement shall override those contained in the personnel
policies and manuals.
12. INCAPACITY
12.1 If the Employee at any time becomes incapacitated or prevented by
illness, injury, accident or any other circumstance beyond his control
(the "incapacity") from discharging his full duties
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hereunder for a total of 180 (one hundred and eighty) or more days in any
12 (twelve) consecutive calendar months, the Company may by notice in
writing to the Employee given at any time so long as the incapacity shall
continue:
12.1.1 discontinue payment in whole or in part of the salary on and from such
dates as may be specified in the notice until the incapacity shall cease;
or
12.1.2 whether or not payment shall already have been discontinued, terminate
this Agreement forthwith or on such date as may be specified in the
notice.
12.2 Save as hereinafter provided the Employee's salary shall, notwithstanding
the incapacity, continue to be paid to the Employee in accordance with 5,
in respect of the period of incapacity prior to such discontinuance or
termination.
12.3 Notwithstanding the above, whilst the Employee is a member of the
Company's Provident Fund, the Employee shall be covered against temporary
and permanent disability under the Company's insurance policies.
Therefore, to the extent that the Employee receives payment of disability
benefit in terms of any such insurance policies, the Company will not pay
to the Employee his salary in terms of clause 5 above.
13. TERMINATION
13.1 This Agreement may be terminated forthwith by the Company without prior
notice if the Employee shall at any time:
13.1.1 commit any serious or persistent breach of any provisions contained in
this Agreement;
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13.1.2 be guilty of misconduct or wilful neglect in the discharge of his duties;
13.1.3 become insolvent or make any arrangement or composition with his
creditors;
13.1.4 notwithstanding the provisions of clause 12 above, become permanently
incapacitated by accident or ill-health from performing his duties under
this Agreement and for the purposes of this sub-clause incapacity for 3
(three) consecutive months or an aggregate period of 6 (six) months in
any period of 12 (twelve) months shall be deemed to be permanent
incapacity.
13.2 Subject to the provisions set out in 13.1 above, either the Employee or
the Company may, during the period of the Third contract of employment
terminate the relationship by giving to the other party three months'
notice in writing.
Notwithstanding the aforegoing, the Employee's employment will terminate
through effluxion of time on reaching the age of 60 (Sixty years).
14. CONFIDENTIALITY AND RESTRAINT
14.1 It is recorded that in the performance of his duties for the Company
anywhere in the world, including those performed in West and East Africa,
the Employee will:
14.1.1 acquire knowledge of the know-how, trade secrets and other confidential
information of the Company relating to its and associated companies'
activities;
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14.1.2 derive considerable benefit from the technical and/or business experience
which he will obtain from the Company and associated companies.
14.2 For one or more or all of the reasons set forth in 14.1, it is agreed
that in order to protect the proprietary interests of the Company and
associated companies the Employee shall not:
14.2.1 either during the continuance of his employment or thereafter, divulge or
disclose or use any information or knowledge so acquired by him relating
to the matters set forth in 14.1.1, to any person whomsoever, whether for
his own benefit or otherwise, except to those officials of the Company
whose province it is to know the same, or
14.2.2 during the continuance of his employment and for a period of 12 (Twelve)
months thereafter, entice or solicit or canvass the services of any
person, company or entity with whom the Company or any associated company
has a written agreement at the date of termination of the Employee's
employment, away from any such company, or accept or be interested in any
such services, whether for his own benefit or otherwise.
14.3 The Employee undertakes not to do any of the things set forth in 14.2
either directly or indirectly and whether as a director or partner or
owner or principal or agent or representative or shareholder or financier
or employee.
14.4 The Employee agrees that:
14.4.1 the restraints set out above are reasonable as to their subject matter,
area and duration, to protect the Company's proprietary interests;
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14.4.2 each of the restraints set out in clause 14.2 are separate and
independent restraints severable from any of the other restraints set out
therein;
14.4.3 the time period for which he is restrained from doing any of the things
set out above shall be severable as to each calendar month within that
period; and
14.4.4 if any one or more of the restraints set out above are invalid or
unenforceable for any reason, the validity of any of the other restraints
shall not be affected thereby.
14.5 The Employee may request the Company to release the Employee from any or
all of the restraints described above or to relax the application of any
or all of such restraints. The Company agrees to act reasonably in
granting or refusing any such request. Any request by the employee in
terms hereof shall be made by the Employee to the Company in writing.
Likewise, the decision of the Company in respect of any such request
shall be given in writing by the Company to the Employee. Any conditions
which the Company may impose, in the event of the Company agreeing to any
such request, shall be contained in such written communication by the
Company to the employee.
14.6 Nothing contained in this clause shall preclude the Employee from holding
or acquiring shares or other securities of any other companies which are
quoted on any recognised stock exchange by way of bona fide investment,
provided however, that any such investment shall not exceed 5% (five per
centum) of the entire issued share capital or class of shares or other
securities, as the case may be, of the company in question without the
prior written consent of the Company which shall not be unreasonably
withheld and provided further, that the
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Company shall be entitled to require him not to do so in any particular
case on the ground that such other company is or may be carrying on a
business competing or tending to compete with the business of the Company
or any associated company.
14.7 As consideration for the Employee agreeing to the restraints described in
14.2, it is recorded and agreed that the Company will forthwith pay the
Employee an amount equal to the gross amount of the Employee's
remuneration package stated in clause 5.1 of US$320,000 (Three hundred
and twenty thousand United States Dollars) less the amount of US$192,000
paid previously to the Employee during his First and Second Contracts of
Employment; which amounts to US$128,000, on the following basis:
14.7.1 should the Employee commit a material breach of the restraint
undertakings given by the Employee in this Clause, then if the breach is
one which is not capable of being remedied or being a breach which is
capable of being remedied is not remedied within 30 (thirty) days after
written demand given by the Company to the Employee, the Company shall be
entitled to institute action against the Employee for agreed damages of
US$320,000 in order to compensate the Company for the harm suffered by
the Company.
15. RETURN OF COMPANY PROPERTY
The Employee shall promptly whenever requested by the Company and, in any
event upon the termination of his employment with the Company, deliver to
the Company all lists of clients or customers, correspondence and all
other documents, papers and records which may have been prepared by him
or have come into his possession in the course of his employment with the
Company, and the Employee
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shall not be entitled and shall not retain any copies thereof. Title and
copyright therein shall vest in the Company and, where appropriate, any
associated company.
16. OTHER EMPLOYMENT
While this Agreement remains in force, the Employee shall not be engaged
or take part, directly or indirectly, whether as an employee or in any
other capacity, in any other business without the Company's prior written
permission.
17. DOMICILIUM
17.1 The parties hereto respectively choose domicilium citandi et executandi
for all purposes of and in connection with this Agreement as follows:
17.1.1 the Company La Motte Xxxxxxxx
St Helier Jersey, Channel Islands
17.1.2 the Employee La Motte Xxxxxxxx
St Helier Jersey, Channel Islands
17.2 Any notice to any party shall be addressed to it at its domicilium as
aforesaid and either sent by pre-paid registered post, delivered by hand,
or sent by telefax transmission.
17.3 In case of any notice:
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17.3.1 delivered by hand, it shall be deemed to have been received, unless the
contrary is proved, on the date of delivery, provided such date is a
business day, otherwise on the following business day;
17.3.2 sent by pre-paid registered post it shall be deemed to have been
17.3.4 received, unless the contrary is proved, on the seventh business day
after posting;
17.3.4 sent via telefax transmission, shall be deemed to have been received on
the same day, provided such day is a business day, otherwise on the
following business day. The party giving notice by telefax transmission
shall have the onus of proving that the telefax was received by the
addressee.
17.4 Any party shall be entitled by notice to the other, to change its
domicilium provided that the change will become effective only business
days after service of the notice in question.
17.5 For the purposes hereof, "business day" means any day other than a
Saturday, Sunday or public holiday.
18 GENERAL
18.1 No alteration, cancellation, variation of, or addition hereto shall be of
any force or effect unless reduced to writing and signed by the parties
as an addendum to this Agreement or their duly authorised signatures.
18.2 Subject only to 18.1, this document contains the entire agreement between
the parties and neither party shall be bound by any undertakings,
representations or warranties not recorded herein.
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18.3 No indulgence, leniency or extension of time which either party (the
"grantor") may grant or show to the other, shall in any way prejudice the
grantor or preclude the grantor from exercising any of its/his rights in
the future.
18.4 Neither party may cede or assign its/his rights and delegate its/his
obligations in terms of this Agreement without the prior written approval
of the other party.
18.5 Each party warrants and undertakes to the other that -
18.5.1 it is not acting as undisclosed agent or nominee for any person in
entering into this Agreement; and
18.5.2 it is entering into this Agreement to secure the benefits of this
Agreement for itself only and for no other person.
18.6 The headings appearing in this Agreement have been used for reference
purposes only and shall not affect its interpretation.
18.7 The Company shall bear the costs of and incidental to the negotiation,
preparation and conclusion of this Agreement.
18.8 The interpretation and enforcement of this Agreement shall at all times
be governed by law prevailing in Jersey from time to time, and the
parties hereto hereby consent and submit to the jurisdiction of the
Courts of Jersey in all matters arising from or concerning this
Agreement.
18.9 If any clause or term of this Agreement should be invalid, unenforceable
or illegal, then the remaining terms and provisions of this Agreement
shall be deemed to be severable therefrom and shall continue in full
force and effect unless such
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invalidity, unenforceability or illegality goes to the root of this
Agreement.
18.10 The Employee's rights under this Agreement are not capable of assignment
or hypothecation, nor of attachment by the Employee's creditors.
THUS DONE and SIGNED by X. X. XXXXXXX at Mauritius on this the 19 day of APRIL
2006, in the presence of the undersigned witnesses, the signatory hereby
warranting by his signature that he is duty authorized therto.
AS WITNESSES:
1. /s/ Illegible
----------------------------------
2. /s/ Illegible
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/s/ X. X. Xxxxxxx
----------------------------------------
For and on behalf of: RANDGOLD RESOURCES
LIMITED
Capacity: X. X. XXXXXXX
C.E.O
THUS DONE and SIGNED by the EMPLOYEE at Johannesburg on this the 20 day of APRIL
2006, in the presence of the undersigned witnesses, the signatory hereby
warranting by his signature that he is duly authorised hereto.
AS WITNESSES:
1. /s/ Illegible
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2. /s/ Illegible
----------------------------------
/s/ Xxxxx Xxxx Xxxxxxxx
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XXXXX XXXX XXXXXXXX
