UNDERWRITING AGREEMENT
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Made and entered into by and between
RANDGOLD & EXPLORATION COMPANY LIMITED
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Registration No. 1992/005642/06
represented by Xxxxxxx Xxxxxxxxxxx Buitendag
in his capacity as a Director of R&E, he being duly authorised thereto
And
THE AFRIKANDER LEASE LIMITED
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Registration No. 1921/006955/06
represented herein by Marais Steyn
in his capacity as a Director of Aflease, he being duly authorised thereto
UNDERWRITING AGREEMENT
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1. PARTIES
RANDGOLD & EXPLORATION COMPANY LIMITED
(Registration No. 1992/005642/06)
("R&E")
THE AFRIKANDER LEASE LIMITED
(Registration No. 1921/006955/06)
("Aflease")
2. INTRODUCTION
Aflease has resolved to offer to the holders of its ordinary shares, by way
of a rights offer ("the rights offer"), shares of two cents each ("shares")
at R2,50 per share ("the rights price"), in the ratio of 18.87 new ordinary
shares for every 100 shares held, such that Aflease raises R100 000 000.00
before costs relating to the agreement.
R&E has agreed to underwrite the subscription of those shares being
offered in terms of the rights offer and in respect of which written
irrevocable undertakings referred to in clauses 8.1 and 8.2 have not been
received ("the underwritten shares").
The parties wish to record their agreement in writing.
3. RIGHTS OFFER
Aflease shall, by not later than 30 June 2004 or such later date as may be
agreed between the parties, post to equity instrument holders of Aflease
registered as such at the close of business on the record date of the
rights offer, which is estimated to be 15 (fifteen) days after the posting
of the rights offer circular ("the record date"), renounceable (nil paid)
letters of allocation ("the letters of allocation") in respect of the
rights offer, accompanied by a circular and such other documents as may he
required by the Companies Xxx, 0000, as amended, and the JSE Securities
Exchange South Africa ("the JSE"). The circular and the letters of
allocation shall contain the full terms of the rights offer and shall he
agreed by the parties.
4. UNDERWRITING
4.1. R&E hereby:
4.1.1 Undertakes to subscribe or procure the subscription for all of
the underwritten shares and at the rights price referred to in
clause 2 in terms of the rights offer; and
4.1.2 Underwrites the subscription of the underwritten shares at the
rights price and undertakes that, in respect of the
underwritten shares not subscribed and paid for through
acceptances of the rights offer and/or applications for
additional shares, it will subscribe and pay and/or procure
subscriptions and payments for such underwritten shares at the
rights price.
4.2. Aflease shall notify R&E in writing by not later than 2 (two) business
days after the closing date of the rights offer of the number of
underwritten shares to be taken up by R&E pursuant to its obligations
in terms of clause 4. R&E hereby undertakes to subscribe and pay
and/or procure subscriptions and payments for such underwritten shares
at the rights price by not later than 2 (two) business days after
receiving such notification.
4.3. Aflease hereby undertakes to allot (against payment of the
subscription price) the underwritten shares referred to in clause 4.2
to R&E and/or its nominee/s and this agreement shall be deemed to be
R&E's application to subscribe for such underwritten shares.
4.4. For the purpose hereof, "business days" shall mean any day other than
a Saturday, Sunday and an official South African public holiday.
5. CONDITIONS
R&E's obligation to subscribe and pay for the underwritten shares in terms
of clause 4 is conditional upon:
5.1 The fulfilment of the provisions of clause 3 by Aflease:
5.2. Aflease's application for the listing of the letters of allocation and
the listing of the shares to be issued pursuant to the rights offer
being granted by the JSE;
5.3. The registration of the letters of allocation and accompanying
documents by the Registrar of Companies in Pretoria prior to the
posting of the rights offer circular to the holders of Aflease
ordinary shares:
5.4. The granting of all necessary approvals from the relevant regulatory
authorities including (without limitation) the JSE and the South
African Reserve Bank; and
5.5. Receiving confirmation from the SRP that it accepts that the
relationship between Randgold, Trinity and Kabusha is such that they
are not deemed to be acting in concert in relation to their interest
in Aflease;
by not later than 30 June 2004 or such later date as the parties may agree in
writing failing which this agreement shall lapse and be of no force or effect.
6. RIGHT OF WITHDRAWAL
6.1. Either of the parties shall, by notice given as hereinafter provided,
be entitled to withdraw from this agreement before 16:30 on the day of
granting of formal approval of the rights offer contemplated in this
agreement by the JSE, if:
6.1.1 Any event occurs and, without limiting the generality
aforesaid, there occurs any material change inside or outside
South Africa in:
6.1.1.1 Stock market conditions; and/or
6.1.1.2. Capital market conditions; and/or
6.1.1.3. Economic conditions; and/or
6.1.1.4. Financial conditions; and/or
6.1.1.5. Political conditions (including relations between the
Republic of South Africa ("RSA") and any other country);
and/or
6.1.2. Any war or civil commotion or serious rioting or "state of
emergency" occurs in the RSA or a neighbouring territory; or
6.1.3. Any other event occurs which, in the opinion of Aflease or R&E
makes it inadvisable or impracticable for the rights offer to
be made or seriously affects the prospects of it being
successfully concluded.
6.2. Prior to taking any action in terms of clause 6.1, the parties shall
consult together with a view to the deferment of the rights offer or
the amendment of its terms. Should any
party withdraw from this agreement in terms of this clause 6, this
agreement shall, subject to clause 7, terminate upon such withdrawal.
Should no such withdrawal take place, this agreement shall become
irrevocable at 16:30 on the day prior to the finalisation date for the
rights offer as contemplated in the JSE Listings Requirements.
7. TERMINATION
Should:
7.1 Any of the conditions referred to in clause 5 not be fulfilled by the
date specified for its fulfilment; or
7.2. this agreement be terminated by a withdrawal in terms of clause 6; or
7.3. this agreement be cancelled by mutual written consent of the parties,
then neither of the parties shall have any claim against the other.
8. COMMITMENT FEE AND UNDERWRITING COMMISSION
8.1. In consideration for R&E giving an irrevocable undertaking to
subscribe for, or to procure cash subscriptions for, the ordinary
shares to which it is entitled according to its shareholding in
Aflease in terms of the rights offer, Aflease shall pay to R&E a
commitment fee equivalent to 1,5% of the total value of the new
ordinary shares to which it is entitled calculated at the rights
price.
8.2. In consideration for other Aflease shareholders giving an irrevocable
undertaking to subscribe for, or to procure cash subscriptions for the
ordinary shares to which they are entitled according to their
shareholding in Aflease in terms of the rights offer prior to the last
practicable date before the finalisation of the rights offer circular
to Aflease shareholders. Aflease shall pay a commitment fee equivalent
to 1,5% of the total value of the new ordinary shares to which they
are entitled calculated at the rights price.
8.3. In consideration for R&E carrying out its underwriting obligations in
terms of clause 4.2, Aflease shall pay to R&E an underwriting
commission equivalent to 2,0% of the total value of the new ordinary
shares for which irrevocable undertakings have not been received as
contemplated in clause 8.2, calculated at the rights price.
8.4. The commitment fee referred to in clauses 8.1 will become due and
payable to R&E within 2 (two) business days of R&E fulfilling its
undertaking in terms of the rights offer.
8.5 The commitment fee referred to in clauses 8.2 will become due and
payable to the other Aflease shareholders within 2 (two) business days
of the Aflease shareholder concerned fulfilling its undertaking in
terms of the rights offer.
8.6. The underwriting commission referred to in clause 8.3 will become due
and payable to R&E:
8.6.1. Within 2 (two) business days of R&E fulfilling its obligations
in terms of clause 4;
or
8.6.2. Forthwith upon it being determined that the rights offer has
been fully subscribed.
9. DISBURSEMENTS
Aflease shall pay all disbursements, which may be incurred by R&E in
connection with this agreement and the rights offer including, without
limitation, the costs of the negotiation, preparation and execution of this
agreement.
10. WARRANTY
For the purposes of all documentation relating directly or indirectly to
the rights offer, each of Aflease and R&E warrants in favour of the other
that any information provided or statement made by it for the purpose of
the rights offer, shall contain no material inaccuracy or material
omission. It is recorded that any information provided or statement made by
Aflease or R&E shall be relied upon and acted upon by R&E and/or Aflease,
as the case may be.
11. DOMICILIUM
11.1 The parties hereto choose domicilia citandi et executandi for
all purposes of and in connection with this agreement as follows:
R&E: 0xx Xxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx
2001
Aflease: Block A
00 Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxx
0000
11.2. Either party hereto shall be entitled to change its domicilium from
time to time, provided that any new domicilium selected by it shall
be an address other than a box number in the RSA, and any such
change shall only be effective upon receipt of notice in writing by
the other party of such change.
11.3. All notices, demands, communications or payments intended for
either party shall be made or given at such party's domicilium for
the time being.
11.4. A notice sent by one party to another party shall be deemed to be
received:
11.4.1. On the same day, if delivered by hand; or
11.4.2. On the same day of transmission if sent by telex or
telefax and if sent by telefax with receipt received
confirming completion of transmission; or
11.4.3. On the fourteenth day after posting, if sent by prepaid
registered mail.
11.5. Notwithstanding anything to the contrary herein contained a written
notice or communication actually received by a party shall be an
adequate written notice or communication to it notwithstanding that
it was not sent to or delivered at its chosen domicilium citandi et
executandi.
12. WARRANTY BY R&E
R&E warrants in favour of Aflease that:
12.1 it has the power to enter into this agreement and has taken all
necessary action to authorise the entry into and performance of
this agreement and the transactions contemplated herein; and
12.2 it is in the position to meet its underwriting commitments in terms
of this agreement and in such manner as may be required by the JSE.
12.3 it will provide a bank guarantee acceptable to the JSE confirming
its ability to underwrite the rights offer on or before 21 May
2004.
13. GENERAL
13.1 This document constitutes the sole record of the agreement between
the parties in regard to the subject matter thereof.
13.2 No party shall be bound by any express or implied term,
representation, warranty, promise or the like, not recorded herein.
13.3 No addition to, variation or consensual cancellation of this
agreement shall be of any force or effect unless in writing and
signed by or on behalf of both of the parties.
13.4 No indulgence which either of the parties ("the grantor") may
grant to the other of them ("the grantee") shall constitute a
waiver of any of the rights of the grantor, who shall not thereby
be precluded from exercising any rights against the grantee which
might have arisen in the past or which might arise in the future.
13.5 The parties undertake at all times to do all such things, to
perform all such acts and to take all such steps and to procure
the doing of all such things, the performance of all such actions
and the taking of all such steps as may be open to them and
necessary for or incidental to the putting into effect or
maintenance of the terms, conditions and import of this agreement.
13.6 Neither party shall be entitled to cede its rights or delegate its
obligations in terms of this agreement without the prior written
consent of the other.
Thus done and signed at Johannesburg on this the 13TH day of May 2004.
For and on behalf of
RANDGOLD & EXPLORATION COMPANY Limited
By /s/ R.B. Kebble
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who warrants his authority hereto
Thus done and signed at Johannesburg on this the 13th day of May 2004.
For and on behalf of
THE AFRIKANDER LEASE LIMITED
by
/s/ M.Steyn
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who warrants his authority hereto
