EXHIBIT 4.22
FIFTH CONTRACT OF EMPLOYMENT
between
RANDGOLD RESOURCES LIMITED
(registration number 62686)
a Company incorporated in Jersey, Channel Islands
("the Company")
and
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
("the Employee")
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TABLE OF CONTENTS
1. INTRODUCTION...................................................... 3
2. EMPLOYMENT........................................................ 3
3. DUTIES............................................................ 4
4. FOURTH CONTRACT OF EMPLOYMENT..................................... 5
5. REMUNERATION PACKAGE.............................................. 5-6
6. SECURITY.......................................................... 6
7. EXPENSES.......................................................... 6
8. BONUS SCHEME...................................................... 7-9
9. RESTRICTED SHARES................................................. 9-10
10. HOLIDAYS.......................................................... 10
11. LIFE ASSURANCE.................................................... 10
12. APPLICATION OF PROVISIONS OF PERSONNEL MANUALS.................... 11
13. INCAPACITY........................................................ 11-12
14. TERMINATION....................................................... 12-13
15. CONFIDENTIALITY AND RESTRAINT..................................... 13-15
16. RETURN OF COMPANY PROPERTY........................................ 16
17. DOMICILIUM........................................................ 16-17
18. GENERAL........................................................... 17-19
19. ADDENDUM.......................................................... 20-21
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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
Chief Executive Officer in terms of a written contract of employment
("Fourth Contract of Employment"),
1.2 the parties have negotiated and now wish to record the terms of a further
contract of employment ("Fifth Contract of Employment").
2. EMPLOYMENT
2.1 Notwithstanding the date of signature hereof, the Employee shall be
deemed to have employed by the Company under his Fifth Contract of
Employment as from the 1st APRIL 2004 ("Commencement date"). It is noted
that the April date relates to the Company's previous financial year end.
In the current circumstances, the period of employment for the year 2004
will be 9 (nine) months, thereafter the fifth contract of employment will
run in accordance with a calendar and the Company's fiscal year.
2.2 The employment relationship of the Employee as Chief Executive Officer of
the Company is designed to de defined through a rolling three-year
contract which will be renewable annually for three-year periods by
mutual consent.
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3. DUTIES
3.1 As Chief Executive Officer 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 ensure that such
duties and powers shall not conflict with one another;
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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3.3 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 ensure that the Company obtains complete and exclusive
legal title to any such invention or improvement.
4. FOURTH CONTRACT OF EMPLOYMENT
4.1 This Fifth Contract of Employment supersedes the Fourth Contract of
Employment as from the Commencement Date.
5. REMUNERATION PACKAGE
5.1 As from the Commencement Date, the Employee's remuneration package shall
be US$600,00 per annum, which shall be reviewed annually on renewal of
the three year rolling contract period with a view to effecting
appropriate annual increases.
5.2 The composition of the Employee's remuneration package shall be the
following -
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5.2.1 a salary, which shall be equal to the difference between US$600,000 and
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 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,
5.2.3 the monthly contributions payable by the Company in respect of the
Employee to any pension, provident or retirement annuity funds nominated
by the Employee, all of which shall be for the account of the Company.
5.3 The Employee's salary shall be payable by 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 traveling, hotel and other
out-of-pocket expenses reasonably incurred by him in or about the
discharge of his duties hereunder.
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7.2 The Employee shall be reimbursed all costs and expenses incurred by him
in connection with his 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 annual membership fees of such club.
7.4 The Company shall meet the Employee's membership fees of such
professional bodies as it deems are required.
7.5 Should it become necessary during the Employee's periods of work anywhere
in the world 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.
8. BONUS SCHEME
8.1 Over and above the remuneration package and other benefits stipulated in
this Fifth Contract of Employment, the Employee shall be eligible for an
annual bonus related to share price appreciation during the bonus period.
8.2 The Employee shall be entitled to be paid a bonus in United States
Dollars in respect of the this fifth contract of employment, with regard
to the period 1st April 2004 and ending on 31 March 2005, 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 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.
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8.3 The base price shall be in the case of each of the employment 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.
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 = 300 000 (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,
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8.6 In the above formula, the factor 300 000 (Three hundred thousand)
represents a fictional shareholding of 300 000 (Three 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 n 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.
8.7 Should the Company become subject to or involved in any re-organisation,
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.
9. RESTRICTED SHARE AWARD (SPECIAL LONG TERM INCENTIVE PLAN)
It is agreed that the Board of directors may, at its discretion, grant
the Employee an award of restricted shares. In the event of such an award
being so granted, the terms and conditions of such an award shall be
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set out in an addendum to this contract of employment. The payment of the
award requires the independent verification of satisfactory achievement
(i.e. achievement at a 70% or above overall level) over the previous year
of strategic measurable "Outputs" (deliverables) agreed by the Board and
the incumbent (and as defined in the "Board approved" Company Strategic
Planning Review documents for the relevant period). The award relates to
a period considered critical by the Board for the Company's future
prospects.
10. HOLIDAYS
The Employee shall be entitled to 33 (thirty three) working days paid
holiday in each successive period of 12 (twelve) months commencing on 1
April 2004, to be taken at such times as the Board shall consider most
convenient, having regard to the requirements of the Company's business.
A maximum of 60 (sixty) days leave may be accumulated. The accumulated
leave days may be extended beyond sixty days with approval from the Board
of Directors.
11. LIFE ASSURANCE
Subject to the insurance company's requirements, life assurance cover
against death is provided for the Employee whilst the Employee is a
member of the Company's Provident Fund, as follows:
11.1 3 (three) years' pensionable salary; and
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11.2 non contributory cover equal to 2 (two) years' pensionable salary,
payable in US Dollars.
12. APPLICATION OF PROVISIONS OF PERSONNEL MANUALS
12.1 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.
12.2 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.
12.3 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.
12.4 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.
13. INCAPACITY
13.1 If the Employee at any time be incapacitated or prevented by illness,
injury, accident or any other circumstance beyond his control (the
"incapacity") from discharging his full duties hereunder for a total of
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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:
13.1.1 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
13.1.2 whether or not payment shall already have been discontinued, terminate
this Agreement forthwith or on such date as may be specified in the
notice.
13.2 Save as hereinafter provided the 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.
13.3 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 a
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.
14. TERMINATION
14.1 This Agreement may be terminated forthwith by the Company without prior
notice if the Employee shall at any time
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14.1.1 commit any serious or persistent breach of any provisions contained in
this Agreement;
14.1.2 be guilty of misconduct or willful neglect in the discharge of his
duties;
14.1.3 become insolvent or make any arrangement or composition with his
creditors;
14.2 Notwithstanding the provisions of clause 13 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.
14.3 Subject to the provisions set out in 14.1 above, either the Employee or
the Company may terminate the relationship by giving to the other party
three month's notice in writing. In such a case the party giving the
notice will be required to pay to the other the amount payable in terms
of the contract period outstanding.
14.4 Notwithstanding the aforegoing, the Employee's employment will terminate
through effluxion of time on reaching the age of 60 (sixty).
15. CONFIDENTIALITY AND RESTRAINT
15.1 It is recorded that in the performance of his duties for the Company
anywhere in the world, the Employee will:
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15.1.1 acquire knowledge of the know-how, trade secrets and other confidential
information of the Company relating to its and associated companies'
activities;
15.1.2 derive considerable benefit from the technical and/or business experience
which he will obtain from the Company and associated companies.
15.2 For one or more or all of the reasons set forth in 15.1, it is agreed
that in order to protect the proprietary interests of the Company and
associated companies the Employee shall not:
15.2.1 either during the continuance of his employment or thereafter, for a
period of 24 months, divulge or disclose or use any information or
knowledge so acquired by him relating to the matters set forth in 15.1.1,
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
15.2.2 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.
15.3 The Employee undertakes not to do any of the things set forth in 15.2,
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.
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15.4 The Employee agrees that:
15.4.1 the restraints set out above are reasonable as to their subject matter,
area and duration, to protect the Company's proprietary interests;
15.4.2 each of the restraints set out in clause 15.2, are separate and
independent restraints severable from any of the other restraints set out
therein;
15.4.3 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
15.4.4 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.
15.5 As consideration for the Employee agreeing to the restraints described in
15.2, it is recorded and agreed that the Company will forthwith pay the
Employee an amount equal to twice the gross amount of the Employee's
remuneration package stated in clause 5.1 of US$600,000 (Six hundred
thousand United States Dollars) less the amount of US$760,000 paid
previously to the Employee during his second, Third and Fourth Contracts
of Employment, which amounts to US$440,000, on the following basis:
15.5.1 should the Employee commit a material breach of the restraint
undertakings given by the Employee in Clause 15, 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$1,200,000 in order to compensate the Company for the harm suffered by
the Company.
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16. 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 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.
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 ▇▇▇▇▇▇▇▇
St Helier
Jersey, Channel Islands
17.1.2 the Employee La Motte ▇▇▇▇▇▇▇▇
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.
In case of any notice:
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17.2.1 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;
17.2.2 sent by pre-paid registered post it shall be deemed to have been
received, unless the contrary is proved, on the seventh business day
after posting;
17.2.3 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.
17.3 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.
17.4 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.
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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.
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 an 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 Jersey law prevailing 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.
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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 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 P. Lietard at Paris on this the 31 day of January 2005,
in the presence of the undersigned witnesses, the signatory hereby warranting by
his signature that he is duly authorised thereto.
AS WITNESSES :
1. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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2. /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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For and on behalf of Randgold
Resources Limited
Capacity: Chairman
THUS DONE and SIGNED by the EMPLOYEE at Paris on this the 31 day of January
2005, in the presence of the undersigned witnesses, the signatory hereby
warranting by his signature that he is duly authorised hereto.
AS WITNESSES :
1. /s/ ▇▇▇▇▇▇ I Israel
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2. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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/s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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ADDENDUM TO THE FIFTH CONTRACT OF EMPLOYMENT
OF ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
1. AWARD OF RESTRICTED STOCK
In terms of the provisions of clause 9 of the Fifth Contract of
Employment, the Company had the right to award the Employee, on such
occasions as it deems appropriate, an award of restricted stock. The
Company consented to award the employee an award of restricted stock of
150,000 shares.
2. TERMS AND CONDITIONS OF THE AWARD
2.1 The award of restricted stock to the Employee was granted with effect
from 1 April 2004.
2.2 The award is subject to the Employee achieving an 70% level in respect of
the strategic measurable outputs agreed by the Board and the Employee (as
defined in the Board approved Company strategic planning review document
for the relevant period). The Remuneration Committee of the Company will
be responsible for confirming that the Employee has achieved the
percentage level set by the Board. It is noted that the period in
question relates to the particular company financial year in question.
2.3 In terms of the award approved by the Board, the Employee will be
entitled to the shares in three tranches:
2.3.1 in respect of one-third of the shares, after 9 (nine) months have elapsed
from the date the restricted stock was awarded;
2.3.2 in respect of two-third of the shares, after 21 (twenty one) months have
elapsed from the date the restricted stock was awarded;
2.3.3 in respect of all of the shares, after 33 (thirty three) months have
elapsed from the date the restricted stock was awarded.
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THUS DONE and SIGNED by P. Lietard at Paris on this the 31 day of January 2005,
in the presence of the undersigned witnesses, the signatory hereby warranting by
his signature that he is duly authorised thereto.
AS WITNESSES :
1. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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2. /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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For and on behalf of Randgold
Resources Limited
Capacity:
THUS DONE and SIGNED by the EMPLOYEE at Paris on this the 31 day of January
2005, in the presence of the undersigned witnesses, the signatory hereby
warranting by his signature that he is duly authorised hereto.
AS WITNESSES :
1. /s/ ▇▇▇▇▇▇ I Israel
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2. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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/s/ D. ▇▇▇▇ ▇▇▇▇▇▇▇
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