EXHIBIT C
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EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
between
ANGLOGOLD XXXXXXX LIMITED
and
ANGLO SOUTH AFRICA CAPITAL (PROPRIETARY) LIMITED
Dated as of March 23, 2006
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 23, 2006 (the
"Agreement"), between ANGLOGOLD XXXXXXX LIMITED, a company incorporated in the
Republic of South Africa (the "Company"), and ANGLO SOUTH AFRICA CAPITAL
(PROPRIETARY) LIMITED, a company incorporated in the Republic of South Africa
(together with its permitted assignees, "Selling Shareholder").
WHEREAS, Selling Shareholder may, in its sole and absolute discretion,
reduce its percentage ownership of the ordinary shares of the Company (the
"Shares") by selling all or, from time to time, a portion of its Shares (all
such Shares held by Selling Shareholder as of the date of this Agreement and any
securities into or for which such Shares have been converted, and any security
issued with respect thereto upon any share dividend, split or similar event,
until, in the case of any such security, it has been disposed of by Selling
Shareholder or Selling Shareholder is no longer an "affiliate" of the Company
within the meaning of Rule 144 of the United States Securities Act of 1933, as
amended (the "Securities Act"), the "Registrable Shares");
WHEREAS, the Company may wish to conduct one or more primary offerings
of Shares or other securities ("Company Registrable Securities"); and
WHEREAS, Selling Shareholder has requested the Company to take certain
steps to facilitate the sale to the public of some or all of the Registrable
Shares and the Company believes that it is consistent with the Company's
commercial objectives to do so.
NOW, THEREFORE, in consideration of the premises, representations and
agreements contained herein, the parties agree as follows:
1. Registration Statements.
(a) Filings.
(i) The Company shall use all reasonable efforts to file with the
United States Securities and Exchange Commission (the "Commission"), no later
than March 27, 2006, an automatic shelf registration statement on Form F-3
within the meaning of Rule 405 of the Securities Act (the "Initial
Registration") allowing one or more offerings to be made on a delayed basis of
Company Registrable Securities and Registrable Shares.
(ii) The number of Registrable Shares and Company Registrable
Securities to be offered in a combined offering pursuant to the Initial
Registration shall be agreed at the time of such Initial Registration; provided,
however, that in the Company's sole discretion the aggregate proceeds from the
offering of Company Registrable Securities shall be any amount up to and
including US$500 million, net of all underwriters' commissions and fees; and
provided further that if the Company determines in its good faith judgment that
the aggregate size of the combined offering is too large to be marketed at a
discount to the market price of the Shares
acceptable to the Company in its sole discretion, the offering of Registrable
Shares as part of the Initial Registration shall be reduced as necessary or
abandoned.
(iii) Selling Shareholder shall, and shall cause any other
Affiliate (as defined in the Securities Act) of Selling Shareholder to which
Selling Shareholder may transfer any or all of the Registrable Shares to, be
present, in person or by proxy, at any meeting of the Company's shareholders
(including any adjournment or postponement of such meeting) at which any
resolution substantially in the form set out in Annex A is to be considered to
approve and implement any offering of Company Registrable Securities for cash,
the aggregate proceeds from which offerings (taking into account all prior
offerings of Company Registrable Securities for cash after the date of this
Agreement) are US$500 million net of all underwriters' commissions and fees, and
shall vote (or cause to be voted) all of the Registrable Shares in favor of any
such resolution.
(iv) Subject to clause (e) of Section 1, the Company shall use all
reasonable efforts to file, within thirty (30) days after receipt by the Company
of a demand from Selling Shareholder (any such demand, a "Demand"), additional
non-continuous registration statements on Form F-3 (each such registration
statement, a "Demand Registration") providing for offerings to be made on a
non-delayed basis of the Registrable Shares, provided, however, that:
(A) Subject to clause (e)(v)(A) of this Section 1, from and after
December 31, 2007 Selling Shareholder shall not make more than two (2) Demands
in any calendar year;
(B) No Demand may be made following any Demand Registration until
the completion or abandonment of any offering pursuant to such Demand
Registration;
(C) Any Demand shall be for registration of a sufficient number of
Registrable Shares as to have a minimum aggregate value of US$250 million based
on the closing price of Shares on the date of such Demand;
(D) No Demand Registration shall be filed unless (I) an insurance
policy, covering the liability of the Company's directors and officers in
connection with such Demand Registration, is in effect on terms no less
favorable than the least favorable policy covering the liability of the
Company's directors and officers in connection with the Initial Registration or
in connection with any subsequent primary offering of the Shares for cash by the
Company, and (II) the premiums payable on such policy for Demand Registration
described in clause (I) hereof are acceptable to Selling Shareholder and Selling
Shareholder agrees to pay when due, pursuant to Section 3 of this Agreement, the
portion of the premiums attributable to coverage of the potential liability of
the Company's directors and officers in connection with such Demand
Registration; and
(E) At its sole discretion the Company may satisfy its obligation
to file a Demand Registration through an automatic shelf registration statement,
including, without limitation, the automatic shelf registration filed pursuant
to the Initial Registration (in which case such automatic shelf registration
statement shall be known as a "Demand Registration"),
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provided that nothing in this clause shall require the Company to maintain in
effect such Demand Registration beyond the periods set forth in clause (b)(ii)
of this Section 1.
(b) Effectiveness and Ongoing Reporting. The Company shall:
(i) use all reasonable efforts to cause the Initial Registration
and each Demand Registration (collectively, the "Registrations") to become
effective as soon as practicable after filing;
(ii) subject to clause (e) of this Section 1, use all reasonable
efforts to maintain in effect (A) the Initial Registration until the earlier of
(I) 180 days after the first date of its effectiveness and (II) the date on
which all Registrable Shares registered thereunder have been sold by Selling
Shareholder and (B) any Demand Registration until the earlier of (I) 90 days
after the first date of its effectiveness and (II) the date on which all
Registrable Shares registered thereunder have been sold by Selling Shareholder;
provided, however, that the time periods referred to in subclauses (A) and (B)
are subject to extension by each day that a Suspension Notice delivered in
accordance with clause (e) of this Section 1 after the filing of the Initial
Registration or any Demand Registration, as the case may be, is in effect;
(iii) use all reasonable efforts to supplement and amend the
Initial Registration and any Demand Registration as required by the instructions
applicable to such registration form or by the Securities Act, and to furnish to
Selling Shareholder copies of any supplement or amendment to each Registration
and, following the filing of any such Registration until the expiration of the
period for which such Registration must be kept effective pursuant to clause
(b)(ii) of this Section 1, of any document being incorporated by reference in
such Registration, in each case no later than two Business Days prior to such
supplement, amendment or document being filed with or furnished to the
Commission; for all purposes of this Agreement, "Business Day" shall mean a day
on which banks are generally open for business in Xxxxxx, Xxxxxxx xxx
Xxxxxxxxxxxx, Xxxxx Xxxxxx; for the avoidance of doubt, the supplements,
amendments and documents referred to in this clause (iii) of this Section 1(b)
do not include any JSE Limited or New York Stock Exchange filings or, except
after the filing of a Registration until the expiration of the period for which
such Registration must be kept effective pursuant to clause (b)(ii) of this
section 1, and as incorporated by reference therein, the Exchange Act filings
referred to in clause (b)(iv) of this Section 1;
(iv) use all reasonable efforts to make all filings and
submissions required to be made under the United States Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and by applicable listing rules of the
JSE Limited and the New York Stock Exchange in a timely manner.
(c) Selling Shareholder Undertakings.
(i) Selling Shareholder shall provide to the Company such
information regarding Selling Shareholder as is reasonably required to file,
amend or maintain the effectiveness of any Registration.
(ii) Prior to any offering of Registrable Shares pursuant to a
Registration, Selling Shareholder shall inform the Company of the principal
terms of such
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offering, including without limitation the size, pricing and timing thereof and
the identity of the underwriters.
(d) Registration Procedures.
(i) If at any time a Registration ceases to be effective prior to
the end of the applicable period set forth in clause (b)(ii) of this Section 1,
then the Company shall use all reasonable efforts to cause to become effective
as promptly as practicable the same Registration or a new registration statement
permitting the same type of offerings as were permitted under such Registration.
(ii) If, after a Registration has become effective, any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or authority is threatened of which the Company becomes
aware, then the Company shall use all reasonable efforts to prevent the issuance
of any order suspending the effectiveness of such Registration or of any order
preventing or suspending the use of any preliminary prospectus contained in such
Registration and, if any such order is issued, to obtain the withdrawal of any
such order as soon as reasonably practicable.
(e) Suspension Notices.
(i) The Company may furnish to Selling Shareholder a certificate
signed by its chairman of the board of directors, chief executive or finance
director (a "Suspension Notice"), at any time in the case of clause (A) and at
any time prior to the filing of any Demand Registration in the case of clause
(B) or (C), stating that:
(A) in his or her good faith judgment, following consultation
with the Company's external United States securities counsel, the filing of an
amendment or supplement to a Registration or a document incorporated by
reference therein is necessary in order to ensure that such Registration
conforms in all material respects to the requirements of the Securities Act and
does 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;
(B) in his or her good faith judgment, a Demand Registration
would adversely affect a pending or contemplated offering or sale of any class
of securities for cash by the Company; provided, however, that the Company shall
not furnish a certificate pursuant to this clause (B) more than twice between
the date of this Agreement and the second anniversary thereof; or
(C) as evidenced by the minutes of any meeting thereof (which,
for the avoidance of doubt, are not required to be furnished to Selling
Shareholder), the Investment Committee of the Board of Directors of the Company
has determined that a Demand Registration would materially impede, delay or
otherwise interfere with a pending or contemplated acquisition, corporate
reorganization or other similar transaction involving the Company, including an
issuance of any class of securities by the Company in exchange for securities or
assets of another company in connection with a merger or acquisition.
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(ii) Except to the extent required by law, Selling Shareholder
shall keep confidential and not disclose the fact that it has received a
Suspension Notice; the Company agrees that any such Suspension Notice shall
provide only that a suspension is in effect and shall not include any material
non-public information regarding the cause for the issuance of such Suspension
Notice; provided, however, that if the reason for any such Suspension Notice is
the operation of any "blackout period" imposed as a consequence of applicable
United States federal securities laws or applicable accounting standards, such
Suspension Notice shall describe the reason for such blackout period and, if
known, the expected duration thereof. Upon receipt of a Suspension Notice,
Selling Shareholder shall immediately cease selling Registrable Shares pursuant
to the applicable Registration and shall discontinue use of any prospectus
contained in such Registration until it has received notice from the Company
pursuant to clause (e)(viii) of this Section 1 that the Suspension Notice is no
longer in effect.
(iii) If at any time prior to the filing of a Registration (but
not any subsequent amendment thereof), the Company shall furnish a Suspension
Notice to Selling Shareholder pursuant to clause (e)(i)(A) of this Section 1,
the Company may postpone the filing (but not the preparation) of such
Registration for not more than thirty (30) days or such longer period as may be
imposed by applicable US federal securities laws. The Company shall make all
reasonable efforts to resolve as quickly as possible any US federal securities
law matter giving rise to such longer period; provided, however, that this
undertaking does not require the Company to make any disclosure that it deems
inappropriate or misleading in its judgment or its directors to act in a manner
they deem inconsistent with their fiduciary duties.
(iv) If at any time prior to the filing of a Demand Registration
(but not any subsequent amendment thereof), the Company shall furnish a
Suspension Notice to Selling Shareholder pursuant to clause (e)(i)(B) of this
Section 1, the Company may postpone the filing of such Demand Registration for
not more than 90 days after the first date of effectiveness of a registration
statement filed by the Company for the offer or sale that is the subject of the
Suspension Notice provided that the Company files such registration statement no
later than thirty (30) days after the date of such Suspension Notice.
(v) If at any time prior to the filing of a Demand Registration
(but not any subsequent amendment thereof), the Company shall furnish a
Suspension Notice to Selling Shareholder pursuant to clause (e)(i)(C) of this
Section 1, the Company may postpone the filing of such Demand Registration for
sixty (60) days after the date of such Suspension Notice. The Company may
furnish to Selling Shareholder a further Suspension Notice postponing the filing
of such Demand Registration for an additional sixty (60) days if, during the
first sixty (60) day period, the Investment Committee of the Company's Board of
Directors, as evidenced by minutes of a meeting thereof (which, for the
avoidance of doubt, are not required to be furnished to Selling Shareholder),
determines such additional time is necessary to advance the acquisition,
corporate reorganization or other transaction that was the subject of the first
Suspension Notice. If the Company has entered into a definitive agreement
related to the acquisition, corporate reorganization or other transaction that
is the subject of the Suspension Notice within such sixty (60) day period or one
hundred twenty (120) day period, as the case may be, the Company may postpone
the filing of such Demand Registration for such longer period as may be required
to satisfy customary closing conditions in connection therewith; provided,
however, that:
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(A) any postponement in excess of one hundred twenty (120) days
and commencing on or before the date set forth in clause (a)(iv)(A) of this
Section 1 shall extend such date for purposes of such clause by the length of
such postponement; and
(B) any postponement commencing after the date set forth in clause
(a)(iv)(A) of this Section 1 shall entitle Selling Shareholder to one (1)
additional Demand, which may be made only in the first calendar year commencing
after the termination of such postponement, for each six (6) months beyond the
date of the initial Suspension Notice that the postponement is extended.
(vi) The Company shall act in good faith and use all reasonable
efforts to advance to completion as expeditiously as possible any offering or
sale of securities for cash or any acquisition, corporate reorganization or
similar transaction that is the subject of a Suspension Notice.
(vii) For so long as a Registration is effective, the Company
shall deliver to Selling Shareholder a Suspension Notice immediately upon
discovery by the Company of any condition of the type specified in clause
(e)(i)(A) of this Section 1. The Company shall use all reasonable efforts to
supplement and amend, if necessary, as promptly as practicable such Registration
such that such Registration, as amended or supplemented, conforms in all
material respects to the requirements of the Securities Act and does 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;
provided, however, that this undertaking does not require the Company to make
any disclosure that it deems inappropriate or misleading in its judgment or its
directors to act in a manner they deem inconsistent with their fiduciary duties.
(viii) The Company shall notify Selling Shareholder promptly in
writing once (A) a Registration has been supplemented or amended, including,
without limitation, by the filing of a document incorporated therein by
reference, in a manner that has corrected the condition that was the subject of
a Suspension Notice or (B) a Suspension Notice is otherwise no longer in effect
due to the cessation of the condition that was the subject of such Suspension
Notice.
(ix) Notwithstanding anything to the contrary in this Agreement,
no Demand Registration shall be filed upon publication of any financial
statements prepared by the Company in accordance with International Financial
Reporting Standards until the Company has filed with the Commission financial
statements as of and for the corresponding period in accordance with US
Generally Accepted Accounting Principles.
(f) Securities Exchangeable into or Otherwise Linked to
Registrable Shares. Upon the request of Selling Shareholder, the Company shall
include in each Registration, by amendment if necessary, such additional
information as shall be required in order for Selling Shareholder or a third
party to conduct one or more offerings of securities exchangeable on a mandatory
basis for Registrable Shares or any other offering of equity-linked securities
linked to the Shares that does not constitute a continuous offering of Shares
under the Securities Act.
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2. Lockups.
(a) The Company shall not offer, sell, allot or issue any Shares
or other securities that are convertible into or exchangeable for, or that
represent the right to receive, Shares, whether pursuant to registration under
the Securities Act or otherwise, for a 90-day period immediately following the
first closing of an offering pursuant to a Demand Registration or such shorter
period as may be imposed by underwriters in such Demand Registration; provided,
however, that at any time prior to the expiration of such ninety (90)-day period
the Company may offer, sell, allot or issue any such Shares or other securities
(i) in consideration for shares or assets of a company as part of a merger,
acquisition, corporate reorganization or similar transaction, (ii) as required
pursuant to the terms governing the 2.375 per cent guaranteed convertible bonds
due 2009, issued by AngloGold Holdings plc and guaranteed by the Company, and
(iii) in connection with any option, employee bonus, profit sharing, pension,
retirement, incentive, savings or similar plan, agreement or award.
(b) Other than as part of the Initial Registration, Selling
Shareholder shall not offer, sell or allot any Shares or other securities that
are convertible into or exchangeable for, or that represent the right to
receive, Shares, whether pursuant to a Demand Registration or otherwise, for a
ninety (90)-day period immediately following the first closing of an offering
pursuant to a registration statement filed by the Company under the Securities
Act (other than on Form S-8) for the sale of any Shares or other securities that
are convertible into or exchangeable for, or that represent the right to
receive, Shares, or such shorter period as may be imposed by underwriters in
such registration.
3. Registration Expenses.
(a) For all purposes of this Agreement, "Registration Expenses"
are all reasonable and documented "out-of-pocket" expenses of the Company
arising from the preparation of this Agreement, the preparation and initial
filing of each Registration and all amendments or commitments thereto required
for effectiveness, and the performance of all other acts in furtherance of the
transactions contemplated hereby, including without limitation (a) all
Commission and any National Association of Securities Dealers registration and
filing fees and expenses, (b) all fees and expenses in connection with the
qualification of the Registrable Shares and Company Registrable Securities for
offering and sale under the state securities and blue sky laws and, in the case
of an underwritten offering, determination of their eligibility for investment
under the laws of the jurisdictions that the underwriters may designate,
including, without limitation, fees and disbursements if any of counsel for the
underwriters in connection with such registrations or qualifications and
determination, (c) all expenses relating to the preparation, printing,
distribution and reproduction of such Registration, the prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the certificates representing the Shares or other
securities to be sold and all other documents relating hereto, including the
expense of printing or producing any underwriting agreement(s) and agreement(s)
among underwriters and any "blue sky" or legal investment memoranda, any selling
agreements and all other documents to be used in connection with the offering,
sale or delivery of Shares or other securities, (d) messenger, telephone and
delivery expenses of the Company and out-of-pocket travel expenses incurred by
or for Company personnel as part of any "road show" made in connection with the
offering of securities registered thereby, (e) fees and
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expenses of any escrow agent, custodian, transfer agent or registrar, (f) fees,
disbursements and expenses of counsel and independent certified public
accountants of the Company and any other persons retained by the Company,
including special experts, in connection with such registration, (g) Securities
Act liability insurance, if the Company or its directors or officers desire such
insurance, (h) fees and expenses of financial advisors retained by the Company
in connection with the Initial Registration and (i) all fees and expenses
(including without limitation listing and qualification fees) in connection with
the initial listing or admission to quotation of the Registrable Shares and
Company Registrable Securities. Registration expenses shall not include (x) fees
and expenses associated with filings required by the Exchange Act that are
incorporated by reference in any Registration (including without limitation any
expense resulting from the Company's response to comments by the Commission
specifically on such Exchange Act filings), (y) time spent by the Company's
directors, officers and employees on the transactions contemplated by this
Agreement or (z) fees and expenses of financial advisors retained by the Company
in connection with any Registration other than the Initial Registration.
(b) In the case of the Initial Registration, each of Selling
Shareholder and the Company shall pay those Registration Expenses allocable to
the registration or offering of Registrable Shares and Company Registrable
Securities, respectively, and any Registration Expenses not so allocable shall
be borne by Selling Shareholder and the Company in proportion to the number of
Registrable Shares and Company Registrable Securities sold pursuant thereto. In
the case of any Demand Registration, Selling Shareholder shall pay all
Registration Expenses attributable to such Demand Registration. The Company
shall reimburse Selling Shareholder an amount (net of reasonable costs and any
applicable taxes or other charges) equal to any payment received by the Company
from another party of Registration Expenses that otherwise would have been
allocable to Selling Shareholder pursuant to this clause (b) (other than a
reimbursement by an underwriter of Registration Expenses of the Initial
Registration).
4. Underwriting Procedures.
In connection with any underwritten offering by Selling
Shareholder hereunder, the Company shall:
(a) enter into customary agreements (including without limitation
underwriting agreements in customary form) if requested by Selling Shareholder.
Such underwriting agreements will contain such representations and warranties by
the Company and such other terms and provisions as are customarily contained in
underwriting agreements generally with respect to secondary distributions,
including without limitation customary indemnification and contribution
provisions in favor of the underwriters and customary agreements as to the
provision of opinions of counsel and accountants' letters. Selling Shareholder
shall be party to any such underwriting agreement and such agreement will
contain such representations and warranties by Selling Shareholder and such
other terms and provisions as are customarily contained in underwriting
agreements generally with respect to secondary distributions, including without
limitation customary representations, warranties or agreements regarding Selling
Shareholder's title to Registrable Shares and indemnification and contribution
provisions with respect to any written information provided by Selling
Shareholder to the Company expressly for inclusion in the related Registration.
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(b) subject to reasonable advance notice and within normal
business hours, make available for inspection by Selling Shareholder, any
underwriter participating in any disposition pursuant to a Registration and any
attorney, accountant or other agent retained by Selling Shareholder or any such
underwriter, in each case who has entered into a confidentiality agreement with
the Company reasonably satisfactory to the Company, all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries as may reasonably be requested by them in connection with such
Registration, and cause the Company's officers, directors and employees, and
request the Company's certified public accountants, to supply all information
reasonably requested by Selling Shareholder or any such underwriter, attorney,
accountant or agent in connection with such Registration;
(c) furnish to Selling Shareholder and the underwriters, if any,
such number of copies of the applicable Registration statement, any amendments
thereto and the prospectus included therein, including without limitation a
preliminary prospectus in conformity with the requirements of the Securities
Act;
(d) file and use all reasonable efforts to register or qualify the
securities covered by such registration statement under such other securities or
state securities or "blue sky" laws of the United States, and to make any
filings required to establish or claim an exemption therefrom, as Selling
Shareholder shall request, except that the Company shall not for any such
purpose be required to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified;
(e) if reasonably requested by the managing underwriter or
underwriters (if any), Selling Shareholder or Selling Shareholder's counsel,
incorporate as soon as practicable into a prospectus supplement or
post-effective amendment such information as such person requests to be included
therein and as is customarily included therein, including without limitation,
with respect to the Registrable Shares being sold by Selling Shareholder to such
underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and any other terms of an underwritten offering of
the Registrable Shares to be sold as part of such Registration, and make all
required filings of such prospectus supplement or post-effective amendment as
soon as practicable;
(f) participate, to the extent reasonably requested by the
managing underwriter for the offering or Selling Shareholder, in customary
efforts to sell the Registrable Shares being offered, and cause such steps to be
taken as to ensure such good faith participation of senior management officers
of the Company in "road shows" as is customary;
(g) cooperate with Selling Shareholder and each underwriter
participating in the disposition of Registrable Shares and their respective
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc., including without limitation, if
appropriate, the pre-filing of a prospectus as part of a Registration in advance
of an underwritten offering;
(h) cause the Registrable Shares covered by a Registration
statement to be listed on the national securities exchange or quoted on the
quotation system on which the Shares are then listed or quoted;
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(i) provide a transfer agent and registrar for all Registrable
Shares registered thereunder and a CUSIP number for all such Registrable Shares,
in each case no later than the effective date of such Registration; and
(j) otherwise cooperate with the underwriter(s), the Commission
and other regulatory agencies and take all actions and execute and deliver or
cause to be executed and delivered all documents reasonably necessary to effect
the offering and sale of the Registrable Shares as contemplated hereunder.
5. Representations and Warranties by the Company.
The Company represents and warrants to, and agrees that:
(a) the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated will
not (i) conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary is a party or by which the Company or any subsidiary is bound or to
which any of the property or assets of the Company or any subsidiary is subject,
(ii) result in any violation of the provisions of the Memorandum and Articles of
Association or other constitutive documents of the Company or any of its
subsidiaries as currently in effect, or (iii) result in any violation of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any subsidiary or any of their
properties except, with respect to clauses (i) and (iii), for any conflict,
breach, default or violation that would not prevent or materially delay
consummation of the transactions contemplated by this Agreement;
(b) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the consummation by the Company of the transactions contemplated by this
Agreement, except (i) such as have been obtained or made, (ii) such as may be
required by the Securities Act or by the securities or "blue sky" laws of the
various states of the United States in which the Registrable Shares or Company
Registrable Securities may be offered or sold, (iii) such as may be required by
the securities laws of any jurisdiction outside the United States in which the
Registrable Shares or Company Registrable Securities may be offered or sold,
(iv) such as may be required by the rules and regulations of stock exchanges on
which the Registrable Shares or Company Registrable Securities are listed or
traded or (v) where the failure to obtain any such consent, approval,
authorization, order, registration or qualification would not prevent or
materially delay consummation of the transactions contemplated by this
Agreement; and
(c) as of the date of this Agreement the Company has not granted
registration rights with respect to any Shares, Company Registrable Securities
or any other securities that would be exercisable prior to the termination of
this Agreement; and other than as related to any option, employee bonus, profit
sharing, pension, retirement, incentive, savings or similar plan, agreement or
award, as of the date of this Agreement the Company is not obligated
contractually or legally to maintain a shelf registration for primary or
secondary offerings of Shares.
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6. Indemnification.
If the Company files a Registration with the Commission pursuant
to this Agreement for an underwritten offering that Selling Shareholder conducts
in connection with the Registrable Shares:
(a) The Company agrees to indemnify, to the fullest extent
permitted by applicable law (including, without limitation, the laws of the
Republic of South Africa), Selling Shareholder, its officers, directors, and
each person who controls Selling Shareholder (within the meaning of the
Securities Act) against all losses, claims, actions, damages, liabilities and
expenses caused by any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, and to pay to Selling Shareholder, its
officers, directors, and each person who controls Selling Shareholder (within
the meaning of the Securities Act), as incurred, any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action (but not in excess
of expenses incurred in respect of one counsel for all of them unless there is
an actual conflict of interest between any indemnified parties, in which case
indemnified parties may be represented by separate counsel), except insofar as
(x) the same are caused by or contained in any information furnished in writing
to the Company by Selling Shareholder expressly for use therein, (y) the same
are caused by Selling Shareholder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished Selling Shareholder with a sufficient number of
copies of the same, or (z) the same are caused by Selling Shareholder's failure
to comply with clause (e) of Section 1.
(b) Selling Shareholder agrees to indemnify, to the fullest extent
permitted by applicable law (including, without limitation, the laws of the
Republic of South Africa), the Company, its officers, directors, and each person
who controls the Company (within the meaning of the Securities Act) against all
losses, claims, actions, damages, liabilities and expenses caused by (i) any
untrue or alleged untrue statement of material fact contained in any
registration statement filed pursuant to this Agreement, any prospectus or
preliminary prospectus or any amendment thereof or supplement thereto contained
in such registration statement or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information furnished in writing by Selling Shareholder to the
Company expressly for inclusion in such registration statement, (ii) Selling
Shareholder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished Selling Shareholder with a sufficient number of copies of the same, or
(iii) Selling Shareholder's failure to comply with clause (e) of Section 1, and,
in each case, to pay to the Company, its officers, directors, and each person
who controls the Company (within the meaning of the Securities Act), as
incurred, any legal and any other expenses reasonably incurred in connection
with investigating, preparing or defending any such claim, loss, damage,
liability or action (but not in excess of expenses incurred in respect of one
counsel for all of them unless there is an actual conflict of interest between
any indemnified parties, in which case indemnified parties may be represented by
separate counsel).
11
(c) Any person entitled to indemnification hereunder shall
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
prompt notice shall not impair any person's right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between the indemnified person and indemnifying party may exist with respect to
such claim, permit the indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified person. If such defense
is assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified person without its consent (but such consent
shall not be unreasonably withheld).
7. Confidentiality.
The Company and Selling Shareholder shall, and shall use
reasonable efforts to cause each of their respective Affiliates (as defined in
the Securities Act), principals, directors, officers, employees, agents,
attorneys or consultants (each an "Authorized Representative") to, keep strictly
confidential all, and may not disclose any, information regarding the existence
of this Agreement and the transactions contemplated hereby ("Confidential
Information") to anyone other than Authorized Representatives who need to know
such information for purposes of discharging their duties except (i) to the
extent any such information is or becomes publicly available (other than by
reason of a breach of this provision by the disclosing party or any of its
Authorized Representatives), (ii) if the disclosure is required by law,
regulation, administrative order or judicial decree or the rules of any national
securities exchange on which the Shares are listed, including without limitation
the Exchange Act, (iii) the Confidential Information otherwise is or becomes
legally known to a disclosing party other than through disclosure by the other
party or any of its Authorized Representatives, or (iv) announcements mutually
agreed by the Company and Selling Shareholder.
8. Termination.
This Agreement may be terminated at any time by written consent
by each of the parties hereto. This Agreement shall terminate automatically on
the first date on which Selling Shareholder is no longer an "affiliate" within
the meaning of Rule 144 under the Securities Act.
9. Miscellaneous.
(a) Specific Performance. The parties hereto acknowledge that
there would be no determinable amount of damages and no adequate remedy at law
if either party breached any of the provisions or obligations of the Agreement
and that the other party may be irreparably harmed. Each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of the other party
under this Agreement in any court or arbitral tribunal having jurisdiction.
(b) Notices. All notices, requests, claims or demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, when delivered personally or by courier,
three days after being dispatched by express courier, or when received by
facsimile transmission if promptly confirmed by the
12
foregoing means to the following address or, in the case of any other
Shareholder, the address set forth on the signature pages hereto:
to Selling Shareholder at:
00 Xxxx Xxxxxx
Xxxxxxxxxxxx, 0000
Xxxxx Xxxxxx
Facsimile: x00 00 000 0000
Attention: Company Secretary
with a copy to Anglo American plc at:
00 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Facsimile: x00 00 0000 0000
Attention: Company Secretary
with a copy to Xxxxxxxx & Xxxxxxxx LLP at:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
XXX
Facsimile: x0 000 000-0000
Attention: Xxxxxxxxxxx X. Xxxx
to the Company at:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, 0000
(P.O. Xxx 00000, Xxxxxxxxxxxx, 0000)
Xxxxx Xxxxxx
Facsimile:
x00 00 000 0000
Attention: Xxxxxxxxxxx Xxxx
with a copy to Shearman & Sterling LLP at:
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Facsimile: x00 (00) 0000 0000
Attention: Xxxxxxx X.X. Xxxxx
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(d) Arbitration. The parties irrevocably agree that any dispute
arising out of or relating to this Agreement shall be settled by arbitration
between the parties in accordance with the arbitration rules of the
International Chamber of Commerce ("ICC") as in effect at the
13
time of submission of the dispute to such arbitration. Such arbitration shall be
the exclusive method for resolution of the dispute, and the determination of the
arbitrators shall be final and binding. The number of arbitrators shall be
three. The place of arbitration shall be New York, New York and the arbitration
shall be conducted in the English language. The arbitrators shall decide the
merits of such dispute in accordance with the laws of the State of New York. Any
arbitral award rendered pursuant to this Agreement may be enforced in any court
of competent jurisdiction. Each party shall bear its own fees and expenses
related to the dispute and resolution thereof, except that the arbitrators shall
determine how to allocate the fees and expenses of the arbitrators between the
Company and the Selling Shareholder.
(e) Assignment. Following prior notice of such assignment to the
Company, Selling Shareholder may assign its rights or obligations hereunder in
whole or in part to any of its Affiliates (as defined in the Securities Act) to
whom it transfers, sells or otherwise assigns any or all of the Registrable
Shares. Each such assignee shall agree to become a party to this Agreement and
be bound by the terms and provisions hereof.
(f) Interpretation. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement. References in this Agreement to
sections shall be to sections of this Agreement.
(g) Entire Agreement; Amendments. This Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only by a written instrument duly
executed by the Company and Selling Shareholder.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first written above.
ANGLOGOLD XXXXXXX LIMITED
By: /s/ Xxxxxx Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxxxxxx Xxxxxxxxxxxxxxx
-----------------------------------
Name: Xxxxxxxxxx Xxxxxxxxxxxxxxx
Title: Chief Financial Officer
Signature Pages to Registration Rights Agreement
ANGLO SOUTH AFRICA CAPITAL
(PROPRIETARY) LIMITED
By: /s/ D.J. Alison
-----------------------------------
Name: D.J. Alison
Title: Company Secretary
By: /s/ P.R.N. Xxxxxx
-----------------------------------
Name: P.R.N. Xxxxxx
Title: Director
Signature Pages to Registration Rights Agreement
ANNEX A
ORDINARY RESOLUTION NO. 1
-------------------------
Resolved as an ordinary resolution and as a specific approval to issue
securities for cash in terms of the Listings Requirements of the JSE Limited,
that:
o the allotment and issue by the Company, for cash, of that number of
ordinary shares of R0.25 each in the capital of the Company ("ordinary
shares") which, at the offer subscription price after applying the discount
(if any) referred to below, will equate to a raising of a maximum of US$500
million in the aggregate after deducting all underwriters commissions and
fees but not all other issue costs; and
o the offer for subscription ("the offer") to be made to selected investors
may be made at such discount per ordinary share (based upon the offer
subscription price per AngloGold Xxxxxxx share represented by an AngloGold
Xxxxxxx American Depositary Receipt ("ADS") relative to the ruling market
price of an AngloGold Xxxxxxx ADS at the close of trading on the New York
Stock Exchange on the day before the formal announcement of the pricing of
the offer) and on such other terms and conditions as the directors of the
Company may, in their discretion, deem fit, provided that such discount
shall not exceed 10%;
be and is hereby approved.
ORDINARY RESOLUTION NO. 2
-------------------------
Resolved as an ordinary resolution that, subject to ordinary resolution number 1
being passed at the general meeting at which this resolution will be proposed,
by the requisite majority in terms
of the Listings Requirements of the JSE Limited, a sufficient number of ordinary
shares be and are hereby placed under the control of the directors of the
Company, with specific authority to allot and issue such ordinary shares for
cash, which at the offer subscription price will equate to a raising of a
maximum of US$500 million in the aggregate after deducting all underwriters
commissions and fees but not all other issue costs, and on such other terms and
conditions as the directors may, in their discretion, deem fit provided that the
offer shall not be made at a discount per ordinary share (based upon the offer
subscription price for an AngloGold Xxxxxxx share represented by an AngloGold
Xxxxxxx ADS relative to the ruling market price of an AngloGold Xxxxxxx ADS at
the close of trading on the New York Stock Exchange on the day before the formal
announcement of the pricing of the offer) of more than 10%.
