THIS AGREEMENT is made on March [4], ▇▇▇▇
TELKOM SA LIMITED, a public limited liability company incorporated
under the laws of the Republic of South Africa whose registered office is at
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, The Republic of South
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA,
represented by the Minister for Communications, in its capacity as a
shareholder of the Company (the Selling Shareholder); and
DEUTSCHE BANK AG LONDON and ▇.▇. ▇▇▇▇▇▇ SECURITIES
LTD. (the Joint Global Co-ordinators) and the other Underwriters named in
Schedule 1 hereto (together the Underwriters, and each, an Underwriter).
(A) The Selling Shareholder proposes to sell the US and Institutional Firm Shares and
the Default Shares (if any) pursuant to the terms and conditions of this Agreement in a
global offering consisting of (i) a retail offering in the Republic of South Africa of
Shares, in the form of Shares (a) targeted to South African historically disadvantaged
individuals and groups (the Khulisa Offering) and (b) to South African retail
investors (the General Retail Offering, and together with the Khulisa Offering, the
South African Retail Offering); (ii) an offering of Shares to retail and institutional
investors in the United States in the form of Shares or ADSs (the US Offering); and
(iii) an offering of Shares to institutional investors outside the United States, including
institutional investors in the Republic of South Africa, in the form of Shares or ADSs
(the Institutional Offering, and together with the South African Retail Offering and
the US Offering, the Offering).
(B) The Selling Shareholder proposes to grant the Joint Global Co-ordinators an
option exercisable once, in whole or in part, on behalf of the Underwriters, on or
before 30 days following the date of this Agreement to purchase, pursuant to the
terms and conditions of this Agreement, up to [•] Additional Shares (either in the
form of Shares or ADSs as so elected by the Joint Global Co-ordinators) solely to
cover over-allotments, if any.
(C) The Company has filed with the Commission the Registration Statement, relating
to the Offering Shares, and the ADS Registration Statement, relating to the ADSs.
(D) The JSE Prospectus and the Summary Prospectus have been registered by the
(E) The Preliminary Prospectus and US Prospectus will be used in connection with
the US Offering and the Institutional Offering, except for the offering to institutional
investors in the Republic of South Africa, the JSE Prospectus will be used in
connection with the offering to institutional investors in the Republic of South Africa
and the South African Retail Offering and a Summary Prospectus will be used,
together with the JSE Prospectus, in connection with the South African Retail
(F) Deutsche Securities SA (Pty) Limited and ▇.▇. ▇▇▇▇▇▇ Equities Limited have
entered into a Sponsors' Mandate Agreement with the Company.
The Underwriters are simultaneously entering into an Agreement Among
Underwriters, which provides, among other things, that Deutsche Bank AG London
and ▇.▇. ▇▇▇▇▇▇ Securities Ltd. shall act as the Joint Global Co-ordinators for the
In this Agreement (including the Recitals and Schedules):
Additional Shares means up to [•] Shares in the form of Shares or ADSs that are the
subject of the over-allotment option granted by the Selling Shareholder to the Joint
Global Co-ordinators on behalf of the Underwriters under subclause 2(a);
ADRs means American Depositary Receipts issued by the Depositary and evidencing
ADSs means American Depositary Shares, each representing four Shares;
ADS Purchase Price means $[•] per ADS;
ADS Registration Statement means the registration statement on Form F-6
(Registration No. 333-102826) relating to the ADSs, as amended at the time it was
declared effective by the Commission, including the exhibits thereto;
affiliate has the meaning given to it by Rule 405 under the Securities Act;
Business Day means any day other than a day on which banks are permitted or
London, England or Johannesburg, South Africa;
Commission means the United States Securities and Exchange Commission;
Company means Telkom SA Limited;
Companies Act means the South African Companies Act (Act 61 of 1973), as
Default General Retail Shares means, subject to the provisions in clause 2(d), the
General Retail Shares with respect to which the Joint Global Co-ordinators shall have
received a Default Notice;
Default Notice means notice or notices from the Selling Shareholder to the Joint
Global Co-ordinators, on behalf of the Underwriters, setting forth the value of checks
for the payment of the Purchase Price for any General Retail Shares and/or Khulisa
Shares that have not cleared, which notice or notices shall be delivered to the Joint
Global Co-ordinators at the end of each five Business Days period following the First
Closing Date in respect of any General Retail or Khulisa Shares the payment for
which has defaulted within the preceding five Business Days period, but in any event,
not later than 30 days after the First Closing Date;
Default Khulisa Shares means, subject to the provisions in clause 2(d), the Khulisa
Shares with respect to which the Joint Global Co-ordinators shall have received a
Default Shares means the Default General Retail Shares and the Default Khulisa
Deposit Agreement means the deposit agreement among the Company, the
Depositary and the registered holders and beneficial owners from time to time of the
ADRs issued thereunder by the Depositary;
Depositary means The Bank of New York, as depositary under the Deposit
DTC means The Depository Trust Company;
Exchange Act means the United States Securities Exchange Act of 1934, as amended;
Existing Shareholders' Agreement means the Shareholders' Agreement dated May
14, 1997, as amended, among the Minister for Posts, Communications and
Broadcasting of the Government of the Republic of South Africa, acting under
authority of the Government of the Republic of South Africa in its capacity as a
Shareholder of the Company, Thintana Communications LLC and the Company,
which agreement will be terminated in its entirety and superceded by the
Shareholders' Agreement effective upon the fulfillment of the conditions set forth in
the Shareholders' Agreement;
First Closing Date means, subject to the provisions in clause 3, March [7], 2003;
General Retail Shares means the Shares, in the form of Shares, that are the subject of
the General Retail Offering;
General Retail Offering has the meaning given in Recital (A);
General Retail Purchase Price means R[•] per Share;
Government Information means information furnished to the Company in writing by
the Selling Shareholder expressly for use in the Registration Statement, the
Preliminary Prospectus, the US Prospectus or JSE Prospectus, as specified in
Group means the Company and its Subsidiaries, taken as a whole; provided, however,
that for purposes of determining the positive or negative impact on the Group
resulting from the Significant Subsidiary and for purposes of determining whether a
Material Adverse Effect or material adverse change or development involving a
prospective material adverse change has occurred, only the Company's 50% interest
in the impact and only the Company's 50% interest in the Significant Subsidiary shall
IAS means International Accounting Standards;
Institutional Offering has the meaning given to it in Recital (A);
Involved Affiliate means the affiliates of the Underwriters set forth in Schedule 3
Joint Global Co-ordinators means Deutsche Bank AG London and ▇.▇. ▇▇▇▇▇▇
JSE means the JSE Securities Exchange, South Africa;
JSE Listing Date means the date on which the Shares are first admitted by the JSE to
the list it maintains of companies admitted to listing;
JSE Listings Requirements means the Listings Requirements published by the JSE;
JSE Prospectus means the prospectus dated January 24, 2003, and registered by the
Registrar of Companies in terms of the Companies Act on January 29, 2003, used in
connection with the offering to institutional investors in the Republic of South Africa
and to retail investors in connection with the South African Retail Offering;
Khulisa Shares means the Shares, in the form of Shares, that are the subject of the
Khulisa Offering has the meaning given in Recital (A);
Khulisa Purchase Price means R[•] per Share;
Material Adverse Effect means a material adverse effect on the condition (financial
or otherwise) of the business, properties, management, shareholders' equity or results
of operations of the Group;
Memorandum and Articles of Association means the memorandum and articles of
association of the Company adopted by the Company at a general meeting held on
January 16, 2003 and that will become effective, subject to the terms of the
Shareholders' Agreement, on the JSE Listing Date;
Offering has the meaning given to it in Recital (A);
Offering Shares means the US and Institutional Firm Shares, General Retail Shares
(including the Default General Retail Shares, if any), Khulisa Shares (including the
Default Khulisa Shares, if any) and the Additional Shares ;
Preliminary Prospectus means the US Prospectus, in preliminary form, dated January
30, 2003, that is used in connection with the US and Institutional Offerings, except for
the offering to institutional investors in the Republic of South Africa, which omits
information at the time the Registration Statement becomes effective but that is
deemed to be part of such Registration Statement at the time it becomes effective
pursuant to paragraph (b) of Rule 430A under the Securities Act and included in the
Registration Statement, as the same may be amended or supplemented;
Prospectuses means collectively the US Prospectus and the JSE Prospectus;
Purchase Price means the Khulisa Purchase Price, General Retail Purchase Price, US
and Institutional Purchase Price or the ADS Purchase Price;
Rand and R mean the lawful currency for the time being of the Republic of South
Registrar of Companies means the Registrar of Companies, Pretoria appointed in
terms of section 7 of the Companies Act and responsible for registering the JSE
Prospectus and the Summary Prospectus;
Registration Statement means the registration statement prepared by the Company on
Form F-1 (File No. 333-102834) with respect to the Shares registered under the
Securities Act for sale in the US Offering, as amended at the time it became effective,
including the exhibits thereto and the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act. If the Company has filed an abbreviated registration statement to
register additional Shares pursuant to Rule 462(b) under the Securities Act, then any
reference herein to the term Registration Statement shall be deemed to include such
abbreviated registration statement;
Sale Shares means the US and Institutional Firm Shares, the Default Shares and any
Additional Shares to be sold pursuant to the over-allotment option granted to the Joint
Global Co-ordinators on behalf of the Underwriters;
Securities Act means the United States Securities Act of 1933, as amended;
Selling Affiliate means any affiliate of an Underwriter involved in the sale of the
Sale Shares in connection with the Offering;
Selling Shareholder means the Government of the Republic of South Africa,
represented by the Minister for Communications, in its capacity as a shareholder of
Shareholders' Agreement means the agreement between the Selling Shareholder and
Thintana Communications LLC, dated January 16, 2003, relating to their
shareholding in the Company;
Shares means ordinary shares with par value of R10.00 (ten Rands) each in the share
Significant Subsidiary means Vodacom Group (Proprietary) Limited;
South African Law Governed Provisions has the meaning given to it in clause 14.2
South African Retail Offering has the meaning given in Recital (A);
South African Retail Offering Documents means the Summary Prospectus and the
other documents listed in Schedule 4 hereto;
Sponsors' Mandate Agreement means the Sponsors' Mandate Agreement, dated [•],
2003, among the Company, Deutsche Securities SA (Pty) Limited and ▇.▇. ▇▇▇▇▇▇
Stock Loan Agreement means the stock loan agreement dated as of the date hereof,
between the Selling Shareholder and Deutsche Securities SA (Pty) Limited;
STRATE means Shares Transactions Totally Electronic Limited;
Subsequent Closing Date has the meaning given to it in clause 3.2;
Subsidiary means the companies listed on Schedule 5 hereto;
Summary Prospectus means the summary prospectus registered by the Registrar of
Companies in terms of the Companies Act on January 29, 2003, used in connection
with the South African Retail Offering;
Taxes means any income, capital gains, withholding, value added, stamp, transfer or
Underwriter means each of the several Underwriters listed on Schedule 1 hereto;
Underwriter Information means information furnished to the Company in writing by
any Underwriter through the Joint Global Co-ordinators expressly for use in the
Registration Statement, the Preliminary Prospectus or the Prospectuses as specified in
US Offering has the meaning given in Recital (A);
US Prospectus means the prospectus, in final form, as amended or supplemented, to
be used in connection with the US and Institutional Offerings, except for the offering
to institutional investors in South Africa;
US and Institutional Firm Shares means [•] Shares, in the form of Shares or ADSs,
that are the subject of the US Offering and Institutional Offering;
US and Institutional Purchase Price means R[•] per Share and $[•] per ADS;
UST means uncertificated securities tax.
references to a person include a natural person, partnership, corporation,
limited liability company, unincorporated organization, association, joint-
stock company, trust, joint venture, government, or any agency or political
subdivision thereof, or any other entity;
references to a party to this agreement include references to the successors or
permitted assigns (immediate or otherwise) of that party; and
a definition which includes a substantive provision shall have substantive
The sub clauses above apply unless the contrary intention appears.
The headings herein are included for convenience of reference only and are
not intended to be part of, or to affect the meaning or interpretation of the Agreement.
Subject to the terms and conditions of this Agreement:
the Selling Shareholder agrees to sell the US and Institutional Firm Shares, the
Default Shares (if any) and, upon exercise of the option described below, the
Additional Shares, to the several Underwriters listed in Schedule 1 hereto or to
purchasers procured by the Underwriters (either in the form of Shares or
ADSs as so elected by the Joint Global Co-ordinators);
the Selling Shareholder grants the Joint Global Co-ordinators an option
exercisable once, in whole or in part, on behalf of the Underwriters, on or
before, 30 days following the date of this Agreement to purchase, or to
procure purchasers for, up to [•] Additional Shares (either in the form of
Shares or ADSs as so elected by the Joint Global Co-ordinators), solely to
cover over-allotments, if any, upon notice to the Selling Shareholder and the
Company from the Joint Global Co-ordinators on behalf of the Underwriters
given at least two full Business Days prior to the date of delivery of the
Additional Shares as specified therein in the form of notice attached hereto in
Schedule 7; provided that such date of delivery of the Additional Shares shall
not be before the First Closing Date nor later than the fifth Business Day after
each Underwriter, severally and not jointly, agrees, upon the basis of the
representations, warranties and agreements contained herein, and subject to
the conditions stated in clause 9 hereof, to procure purchasers for, or, failing
that, to purchase the number of US and Institutional Firm Shares set out
against its name in Schedule 1 hereto, at the US and Institutional Purchase
Price less the commissions specified in clause 5 below and those expenses
specified in clause 6 below that have not been paid prior to the First Closing
each Underwriter, severally and not jointly, agrees, upon the basis of the
representations, warranties and agreements contained herein, and subject to
the conditions stated in clause 9 hereof, to procure purchasers for, or, failing
that, to purchase, the (i) Default General Retail Shares and (ii) Default Khulisa
Shares, [at the respective Purchase Prices for such Shares,] to the extent and
only to the extent that the aggregate purchase price payable by the
Underwriters pursuant to this clause 2(d) does not exceed three (3.0) percent
of the aggregate applicable Purchase Price for all General Retail Shares and
Khulisa Shares sold in the South African Retail Offering, less the
commissions specified in clause 5 below. If any Default General Retail
Shares or Default Khulisa Shares are to be purchased by the Underwriters
pursuant to this clause 2(d), each Underwriter's underwriting commitment
shall be increased by an amount representing such Underwriter's pro rata
share of each of the Default General Retail Shares and Default Khulisa Shares
required to be purchased pursuant to this clause 2(d), subject to such
adjustments to eliminate any fractional Shares as the Joint Global Co-
ordinators in their sole discretion shall make. For purposes of this clause 2(d),
an Underwriter's pro rata share shall be in the same proportion as the number
of US and Institutional Firm Shares covered by such Underwriter's
commitment (as set forth in Schedule 1 hereto) bears to the aggregate number
of US and Institutional Firm Shares subject to this Agreement.
in addition, the Selling Shareholder agrees to sell the Additional Shares to the
Underwriters or to purchasers procured by the Underwriters as provided in this
Agreement and the Underwriters, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions stated
in clause 9 hereof, shall have the option to procure purchasers for or to
purchase, severally and not jointly, the Additional Shares at the respective
Purchase Prices less the commissions specified in clause 5 below. If any
Additional Shares are to be purchased, each Underwriter's underwriting
commitment shall be increased by an amount representing the Underwriters
pro rata share of the Additional Shares required to be sold by the Selling
Shareholder subject, however, to such adjustments to eliminate any fractional
shares as the Joint Global Co-ordinators in their sole discretion shall make.
For purposes of this clause 2(e), an Underwriter's pro rata share of the
Additional Shares shall be in the same proportion as the number of US and
Institutional Firm Shares covered by such Underwriter's underwriting
commitment (as set forth in Schedule 1 hereto) bears to the aggregate number
of US and Institutional Firm Shares subject to this Agreement.
[The Selling Shareholder shall deposit [the global share certificate] on or
before [March 4, 2003] in the Selling Shareholder's account with [Computershare]
free from any liens, claims and encumbrances. The Selling Shareholder shall instruct
[Computershare] to dematerialize the [global share certificate] on its behalf and to
deposit the [global share certificate] on or before the Business Day immediately
preceding the First Closing Date or the Subsequent Closing Date (if any), as the case
Payment for the US and Institutional Firm Shares, less the commissions
specified in clause 5 below and those expenses specified in clause 6 below that have
not been paid prior to the First Closing Date, shall be made by wire transfer in
immediately available funds, in Rand in the case of US and Institutional Firm Shares
that are delivered in the form of Shares and in US dollars in the case of US and
Institutional Firm Shares that are delivered in the form of ADSs, in each case, to the
account or accounts specified by the Selling Shareholder to the Joint Global
Co-ordinators at [•] on March [7], 2003, or at such other time or place on the same or
such other date, not later than the fifth Business Day thereafter, as the Joint Global
Co-ordinators and the Selling Shareholder may agree upon in writing. Payment for
the Additional Shares (if any), less the commissions specified in clause 5, shall be
made by wire transfer in immediately available funds, in Rand in the case of
Additional Shares that are delivered in the form of Shares and in US dollars in the
case of Additional Shares (if any) that are delivered in the form of ADSs, in each
case, to the account or accounts specified by the Selling Shareholder on the date and
at the time and place specified by the Joint Global Co-ordinators in the written notice
of the Underwriters election to purchase, or to procure purchasers for, such
Additional Shares pursuant to the terms of this Agreement. The time and date of such
payment for the US and Institutional Firm Shares is referred to herein as the "First
Closing Date" and the time and date for such payment for the Additional Shares, if
other than the First Closing Date, is herein referred to as the "Subsequent Closing
Payment for the US and Institutional Firm Shares on the First Closing Date or
for the Additional Shares (if any) on the First or Subsequent Closing Date (if any), as
the case may be, shall be made against delivery to the Joint Global Co-ordinators for
the respective accounts of the several Underwriters, or to the respective accounts of
the purchasers procured by the Underwriters, of the US and Institutional Firm Shares
and Additional Shares to be purchased on such date in electronic dematerialized form
through STRATE registered in such names and in such denominations as the Joint
Global Co-ordinators shall request in writing not later than two full Business Days
prior to the First Closing Date or the Subsequent Closing Date (if any), as the case
Delivery of the US and Institutional Firm Shares and Additional Shares (if
any) which are to be delivered in the form of ADSs shall be made by delivery by the
Selling Shareholder of the US and Institutional Firm Shares and Additional Shares
represented by such ADSs by book-entry credit to the account of the Depositary or its
nominee on STRATE and the ADRs evidencing such ADSs shall be delivered on
behalf of the Selling Shareholder to [•], for the accounts of the several Underwriters
or purchasers procured by them, through the facilities of DTC. The ADRs evidencing
the ADSs delivered to the Underwriters pursuant to this clause 3 shall be registered in
such names and in such denominations as the Joint Global Co-ordinators shall request
in writing not later than two full Business Days prior to the First Closing Date or the
Subsequent Closing Date (if any), as the case may be.
Payment for the Default General Retail Shares and Default Khulisa Shares
referred to in clause 2(d) above, shall be made against delivery to the Joint Global
Co-ordinators for the respective accounts of the several Underwriters, or to the
respective accounts of the purchasers procured by the Underwriters, of the Default
General Retail Shares and Default Khulisa Shares to be purchased pursuant to clause
2(d) above. Delivery shall be made in electronic dematerialized form through
STRATE, registered in such names and in such denominations as the Joint Global Co-
ordinators shall request in writing not later than two full Business Days prior to the
delivery date referred to in the last sentence of this clause 3.5. The date of delivery
shall be such date or dates as the Joint Global Co-ordinators shall request in writing
following receipt of a Default Notice.
Subject to clause 4.1(b) below, during the period beginning from the
date hereof and continuing to and including the date 180 days after the date
hereof, the Company will not, and will not allow any Subsidiary to, without
the prior written joint consent of the Joint Global Co-ordinators, (a) issue,
offer, lend, pledge, sell, hedge, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, mortgage, charge, assign,
grant any option, right or warrant to purchase or otherwise transfer or dispose
of, within or outside of the Republic of South Africa, directly or indirectly,
except as provided hereunder, any Shares or other equity securities of the
Company that are substantially similar to the Shares or any interest therein or
in respect thereof or any securities that are convertible into or exercisable or
exchangeable for Shares, or (b) enter into any swap or other agreement that
transfers to any other entity, in whole or in part, any of the economic
consequences of ownership of the Shares or enter into any other transaction
with the same economic consequences or agree to do, or announce or
otherwise publicise the intention to do any of the foregoing (provided that the
adoption of employee or management incentive or compensation plans,
including, without limitation, for employees, directors, former employees,
former directors, consultants or contractors of the Company, its Subsidiaries
and/or associated companies shall not be prohibited by this clause 4.1(a),
provided that such plans are approved by the shareholders of the Company),
whether any such transaction described in subclause (a) or (b) above is to be
settled by delivery of Shares or other such securities, in cash or otherwise,
other than (i) Shares to be issued upon exercise of options or warrants to
purchase Shares, or upon conversion or exchange of securities convertible or
exchangeable into Shares, in each case, which are issued on the date hereof
and disclosed in the Prospectuses, and (ii) Shares or options to acquire Shares
(or any securities convertible into or exchangeable or exercisable for Shares)
offered, issued, allotted, appropriated or granted, not earlier than 30 days from
the date hereof, to employees, directors, former employees or former directors
of the Company, its Subsidiaries and/or associated companies, or persons
related to the foregoing, directly or indirectly, pursuant to any employee share
scheme or arrangement approved by the Company's shareholders; provided
that the Company may not offer, issue, allot, appropriate or grant Shares or
options to acquire Shares (or any securities convertible into or exercisable or
exchangeable for Shares) under this subclause (ii) in an amount exceeding
0.75% of the Companys issued and outstanding Shares calculated on a fully
diluted basis on the date of such issuance, unless the excess amount of Shares
or options to acquire Shares (or any securities convertible into or exercisable
or exchangeable for Shares) are subject to restrictions on transfer similar to
those contained in subclauses (a) and (b) above during the 180 days after the
Clause 4.1(a) above shall cease to have any force or effect in the event
that (a) this Agreement is terminated without any Sale Shares sold pursuant
thereto or (b) the First Closing Date has not taken place by [March 31], 2003,
or such other date as the Joint Global Co-ordinators, on behalf of the
Underwriters, the Selling Shareholder and the Company may agree upon in
If, at any time when a US Prospectus relating to the Offering Shares or the
ADSs is required to be delivered under the Securities Act in connection with the
initial distribution of the Offering Shares, in the reasonable opinion of counsel to the
Company and the Underwriters, it is necessary to amend the US Prospectus in order
that the US Prospectus as then amended or supplemented would not include any
untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein in the light of the circumstances under which they were made
not misleading, or, in the reasonable opinion of counsel to the Company and the
Underwriters, it shall be necessary to amend the Registration Statement or supplement
or amend the US Prospectus to comply with the requirements of the Securities Act or
the rules thereunder or other applicable law, the Company will promptly, without
charge to the Underwriters: (i) notify the Joint Global Co-ordinators and the Selling
Shareholder; (ii) to the extent required by applicable law, prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or effect such compliance; and (iii) supply any amended or supplemented
US Prospectus to the Underwriters and the Selling Shareholder in such quantities as
the Underwriters and the Selling Shareholder may reasonably request. Before making
any such amendment or supplement, the Company will furnish the Joint Global
Co-ordinators and the Selling Shareholder with a copy of each such proposed
amendment or supplement, and will not make such proposed amendment or
supplement to which counsel for the Underwriters or the Selling Shareholder
If, at any time prior to the First Closing Date or the Subsequent Closing Date
(if any), in the reasonable opinion of counsel to the Company and the Underwriters, it
becomes necessary to register a new JSE Prospectus in order that the JSE Prospectus
would not include any untrue statement (as defined in the Companies Act), or, in the
reasonable opinion of counsel to the Company and the Underwriters it shall be
necessary to register a new JSE Prospectus to comply with the Companies Act, the
JSE Listings Requirements or other applicable law, the Company will promptly,
without charge to the Underwriters: (i) notify the Joint Global Co-ordinators and the
Selling Shareholder; (ii) to the extent required by applicable law, prepare and file with
the JSE and the Registrar of Companies a JSE Prospectus which will correct such
statement or omission or effect such compliance; and (iii) supply any JSE Prospectus
to the Underwriters and the Selling Shareholder in such quantities as the Underwriters
and the Selling Shareholder may reasonably request. Before making any such filing,
the Company will furnish the Joint Global Co-ordinators and the Selling Shareholder
with a copy of each such proposed filing, and will not make such proposed filing to
which counsel for the Underwriters or the Selling Shareholder reasonably objects.
If, at any time prior to the First Closing Date or the Subsequent Closing Date
(if any), in the reasonable opinion of counsel to the Selling Shareholder, the Company
and the Underwriters, it becomes necessary to register a new Summary Prospectus in
order to correct any untrue statement included in the Summary Prospectus or to
comply with the exemption obtained in terms of Section 15A of the Companies Act,
the JSE Listings Requirements or other applicable law, the Selling Shareholder will
promptly, without charge to the Underwriters or the Company: (i) notify the Joint
Global Co-ordinators and the Company; (ii) to the extent required by applicable law,
prepare and file with the JSE and the Registrar of Companies a Summary Prospectus
which will correct such untru statement or omission or effect such compliance; and
(iii) supply such new Summary Prospectus to the Underwriters and the Company in
such quantities as the Underwriters and the Company may reasonably request. Before
making any such filing, the Selling Shareholder will furnish the Joint Global
Co-ordinators and the Company with a copy of each such proposed filing, and will
not make such proposed filing to which counsel for the Underwriters or the Company
reasonably objects. The Company hereby undertakes to assist the Selling Shareholder
in the preparation and registration with the JSE and the Registrar of Companies of any
new Summary Prospectus required be preparing and registering in accordance with
On or prior to the First Closing Date, the Company will use its best efforts to
cause the Offering Shares to be duly listed and admitted to trading on the JSE and to
cause the ADSs to be listed on the New York Stock Exchange.
The Company will use its reasonable efforts to qualify the Offering Shares
and ADSs for offer and sale in each jurisdiction as the Joint Global Co-ordinators, on
behalf of the Underwriters, shall designate, including, but not limited to, applicable
state Blue Sky laws of certain states of the United States of America or other
jurisdictions thereof and the Company shall use its reasonable efforts to maintain such
qualifications in effect for such period as the Joint Global Co-ordinators, on behalf of
the Underwriters, may reasonably require in order to complete the placement of the
Offering Shares and ADSs; provided, however, that (i) in no event shall the Company
be required to maintain such qualification for more than one year from the effective
date of the Registration Statement and (ii) the Company shall not be obliged to file
any general consent to service of process in any jurisdiction or to qualify as a foreign
corporation or as a securities dealer in any jurisdiction or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise so subject.
In the event the Underwriters choose to purchase Shares in the form of ADSs,
the Selling Shareholder will deposit the Shares with the Depositary in accordance
with the provisions of the Deposit Agreement and otherwise comply with the Deposit
Agreement so that ADRs evidencing ADSs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of Shares deposited by
the Selling Shareholder and delivered to the Underwriters at the First Closing Date or
Subsequent Closing Date (if any), as the case may be.
use its reasonable best efforts to cause the Registration Statement to become
effective at the earliest possible time;
prepare a US Prospectus in a form promptly approved by the Joint Global Co-
ordinators, which approval shall not be unreasonably withheld, and file the US
Prospectus pursuant to Rule 424(b) under the Securities Act not later than the
Commissions close of business on the second Business Day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act;
furnish to the Joint Global Co-ordinators, without charge to the Underwriters,
three signed copies of the Registration Statement (including exhibits thereto)
and for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the period in
which the US Prospectus is required to be delivered in connection with sales
by an Underwriter or dealer, as many copies of the US Prospectus, and any
supplements and amendments thereto or to the Registration Statement as
counsel to the Joint Global Co-ordinators may reasonably request;
before amending or supplementing the Registration Statement, the Preliminary
Prospectus, the Prospectuses or the Summary Prospectus, to furnish to the
Joint Global Co-ordinators, the Selling Shareholder and their respective
counsel a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which counsel to the
Joint Global Co-ordinators or the Selling Shareholder reasonably objects;
advise the Joint Global Co-ordinators, promptly after it receives notice of the
effectiveness of the Registration Statement, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of the Preliminary Prospectus or the US Prospectus, of the suspension of
the qualification of the Offering Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose of
which the Company is aware, or of any request by the Commission for the
amending or supplementing of the Registration Statement, the Preliminary
Prospectus or the US Prospectus or for additional information; and
in the event of the issuance of any stop order or of any order preventing or
suspending the use of the Preliminary Prospectus or the US Prospectus or
suspending any such qualification, promptly to use its reasonable best efforts
to obtain the withdrawal of such order.
The Company will make generally available to the Companys security
holders and to the Joint Global Co-ordinators as soon as practicable an earnings
statement (which need not be audited) covering the twelve-month period following
the offering that satisfies the provisions of the last paragraph of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder.
4.10 The Company will not take, directly or indirectly, any action designed to or
that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Shares in violation of the Exchange Act or the rules
4.11 The Company will file with the Commission such reports as may be required
by Rule 463 under the Securities Act.
4.12 The Selling Shareholder undertakes that neither the Underwriters nor any
initial purchaser procured by them nor any applicant in the South African Retail
Offering will be required to pay any South African UST, stamp duty or similar tax on
or in connection with (i) the sale, purchase, distribution and/or delivery of the
Offering Shares (including any Default Shares) to or for the account of the
Underwriters, Selling Affiliates or the initial purchasers procured by them or any
initial purchaser in the South African Retail Offering, or (ii) the sale, purchase,
distribution and/or delivery outside the Republic of South Africa by the Underwriters
or their Selling Affiliates of the Offering Shares to the initial purchasers thereof in the
manner contemplated under this Agreement and the Prospectuses. The Selling
Shareholder agrees further that, in the event that any Underwriter, Selling Affiliate or
initial purchaser procured by them or any initial purchaser in the South African Retail
Offering is required, in breach of the undertaking set forth in the immediately
preceding sentence, to pay any South African UST, stamp duty or similar tax, the
Selling Shareholder shall reimburse such Underwriter, Selling Affiliate, initial
purchaser procured by an Underwriter or Selling Affiliate or initial purchaser in the
South African Retail Offering in respect of the UST, stamp duty or similar tax so
Subject to clause 4.13(b) below, during the period beginning from the
date hereof and continuing to and including the date 180 days after the date
hereof, the Selling Shareholder will not without the prior written joint consent
of the Joint Global Co-ordinators, (a) offer, lend, pledge, sell, hedge, contract
to sell, sell any option or contract to purchase, purchase any option or contract
to sell, mortgage, charge, assign, grant any option, right or warrant to purchase
or otherwise transfer or dispose of, within or outside of the Republic of South
Africa, directly or indirectly, except as provided hereunder, any Shares or
other equity securities of the Company that are substantially similar to the
Shares or any interest therein or in respect thereof or any securities that are
convertible into or exercisable or exchangeable for Shares, or (b) enter into
any swap or other agreement that transfers to any other entity, in whole or in
part, any of the economic consequences of ownership of the Shares or enter
into any other transaction with the same economic consequences or agree to
do, or announce or otherwise publicise the intention to do any of the
foregoing, whether any such transaction described in subclause (a) or (b)
above is settled by delivery of shares or other such securities, in cash or
otherwise. Notwithstanding the foregoing, this clause 4.13(a) shall not prohibit
(i) the Selling Shareholder from permitting the Company to do anything it is
permitted to do pursuant to clause 4.1(a) hereof or (ii) the Selling Shareholder
from transferring (a) up to five percent (5%) of the Shares to the National
Empowerment Fund and/or (b) up to two percent (2%) of the Shares to or for
the benefit of such past, present and future employees of the Company and its
Subsidiaries as the Selling Shareholder may specify and; provided that any
transferee who received Shares pursuant to this subclause (ii) agrees to enter
into a lock up agreement substantially in the form of this clause 4.13.
Clause 4.13(a) above shall cease to have any force or effect in the
event that (a) this Agreement is terminated without any Sale Shares sold
pursuant hereto or (b) the First Closing Date has not taken place by [March
31], 2003, or such other date as the Joint Global Co-ordinators, on behalf of
the Underwriters, and the Selling Shareholder may agree upon in writing.
4.14 The Selling Shareholder undertakes that it will conduct the South African
Retail Offering in the manner and subject to the terms and conditions described in the
JSE Prospectus and the Khulisa Trust.
COMMISSIONS; TERMS OF THE PUBLIC OFFERING
In consideration of the agreement by the Underwriters to underwrite and pay for the
Sale Shares as provided above, the Selling Shareholder shall pay to the Joint Global
Co-ordinators, for the account of the several Underwriters, aggregate commissions of
1.9 percent of the total proceeds from the sale of the US and Institutional Firm Shares,
the General Retail Shares and the Khulisa Shares comprised of 0.38 percent
management commissions (of which the Selling Shareholder shall pay a praecipium
of 50 percent to the Joint Global Co-ordinators), 0.38 percent underwriting
commissions and 1.14 percent sales commissions. [All commisions other than sales
commissions on the Offering shares sold in the form of ADSs will be payable in Rand
and will be deducted from the Rand amounts payable pursuant to clause 3.2 hereto.
The sale commissions on the ADSs will be payable in US dollar and deducted from
the US dollar amounts payable pursuant to clause 3.2 hereto.] The Selling
Shareholder shall pay to the Joint Global Co-ordinators aggregate sales commissions
on the sale of any Additional Shares equal to 1.14 percent of the total proceeds from
the sale of any Additional Shares. In addition, the Selling Shareholder may in its sole
discretion pay to some or all of the Joint Global Co-ordinators and other
Underwriters, an additional fee of up to R[•] within 30 days of the First Closing Date
for ancillary services performed on or prior to the date hereof in connection with the
The Selling Shareholder and the Company shall bear and pay all costs and
expenses incurred in connection with the Offering, inter alia: (i) all fees and expenses
of the Companys and the Selling Shareholders lawyers and any reporting
accountants, (ii) all fees and expenses in connection with the registration of the
Offering Shares and the ADSs under the Securities Act and the preparation, printing
and filing of the Registration Statement, the ADS Registration Statement, the
Preliminary Prospectus, the US Prospectus and all amendments and supplements
thereto, the printing and distribution, including mailing of the US Prospectus and the
Preliminary Prospectus, the printing and production of all other documents connected
with the issue and distribution of the Offering Shares and the ADSs (including this
Agreement, the Deposit Agreement and any other related agreements), (iii) UST and
stamp duty, pursuant to clause 4.12 hereof, (iv) all expenses related to the
qualification of the Offering Shares and ADSs under the state securities or Blue Sky
laws, including filing fees in connection therewith, (v) the filing fees incurred in
connection with the review and qualification of the offering of the Offering Shares
with the National Association of Securities Dealers, Inc., (vi) all expenses arising
from the listing of the Offering Shares on the JSE (including any capacity expenses
incurred in the event that this Agreement is terminated) and from listing the ADSs on
the New York Stock Exchange, (vii) the listing agents fees and the arrangements for
signing this Agreement, (viii) the fees and expenses (including fees and
disbursements of counsel) if any of the Depositary and any custodian appointed under
the Deposit Agreement other than the fees and expenses to be paid by holders of
ADRs from time to time, (ix) all fees and expenses related to any advertising or
educational campaign in connection with the offering to retail investors in South
Africa, including the fees and expenses of any public relations advisor, (x) all fees
and expenses of the South African Post Office and Standard Bank incurred in
connection with the South African Retail Offering, and (xi) the costs and expenses of
the Company and the Selling Shareholder relating to investor presentations or any
road show undertaken in connection with the marketing of the offering of the
The Selling Shareholder agrees to contribute up to an aggregate of US
$1,551,872 (inclusive of all amounts paid or advanced prior to the date hereof) for the
reasonable out-of-pocket expenses of the Joint Global Co-ordinators, including third
party advising, travel, courier service, communications, advertising and internal
printing and distribution expenses incurred and to be incurred in connection with the
preparation and management of the issue and distribution of the Offering Shares. The
Selling Shareholder shall pay the Joint Global Co-ordinators for such expenses on the
First Closing Date. For the avoidance of doubt, the $1,551,872 contribution amount
referred to in the immediately preceding sentence of this clause 6.2 does not include
reimbursement for any expense referred to in clause 6.1 above which has been or is
advanced by the Joint Global Co-ordinators and any such amounts shall be separately
It is understood that except as provided in this clause 6 and clause 4.12 hereof,
the Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, Taxes on resale by them of any Sale Shares, and any costs incurred by
them related to, or arising from, the funding of the payment of the Purchase Price for
the Sale Shares pursuant to clause 3 hereof.
REPRESENTATIONS AND WARRANTIES
As a condition of the obligation of the Underwriters to underwrite and pay for
the Sale Shares the Company represents and warrants to, and agrees with, the
Registration Statement and US Prospectus
that no order preventing or suspending the use of the Preliminary Prospectus
has been issued by the Commission, and each Preliminary Prospectus, at the
time of filing thereof, complied in all material respects with the Securities Act;
(b) that the Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement has been issued or
is in effect, and no proceeding for such purpose is pending before or, to the
knowledge of the Company after due and careful inquiry, threatened by the
that (i) the Registration Statement, when it became effective, did not contain
and, as amended or supplemented, if applicable, will not, on the date of
amendment or supplement and at the First Closing Date and Subsequent
Closing Date (if any), contain any 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, (ii) the Registration Statement and the US
Prospectus comply and, as amended or supplemented, if applicable, will, on
the date of amendment or supplement and at the First Closing Date and
Subsequent Closing Date (if any), comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Preliminary Prospectus, did not, at the time it was
filed, and the US Prospectus will not, at the time it is filed, contain and, as
amended or supplemented, if applicable, the US Prospectus will not, on the
date of amendment or supplement and at the First Closing Date and
Subsequent Closing Date (if any), contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations, warranties and agreements set forth in this
clause 7.1(c) do not apply, and the Company makes no representation,
warranty or agreement with respect, to statements or omissions in the
Registration Statement, the Preliminary Prospectus or the US Prospectus
based upon Underwriter Information or Government Information;
that no relationship, direct or indirect, exists between or among the Company
or any of its Subsidiaries, on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company or any of its
Subsidiaries, on the other, that is required by the Securities Act to be described
in the Registration Statement and the US Prospectus and that is not so
there are no material pending legal, governmental or regulatory actions, suits
or proceedings against the Company and its Subsidiaries that are required
under the Securities Act to be described in the US Prospectus that are not so
that there are no contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement or described
in the Registration Statement or the US Prospectus that are not so filed or
that the consolidated financial statements and the related notes thereto
included in the Registration Statement and the US Prospectus comply as to
form in all material respects with the applicable requirements of
Regulation S-X under the Securities Act and the consolidated financial
statements included in the Registration Statement and the US Prospectus
present fairly the consolidated financial position of the Company and its
Subsidiaries as of the dates indicated and the results of their operations and the
changes in their cash flows for the periods presented; the consolidated
financial statements included in the Registration Statement and the US
Prospectus have been prepared in conformity with IAS applied on a consistent
basis throughout the periods covered thereby (except that the unaudited
financial statements may be subject to normal year-end adjustments), and the
selected financial data and the summary financial data included in the
Registration Statement and the US Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
consolidated financial statements included in the Registration Statement and
that, except (i) as described in the Prospectuses and (ii) the Existing
Shareholders' Agreement, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to register any securities for sale under the
Securities Act by reason of the filing of the Registration Statement with the
Commission or the sale of the Offering Shares;
that the ADS Registration Statement has become effective; no stop order
suspending the effectiveness of the ADS Registration Statement is in effect
and no proceeding for such purpose is pending before or, to the knowledge of
the Company after due and careful inquiry, threatened by the Commission;
and the ADS Registration Statement, when it became effective complied, and
any further amendments thereto will comply, in all material respects to the
requirements of the Securities Act and the rules and regulations of the
Commission thereunder and did not, as of the applicable effective date,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
that the JSE Prospectus will, at the First Closing Date and the Subsequent
Closing Date (if any), comply in all material respects with the Companies Act
and the JSE Listings Requirements;
that the JSE Prospectus, when filed and registered, did not contain and, as
replaced, if applicable, will not, on the date of replacement, and at the First
Closing Date and Subsequent Closing Date (if any), contain any untrue
statement (as defined in the Companies Act), except that the representations,
warranties and agreements set forth in this clause 7.1(k) do not apply, and the
Company makes no representation, warranty or agreement with respect, to
statements or omissions in the JSE Prospectus based upon Underwriter
Information or Government Information;
that no relationship, direct or indirect, exists between or among the Company
or any of its Subsidiaries, on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company or any of its
Subsidiaries, on the other, that is required by the Companies Act and the JSE
Listings Requirements to be described in the JSE Prospectus and that is not so
that there are no contracts or other documents that are required, under the
Companies Act or the JSE Listings Requirements, to be made available for
inspection at the Company's registered office, to be lodged with the Registrar
of Companies together with the JSE Prospectus, or be described therein that
are not so made available, lodged or described;
that the consolidated financial statements and the related notes thereto
included in the JSE Prospectus comply as to form in all material respects with
the applicable requirements of the Companies Act and the JSE Listings
Requirements and the consolidated financial statements included in the JSE
Prospectus present fairly the consolidated financial position of the Company
and its Subsidiaries as of the dates indicated and the results of their operations
and the changes in their cash flows for the periods presented; the consolidated
financial statements included in the JSE Prospectus have been prepared in
conformity with IAS applied on a consistent basis throughout the periods
covered thereby (except that the unaudited financial statements may be subject
to normal year-end adjustments), and the selected financial data and the
summary financial data included in the JSE Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the consolidated financial statements included in JSE Prospectus;
that the Shares of the Company have been approved for listing on the JSE,
subject to the attainment of a spread of shareholders acceptable to the JSE and
the submission of all supporting documents required by the JSE;
that the ADSs have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance;
that Ernst and Young, who have certified certain financial statements of the
Company and its Subsidiaries, and PricewaterhouseCoopers Inc. and Deloitte
& Touche, who have certified certain financial statements of the Significant
Subsidiary, are each independent public accountants within the meaning of the
Securities Act and the rules and regulations of the Commission thereunder;
that the Company and its Subsidiaries maintain systems of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with managements general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity in all material respects with IAS, with a
reconciliation to US GAAP, and to maintain asset accountability; and (iii)
except as disclosed in the Prospectuses, access to assets is permitted only in
accordance with managements general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
that (a) since the respective dates as of which information is given in the US
Prospectus, except , in each case, as otherwise disclosed in the US Prospectus,
(i) there has not been any material change in the capital stock or any material
increase in long-term debt of the Group, or any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company on any
class of capital stock, or any material adverse change or development
involving a prospective material adverse change in or affecting the business,
properties, shareholders equity or results of operations of the Group; and (ii)
neither the Company nor any of its Subsidiaries has, except as described in the
US Prospectus, (1) entered into or assumed any contract that is material to the
Group, (2) incurred, assumed or acquired any liabilities (including contingent
liabilities) or other obligation that is material to the Group, (3) acquired or
disposed of, or agreed to acquire or dispose of, any business or any other asset
material to the Group or (3) entered into a letter of intent or memorandum of
understanding (or announced an intention to do so) relating to any matters
identified in subclauses (3) through (4) above; and (b) since the date of the last
audited financial statements included in the Prospectuses, except in each case
as otherwise disclosed in the US Prospectus neither the Company nor any of
its Subsidiaries has sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor disturbance or dispute of any action, order or decree of any
court or arbitrator or governmental or regulatory authority, in each case of
subclauses (a) or (b) above, except such as would not result in a Material
Corporate Power and Authority
that the Company has been duly incorporated and is validly existing and
conducts business in the ordinary course as a public limited liability company
under the laws of the Republic of South Africa with full power and authority
to own, lease and operate its properties and assets and conduct its business as
described in the Prospectuses and has full power and authority to execute and
perform its obligations under this Agreement and the Deposit Agreement and
is duly qualified to transact business in each jurisdiction in which its
ownership, leasing or operation of its property or assets or the conduct of its
business requires such qualification, except where the failure to be so qualified
would not have a Material Adverse Effect;
that the Significant Subsidiary has been duly incorporated and is validly
existing and conducts business in the ordinary course under the laws of the
Republic of South Africa, with full power and authority to own, lease and
operate its properties and assets and conduct its business as described in the
Prospectuses and is duly qualified to transact business in each jurisdiction in
which its ownership, leasing or operation of its property or assets or the
conduct of its business requires such qualification, except where the failure to
be so qualified would not have a Material Adverse Effect;
that no receiver, liquidator or judicial manager (or similar person) has been
appointed in respect of the Company or the Significant Subsidiary or in
respect of any part of the assets of the Company or the Significant Subsidiary;
and to the Companys knowledge after due and careful inquiry, no resolution,
order of any court, regulatory body, governmental body or otherwise, or
petition or application for an order, has been passed, made or presented for the
winding up of the Company or the Significant Subsidiary or for the protection
of the Company or the Significant Subsidiary from their respective creditors
and neither the Company nor the Significant Subsidiary has stopped payment
of its debts generally (except for any such debts that are subject to a good faith
dispute), has become unable to pay its debts or has otherwise become
that this Agreement has been duly authorized, executed and delivered by the
that the Deposit Agreement has been duly authorized, executed and delivered
by the Company and, assuming the due authorization, execution and delivery
by the Depositary, constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting the enforcement of
creditors rights generally or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing; upon issuance by the
Depositary of ADRs evidencing ADSs against the deposit of Offering Shares
in respect thereof by the Selling Shareholder in accordance with the provisions
of the Deposit Agreement and this Agreement and assuming the accuracy of
the representations and warranties contained in clause 7.2 of this Agreement
and the representations and warranties of the Selling Shareholder required to
be given upon the deposit of the Shares pursuant to the Deposit Agreement,
and upon payment by, or at the direction of, the Underwriters for the ADRs
evidenced thereby in accordance with the provisions of this Agreement, such
ADRs will be duly and validly issued, and the persons in whose names the
ADRs are registered will be entitled to the rights specified therein and in the
Deposit Agreement; and this Agreement, the Deposit Agreement and the
ADRs conform in all material respects to the descriptions thereof contained in
the Registration Statement and the US Prospectus;
that neither the Company nor the Significant Subsidiary is (i) in violation of its
memorandum or articles of association; (ii) in default, or is aware of an event
that, with the passage of time, would constitute a default, in the due
performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
property or assets is subject, or (iii) in violation of any law, judgement, order,
rule or regulation, except for, in the case of subclauses (ii) and (iii) above, any
such default or violation that would not, individually or in the aggregate, have
a Material Adverse Effect;
that all consents, approvals, authorisations, orders, registrations, clearances
and qualifications of or with any court, government department or other
regulatory body (including the Registrar of Companies and any stock
exchange on which the Companys securities are or are to be listed) required
by the Company for the execution of this Agreement and the Deposit
Agreement and the performance by the Company of the terms of this
Agreement and the Deposit Agreement have been obtained and are
unconditional and in full force and effect, except for the registration of Shares
or ADSs under the Securities Act and the Exchange Act and such consents,
approvals, authorizations, orders and registrations or qualifications as may be
required under the applicable state securities or blue sky laws in connection
with the distribution of the Shares by the Underwriters, and subject, in the case
of the JSE and the New York Stock Exchange, to the conditions set forth in
clauses (o) and (p), respectively;
(aa) that the Company is not currently, and at the time of the First Closing Date
and Subsequent Closing Date (if any), will not be required to register under
the United States Investment Company Act of 1940, as amended;
(bb) that the Company is not currently, and at the First Closing Date and
Subsequent Closing Date, if any, will not be a Passive Foreign Investment
Company within the meaning of the United States Internal Revenue Code of
(cc) that the execution, delivery and performance by the Company of its
obligations under each of this Agreement and the Deposit Agreement will not
(i) conflict with or result in breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or the Significant Subsidiary pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or
assets is subject, (ii) result in any violation of the provisions of the
Memorandum and Articles of Association of the Company or the
memorandum and articles of association of the Significant Subsidiary or (iii)
result in the violation of any law or statute or any judgement, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of subclauses (i) and (iii) above, for any such conflict,
breach, default or violation that would not have a Material Adverse Effect;
(dd) that, subject to the conversion of one Share into one Class A Share and one
Share into one Class B Share, (i) the Company will have on the JSE Listing
Date, as this term is defined in the Shareholders' Agreement, an authorized
capitalization as set forth in the Prospectuses under the heading
Capitalization; (ii) all the issued and outstanding shares in the share capital of
the Company have been duly and validly authorized and issued and are fully
paid and, except as disclosed in the Prospectuses, are not subject to any pre-
emptive or similar rights except for those rights under the Existing Shareholders'
Agreement; (iii) except as disclosed in the Prospectuses, there are no
outstanding rights (including, without limitation, pre-emptive rights), warrants
or options to subscribe for, or instruments convertible into or exchangeable for,
any shares in the share capital of the Company, or any contract, commitment,
agreement, understanding or arrangement of any kind to which the Company is
a party relating to the issuance of any shares in the share capital of the
Company, any such convertible or exchangeable securities or any such rights,
warrants or options; (iv) the issued and outstanding shares in the share capital of
the Company conforms in all respects to the description thereof contained in the
Registration Statement and the Prospectuses; and (v) except as disclosed in the
Prospectuses all the issued and outstanding shares in the share capital of the
Significant Subsidiary, which are owned by the Company, have been duly and
validly authorized and issued, are fully paid and are owned directly or indirectly
by the Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of any third party;
(ee) that the form of certificate for the Offering Shares (to the extent Offering
Shares are issued in certified form) conforms to the requirements of the laws
of the Republic of South Africa and the Memorandum and Articles of
Association of the Company; and the form of certificate for the ADRs
conforms to the requirements of the Deposit Agreement;
that under the laws of the Republic of South Africa, it is not necessary for any
holder of the Offering Shares, any Underwriters or the Depositary to be
licensed, qualified or entitled to carry out business in South Africa (i) in order
to be able to enforce their respective rights under this Agreement, the Deposit
Agreement, the Sponsors' Mandate Agreement (other than, in the case of the
Sponsors' Mandate Agreement, being and remaining an approved sponsor for
purposes of and under the JSE Listings Requirements) or the ADRs, or (ii)
solely by reason of the execution, delivery or communication of this
Agreement, the Deposit Agreement, the Sponsors' Mandate Agreement (other
than, in the case of the Sponsors' Mandate Letter, being and remaining an
approved sponsor for purposes of and under the JSE Listings Requirements) or
the ADRs; and no holders of Offering Shares will be subject to personal
liability for the obligations of the Company solely by reason of being such a
Dividends and Distributions
(gg) that, except as disclosed in the Prospectuses, all dividends declared and
payable on the Shares may under the current laws and regulations of the
Republic of South Africa be paid in the Republic of South Africa, all such
dividends may be converted into foreign currency and may be freely
transferred out of the Republic of South Africa, and all such dividends are not
subject to withholding or other taxes under the current laws and regulations of
the Republic of South Africa and are otherwise free and clear of any other tax,
withholding or deduction in the Republic of South Africa and without the
necessity of obtaining any Selling Shareholder authorization in the Republic
(hh) that, except as disclosed in the Prospectuses and subject to the joint venture
agreement dated March 31, 1995, among the Company, Vodafone Group plc,
Venfin Limited, the Significant Subsidiary and other related parties, the
Significant Subsidiary is not currently prohibited, directly or indirectly, under
any agreement or other instrument to which it is a party or is subject, from
paying any dividends to the Company, from making any other distribution on
its shares, or from repaying to the Company any loans or advances to it from
that none of the Company nor any of its Subsidiaries has any taxes payable
and past due (other than those taxes, the payment of which are being contested
in good faith) in the Republic of South Africa and have filed all tax returns
required to be filed, except as otherwise disclosed in the Prospectuses or
where the failure to pay such taxes would not have a Material Adverse Effect;
and, there is no tax deficiency that has been asserted against the Company or
any of its Subsidiaries or any of their respective properties or assets, except as
otherwise disclosed in the Prospectuses or would not have a Material Adverse
that the Company and the Significant Subsidiary have insurance covering their
respective properties, operations, personnel and businesses in such amounts as
are customary for a South African business of their size and type; and neither
the Company nor the Significant Subsidiary has (i) received written notice
from any insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue such
insurance or (ii) any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage as may be necessary to continue its business where the
failure to have such insurance would have a Material Adverse Effect;
(kk) that the Company and the Significant Subsidiary (i) are in compliance in all
material respects with any and all applicable federal, state, local and foreign
laws, rules, regulations, decisions and orders relating to the protection of
human health and safety, the environmental or hazardous or toxic substances
or wastes, pollutants or contaminants (collectively, Environmental Laws); (ii)
have received and are in compliance with all permits, licenses or other
approvals required by them under applicable Environmental Laws to conduct
their respective businesses; and (iii) have not received any written notice of
any actual or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, except in any such case for any such failure to comply, or
failure to receive or comply with required permits, licenses or approvals, or
liability as would not, individually or in the aggregate, have a Material
that, except as disclosed in the Prospectuses, none of the Company nor any of
its Subsidiaries is involved in any litigation, arbitration, governmental or
regulatory proceeding relating to claims or amounts which, if determined
adversely to the Company, individually or collectively, would have a Material
Adverse Effect, nor, to the knowledge of the Company, is any such litigation,
arbitration or governmental proceeding pending or threatened;
(mm) that the Company and the Significant Subsidiary have obtained all such
consents, authorisations, certificates, licences and permits from all foreign,
national, municipal and other public authorities and have made all declarations
and filings as are required by such public authorities to enable the Company or
(as the case may be) the Significant Subsidiary to carry on the business and
operations now operated by it and which are material to its business as
conducted as of the date of the Prospectuses and described in the Prospectuses,
except as would not have a Material Adverse Effect; and the Company has not
received any written notice of proceedings relating to the revocation or
modification (except as disclosed in the Prospectuses) of any such consent,
authorization, certificate, licence or permit which, if determined adversely to
the Company or the Significant Subsidiary, would have a Material Adverse
(nn) that, except as disclosed in the Prospectuses, each of the Company and the
Significant Subsidiary owns, possesses or can acquire, on reasonable terms, all
of the other material licenses, know-how, patents, patent applications,
trademarks, service marks, copyrights, trademark registrations, service ▇▇▇▇
registrations, and trade names (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary to operate the business operated by it on the date of the
US Prospectus as described therein, except where the absence of which would
not have a Material Adverse Effect, and except as disclosed in the
Prospectuses neither the Company nor the Significant Subsidiary has received
any written notice of infringement of or conflict with asserted rights of others
with respect to any of the foregoing which would have a Material Adverse
(oo) that the Company and the Significant Subsidiary has good and marketable title
in and to, or have valid rights to lease or otherwise use, all items of real
property and good title in and to, or have valid rights to lease or otherwise use,
all personal property that are material to the respective businesses of the
Company and the Significant Subsidiary, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title except those
that (i) do not materially interfere with the use made and proposed to be made
of such property by the Company and the Significant Subsidiary; (ii) would
not have a Material Adverse Effect; or (iii) are disclosed in the Prospectuses;
(pp) that the Company has not taken, and will not take, directly or indirectly, any
action which is designed to or which has constituted or which would
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Shares in violation of the Exchange Act or the rules of the
Compliance with Securities Laws
(qq) that, within the past six months, the Company has not issued any Shares under
circumstances that would require the registration of those securities under the
Securities Act and the rules and regulations thereunder;
that neither the Company nor any of its Subsidiaries nor, to the knowledge of
the Company, any director, officer or employee of the Company or any of its
Subsidiaries has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity; (ii)
made any unlawful bribe, rebate, payoff, influence payment, kickback or other
similar unlawful payment directly or indirectly to any person, including any
foreign or domestic governmental official or employee, from corporate funds
or, if not from corporate funds, for the benefit of the Company or its
Subsidiaries; or (iii) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977, as amended (15 USC 78dd-1, et. seq.);
that neither the Company nor any of its Subsidiaries is a party to any contract,
agreement or understanding (other than this Agreement and financial advisory
agreements with UBS Warburg and AMB Holdings Limited) with any person
that would give rise to a valid claim against the Company or any of its
Subsidiaries or any Underwriter for a brokerage commission, finders fee or
like payment in connection with the offering and sale of the Shares; and
that the Company has complied in all material respects with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating
to doing business with the Republic of Cuba or with any person or affiliate
As a condition of the obligation of the Underwriters to underwrite and pay for
the Sale Shares, the Selling Shareholder represents and warrants to and agrees with
the Underwriters as follows:
that all consents, approvals, authorizations, orders, registrations, clearances
and qualifications of or with any court, government department or other
regulatory body required by the Selling Shareholder for the execution of this
Agreement, the performance of the Selling Shareholder's obligations under
this Agreement and the sale of the Sale Shares, have been obtained and are
unconditional and are in full force and effect;
that this Agreement and the Stock Loan Agreement have been duly
authorized, executed and delivered by the Selling Shareholder. The Stock
Loan Agreement constitutes a legal, valid and binding agreement of the
Selling Shareholder, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting the enforcement of creditors rights
generally or by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing. The Selling Shareholder has full
power and authority to enter into this Agreement and the Stock Loan
Agreement, to lend Shares pursuant to the Stock Loan Agreement, to sell,
assign, transfer and deliver the Sale Shares to be sold by such Selling
Shareholder pursuant to this Agreement and in the manner contemplated by
this Agreement and the Prospectuses;
that the deposit of the Sale Shares with the Depositary or its custodian against
receipt of ADRs evidencing total ADSs, the execution, delivery and
performance by the Selling Shareholder of its obligations under this
Agreement and the Stock Loan Agreement, the sale of the Sale Shares and the
consummation of the transactions contemplated by this Agreement will not (i)
conflict with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or impositions of any
liens, charges or encumbrance upon the Sale Shares pursuant to any indenture,
mortgage, deed or trust, loan agreement or other agreement or instrument to
which the Selling Shareholder is a party or is bound or to which any of the
Sale Shares are subject or (ii) result in the violation of any law or statute or
any judgement, order, rule or regulation of any court or arbitrator or
government or regulatory authority, except, in relation to subclauses (i) and
(ii) of this clause 7.2(c), for any such conflict, breach, default or violation that
would not interfere with the Selling Shareholders' ability to sell the Sale
Shares or result in any claim over, or encumbrance on the Sale Shares;
Registration Statement and US Prospectus
that (i) the Government Information contained in the Registration Statement,
when such Registration Statement became effective, did not contain and, as
amended or supplemented, if applicable, will not, on the date of amendment or
supplement and at the First Closing Date and Subsequent Closing Date, if any,
contain any 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, (ii) the Government Information contained in the Registration
Statement and the US Prospectus complies and, as amended or supplemented,
if applicable, will, on the date of such amendment or supplement and at the
First Closing Date and Subsequent Closing Date (if any), comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, and (iii) the Government
Information contained in the Preliminary Prospectus and the US Prospectus
did not, at the time such prospectus was or is filed and, as amended or
supplemented, if applicable, will not, on the date of amendment or supplement
and at the First Closing Date and Subsequent Closing Date (if any), contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
that, to the best of the Selling Shareholder's knowledge, (i) the Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, will not, on the date of amendment or supplement
and at the First Closing Date and Subsequent Closing Date (if any), contain
any 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, (ii) the Registration Statement and the US Prospectus comply and,
as amended or supplemented, if applicable, will, on the date of amendment or
supplement and at the First Closing Date and Subsequent Closing Date (if
any), comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iii) each of the
Preliminary Prospectus and the US Prospectus did not, at the time it was filed
and, as amended or supplemented, if applicable, will not, on the date of
amendment or supplement and at the First Closing Date and Subsequent
Closing Date (if any), contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that
the representations, warranties and agreements set forth in this clause 7.2(d)
do not apply, and the Selling Shareholder makes no representation, warranty
or agreement with respect, to statements or omissions in the Registration
Statement or the US Prospectus based upon Underwriter Information;
that the Government Information contained in the JSE Prospectus, when filed
and registered, did not contain and, as replaced, if applicable, will not, on the
date of replacement, and at the First Closing Date and Subsequent Closing
Date, if any, contain any untrue statement (as defined in the Companies Act);
that, to the best of the Selling Shareholder's knowledge, the JSE Prospectus,
when filed and registered, did not contain and, as replaced, if applicable, will
not, on the date of replacement, and at the First Closing Date and Subsequent
Closing Date (if any), contain any untrue statement (as defined in the
Companies Act), except that the representations, warranties and agreements
set forth in this clause 7.2(e) do not apply, and the Selling Shareholder makes
no representation, warranty or agreement with respect, to untrue statements or
omissions in the JSE Prospectus based upon Underwriter Information;
that the Selling Shareholder has and will have on the First Closing Date and
the Subsequent Closing Date (if any), as the case may be, good and valid title
to sell and transfer the Offering Shares to be sold by the Selling Shareholder
hereunder, free and clear of all pledges, charges, liens, encumbrances, equities
security interests or other claims; and, assuming that the Offering Shares are
purchased by the Underwriters or directly by purchasers procured by them or
directly by initial purchasers in the South African Retail Offering, upon
delivery of such Shares and payment therefor pursuant hereto, good and valid
title to such Shares, free and clear of all pledges, charges, liens, encumbrances,
equities security interests or claims, will pass to each of the several
Underwriters, such purchasers or such initial purchasers;
that, except as disclosed in or contemplated by the Registration Statement and
the Prospectuses, no South African UST, stamp duty or similar tax is payable
by or on behalf of the Underwriters, Selling Affiliates or the initial purchasers
procured by them or by initial purchasers in the South African Retail Offering
to the Republic of South Africa or any political subdivision or taxing authority
thereof or therein in connection with (i) the deposit of Sale Shares with the
Depositary or its custodian against issuance of ADRs evidencing ADSs to be
delivered on behalf of the Selling Shareholder at the First Closing Date or the
Subsequent Closing Date (if any), as the case may be, (ii) the sale and delivery
by the Selling Shareholder of the Sale Shares to or for the respective accounts
of the Underwriters, their Selling Affiliates or the initial purchasers procured
by them or the initial purchasers in the South African Retail Offering, or (iii)
the sale and delivery outside the Republic of South Africa by the Underwriters
or their Selling Affiliates of such Sale Shares to the initial purchasers thereof
in accordance with the terms of this Agreement and in the manner
contemplated in the Registration Statement and the Prospectuses; and
Compliance with Securities Law
that the Selling Shareholder has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company in violation of the
Exchange Act or the rules of the JSE.
Each Underwriter severally represents and warrants to and agrees with the
Company and the Selling Shareholder as follows:
such Underwriter understands that no action has been taken or will be taken in
any jurisdiction other than the Republic of South Africa and the United States
by the Company or the Selling Shareholder that would permit a public
offering of the Offering Shares or distribution of any prospectus relating to the
Offering Shares in any country or jurisdiction where action for that purpose is
such Underwriter will comply in all material respects with all applicable laws
and regulations in each jurisdiction in which it offers, sells or delivers
Offering Shares or distributes the Prospectuses, the Preliminary Prospectus or
such Underwriter has (A) not offered or sold and, prior to the date six months
after the First Closing Date, will not offer or sell any Shares or ADSs to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their business, or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the U.K. Public Offers of
Securities Regulations 1995, (B) complied and will comply with all applicable
provisions of the U.K. Financial Services and Markets Act 2000 ("FSMA") with respect to anything done by it in relation to the Shares or the ADSs, in,
from or otherwise capable of having an effect in the United Kingdom, and (C)
only communicated or caused to be communicated and will only communicate
or cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the FSMA) received
by it in connection with the issue or sale of any Shares or ADSs in
circumstances in which Section 21(1) of the FSMA does not apply to the
such Underwriter has not offered or sold, and it will not offer or sell, directly
or indirectly, any Shares in Japan, or to or for the account or benefit of, any
"resident" of Japan, or to, or for the account or benefit, of any "resident" for
reoffering or resale, directly or indirectly, in Japan, except pursuant to an
exemption from the registration requirements of, or otherwise in compliance
with, the Securities and Exchange Law of Japan. For purposes of this
subclause 7.3(d), a "resident" of Japan includes any person resident in Japan,
including any corporation or other entity organized under the laws of Japan;
such Underwriter acknowledges and agrees that the Shares and ADSs will
only be offered or sold, directly or indirectly, in Canada in the Canadian
provinces of Ontario, Quebec and British Columbia and in compliance with
the applicable Canadian securities laws and accordingly, any sale of Shares or
ADSs will be made (i) through an appropriately registered securities dealer or
in accordance with an available exemption from the registered securities
dealer requirements of applicable Canadian securities laws; and (ii) pursuant
to an exemption from the prospectus requirements of such laws; and
with respect to The Netherlands, such Underwriter acknowledges and agrees
that the shares may not be offered, transferred, sold or delivered to any
individual or legal entity other than to persons who trade or invest in securities
in the conduct of their profession or trade, which includes banks, securities
intermediaries, including dealers and brokers, insurance companies, pension
funds, other institutional investors and commercial enterprises, which as an
ancillary activity regularly invest in securities.
Each Joint Global Co-ordinator, severally represents and warrants to, and
agrees with, the Company and the Selling Shareholder that it has obtained powers of
attorney from each of the Underwriters to execute and deliver this Agreement and to
take any action hereunder on their behalf and that the Joint Global Co-ordinators have
the power and authority to execute and deliver this Agreement and to take any action
hereunder on behalf of themselves and each of the other Underwriters.
The above representations and warranties from the Company, the Selling
Shareholder, the Underwriters and the Joint Global Co-ordinators shall be deemed to
be repeated at the First Closing Date and the Subsequent Closing Date (if any), as the
INDEMNITY AND CONTRIBUTION
8.1 The Company hereby agrees to indemnify and hold harmless each
Underwriter, its directors and officers, each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and any Involved Affiliate, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal fees or other
expenses reasonably incurred in connection with any suit, action or proceeding or any
claim asserted as such fees and expenses are incurred), joint or several, that arise out
of or are based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereof), or any
omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in the Preliminary
Prospectus or the US Prospectus (or any amendment or supplement thereto), or any
omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or (iii) any untrue statement or alleged
untrue statement (as defined in the Companies Act), contained in the JSE Prospectus
(or any replacement thereto); provided, however, that the Company shall not be liable
in any such case to the extent that and shall have no obligation hereunder to any party
for any such losses, claims, damages or liabilities that arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with Underwriter Information or Government
Information; and provided further, that, with respect to any untrue statement or
omission or alleged untrue statement or omission of a material fact made in the
Preliminary Prospectus delivered to any purchaser of Shares or ADSs, the foregoing
shall not apply to the extent such loss, claim, damage or liability occurs under
circumstances where the untrue statement or omission or alleged untrue statement or
omission of a material fact made in a Preliminary Prospectus was corrected in the
final Prospectus and a final Prospectus was required by law to have been delivered to
such purchaser at or prior to the written confirmation of the sale of the Offering
Shares and was not sent or given by or on behalf of the Underwriters to such persons.
The Selling Shareholder hereby agrees to indemnify and hold harmless each
Underwriter, its directors and officers, each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and any Involved Affiliate, to the same extent as the indemnity set
forth in clause 8.1 above but only with respect to any losses, claims, damages or
liabilities that arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Government Information set forth in the
Registration Statement (or any amendment thereof), or any omission or alleged
omission to state therein a material fact required to be stated in such Government
Information or necessary to make the statements in such Government Information not
misleading, (ii) any untrue statement or alleged untrue statement of a material fact
contained in any Government Information set forth in the Preliminary Prospectus or
the US Prospectus (or any amendment or supplement thereto), or any omission or
alleged omission to state in such Government Information a material fact required to
be stated in such Government Information or necessary to make the statements in
such Government Information, in light of the circumstances under which they were
made, not misleading, or (iii) any untrue statement or alleged untrue statement (as
defined in the Companies Act) of a material fact contained in any Government
Information set forth in the JSE Prospectus (or any replacement thereto); provided,
that, with respect to any untrue statement or omission or alleged untrue statement or
omission of a material fact made in any Government Information set forth in the
Preliminary Prospectus delivered to any purchaser of Shares or ADSs, the foregoing
shall not apply to the extent such loss, claim, damage or liability occurs under
circumstances where the untrue statement or omission or alleged untrue statement or
omission of a material fact made in Government Information in a Preliminary
Prospectus was corrected in the final Prospectus and a final Prospectus was required
by law to have been delivered to such purchaser at or prior to the written confirmation
of the sale of the Offering Shares and was not sent or given by or on behalf of the
Underwriters to such persons.
The Selling Shareholder hereby agrees further to indemnify and hold harmless
each Underwriter, its directors and officers, each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and any Involved Affiliate thereof, to the same extent as the
indemnity set forth in clause 8.1 above, but only with respect to any losses, claims,
damages or liabilities that arise out of, or are based upon (i) any untrue statement or
alleged untrue statement (as defined in the Companies Act) of a material fact
contained in the Summary Prospectus and the South African Retail Offering
Documents (or any amendment, supplement or replacement thereto), or (ii) any non-
compliance of the Summary Prospectus and the South African Retail Offering
Documents (or any amendment, supplement or replacement thereto) with the
requirements of the Companies Act or applicable South African regulatory
requirements or the JSE Listings Requirements.
If (a) a court of the Republic of South Africa renders a valid, final and
conclusive judgment to the effect that, or the conclusion of which is predicated on the
opinion that, the indemnity provided by the Company to the Underwriters pursuant to
clause 8.1 hereof is not legally enforceable under South African law, or, (b) any
Underwriter obtains a valid, final and conclusive judgment of a court of competent
jurisdiction against the Company for payment of indemnity pursuant to clause 8.1
hereof and in the reasonable opinion of the Company's independent accountants (who
shall be an internationally recognized accounting firm experienced in such matters)
the Company has insufficient assets to pay such judgment in full, the Selling
Shareholder agrees to indemnify and hold harmless each Underwriter, its directors
and officers, each person, if any, who controls such Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, and any
Involved Affiliate, to the same extent as if the Selling Shareholder were the Company
and as if the indemnity set forth in clause 8.1 hereof were legally enforceable (but
only to the extent of any shortfall in the sufficiency of the Company's assets if under
sub-clause (b) hereof), subject however, to the limitations set forth in clauses 8.1 and
8.5 hereof. The benefit of this clause 8.4 shall be available to an Indemnified Party
only to the extent that such Indemnified Party has in good faith pursued its rights
under clause 8.1. In the event that the Selling Shareholder pays any amounts to an
Indemnified Party pursuant to this clause 8.4, the rights under clause 8.1 of the
Indemnified Party so indemnified shall be subrogated to the Selling Shareholder.
The total amount to be paid by the Selling Shareholder to all Indemnified
Parties pursuant to the indemnifications provided by the Selling Shareholder
contained in clauses 8.2, 8.3 and 8.4 hereof (and any contribution in lieu thereof) shall
in no event exceed the total aggregate Purchase Price received by the Selling
Shareholder from the sale of the Offering Shares pursuant to this Agreement. If the
Selling Shareholder believes that the total amount to be paid to all Indemnified Parties
will exceed such limit, the Selling Shareholder may, in its sole discretion, defer
payment to any indemnified party until such amount is determined and pay all
Indemnified Parties their pro rata share of such amount.
Each Underwriter hereby agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who signed the Registration
Statement and/or the JSE Prospectus or the Summary Prospectus and each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and the Selling Shareholder to the same extent
as the indemnity set forth in clause 8.1 above but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any Underwriter
Information set forth in the Registration Statement (or any amendment thereof), or
any omission or alleged omission to state in such information a material fact required
to be stated in such Underwriter Information or necessary to make the statements in
such Underwriter Information not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Underwriter Information set forth
in the Preliminary Prospectus or the US Prospectus (or any amendment or supplement
thereto) or any omission or alleged omission to state therein a material fact required to
be stated in such Underwriter Information or necessary to make the statements in such
Underwriter Information, in light of the circumstances under which they were made,
not misleading, or (iii) any untrue statement or alleged untrue statement (as defined in
the Companies Act) of a material fact contained in any Underwriter Information set
forth in the JSE Prospectus (or any replacement thereto).
If any suit, action, proceeding (including any governmental or regulatory
investigation) claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to clauses 8.1, 8.2, 8.3, 8.4
or 8.6 of this clause 8, such person (the Indemnified Party) shall promptly notify the
person against whom such indemnification may be sought (the Indemnifying Party)
in writing; provided that the failure to notify the Indemnifying Party shall not relieve
the Indemnifying Party from any liability that the Indemnifying Party may have to an
Indemnified Party under this clause 8 except to the extent that the Indemnifying Party
has been materially prejudiced by such failure. If any such proceeding shall be
brought or asserted against an Indemnified Party and it shall have notified the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to participate
therein, and may, together with any other Indemnifying Party, assume the defense
thereof, with counsel reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party and any others entitled to indemnification pursuant to this clause 8
and shall pay the fees and expenses of such counsel related to such proceeding. In
any such proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall
have mutually agreed in writing to the retention of such counsel and the Indemnifying
Party shall have agreed in writing to bear such expenses or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and the Indemnified Party has been advised by
counsel thereof that representation of both parties by the same counsel would result in
a conflict of interest on the part of such counsel. Any such separate firm for any
Underwriter, its directors and officers, any control persons of such Underwriter, or
any Involved Affiliate, shall be designated in writing by the Joint Global
Co-ordinators, any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and/or the JSE Prospectus and/or Summary
Prospectus and any control persons of the Company shall be designated in writing by
the Company, and any such separate firm for the Selling Shareholder, its directors, its
officers who signed the Registration Statement and any control persons of the Selling
Shareholder shall be designated in writing by the Selling Shareholder. It is
understood and agreed that the Indemnifying Party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all
Indemnified Parties and that all such fees and expenses shall be paid or reimbursed as
they are reasonably incurred. An Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with
such consent or if there is a final judgment for the plaintiff, the Indemnifying Party
agrees to indemnify the Indemnified Party from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement (x) includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Party.
If the indemnification provided for in clauses 8.1, 8.2, 8.3. 8.4 or 8.6 of this
clause 8 is unavailable to an Indemnified Party or insufficient (other than in
accordance with the provisions thereof) in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Party under such paragraph, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (a) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Party or Parties, on the one hand, and the
Indemnified Party or Parties, on the other hand, from the offering of the Offering
Shares or (b) if the allocation provided above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in
subclause (a) above but also the relative fault of the Indemnifying Party or Parties, on
the one hand, and of the Indemnified Party or Parties, on the other hand, in connection
with the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The relative benefits
received by the Indemnifying Party or Parties, on the one hand, and the Indemnified
Party or Parties, on the other hand, shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Offering Shares (before
deducting expenses) received by the Selling Shareholder and the total underwriting
discounts and commissions received by the Underwriters in connection therewith, in
each case as set forth in the table on the cover of the US Prospectus, bear to the
aggregate Purchase Price of the Offering Shares pursuant to this Agreement. The
relative fault of the Company, the Selling Shareholder and the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholder or the
Underwriters and the parties relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholder and the Underwriters agree that it
would not be just or equitable if contribution pursuant to clause 8.8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in clause 8.8 above. The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding subclause shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with any such action or claim. Notwithstanding
the provisions of this clause 8, (a) the Selling Shareholder shall not be required to
contribute any amount in excess of the total aggregate Purchase Price received by the
Selling Shareholder from the sale of the Offering Shares pursuant to this Agreement
and (b) no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Offering Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this clause 8 are not
exclusive and shall not limit any rights or remedies that may otherwise be available to
any Indemnified Party at law or in equity. The Underwriters respective obligations
to contribute pursuant to this clause 8 are several in proportion to the respective
underwriting obligations as specified in Schedule 1 hereto, and not joint.
The obligations of the Selling Shareholder to sell the Sale Shares to the
Underwriters and the several obligations of the Underwriters to procure purchasers or
to purchase and pay for the Sale Shares are conditioned upon the Registration
Statement having become effective not later than [•] on [•], 2003, and the several
obligations of the Underwriters to purchase and pay for the Sale Shares are
conditioned upon the following further considerations:
On and as of the First Closing Date and the Subsequent Closing Date (if any),
as the case may be, (i) the representations and warranties of the Company and
the Selling Shareholder contained herein shall be true and correct, and (ii) the
statements of the Company and the Selling Shareholder made in any
certificates delivered pursuant to this Agreement shall be true and correct.
The following documents shall be delivered to the Underwriters prior to the
First Closing Date or the Subsequent Closing Date (if any), as the case may
(i) a legal opinion and letter addressed to the Underwriters from
Freshfields Bruckhaus ▇▇▇▇▇▇▇▇, United States counsel for the
Underwriters, dated the date of the First Closing and the Subsequent
Closing Date (if any), as the case may be;
(ii) a legal opinion and letter addressed to the Underwriters from Deneys
▇▇▇▇▇, Inc., South African counsel for the Underwriters, dated the date
of the First Closing and the Subsequent Closing Date (if any), as the
(iii) a legal opinion addressed to the Underwriters from Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the Company,
dated the date of the First Closing Date and the Subsequent Closing
Date (if any), as the case may be;
(iv) a legal opinion addressed to the Selling Shareholder from Paul,
Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the
Company, dated the date of the First Closing Date and the Subsequent
Closing Date (if any), as the case may be;
(v) a legal opinion and letter addressed to the Underwriters and the Selling
Shareholder from Werksmans Inc., South African counsel for the
Company, dated the First Closing Date and the Subsequent Closing
(vi) a legal opinion addressed to the Underwriters from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel to the Selling
Shareholder, dated the First Closing Date and the Subsequent Closing
Date (if any), as the case may be;
(vii) a legal opinion addressed to the Underwriters from ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ (Pty) Ltd., South African counsel to the Selling Shareholder,
dated the First Closing Date and the Subsequent Closing Date (if any),
(viii) a legal opinion from counsel for the Depositary, dated the date of the
First Closing and the Subsequent Closing Date (if any), as the case
(ix) the Company shall have furnished or caused to be furnished to the
Underwriters at the First Closing Date and the Subsequent Closing
Date (if any), as the case may be, certificates of officers of the
(x) the Selling Shareholder shall have furnished or caused to be furnished
to the Underwriters at the First Closing Date and the Subsequent
Closing Date (if any), as the case may be, certificates of officers of the
The US Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in accordance with
clause 4.8(a) hereof; the Registration Statement shall have become effective
under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of
The delivery to the Underwriters, the Company and the Selling Shareholder on
29 January 2003, the date of the registration of the JSE Prospectus with the
Registrar of Companies, the date hereof and the First Closing Date and the
Subsequent Closing Date (if any), as the case may be, of a letter from Ernst &
Young and KPMG; provided that the cut-off date shall be no more than five
Business Days prior to the delivery on January 29, 2003, and no more than
three Business Days prior to each other delivery.
The delivery to the Underwriters, the Company and the Selling Shareholder on
29 January 2003, the date of the registration of the JSE Prospectus with the
Registrar of Companies, the date hereof and the First Closing Date and the
Subsequent Closing Date (if any), as the case may be, of a letter from
PricewaterhouseCoopers and Deloitte & Touche; provided that the cut-off date
shall be no more than five Business Days prior to the delivery on January 29,
2003, and no more than three Business Days prior to each other delivery.
The delivery to the Underwriters, the Company and the Selling Shareholder on
29 January 2003, the date of the registration of the JSE Prospectus with the
Registrar of Companies, of a letter on certain non financial operating data
included in the JSE Prospectus and Summary Prospectus, from KPMG.
The delivery to the Underwriters, the Company and the Selling Shareholder on
the date hereof of a letter on certain non financial operating data included in
the JSE Prospectus and Summary Prospectus, from KPMG.
The delivery to the Underwriters, the Company and the Selling Shareholder on
the date hereof of a letter on certain non financial operating data included in
the US Prospectus from KPMG.
The delivery to the Underwriters, the Company and the Selling Shareholder on
the date hereof and the First Closing Date and the Subsequent Closing Date (if
any), as the case may be, of a letter from Ernst & Young; provided that the
cut-off date shall be no more than three Business Days prior to each delivery.
The delivery to the Underwriters, the Company and the Selling Shareholder on
the date hereof and the First Closing Date and the Subsequent Closing Date (if
any), as the case may be, of letters from PricewaterhouseCoopers and Deloitte
& Touche; provided that the cut-off date shall be no more than three Business
Days prior to each delivery.
The Sponsors' Mandate Agreement shall have been executed by the parties
The Stock Loan Agreement shall have been executed.
The Shareholders' Agreement between the Selling Shareholder and Thintana
Communications shall have been executed.
The Deposit Agreement between the Company, The Bank of New York, as
Depositary, and the holders from time to time of the ADRs issued thereunder
by the Depositary, shall have been executed by the Company and the
The JSE having admitted the Shares to listing on or before the First Closing
Date, subject to the attainment of a spread of shareholders acceptable to the
JSE and the submission of all supporting documents required by the JSE.
The New York Stock Exchange having admitted the ADSs to listing on or
before the First Closing Date, subject to official notice of issuance.
The registration of the JSE Prospectus and the Summary Prospectus by the
Registrar of Companies, Pretoria.
The lock-up agreements between the Underwriters and each of Thintana
Communications LLC and Ucingo Investments (Proprietary) Limited relating
to sales and certain other dispositions of Shares or certain other securities of
the Company, delivered to the Underwriters on or before the date hereof, shall
be in full force and effect on the First Closing Date.
The South African Retail Offering remaining open for the entire period from
[•] 2003 to [•] 2003, or such later date or dates and corresponding times as
may be agreed upon by the parties hereto.
The Underwriters shall have received such further information, certificates
and documents as they may reasonably request.
In the event that any of the foregoing conditions is not satisfied on or before
(i) the First Closing Date or (ii) the Subsequent Closing Date (if any), the
Underwriters shall be under no obligation to purchase the (a) US and Institutional
Firm Shares or the Default Shares or (b) the Additional Shares, respectively, and this
Agreement shall terminate.
The Joint Global Co-ordinators on behalf of the Underwriters may in their
discretion and by notice to the Company and the Selling Shareholder waive, or extend
the time for, satisfaction of any of the above conditions or of any part of them.
10. DEFAULTING UNDERWRITER
If, on the First Closing Date or the Subsequent Closing Date (if any), any
Underwriter shall fail to purchase and pay for any of the US and Institutional
Firm Shares or Additional Shares (if any), as the case may be, that it has
agreed to procure purchasers for or purchase hereunder on such date, the non-
defaulting Underwriters may in their discretion arrange for the purchase of
such Shares by other persons satisfactory to the Selling Shareholder on the
terms contained in this Agreement. If, within 36 hours after any such default
by any Underwriter, the non-defaulting Underwriters do not arrange for the
purchase of such Shares, then the Selling Shareholder shall be entitled to a
further period of 36 hours, which it may waive in its sole discretion, within
which to procure other persons reasonably satisfactory to the Joint Global Co-
ordinators to purchase such Shares on such terms. If other persons become
obligated or agree to purchase the Shares of a defaulting Underwriter, either
the non-defaulting Underwriters or the Selling Shareholder may postpone the
First Closing Date or the Subsequent Closing Date (if any), as the case may
be, for up to five Business Days in order to effect any changes that in the
opinion of counsel for the Company, the Selling Shareholder or the
Underwriters may be necessary in the Registration Statement and the US
Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare, without charge to the Company, any amendment,
supplement or replacement to the Registration Statement and the US
Prospectus that effects any such changes. As used in this Agreement, the term
Underwriter includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to
this clause 10, purchases Sale Shares that a defaulting Underwriter agreed but
If, after giving effect to any arrangements for the purchase of the US and
Institutional Firm Shares or Additional Shares of a defaulting Underwriter or
Underwriters by the non-defaulting Underwriters and the Selling Shareholder
as provided in paragraph (a) above, the aggregate number of US and
Institutional Firm Shares or Additional Shares that remain unpurchased on the
First Closing Date or the Subsequent Closing Date (if any), as the case may
be, does not exceed 30 per cent of the aggregate number of US and
Institutional Firm Shares or Additional Shares to be purchased on such date,
then the Selling Shareholder shall have the right to require each non-defaulting
Underwriter to purchase the number of US and Institutional Firm Shares or
Additional Shares that such Underwriter agreed to purchase hereunder on such
date plus such Underwriters pro rata share (based on the number of US and
Institutional Firm Shares or Additional Shares that such Underwriter agreed to
purchase hereunder on such date) of the US and Institutional Firm Shares or
Additional Shares of such defaulting Underwriter or Underwriters for which
such arrangements have not been made.
If, after giving effect to any arrangements for the purchase of the US and
Institutional Firm Shares or Additional Shares of a defaulting Underwriter or
Underwriters by the non-defaulting Underwriters and the Selling Shareholder
as provided in paragraph (a) above, the aggregate number of US and
Institutional Firm Shares or Additional Shares that remain unpurchased on the
First Closing Date or the Subsequent Closing Date (if any), as the case may
be, exceeds 30 per cent of the aggregate amount of US and Institutional Firm
Shares or Additional Shares to be purchased on such date, respectively, or if
the Selling Shareholder shall not exercise the right described in paragraph (b)
above, then this Agreement or, with respect to the Subsequent Closing Date,
the obligation of the Underwriters to purchase Additional Shares on the
Subsequent Closing Date, as the case may be, shall terminate.
Nothing contained herein shall relieve a defaulting Underwriter of any liability
it may have to the Selling Shareholder or any non-defaulting Underwriter for
damages caused by its default.
For the avoidance of doubt, other than paragraph (c) of this clause 10, nothing
contained in this clause 10 is intended to derogate from the obligation of the
Underwriters to purchase the Default Shares pursuant to clause 2(d) hereof.
11. TERMINATION; SURVIVAL
11.1 The Joint Global Co-ordinators may terminate this Agreement by notice to the
Company and the Selling Shareholder, after consultation with the Selling
Shareholder, at any time prior to the First Closing Date, or in the case of the
Additional Shares, prior to the Subsequent Closing Date (if any), if there has been,
occurred, since the time of execution of this Agreement, (i) any material adverse
change, or any development involving a prospective material adverse change, in the
condition (financial or otherwise), business, properties, management, shareholders'
equity or results of operations of the Group[, except as set forth or contemplated by
the Prospectuses]; (ii) a suspension or material limitation in trading in securities on or
by the New York Stock Exchange or the JSE; (iii) a general moratorium on
commercial banking activities in New York or South Africa declared by either the
United States or New York State authorities or the authorities of the Republic of
South Africa, respectively; (iv) the outbreak or escalation of hostilities involving the
United States or South Africa, or the declaration by the United States or South Africa
of a national emergency or war; or (v) any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
condition, financial, economic, political or other conditions, or the exchange rates or
exchange controls in South Africa or the United States; if the effect of any such event
specified in this clause 11.1, in the reasonable judgment of the Joint Global Co-
ordinators after consultation with the Selling Shareholder, makes it impracticable or
inadvisable to proceed with the Offering or the delivery of the Sale Shares on the
terms and in the manner contemplated by this Agreement and the Prospectuses.
11.2 If this Agreement is terminated pursuant to clauses 9.2, 10 or 11.1 hereof,
neither the Company nor the Selling Shareholder shall then be under any liability to
any Underwriter except as provided in clauses 6 and 8 hereof.
11.3 The indemnity and contribution provisions contained in clause 8 hereof and
the representations, warranties and other statements of the Company, the Selling
Shareholder, the Underwriters and the Global Co-ordinators contained in this
Agreement shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its officers or directors or any person
controlling the Company or by or on behalf of the Selling Shareholder and (ii)
acceptance of and payment for any of the Sale Shares.
Any notice or notification in any form to be given under this Agreement may be
delivered in person or sent by telex or facsimile promptly confirmed by a writing
delivered or sent by registered mail addressed to:
in the case of the Company:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: Company Secretary
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
in the case of the Selling Shareholder
The Minister for Communications of South Africa
Department of Communications
Ministry of Communications
Fax Number: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
The Minister for Public Enterprises
Department of Public Enterprises
Fax Number: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ (Pty) Ltd
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
in the case of the Underwriters:
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
Facsimile: + 44 207 325 8168
Attention: Equity Syndicate Desk
Freshfields Bruckhaus ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Any such notice shall take effect, in the case of delivery, at the time of delivery and,
in the case of telex or facsimile, at the time of receipt.
13.1 This Agreement shall constitute a binding agreement of the Company, the
Selling Shareholder and each of the Underwriters upon its execution and delivery by
the Company, the Selling Shareholder and the Joint Global Co-ordinators.
13.2 Time shall be of the essence of this Agreement.
13.3 This Agreement may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same agreement and any party may enter
into this Agreement by executing a counterpart.
13.4 This Agreement shall inure solely to the benefit of and be binding upon the
parties hereto and, to the extent provided in clause 8, their respective officers and
directors and any controlling persons referred to in clause 8 hereof and their
respective successors and permitted assigns. Nothing in this Agreement is intended or
shall be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Sale Shares from any Underwriter shall be deemed to be a successor or
assign merely by reason of such purchase.
13.5 This document contributes to the sole record of the Agreement between the
parties in regard to the subject matter thereof. No party shall be bound by any express
or implied term, representation, warranty, promise or the like, not recorded herein.
No amendment or waiver of any provision of this Agreement, nor any consent or
approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
13.6 Any action by the Underwriters hereunder may be taken by the Joint Global
Co-ordinators on behalf of the Underwriters, and any such action taken by the Joint
Global Co-ordinators shall be binding upon the Underwriters.
13.7 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
GOVERNING LAW AND JURISDICTION
14.1 Except as set forth in clause 14.2 below, this Agreement is governed by and
shall be construed in accordance with the laws of the State of New York.
14.2 The provisions of this Agreement set forth in subclauses (a) and (b) of this
clause 14.2 (collectively referred to as the South African Law Governed Provisions)
are governed by and shall be construed in accordance with the laws of the Republic of
provisions of this Agreement to the extent they relate to the South African
the provisions of this Agreement to the extent such provisions are applied in
relation to the JSE Prospectus, the Summary Prospectus, the South African
Retail Documents or to the offering to institutional investors in South Africa.
14.3 Each of the parties hereto irrevocably (a) agrees that any legal suit, action or
proceeding (together referred to as Proceedings) against the Company or the Selling
Shareholder brought by any Underwriter or by any person who controls any
Underwriter arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any court in the Republic of South Africa,
(b) waives, to the fullest extent it may effectively do so, any objection which it may
now or hereafter have to the laying of venue of any such Proceeding and (c) submits
to the non-exclusive jurisdiction of such courts in any such Proceeding. Each of the
Selling Shareholder and the Company hereby waives with respect to this Agreement
any right to claim sovereign immunity from jurisdiction or execution and any similar
defence, and irrevocably consents to the giving of any relief or the issue of any
process, including, without limitation, the making, enforcement or execution against
any property whatsoever (irrespective of its use or intended use) of any order or
judgment made or given in connection with any Proceedings.
14.4 Each of the parties hereto irrevocably further (a) agrees that any Proceedings
against the Company or the Selling Shareholder brought by any Underwriter or by
any person who controls any Underwriter arising out of or based upon this Agreement
(other than the South African Law Governed Provisions) may be instituted in any
court in the State of New York, (b) waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue of any
such Proceeding and (c) submits to the non-exclusive jurisdiction of such courts in
any such Proceeding. To the extent that any party hereto (including assignees of any
party's rights or obligations under this Agreement) may be entitled, in any New York
court, to claim for itself or its revenues, assets or properties, sovereign immunity from
service of process, from suit, from the jurisdiction of any court, from attachment in
aid of execution or enforcement of a judgment (interlocutory or final), or from any
other legal process, and to the extent that, in any such jurisdiction there may be
attributed such a sovereign immunity (whether claimed or not), each party hereto
irrevocably agrees not to claim, and hereby irrevocably waives, such sovereign
immunity. Without limiting the generality of the foregoing, each of the Selling
Shareholder and the Company agrees that the waivers set forth in this Section 14.4
shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of
1976 of the United States and are intended to be irrevocable for purposes of such act.
14.5 The Selling Shareholder hereby appoints [Ms. Thami Ngwevela, Consul-
General of the Republic of South Africa, at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, ▇▇▇, and her successors], as its authorized agent (the Selling Shareholder
Authorized Agent), to accept on its behalf service of any Proceedings arising out of or
based upon the New York Law Governed Provisions of this Agreement. Such
appointment shall be irrevocable, except that, if for any reason, [Ms. Ngwevela] shall
cease to be able to act as the Selling Shareholder Authorized Agent or shall cease to
have an address in the United States, the Selling Shareholder shall appoint another
person in the United States as its authorized agent. The Selling Shareholder
represents and warrants that the Selling Shareholder Authorized Agent has agreed to
act as such agent for service of process and agrees to take any and all action,
including the filing of any and all documents and instruments, that may be necessary
to continue such appointment in full force and effect as aforesaid. Service of Process
upon the Selling Shareholder Authorized Agent and written notice of such service to
the Selling Shareholder shall be deemed, in every respect, effective service of process
upon the Selling Shareholder.
14.6 The Company hereby appoints CT Corporation Systems as its authorized
agent (the Company Authorized Agent), to accept on its behalf service of any
Proceedings arising out of or based upon the New York Law Governed Provisions of
this Agreement. Such appointment shall be irrevocable, except that, if for any reason,
CT Corporation Systems shall cease to be able to act as the Company Authorized
Agent or shall cease to have an address in the United States, the Company shall
appoint another person in the United States as its authorized agent. The Company
represents and warrants that the Company Authorized Agent has agreed to act as such
agent for service of process and agrees to take any and all action, including the filing
of any and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Company Authorized Agent and written notice of such service to the Company shall
be deemed, in every respect, effective service of process upon the Company.
14.7 In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the Judgment Currency) other
than United States dollars, the Company and the Selling Shareholder will indemnify
each Underwriter against any loss incurred by such Underwriter as a result of any
variation as between (i) the rate of exchange at which the United States dollar amount
is converted into the Judgment Currency for the purpose of such judgment or order
and (ii) the spot rate of exchange in New York, New York, at which the Underwriter
on the date of payment of such judgment or order is able to purchase U.S. dollars with
the amount of Judgment Currency actually received by the Underwriter. If the U.S.
dollars so purchased are greater than the amount originally due to such Underwriter
hereunder, such Underwriter agrees to pay to the Company or the Selling
Shareholder, as the case may be, an amount equal to the excess of the U.S. dollars so
purchased over the amount originally due to such Underwriter hereunder. The
foregoing indemnity shall constitute a separate and independent obligation of the
Company, the Selling Shareholder and the Underwriters, as the case may be, and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term rate of exchange shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into United States
IN WITNESS of which this Agreement has been executed on the date written above.
The Republic of South Africa
For: Deutsche Bank AG London
For: ▇.▇. ▇▇▇▇▇▇ Securities Ltd.
By: Deutsche Bank AG London/ ▇.▇. ▇▇▇▇▇▇ Securities Ltd.
Telkom Directory Services (Proprietary) Limited
Swiftnet (Proprietary) Limited
Intekom (Proprietary) Limited
Telkom Communications International (Proprietary) Limited
Q-Trunk (Proprietary) Limited
Vodacom Group (Proprietary) Limited
Vodacom (Proprietary) Limited
Vodacom International Holdings (Proprietary) Limited
Vodacom Service Provider Company (Proprietary) Limited
Vodacom International Limited (Mauritius)
Vodacom Congo (R.D.C.) S.P.R.L.
Vodacom Mozambique (VM S.A.R.L.)
Vodacom Lesotho (Proprietary) Limited
UNDERWRITER INFORMATION [SUBJECT TO UPDATE]
WITH RESPECT TO THE JSE PROSPECTUS
the names of the Underwriters on the front cover page;
the names and addresses included under the captions Joint Lead Sponsors,
"Joint Global Co-ordinators" and "Joint Global Co-ordinators Consortium
Members" on the inside back cover page;
the names of the Underwriters in the table on page 187;
the text of the fourth paragraph on page 187;
the text of the seventh paragraph on page 188;
WITH RESPECT TO THE PRELIMINARY PROSPECTUS AND THE US PROSPECTUS
the names of the Underwriters on the front cover page;
the names of the Underwriters in the first table on page 187;
the text of the third paragraph on page 187;
the text of the eighth paragraph on page 188;
the names and addresses included under the captions "Joint Global Co-
ordinators" and "Joint Global Co-ordinators Consortium Members" on the
inside back cover page; and
the names of the Joint Global Co-ordinators on the back cover page.
1. INTERPRETATION.......................................................................................... 2
2. UNDERWRITING ............................................................................................ 7
3. CLOSING ......................................................................................................... 8
4. UNDERTAKINGS .......................................................................................... 10
COMMISSIONS; TERMS OF THE PUBLIC OFFERING............................. 15
6. EXPENSES...................................................................................................... 15
REPRESENTATIONS AND WARRANTIES ................................................ 16
INDEMNITY AND CONTRIBUTION .......................................................... 31
......................................................................... 36
10. DEFAULTING UNDERWRITER
.................................................................. 39
11. TERMINATION; SURVIVAL
....................................................................... 41
12. NOTICES......................................................................................................... 42
13. MISCELLANEOUS ........................................................................................ 44
14. GOVERNING LAW AND JURISDICTION
.................................................. 45
SCHEDULE 1 THE UNDERWRITERS ................................................................. 48
SCHEDULE 2 GOVERNMENT INFORMATION................................................. 49
SCHEDULE 3 INVOLVED AFFILIATES ............................................................. 50
SCHEDULE 4 SOUTH AFRICAN RETAIL OFFERING DOCUMENTS ............ 51
SCHEDULE 5 SUBSIDIARIES ............................................................................. 52
SCHEDULE 6 UNDERWRITER INFORMATION ............................................... 53
SCHEDULE 7 OVER-ALLOTMENT OPTION EXERCISE NOTICE ................. 54
