ANGLOGOLD XXXXXXX LIMITED
ORDINARY SHARES, PAR VALUE 25 ZAR CENTS
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UNDERWRITING AGREEMENT
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APRIL 10, 2006
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
UBS Limited
0 Xxxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
As Co-representatives of the several Underwriters
named in Schedule I hereto,
Ladies and Gentlemen:
AngloGold Xxxxxxx Limited, a public company with limited liability
incorporated under the laws of the Republic of South Africa (the "COMPANY"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to purchasers procured by the underwriters named in Schedule I hereto (the
"UNDERWRITERS"), for whom you are acting as co-representatives (the
"REPRESENTATIVES") or, failing that, to the Underwriters, an aggregate of
9,970,732 shares of Ordinary Shares, par value 25 ZAR cents ("STOCK"), of the
Company. Anglo South Africa Capital (Proprietary) Limited, a private company
with limited liability incorporated under the laws of the Republic of South
Africa (the "SELLING SHAREHOLDER") proposes, subject to the terms and conditions
stated herein, to sell to purchasers procured by the Underwriters or, failing
that, to the Underwriters, an aggregate of 16,328,313 shares of Stock and, at
the election of the Underwriters, up to additional 3,944,857 shares of Stock.
The aggregate of 26,299,045 shares to be sold by the Company and the Selling
Shareholder is herein called the "FIRM SHARES" and the aggregate of 3,944,857
additional shares to be sold by the Selling Shareholder is herein called the
"OPTIONAL SHARES". The Firm Shares and the Optional Shares that the Underwriters
elect to purchase pursuant to Section 2 hereof are herein collectively called
the "SHARES".
The Underwriters may elect to direct delivery of the Shares, or take
delivery of the Shares themselves, in the form of shares of Stock or in the form
of American Depositary Shares ("ADSS"). The ADSs are to be issued pursuant to a
deposit agreement, dated as of June 26, 1998, (as amended) among the Company,
Bank of New York, as depositary (the "DEPOSITARY"), and holders from time to
time of the American Depositary Receipts (the "ADRS") issued by the Depositary
and evidencing the ADSs (the "DEPOSIT AGREEMENT"). Each ADS will initially
represent the right to receive one share of Stock deposited pursuant to the
Deposit Agreement.
Except as used in Sections 2, 4, 10 and 12 herein, and except as the
context may otherwise require, references hereinafter to the Shares shall
include all of the shares of Stock, whether in the form of Shares or ADSs, which
may be sold pursuant to this Agreement.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) An "automatic shelf registration statement" as defined under
Rule 405 under the Securities Act of 1933, as amended, (the "ACT") on
Form F-3 (File No. 333-132622) in respect of the Shares has been filed
with the Securities and Exchange Commission (the "COMMISSION") not
earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective
on filing; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and to the
Company's knowledge no proceeding for that purpose has been initiated
or threatened by the Commission, and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Act has been received by the Company (the base prospectus filed as
part of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of
this Agreement, is hereinafter called the "BASIC PROSPECTUS"; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Shares filed with the Commission pursuant
to Rule 424(b) under the Act is hereinafter called a "PRELIMINARY
PROSPECTUS"; the various parts of such registration statement,
including all exhibits thereto and including any prospectus supplement
relating to the Shares that is filed with the Commission and deemed by
virtue of Rule 430B to be part of such registration statement, each as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "REGISTRATION
STATEMENT"; the Basic Prospectus, as amended and supplemented
immediately prior to
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the Applicable Time (as defined in Section 1(a)(iii) hereof), is
hereinafter called the "PRICING PROSPECTUS"; the form of the final
prospectus relating to the Shares filed with the Commission pursuant
to Rule 424(b) under the Act in accordance with Section 5(a)(i) hereof
is hereinafter called the "PROSPECTUS"; any reference herein to the
Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 6 of Form
F-3 under the Act, as of the date of such prospectus; any reference to
any amendment or supplement to the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any post-effective amendment to the Registration Statement, any
prospectus supplement relating to the Shares filed with the Commission
pursuant to Rule 424(b) under the Act and any documents filed under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus, or the Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
"issuer free writing prospectus" as defined in Rule 433 under the Act
relating to the Shares is hereinafter called an "ISSUER FREE WRITING
PROSPECTUS");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder, and
did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein or Selling Shareholder
Information (as defined in Section 1(b)(vii));
(iii) For the purposes of this Agreement, the "APPLICABLE TIME"
is 5:00 pm (Eastern Standard Time) on the
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date of this Agreement; the Pricing Prospectus as supplemented by
those Issuer Free Writing Prospectuses and other documents listed in
Schedule II(a) hereto, if applicable, taken together (collectively,
the "PRICING DISCLOSURE PACKAGE") as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on Schedule
II(a) or Schedule II(b) hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or the
Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure Package
as of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions
made in an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representatives or by the Selling Shareholder
expressly for use therein;
(iv) The documents incorporated by reference in the Pricing
Prospectus and the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder; provided that
no such documents were filed with the Commission since the
Commission's close of business on the business day (which term shall
mean for this subsection (a)(iv) any day when the Commission's office
in Washington D.C. is open for business) immediately prior to the date
of this Agreement and prior to the execution of this Agreement, except
as set forth on Schedule II(c) hereto and except for such other
documents as were delivered to you prior to the Applicable Time;
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(v) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement
and the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use therein or Selling
Shareholder Information;
(vi) A registration statement on Form F-6 (File No. 333-133049)
in respect of the ADSs has been filed with the Commission; such
registration statement, excluding exhibits, in the form heretofore
delivered to you for each of the other Underwriters has been declared
effective by the Commission in such form; no stop order suspending the
effectiveness of such registration statement has been issued and to
the Company's knowledge, no proceeding for that purpose has been
initiated or threatened by the Commission (the various parts of such
registration statement, including all exhibits thereto, each as
amended at the time such part of the registration statement became
effective, being hereinafter called the "ADS REGISTRATION STATEMENT");
and the ADS Registration Statement when it became effective conformed,
and any further amendments thereto will conform, in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not, as of the applicable
effective date, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(vii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Pricing Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, in each case
materially adverse to the Company and its subsidiaries taken as a
whole, otherwise than as
5
set forth or contemplated in the Pricing Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, there has not been any material
adverse change in the capital stock of the Company or any material
increase in the long term debt of the Company and its subsidiaries
taken as a whole or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries taken as
a whole, in each case otherwise than as set forth or contemplated in
the Pricing Prospectus;
(viii) The Company and its subsidiaries have good and marketable
title to all real property owned by them free and clear of all liens,
encumbrances and defects, and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases except, in each case, as
described in the Pricing Prospectus or as would not, individually or
in the aggregate, have a material adverse effect on the business
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole (a "MATERIAL ADVERSE EFFECT");
(ix) The Company is duly incorporated as a public company with
limited liability, and validly existing under the laws of the Republic
of South Africa, is not in bankruptcy, liquidation, receivership or
under judicial management (and no order or resolution therefore has
been presented and no notice of appointment of any liquidator,
receiver, administrative receiver, administrator or judicial manager
has been given) and has full power and authority under its memorandum
and articles of association and otherwise to own its assets and
conduct its business;
(x) The Company has an authorized and issued share capital as set
forth in the Pricing Prospectus, and all of the outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and not subject to further calls or assessment
by the Company and conform in all material respects to the description
of the Stock contained in the Pricing Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company
listed in Schedule III have been duly and validly authorized and
issued, are fully paid and not subject to further calls or assessment
by the Company and (except for directors' qualifying shares and except
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as set forth in the Pricing Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; all of the issued Stock has been duly listed and
admitted for trading on the JSE Limited, the New York Stock Exchange
(in the form of ADSs), the London Stock Exchange, Euronext Paris and
on the Australian Stock Exchange (in the form of Clearing House
Electronic Subregister System ("CHESS") Depositary Shares represented
by CHESS Depositary Interests ("CDIS"), the Ghana Stock Exchange (in
the form of ordinary Shares and Ghanian Depositary Shares) and are
quoted on Euronext Brussels (in the form of International Depositary
Receipts ("IDRS") (the "STOCK EXCHANGES"); the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive
or similar rights to acquire the Shares or the ADSs which have not
been complied with, extinguished or waived; there are no outstanding
rights, warrants or options to acquire, or instruments convertible
into or exchangeable for, any share capital or other equity interest
in the Company, or any contract, commitment, agreement, understanding
or arrangement of any kind relating to the issuance of any share
capital of the Company, any such convertible or exchangeable
securities or any such rights, warrants or options, or obligations of
the Company to issue, the Stock or any other class of capital stock of
the Company (in each case except as set forth in the Pricing
Prospectus); and there are no restrictions on subsequent transfers of
the Shares or ADSs except as described in the Pricing Prospectus or
under the securities laws of countries other than the United States
(except those restrictions imposed on affiliates of the Company by the
Act and rules promulgated thereunder) and the Republic of South
Africa;
(xi) The unissued Firm Shares to be issued and sold by the
Company to purchasers procured by the Underwriters or, failing that,
to the Underwriters, hereunder have been duly and validly authorized
by the Company and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued and fully paid and
not subject to further calls or assessment by the Company and will
conform, in all material respects, to the description of the Stock
contained in the Pricing Prospectus and, except as described in the
Pricing Prospectus, the issuance of the Firm Shares to be issued and
sold by the Company is not subject to any preemptive or similar rights
which have not been complied with, extinguished or waived;
(xii) The Deposit Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a valid
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and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; upon issuance by the Depositary of ADRs
evidencing ADSs, the deposit of Shares in respect thereof in
accordance with the provisions of the Deposit 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 the Deposit Agreement and the ADRs
conform in all material respects to the descriptions thereof contained
in the Pricing Prospectus;
(xiii) All consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities
(hereinafter referred to as a "GOVERNMENTAL AGENCY") having
jurisdiction over the Company (hereinafter referred to as "COMPANY
GOVERNMENTAL AUTHORIZATIONS") required to be obtained by the Company
for each of the deposit of Shares to be issued and sold by the Company
only, and the issuance of ADSs in respect thereof and for the
execution, delivery and performance by the Company of this Agreement
have been obtained or made and are in full force and effect including
the approval of the South African Reserve Bank in respect of the
Company's offering of Shares contemplated herein;
(xiv) All expressions of opinion, intention or expectation in the
Pricing Prospectus, including, without limitation, the estimates and
projections included under the caption "Prospectus Supplement
Summary", on the part of the Company, its directors or management are,
and in the Prospectus will be, fairly and honestly held and have been
made on reasonable grounds after due and careful consideration and
inquiry, in each case subject to the assumptions set forth therein and
to the risks and uncertainties contemplated under the captions
"Forward-looking Statements" and "Note Regarding Forward-looking
Statements" therein;
(xv) The issue and sale of the Firm Shares to be sold by the
Company hereunder and the deposit of the Firm Shares being deposited
by the Company with the Depository against issuance of the ADSs, the
execution and delivery of this Agreement and the compliance by the
Company with all of the provisions of, and performance of its
obligation under, this Agreement and the Deposit Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach or
8
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets
of the Company is subject, except as would not both (i) have a
Material Adverse Effect and (ii) adversely affect the consummation of
the transactions contemplated herein to a material extent, nor will
such action by the Company result in any violation of the provisions
of the Memorandum and Articles of Association or Bylaws of the Company
or any statute or any order, rule or regulation of any Governmental
Agency having jurisdiction over the Company or any of its properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such Governmental Agency is required for
the issue and sale by the Company of the Firm Shares or the
consummation by the Company of the transactions contemplated by this
Agreement except (A) the registration under the Act of the Shares, (B)
such Company Governmental Authorizations as have been duly obtained or
made and are in full force and effect and copies of which have been
furnished to you and (C) such Company Governmental Authorizations as
may be required under state securities or Blue Sky laws or any
securities laws of jurisdictions outside the Republic of South Africa
and the United States;
(xvi) Neither the Company nor any of its subsidiaries is in
violation of its Memorandum and Articles of Association or Bylaws or,
except as would not, individually or in the aggregate, have a Material
Adverse Effect, in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound;
(xvii) No stamp or other issuance or transfer taxes, levies or
duties or any other tax and no capital gains, income (other than
income tax payable by any Underwriters whose net income is generally
subject to tax by the Republic of South Africa or who perform any
services hereunder through a permanent establishment or a fixed base
in the Republic of South Africa), withholding or other taxes are
payable or will be payable immediately following the completion of the
transactions contemplated hereunder by or on behalf of purchasers of
the Shares procured by the Underwriters or the Underwriters to the
Republic of South Africa or any political subdivision or taxing
authority thereof or therein in connection with (A) the deposit by
9
the Company of Firm Shares with the Depositary against issuance of
ADSs, or (B) for the issuance, sale and delivery by the Company of
Firm Shares or ADSs to purchasers procured by the Underwriters or to
or for the respective accounts of the Underwriters or (C) the
performance by the Company of its obligations under this Agreement, it
being understood that any subsequent transfer of Shares by purchasers
procured by the Underwriters, or the Underwriters, may cause such
taxes to be payable;
(xviii) Neither the Company nor any of its subsidiaries has
taken, directly or indirectly, any action which was designed to or
which has constituted or which would reasonably be expected to cause
or result in stabilization or manipulation of the price of any
security of the Company, in each case in violation of applicable laws,
to facilitate the sale or resale of the Shares or ADSs;
(xix) The statements set forth or incorporated by reference in
the Pricing Prospectus and the Prospectus under the captions
"Description of Ordinary Shares and ADSs" and "Taxation" insofar as
they purport to constitute a summary of the matters set forth therein,
fairly summarize these matters in all material respects;
(xx) Other than as set forth in the Pricing Prospectus, there are
no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings are
threatened by any Governmental Agency or by any other person;
(xxi) The Company is not and, after giving effect to the offering
and sale of the Firm Shares to be sold by it and the application of
the proceeds thereof, will not be an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT");
(xxii) (A) (i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto for the purposes
of complying with Section 10(a)(3) of the Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus), and
(iii) at the time the
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Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c) under the Act) made any offer
relating to the Securities in reliance on the exemption of Rule 163
under the Act, the Company was a "well-known seasoned issuer" as
defined in Rule 405 under the Act; and (B) at the earliest time after
the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Securities, the Company was not
an "ineligible issuer" as defined in Rule 405 under the Act;
(xxiii) The audited financial statements included in the
Registration Statement and the Pricing Prospectus, together with the
related notes and schedules, fairly present in all material respects
the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Company and its subsidiaries for the
periods specified and have been prepared in compliance with the
requirements of the Act and in conformity with generally accepted
accounting principles as applied in the United States applied, except
as set forth in the Pricing Prospectus, on a consistent basis during
the periods presented; the other financial and statistical data set
forth in the Registration Statement and the Pricing Prospectus are
accurately presented and prepared on a basis materially consistent
with the financial statements and books and records of the Company;
and the Company and its subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not disclosed in the Registration
Statement and the Pricing Prospectus and that are required to be
disclosed therein;
(xxiv) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with the
International Financial Reporting Standards and generally accepted
accounting principles, and to maintain asset accountability; (C)
access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences;
(xxv) The Company and each of its subsidiaries have all licenses,
certificates, permits and other authorizations (including,
11
without limitation, all mineral rights, mining authorizations and
mining leases) issued by the appropriate Government Agencies (and have
made all required declarations and filings with such Governmental
Agencies), that are legally required for the ownership or lease of
their respective properties or the conduct of their respective
businesses as described in the Pricing Prospectus, except as described
in the Pricing Prospectus or where the failure to possess the same
would not, individually or in the aggregate, have a Material Adverse
Effect; except as described in the Pricing Prospectus or as would not,
individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of its subsidiaries has received or
expects to receive notice of any revocation or modification of any
such license, certificate, permit or authorization; and the Company
and each of its subsidiaries are in compliance with each of the same,
except for any non-compliance which would not, individually or in the
aggregate, have a Material Adverse Effect;
(xxvi) Ernst & Young, who have certified certain financial
statements of the Company and certain of its subsidiaries,
PricewaterhouseCoopers Inc., who have certified certain financial
statements of Societe des Mines de Morila S.A. and KPMG Inc., who have
certified certain financial statements of Societe d'Exploitation des
Mines d'Or de Sadiola S.A. are each independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder;
(xxvii) In each case except as described in the Pricing
Prospectus, the Company and its subsidiaries own or possess adequate
rights to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) legally required for
the conduct of their respective businesses, except those that would
not, individually or in the aggregate, have a Material Adverse Effect;
and, to the best knowledge of the Company, except as would not,
individually or in the aggregate, have a Material Adverse Effect, the
conduct of their respective businesses will not conflict with any such
rights of others and the Company and its subsidiaries have not
received any notice of any claim of infringement or conflict with any
such rights of others;
(xxviii) No labor disturbance by or dispute with employees of the
Company or any of its subsidiaries exists or, to the best knowledge of
the Company, is threatened, except as
12
described in the Pricing Prospectus or as would not have a Material
Adverse Effect;
(xxix) The Company and its subsidiaries (A) are in compliance
with any and all applicable laws (including the common law), rules,
regulations, ordinances, decrees, judgments, injunctions, permits,
licenses, authorizations, decisions, orders and other legally binding
requirements, in each case promulgated or declared by Governmental
Agencies in all countries and territories in which the Company or its
subsidiaries engage in mining or other business activities relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "ENVIRONMENTAL LAWS"); (B) have received and are in
compliance with all permits, licenses or other approvals issued by
Governmental Agencies and required of them under applicable
Environmental Laws to conduct their respective businesses; (C) have
not received any notice of any actual or potential liability under, or
investigation relating to, any Environmental Law; except, in each
case, as described in the Pricing Prospectus or as would not,
individually or in the aggregate, have a Material Adverse Effect; and
(xxx) Neither the Company nor any of its subsidiaries (if
acquired by the Company, then prior to its date of acquisition, to the
knowledge of the Company) has violated (i) any provision of the
Foreign Corrupt Practices Act of 1977 and the rules and regulations
promulgated thereunder or (ii) similar anti-corruption laws of all
other applicable jurisdictions, including those relating to political
donations and money laundering, and the rules, regulations or, to the
extent they have the force and effect of the law, guidelines, issued
or administered thereunder, in each case which violations are of a
character required to be disclosed in the Registration Statement.
(b) The Selling Shareholder represents and warrants to, and agrees
with, each of the Underwriters and the Company that:
(i) The Selling Shareholder is validly existing as a private
company with limited liability under the laws of the Republic of South
Africa and has the power and authority to enter into and perform its
obligations under this Agreement;
(ii) All consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any
Governmental Agency having jurisdiction over the Selling Shareholder
(hereinafter referred to as "SELLING SHAREHOLDER GOVERNMENTAL
AUTHORIZATIONS") required for the deposit of the
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Shares being deposited with the Depositary against issuance of the
ADSs to be delivered by the Selling Shareholder at each Time of
Delivery, for the sale and delivery of the Shares to be sold by the
Selling Shareholder hereunder and for the execution and delivery by
the Selling Shareholder of this Agreement, have been obtained,
including any requisite approval of the South African Reserve Bank in
respect of the Selling Shareholder's intended use of proceeds of its
sale of Shares; and the Selling Shareholder has the full right, power
and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Shares to be sold by it hereunder;
(iii) The sale of the Shares to be sold by the Selling
Shareholder, the execution and delivery of this Agreement, the deposit
of the Shares with the Depositary against issuance of the ADSs to be
delivered by the Selling Shareholder at each Time of Delivery
hereunder and the compliance by the Selling Shareholder with all of
the provisions of, and performance of these obligations under, this
Agreement and the Deposit Agreement and the consummation of the
transaction herein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Selling Shareholder is a party or by which the Selling Shareholder is
bound, or to which any of the property or assets of the Selling
Shareholder is subject, except as would not have a material adverse
effect on the consummation of the transaction contemplated hereby, nor
will such action result in any violation of the provisions of the
Memorandum and Articles of Association or Bylaws of the Selling
Shareholder or any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over the Selling Shareholder
or the property of the Selling Shareholder;
(iv) No stamp or other issuance or transfer taxes (except for
uncertificated securities tax), levies or duties or any other kind of
tax and no capital gains, income (other than income tax payable by any
Underwriters whose net income is generally subject to tax by the
Republic of South Africa or who perform any services hereunder through
a permanent establishment or a fixed base in the Republic of South
Africa), withholding or other taxes are payable or will be payable
immediately following the completion of the transactions contemplated
hereunder by or on behalf of purchasers of the Shares procured by the
Underwriters or Underwriters to the Republic of South Africa or any
political subdivision or taxing authority thereof or therein in
connection
14
with (A) the deposit by the Selling Shareholder of Shares with the
Depositary against issuance of ADSs, or (B) for the sale and delivery
by the Selling Shareholder of Shares or ADSs to purchasers procured by
the Underwriters or to or for the respective accounts of the
Underwriters or (C) the performance by the Selling Shareholder of its
obligations under this Agreement, it being understood that any
subsequent transfer of Shares by purchasers procured by the
Underwriters, or the Underwriters, may cause such taxes to be payable;
(v) The Selling Shareholder has, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof) the Selling
Shareholder will have, good and valid title to the Shares to be sold
by the Selling Shareholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares
and payment therefor pursuant hereto and thereto, good and valid title
to such Shares, free and clear of all liens, encumbrances, equities or
claims, will pass to purchasers procured by the Underwriters or the
several Underwriters, as applicable;
(vi) The Selling Shareholder has not taken nor will 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 any security of the
Company, in each case in violation of applicable laws, to facilitate
the sale or resale of the Shares;
(vii) The written information furnished to the Company by the
Selling Shareholder for use in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus
(it being understood that the only written information so furnished by
or on behalf of the Selling Shareholder is the information identified
in Schedule IV hereto) ("SELLING SHAREHOLDER INFORMATION") does not
and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which
they were made, not misleading;
(viii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Shareholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form
15
or statement specified by Treasury Department regulations in lieu
thereof);
2. Subject to the terms and conditions herein set forth,
(a) the Company agrees to issue and sell to purchasers procured by the
Underwriters or, failing that, to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to procure purchasers for
or, failing that, to purchase, or cause one of its affiliates (within the
meaning in Rule 405 under the Act) to purchase, from the Company, at a
purchase price per Share of rand 315 and per ADS of USD 51.25 (to the
extent that the Representatives make the election to direct delivery or
take delivery of the Shares in the form of ADSs pursuant to Section 4) the
respective number of Firm Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of Firm
Shares to be sold by the Company by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by purchasers procured
by that Underwriter or, failing that, by such Underwriter as set forth
opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased
by all of purchasers procured by the Underwriters or, failing that, by all
of the Underwriters from the Company hereunder;
(b) the Selling Shareholder agrees to sell to purchasers procured by
the Underwriters or, failing that, to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to procure purchasers
for or, failing that, to purchase, or cause one of its affiliates (within
the meaning in Rule 405 under the Act) to purchase, from the Selling
Shareholder, at a purchase price per Share of rand 315 and per ADS of USD
51.25 (to the extent that the Representatives make the election to direct
delivery or take delivery of the Shares in the form of ADSs pursuant to
Section 4) the respective number of Firm Shares (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying the aggregate
number of Firm Shares to be sold by the Selling Shareholder by a fraction,
the numerator of which is the aggregate number of Firm Shares to be
purchased by purchasers procured by that Underwriter or, failing that, by
such Underwriter as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the aggregate number of
Firm Shares to be purchased by all of purchasers procured by the
Underwriters or, failing that, by all of the Underwriters from the Selling
Shareholder hereunder; and
(c) in the event and to the extent that the Underwriters shall
exercise the election to procure purchasers for or, failing that, purchase
themselves, Optional Shares as provided below, the Selling Shareholder
agrees to sell to purchasers procured by the Underwriters or, failing that,
16
to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to procure purchasers for or, failing that, to purchase
from the Selling Shareholder, at the purchase price per Share set forth in
subsection (b) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted
by you so as to eliminate fractional shares) determined by multiplying such
number of Optional Shares by a fraction the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to
procure purchasers for or, failing that, purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which
is the maximum number of Optional Shares that all of the Underwriters are
entitled to procure purchasers for or, failing that, purchase hereunder.
The Selling Shareholder hereby grants to the Underwriters the right to
procure purchasers for or, failing that, purchase at their election up to
3,944,857 Optional Shares, at the purchase price set forth in subsection (b) of
this Section 2, for the sole purpose of covering sales of shares in excess of
the number of Firm Shares. Any such election to procure purchasers for or,
failing that, purchase Optional Shares may be exercised only by written notice
from you to the Selling Shareholder, given within a period of 30 calendar days
after the date of this Agreement and setting forth the aggregate number of
Optional Shares with respect to which this option is being exercised and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery or, unless you and the
Selling Shareholder otherwise agree in writing, earlier than two or later than
ten Business Days after the date of such notice.
As compensation to the Underwriters for their commitments hereunder,
the Company and the Selling Shareholder, as the case may be, at each Time of
Delivery will pay to the Representatives, for the accounts of the several
Underwriters, (a) an amount equal to rand 6.3 per Share for the Shares to be
delivered in the form of shares of Stock by the Company and the Selling
Shareholder hereunder, as the case may be, at each Time of Delivery and (b) an
amount equal to USD 1.025 per ADS for Shares to be delivered in the form of ADSs
by the Company and the Selling Shareholder hereunder, as the case may be, at
each Time of Delivery. The Representatives may accept payment of the
underwriting commission by offsetting the amount thereof against payment of the
amount payable pursuant to Section 4 hereof.
3. It is understood that the several Underwriters propose to offer the
Shares for sale, in each instance upon the terms and conditions set forth in the
Prospectus.
4. (a) With respect to all or a portion of the Shares to be purchased
and sold hereunder at each Time of Delivery, the Representatives, on behalf of
the several Underwriters, may elect to have ADSs delivered (to either or both of
17
purchasers procured by the Underwriters or the Underwriters) and paid for
hereunder in lieu of, and in satisfaction of, the Company and the Selling
Shareholder's obligations to sell to purchasers procured by the Underwriters or
the several Underwriters, as applicable, and the several Underwriters'
obligations to procure purchasers for or, failing that, to purchase, Firm Shares
and, in the case of the Selling Shareholder only, the Optional Shares. Written
notice of such election shall be given by the Representatives to the Company and
the Selling Shareholder at least four Business Days prior to such Time of
Delivery (the "NOTIFICATION TIME"). The number of Shares to be purchased by
purchasers procured by the Underwriters or, failing that, by the Underwriters as
a result of the making of such election shall be adjusted by the Representatives
so as to eliminate any fractional ADSs and the purchase price for ADSs so
delivered as a result of making such election shall be the purchase price as set
forth in Section 2 hereof.
(b) (i) The Shares to be delivered to purchasers procured by the
Underwriters or each Underwriter hereunder, as the case may be, in the form
of Shares of Stock shall be delivered by or on behalf of the Company and
the Selling Shareholder through the facilities of STRATE to the
Representatives for the account of such purchasers or Underwriters, as the
case may be, in such authorized denominations and registered in such names
as the Representatives may request by written notice to the Company and the
Selling Shareholder on or prior to the Notification Time.
(ii) If the election has been made in accordance with subsection
(a) above, the ADSs to be delivered to purchasers procured by the
Underwriters or each Underwriter hereunder, as the case may be, shall
be delivered by or on behalf of the Company and the Selling
Shareholder through the facilities of The Depository Trust Company to
the Representatives for the account of such purchasers or
Underwriters, as the case may be, in such authorized denominations and
registered in such names as the Representatives may request by written
notice to the Company and the Selling Shareholder on or prior to the
Notification Time.
(c) (i) With respect to Shares being delivered in the form of Shares,
such Shares shall be delivered against payment by, through or on behalf of
such Underwriter of the purchase price therefor by wire transfer of
same-day funds to the respective accounts specified by the Company and
Selling Shareholder in the Republic of South Africa, as the case may be, to
the Representatives at least two Business Days in advance of a Time of
Delivery.
(ii) With respect to Shares being delivered in the form of ADSs,
such ADSs shall be delivered against payment by, through or on behalf
of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the
18
respective accounts specified by the Company and Selling Shareholder,
as the case may be, to the Representatives at least two Business Days
in advance of a Time of Delivery;
(iii) Payment for the Firm Shares shall be made to the Company
and the Selling Shareholder by, (A) in the case of the Firm Shares to
be delivered in the form of Shares, wire transfer of South African
rand funds or other immediately available funds in Johannesburg and
(B) in the case of Firm Shares to be delivered in the form of ADSs, by
wire transfer of Federal (same day) or other immediately available
funds in New York, in each case against delivery of such Firm Shares
for the respective accounts of the several Underwriters by 11:00 a.m.,
London time, on April 20, 2006 or such other time and date as the
Representatives, the Company and Selling Shareholder may mutually
agree upon in writing, and, with respect to the Optional Shares, 11:00
a.m., London time, on the date specified by the Representatives in the
written notice given by the Representatives of the Underwriters'
election to exercise the option with respect to the delivery of such
Optional Shares, or such other time and date as the Representatives
and the Selling Shareholder may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "FIRST TIME
OF DELIVERY", such time and date for delivery of the Optional Shares,
if not the First Time of Delivery, is herein called the "SECOND TIME
OF DELIVERY", and each such time and date for delivery is herein
called a "TIME OF DELIVERY".
(d) It is understood and agreed by the parties hereto that no delivery
or transfer of Shares or ADSs to be purchased and sold hereunder at a Time
of Delivery shall be effective until and unless payment therefor has been
made pursuant hereto and the Company and the Selling Shareholder, as the
case may be, shall have furnished or caused to be furnished to the
Representatives, on behalf of the Underwriters at such Time of Delivery
certificates and other evidence reasonably satisfactory to the
Representatives of the execution in favor of purchasers procured by the
Underwriters or, failing that, the Underwriters, of the book-entry transfer
of Shares, whether by delivery of Shares in the Republic of South Africa
through STRATE or delivery of ADSs through the facilities of DTC.
(e) The Shares or ADSs shall be delivered to the Representatives at
each Time of Delivery for the respective accounts of purchasers procured by
the Underwriters as instructed by the Underwriters or for the accounts of
the several Underwriters, with all transfer and any issuance taxes or other
expenses (including, without limitation, any STRATE levy and insider trader
levy payable with respect to the Shares) payable in connection with or
issuance of the Shares or ADSs or the
19
transfer thereof to the Purchasers procured by the Underwriters or the
Underwriters duly paid by the Company or the Selling Shareholder in
accordance with Section 7 hereof.
(f) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Shares and ADSs and any additional documents
requested by the Underwriters pursuant to Section 8(s) hereof, will be
delivered at the offices of Xxxxx Xxxx & Xxxxxxxx, 00 Xxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (the "CLOSING LOCATION"), and the Shares and ADSs will be
delivered as specified in subsection (b) above, all at such Time of
Delivery. A meeting will be held at the Closing Location at 1:00 p.m.,
London time, on the Business Day next preceding such Time of Delivery, or
such time and place as may mutually be agreed upon in writing by the
Representatives, the Company and the Selling Shareholder, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 4 and Section 5, "BUSINESS DAY" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City, Johannesburg and London are
generally authorized or obligated by law or executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
(which term shall mean for this subsection 51(a)(i) any day when the
Commission's office in Washington D.C. is open for business) following
the execution and delivery of this Agreement; to make no further
amendment or any supplement to the Registration Statement, the Basic
Prospectus or the Prospectus prior to the last Time of Delivery which
shall be disapproved by you promptly after reasonable notice thereof;
to advise you, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any amendment or supplement to the Prospectus has
been filed and to furnish you with copies thereof; to file promptly
all material required to be filed by the Company with the Commission
pursuant to Rule 433(d) under the Act; to file promptly all reports
and any information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required in connection
with the offering or sale
20
of the Shares; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any preliminary prospectus
or other prospectus in respect of the Securities, of any notice of
objection of the Commission to the use of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act, of the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or 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 any preliminary prospectus or
other prospectus or suspending any such qualification, promptly to use
its best efforts to obtain the withdrawal of such order and in the
event of the issuance of any such notice of objection, promptly to
amend the Registration Statement in such manner as may be required and
permit offers in sales of to permit offers and sales of the
Securities; provided that, none of the foregoing shall preclude the
Company from discharging its obligations under the Act or the Exchange
Act;
(ii) If required by Rule 430B(h) under the Act, to prepare a form
of prospectus in a form approved by you and to file such form of
prospectus pursuant to Rule 424(b) under the Act not later than may be
required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus which shall be
disapproved by you promptly after reasonable notice thereof;
(iii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to take any action that would subject it to
general service of process in any jurisdiction where it is not
presently qualified or where it would be subject to taxation as a
foreign corporation;
(iv) If by the third anniversary (the "RENEWAL DEADLINE") of the
initial effective date of the Registration Statement, any of the
Shares remain unsold by the Underwriters, the Company will file, if it
has not already done so and is eligible to do so, a new automatic
shelf registration statement relating to
21
the Shares, in a form reasonably satisfactory to you. If at the
Renewal Deadline the Company is no longer eligible to file an
automatic shelf registration statement, the Company will, if it has
not already done so, file a new shelf registration statement relating
to the Shares, in a form reasonably satisfactory to you and will use
its best efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The Company will
take all other action necessary or appropriate to permit the public
offering and sale of the Shares to continue as contemplated in the
expired registration statement relating to the Shares. References
herein to the Registration Statement shall include such new automatic
shelf registration statement or such new shelf registration statement,
as the case may be;
(v) Prior to 10:00 a.m., London time, on the Business Day next
succeeding the date of this Agreement and during the period mentioned
below, to furnish the Underwriters with written and electronic copies
of the Prospectus in New York City or London in such quantities as you
may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required by law at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to
notify you and upon your request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect
such compliance, and in case any Underwriter is required to deliver a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a)
under the Act) in connection with sales of any of the Shares at any
time nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many written and electronic copies
as you may
22
request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(vi) To make generally available to the Company's securityholders
as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(vii) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or dispose, except as provided
hereunder, of shares of Stock or any securities of the Company that
are substantially similar to shares of Stock, including but not
limited to any options or warrants to purchase shares of Stock or any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially
similar securities (other than (A) in connection with any employee
option, bonus, profit sharing, pension, retirement, incentive, savings
or similar agreement, plan or award in effect as of the date of this
Agreement, (B) upon the conversion or exchange of convertible or
exchangeable securities outstanding as of the date of this Agreement
or (C) in consideration for the shares or assets of a company or as
part of a merger, acquisition, corporate reorganization or similar
transaction, provided however that the recipient of any shares of
Stock or other securities as contemplated by this clause (C) shall be
bound by the obligations set forth in this subsection (vii)) without
your prior written consent (which, with respect to clause C only,
shall not be unreasonably withheld by the Representatives where the
recipients of such Stock do not agree to be bound by restrictions
contemplated in this subsection (vii));
(viii) To pay the required Commission filing fees relating to the
Securities within the time required by Rule 456(b)(1) under the Act
without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) under the Act;
(ix) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the
Pricing Prospectus and Prospectus under the caption "Use of Proceeds";
23
(x) Not to (and to cause its subsidiaries not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which would reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company, in each
case in violation of applicable laws, to facilitate the sale or resale
of the Shares;
(xi) For so long as the Company has securities registered under
the Exchange Act, to use its reasonable best efforts to maintain its
listing of its ADSs on the New York Stock Exchange provided that the
Company may delist its ADSs from the New York Stock Exchange in
connection with preparing for an application to the Commission to
deregister its securities under the Exchange Act; and
(xii) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
(b) The Selling Shareholder agrees with each of the Underwriters:
(i) During the period beginning from the date hereof and
continuing to and including the date 270 days after the date of the
Prospectus, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose, except
as provided hereunder of shares of Stock or any securities of the
Company that are substantially similar to the shares of Stock,
including but not limited to any options or warrants to purchase
shares of Stock or any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities (other than in connection with
the sale by the Selling Shareholder of shares of Stock in the context
of an acquisition, merger, corporate reorganization or similar
transaction provided that the recipient of such shares of Stock in
such transactions shall be bound by the obligations set forth in this
subsection (i)) without your prior written consent;
(ii) Prior to each Time of Delivery, to deposit, or cause to be
deposited on its behalf, shares of Stock with the Depositary in
accordance with the provisions of the Deposit Agreement and the Letter
of Instruction to be dated as of such
24
Time of Delivery between the Company, the Selling Shareholder and the
Bank of New York (the "LETTER OF INSTRUCTION") and otherwise to comply
with the Deposit Agreement and such Letter of Instruction so that ADRs
evidencing ADSs will be executed (and, if applicable, countersigned)
and issued by the Depositary against receipt of such shares of Stock
and delivered to purchasers procured by the Underwriters or to the
Underwriters, as applicable, at such Time of Delivery;
(iii) Not to (and to cause its affiliates other than the Company
and its subsidiaries not to) take, directly or indirectly, any action
which is designed to or which constitutes or which would reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company, in each case in violation of
applicable laws, to facilitate the sale or resale of the Shares.
6. (a) Each of the Company and the Selling Shareholder represents and
agrees, severally and not jointly, that, without the prior consent of the
Representatives and the Company or Selling Shareholder, as applicable, it has
not made and will not make any offer relating to the Shares that would
constitute a "free writing prospectus" as defined in Rule 405 under the Act (a
"FREE WRITING PROSPECTUS"); each Underwriter (including, for the avoidance of
doubt, each Representative) represents and agrees that, without the prior
consent of the Company, the Selling Shareholder and the Representatives, it has
not made and will not make any offer relating to the Shares that would
constitute a Free Writing Prospectus; any such Free Writing Prospectus the use
of which has been consented to by the Company, the Selling Shareholder and the
Representatives is listed on Schedule II(a) or Schedule II(b) hereto;
(b) The Company has complied and will comply with the requirements of
Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending; and
(c) The Company agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of
which such Issuer Free Writing Prospectus would conflict with the
information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in light of the circumstances then prevailing, not misleading, the
Company will give prompt notice thereof to the Selling Shareholder and the
Representatives and, if requested by the Selling Shareholder or the
Representatives, will prepare and furnish without charge to the Selling
Shareholder and each Underwriter an Issuer Free Writing Prospectus or other
document which will correct such conflict, statement or omission;
25
provided, however, that the foregoing shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through the Representatives or by the
Selling Shareholder expressly for use therein.
7. The Company and the Selling Shareholder covenant and agree with one
another and, severally and not jointly, with the several Underwriters that (a)
the Company and the Selling Shareholder will, respectively, pay or cause to be
paid (based on whether the fee or expense is allocable to, and arises from, the
offering of the Shares to be sold by the Company or the Selling Shareholder, as
the case may be, hereunder and, if not so allocable, pro rata in proportion to
the number of Shares to be sold by the Company and the Selling Shareholder
hereunder) the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing, reproduction and filing of the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and
the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing this Agreement, any Blue Sky and Legal Investment
Memoranda, and closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(a)(iii) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) all fees and expenses in connection
with the listing of the Shares on the New York Stock Exchange, the JSE Limited,
Euronext Paris, the London Stock Exchange, the Australian Stock Exchange and
quoting on Euronext Brussels and the filing fees incident thereto; and the fees
and disbursements of counsel for the Underwriters in connection with, securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Shares; (v) to the Representatives for the account
of the several Underwriters, $300,000 in lieu of reimbursement of expenses; (vi)
the fees and disbursements of Underwriters' counsel in connection with the
transactions contemplated hereby but excluding any such fees and disbursements
incurred or arising in connection with any subsequent transfer, sale or delivery
by an Underwriter of Shares; (vii) all expenses and taxes arising as a result of
the deposit of the Shares with the Depositary and the issuance and delivery of
ADSs; (viii) the fees and expenses (including fees and disbursements of their
respective counsel) if any, of the Depositary and any custodian appointed, as
applicable, under the Deposit Agreement, other than the fees and expenses to be
paid by holders of the ADSs, as applicable; (ix) fees and expenses of the
Authorized Agent (as defined in Section 15 hereof); (x) the cost of preparing
stock certificates; (xi) the cost and charges of any transfer agent or
registrar; and (xii) all other reasonable costs and
26
expenses incident to the performance of the respective obligations of the
Company and the Selling Shareholder hereunder that are not otherwise
specifically provided for in this Section; (b) the Company will pay or cause to
be paid all stamp or other taxes, levies (including, without limitation, any
STRATE levy and xxxxxxx xxxxxxx xxxx payable) and duties and any other kind of
tax, including withholding tax, incurred or arising in connection with the
issuance and sale or delivery of Firm Shares by the Company to the purchasers
procured by the Underwriters or the Underwriters, as applicable, including all
taxes payable by any of the Underwriters arising from the reimbursement of any
expenses, other than income tax from any fee, commission or other compensation
received by such Underwriters in accordance with this Agreement; and (c) the
Selling Shareholder will pay or cause to be paid (i) all stamp or other taxes,
levies (including, without limitation, any STRATE levy and the xxxxxxx xxxxxxx
xxxx payable) and duties and any other kind of tax, including withholding tax,
incurred or arising in connection with the transfer, sale or delivery of Shares
by the Selling Shareholder to the purchasers procured by the Underwriters or the
Underwriters, as applicable, including all taxes payable by any of the
Underwriters arising from the reimbursement of any expenses, other than income
tax from any fee, commission or other compensation received by such Underwriters
in accordance with this Agreement, and (ii) the fees, disbursements and expenses
of the Selling Shareholder's counsel; it being understood that nothing in clause
(b) or (c) hereof is intended or shall be construed to include any stamp or
other taxes, expenses, levies (including, without limitation, any STRATE levy
and the xxxxxxx xxxxxxx xxxx payable) and duties and any other kind of tax,
including withholding tax, incurred or arising from any subsequent transfer,
sale or delivery of Shares by (A) a purchaser procured by the Underwriters or
(B) an Underwriter. In connection with clause (c) of the preceding sentence, the
Representatives agree to pay New York State stock transfer tax, and the Selling
Shareholder agrees to reimburse the Representatives for associated carrying
costs if such tax payment is not rebated on the day of payment and for any
portion of such tax payment not rebated. It is understood, however, that, except
as provided in this Section, and Sections 9 and 12 hereof, the Underwriters will
pay all of their own advertising expenses in connection with any offers they
make and any costs, expenses and fees, stamp or other taxes, levies (including,
without limitation, any STRATE levy and the xxxxxxx xxxxxxx xxxx payable) and
duties and any other kind of tax, including withholding tax, incurred or arising
from any subsequent transfer, sale or delivery of Shares by an Underwriter.
In each case, payment shall be made by or on behalf of the Company or
the Selling Shareholder within fourteen days of the date of the invoice from the
Representatives.
To the extent that the Company does not satisfy any of its obligations
owed to the Underwriters, if applicable, under this Section 7, the Selling
Shareholder shall not be liable to the Underwriters with respect to such
obligations of the Company. To the extent that the Selling Shareholder does not
27
satisfy any of its obligations owed to the Underwriters, if applicable, under
this Section 7, the Company shall not be liable to the Underwriters with respect
to such obligations of the Selling Shareholder.
8. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholder herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
Shareholder not be in breach of any of their obligations under this Agreement in
any respect that is material on or before such Time of Delivery, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; all material required to be filed by
the Company pursuant to Rule 433(d) under the Act shall have been filed
with the Commission within the applicable time period prescribed for such
filing by Rule 433; 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 no notice of objection of the Commission to the use of the
Registration Statement pursuant to Rule 401(g)(2) under the Act shall have
been received; no stop order suspending or preventing the use of the
Prospectus or any Issuer Free Writing Prospectus 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
your reasonable satisfaction;
(b) Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you their written opinion in the form set forth in Annex I(a)
hereto, dated such Time of Delivery and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) Shearman & Sterling, LLP, United States counsel for the Company,
shall have furnished to you their written opinion in the form set forth in
Annex I(b) hereto, dated such Time of Delivery.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
(d) Xxxxxx Xxxxxx Inc., South African counsel for the Company shall
have furnished to you their written opinion in the form set forth in Annex
I(c) hereto, dated such Time of Delivery;
28
(e) Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, shall
have furnished to you their written opinion in the form set forth in Annex
I(d) hereto, dated such Time of Delivery;
(f) Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Selling
Shareholder, shall have furnished to you their written opinion in the form
set forth in Annex I(e) hereto with respect to the Selling Shareholder,
dated such Time of Delivery;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
(g) Xxxxxx Xxxxxxx Xxxxxx, South African counsel for the Selling
Shareholder, shall have furnished to you their written opinion in the form
set forth in Annex I(f) hereto with respect to the Selling Shareholder,
dated such Time of Delivery;
(h) Xxxxx Xxxxxx, Special Counsel for the Selling Shareholder, shall
have furnished to you his written opinion in the form set forth in Annex
I(g) hereto with respect to the Selling Shareholder, dated such Time of
Delivery;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the Republic of South
Africa and in rendering an opinion with respect to the transfer of good and
valid title to the Shares to be delivered by the Selling Shareholder, such
counsel may rely upon a certificate of the Selling Shareholder in respect
of matters of fact as to ownership of and liens, encumbrances, equities or
claims on, the Shares sold by the Selling Shareholder, provided that such
counsel shall state that they believe that both you and they are justified
in relying upon such certificate;
(i) On each of the date of each Preliminary Prospectus, the date
hereof and each Time of Delivery, Ernst & Young shall have furnished to you
a letter or letters, dated the respective dates of delivery thereof to the
effect set forth in Annex II hereto (the executed copy of the letter
delivered on the date of this Agreement is attached as Annex II(a) hereto
and a draft of the form of letter to be delivered as of each Time of
Delivery is attached as Annex II(b) hereto);
(j) On each of the date of each Preliminary Prospectus, the date
hereof and each Time of Delivery, PricewaterhouseCoopers Inc. shall have
furnished to you a letter or letters, dated the respective dates of
delivery thereof to the effect set forth in Annex III hereto (the executed
copy of the letter delivered on the date of this Agreement is attached as
Annex III(a) hereto and a draft of the form of letter to be delivered as of
each Time of Delivery is attached as Annex III(b) hereto);
29
(k) On each of the date of each Preliminary Prospectus, the date
hereof and each Time of Delivery, KPMG Inc. shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof to the
effect set forth in Annex IV hereto (the executed copy of the letter
delivered on the date of this Agreement is attached as Annex IV(a) hereto
and a draft of the form of letter to be delivered as of each Time of
Delivery is attached as Annex IV(b) hereto);
(l) At and as of such Time of Delivery, neither the Company nor any of
its subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, in each
case materially adverse to the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Pricing
Prospectus, and (ii) since the respective dates as of which information is
given in the Pricing Prospectus there shall not have been any material
adverse change in the capital stock of the Company or any material increase
in the long term debt of the Company and its subsidiaries taken as a whole
or any change, or any development involving a prospective change, in or
affecting the business affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, in each case otherwise than as set forth or
contemplated in the Pricing Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Pricing Prospectus;
(m) On or after the Applicable Time until such Time of Delivery (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by rating agency Fitch or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, (ii) Fitch shall
not have publicly announced that it has under its surveillance or review,
with possible negative implications, its rating of the Company's debt
securities, and (iii) no nationally recognized statistical rating
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Company's
preferred stock;
(n) At and as of such Time of Delivery, the Company shall have
obtained and delivered to the Representatives executed copies of an
agreement from each of the directors of the Company, substantially to the
30
effect set forth in Section 5(a)(vii) hereof in form and substance
satisfactory to the Representatives;
(o) On or after the Applicable Time until such Time of Delivery there
shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange, the London Stock Exchange and/or the JSE Limited; (ii) a
suspension or material limitation in trading in the Company's securities on
the New York Stock Exchange or the JSE Limited; (iii) a general moratorium
on commercial banking activities in New York, the Republic of South Africa
or London declared by the relevant authorities, or a material disruption in
commercial banking or securities settlement or clearance services in the
United States, or the Republic of South Africa or the United Kingdom; (iv)
a change or development involving a prospective change in the Republic of
South Africa taxation adversely affecting the Shares or the transfer
thereof; (v) the outbreak or escalation of hostilities involving the United
States, the Republic of South Africa or the United Kingdom or the
declaration by the United States, the Republic of South Africa or the
United Kingdom of a national emergency or war or the occurrence of any
other calamity or crisis or any change in financial, political or economic
conditions or currency exchange rates or controls in the United States, the
Republic of South Africa or the United Kingdom or elsewhere, if the effect
of any such event specified in clause (v) or (vi) in the reasonable
judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(p) At and as of such Time of Delivery, the Shares shall continue to
be duly listed, subject to notice of issuance, on the JSE Limited, the New
York Stock Exchange (in the form of ADSs) and the London Stock Exchange;
(q) At and as of such Time of Delivery, the Depositary shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates satisfactory to you evidencing the deposit with it of the
Shares being so deposited against issuance of ADRs evidencing the ADSs to
be delivered by the Company and the Selling Shareholder at such Time of
Delivery, and the execution, countersignature (if applicable), issuance and
delivery of ADRs evidencing such ADSs pursuant to the Deposit Agreement;
(r) The Company shall have complied with the provisions of Section
5(a)(v) hereof with respect to the furnishing of prospectuses on the
Business Day next succeeding the date of this Agreement; and
31
(s) The Company and the Selling Shareholder shall have furnished or
caused to be furnished to you at and as of such Time of Delivery
certificates of officers of the Company and of the Selling Shareholder,
respectively, as to the accuracy of the representations and warranties of
the Company and the Selling Shareholder, respectively, herein at and as of
such Time of Delivery, as to the performance, in all material respects, by
the Company and the Selling Shareholder of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and the
Company shall have furnished or caused to be furnished certificates as to
the matters set forth in subsections (a) and (l) of this Section.
9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the ADS Registration Statement, the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer
Free Writing Prospectus or any "issuer information" filed or required to be
filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the ADS
Registration Statement the Registration Statement, the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment
or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein or Selling
Shareholder Information.
(b) The Selling Shareholder will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
ADS Registration Statement, the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus, or any amendment or supplement thereto or any Issuer Free
Writing Prospectus
32
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the ADS Registration Statement,
the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or
supplement thereto or any Issuer Free Writing Prospectus in reliance upon
and in conformity with the Selling Shareholder Information, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however,
that the Selling Shareholder shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the ADS Registration Statement, the Registration
Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement thereto, or
any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives expressly for use therein. The liability of the Selling
Shareholder under the indemnity agreement contained in this subsection (b)
shall be limited to an amount equal to the aggregate purchase price of the
Shares sold by the Selling Shareholder under this Agreement.
(c) Each Underwriter will indemnify and hold harmless the Company and
the Selling Shareholder against any losses, claims, damages or liabilities
to which the Company or the Selling Shareholder may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, the ADS
Registration Statement, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, the ADS
Registration Statement, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
33
Company and the Selling Shareholder for any legal or other expenses
reasonably incurred by the Company or the Selling Shareholder in connection
with investigating or defending any such action or claim as such expenses
are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Selling Shareholder on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided by
the immediately preceding
34
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (d) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the
Selling Shareholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Shareholder on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and the
Selling Shareholder bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares
purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault 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 or the Selling
Shareholder on the one hand or the Underwriters on the other 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 and
equitable if contributions pursuant to this subsection (e) 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 which does not take
account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several
in proportion to their respective underwriting obligations and not joint.
35
(f) The obligations of the Company and the Selling Shareholder under
this Section 9 shall be in addition to any liability which the Company and
the Selling Shareholder may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act and each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company (including any person who, with
his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls
the Company or the Selling Shareholder within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to procure
purchasers for or, failing that, refuse to purchase the Shares which it has
agreed to purchase hereunder at a Time of Delivery, you may in your discretion
arrange for you or another party or other parties to purchase such Shares on the
terms contained herein. If within thirty six hours after such default you do not
make arrangements satisfactory to you, the Company and the Selling Shareholder
for the purchase of such Shares, then the Company and the Selling Shareholder
shall be entitled to a further period of thirty six hours within which to
procure another party or other parties satisfactory to you to purchase such
Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company and the Selling Shareholder that you have so
arranged for the purchase of such Shares, or the Company and the Selling
Shareholder notify you that they have so arranged for the purchase of such
Shares, you or the Company and the Selling Shareholder shall have the right to
postpone such Time of Delivery for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term "UNDERWRITER" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Shareholder as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased does not
exceed one eleventh of the aggregate number of all of the Shares to be
purchased at such Time of Delivery, then the Company and the Selling
Shareholder shall have the right to require each non defaulting Underwriter
to purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to
36
require each non defaulting Underwriter to purchase its pro rata share
(based on the number of Shares which such Underwriter agreed to procure
purchasers for or, failing that, purchase hereunder) of the Shares of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Shareholder as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Shares to be purchased
at such Time of Delivery, or if the Company and the Selling Shareholder
shall not exercise the right described in subsection (b) above to require
non defaulting Underwriters to procure purchasers for or to purchase Shares
of a defaulting Underwriter or Underwriters, then this Agreement (or, with
respect to the Second Time of Delivery, the obligations of the Underwriters
to procure purchasers for or, failing that, purchase and of the Selling
Shareholder to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non defaulting Underwriter or the Company or
the Selling Shareholder, except for the expenses to be borne by the Company
and the Selling Shareholder and the Underwriters as provided in Section 7
hereof and the indemnity and contribution agreements in Section 9 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Shareholder and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholder, or any officer
or director or controlling person of the Company, or any controlling person of
the Selling Shareholder, and shall survive delivery of and payment for the
Shares.
12. If this Agreement shall be terminated pursuant to Section 10
hereof, neither the Company nor the Selling Shareholder shall then be under any
liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Shareholder as provided herein, the Company and the
Selling Shareholder pro rata (based on the number of Shares to be sold by the
Company and the Selling Shareholder hereunder) will reimburse the Underwriters
through you for all out of pocket expenses approved in writing by you, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the procuring of purchasers or, failing that, purchase,
sale and delivery of the Shares not so delivered, but the Company and the
Selling
37
Shareholder shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 7 and 9
hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by the Representatives on behalf of you as the
representatives; and in all dealings with the Selling Shareholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on by the Selling Shareholder.
All statements, requests, notices, agreements and other communications
hereunder shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to you as the representatives in
care of the Representatives at each of the following: (A) Xxxxxxx, Xxxxx & Co.
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, United States,
Attention: Registration Department, fax x0-000-000-0000 and (B) UBS Limited, 0
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxx, Attention: Equity Capital
Markets, fax: x00-00-0000-0000, with a further copy sent to x00-00-0000-0000
marked for the attention of Transactions Legal; if to the Selling Shareholder
shall be delivered or sent by mail or facsimile transmission to the attention of
the Selling Shareholder's Company Secretary, 00 Xxxx Xxxxxx, Xxxxxxxxxxxx 0000,
Xxxxx Xxxxxx, fax number: x00-00-000-0000, with a copy to Xxxxxxxxxxx X. Xxxx,
Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Xxxxxx
Xxxxxx, fax number x0-000-000-0000; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 9(d) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
or the Selling Shareholder by you upon request. Any such statements, requests,
notices, agreements and other communications shall, if sent by fax, conclusively
be deemed to have been given or served at the time of dispatch upon generation
of transmission confirmation and, if sent by post, be conclusively deemed to
have been received 48 hours from the time of posting.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Shareholder and, to
the extent provided in Sections 9 and 11 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Shareholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
38
15. Each of the parties hereto irrevocably (i) agrees that any legal
suit, action or proceeding 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 Federal or State court in the Borough of Manhattan, The
City of New York (each a "NEW YORK COURT"), (ii) waives, to the fullest extent
permitted by law any objection which it may now or hereafter have to the laying
of venue of any such proceeding and (iii) submits to the exclusive jurisdiction
of such courts in any such suit, action or proceeding. The Company has appointed
AngloGold Xxxxxxx North America Inc., 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000 and the Selling Shareholder has appointed CT
Corporation System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
their respective authorized agents (the "AUTHORIZED AGENTS") upon whom process
may be served in any such action arising out of or based on this Agreement or
the transactions contemplated hereby which may be instituted in any New York
Court by any Underwriter or by any person who controls any Underwriter,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable for
five years from the date of this Agreement. Each of the Company and the Selling
Shareholder represents and warrants that their respective Authorized Agents have
agreed to act as such agent for service of process and agree 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 an Authorized Agent and written notice of such service
to the Company or the Selling Shareholder, as applicable, shall be deemed, in
every respect, effective service of process upon the Company or the Selling
Shareholder, as applicable.
16. 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, as
the case may be, will, severally and not jointly, 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 rate of exchange at which an Underwriter is able to purchase United
States dollars with the amount of the judgment currency actually received by
such Underwriter. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and the Selling Shareholder 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 of the
judgment currency into United States dollars.
39
17. Time shall be of the essence of this Agreement, both as regards any
dates, times or periods mentioned and as regards any dates, times or periods
which may be substituted for them in accordance with this Agreement or by
agreement in writing between the parties.
18. The Company and the Selling Shareholder acknowledge and agree that
(i) the procurement of purchasers for or, failing that, the purchase of and sale
of the Shares pursuant to this Agreement is an arm's-length commercial
transaction between the Company and the Selling Shareholder, on the one hand,
and the several Underwriters, on the other, (ii) solely in connection therewith
and with the process leading to such transaction each Underwriter is acting
solely as a principal and not the agent or fiduciary of the Company or the
Selling Shareholder, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company or the Selling Shareholder with respect
to the offering contemplated hereby or the process leading thereto (irrespective
of whether such Underwriter has advised or is currently advising the Company or
the Selling Shareholder on other matters) or any other obligation to the Company
or the Selling Shareholder except the obligations expressly set forth in this
Agreement and (iv) the Company and the Selling Shareholder have consulted their
own legal and financial advisors to the extent each deemed appropriate. The
Company and the Selling Shareholder agree that they will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company or the Selling
Shareholder, in connection with such transaction or the process leading thereto.
This Agreement supersedes all prior agreements (except the engagement
letter between UBS Limited and the Company dated as of March 23, 2006) and
understandings (whether written or oral) between the Company, the Selling
Shareholder and the Underwriters, or any of them, with respect to the subject
matter hereof.
For the avoidance of doubt, the provisions of this Section 18 shall not
apply to or affect any obligation that any party may have to any other party
pursuant to the engagement letter referred to above.
19. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
20. The Company, the Selling Shareholder and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
21. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
40
* * * * *
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and for each of the Representatives plus
one for each counsel counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the
Company, the Selling Shareholder.
41
Very truly yours,
ANGLOGOLD XXXXXXX LIMITED
By: /s/ XXXXXXXXXX XXXXXXXXXXXXXXX
------------------------------------
Name: Xxxxxxxxxx Xxxxxxxxxxxxxxx
Title: Executive director, finance
ANGLO SOUTH AFRICA CAPITAL (PROPRIETARY)
LIMITED
By: /s/ XX XXXXXXXX
------------------------------------
Name: XX Xxxxxxxx
Title: Authorised Signatory
By: /s/ XXX XXXXXXX
------------------------------------
Name: Xxx Xxxxxxx
Title: Authorized Signatory
42
Accepted as of the date hereof at
London, United Kingdom
XXXXXXX, SACHS & CO.
By: /s/ XXXXXXX, XXXXX & CO.
------------------------------
Name:
Title:
UBS LIMITED
By: /s/ XXXXXX XXXXX
------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
UBS LIMITED
By: /s/ ETN XXXXXX
------------------------------
Name: ETN Xxxxxx
Title: Managing Director
For themselves and on behalf of each of the
several Underwriters listed in Schedule I hereto.
43
SCHEDULE I
Number of Optional
Shares to be Purchased
Total Number of Firm Shares to be if Maximum Option
Purchased Exercised
--------------------------------- ----------------------
Anglo South
Africa Capital Anglo South Africa
AngloGold (Proprietary) Capital (Proprietary)
Underwriter Xxxxxxx Limited Limited Limited
-------------------------------------- --------------- -------------- ---------------------
Xxxxxxx, Sachs & Co................... 3,988,293 6,531,326 1,577,944
UBS Limited........................... 3,988,293 6,531,325 1,577,943
X.X. Xxxxxx Securities Ltd............ 997,073 1,632,831 394,485
BMO Xxxxxxx Xxxxx Inc................. 997,073 1,632,831 394,485
Total.............................. 9,970,732 16,328,313 3,944,857
========= ========== =========
Sch-I
SCHEDULE II
(a) Materials other than the Pricing Prospectus that comprise the
Pricing Disclosure Package:
None
(b) Issuer Free Writing Prospectuses not included in the Pricing
Disclosure Package:
o Electronic roadshow related to the offering contemplated
herein recorded at Capetown, South Africa on March 29, 2006
and made available at xxxx://xxx.xxxxxxxxxxx.xxx.
(c) Additional Documents Incorporated by Reference:
None
Sch-II
SCHEDULE III
AngloGold Xxxxxxx Limited
AngloGold Holdings plc
AngloGold Offshore Investments Limited
AngloGold Xxxxxxx (Ghana) Limited
Geita Gold Mining Limited
Xxxxx Resources Ltd
Societe de Mines de Morila S.A.
Morila Limited
AngloGold Xxxxxxx Australia Limited
AngloGold Investments Australia Pty Ltd
AngloGold Finance Australia Limited
AngloGold Finance Australia Holdings Limited
AngloGold Australia Investment Holdings Limited
AngloGold Investments Australasia Limited
Cerro Vanguardia S.A.
Mineracao Serra Grande S.A.
Mineracao Morro Velho Ltda
AngloGold Brasil Ltda
AngloGold South America Ltd
Sch-III
SCHEDULE IV
1. The number of ordinary shares (but not the percentage) of the Company held
by the Selling Shareholder prior to and immediately after the offering, set
forth in the table in the first paragraph under the caption "Selling
Shareholder" in the Pricing Prospectus.
2. The second paragraph under the caption "Selling Shareholder" in the Pricing
Prospectus, regarding the ownership of the Selling Shareholder by Anglo
American plc and the beneficial ownership of the Company by Anglo American
plc.
3. The third paragraph under the caption "Selling Shareholder" in the Pricing
Prospectus, describing the Anglo American group.
4. The last sentence of the fourth paragraph, under the caption "Selling
Shareholder" in the Pricing Prospectus, regarding a reduction of the number
of such Anglo American plc-affiliated directors following a reduction in
the Selling Shareholder's ownership interest in the Company.
Sch-IV
