Exhibit 1.2
GOLD FIELDS LIMITED
Ordinary Shares
American Depositary Shares Representing Ordinary Shares
EQUITY UNDERWRITING AGREEMENT
[ ], 200-
Ladies and Gentlemen:
Gold Fields Limited (the "COMPANY"), a company incorporated under the
laws of South Africa, proposes to issue and sell, among other securities, from
time to time, ordinary shares, par value Rand 0.50 per share of the Company (the
"REGISTERED SECURITIES"). Particular offerings of the Registered Securities will
be sold pursuant to a Terms Agreement referred to in Section 1 hereof, for
resale in accordance with the terms of the offering determined at the time of
the sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 1 hereof is
hereinafter referred to as the "REPRESENTATIVE"; provided, however, that if the
Terms Agreement does not specify any representative of the Underwriters, the
term "REPRESENTATIVE", as used in this Agreement (other than in Section 3(b),
5(d) and 6 and the second sentence of Section 1(a)), shall mean the
Underwriters. The Offered Securities shall consist of firm commitment securities
("UNDERWRITTEN SHARES") and may consist of additional securities that the
Underwriters may purchase pursuant to an over-allotment option ("OPTION SHARES")
described in Section 1, as set forth in the Terms Agreement.
The Underwritten Shares and any Option Shares will constitute together,
the "SHARES". The Underwriters may elect to take delivery of some or all of the
Underwritten Shares purchased in an offering (the "UNDERWRITTEN ADS PORTION")
and, to the extent applicable, the Option Shares purchased in an offering (the
"OPTION ADS PORTION"), in the form of American Depositary Shares (collectively,
the "ADSs"), each representing one ordinary share, evidenced by American
Depositary Receipts (collectively, the "ADRs") issued by The Bank of New York as
depositary (the "DEPOSITARY"). The ADSs shall be comprised of depositary shares
representing Underwritten Shares (the "UNDERWRITTEN ADSs") and, to the extent
applicable, depositary shares representing Option Shares (the "OPTION ADSs").
The Underwritten Shares and the Underwritten ADSs are,
together, the "UNDERWRITTEN SECURITIES"; the Option Shares and the Option ADSs
are, together, the "OPTION SECURITIES"; and, for the avoidance of doubt, the
Shares and the ADSs together comprise the Offered Securities. Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Prospectus (as defined herein). Except as otherwise specified or as the context
otherwise implies, any reference herein to a Registration Statement, a
Preliminary Prospectus or a Prospectus (as those terms are defined herein) shall
be deemed to include the information contained in documents incorporated by
reference therein (the "INCORPORATED DOCUMENTS") pursuant to Item 6 of Form F-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"); and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the issue date of any Preliminary
Prospectus or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
1. Purchase of the Shares and ADSs by the Underwriters.
(a) The obligation of the Underwriters to purchase the Offered
Securities will be evidenced by an agreement or exchange of other written
communications ("TERMS AGREEMENT") at the time the Company determines to
issue and sell the Offered Securities, and, if applicable, to issue the
Underwritten ADS Portion to the Depositary so that the Depositary can issue
and the Company can sell the Underwritten ADSs. The Terms Agreement will
incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will
be Underwriters, the name of any Representative, the number of Offered
Securities to be purchased by each Underwriter and the purchase price to be
paid by the Underwriters. The Terms Agreement will also specify the time
and date of delivery and payment (such time and date, or such other time
not later than five full Business Days (as defined herein) thereafter as
the Representative and the Company agree (either such date, the "FIRST
CLOSING DATE"), or, in the case of the Option Securities, such time and
date specified by the Representative in the written notice of the
Underwriters' election to purchase such Option Securities (such date, if
other than the First Closing Date, the "ADDITIONAL CLOSING DATE" and, with
the First Closing Date each a "CLOSING DATE"), the place of delivery and
payment and any other details of the terms of the offering, including any
details that should be reflected in the Prospectus. For purposes of Rule
15c6-1 under the Exchange Act, the Closing Date (if later than the
otherwise applicable settlement date) shall be the date for payment of
funds and delivery of securities for all the Securities sold pursuant to
the offering, other than Contract Securities (as defined below), if any,
for which payment of funds and delivery of securities shall be as
hereinafter provided. The obligations of the Underwriters to purchase the
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Offered Securities will be several and not joint. It is understood
that the Underwriters propose to offer the Offered Securities for sale
as set forth in the Prospectus.
(b) If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the
Underwriters to solicit offers to purchase Offered Securities pursuant to
delayed delivery contracts substantially in the form of Schedule I attached
hereto ("DELAYED DELIVERY CONTRACTS") with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and
charitable institutions. On the Closing Date, the Company will pay, as
compensation, to the Representative for the accounts of the Underwriters,
the fee set forth in such Terms Agreement in respect of the number of
shares of Offered Securities to be sold pursuant to Delayed Delivery
Contracts ("CONTRACT SECURITIES"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Offered
Securities to be purchased by the several Underwriters and the number of
shares of Offered Securities to be purchased by each Underwriter will be
reduced pro rata in proportion to the number of shares of Offered
Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent the Representative determines that such
reduction shall be otherwise than pro rata and so advises the Company. The
Company will advise the Representative not later than the Business Day
prior to the Closing Date of the number of shares of Contract Securities.
(c) In addition, if the Terms Agreement so specifies, upon written
notice from the Representative given to the Company at any time not more
than 30 days subsequent to the First Closing Date (but not more than once),
the Underwriters may purchase all or less than all of any Option Securities
at the purchase price per Offered Security to be paid for the Underwritten
Securities. The Company agrees that it shall issue and sell to the
Underwriters the number of Option Securities, and, if applicable, issue the
Option ADS Portion to the Depositary so that the Depositary can issue and
the Company can sell the Option ADSs, specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Option
Securities. Unless the Terms Agreement provides otherwise, such Option
Securities shall be purchased for the account of each Underwriter in the
same proportion as the number of Underwritten Securities set forth opposite
such Underwriter's name bears to the total number of Underwritten
Securities (subject to adjustment by the Representative to eliminate
fractions) and may be purchased by the
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Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Underwritten Securities. No Option
Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The
Additional Closing Date shall be determined by the Representative but
shall be not later than five full Business Days after written notice
of election to purchase Option Securities is given. The term "BUSINESS
DAY" means any day other than a day on which banks are permitted or
required to be closed in New York City, London or Johannesburg
(d) The public offering of the Offered Securities in the United States
and, if applicable, the offering of the Offered Securities elsewhere
outside the United States to investors as described in the Terms Agreement
and Prospectus are, together, the "OFFERING". The Company acknowledges and
agrees that the Underwriters may offer and sell the Offered Securities to
or through any affiliate of an Underwriter and that any such affiliate may
offer and sell the Offered Securities purchased by it to or through any
Underwriter.
(e) On each Closing Date, and subject to payment being made as set
forth in the applicable Terms Agreement, upon receipt from the Underwriters
of purchasers' details, including, where applicable, Central Securities
Depositary Participant (each a "CSDP") safe custody numbers, and in
accordance with such information, the Company shall (A) with respect to the
Shares, allot and issue Shares in certificated form in the names of the
purchasers, or, where so required by the Representative, give instructions
to STRATE to allot and issue Shares in dematerialized form through one or
more CSDPs (as directed by the Representative), and (B) with respect to the
ADSs, procure the allotment and issue of the ordinary shares underlying the
ADSs in certificated form, or, where so required by the Representative,
give instructions to STRATE to allot and issue Shares underlying ADSs in
dematerialized form, in either case in the name of Standard Bank of South
Africa or such other entity as may be designated in the applicable Terms
Agreement as local agent for the Depositary, deposit any certificates in
respect of underlying ordinary shares with the Depositary pursuant to the
terms of the Deposit Agreement, and procure that the Depositary issues and
delivers to the several Underwriters or to their order in such place as the
Representative may reasonably require, the ADRs duly executed in accordance
with the provisions of the Deposit Agreement, in the case of both clause
(A) and (B) above in such amounts as the Representative may request in
writing no later than three Business Days before the First Closing Date or
such other time as may be designated in the applicable Terms Agreement or
no later than two Business Days before the Additional Closing Date, or such
other time as may be designated in the applicable Terms Agreement, as the
case may be.
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2. Representations and Warranties of the Company. The Company, as of the
date of each Terms Agreement referred to in Section 1, represents and warrants
to each Underwriter that:
(a) Registration Statement. The Company has prepared and filed with
the Securities and Exchange Commission (the "COMMISSION") under the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement on Form F-3 (File No. 333--) including a base prospectus,
relating to the Company's equity and debt securities and the offering
thereof from time to time, and such registration statement has become
effective. Such registration statement, as amended at the date of any Terms
Agreement referred to in Section 1 hereof (including the information, if
any, deemed pursuant to Rule 430A under the Securities Act to be part of
the registration statement at the time of its effectiveness), is referred
to herein as the "REGISTRATION STATEMENT". As used herein, the term
"PRELIMINARY PROSPECTUS" means the base prospectus included in the
Registration Statement, together with any preliminary prospectus supplement
that describes the Offered Securities and the offering thereof and is used
prior to the filing of the Prospectus, and the term "PROSPECTUS" means the
base prospectus included in the Registration Statement, together with a
prospectus supplement that describes the Offered Securities and the
Offering thereof and is filed with the Commission pursuant to Rule 424(b)
under the Securities Act.
(b) Preliminary Prospectus. No order preventing or suspending the use
of any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in all
material respects with the requirements of the Securities Act and did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon
and in conformity with information furnished to the Company in writing by
such Underwriter through the Representative expressly for use in any
Preliminary Prospectus and set forth in Section 6(b) below.
(c) Registration Statement and the Prospectus. The Company has
reasonable grounds to believe that it meets the requirements for the use of
Form F-3 under the Securities Act; no order suspending the effectiveness of
the Registration Statement has been issued by the Commission and no
proceeding for that purpose has been initiated or, to the knowledge of the
Company, threatened by the Commission; as of the effective date of the
Registration Statement relating to the Offered
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Securities and any amendment thereto, the Registration Statement complied
and will comply in all material respects with the requirements of the
Securities Act, and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and as of the date of each Terms Agreement referred to in
Section 1, and as of the applicable time of filing the Prospectus and any
amendment or supplement thereto, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with
information furnished to the Company in writing by such Underwriter through
the Representative expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto.
(d) Incorporated Documents. The Incorporated Documents, when they were
filed, complied in all material respects with the applicable requirements
of the Exchange Act and the rules thereunder.
(e) ADS Registration Statement. Registration statements on Form F-6
(File Nos. 333-88724 and 333-92122) in respect of the ADSs have been filed
with the Commission and have been declared effective (each such
registration statement, including all exhibits thereto and documents
incorporated by reference therein, as amended at the date, time it became
effective hereinafter called an "ADS REGISTRATION STATEMENT"); and no order
suspending the effectiveness of an ADS Registration Statement has been
issued and no proceeding for that purpose has been initiated or, to the
knowledge of the Company, threatened by the Commission. Each ADS
Registration Statement, when it became effective, complied in all material
respects with, and each amendment or supplement thereto, when it became or
becomes effective, as the case may be, or was or is filed with the
Commission, as the case may be, complied or will comply in all material
respects with, the requirements of the Securities Act and the rules and
regulations thereunder, and did not and will not include an untrue
statement of a material fact and did not omit and will not omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading.
(f) Financial Statements. The consolidated financial statements and
the related notes thereto included in the Registration Statement and the
Prospectus present fairly, in all material respects, the financial position
of the Company and its subsidiaries as of the dates indicated and the
results of their operations and the changes in their cash flows for the
periods specified; such financial statements have been
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prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods covered thereby, and
the supporting schedules included in the Registration Statement and the
Prospectus present fairly the information required to be stated therein;
and the other financial information included in the Registration Statement
and the Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly, in all material respects,
the information shown thereby.
(g) No Material Adverse Change. Since the date of the latest audited
financial statements in the Prospectus (i) there has not been any change in
the authorized and issued share capital (other than pursuant to the
Company's share option schemes) or long-term debt of the Company or any of
its "MATERIAL SUBSIDIARIES" (which term shall mean the subsidiaries of the
Company set forth in the Terms Agreement), or any development involving a
prospective material adverse change, in or affecting the business,
properties, management, financial position, shareholders' equity, or
results of operations of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its Material Subsidiaries has entered
into any transaction or agreement that is material to the Company and its
Material Subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company and its
Material Subsidiaries taken as a whole; except in each case as described in
the Prospectus.
(h) Organization and Good Standing. Except as described in the
Prospectus, the Company and each of its Material Subsidiaries have been
duly organized and are validly existing and in good standing (where the
term or concept of good standing is applicable) under the laws of their
respective jurisdictions of organization, are duly qualified to do business
and are in good standing (where the term or concept of good standing is
applicable) in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to be so qualified or in good
standing or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
management, financial position, shareholders' equity, results of operations
or prospects of the Company and its subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(i) Share Capital of the Company. The authorized and issued share
capital of the Company as set forth in the Prospectus under the heading
"Capitalization" (and therefore, for the avoidance of doubt, excluding any
subsequent issuances, if any, pursuant to reservations or
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agreements referred to in the Prospectus) is accurate as of the date
indicated in the Prospectus; the outstanding share capital of the Company
has been duly and validly authorized and issued, is fully paid and is not
subject to any pre-emptive or similar rights which have not been complied
with, extinguished or waived, except as described in the Prospectus,
conforms in all material respects to the description thereof contained in
the Prospectus, and except as described in or expressly contemplated by the
Prospectus, 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.
(j) Share Capital of Material Subsidiaries of the Company. The
outstanding share capital of each Material Subsidiary has been duly and
validly authorized and issued, is fully paid and is not subject to any
pre-emptive or similar rights which have not been complied with,
extinguished or waived, except as described in the Prospectus, conforms in
all material respects to the description thereof (to the extent such share
capital is so described) contained in the Prospectus, and except as
described in or expressly contemplated by the Prospectus, (i) with respect
to each Material Subsidiary's share capital or other equity interest owned
directly or indirectly by the Company, 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 any
Material Subsidiary, or any contract, commitment, agreement, understanding
or arrangement of any kind relating to the issuance of any such share
capital of any such Material Subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options, and (ii)
the outstanding share capital or other equity interests in each Material
Subsidiary, to the extent owned directly or indirectly by the Company, are
free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party.
(k) Due Authorization. The Company has full right, power and authority
to execute and deliver this Agreement and the deposit agreement (the
"DEPOSIT AGREEMENT", and, together with this Agreement, the "TRANSACTION
DOCUMENTS") among the company, the Depositary, and holders from time to
time of ADRs. The company has full right, power and authority to perform
its obligations under the Transaction Documents, and all action required to
be taken for the due and proper authorization, execution and delivery of
each of the Transaction Documents and the consummation of the transactions
contemplated thereby has been duly and validly taken. The Terms Agreement
(including the provisions of this
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Agreement) and any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company.
(l) The Securities. The Offered Securities to be issued and sold by
the Company under the Terms Agreement have been duly authorized by the
Company and, when issued and delivered and paid for as provided under the
Terms Agreement, will be duly and validly issued and will be fully paid,
will be freely transferable and free of liens and encumbrances, and will
conform in all material respects to the descriptions thereof in the
Prospectus; and, except as described in the Prospectus, the issuance of the
ordinary shares is not subject to any preemptive or similar rights which
have not been complied with, extinguished or waived.
(m) Stamp Duty. Except as described in the Prospectus, no stamp or
other issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes, are payable to South Africa or any political
subdivision or taxing authority thereof or therein by or on behalf of any
Underwriter (other than South African tax payable by reason of the fact
that its income generally is subject to tax in South Africa) as a result of
or in connection with: (i) the deposit by the Company with the Depositary
of Shares against the issuance of ADRs; (ii) the allotment, issuance, sale
and delivery by the Company to or for the respective accounts of the
Underwriters of the Securities; or (iii) the sale and delivery inside or
outside of South Africa by the Underwriters of Securities to the initial
purchasers thereof in the manner contemplated in the Terms Agreement, for
so long as such sale and delivery takes place at the same price as the
Underwriters' acquisition of Securities from the Company, provided that the
aforementioned representation and warranty does not cover such taxes
payable by the Company or by initial purchasers.
(n) Deposit Agreement. The Deposit Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, reorganization, or
similar laws affecting creditors' rights generally or by equitable
principles relating to enforceability.
(o) Descriptions of the Transaction Documents. Each Transaction
Document conforms in all material respects to the description thereof
contained in the Prospectus.
(p) No Violation or Default. Except as described in the Prospectus,
neither the Company nor any of its Material Subsidiaries is (i) in
violation of its Memorandum of Association or Articles of Association
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or similar organizational documents; (ii) in default, and no event has
occurred that, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its Material Subsidiaries is a party or by which the Company or any of its
Material Subsidiaries is bound or to which any of the property or assets of
the Company or any of its Material Subsidiaries is subject; or (iii) in
violation of any law or statute or any judgment, order, rule or regulation
of any court or arbitrator or governmental or regulatory authority having
jurisdiction over the Company or any of its properties except, in the case
of clauses (ii) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, have a Material Adverse
Effect.
(q) No Conflicts. Except as described in the Prospectus, the
execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Offered Securities and
the consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Material Subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its Material Subsidiaries is subject, (ii) result in any violation of the
provisions of the Memorandum of Association or Articles of Association or
similar organizational documents of the Company or any of its Material
Subsidiaries or (iii) result in the violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority; except, in the case of (i) and (iii)
above, for any such breach, violation or default which would not,
individually or in the aggregate have a Material Adverse Effect.
(r) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution,
delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Offered Securities and the
consummation of the transactions contemplated by the Transaction Documents,
except for the registration of the Offered Securities under the Securities
Act, approval of the South African Reserve Bank in respect of the Company's
intended use of the proceeds of the Offering, any consents or filings as
may be required under applicable state securities or blue sky laws, the
consent required by the JSE Securities Exchange South Africa or
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any consents required for the listing of the Securities on the Premier
Marche of Euronext Paris, the SWX Swiss Exchange or the Official List of
the UK Listing Authority and such other consents and approvals as are
specified in the Terms Agreement.
(s) Legal Proceedings. Except as described in the Prospectus, there
are no legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its Material
Subsidiaries is or may be a party or to which any property of the Company
or any of its Material Subsidiaries is or may be the subject that,
individually or in the aggregate, if determined adversely to the Company or
any of its Material Subsidiaries, would have a Material Adverse Effect or
materially and adversely affect the ability of the Company to perform its
obligations under the Transaction Documents; no such investigations,
actions, suits or proceedings are threatened or, to the best knowledge of
the Company, contemplated by any governmental or regulatory authority or
threatened by others; and there are no statutes, regulations or contracts
or other documents that are required under the Securities Act to be filed
as exhibits to the Registration Statement, the Prospectus or an ADS
Registration Statement or described in the Registration Statement, the
Prospectus or an ADS Registration Statement or the Prospectus, that are not
so filed or described.
(t) Independent Accountants. PricewaterhouseCoopers Inc., or such
other independent accountants reasonably satisfactory to the
Representative, who have certified certain financial statements of the
Company and its subsidiaries, are independent public accountants with
respect to the Company and its subsidiaries as required by the Securities
Act.
(u) Title to Real and Personal Property. Except as described in the
Prospectus, the Company and its Material Subsidiaries have good and
marketable title to, or have valid rights to lease or otherwise use, all
items of real and personal property, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made and proposed
to be made of such property by the Company and its Material Subsidiaries or
(ii) would not, individually or in the aggregate, have a Material Adverse
Effect.
(v) Title to Intellectual Property. Except as described in the
Prospectus, the Company and its Material 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,
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systems or procedures) necessary 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,
the conduct of their respective businesses will not conflict in any
material respect with any such rights of others, and the Company and its
Material Subsidiaries have not received any notice of any claim of
infringement or conflict with any such rights of others.
(w) Licenses and Permits. Except as described in the Prospectus, the
Company and its Material Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by, and have made all declarations
and filings with, the appropriate South African, Australian, Ghanaian and
other governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material Adverse
Effect; and except as described in the Prospectus, neither the Company nor
any of its Material Subsidiaries has received or expects to receive notice
of any revocation or modification of any such license, certificate, permit
or authorization.
(x) Mineral Permissions. The Company and its subsidiaries hold all
mineral rights, mining authorizations and mining leases sufficient to
enable the Company and its subsidiaries to carry out their current mining
operations and exploration activities as described in the Prospectus
(collectively, the "MINERAL PERMISSIONS"); the Mineral Permissions are
validly granted and continue in effect; and the Company and its
subsidiaries are in compliance with the terms of the Mineral Permissions;
except, in each case referred to in this sub clause (x), as described in
the Prospectus or such as would not, individually or in the aggregate, have
a Material Adverse Effect.
(y) Passive Foreign Investment Company. The Company is not, and as a
result of the offer of the Offered Securities will not become, a passive
foreign investment company within the meaning of Section 1297 of the United
States Internal Revenue Code of 1986, as amended.
(z) Investment Company Act. The Company is not and, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Registration
Statement and the Prospectus, will not be an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission thereunder (collectively,
"INVESTMENT COMPANY ACT").
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(aa) Taxes. The Company and its Material Subsidiaries have filed all
tax returns required to be filed through the date of the Terms Agreement
and have paid all taxes shown thereon to the extent that such taxes have
become due, except for such amounts that are being contested in good faith
by the Company or any of its subsidiaries or would not, individually or in
the aggregate, have a Material Adverse Effect if resolved against the
Company; and except as described in the Prospectus, there is no tax
deficiency that has been, or, to the knowledge of the Company, could
reasonably be expected to be, asserted against the Company or any of its
Material Subsidiaries or any of their respective properties or assets which
would, individually or in the aggregate, have a Material Adverse Effect.
(bb) No Labor Disputes. No labor disturbance by or dispute with
employees of the Company or any of its Material Subsidiaries exists or, to
the best knowledge of the Company, is threatened, except as described in
the Prospectus or as would not have a Material Adverse Effect.
(cc) Compliance With Environmental Laws. The Company and its Material
Subsidiaries (i) are in compliance with any and all applicable South
African, Australian and Ghanaian laws, rules, regulations, decisions and
orders promulgated by South African, Australian or Ghanaian government,
regulatory or judicial authorities relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, "ENVIRONMENTAL LAWS");
(ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (iii) have not received notice of
any actual or potential liability for the investigation or remediation of
any disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except in any such case as described in the
Prospectus or for any such failure to comply, or failure to receive
required permits, licenses or approvals, or liability as would not,
individually or in the aggregate, have a Material Adverse Effect.
(dd) Accounting Controls. The Company and its Material Subsidiaries
maintain systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect
13
to any differences, except for any failure to maintain or comply with such
internal accounting controls as would not, individually or in the
aggregate, have a Material Adverse Effect.
(ee) Insurance. Except as described in the Prospectus, the Company and
its Material Subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including coverage for
accidental loss, fixed operating costs, public liability, material damage
and other losses, in such amounts and on such terms as are prudent and
customary for a company of the Company's size, conducting the operations
and engaging in the types of business described in the Prospectus; and
neither the Company nor any of its Material Subsidiaries has (i) received
notice from any insurer except as described in the Prospectus or agent of
such insurer that capital improvements or other expenditures are required
or necessary to be made in order to continue such insurance or (ii) any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business, in each
case except as would not have, individually or in the aggregate, a Material
Adverse Effect.
(ff) No Unlawful Payments. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or any of its subsidiaries has violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977.
(gg) No Restrictions on Subsidiaries. Except as described in the
Prospectus, no Material Subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it
is a party or is subject, from paying any dividends to the Company, from
making any other distribution on such Material Subsidiary's capital stock,
from repaying to the Company any loans or advances to such Material
Subsidiary from the Company or from transferring any of such Material
Subsidiary's properties or assets to the Company or any other Material
Subsidiary of the Company.
(hh) No Broker's Fees. Neither the Company nor any of its Material
Subsidiaries is a party to any contract, agreement or understanding with
any person (other than this Agreement) that would give rise to a valid
claim against the Company or any of its Material Subsidiaries or any
Underwriter for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Offered Securities.
14
(ii) No Registration Rights. Except as described in the Prospectus, no
person has the right to require the Company or any of its subsidiaries to
register any securities for sale under the Securities Act by reason of (i)
the filing of the Registration Statement or an ADS Registration Statement
with the Commission, or (ii) the issuance and sale of the Securities.
(jj) No Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of the
Offered Securities.
(kk) Forward-Looking Statements. No forward-looking statement (within
the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement and the Prospectus
has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(ll) Statistical and Market Data. Nothing has come to the attention of
the Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement and the
Prospectus is not based on or derived from third party-sources that are
reliable and accurate in all material respects.
3. Further Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Effectiveness of the Registration Statement. The Company, if
required, will file the Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rule 430A under the Securities Act.
(b) Delivery of Copies. The Company will deliver, without charge, (i)
to the Representative, three signed copies of the Registration Statement as
originally filed and each amendment thereto, in each case including all
exhibits and consents filed therewith; and (ii) to each Underwriter (A) a
conformed copy of the Registration Statement as originally filed and each
amendment thereto (without exhibits) and (B) during the Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments and
supplements thereto) as the Representative may reasonably request. As used
herein, the term "PROSPECTUS DELIVERY PERIOD" means such period of time
(not to exceed nine months from the date of the Prospectus) after the first
date of the public offering of the Offered Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the Securities is
required by law to be delivered in connection with sales of the Securities
by any Underwriter or dealer, expected to be to the end of the public
offering of the Underwritten
15
Securities in the United States, or the end of the distribution of any
Option Securities, whichever occurs later.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement, the Prospectus or an ADS
Registration Statement, the Company will furnish to the Representative and
counsel for the Underwriters a copy of the proposed amendment or supplement
for review and will not file any such proposed amendment or supplement to
which the Representative reasonably objects.
(d) Notice to the Underwriters. The Company will advise the
Representative promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement or an ADS Registration Statement
has been filed or becomes effective; (ii) when any supplement to the
Prospectus or any amendment to the Prospectus has been filed; (iii) of any
request by the Commission for any amendment to the Registration Statement
or an ADS Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to
the Registration Statement or an ADS Registration Statement or any other
request by the Commission for any additional information; (iv) of the
issuance by the Commission of any order suspending the effectiveness of the
Registration Statement or an ADS Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose; (vi) of the
receipt by the Company of any notice with respect to any suspension of the
qualification of the Securities for offer and sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose; and the
Company will use its reasonable best efforts to prevent the issuance of any
such order suspending the effectiveness of the Registration Statement or an
ADS Registration Statement, preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Securities and, if any such order is issued, will
obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period: (i) any event or change of circumstances shall occur 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 a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will promptly notify the Representative
thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Representative and to
16
such dealers as the Representative may designate, such amendments or
supplements to the Prospectus as may reasonably be requested so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances under which they were made existing when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
(f) Earning Statement. The Company will make generally available to
its security holders and the Underwriters as soon as reasonably practicable
an earning statement that satisfies the provisions of Section 11(a) of the
Securities Act.
(g) Clear Market. Unless otherwise specified in the Terms Agreement,
for such period after the First Closing Date as is set forth in the Terms
Agreement, the Company will not, without the consent of the Representative,
(i) issue, offer, pledge, announce the intention to sell, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any ordinary
shares or American Depositary Shares or any securities convertible into or
exercisable or exchangeable for ordinary shares or American Depositary
Shares or (ii) enter into a swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of ordinary
shares or American Depositary Shares, whether any such transaction
described in clause (i) and (ii) above is to be settled by delivery of
ordinary shares or American Depositary Shares or such other securities, in
cash or otherwise, without the prior written consent of the Representative
on behalf of the Underwriters, other than (a) the Offered Securities
(including the ordinary shares underlying the American Depositary Shares)
to be sold hereunder, (b) any ordinary shares, American Depositary Shares
and the ordinary shares underlying the American Depositary Shares issued
upon the exercise of options granted under the Company's existing share
option schemes, (c) any ordinary shares, American Depositary Shares and the
ordinary shares underlying the American Depositary Shares to the extent
issued in connection with the acquisition of any business, facilities or
other assets, including common stock therein, including ordinary shares,
American Depositary Shares and the ordinary shares underlying the American
Depositary Shares issued in connection with any employment arrangements
associated with such acquisition and (d) the issue by the Company of
ordinary shares upon exercise of an option or warrant or the conversion of
a security, including convertible securities issued by the Company,
outstanding on the date of the Terms Agreement; provided, however, the
Company may, without such consent, offer and sell any ordinary shares or
American Depositary Shares of the Company in transactions exempt from the
registration requirements of the Securities Act, provided that the
purchasers in such
17
transactions are prohibited from offering for sale, selling or otherwise
disposing of, directly or indirectly, any of the ordinary shares or
American Depositary Shares of the Company so acquired by them for the
remainder of such period after the First Closing Date as is set forth in
the Terms Agreement.
(h) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Securities as described in the Prospectus under the heading
"Use of Proceeds".
(i) No Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of the
Offered Securities.
(j) Exchange Listing. If and to the extent specified in the applicable
Terms Agreement, the Company will use its best efforts to effect the
listing of the Offered Securities on the New York Stock Exchange (the
"EXCHANGE") and the Shares on the JSE Securities Exchange South Africa
(together with the Exchange, the "EXCHANGES") on or prior to the Closing
Date specified in the applicable Terms Agreement. The Company undertakes,
during a period of two years from the date of the applicable Terms
Agreement, to use its reasonable best efforts to maintain the listings of
the Securities on the Exchanges.
(k) United States Filings. The Company will file with the Commission
such reports as may be required by Rule 463 under the Securities Act.
4. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase the Underwritten Securities on the First Closing Date or
the Option Securities on the Additional Closing Date, as the case may be, as
provided herein is subject to the performance by the Company of its covenants
and other obligations hereunder that are required to be performed by the
relevant Closing Date and to the following additional conditions:
(a) No Stop Order. No order suspending the effectiveness of the
Registration Statement or an ADS Registration Statement shall be in effect,
and no proceeding for such purpose shall be pending before or threatened by
the Commission; the Registration Statement and the Prospectus shall have
been timely filed with the Commission under the Securities Act, and in
accordance with Section 3(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the reasonable
satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties
of the Company contained in the Terms Agreement (including
18
those in this Agreement) shall be true and correct on the date thereof and
on and as of the relevant Closing Date; and the statements of the Company
and its officers made in any certificates delivered pursuant to the Terms
Agreement shall be true and correct on and as of the relevant Closing Date.
(c) No Material Adverse Change. Subsequent to the execution and
delivery of the Terms Agreement, (i) there has not been any change in the
authorized and issued share capital (other than pursuant to the Company's
share option schemes) or long-term debt of the Company or any of its
Material Subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business, properties, management, financial position, shareholders' equity,
results of operations or prospects of the Company and its subsidiaries
taken as a whole; (ii) neither the Company nor any of its Material
Subsidiaries has entered into any transaction or agreement that is material
to the Company and its Material Subsidiaries taken as a whole or incurred
any liability or obligation, direct or contingent, that is material to the
Company and its Material Subsidiaries taken as a whole; and (iii) neither
the Company nor any of its Material Subsidiaries has sustained any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority; in each case, the
effect of which in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the offering, sale or delivery
of the Securities on the relevant Closing Date on the terms and in the
manner contemplated by this Agreement and the Registration Statement and
the Prospectus.
(d) Executive Directors' Certificate. The Representative shall have
received on and as of the relevant Closing Date a certificate of the Chief
Financial Officer and one additional senior executive officer of the
Company who is satisfactory to the Representative, in form and substance
reasonably satisfactory to the Representative which shall state that, to
the best of such officers' knowledge after reasonable investigation, that
the representations and warranties of the Company in the Terms Agreement
are true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
thereunder at or prior to the relevant Closing Date and that subsequent to
the date of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event involving
a prospective material adverse change, in or affecting the business,
management, financial position, shareholders' equity, results of operations
of the Company and its Subsidiaries taken as a whole except as set forth in
or contemplated by the Prospectus or as described in such certificate.
19
(e) Comfort Letters. On the date of the Terms Agreement and on the
relevant Closing Date, PricewaterhouseCoopers Inc., or other independent
accountants reasonably satisfactory to the Representative, shall have
furnished to the Representative, at the request of the Company, letters,
dated the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus; provided, that
the letter delivered on the relevant Closing Date, shall use a "cut-off"
date no more than three Business Days prior to the relevant Closing Date .
(f) Opinion of South African Counsel for the Company. Xxxxxx, Xxxxxx &
Xxxxxxxxx Inc., South African counsel for the Company, or other South
African counsel to the Company reasonably satisfactory to the
Representative, shall have furnished to the Underwriters, at the request of
the Company, their written opinion, dated the relevant Closing Date and
addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex A
hereto.
(g) Opinion of U.S. Counsel for the Company. Linklaters, U.S. counsel
for the Company, or other U.S. counsel to the Company reasonably
satisfactory to the Representative, shall have furnished to the
Underwriters, at the request of the Company, their written opinion, dated
the relevant Closing Date and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representative, to the effect set
forth in Annex B hereto.
(h) Opinion of the Counsel for the Depositary. Xxxxx, Xxxxxx & Xxxxxx,
counsel for the Depositary, shall have furnished to the Underwriters, at
the request of the Company, their written opinion, dated the relevant
Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representative, to the effect set forth in
Annex E hereto.
(i) Opinion of U.S. Counsel for the Underwriters. The Underwriters
shall have received on and as of the relevant Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, U.S. counsel for the Underwriters, with respect to
such matters as the Representative may reasonably request, and such counsel
shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(j) Opinion of South African Counsel for the Underwriters. The
Underwriters shall have received on and as of the relevant Closing
20
Date an opinion of Xxxxxx Xxxxxxx Xxxxxx, South African counsel for the
Underwriters, with respect to such matters as the Representative may
reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such
matters.
(k) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any federal, state or foreign governmental or regulatory
authority that would, as of the relevant Closing Date prevent the issuance
or sale of the Securities; and no injunction or order of any federal, state
or foreign court shall have been issued that would, as of the relevant
Closing Date prevent the issuance or sale of the Offered Securities.
(l) Opinions. The Underwriters shall have received on and as of the
relevant Closing Date such additional opinions or certificates (if any) as
specified in the Terms Agreement.
(m) Additional Documents. On or prior to the relevant Closing Date the
Company shall have furnished to the Representative such further
certificates and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel to the Underwriters.
5. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses reasonably
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or an
ADS Registration Statement and the Prospectus (or any amendment or
supplement thereto) or any Preliminary Prospectus, or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities
21
arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with any information furnished to the Company in writing by such
Underwriter or through the Representative expressly for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (b)
below, provided that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus the
indemnity in this clause 5(a) will not inure to the benefit of any
Underwriter (or any Indemnified Person (as defined below) named in this
clause 5(a)) from whom the person asserting such losses, claims, damages or
liabilities purchased Securities concerned, to the extent that a Prospectus
relating to such Securities was required to be delivered by such
Underwriter under the Securities Act or other applicable law in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of such Securities to such
person, a copy of the Prospectus if the Company had previously furnished
copies thereof to such Underwriter.
(b) Indemnification of the Company. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors
and its officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information
furnished to the Company in writing by such Underwriter or through the
Representative expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, it being understood and agreed upon that the only such
information furnished by any Underwriter consists of the information
described as such in the Terms Agreement.
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such person
(the "INDEMNIFIED PERSON") shall promptly notify the person against whom
such indemnification may be sought (the "INDEMNIFYING PERSON") in writing;
provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under this Section 5 except
to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by
22
such failure; and provided, further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may
have to an Indemnified Person otherwise than under this Section 5. If any
such proceeding shall be brought or asserted against an Indemnified Person
and it shall have notified the Indemnifying Person thereof, the
Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 5 that the
Indemnifying Person may designate in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; or (iii) the named
parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed
that the Indemnifying Person shall not, in connection with any proceeding
or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all Indemnified Persons, and that all such fees and expenses shall be
paid or reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons
of such Underwriter shall be designated in writing by the Representative
and any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company
shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an
Indemnifying Person reimburse the Indemnified Person for fees and expenses
of counsel as contemplated by this paragraph, the Indemnifying Person shall
be liable for any settlement of any proceeding effected without its written
consent if (A) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (B) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with
such request prior to the date of such settlement. No Indemnifying Person
shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which
23
any Indemnified Person is or could have been a party and indemnification
could have been sought hereunder by such Indemnified Person, unless such
settlement (x) includes an unconditional release of such Indemnified
Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) Contribution. If the indemnification provided for in paragraphs
(a) and (b) above is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also
the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Securities and the total
underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover
of the Prospectus, bear to the aggregate offering price of the Securities.
The relative fault of the Company on the one hand and the Underwriters on
the other 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 by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 5 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed
24
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 6, in no
event shall an Underwriter be required to contribute any amount in excess
of the amount by which the total price at which the Securities underwritten
by such Underwriter and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 5 are several in proportion to their
respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section
6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
6. Effectiveness of Agreement. The Terms Agreement (including this
Agreement) shall become effective upon the later of (i) the execution and
delivery thereof by the parties thereto and (ii) receipt by the Company and the
Underwriters of notice of the effectiveness of the Registration Statement (or,
if applicable any post-effective amendment thereto).
7. Termination. The Terms Agreement (including this Agreement) may be
terminated in the absolute discretion of the Representative, by notice to the
Company, if after the execution and delivery of the Terms Agreement and prior to
the First Closing Date (in the case of the Underwritten Securities) or prior to
the Additional Closing Date (in the case of the Option Securities) (i) trading
generally shall have been suspended or materially limited on or by any of the
New York Stock Exchange or the JSE Securities Exchange South Africa; (ii)
trading of any securities issued or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market; (iii) a general
moratorium on commercial banking activities in New York, London or Johannesburg
shall have been declared by the relevant authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States,
that, in the judgment of the Representative, is material and adverse and makes
it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Securities on the relevant Closing Date on the terms and in the manner
contemplated by the Terms Agreement, the Registration Statement and the
Prospectus.
25
8. Defaulting Underwriter.
(a) If on the relevant Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Offered Securities which it
or they have agreed to purchase under a Terms Agreement on such date, and
the aggregate number of Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate number of Offered Securities to be
purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the number of Offered Securities set forth opposite
their respective names in the Terms Agreement bears to the aggregate number
of Underwritten Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the
Representative may specify, to purchase the Offered Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of
Offered Securities that any Underwriter has agreed to purchase pursuant to
the Terms Agreement be increased pursuant to this Section 8 by an amount in
excess of one-tenth of such number of Securities without the written
consent of such Underwriter.
(b) If on the relevant Closing Date any Underwriter or Underwriters
shall fail or refuse to purchase Offered Securities which it or they have
agreed to purchase under the Terms Agreement on such date, and the
aggregate number of Offered Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Offered Securities
to be purchased on such date, and arrangements satisfactory to the
Representative and the Company for the purchase of such Offered Securities
are not made within 36 hours after such default, the Terms Agreement
(including this Agreement) (or the obligations of the several Underwriters
to purchase the Option Securities, as the case may be) shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company.
(c) In either (a) or (b) above either the Representative or the
Company shall have the right to postpone the relevant Closing Date, but in
no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected.
(d) Any action taken under paragraphs (a) or (b) above shall not
relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under the Terms Agreement (including this Agreement).
26
9. Persons Entitled to Benefit of Agreement. The Terms Agreement
(including this Agreement) shall inure to the benefit of and be binding upon the
parties thereto and their respective successors and the officers and directors
and any controlling persons referred to in Section 5 hereof. Nothing in the
Terms Agreement (including this Agreement) is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of the Terms Agreement (including this Agreement) or any provision
contained therein. No purchaser of Offered Securities from any Underwriter shall
be deemed to be a successor merely by reason of such purchase.
10. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in the Terms Agreement (including this Agreement) or made by or on
behalf of the Company or the Underwriters pursuant to this Agreement or any
certificate delivered pursuant thereto shall survive the delivery of and payment
for the Offered Securities and shall remain in full force and effect, regardless
of any termination of the Terms Agreement (including this Agreement) or any
investigation made by or on behalf of the Company or the Underwriters.
11. Jurisdiction. Each of the parties to the Terms Agreement irrevocably
(i) agrees that any legal suit, action or proceeding arising out of or based
upon the Terms Agreement or the transactions contemplated thereby may be
instituted in any state or federal court in the County of New York, the State of
New York, United States of America (each, a "NEW YORK COURT"), (ii) waives, to
the fullest extent it may effectively do so, any objection which it may now or
hereafter have to the laying of venue of any such proceeding and (iii) submits
to the exclusive jurisdiction of such courts in any such suit, action or
proceeding.
12. Miscellaneous.
(a) Authority of the Representative. Any action by the Underwriters
under the Terms Agreement may be taken by the Representative, and any such
action taken shall be binding upon both of the Underwriters.
(b) Notices. All notices and other communications under the Terms
Agreement shall be in writing and shall be deemed to have been duly given
if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to them c/o
the Representative at the address set forth in the Terms Agreement. Notices
to the Company shall be given to it at Gold Fields Limited, 00 Xx. Xxxxxxx
Xxxx, Xxxxxxxx 0000, Xxxxx Xxxxxx, (fax: x00-00-000-0000); Attention: N.J.
Holland.
27
(c) Governing Law. This Agreement and the Terms Agreement shall be
governed by and construed in accordance with the laws of the State of New
York.
(d) Counterparts. The Terms Agreement and this Agreement may be signed
in counterparts (which may include counterparts delivered by any standard
form of telecommunication), each of which shall be an original and all of
which together shall constitute one and the same instrument.
(e) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, the Terms Agreement or this Agreement.
28
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
GOLD FIELDS LIMITED
By:
-------------------------------------
Accepted: -, 200-
[-]
For itself and on behalf of the several
Underwriters listed in the Terms
Agreement.
By:
--------------------------------------------
Authorized Signatory
29
[SCHEDULE I
DELAYED DELIVERY CONTRACT
[-], 20[-]
The undersigned hereby agrees to purchase from Gold Fields Limited,
incorporated under the laws of South Africa ("COMPANY"), and the Company agrees
to sell to the undersigned, [IF ONE DELAYED CLOSING, INSERT---as of the date
hereof, for delivery on [-], 20[-] ("DELIVERY DATE"),] [-] shares of the
Company's ordinary shares, par value Rand 0.50 per share ("SECURITIES"), offered
by the Company's Prospectus dated [-], 20[-] and a Prospectus Supplement dated
[-], 20[-] relating thereto, receipt of copies of which is hereby acknowledged,
at [-] per share plus accrued dividends, if any, on the further terms and
conditions set forth in this Delayed Delivery Contract ("CONTRACT").
[IF TWO OR MORE DELAYED CLOSINGS, INSERT THE FOLLOWING:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the amounts set forth
below:
Number Delivery Date
------ -------------
........................................ ............................
........................................ ............................
Each of such delivery dates is hereinafter referred to as a Delivery
Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company or its
order in Federal (same day) funds by certified or official bank check or wire
transfer to an account designed by the Company, at the office of [-] at [-] a.m.
on [the] [such] Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned [for delivery on such Delivery Date]
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned, that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract, that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the] [each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total number of shares of
the Securities less the number of shares thereof
30
covered by this and other similar Contracts. The undersigned represents that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which governs
such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
---------------------------------
(Name of Purchase)
By: ______________________________
---------------------------------
(Title of Signatory)
---------------------------------
(Address of Purchaser)
31
Accepted, as of the above date.
Gold Fields Limited
By: ______________________________
[Insert Title]]
