Pricing Agreement
EXECUTION
COPY
May 16,
2007
Barclays Capital
Inc.
000 Xxxx
Xxxxxx
Xxx Xxxx, XX
00000
Xxxxxx Xxxxxx of
America
Citigroup Global
Markets Inc.
000 Xxxxxxxxx
Xxxxxx
Xxx Xxxx, XX
00000
Xxxxxx Xxxxxx of
America
As Representatives
of the several
Underwriters named
in Schedule I hereto,
Ladies and
Gentlemen:
The Republic of
South Africa (“South
Africa”) proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated December 8, 1994 (the “Underwriting
Agreement”), to issue
and sell to the several underwriters specified in Schedule I hereto, for whom
Barclays Capital Inc. and Citigroup Global Markets Inc. are acting as
Representatives (collectively, the “Underwriters”), the
Securities specified in Schedule II hereto (the “Designated
Securities”). Each of
the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation
or warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of
this Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of themselves and each of the other Underwriters of
the Designated Securities pursuant to Section 12 of the Underwriting Agreement
and the address of the Representatives referred to in such Section 12 are set
forth at the end of Schedule II hereto.
Subject to the
terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, South Africa agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from South Africa, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
The
Representatives may, to the extent
permitted by applicable laws and directives, over-allot and effect transactions
with a view to supporting the market price of the Designated Securities at a
level
1
higher than that
which might otherwise prevail, but in doing so neither Representative shall act
as agent of South Africa and any loss resulting from over-allotment and
stabilization will be borne, and any profit arising from them shall be
beneficially retained, by the Representatives in the manner agreed between
them.
For purposes of
this Agreement, the following terms have the following meanings:
(a)
|
“Registration
Statement” has the meaning set forth in the Underwriting Agreement and
also includes the Prospectus Supplement dated May 8, 2007 that is filed with
the Commission and deemed by virtue of Rule 430B under the Act to be part of
the Registration Statement. |
(b)
|
“Free Writing
Prospectus” has the meaning set forth in Rule 405 under the
Act. |
(c)
|
“Issuer Free
Writing Prospectus” has the meaning set forth in Rule 433 under the
Act. |
(d)
|
“Time of
Sale” means 8:00 a.m. (New York time) on May 16, 2007. |
(e)
|
“Time of Sale
Prospectus” means the Prospectus Supplement, dated May 8, 2007, to the
Prospectus, dated August 20, 2003, including the documents incorporated or
deemed to be incorporated by reference therein as of the Time of Sale, together
with any Free Writing Prospectus listed on Schedule III
hereto. |
(f)
|
“Final
Prospectus” means the prospectus supplement, dated May 16, 2007, to the
Prospectus, dated August 20, 2003, including the documents incorporated by
reference therein. |
In addition to the
representations and warranties set forth in Section 2 of the Underwriting
Agreement, South Africa represents and warrants to the Underwriters as
follows:
(a)
|
As of the Time of
Sale, the Time of Sale Prospectus (i) conformed, in all material respects to
the requirements of the Act and (ii) did not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. |
(b)
|
South Africa
(including its agents and representatives, other than the Underwriters) has not
made, used, prepared, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to or make any offer relating to the
Designated Securities that would constitute a Free Writing Prospectus other
than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Act; or (ii) other written communications approved in
writing in advance by the Underwriters including the term sheet as set forth in
Schedule III. Any such Free Writing Prospectus as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Designated Securities, complies or will comply in all material respects with
the requirements of the Act and has been, or will be, filed with the Commission
in accordance with the Act (to the extent required pursuant to Rule 433(d)
under the Act). |
(c)
|
South Africa has
not distributed and will not distribute, prior to the later of the Time of
Delivery and the completion of the Underwriters’ distribution of the
Designated Securities, any offering material in connection with the offering
and sale of the Designated Securities other than the Time of Sale Prospectus or
any Issuer Free Writing |
2
|
Prospectus
reviewed and consented to by the Representatives or listed in Schedule III
hereto. |
(d)
|
South Africa is
not an ineligible issuer, as defined under the Act, at the times specified in
the Act in connection with the offering of the Designated
Securities. |
In addition to the
agreements set forth in Section 5 of the Underwriting Agreement, South Africa
covenants with the Underwriters as follows:
(a)
|
Before amending or
supplementing the Time of Sale Prospectus or the Final Prospectus, to furnish
to the Underwriter a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which the Representatives
reasonably object. |
(b)
|
To prepare any
Free Writing Prospectus to be included in the Time of Sale Prospectus in
relation to the Designated Securities in a form which shall be provided to the
Representatives for their review and comment prior to the Time of
Sale. |
(c)
|
If the Time of
Sale Prospectus is being used to solicit offers to buy the Designated
Securities at a time when the Final Prospectus is not yet available to
prospective purchasers and any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Time of Sale Prospectus in
order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which
any Free Writing Prospectus included as part of the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then on
file, or if, in the opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Time of Sale Prospectus to comply with applicable law,
South Africa shall forthwith prepare (subject to clauses (a) and (b) above),
file with the Commission and furnish, at their own expense, to the Underwriters
and to any dealer upon request, either amendments or supplements to the Time of
Sale Prospectus so that the statements therein as so amended or supplemented
will not, in the light of the circumstances when delivered to a prospective
purchaser, be misleading or so that any Free Writing Prospectus which is
included as part of the Time of Sale Prospectus, as amended or supplemented,
will no longer conflict with the Registration Statement, or so that the Time of
Sale Prospectus as amended or supplemented, will comply with applicable
law. |
(d)
|
Before preparing,
using, authorizing, approving, referring to or filing any Free Writing
Prospectus, South Africa will furnish to the Underwriters and counsel for the
Underwriters a copy of the proposed Free Writing Prospectus. South Africa will
not use, authorize, approve, refer to or file any Free Writing Prospectus to
which the Representatives reasonably object. South Africa will not take any
action that would result in an Underwriter being required to file with the
Commission pursuant to Rule 433(d) under the Act a Free Writing Prospectus
prepared by or on behalf of the Underwriter that the Underwriter otherwise
would not have been required to file thereunder. |
The Underwriters
covenant with South Africa as follows:
The Underwriters
shall not use, refer to or distribute any Free Writing Prospectus
except:
3
(a)
|
a Free Writing
Prospectus that (a) is not an Issuer Free Writing Prospectus, and (b) contains
only information describing the preliminary terms of the Designated Securities
or their offering, which information is limited to the categories of terms
referenced on Schedule II or otherwise permitted under Rule 134 under the Act;
|
(b)
|
a Free Writing
Prospectus as shall be agreed in writing with South Africa that is not
distributed, used or referenced by such Underwriter in a manner reasonably
designed to lead to its broad unrestricted dissemination unless South Africa
consents in writing to such dissemination; and |
(c)
|
a Free Writing
Prospectus identified in Schedule III hereto as forming part of the Time of
Sale Prospectus. |
South Africa
hereby agrees that the Underwriters shall distribute to investors a Free
Writing Prospectus that contains the final terms of the Notes substantially in
the form set forth in Schedule IV hereto and that such Free Writing Prospectus
shall be filed by the Company in accordance with Rule 433(d) under the Act and
shall be considered an Issuer Free Writing Prospectus.
South Africa
hereby acknowledges that (i) the purchase and sale of the Designated Securities
pursuant to this Agreement is an arm’s-length commercial transaction
between South Africa, on the one hand, and the Underwriters and any
Representative through which it may be acting, on the other, (ii) the
Underwriters are acting as principal and not as an agent or fiduciary of South
Africa and (iii) South Africa’s engagement of the Underwriters in
connection with the offering and the process leading up to the offering is as
independent contractors and not in any other capacity. Furthermore, South
Africa agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether any of the Underwriters
has advised or is currently advising South Africa on related or other matters).
South Africa agrees that it will not claim that the Underwriters have rendered
advisory services of any nature or respect, or owe an agency, fiduciary or
similar duty to South Africa, in connection with such transaction or the
process leading thereto.
For purposes of
Section 8 of the Underwriting Agreement, South Africa and the Underwriters
agree that the references in Section 8(a) and 8(b) of the Underwriting
Agreement to “any other prospectus relating to the Securities” shall
be deemed to include the Time of Sale Prospectus and any Issuer Free Writing
Prospectus relating to the Designated Securities.
South Africa and
the Underwriters agree that there shall be no exceptions to Section 5(e) of the
Underwriting Agreement.
The delivery of
the certificate referred to in Section 7(d) of the Underwriting Agreement and
the opinion or opinions of counsel referred to in Section 7(b) and 7(c) of the
Underwriting Agreement, in each case, addressed to each of the Underwriters,
and in form and substance satisfactory to each of the Underwriters, shall be a
condition to settlement under this Agreement. For purposes hereof, the
reference to “Xxxxxxxx & Xxxxxxxx” in Section 7(b) of the
Underwriting Agreement shall be deemed to be a reference to “Linklaters
LLP”, and the reference to “Advocate X.X. Xxxxxxx, S.C.” shall
be deemed to be a reference to “Xxxxx Xxxxxxx, Chief State Law Adviser of
the Republic of South Africa”. In addition to the matters set forth or
referred to in Section 7(b) and 7(c) of the Underwriting Agreement, such
opinion or opinions of counsel to be delivered under such Section 7(b) and 7(c)
shall also include an opinion substantially to the following effect:
“Nothing has come
to the attention of such
4
counsel that gives
such counsel reason to believe that the Time of Sale
Prospectus, as of the Time of Sale (except for the information of an
accounting, financial or statistical nature included therein or omitted
therefrom, as to which such counsel need not express any view), contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.”
For purposes of
this Agreement, the reference to “Mr. C.H. du Toit, Principal Resident
Representative of South Africa at the International Monetary Fund and the World
Bank, 0000 Xxx Xxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000” in Section 14
of the Underwriting Agreement shall be deemed to be a reference to
“Ambassador Xxxxxxx Xxxxxxxx, Ambassador of the Republic of South Africa,
Embassy of the Republic of South Africa, 0000 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
X.X. 00000” and references to “Mr. du Toit” in the Underwriting
Agreement shall be deemed to be references to “Ambassador Masekela”.
5
If the foregoing
is in accordance with your understanding, please sign and return to us six
counterparts hereof, and upon acceptance hereof by you, on behalf of each of
the Underwriters, this letter and such acceptance hereof, including the
provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and South
Africa. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to South
Africa for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
This
Pricing Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours, | ||||
REPUBLIC OF SOUTH AFRICA | ||||
By | /s/ Xxxxx X. Xxxxxx | |||
|
||||
Name: Xxxxx
X. Xxxxxx
Title: Chief
Director Liability Management |
Accepted as
of the date hereof: |
||||
BARCLAYS
CAPITAL INC. |
||||
By | /s/ Xxxxxx Xxxxxxx | |||
|
||||
Name: Xxxxxx
Xxxxxxx
Title:
Director |
CITIGROUP
GLOBAL MARKETS INC. |
||||
By | /s/ Xxxxxxx Xxxxxx | |||
|
||||
Name: Xxxxxxx
Xxxxxx
Title: Managing
Director |
On behalf of
Barclays Capital Inc. and Citigroup Global Markets Inc. and each of the other
Underwriters
Signature page to Pricing
Agreement
SCHEDULE
I
Underwriter
|
Principal
Amount of Designated
Securities |
|||
Barclays Capital
Inc. |
$
|
222,228,000
|
||
Citigroup Global
Markets Inc. |
$
|
222,228,000
|
||
Total
|
$
|
444,456,000
|
SCHEDULE
II
Title of
Designated Securities:
5.875% Notes due
2022.
Aggregate
principal amount:
US$444,456,000.
Price to
Public:
99.635% of the
principal amount of the Designated Securities, plus accrued interest, if any,
from May 30, 2007.
Purchase
Price by Underwriters:
99.635% of the
principal amount of the Designated Securities, plus accrued interest, if any,
from May 30, 2007.
Expenses:
For purposes of
this Pricing Agreement, Section 6 of the Underwriting Agreement is hereby
amended as follows:
South Africa shall
pay or reimburse the Underwriters for the following costs and expenses incurred
in connection with the offer and sale of the Designated Securities: (a) fees
and expenses incurred in listing the Designated Securities on the Luxembourg
Stock Exchange, including any fees charged by the listing agent; (b) any fees
charged by rating agencies for rating the Designated Securities; (c) fees
(including the initial, up-front fees) and expenses of the fiscal agent and any
paying agent (including related fees and expenses of any counsel for such
parties); (d) costs and expenses in connection with the preparation and
printing of the Prospectus Supplement and the costs and expenses of
distributing the Prospectus Supplement; (e) traveling and accommodation
expenses incurred by the representatives of South Africa in connection with the
roadshow; (f) fees and expenses of South African counsel to South Africa; (g)
fees and expenses of any consultants engaged by South Africa in connection with
the roadshow presentations; (h) costs and expenses related to ground
transportation for the representatives of South Africa and all other costs and
expenses incurred by or on behalf of the representatives of South Africa in
connection with the roadshow; (i) fees and expenses (including out-of-pocket
expenses) of South African counsel and United States counsel to the
Underwriters and (y) the costs and expenses incurred in connection with the
preparation and placement of any tombstone advertisements.
Specified
funds for payment of purchase price:
Immediately
available funds.
Fiscal
Agency Agreement:
Amended and
Restated Fiscal Agency Agreement, dated as of May 15, 0000, xxxxxxx Xxxxx
Xxxxxx and Deutsche Bank Trust Company
Americas (formerly named Bankers Trust Company), as Fiscal Agent.
Registration
Statement under Schedule B of the Securities Act of 1933:
File No.
333-107393
For all purposes
of the Underwriting Agreement and this Pricing Agreement, the definition of
“Registration Statement” in Section 2(a) of the Underwriting
Agreement shall include the registration statement filed by South Africa, No.
333-107393, and the various parts thereof that are referred to in such
definition.
Maturity:
May 30,
2022.
Interest
Rate:
5.875%.
Interest
Payment Dates:
May 30 and
November 30 of each year, commencing November 30, 2007.
Redemption
Provisions:
None.
Sinking
Fund Provisions:
None.
Further
Issues:
As set forth under
the caption “Description of the New Notes — Further Issues” in
the Prospectus Supplement dated May 8, 2007 relating to the Designated
Securities.
Time of
Delivery:
10:00 a.m., New
York time on May 30, 2007
Closing
Location:
Offices of
Linklaters LLP
1345 Avenue of the
Americas
Xxx Xxxx, Xxx Xxxx
00000
Xxxxxx
Xxxxxx
Names and
addresses of Representatives:
Designated
Representatives:
Barclays Capital
Inc.
Citigroup Global
Markets Inc.
Addresses for
Notices, etc:
Barclays Capital
Inc.
000 Xxxx
Xxxxxx
Xxx Xxxx, XX
00000
Xxxxxx Xxxxxx of
America
Attention:
Liability Management Group
Citigroup Global
Markets Inc.
000 Xxxxxxxxx
Xxxxxx
Xxx Xxxx, XX
00000
Xxxxxx Xxxxxx of
America
Attention:
Liability Management Group
Listings:
The Luxembourg
Stock Exchange.
SCHEDULE
III
Press Release
entitled “Republic of South Africa Announces Spreads” dated May 14,
2007, filed with the Commission under Rule 433 under the Act.
Press Release
entitled “Republic of South Africa Announces Expected Results of
Invitation and Cash Offering” dated May 16, 2007, filed with the
Commission under Rule 433 under the Act.
Final Term Sheet
dated May 16, 2007 containing the final terms of the Designated Securities
substantially in the form set forth in Schedule IV hereto and filed with the
Commission under Rule 433 under the Act.
Press Release
entitled “Republic of South Africa Announces Results of Invitation and
Cash Offering” dated May 16, 2007, filed with the Commission under Rule
433 under the Act.
SCHEDULE
IV
FINAL TERM
SHEET