UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 11)*
ANGLOGOLD ASHANTI LIMITED
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(Name of Issuer)
ORDINARY SHARES
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(Title of Class of Securities)
035128206
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(CUSIP Number)
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Nicholas Jordan
Company Secretary
Anglo American plc
20 Carlton House Terrace
London SW1Y 5AN
United Kingdom
011-44-20-7968-8888
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
October 5, 2007
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the
following box { }.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1
SCHEDULE 13D
CUSIP No. 035128 20 6
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NAME OF REPORTING PERSONS ANGLO AMERICAN PLC
1
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS:
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) {x}
(b) { }
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: NA
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) { }
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: England and Wales
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7 SOLE VOTING POWER
NONE
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 115,102,929
EACH ----------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH NONE
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
115,102,929
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
115,102,929
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) { }
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.57%
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14 TYPE OF REPORTING PERSON (See Instructions)
CO
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2
SCHEDULE 13D
CUSIP No. 035128 20 6
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NAME OF REPORTING PERSONS ANGLO SOUTH AFRICA CAPITAL (PTY) LTD.
1
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS:
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) {x}
(b) { }
--------------------------------------------------------------------------------
3 SEC USE ONLY
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4 SOURCE OF FUNDS: NA
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) { }
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: The Republic of South Africa
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
NONE
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 115,102,929
EACH ----------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH NONE
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
115,102,929
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
115,102,929
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) { }
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.57%
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14 TYPE OF REPORTING PERSON (See Instructions)
CO
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3
This Amendment No. 11 ("Amendment No. 11") amends and restates the
Statement on Schedule 13D, originally filed on November 21, 2003, and amended
and supplemented on February 25, 2004 by Amendment No. 1, on May 10, 2004 by
Amendment No. 2, on June 7, 2004 by Amendment No. 3, on June 21, 2004 by
Amendment No. 4, on October 26, 2005 by Amendment No. 5, on February 22, 2006 by
Amendment No. 6, on March 23, 2006 by Amendment No. 7, on April 11, 2006 by
Amendment No. 8, on April 20, 2006 by Amendment No. 9, and on May 22, 2006 by
Amendment No. 10.
Since the date of Amendment No. 10, the Reporting Persons have not
acquired beneficial ownership of any additional Ordinary Shares.
Item 1. Security and Issuer.
This Statement on Schedule 13D, as amended from time to time (this
"Statement"), relates to the ordinary shares, par value ZAR 0.25 per share (the
"Ordinary Shares"), of AngloGold Ashanti Limited (formerly, AngloGold Limited),
a corporation organized under the laws of the Republic of South Africa (the
"Issuer"). The principal executive offices of the Issuer are located at 76 Jeppe
Street, Newtown, Johannesburg, 2001 (PO Box 62117, Marshalltown, 2107) South
Africa.
Item 2. Identity and Background.
This Statement is being jointly filed by Anglo American plc and Anglo
South Africa Capital (Proprietary) Limited (together, the "Reporting Persons").
Anglo American plc ("Anglo American"), a corporation incorporated under
the laws of England and Wales, has its principal executive offices at 20 Carlton
House Terrace, London SW1Y 5AN, United Kingdom and is a global leader in the
mining and natural resource sectors.
Anglo South Africa Capital (Proprietary) Limited ("Anglo SA Capital"),
a corporation incorporated under the laws of the Republic of South Africa, has
its principal executive offices at 44 Main Street, Johannesburg, 2001, South
Africa and is an indirect, wholly owned subsidiary of Anglo American.
Anglo SA Capital is a wholly owned subsidiary of Anglo South Africa
(Pty) Ltd. ("ASA"), which is a wholly owned subsidiary of Anglo American South
Africa Limited ("AASA"), which is a wholly owned subsidiary of Anglo American
International S.a.r.l. ("AA International"), which is a wholly owned subsidiary
of Anglo American (ASA, AASA, and AA International, collectively the "Holding
Companies"). Other than pursuant to the directions received from Anglo American,
none of the Holding Companies has or shares the voting power or investment power
within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
The directors and executive officers of each of Anglo American and
Anglo SA Capital are set forth on Exhibit A attached hereto. Exhibit A sets
forth the following information with respect to each such person: (i) name; (ii)
business address; (iii) present principal occupation or employment and the name,
principal business address of any corporation or other organization in which
such employment is conducted; and (iv) citizenship.
During the last five years, none of the Reporting Persons or the
Holding Companies nor, to the best knowledge of each of the Reporting Persons,
any person named in Exhibit A attached hereto has been (a) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(b) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws. Exhibit A is incorporated herein by
reference.
Item 3. Source and Amount of Funds or Other Considerations.
Not applicable.
Item 4. Purpose of Transaction.
4
Anglo American is the largest shareholder of the Issuer. The number of
members affiliated with Anglo American on the Issuer's Board of Directors may be
reduced as the Reporting Persons' percentage ownership of the Issuer declines.
In order to give the Issuer greater flexibility to pursue its strategic
agenda, the Reporting Persons have decided to reduce their shareholding in the
Issuer and no longer to seek to retain it as a subsidiary.
On February 22, 2006, Anglo American issued a press release stating the
following in its entirety:
ANGLO AMERICAN ANNOUNCES PROPOSED PUBLIC SECONDARY OFFERING OF
ORDINARY SHARES OF ANGLOGOLD ASHANTI.
Anglo American plc ("Anglo American") today announces its
intention to sell through a registered offering a portion of
its ordinary shares of AngloGold Ashanti in the form of
ordinary shares or American depositary shares, as one means of
reducing its shareholding in AngloGold Ashanti. The offering
would be made simultaneously in the US, South Africa and
Europe. The offering is anticipated to occur at some time over
the coming months, subject to market conditions.
Anglo American currently intends to remain a significant
shareholder in AngloGold Ashanti in the medium term.
THIS COMMUNICATION DOES NOT CONSTITUTE OR FORM PART OF AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SECURITIES OR OTHERWISE ENGAGE IN ANY INVESTMENT ACTIVITY, NOR
WILL THERE BE ANY SALE OF THE SECURITIES IN ANY JURISDICTION
IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION.
Certain statements contained herein may constitute
"forward-looking statements" within the meaning of the United
States Private Securities Litigation Reform Act of 1995. Such
forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause the actual
results, performance or achievements of the Company to be
materially different from any future results, performance or
achievements expressed or implied by such forward-looking
statements. Such factors include, among others, risks
associated with the transactions described above.
On March 23, 2006 Anglo SA Capital entered into a Registration Rights
Agreement with the Issuer to facilitate the sale to the public of some or all of
the Ordinary Shares held by Anglo SA Capital. The terms of the Registration
Rights Agreement are discussed in Item 6 below.
On March 23, 2006 an "automatic shelf registration statement" as
defined under Rule 405 of the Securities Act of 1933, as amended, on Form F-3 in
respect of the Ordinary Shares of the Issuer and a preliminary prospectus was
filed with the Securities and Exchange Commission. On March 24, 2006 a
preliminary prospectus supplement relating to those Ordinary Shares was filed
with the Securities and Exchange Commission, and on April 12, 2006 a final
prospectus supplement relating to those Ordinary Shares was filed with the
Securities and Exchange Commission. On April 20, 2006, Anglo SA Capital sold a
portion of its holding of Ordinary Shares of the Issuer in a registered offering
pursuant to this registration statement.
On April 10, 2006 Issuer and Anglo SA Capital entered into an
Underwriting Agreement with Goldman, Sachs & Co. and UBS Limited as
co-representatives of the several Underwriters named in Schedule I thereto
pursuant to which Anglo SA
5
Capital has agreed, subject to customary closing conditions, to sell up to
20,273,170 of the Ordinary Shares held by it in a registered offering pursuant
to the registration statement referred to in the previous paragraph. The terms
of the Underwriting Agreement are discussed in Item 6 below.
On April 20, 2006 Anglo SA Capital disposed of 19,685,170 of the
Ordinary Shares of the Issuer. As a consequence of this disposition, the
Reporting Persons' beneficial ownership of the outstanding Ordinary Shares of
the Issuer was reduced to approximately 41.57%.
On October 1, 2007, a preliminary prospectus supplement relating to the
Ordinary Shares of the Issuer was filed with the Securities and Exchange
Commission. On October 2, 2007, a final prospectus supplement relating to the
Ordinary Shares of the Issuer was filed with the Securities and Exchange
Commission.
On October 1, 2007 Issuer and Anglo SA Capital entered into an
Underwriting Agreement with Goldman Sachs International and UBS Limited as
representatives of the several Underwriters named in Schedule I thereto pursuant
to which Anglo SA Capital has agreed, subject to customary closing conditions,
to sell up to 67,100,000 of the Ordinary Shares held by it in a registered
offering pursuant to the preliminary prospectus supplement referred to in the
previous paragraph. The terms of the Underwriting Agreement are discussed in
Item 6 below.
The representatives of Anglo American remaining on the Issuer's Board
of Directors intend to resign from the Issuer's Board of Directors once Anglo SA
Capital's shareholding in the Issuer falls below 20% of the outstanding Ordinary
Shares of the Issuer.
Anglo American intends to dispose of its remaining shareholding in
Ordinary Shares of the Issuer during the next several years.
The Reporting Persons intend to continuously review their holdings in
the Issuer on a regular basis and, as a result thereof, in determining plans or
proposals with respect to the Issuer, may at any time or from time to time
determine, subject to the lock-up provisions contained in the Underwriting
Agreement described in Item 6, to (a) dispose of any securities of the Issuer
owned by them in the open market, in privately negotiated transactions or
otherwise, in such quantities and at such times as may be determined from time
to time, or (b) take any other available course of action, which could involve
one or more of the types of transactions or have one or more of the results
described in the next paragraph of this Item 4. In reaching any decision as to
their course of action (as well as to the specific elements thereof), the
Reporting Persons currently expect that they would take into consideration a
variety of factors, including, but not limited to, the Issuer's business,
financial condition and prospects, other developments concerning the Issuer and
its equity financing requirements and its businesses generally, other
developments and other business opportunities available to the Reporting
Persons, developments with respect to the Reporting Persons' business and
general economic outlook, changes in law and government regulations, general
economic conditions, and money, currency, commodity and stock market conditions,
including the market price of the securities of the Issuer.
Other than as set forth in this Statement, the Reporting Persons have
no present plans or proposals which relate to or would result in any of the
following (although the Reporting Persons reserve the right to develop such
plans or proposals in the future): (i) the acquisition by any person of
additional securities of the Issuer, or the disposition of securities of the
Issuer, (ii) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries,
(iii) a sale or transfer of a material amount of assets of the Issuer or of any
of its subsidiaries, (iv) any change in the present Board of Directors or
management of the Issuer, (v) any material change in the present capitalization
or dividend policy of the Issuer, (vi) any other material change in the Issuer's
business or corporate structure, (vii) changes in the Issuer's charter, bylaws
or instruments corresponding thereto or other actions which may impede the
acquisition of control of the Issuer by any person, (viii) a class of securities
of the Issuer being delisted from a national securities exchange or ceasing to
be authorized to be quoted in an inter-dealer quotation system of a registered
national securities association, (ix) a class of equity securities of the Issuer
6
becoming eligible for termination of registration, or (x) any action similar to
any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) The responses of the Reporting Persons to Rows (11) through (13) of the
cover pages of this Statement are incorporated herein by reference. The
Reporting Persons are the sole beneficial owners of 115,102,929 Ordinary Shares
representing 41.57% of the outstanding Ordinary Shares. The calculation of the
foregoing percentage is based on the number of Ordinary Shares outstanding as of
October 1, 2007 (the "Outstanding Shares").
Mr. R.M. Godsell is a beneficial owner of 13,010 Ordinary Shares and
has sole voting and dispositive power with respect to such Ordinary Shares. Mr.
R.M. Godsell is also a beneficial owner of 213,728 Ordinary Shares that Mr.
Godsell has the right to acquire upon the exercise of the options issued under
the Issuer's Share Incentive Scheme. The number of Ordinary Shares beneficially
owned by Mr. Godsell represents less than 0.1% of the Outstanding Shares.
Mr. G.G. Gomwe is a beneficial owner of 120 Ordinary Shares and has
sole voting and dispositive power with respect to such Ordinary Shares. The
number of Ordinary Shares beneficially owned by Mr. Gomwe represents less than
0.1% of the Outstanding Shares.
As trustee of The BRO Trust, Mr. N.F. Oppenheimer shares with his
fellow trustees the power to direct the receipt of dividends from, or the
proceeds from the sale of, 4,370 Ordinary Shares, which represents less than
0.1% of the Outstanding Shares. The exercise of such power requires the
unanimous approval of all trustees of The BRO Trust. Mr. Oppenheimer is not a
beneficiary of The BRO Trust, which is a charitable trust.
Except as disclosed in this Item 5(a), none of the Reporting Persons or
the Holding Companies nor, to the best of their knowledge, any of the persons
listed on Exhibit A to this Statement beneficially owns any Ordinary Shares or
has the right to acquire any Ordinary Shares.
(b) All decisions with respect to the voting and/or disposition of the Ordinary
Shares owned by the Reporting Persons are currently made by the Board of
Directors of Anglo American. Accordingly, Anglo American has the power to direct
the voting and/or disposition of the Ordinary Shares held by Anglo SA Capital,
and Anglo SA Capital has the power to vote and/or dispose of the Ordinary Shares
(which power is exercised at the direction of Anglo American). The responses of
the Reporting Persons to (i) Rows (7) through (10) of the cover pages of this
Statement and (ii) Item 5(a) hereof are incorporated herein by reference.
(c) Except as disclosed in this Statement, none of the Reporting Persons or the
Holding Companies nor, to the best of their knowledge, any of the persons listed
on Exhibit A has effected any transaction in the Ordinary Shares since May 22,
2006, the date of Amendment No. 10.
(d) To the best knowledge of the Reporting Persons, other than the Holding
Companies, no other person has the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, the Ordinary Shares
beneficially owned by the Reporting Persons.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
On March 23, 2006 Anglo SA Capital entered into a Registration Rights
Agreement with the Issuer to facilitate the sale to the public of some or all of
the Ordinary Shares of the Issuer held by Anglo SA Capital as well as any
securities into or for which the Ordinary Shares have been converted and any
security issued with respect thereto upon any share dividend, split or similar
event. The Registration Rights Agreement requires the Issuer to use all
reasonable efforts to: file with the United States Securities and Exchange
Commission, no later than March 27, 2006, a shelf registration statement on Form
F-3, providing
7
for one or more offerings to be made on a delayed basis of such number of
Ordinary Shares of the Issuer as Anglo SA Capital may determine in its sole
discretion; and file, upon demand by Anglo SA Capital, additional non-continuous
registration statements on Form F-3 providing for offerings to be made on a
non-delayed basis of the Ordinary Shares of the Issuer. The foregoing discussion
of the Registration Rights Agreement is qualified in its entirety by reference
to the Registration Rights Agreement incorporated by reference in Exhibit C
hereto.
On April 10, 2006 Issuer and Anglo SA Capital entered into an
Underwriting Agreement with Goldman, Sachs & Co. and UBS Limited as
co-representatives of the several Underwriters named in Schedule I thereto.
Under the Underwriting Agreement (i) Issuer agreed to issue and sell to
purchasers procured by the Underwriters, or, failing that, to the Underwriters,
an aggregate of 9,970,732 Ordinary Shares, and (ii) Anglo SA Capital agreed to
sell to purchasers procured by the Underwriters or, failing that, to the
Underwriters, an aggregate of 16,328,313 Ordinary Shares and, at the election of
the Underwriters, up to 3,944,857 additional Ordinary Shares, subject, in each
of cases (i) and (ii), to customary closing conditions. The Underwriters may
elect to direct delivery of the shares, or take delivery of the shares
themselves, in the form of Ordinary Shares or in the form of ADSs. Anglo SA
Capital has also agreed to a lock-up provision therein whereby, subject to
certain exceptions, it is restricted from offering or selling Ordinary Share for
a period of 270 days after the date of the prospectus filed in connection with
the offering. The foregoing discussion of the Underwriting Agreement is
qualified in its entirety by reference to the Underwriting Agreement attached
hereto as Exhibit D.
On October 1, 2007 Issuer and Anglo SA Capital entered into an
Underwriting Agreement with Goldman Sachs International and UBS Limited as
co-representatives of the Underwriters. Under the Underwriting Agreement Anglo
SA Capital agreed to sell to purchasers procured by the Underwriters, or,
failing that, to the Underwriters, an aggregate of 67,100,000 Ordinary Shares,
subject to customary closing conditions. The Underwriters may elect to direct
delivery of the shares, or take delivery of the shares themselves, in the form
of Ordinary Shares or in the form of ADSs. Anglo SA Capital has also agreed to a
lock-up provision therein whereby, subject to certain exceptions, it is
restricted from offering or selling Ordinary Shares without the consent of the
Underwriters for the period beginning from the date of the Underwriting
Agreement until May 31, 2008 (inclusive). The foregoing discussion of the
Underwriting Agreement is qualified in its entirety by reference to the
Underwriting Agreement attached hereto as Exhibit E.
Item 7. Materials to be filed as Exhibits.
Exhibit Description
Exhibit A Directors and Officers of Anglo American and Anglo SA Capital
Exhibit B Anglo American plc press release (incorporated by reference to
Exhibit B to Amendment No. 5, filed on October 26, 2005, to
this Statement on Schedule 13D)
Exhibit C Registration Rights Agreement, dated as of March 23, 2006,
between Anglo SA Capital and Issuer (incorporated by
reference to Exhibit C to Amendment No. 7, filed on
March 23, 2006, to this Statement on Schedule 13D)
Exhibit D Underwriting Agreement, dated as of April 10, 2006, among
Anglo SA Capital, Issuer and Goldman, Sachs & Co. and UBS
Limited as co-representatives of the Underwriters named in
Schedule I thereto (incorporated by reference to Exhibit D to
Amendment No. 8, filed on April 11, 2006, to this Statement on
Schedule 13D)
Exhibit E Underwriting Agreement, dated as of October 1, 2007, among
Anglo SA Capital, Issuer and Goldman Sachs International and
UBS Limited as representatives of the Underwriters named in
Schedule I thereto
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
8
correct.
Dated:
October 5, 2007 ANGLO AMERICAN PLC
/s/ Nicholas Jordan
--------------------------------------
Signature
Nicholas Jordan/Company Secretary
--------------------------------------
Name/Title
Dated:
October 5, 2007 ANGLO SOUTH AFRICA CAPITAL
(PTY) LTD
By: ANGLO AMERICAN PLC
Pursuant to the Joint Filing Agreement
/s/ Nicholas Jordan
--------------------------------------
Signature
Nicholas Jordan/Company Secretary
--------------------------------------
Name/Title
9
EXHIBIT INDEX
-------------
Exhibit Description
Exhibit A Directors and Officers of Anglo American and Anglo SA Capital
Exhibit B Anglo American plc press release (incorporated by reference to
Exhibit B to Amendment No. 5, filed on October 26, 2005, to
this Statement on Schedule 13D)
Exhibit C Registration Rights Agreement, dated as of March 23, 2006,
between Anglo SA Capital and Issuer (incorporated by
reference to Exhibit C to Amendment No. 7, filed on
March 23, 2006, to this Statement on Schedule 13D)
Exhibit D Underwriting Agreement, dated as of April 10, 2006, among
Anglo SA Capital, Issuer and Goldman, Sachs & Co. and UBS
Limited as co-representatives of the Underwriters named in
Schedule I thereto (incorporated by reference to Exhibit D to
Amendment No. 8, filed on April 11, 2006, to this Statement on
Schedule 13D)
Exhibit E Underwriting Agreement, dated as of October 1, 2007, among
Anglo SA Capital, Issuer and Goldman Sachs International and
UBS Limited as representatives of the Underwriters named in
Schedule I thereto
10
EXHIBIT A
---------
DIRECTORS AND EXECUTIVE OFFICERS OF ANGLO AMERICAN
The name, residence or business address, present principal occupation
or employment, the name of any corporation or other organization in which such
occupation or employment is conducted, together with his principal business
address and the citizenship of the directors and executive officers of Anglo
American plc are set forth below.
Name: Sir Mark Moody-Stuart (Chairman)
Citizenship: British
Business Address: 20 Carlton House Terrace, London SW1Y 5AN, United
Kingdom
Principal Occupation: Chairman, Anglo American plc
Name: Ms. Cynthia Carroll (Chief Executive)
Citizenship: USA
Business Address: 20 Carlton House Terrace, London SW1Y 5AN, United
Kingdom
Principal Occupation: Chief Executive, Anglo American plc
Name: Mr R. Medori (Finance Director)
Citizenship: French
Business Address: 20 Carlton House Terrace, London SW1Y 5AB, United
Kingdom
Principal Occupation: Finance Director, Anglo American plc
Name: Mr R.C. Alexander (Non-Executive Director)
Citizenship: USA
Business Address: 79 Golden Scroll Circle, The Woodlands, Texas 77382, USA
Principal Occupation: Company Director
Name: Mr D.J. Challen (Non-Executive Director)
Citizenship: British
Business Address: 33 Canada Square, Canary Wharf, London E14 5LB, United
Kingdom
Principal Occupation: Company Director
Name: Dr C.E. Fay (Non-Executive Director)
Citizenship: British
Business Address: Merrifield, Links Road, Bramley, Guilford Surrey GU5 0AL
United Kingdom
Principal Occupation: Director of Companies
Name: Mr R.M. Godsell (Non-Executive Director)
Citizenship: South African
Business Address: Carlton House Terrace, London SW1Y 5AN, United
Kingdom
Principal Occupation: Director of Companies
11
Name: Mr R.J. Margetts (Senior Independent Non-Executive
Director)
Citizenship: British
Business Address: c/o Matlin Patterson, 7th Floor, Buchanan House, 3 St.
James's Square, London SW1Y 4JU, United Kingdom
Principal Occupation: Chairman, Legal and General Group plc
Name: Mr N.F. Oppenheimer (Non-Executive Director)
Citizenship: South African
Business Address: De Beers House, corner Diamond Drive and Crownwood Road,
Theta, Johannesburg, 2013, South Africa
Principal Occupation: Director and Chairman, De Beers S.A.
Name: Dr M.A. Ramphele (Non-Executive Director)
Citizenship: South African
Business Address: LG Building, 1 Thibault Square, Long Street, Cape Town,
8000, South Africa
Principal Occupation: Director of Companies
Name: Mr F.T.M. Phaswana (Non-Executive Director)
Citizenship: South African
Business Address: P.O. Box 72501, Parkview, South Africa
Principal Occupation: Chairman, Transnet, South Africa
Name: Professor K.A.L.M. Van Miert (Non-Executive Director)
Citizenship: Belgium
Business Address: Puttestraat 10, B-1650 Beersel, Belgium
Principal Occupation: Director of Companies
Name: Mr P. Woicke (Non-Executive Director)
Citizenship: German/USA
Business Address: 2737 Devonshire Pl. NW
Washington DC 20008
USA
Principal Occupation: Director of Companies
Name: R.J. King (Executive Officer)
Citizenship: British
Business Address: 20 Carlton House Terrace, London SW1Y 5AN, United
Kingdom
Principal Occupation: Group Head of Human Resources, Business Development and
Sustainable Development Anglo American plc
Name: Mr. A.E. Redman (Executive Officer)
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001, South Africa
Principal Occupation: Technical Director, Anglo American plc
12
DIRECTORS AND EXECUTIVE OFFICERS OF ANGLO SA CAPITAL
The name, residence or business address, present principal occupation
or employment, the name of any corporation or other organization in which such
occupation or employment is conducted, together with his principal business
address and the citizenship of the directors and executive officers of Anglo SA
Capital are set forth below.
Name: Mr. P.R.N. Arthur
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001, South Africa
Principal Occupation: Executive VP: General Counsel AASA
Name: Mr. P.M. Baum
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001, South Africa
Principal Occupation: CEO: Ferrous Metals and Industries Division,
Anglo American and Acting CEO AASA
Name: Mr. G.G. Gomwe
Citizenship: Zimbabwean
Business Address: 44 Main Street, Johannesburg, 2001, South Africa
Principal Occupation: Finance Director: AASA
Name: Mr. S. Mayet
Citizenship: South African & Canadian
Business Address: 45 Main Street, Johannesburg, 2001, South Africa
Principal Occupation: Head of Corporate Reporting
Name: Mr. N.B. Mbazima
Citizenship: Zambian
Business Address: 44 Main Street, Johannesburg, 2001, South Africa
Principal Occupation: Financial Director and Acting CEO Commercial Anglo
Platinum
13
EXHIBIT B
---------
Incorporated by reference to Exhibit B to Amendment No. 5, filed on
October 26, 2005, to this Statement on Schedule 13D.
14
EXHIBIT C
---------
Incorporated by reference to Exhibit C to Amendment No. 7, filed on
March 23, 2006, to this Statement on Schedule 13D.
15
EXHIBIT D
---------
Incorporated by reference to Exhibit D to Amendment No. 8, filed on
April 11, 2006, to this Statement on Schedule 13D.
16
EXHIBIT E
ANGLOGOLD ASHANTI LIMITED
Ordinary Shares, par value 25 ZAR cents
---------------------------------------
Underwriting Agreement
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October 1, 2007
Goldman Sachs International
Peterborough Court
133 Fleet Street
London EC4A 2BB
United Kingdom
UBS Limited
1 Finsbury Avenue
London EC2M 2PP
United Kingdom
As representatives of the several Underwriters
named in Schedule I hereto,
Ladies and Gentlemen:
Anglo South Africa Capital (Proprietary) Limited, a private company
with limited liability incorporated under the laws of the Republic of South
Africa (the "SELLING SHAREHOLDER"), proposes, subject to the terms and
conditions stated herein, to sell to purchasers procured by the underwriters
named in Schedule I hereto (the "UNDERWRITERS"), for whom you are acting as
representatives (the "REPRESENTATIVES") or, failing that, to the Underwriters,
an aggregate of 67,100,000 Ordinary Shares, par value 25 ZAR cents per share
("STOCK"), of AngloGold Ashanti Limited, a public company with limited liability
incorporated under the laws of the Republic of South Africa (the "COMPANY")
(such shares, the "SHARES").
The Underwriters may elect to direct delivery of the Shares, or take
delivery of the Shares themselves, in the form of shares of Stock or in the form
of American Depositary Shares ("ADSs"). The ADSs are to be issued pursuant to a
deposit agreement, dated as of June 26, 1998, (as amended) among the Company,
Bank of New York, as depositary (the "DEPOSITARY"), and holders from time to
time of the American Depositary Receipts (the "ADRs") issued by the Depositary
and evidencing the ADSs (the "DEPOSIT AGREEMENT"). Each ADS will initially
represent the right to receive one share of Stock deposited pursuant to the
Deposit Agreement.
Except as used in Sections 2, 4, 10 and 12 herein, and except as the
context may otherwise require, references hereinafter to the Shares shall
include all of the shares of Stock, whether in the form of Shares or ADSs, which
may be sold pursuant to this Agreement.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) An "automatic shelf registration statement" as defined under
Rule 405 under the Securities Act of 1933, as amended, (the "ACT" or
the "SECURITIES ACT") on Form F-3 (File No. 333-132622) in respect of
the Shares has been filed with the Securities and Exchange Commission
(the "COMMISSION") not earlier
17
than three years prior to the date hereof; such registration statement,
and any post-effective amendment thereto, became effective on filing;
and no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and to the Company's
knowledge no proceeding for that purpose has been initiated or
threatened by the Commission, and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Act has been received by the Company (the base prospectus filed as part
of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the "BASIC PROSPECTUS"; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Shares filed with the Commission pursuant
to Rule 424(b) under the Act is hereinafter called a "PRELIMINARY
PROSPECTUS"; the various parts of such registration statement,
including all exhibits thereto and including any prospectus supplement
relating to the Shares that is filed with the Commission and deemed by
virtue of Rule 430B to be part of such registration statement, each as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "REGISTRATION
STATEMENT"; the Basic Prospectus, as amended and supplemented
immediately prior to the Applicable Time (as defined in Section
1(a)(iii) hereof), including, for the avoidance of doubt, without
limitation, by any Preliminary Prospectus, is hereinafter called the
"PRICING PROSPECTUS"; the form of the final prospectus relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a)(i) hereof is hereinafter called the
"Prospectus"; any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 6 of Form F-3 under the Act, as of the date of
such prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the Act
and any documents filed under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and incorporated therein, in each case
after the date of the Basic Prospectus, such Preliminary Prospectus, or
the Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any "issuer free writing prospectus" as defined in Rule
433 under the Act relating to the Shares is hereinafter called an
"ISSUER FREE WRITING PROSPECTUS");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Prospectus, as of its date and as of
the Time of Delivery (as defined in Section 4 hereof), will not contain
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in
18
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through the Representatives expressly
for use therein or Selling Shareholder Information (as defined in
Section 1(b)(vii));
(iii) For the purposes of this Agreement, the "APPLICABLE TIME" is
4:30pm (Eastern Time) on the date of this Agreement; the Pricing
Prospectus as supplemented by those Issuer Free Writing Prospectuses
and other documents listed in Schedule II(a) hereto, if applicable,
taken together (collectively, the "PRICING DISCLOSURE PACKAGE") as of
the Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and each Issuer Free Writing Prospectus
listed on Schedule II(a) or Schedule II(b) hereto does not conflict
with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to
statements or omissions made in an Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through the Representatives or by the
Selling Shareholder expressly for use therein;
(iv) The documents incorporated by reference in the Pricing
Prospectus and the Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; provided that no such
documents were filed with the Commission since the Commission's close
of business on the business day (which term shall mean for this
subsection (a)(iv) any day when the Commission's office in Washington
D.C. is open for business) immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set
forth on Schedule II(c) hereto and except for such other documents as
were delivered to you prior to the Applicable Time;
(v) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement and
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to each part of the Registration Statement and as of the applicable
filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein or Selling Shareholder
Information;
19
(vi) A registration statement on Form F-6 (File No. 333-133049) in
respect of the ADSs has been filed with the Commission; such
registration statement, excluding exhibits, in the form heretofore
delivered to you for each of the other Underwriters has been declared
effective by the Commission in such form; no stop order suspending the
effectiveness of such registration statement has been issued and to the
Company's knowledge, no proceeding for that purpose has been initiated
or threatened by the Commission (the various parts of such registration
statement, including all exhibits thereto, each as amended at the time
such part of the registration statement became effective, being
hereinafter called the "ADS REGISTRATION STATEMENT"); and the ADS
Registration Statement when it became effective conformed, and any
further amendments thereto will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder, and did not, as of the applicable effective
date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(vii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Pricing Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, in each case
materially adverse to the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Pricing
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Pricing Prospectus, there
has not been any material adverse change in the capital stock of the
Company or any material increase in the long term debt of the Company
and its subsidiaries taken as a whole or any material adverse change,
or any development involving a prospective material adverse change, in
or affecting the business affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, in each case otherwise than as set forth
or contemplated in the Pricing Prospectus;
(viii) The Company and its subsidiaries have good and marketable
title to all real property owned by them free and clear of all liens,
encumbrances and defects, and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases except, in each case, as
described in the Pricing Prospectus or as would not, individually or in
the aggregate, have a material adverse effect on the business affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT");
(ix) The Company is duly incorporated as a public company with
limited liability, and validly existing under the laws of the Republic
of South Africa, is not in bankruptcy, liquidation, receivership or
under judicial management (and no order or resolution therefor has been
presented and no notice of appointment of any liquidator, receiver,
administrative receiver, administrator or judicial manager has been
given) and has full power and authority under its memorandum and
articles of association and otherwise to own its assets and conduct its
business;
(x) The Company has an authorized and issued share capital as set
forth in the Pricing Prospectus, and all of the outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and not subject
20
to further calls or assessment by the Company and conform in all
material respects to the description of the Stock contained in the
Pricing Prospectus; and all of the issued shares of capital stock of
each subsidiary of the Company listed in Schedule III have been duly
and validly authorized and issued, are fully paid and not subject to
further calls or assessment by the Company and (except for directors'
qualifying shares and except as set forth in the Pricing Prospectus)
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims; all of the issued Stock has
been duly listed and admitted for trading on the JSE Limited, the New
York Stock Exchange (in the form of ADSs), the London Stock Exchange,
Euronext Paris and on the Australian Stock Exchange (in the form of
Clearing House Electronic Subregister System ("CHESS") Depositary
Shares represented by CHESS Depositary Interests ("CDIs"), the Ghana
Stock Exchange (in the form of ordinary Shares and Ghanaian Depositary
Shares) and are quoted on Euronext Brussels (in the form of
International Depositary Receipts ("IDRs") (the "STOCK EXCHANGES"); the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or similar rights to acquire the Shares or the
ADSs which have not been complied with, extinguished or waived; there
are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, any share capital or
other equity interest in the Company, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the
issuance of any share capital of the Company, any such convertible or
exchangeable securities or any such rights, warrants or options, or
obligations of the Company to issue, the Stock or any other class of
capital stock of the Company (in each case except as set forth in the
Pricing Prospectus); and there are no restrictions on subsequent
transfers of the Shares or ADSs except as described in the Pricing
Prospectus or under the securities laws of countries other than the
United States (except those restrictions imposed on affiliates of the
Company by the Act and rules promulgated thereunder) and the Republic
of South Africa;
(xi) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency,
reorganization and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; upon
issuance by the Depositary of ADRs evidencing ADSs, the deposit of
Shares in respect thereof in accordance with the provisions of the
Deposit Agreement, such ADRs will be duly and validly issued and the
persons in whose names the ADRs are registered will be entitled to the
rights specified therein and in the Deposit Agreement; and the Deposit
Agreement and the ADRs conform in all material respects to the
descriptions thereof contained in the Pricing Prospectus;
(xii) All consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities
(hereinafter referred to as a "GOVERNMENTAL AGENCY") having
jurisdiction over the Company (hereinafter referred to as "COMPANY
GOVERNMENTAL AUTHORIZATIONS") required to be obtained by the Company
for the execution, delivery and performance by the Company of this
Agreement have been obtained or made and are in full force and effect
in respect of the performance by the Company of its obligations
hereunder;
(xiii) All expressions of opinion, intention or expectation in the
Pricing Prospectus, including, without limitation, the estimates and
projections included under the caption "Prospectus Supplement Summary",
on the part of the Company, its directors or management are, and in the
Prospectus will be, fairly and honestly held and have been made on
reasonable
21
grounds after due and careful consideration and inquiry, in each case
subject to the assumptions set forth therein and to the risks and
uncertainties contemplated under the captions "Forward-looking
Statements" and "Note Regarding Forward-looking Statements" therein;
(xiv) The execution and delivery of this Agreement and the
compliance by the Company with all of the provisions of, and
performance of its obligations under, this Agreement and the Deposit
Agreement will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is
subject, except as would not both (i) have a Material Adverse Effect
and (ii) adversely affect the consummation of the transactions
contemplated herein to a material extent, nor will such action by the
Company result in any violation of the provisions of the Memorandum and
Articles of Association or Bylaws of the Company or any statute or any
order, rule or regulation of any Governmental Agency having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such Governmental Agency is required for the performance by
the Company of its obligations hereunder except (A) the registration
under the Act of the Shares, (B) such Company Governmental
Authorizations as have been duly obtained or made and are in full force
and effect and copies of which have been furnished to you and (C) such
Company Governmental Authorizations as may be required under state
securities or Blue Sky laws or any securities laws of jurisdictions
outside the Republic of South Africa and the United States;
(xv) Neither the Company nor any of its subsidiaries is in
violation of its Memorandum and Articles of Association or Bylaws or,
except as would not, individually or in the aggregate, have a Material
Adverse Effect, in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(xvi) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which would reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company, in each case in violation of applicable laws, to facilitate
the sale or resale of the Shares or ADSs;
(xvii) The statements set forth or incorporated by reference in
the Pricing Prospectus and the Prospectus under the captions
"Description of Ordinary Shares and ADSs" and "Taxation" insofar as
they purport to constitute a summary of the matters set forth therein,
fairly summarize these matters in all material respects;
(xviii) Other than as set forth in the Pricing Prospectus, there
are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect; and, to the best of
the Company's knowledge, no such proceedings are threatened by any
Governmental Agency or by any other person;
22
(xix) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT");
(xx) (A) (i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto for the purposes
of complying with Section 10(a)(3) of the Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus), and
(iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) under the
Act) made any offer relating to the Shares in reliance on the exemption
of Rule 163 under the Act, the Company was a "well-known seasoned
issuer" as defined in Rule 405 under the Act; and (B) at the earliest
time after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the meaning
of Rule 164(h)(2) under the Act) of the Shares, the Company was not an
"ineligible issuer" as defined in Rule 405 under the Act;
(xxi) Each of the audited financial statements included in the
Registration Statement and the Pricing Prospectus, and the unaudited
six-month financial statements as at June 30, 2007 and for the periods
ended June 30, 2007 and June 30, 2006 included in the Registration
Statement and the Pricing Prospectus, together with their respective
related notes and schedules, fairly present in all material respects
the consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the consolidated results of operations
and cash flows of the Company and its subsidiaries for the periods
specified and have been prepared in compliance with the requirements of
the Act and in conformity with generally accepted accounting principles
as applied in the United States, except as set forth in the Pricing
Prospectus, applied on a consistent basis during the periods presented
(except that each of the audited financial statements relating to
Societe des Mines de Morila S.A., Societe d'Exploitation des Mines d'Or
de Sadiola S.A. and Societe d'Exploitation des Mines d'Or de Yatela
S.A., respectively, included in the Registration Statement and the
Pricing Prospectus, together with their respective related notes and
schedules, fairly present in all material respects the financial
position of such entity as of the dates indicated and the results of
operations and cash flows of such entity for the periods specified and
have each been prepared in compliance with the requirements of the Act
and in conformity with International Financial Reporting Standards
applied, except as set forth in the Pricing Prospectus, on a consistent
basis during the periods presented); the other financial and
statistical data set forth in the Registration Statement and the
Pricing Prospectus are accurately presented and prepared on a basis
materially consistent with the financial statements and books and
records of the Company; and the Company and its subsidiaries do not
have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not disclosed in the
Registration Statement and the Pricing Prospectus and that are required
to be disclosed therein;
(xxii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with the
International Financial Reporting Standards and generally accepted
accounting principles, and to maintain asset accountability; (C) access
to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets
is compared with
23
the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(xxiii) The Company and each of its subsidiaries have all
licenses, certificates, permits and other authorizations (including,
without limitation, all mineral rights, mining authorizations and
mining leases) issued by the appropriate Governmental Agencies (and
have made all required declarations and filings with such Governmental
Agencies), that are legally required for the ownership or lease of
their respective properties or the conduct of their respective
businesses as described in the Pricing Prospectus, except as described
in the Pricing Prospectus or where the failure to possess the same
would not, individually or in the aggregate, have a Material Adverse
Effect; except as described in the Pricing Prospectus or as would not,
individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of its subsidiaries has received or expects
to receive notice of any revocation or modification of any such
license, certificate, permit or authorization; and the Company and each
of its subsidiaries are in compliance with each of the same, except for
any non-compliance which would not, individually or in the aggregate,
have a Material Adverse Effect;
(xxiv) Ernst & Young, Inc. ("ERNST & YOUNG") who have certified
certain financial statements of the Company and certain of its
subsidiaries and certified certain financial statements of Societe des
Mines de Morila S.A. and KPMG Inc. ("KPMG"), who have certified certain
financial statements of each of Societe d'Exploitation des Mines d'Or
de Sadiola S.A. and Societe d'Exploitation des Mines d'Or de Yatela
S.A. are each independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder; and
PricewaterhouseCoopers Inc. ("PRICEWATERHOUSECOOPERS"), who have
certified certain financial statements of Societe des Mines de Morila
S.A., were, at the time of certifying such financial statements,
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(xxv) In each case except as described in the Pricing Prospectus,
the Company and its subsidiaries own or possess adequate rights to use
all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) legally required for the conduct of their respective
businesses, except those that would not, individually or in the
aggregate, have a Material Adverse Effect; and, to the best knowledge
of the Company, except as would not, individually or in the aggregate,
have a Material Adverse Effect, the conduct of their respective
businesses will not conflict with any such rights of others and the
Company and its subsidiaries have not received any notice of any claim
of infringement or conflict with any such rights of others;
(xxvi) No labor disturbance by or dispute with employees of the
Company or any of its subsidiaries exists or, to the best knowledge of
the Company, is threatened, except as described in the Pricing
Prospectus or as would not have a Material Adverse Effect;
(xxvii) The Company and its subsidiaries (A) are in compliance
with any and all applicable laws (including the common law), rules,
regulations, ordinances, decrees, judgments, injunctions, permits,
licenses, authorizations, decisions, orders and other legally binding
requirements, in each case promulgated or declared by Governmental
Agencies in all countries and territories in which the Company or its
subsidiaries engage in
24
mining or other business activities relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, "ENVIRONMENTAL
LAWS"); (B) have received and are in compliance with all permits,
licenses or other approvals issued by Governmental Agencies and
required of them under applicable Environmental Laws to conduct their
respective businesses; (C) have not received any notice of any actual
or potential liability under, or investigation relating to, any
Environmental Law; except, in each case, as described in the Pricing
Prospectus or as would not, individually or in the aggregate, have a
Material Adverse Effect; and
(xxviii) Neither the Company nor any of its subsidiaries (if
acquired by the Company, then prior to its date of acquisition, to the
knowledge of the Company) has violated (i) any provision of the Foreign
Corrupt Practices Act of 1977 and the rules and regulations promulgated
thereunder or (ii) similar anti-corruption laws of all other applicable
jurisdictions, including those relating to political donations and
money laundering, and the rules, regulations or, to the extent they
have the force and effect of the law, guidelines, issued or
administered thereunder, in each case which violations are of a
character required to be disclosed in the Registration Statement.
(b) The Selling Shareholder represents and warrants to, and agrees
with, each of the Underwriters and the Company that:
(i) The Selling Shareholder is validly existing as a private
company with limited liability under the laws of the Republic of South
Africa and has the power and authority to enter into and perform its
obligations under this Agreement;
(ii) All consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any
Governmental Agency having jurisdiction over the Selling Shareholder
(hereinafter referred to as "SELLING SHAREHOLDER GOVERNMENTAL
AUTHORIZATIONS") required for the deposit of the Shares being deposited
with the Depositary against issuance of the ADSs to be delivered by the
Selling Shareholder at the Time of Delivery, for the sale and delivery
of the Shares to be sold by the Selling Shareholder hereunder and for
the execution and delivery by the Selling Shareholder of this
Agreement, have been obtained, including any requisite approval of the
South African Reserve Bank; and the Selling Shareholder has the full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Shares to be sold by it hereunder;
(iii) The sale of the Shares to be sold by the Selling
Shareholder, the execution and delivery of this Agreement, the deposit
of the Shares with the Depositary against issuance of the ADSs to be
delivered by the Selling Shareholder at the Time of Delivery hereunder
and the compliance by the Selling Shareholder with all of the
provisions of, and performance of its obligations under, this Agreement
and the Deposit Agreement and the consummation of the transaction
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Selling Shareholder is a
party or by which the Selling Shareholder is bound, or to which any of
the property or assets of the Selling Shareholder is subject, except as
would not have a material adverse effect on the consummation of the
transaction contemplated hereby, nor will such action result in any
violation of the provisions of the Memorandum and Articles of
Association or Bylaws of the Selling Shareholder or any statute or any
order, rule or regulation of any
25
Governmental Agency having jurisdiction over the Selling Shareholder or
the property of the Selling Shareholder;
(iv) No stamp or other issuance or transfer taxes (except for
uncertificated securities tax), levies (except for any STRATE levy or
investor protection levy) or duties or any other kind of tax and no
capital gains, income (other than income tax payable by any
Underwriters whose net income is generally subject to tax by the
Republic of South Africa or who perform any services hereunder through
a permanent establishment or a fixed base in the Republic of South
Africa), withholding or other taxes are payable or will be payable
immediately following the completion of the transactions contemplated
hereunder by or on behalf of purchasers of the Shares procured by the
Underwriters or Underwriters to the Republic of South Africa or any
political subdivision or taxing authority thereof or therein in
connection with (A) the deposit by the Selling Shareholder of Shares
with the Depositary against issuance of ADSs, or (B) for the sale and
delivery by the Selling Shareholder of Shares or ADSs to purchasers
procured by the Underwriters or to or for the respective accounts of
the Underwriters or (C) the performance by the Selling Shareholder of
its obligations under this Agreement, it being understood that any
subsequent transfer of Shares by purchasers procured by the
Underwriters, or the Underwriters, may cause such taxes (including, for
the avoidance of doubt, any uncertificated securities tax) to be
payable;
(v) The Selling Shareholder has, and immediately prior to the Time
of Delivery (as defined in Section 4 hereof) the Selling Shareholder
will have, good and valid title to the Shares to be sold by the Selling
Shareholder hereunder, free and clear of all liens, encumbrances,
equities or claims; and, upon delivery of such Shares and payment
therefor pursuant hereto and thereto, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or claims,
will pass to purchasers procured by the Underwriters or the several
Underwriters, as applicable;
(vi) The Selling Shareholder has not taken nor will take, directly
or indirectly, any action which is designed to or which has constituted
or which would reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company, in each case in violation of applicable laws, to facilitate
the sale or resale of the Shares;
(vii) The written information furnished to the Company by the
Selling Shareholder for use in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus
(it being understood that the only written information so furnished by
or on behalf of the Selling Shareholder is the information identified
in Schedule IV hereto) ("SELLING SHAREHOLDER INFORMATION") does not and
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading; and
(viii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Shareholder will deliver to you prior to or
at the Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof).
2. Subject to the terms and conditions herein set forth,
26
(a) the Selling Shareholder agrees to sell to purchasers procured
by the Underwriters or, failing that, to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to procure
purchasers for or, failing that, to purchase, or cause one of its
affiliates (within the meaning in Rule 405 under the Act) to purchase, from
the Selling Shareholder, at a purchase price per Share of rand 300.61 and
per ADS of USD 44.00 (to the extent that the Representatives make, or are
deemed to make, the election to direct delivery or take delivery of the
Shares in the form of ADSs pursuant to Section 4) the respective number of
Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Shares to be sold by the
Selling Shareholder by a fraction, the numerator of which is the aggregate
number of Shares to be purchased by purchasers procured by that Underwriter
or, failing that, by such Underwriter as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Shares to be purchased by all of purchasers procured by
the Underwriters or, failing that, by all of the Underwriters from the
Selling Shareholder hereunder.
As compensation in full to the Underwriters for their commitments
hereunder, the Selling Shareholder at the Time of Delivery will pay to the
Representatives, for the accounts of the several Underwriters, an amount equal
to USD 1.10 (i) per ADS for Shares to be delivered in the form of ADSs hereunder
and (ii) per share for Shares to be delivered in the form of shares of Stock
hereunder, in each case by the Selling Shareholder at the Time of Delivery. The
Representatives may accept payment of such compensation by offsetting the amount
thereof against payment of the amount payable pursuant to Section 4 hereof.
For the avoidance of doubt, in connection with facilitating the
delivery of the Shares as contemplated by Sections 3 and 4 hereof, in respect of
those Shares to be delivered in the form of ADSs to purchasers procured by the
Underwriters or to the Underwriters if applicable, the Representatives shall be
entitled to retain an amount equal to no more than USD 0.11 per ADS (the "UST
AMOUNT"), representing the amount of uncertificated securities tax in respect of
the change in beneficial ownership of each such Share to be delivered in the
form of an ADS, from the purchase price to investors, which shall be the sum of
(x) the price per ADS stated in Section 2(a) hereof and (y) the UST Amount. On
or around the Time of Delivery, such retained amount shall be transferred to the
Central Securities Depositary Participant for The Bank of New York for use in
satisfying The Bank of New York's obligations in respect of the uncertificated
securities tax in respect of such Shares, to the extent The Bank of New York is
the recipient of such Shares. Except as provided in the immediately preceding
sentence, the Representatives shall have no responsibility for any
uncertificated securities tax in respect of Shares to be delivered in the form
of ADSs to purchasers procured by the Underwriters, or in connection with the
payment thereof.
3. It is understood that the several Underwriters propose to offer the
Shares for sale, in each instance upon the terms and conditions set forth in the
Prospectus.
4. (a) With respect to all or a portion of the Shares to be purchased
and sold hereunder at the Time of Delivery, the Representatives, on behalf of
the several Underwriters, may elect to have ADSs delivered (to either or both of
purchasers procured by the Underwriters or the Underwriters) and paid for
hereunder in lieu of, and in satisfaction of, the Selling Shareholder's
obligation to sell to purchasers procured by the Underwriters or the several
Underwriters, as applicable, and the several Underwriters' obligations to
procure purchasers for or, failing that, to purchase the Shares. Written notice
of such election shall be given by the Representatives to the Selling
Shareholder at least four Business Days prior to the Time of Delivery (the
"NOTIFICATION TIME"), provided that should timely notice not be given, the
Selling Shareholder may deem the Representatives on behalf of the several
Underwriters to have elected to take delivery of all of the Shares in the form
of ADSs. The number of Shares to be purchased by purchasers procured by the
Underwriters or, failing that, by the Underwriters as a result of the making of
such election shall be adjusted by the Representatives so as to eliminate any
fractional ADSs and the purchase price for ADSs so delivered as a result of
making such election shall be the purchase price as set forth in Section 2
hereof.
27
(b) (i) The Shares to be delivered to purchasers procured by the
Underwriters or each Underwriter hereunder, as the case may be, in the form
of shares of Stock shall be delivered by or on behalf of the Selling
Shareholder through the facilities of STRATE Limited licensed (as a central
securities depositary in terms of the South African Securities Services Act
of 2004 ("STRATE")) to the Representatives for the account of such
purchasers or Underwriters, as the case may be, in such authorized
denominations and registered in such names as the Representatives may
request by written notice to the Selling Shareholder on or prior to the
Notification Time.
(ii) If the election has been made in accordance with subsection
(a) above, the ADSs to be delivered to purchasers procured by the
Underwriters or each Underwriter hereunder, as the case may be, shall
be delivered by or on behalf of the Selling Shareholder through the
facilities of The Depository Trust Company ("DTC") to the
Representatives for the account of such purchasers or Underwriters, as
the case may be, in such authorized denominations and registered in
such names as the Representatives may request by written notice to the
Company and the Selling Shareholder on or prior to the Notification
Time.
(c) (i) With respect to Shares being delivered in the form of
shares of Stock, such Shares shall be delivered against payment by, through
or on behalf of such Underwriter of the purchase price therefor by wire
transfer of same-day funds to the account specified by the Selling
Shareholder in the Republic of South Africa to the Representatives at least
two Business Days in advance of the Time of Delivery in accordance with the
rules of STRATE.
(ii) With respect to Shares being delivered in the form of ADSs,
such ADSs shall be delivered against payment by, through or on behalf
of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Selling
Shareholder to the Representatives at least two Business Days in
advance of the Time of Delivery;
(iii) Payment for the Shares shall be made to the Selling
Shareholder by, (A) in the case of the Shares to be delivered in the
form of shares of Stock, wire transfer of South African rand funds or
other immediately available funds in Johannesburg and (B) in the case
of Shares to be delivered in the form of ADSs, by wire transfer of
Federal (same day) or other immediately available funds in New York, in
each case against delivery of such Shares for the respective accounts
of the several Underwriters by 11:00 a.m., New York time, on October 9,
2007 or such other time and date as the Representatives and the Selling
Shareholder may agree upon in writing. Such time and date for delivery
of the Shares is herein called the "TIME OF DELIVERY".
(d) It is understood and agreed by the Selling Shareholder and the
Underwriters that no delivery or transfer of Shares or ADSs to be purchased
and sold hereunder at the Time of Delivery shall be effective until and
unless payment therefor has been made pursuant hereto and the Selling
Shareholder shall have furnished or caused to be furnished to the
Representatives, on behalf of the Underwriters at the Time of Delivery
certificates and other evidence reasonably satisfactory to the
Representatives of the execution in favor of purchasers procured by the
Underwriters or, failing that, the Underwriters, of the book-entry transfer
of Shares, whether by delivery of Shares in the Republic of South Africa
through STRATE or delivery of ADSs through the facilities of DTC.
(e) The Shares or ADSs shall be delivered to the Representatives
at the Time of Delivery for the respective accounts of purchasers procured
by the Underwriters as instructed by the Underwriters or for the accounts
of the several Underwriters, with all transfer and any issuance taxes or
other expenses (excluding any STRATE levy, investor protection levy or
uncertificated securities tax payable with respect to
28
the Shares) payable in connection with or issuance of the Shares or ADSs or
the transfer thereof to the Purchasers procured by the Underwriters or the
Underwriters duly paid by the Selling Shareholder in accordance with
Section 7 hereof.
(f) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Shares and ADSs and any additional documents required
by the Underwriters pursuant to Section 8(s) hereof, will be delivered at
the offices of Davis Polk & Wardwell, 99 Gresham Street, London EC2V 7NG
(the "CLOSING LOCATION"), and the Shares and ADSs will be delivered as
specified in subsection (b) above, all at the Time of Delivery. A meeting
will be held at the Closing Location at 1:00 p.m., London time, on the
Business Day next preceding the Time of Delivery, or such time and place as
may mutually be agreed upon in writing by the Representatives, the Selling
Shareholder and the Company, or their respective counsel, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 4 and Section 5, "BUSINESS DAY" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City, Johannesburg and London are
generally authorized or obligated by law or executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
(which term shall mean for this subsection 5(a)(i) any day when the
Commission's office in Washington D.C. is open for business) following
the execution and delivery of this Agreement; to make no further
amendment or any supplement to the Registration Statement, the Basic
Prospectus or the Prospectus prior to the Time of Delivery which shall
be disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any amendment or supplement to the Prospectus has been
filed and to furnish you with copies thereof; to file promptly all
material required to be filed by the Company with the Commission
pursuant to Rule 433(d) under the Act; to file promptly all reports and
any information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required in connection
with the offering or sale of the Shares; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
preliminary prospectus or other prospectus in respect of the
Securities, of any notice of objection of the Commission to the use of
the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
preliminary prospectus or other prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order and in the event of the issuance of any such
notice of objection, promptly to amend the Registration Statement in
such manner as may be required and permit offers in sales of to permit
offers and sales of the Securities; provided that, none of the
foregoing shall preclude the Company from discharging its obligations
under the Act or the Exchange Act;
29
(ii) If required by Rule 430B(h) under the Act, to prepare a form
of prospectus in a form approved by you and to file such form of
prospectus pursuant to Rule 424(b) under the Act not later than may be
required by Rule 424(b) under the Act; and to make no further amendment
or supplement to such form of prospectus which shall be disapproved by
you promptly after reasonable notice thereof;
(iii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general
service of process in any jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign
corporation;
(iv) If by the third anniversary (the "RENEWAL DEADLINE") of the
initial effective date of the Registration Statement, any of the Shares
remain unsold by the Underwriters, the Company will file, if it has not
already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Shares, in a form reasonably
satisfactory to you. If at the Renewal Deadline the Company is no
longer eligible to file an automatic shelf registration statement, the
Company will, if it has not already done so, file a new shelf
registration statement relating to the Shares, in a form reasonably
satisfactory to you and will use its best efforts to cause such
registration statement to be declared effective within 180 days after
the Renewal Deadline. The Company will take all other action necessary
or appropriate to permit the public offering and sale of the Shares to
continue as contemplated in the expired registration statement relating
to the Shares. References herein to the Registration Statement shall
include such new automatic shelf registration statement or such new
shelf registration statement, as the case may be;
(v) Prior to 10:00 a.m., London time, on the Business Day next
succeeding the date of this Agreement and during the period mentioned
below, to furnish the Underwriters with written and electronic copies
of the Prospectus in New York City or London in such quantities as you
may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required by law at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to
comply with the Act or the Exchange Act, to notify you and upon your
request to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with
sales of any of the Shares at any time nine months
30
or more after the time of issue of the Prospectus, upon your request
but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many written and electronic copies as you may request of
an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act;
(vi) To make generally available to the Company's securityholders
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(vii) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or dispose, except as provided
hereunder, of shares of Stock or any securities of the Company that are
substantially similar to shares of Stock, including but not limited to
any options or warrants to purchase shares of Stock or any securities
that are convertible into or exchangeable for, or that represent the
right to receive, Stock or any such substantially similar securities
(other than (A) in connection with any employee option, bonus, profit
sharing, pension, retirement, incentive, savings or similar agreement,
plan or award in effect as of the date of this Agreement, (B) upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of the date of this Agreement or (C) in consideration
for the shares or assets of a company or as part of a merger,
acquisition, corporate reorganization or similar transaction, provided
however that the recipient of any shares of Stock or other securities
as contemplated by this clause (C) shall be bound by the obligations
set forth in this subsection (vii)) without your prior written consent
(which, with respect to clause C only, shall not be unreasonably
withheld by the Representatives where the recipients of such Stock do
not agree to be bound by restrictions contemplated in this subsection
(vii));
(viii) To pay the required Commission filing fees relating to the
Securities within the time required by Rule 456(b)(1) under the Act
without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) under the Act;
(ix) Not to (and to cause its subsidiaries not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which would reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company, in each
case in violation of applicable laws, to facilitate the sale or resale
of the Shares;
(x) For so long as the Company has securities registered under the
Exchange Act, to use its reasonable best efforts to maintain its
listing of its ADSs on the New York Stock Exchange provided that the
Company may delist its ADSs from the New York Stock Exchange in
connection with preparing for an application to the Commission to
deregister its securities under the Exchange Act; and
(xi) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give
31
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
(b) The Selling Shareholder agrees with each of the Underwriters:
(i) During the period beginning from the date hereof until May 31,
2008 (inclusive), not to offer, sell, contract to sell, pledge, grant
any option to purchase, make any short sale or otherwise dispose,
except as provided hereunder, of shares of Stock or any securities of
the Company that are substantially similar to the shares of Stock,
including but not limited to any options or warrants to purchase shares
of Stock or any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than in connection with any
disposition by the Selling Shareholder of (x) any portion of its
remaining shares of Stock equal to at least 1% of the outstanding
shares of Stock as of the date hereof, or the entirety of its remaining
holding of shares of Stock, to a single person, or group that would be
deemed a person under Section 13(d) of the Exchange Act, in privately
negotiated transactions or (y) shares of Stock in the context of an
acquisition, merger, corporate reorganization or similar transaction
with respect to the Company provided that, in each case, the recipient
of such shares of Stock in such transactions shall be bound by the
obligations set forth in this subsection (i)) without your prior
written consent;
(ii) Prior to the Time of Delivery, to deposit, or cause to be
deposited on its behalf, shares of Stock with the Depositary in
accordance with the provisions of the Deposit Agreement and the Letter
of Instruction to be dated as of the Time of Delivery between the
Company, the Selling Shareholder and the Bank of New York (the "LETTER
OF INSTRUCTION") and otherwise to comply with the Deposit Agreement and
such Letter of Instruction so that ADRs evidencing ADSs will be
executed (and, if applicable, countersigned) and issued by the
Depositary against receipt of such shares of Stock and delivered to
purchasers procured by the Underwriters or to the Underwriters, as
applicable, at the Time of Delivery; and
(iii) Not to (and to cause its affiliates other than the Company
and its subsidiaries not to) take, directly or indirectly, any action
which is designed to or which constitutes or which would reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company, in each case in violation of
applicable laws, to facilitate the sale or resale of the Shares.
6. (a) Each of the Company and the Selling Shareholder represents and
agrees, severally and not jointly, that, without the prior consent of the
Representatives and the Company or Selling Shareholder, as applicable, it has
not made and will not make any offer relating to the Shares that would
constitute a "free writing prospectus" as defined in Rule 405 under the Act (a
"FREE WRITING PROSPECTUS"); each Underwriter represents and agrees that, without
the prior consent of the Company, the Selling Shareholder and the
Representatives, it has not made and will not make any offer relating to the
Shares that would constitute a Free Writing Prospectus; any such Free Writing
Prospectus the use of which has been consented to by the Company, the Selling
Shareholder and the Representatives is listed on Schedule II(a) or Schedule
II(b) hereto;
(b) The Company represents and warrants to, and agrees with each
of the Underwriters that, it has complied and will comply with the
requirements of Rule 433 under the Act applicable to any Issuer Free
Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
32
(c) The Company agrees that if at any time following issuance of
an Issuer Free Writing Prospectus any event occurred or occurs as a result
of which such Issuer Free Writing Prospectus would conflict with the
information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in light of the circumstances then prevailing, not misleading, the
Company will give prompt notice thereof to the Selling Shareholder and the
Representatives and, if requested by the Selling Shareholder or the
Representatives, will prepare and furnish without charge to the Selling
Shareholder and each Underwriter an Issuer Free Writing Prospectus or other
document which will correct such conflict, statement or omission (provided
that in accordance with Section 7 hereof, the Selling Shareholder agrees to
reimburse the Company for all reasonable and documented expenses incurred
in connection with the preparation of such Issuer Free Writing Prospectus
or other document); provided, however, that the foregoing shall not apply
to any statements or omissions in an Issuer Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives or by the Selling
Shareholder expressly for use therein.
7. The Selling Shareholder covenants and agrees with the several
Underwriters that the Selling Shareholder will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing, reproduction
and filing of the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments
and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing this Agreement,
any Blue Sky and Legal Investment Memoranda, and closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(a)(iii) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) all fees and expenses in connection with the listing of the Shares on the
New York Stock Exchange, the JSE Limited, Euronext Paris, the London Stock
Exchange, the Australian Stock Exchange and quoting on Euronext Brussels and the
filing fees incident thereto; and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(v) to the Representatives for the account of the several Underwriters, actual
and documented expenses reasonably incurred; (vi) the fees and disbursements of
Underwriters' counsel in connection with the transactions contemplated hereby
but excluding any such fees and disbursements incurred or arising in connection
with any subsequent transfer, sale or delivery by an Underwriter of Shares;
(vii) all expenses and taxes (other than any uncertificated securities tax,
which, for the avoidance of any doubt, shall not be paid by the Company or the
Selling Shareholder) arising as a result of the deposit of the Shares with the
Depositary and the issuance and delivery of ADSs and ADRs; (viii) the fees and
expenses (including fees and disbursements of their respective counsel) if any,
of the Depositary and any custodian appointed, as applicable, under the Deposit
Agreement, other than the fees and expenses to be paid by holders of the ADSs,
as applicable; (ix) fees and expenses of the Authorized Agent (as defined in
Section 15 hereof); (x) the cost of preparing stock certificates; (xi) the cost
and charges of any transfer agent or registrar; (xii) all stamp or other taxes,
levies and duties and any other kind of tax, including withholding tax, (other
than any STRATE levy, investor protection levy or uncertificated securities tax
that is payable) incurred or arising in connection with the transfer, sale or
delivery of Shares by the Selling Shareholder to the purchasers procured by the
Underwriters or the Underwriters, as applicable, including all taxes payable by
any of the Underwriters arising from the reimbursement of any expenses, other
than income tax from any fee, commission or other compensation received by such
Underwriters in accordance with this Agreement; (xiii) the fees, disbursements
and expenses of the Selling Shareholder's counsel; (xiv) reasonable and
documented costs and expenses incurred by the Company in order to obtain
directors and officers' Securities Act liability
33
insurance coverage with respect to the transactions contemplated by this
Agreement excluding the portion of the premium and other costs and expenses that
is not attributable to coverage of the potential liability of the Company's
directors and officers in connection with the transactions contemplated by this
Agreement; and (xv) all other reasonable costs and expenses incident to the
performance of the obligations of the Company and the Selling Shareholder
hereunder that are not otherwise specifically provided for in this Section; it
being understood that nothing in this Section 7 hereof is intended or shall be
construed to include (x) any stamp or other taxes, expenses, levies and duties
and any other kind of tax, including withholding tax, (including, without
limitation, any uncertificated securities tax, STRATE levy and the investor
protection levy payable) incurred or arising from any transfer, sale or delivery
of Shares by (A) a purchaser procured by the Underwriters or (B) an Underwriter
in its capacity as principal or (y) any costs or expenses incurred by the
Company in order to obtain directors and officers Securities Act liability
insurance that is not attributable to the transactions contemplated by this
Agreement. The Representatives agrees to pay New York State stock transfer tax,
and the Selling Shareholder agrees to reimburse the Representatives for
associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is understood,
however, that, except as provided in this Section, and Sections 9 and 12 hereof,
the Underwriters will pay all of their own advertising expenses in connection
with any offers they make and any costs, expenses and fees, stamp or other
taxes, levies and duties and any other kind of tax, including withholding tax
(including, without limitation, any uncertificated securities tax, STRATE levy
and the investor protection levy payable), incurred or arising from any
transfer, sale or delivery of Shares by an Underwriter in its capacity as
principal.
Payment shall be made by or on behalf of the Selling Shareholder within
fourteen days of the date of the invoice from the Representatives.
8. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at the Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholder herein are, at and as of the Time of
Delivery, true and correct, the condition that the Company and the Selling
Shareholder not be in breach of any of their obligations under this Agreement in
any respect that is material on or before the Time of Delivery, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; all material required to be filed
by the Company pursuant to Rule 433(d) under the Act shall have been filed
with the Commission within the applicable time period prescribed for such
filing by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission and no notice of objection of the Commission to the use of the
Registration Statement pursuant to Rule 401(g)(2) under the Act shall have
been received; no stop order suspending or preventing the use of the
Prospectus or any Issuer Free Writing Prospectus shall have been initiated
or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
your reasonable satisfaction;
(b) Davis Polk & Wardwell, counsel for the Underwriters, shall
have furnished to you their written opinion in the form set forth in Annex
I(a) hereto, dated the Time of Delivery and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Shearman & Sterling, LLP, United States counsel for the
Company, shall have furnished to you their written opinion in the form set
forth in Annex I(b) hereto, dated the Time of Delivery;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
34
(d) Mervyn Taback Inc., South African counsel for the Company
shall have furnished to you their written opinion in the form set forth in
Annex I(c) hereto, dated the Time of Delivery;
(e) Emmet, Marvin & Martin, LLP, counsel for the Depositary, shall
have furnished to you their written opinion in the form set forth in Annex
I(d) hereto, dated the Time of Delivery;
(f) Sullivan & Cromwell LLP, United States counsel for the Selling
Shareholder, shall have furnished to you their written opinion in the form
set forth in Annex I(e) hereto with respect to the Selling Shareholder,
dated the Time of Delivery;
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction outside the United
States;
(g) Webber Wentzel Bowens, South African counsel for the Selling
Shareholder, shall have furnished to you their written opinion in the form
set forth in Annex I(f) hereto with respect to the Selling Shareholder,
dated the Time of Delivery;
(h) Peter Arthur, Special Counsel for the Selling Shareholder,
shall have furnished to you his written opinion in the form set forth in
Annex I(g) hereto with respect to the Selling Shareholder, dated the Time
of Delivery;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the Republic of South
Africa and in rendering an opinion with respect to the transfer of good and
valid title to the Shares to be delivered by the Selling Shareholder, such
counsel may rely upon a certificate of the Selling Shareholder in respect
of matters of fact as to ownership of and liens, encumbrances, equities or
claims on, the Shares sold by the Selling Shareholder;
(i) On each of the date hereof and the Time of Delivery, Ernst &
Young shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof in the form and substance acceptable to you;
(j) On each of the date hereof and the Time of Delivery,
PricewaterhouseCoopers Inc. shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof in the form and
substance acceptable to you;
(k) On each of the date hereof and the Time of Delivery, KPMG Inc.
shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof in the form and substance acceptable to you;
(l) At and as of the Time of Delivery, (i) neither the Company nor
any of its subsidiaries shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, in
each case materially adverse to the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Pricing
Prospectus, and (ii) since the respective dates as of which information is
given in the Pricing Prospectus there shall not have been any material
adverse change in the capital stock of the Company or any material increase
in the long term debt of the Company and its subsidiaries taken as a whole
or any change, or any development involving a prospective change, in or
affecting the business affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, in each case otherwise than as set forth or
contemplated in the Pricing Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is in the
35
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at the Time of Delivery on the terms
and in the manner contemplated in the Pricing Prospectus;
(m) On or after the Applicable Time until the Time of Delivery (i)
no downgrading shall have occurred in the rating accorded the Company's
debt securities by rating agency Fitch or preferred stock by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
(ii) Fitch shall not have publicly announced that it has under its
surveillance or review, with possible negative implications, its rating of
the Company's debt securities, and (iii) no nationally recognized
statistical rating organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of the Company's preferred stock;
(n) At and as of the Time of Delivery, the Company shall have
obtained and delivered to the Representatives executed copies of an
agreement from each of the directors of the Company, substantially to the
effect set forth in Section 5(a)(vii) hereof in form and substance
satisfactory to the Representatives;
(o) On or after the Applicable Time until the Time of Delivery
there shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York
Stock Exchange, the London Stock Exchange and/or the JSE Limited; (ii) a
suspension or material limitation in trading in the Company's securities on
the New York Stock Exchange or the JSE Limited; (iii) a general moratorium
on commercial banking activities in New York, the Republic of South Africa
or London declared by the relevant authorities, or a material disruption in
commercial banking or securities settlement or clearance services in the
United States, or the Republic of South Africa or the United Kingdom; (iv)
a change or development involving a prospective change in the Republic of
South Africa taxation adversely affecting the Shares or the transfer
thereof; (v) the outbreak or escalation of hostilities involving the United
States, the Republic of South Africa or the United Kingdom or the
declaration by the United States, the Republic of South Africa or the
United Kingdom of a national emergency or war; or (vi) the occurrence of
any other calamity or crisis or any change in financial, political or
economic conditions or currency exchange rates or controls in the United
States, the Republic of South Africa or the United Kingdom or elsewhere, if
the effect of any such event specified in clause (v) or (vi) in the
reasonable judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at the Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(p) At and as of the Time of Delivery, the Shares shall continue
to be duly listed, subject to notice of issuance, on the JSE Limited, the
New York Stock Exchange (in the form of ADSs) and the London Stock
Exchange;
(q) At and as of the Time of Delivery, the Depositary shall have
furnished or caused to be furnished to you at the Time of Delivery
certificates satisfactory to you evidencing the deposit with it of the
Shares being so deposited against issuance of ADRs evidencing the ADSs to
be delivered by the Selling Shareholder at the Time of Delivery, and the
execution, countersignature (if applicable), issuance and delivery of ADRs
evidencing such ADSs pursuant to the Deposit Agreement;
(r) The Company shall have complied with the provisions of Section
5(a)(v) hereof with respect to the furnishing of prospectuses on the
Business Day next succeeding the date of this Agreement; and
(s) The Company and the Selling Shareholder shall have furnished
or caused to be furnished to you at and as of the Time of Delivery
certificates of officers of the Company and of the Selling
36
Shareholder, respectively, as to the accuracy of the representations and
warranties of the Company and the Selling Shareholder, respectively, herein
at and as of the Time of Delivery, as to the performance, in all material
respects, by the Company and the Selling Shareholder of their respective
obligations hereunder to be performed at or prior to the Time of Delivery,
and the Company shall have furnished or caused to be furnished certificates
as to the matters set forth in subsections (a) and (l) of this Section.
9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the ADS Registration Statement, the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer
Free Writing Prospectus, or any "issuer information" filed or required to be
filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the ADS
Registration Statement, the Registration Statement, the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment
or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein or Selling
Shareholder Information.
(b) The Selling Shareholder will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
ADS Registration Statement, the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus, or any amendment or supplement thereto or any Issuer Free
Writing Prospectus or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
ADS Registration Statement, the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus, or any amendment or supplement thereto or any Issuer Free
Writing Prospectus in reliance upon and in conformity with the Selling
Shareholder Information, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Selling Shareholder shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the ADS
Registration Statement, the Registration Statement, the Basic Prospectus,
the Pricing Prospectus, any Preliminary Prospectus, the Prospectus, or any
such amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use therein. The liability of the Selling Shareholder under
the indemnity agreement contained in this subsection (b) shall be limited
to an amount equal to the aggregate purchase price of the Shares sold by
the Selling Shareholder under this Agreement.
37
(c) Each Underwriter will indemnify and hold harmless the Company
and the Selling Shareholder against any losses, claims, damages or
liabilities to which the Company or the Selling Shareholder may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, the ADS
Registration Statement, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, the ADS
Registration Statement, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company and the Selling Shareholder for any legal or other expenses
reasonably incurred by the Company or the Selling Shareholder in connection
with investigating or defending any such action or claim as such expenses
are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Selling Shareholder on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection
(d) above, then each indemnifying party shall contribute to
38
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Selling Shareholder on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Shareholder on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company and the Selling Shareholder bear to the
total underwriting discounts and commissions received by the Underwriters
with respect to the Shares purchased under this Agreement, in each case as
set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company or the Selling Shareholder on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company, the Selling Shareholder and the Underwriters
agree that it would not be just and equitable if contributions pursuant to
this subsection (e) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Shareholder
under this Section 9 shall be in addition to any liability which the
Company and the Selling Shareholder may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under
this Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company) and to each person, if any,
who controls the Company or the Selling Shareholder within the meaning of
the Act.
10. (a) If any Underwriter shall default in its obligation to procure
purchasers for or, failing that, refuse to purchase the Shares which it has
agreed to purchase hereunder at the Time of Delivery, you may in your discretion
arrange for you or another party or other parties to purchase such Shares on the
terms contained herein. If within thirty six hours after such default you do not
make arrangements satisfactory to you and the Selling Shareholder for the
purchase of such Shares, then the Selling Shareholder shall be entitled to a
further period of thirty six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Shareholder that you have so arranged for the purchase of such
Shares, or the
39
Selling Shareholder notifies you that they have so arranged for the purchase of
such Shares, you or the Selling Shareholder shall have the right to postpone the
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in your opinion may thereby be made necessary.
The term "UNDERWRITER" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Selling Shareholder as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one
eleventh of the aggregate number of all of the Shares to be purchased at
the Time of Delivery, then the Selling Shareholder shall have the right to
require each non defaulting Underwriter to purchase the number of Shares
which such Underwriter agreed to purchase hereunder at the Time of Delivery
and, in addition, to require each non defaulting Underwriter to purchase
its pro rata share (based on the number of Shares which such Underwriter
agreed to procure purchasers for or, failing that, purchase hereunder) of
the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Selling Shareholder as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at the Time of
Delivery, or if the Selling Shareholder shall not exercise the right
described in subsection (b) above to require non defaulting Underwriters to
procure purchasers for or to purchase Shares of a defaulting Underwriter or
Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non defaulting Underwriter or the Company or
the Selling Shareholder, except for the expenses to be borne by the Company
and the Selling Shareholder and the Underwriters as provided in Section 7
hereof and the indemnity and contribution agreements in Section 9 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Shareholder and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholder, or any officer
or director or controlling person of the Company, or any controlling person of
the Selling Shareholder, and shall survive delivery of and payment for the
Shares.
12. If this Agreement shall be terminated pursuant to Section 10
hereof, neither the Company nor the Selling Shareholder shall then be under any
liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Shareholder as provided herein, the Selling Shareholder will reimburse
the Underwriters through you for all out of pocket expenses approved in writing
by you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the procuring of purchasers or, failing
that, purchase, sale and delivery of the Shares not so delivered, but the
Selling Shareholder shall then be under no further liability to any Underwriter
in respect of the Shares not so delivered except as provided in Sections 7 and 9
hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you and in all dealings with the Selling Shareholder hereunder, you and
the
40
Company shall be entitled to act and rely upon any statement, request, notice or
agreement on by the Selling Shareholder.
All statements, requests, notices, agreements and other communications
hereunder shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to you, as the representatives for
the several Underwriters listed in Schedule I hereto, at Goldman Sachs
International, Peterborough Court, 133 Fleet Street, London EC4A 2BB, United
Kingdom, Attention: IBD Legal, fax: +44-207-774-4477 and to UBS Limited, 1
Finsbury Avenue, London EC2M 2PP, United Kingdom, Attention: Equity Capital
Markets, fax: +44 207 568 1081, with a copy sent to +44 207 567 2364 marked for
the attention of Transactions Legal; if to the Selling Shareholder shall be
delivered or sent by mail or facsimile transmission to the attention of the
Selling Shareholder's Company Secretary, 44 Main Street, Johannesburg 2001,
South Africa, fax number: +27-11-638-2455, with a copy to Christopher L. Mann,
Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004-2498, United
States, fax number +1-212-558-3588; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 9(d) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
or the Selling Shareholder by you upon request. Any such statements, requests,
notices, agreements and other communications shall, if sent by fax, conclusively
be deemed to have been given or served at the time of dispatch upon generation
of transmission confirmation and, if sent by post, be conclusively deemed to
have been received 48 hours from the time of posting.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Shareholder and, to
the extent provided in Sections 9 and 11 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Shareholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Each of the parties hereto irrevocably (i) agrees that any legal
suit, action or proceeding against the Company or the Selling Shareholder
brought by any Underwriter or by any person who controls any Underwriter arising
out of or based upon this Agreement or the transactions contemplated hereby may
be instituted in any Federal or State court in the Borough of Manhattan, The
City of New York (each a "NEW YORK COURT"), (ii) waives, to the fullest extent
permitted by law any objection which it may now or hereafter have to the laying
of venue of any such proceeding and (iii) submits to the exclusive jurisdiction
of such courts in any such suit, action or proceeding. The Company has appointed
AngloGold Ashanti North America Inc., 7400 East Orchard Road, Suite 350,
Greenwood Village, Colorado 80111 and the Selling Shareholder has appointed CT
Corporation System, 111 Eighth Avenue, 13th Floor, New York, New York 10011, as
their respective authorized agents (the "AUTHORIZED AGENTS") upon whom process
may be served in any such action arising out of or based on this Agreement or
the transactions contemplated hereby which may be instituted in any New York
Court by any Underwriter or by any person who controls any Underwriter,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable for
five years from the date of this Agreement. Each of the Company and the Selling
Shareholder represents and warrants that their respective Authorized Agents have
agreed to act as such agent for service of process and agree to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon an Authorized Agent and written notice of such service
to the Company or the Selling Shareholder, as applicable, shall be deemed, in
every respect, effective service of process upon the Company or the Selling
Shareholder, as applicable.
16. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "JUDGMENT CURRENCY")
other than United States dollars, the Company and the Selling Shareholder, as
the case
41
may be, will, severally and not jointly, indemnify each Underwriter against any
loss incurred by such Underwriter as a result of any variation as between (i)
the rate of exchange at which the United States dollar amount is converted into
the judgment currency for the purpose of such judgment or order and (ii) the
rate of exchange at which an Underwriter is able to purchase United States
dollars with the amount of the judgment currency actually received by such
Underwriter. The foregoing indemnity shall constitute a separate and independent
obligation of the Company and the Selling Shareholder, respectively, and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "RATE OF EXCHANGE" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion of the
judgment currency into United States dollars.
17. Time shall be of the essence of this Agreement, both as regards any
dates, times or periods mentioned and as regards any dates, times or periods
which may be substituted for them in accordance with this Agreement or by
agreement in writing between the parties.
18. The Company and the Selling Shareholder acknowledge and agree that
(i) the procurement of purchasers for or, failing that, the purchase of and sale
of the Shares pursuant to this Agreement is an arm's-length commercial
transaction between the Company and the Selling Shareholder, on the one hand,
and the several Underwriters, on the other, (ii) solely in connection therewith
and with the process leading to such transaction each Underwriter is acting
solely as a principal and not the agent or fiduciary of the Company or the
Selling Shareholder, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company or the Selling Shareholder with respect
to the offering contemplated hereby or the process leading thereto (irrespective
of whether such Underwriter has advised or is currently advising the Company or
the Selling Shareholder on other matters) or any other obligation to the Company
or the Selling Shareholder except the obligations expressly set forth in this
Agreement and (iv) the Company and the Selling Shareholder have consulted their
own legal and financial advisors to the extent each deemed appropriate. The
Company and the Selling Shareholder agree that they will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company or the Selling
Shareholder, in connection with such transaction or the process leading thereto.
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company, the Selling Shareholder and the
Underwriters, or any of them, with respect to the subject matter hereof.
19. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
20. The Company, the Selling Shareholder and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
21. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
* * * * *
If the foregoing is in accordance with your understanding, please sign
and return to us seven counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company, and the Selling Shareholder.
42
Very truly yours,
ANGLOGOLD ASHANTI LIMITED
By: /s/ Mark Cutifani
------------------------------------
Name: Mark Cutifani
Title: Chief Executive Officer
By: /s/ Srinivasan Venkatakrishnan
------------------------------------
Name: Srinivasan Venkatakrishnan
Title: Chief Financial Officer
ANGLO SOUTH AFRICA CAPITAL (PROPRIETARY)
LIMITED
By: /s/ B.L. Keisler
------------------------------------
Name: B.L. Keisler
Title: Authorised Signatory
By: /s/ P.G. Whitcutt
------------------------------------
Name: P.G. Whitcutt
Title: Authorised Signatory
43
Accepted as of the date hereof at
London, United Kingdom
GOLDMAN SACHS INTERNATIONAL
By: /s/ Alasdair Warren
-----------------------------------
(GOLDMAN SACHS INTERNATIONAL)
UBS LIMITED
By: /s/ Adrian Lewis
-----------------------------------
Name: Adrian Lewis
Title: Managing Director
By: /s/ James Hartop
-----------------------------------
Name: James Hartop
Title: Managing Director
44
SCHEDULE I
Total Number of
Shares to be
Underwriter Purchased
--------------------------------------------------- -----------------
Goldman Sachs International........................ 33,550,000
UBS Limited........................................ 33,550,000
Total........................................... 67,100,000
=================
Sch-I
SCHEDULE II
(a) Materials other than the Pricing Prospectus that comprise the
Pricing Disclosure Package:
None
(b) Issuer Free Writing Prospectuses not included in the Pricing
Disclosure Package:
o Electronic roadshow related to the offering contemplated
herein recorded at London on September 30 , 2007 and made
available at http://www.netroadshow.com.
(c) Additional Documents Incorporated by Reference:
Sch-II
SCHEDULE III
AngloGold Ashanti Limited
AngloGold Ashanti Holdings plc
AngloGold Offshore Investments Limited
AngloGold Ashanti (Ghana) Limited
Geita Gold Mining Limited
Cluff Resources Ltd
Societe de Mines de Morila S.A.
Morila Limited
AngloGold Ashanti Australia Limited
AngloGold Investments Australia Pty Ltd
AngloGold Finance Australia Limited
AngloGold Finance Australia Holdings Limited
AngloGold Australia Investment Holdings Limited
AngloGold Investments Australasia Limited
Cerro Vanguardia S.A.
Mineracao Serra Grande S.A.
Mineracao Morro Velho Ltda
AngloGold Brasil Ltda
AngloGold South America Ltd
Sch-III
SCHEDULE IV
1. The number of ordinary shares (but not the percentage) of the Company
held by the Selling Shareholder prior to and immediately after the
offering, set forth in the table in the first paragraph under the
caption "Selling Shareholder" in the Pricing Prospectus;
2. The second paragraph under the caption "Selling Shareholder" in the
Pricing Prospectus, regarding the ownership of the Selling Shareholder
by Anglo American plc and the beneficial ownership of the Company by
Anglo American plc;
3. The third paragraph under the caption "Selling Shareholder" in the
Pricing Prospectus, describing the Anglo American group;
4. The fifth and sixth paragraphs under the caption "Selling Shareholder"
in the Pricing Prospectus, regarding the Selling Shareholder's
objectives for its stake in the Company and the intention of the Anglo
American plc-affiliated directors to resign, the accounting for the
Selling Shareholder's remaining shareholding in the Company, and the
current support of the Selling Shareholder with respect to the
Company's general strategy to enhance long term shareholder value;
5. The first sentence of the first paragraph under the caption
"Underwriting" in the Pricing Prospectus and the fifth paragraph under
the caption "Prospectus Supplement Summary--Offering Summary", each
regarding an agreement between the Selling Shareholder and the
Underwriters with respect to the execution of an underwriting
agreement;
6. The first sentence of the first paragraph, and the second, third and
fourth paragraphs, under the caption "Prospectus Supplement
Summary--Our Relationship with Anglo American" in the Pricing
Prospectus, regarding the relationship of the Selling Shareholder with
Anglo American plc.
Sch-IV