SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 or 15d-16 OF
THE SECURITIES EXCHANGE ACT OF 1934
Report on Form 6-K dated October 1, 2007
(Commission File No. 1-14846)
This Report on Form 6-K shall be incorporated by reference in our
automatic shelf registration statement on Form F-3 (File no. 333-132662),
to the extent not superseded by documents or reports
subsequently filed by us under the Securities Act of 1933 or the
Securities Exchange Act of 1934, in each case as amended.
-------------------------------
AngloGold Ashanti Limited
(Name of Registrant)
76 Jeppe Street
Newtown, Johannesburg, 2001
(P O Box 62117, Marshalltown, 2107)
South Africa
(Address of Principal Executive Offices)
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Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F:
Form 20-F: |X| Form 40-F: |_|
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(1):
Yes: |_| No: |X|
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(7):
Yes: |_| No: |X|
Indicate by check mark whether the registrant by furnishing the information
contained in this form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes: |_| No: |X|
Enclosure: Form of underwriting agreement among AngloGold Ashanti Limited, Anglo
South Africa Capital (Proprietary) Limited and, for themselves and on
behalf of each of the several underwriters named therein, Goldman Sachs
International and UBS Limited
The enclosed form of underwriting agreement constitutes Exhibit 1.2.1 of our
registration statement on Form F-3 (File no. 333-132662). This underwriting
agreement form is preliminary and should not be considered to represent the
final form of agreement that may be entered into among the parties to such
agreement.
ANGLOGOLD ASHANTI LIMITED
Ordinary Shares, par value 25 ZAR cents
--------------------------
Underwriting Agreement
--------------------------
October [o], 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 [o] 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
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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 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
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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 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 [o:o] pm (Eastern Time) on the date of this Agreement; the
Pricing Prospectus as supplemented by those Issuer Free Writing
Prospectuses and other documents listed in
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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,
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as of the applicable effective date as to each part of the
Registration Statement and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representatives
expressly for use therein or Selling Shareholder Information;
(vi) A registration statement on Form F-6 (File No.
333-133049) in respect of the ADSs has been filed with the
Commission; such registration statement, excluding exhibits, in the
form heretofore delivered to you for each of the other Underwriters
has been declared effective by the Commission in such form; no stop
order suspending the effectiveness of such registration statement
has been issued and to the Company's knowledge, no proceeding for
that purpose has been initiated or threatened by the Commission (the
various parts of such registration statement, including all exhibits
thereto, each as amended at the time such part of the registration
statement became effective, being hereinafter called the "ADS
Registration Statement"); and the ADS Registration Statement when it
became effective conformed, and any further amendments thereto will
conform, in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did not,
as of the applicable effective date, contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(vii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Pricing Prospectus any
loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, in
each case materially adverse to the Company and its subsidiaries
taken as a whole, otherwise than as 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
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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 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
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(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
7
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 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,
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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;
(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
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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
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conformity with the International Financial Reporting Standards and
generally accepted accounting principles, and to maintain asset
accountability; (C) access to assets is permitted only in accordance
with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(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
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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 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
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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 Governmental Agency having jurisdiction over
the Selling Shareholder or the property of the Selling Shareholder;
13
(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
14
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,
(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 [o]
and per ADS of USD [o] (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 [o] (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.
15
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 [o] 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.
(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
16
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 [o], 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
17
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 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.
18
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;
(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;
19
(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
20
other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to
comply with the Act or the Exchange Act, to notify you and upon your
request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
written and electronic copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance, and in case any Underwriter is required to deliver
a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may 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
21
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 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
22
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;
23
(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
(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
24
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 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
25
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 form and substance customary and
reasonably satisfactory to you, 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;
26
(c) Shearman & Sterling, LLP, United States counsel for the Company,
shall have furnished to you their written opinion in form and substance
customary and reasonably satisfactory to you, 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;
(d) Mervyn Taback Inc., South African counsel for the Company shall
have furnished to you their written opinion in form and substance
customary and reasonably satisfactory to you, dated the Time of Delivery;
(e) Emmet, Marvin & Martin, LLP, counsel for the Depositary, shall
have furnished to you their written opinion in form and substance
customary and reasonably satisfactory to you, 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 form and
substance customary and reasonably satisfactory to you 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 form and
substance customary and reasonably satisfactory to you 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 form and substance customary
and reasonably satisfactory to you, 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,
27
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
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
28
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
29
Delivery certificates of officers of the Company and of the Selling
Shareholder, respectively, as to the accuracy of the representations and
warranties of the Company and the Selling Shareholder, respectively,
herein at and as of 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
30
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the ADS Registration Statement,
the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or
supplement thereto or any Issuer Free Writing Prospectus in reliance upon
and in conformity with the Selling Shareholder Information, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however,
that the Selling Shareholder shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the ADS Registration Statement, the Registration
Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement thereto,
or any Issuer Free Writing Prospectus, in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through the Representatives expressly for use therein. The liability of
the Selling Shareholder under the indemnity agreement contained in this
subsection (b) shall be limited to an amount equal to the aggregate
purchase price of the Shares sold by the Selling Shareholder under this
Agreement.
(c) Each Underwriter will indemnify and hold harmless the Company
and the Selling Shareholder against any losses, claims, damages or
liabilities to which the Company or the Selling Shareholder may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, the ADS
Registration Statement, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, the ADS
Registration Statement, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
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.
31
(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
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
32
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
33
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 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
34
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 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,
35
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
36
any such action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable for
five years from the date of this Agreement. Each of the Company and the Selling
Shareholder represents and warrants that their respective Authorized Agents have
agreed to act as such agent for service of process and agree to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon an Authorized Agent and written notice of such service
to the Company or the Selling Shareholder, as applicable, shall be deemed, in
every respect, effective service of process upon the Company or the Selling
Shareholder, as applicable.
16. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Shareholder, as
the case may be, will, severally and not jointly, indemnify each Underwriter
against any loss incurred by such Underwriter as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which an Underwriter is able to purchase United
States dollars with the amount of the judgment currency actually received by
such Underwriter. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and the Selling Shareholder, 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
37
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.
38
Very truly yours,
ANGLOGOLD ASHANTI LIMITED
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
ANGLO SOUTH AFRICA CAPITAL
(PROPRIETARY) LIMITED
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
39
Accepted as of the date hereof at
London, United Kingdom
GOLDMAN SACHS INTERNATIONAL
By: ______________________________
(GOLDMAN SACHS INTERNATIONAL)
UBS LIMITED
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
40
SCHEDULE I
Total Number of
Underwriter Shares to be Purchased
--------------------------------------------------- ----------------------
Goldman Sachs International........................ [o]
UBS Limited........................................ [o]
----------------------
Total........................................... [o]
======================
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
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
AngloGold Ashanti Limited
Date: October 1, 2007
By: /s/ L Eatwell
-------------------------------
Name: L EATWELL
Title: Company Secretary