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 April 10, 2006
(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)
and in our registration statements on Form S-8 (File nos. 333-10990 and
333-113789), to the extent not superseded by documents or reports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.
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AngloGold Ashanti Limited
(Name of Registrant)
11 Diagonal Street
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 & Co. and UBS Limited
The enclosed form of underwriting agreement constitutes Exhibit 1.2 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
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Underwriting Agreement
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[April o, 2006]
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
United States of America
UBS Limited
1 Finsbury Avenue
London, EC2M 2PP
United Kingdom
As Co-representatives of the several Underwriters
named in Schedule I hereto,
Ladies and Gentlemen:
AngloGold Ashanti Limited, a public company with limited liability
incorporated under the laws of the Republic of South Africa (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to purchasers procured by the underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as co-representatives (the
"Representatives") or, failing that, to the Underwriters, an aggregate of
[number of shares in primary offer] shares of Ordinary Shares, par value 25 ZAR
cents ("Stock"), of the Company. Anglo South Africa Capital (Proprietary)
Limited, a private company with limited liability incorporated under the laws of
the Republic of South Africa (the "Selling Shareholder") proposes, subject to
the terms and conditions stated herein, to sell to purchasers procured by the
Underwriters or, failing that, to the Underwriters, an aggregate of [number of
shares in secondary offering] shares of Stock and, at the election of the
Underwriters, up to [number of shares in over allotment] additional shares of
Stock. The aggregate of [o] shares to be sold by the Company and the Selling
Shareholder is herein called the "Firm Shares" and the aggregate of [o]
additional shares to be sold by the Selling Shareholder is herein called the
"Optional Shares". The Firm Shares and the Optional Shares that the Underwriters
elect to purchase pursuant to Section 2 hereof are herein collectively called
the "Shares".
The Underwriters may elect to direct delivery of the Shares, or take
delivery of the Shares themselves, in the form of shares of Stock or in the form
of American Depositary Shares ("ADSs"). The ADSs are to be issued pursuant to a
deposit agreement, dated as of June 26, 1998, (as amended) among the Company,
Bank of New York, as depositary (the "Depositary"), and holders from time to
time of the American Depositary Receipts (the "ADRs") issued by the Depositary
and evidencing the ADSs (the "Deposit Agreement"). Each ADS will initially
represent the right to receive one share of Stock deposited pursuant to the
Deposit Agreement.
Except as used in Sections 2, 4, 10 and 12 herein, and except as
the context may otherwise require, references hereinafter to the Shares shall
include all of the shares of Stock, whether in the form of Shares or ADSs, which
may be sold pursuant to this Agreement.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) An "automatic shelf registration statement" as defined
under Rule 405 under the Securities Act of 1933, as amended,
("the Act") on Form F-3 (File No. 333-132622) in respect of the
Shares has been filed with the Securities and Exchange Commission
(the "Commission") not earlier than three years prior to the date
hereof; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or
any part thereof has been issued and to the Company's knowledge
no proceeding for that purpose has been initiated or threatened
by the Commission, and no notice of objection of the Commission
to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act has
been received by the Company (the base prospectus filed as part
of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date
of this Agreement, is hereinafter called the "Basic Prospectus";
any preliminary prospectus (including any preliminary prospectus
supplement) relating to the Shares filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and including any
prospectus supplement relating to the Shares that is filed with
the Commission and deemed by virtue of Rule 430B to be part of
such registration statement, each as amended at the time such
part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the
Basic Prospectus, as amended and supplemented immediately prior
to
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the Applicable Time (as defined in Section 1(a)(iii) hereof), is
hereinafter called the "Pricing Prospectus"; the form of the
final prospectus relating to the Shares filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section
5(a)(i) hereof is hereinafter called the "Prospectus"; any
reference herein to the Basic Prospectus, the Pricing Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 6 of Form F-3 under the Act, as of the
date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any
prospectus supplement relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act and any
documents filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated therein, in each
case after the date of the Basic Prospectus, such Preliminary
Prospectus, or the Prospectus, as the case may be; any reference
to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any "issuer free
writing prospectus" as defined in Rule 433 under the Act relating
to the Shares is hereinafter called an "Issuer Free Writing
Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus or any Issuer Free Writing Prospectus has
been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects
to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the
Representatives expressly for use therein or Selling Shareholder
Information (as defined in Section 1(b)(vii));
(iii) For the purposes of this Agreement, the "Applicable
Time" is [___:___ __m] (Eastern Standard Time) on
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the date of this Agreement; the Pricing Prospectus as
supplemented by those Issuer Free Writing Prospectuses and other
documents listed in Schedule II(a) hereto, if applicable, taken
together (collectively, the "Pricing Disclosure Package") as of
the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
each Issuer Free Writing Prospectus listed on Schedule II(a) or
Schedule II(b) hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus
or the Prospectus and each such Issuer Free Writing Prospectus,
as supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall
not apply to statements or omissions made in an Issuer Free
Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through the Representatives or by the Selling Shareholder
expressly for use therein;
(iv) The documents incorporated by reference in the Pricing
Prospectus and the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder, any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; provided that no such
documents were filed with the Commission since the Commission's
close of business on the business day (which term shall mean for
this subsection (a)(iv) any day when the Commission's office in
Washington D.C. is open for business) immediately prior to the
date of this Agreement and prior to the execution of this
Agreement, except as set forth on Schedule II(c) hereto and
except for such other documents as were delivered to you prior to
the Applicable Time;
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(v) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to each part of the
Registration Statement and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein
or Selling Shareholder Information;
(vi) A registration statement on Form F-6 (File No.
333-133049) in respect of the ADSs has been filed with the
Commission; such registration statement, excluding exhibits, in
the form heretofore delivered to you for each of the other
Underwriters has been declared effective by the Commission in
such form; no stop order suspending the effectiveness of such
registration statement has been issued and to the Company's
knowledge, no proceeding for that purpose has been initiated or
threatened by the Commission (the various parts of such
registration statement, including all exhibits thereto, each as
amended at the time such part of the registration statement
became effective, being hereinafter called the "ADS Registration
Statement"); and the ADS Registration Statement when it became
effective conformed, and any further amendments thereto will
conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder, and
did not, as of the applicable effective date, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(vii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, in each case materially adverse to the
Company and its subsidiaries taken as a whole, otherwise than as
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set forth or contemplated in the Pricing Prospectus; and, since
the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any material adverse change in the capital stock of the
Company or any material increase in the long term debt of the
Company and its subsidiaries taken as a whole or any material
adverse change, or any development involving a prospective
material adverse change, in or affecting the business affairs,
management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole, in each case otherwise than as set forth or contemplated
in the Pricing Prospectus;
(viii) The Company and its subsidiaries have good and
marketable title to all real property owned by them free and
clear of all liens, encumbrances and defects, and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable leases except, in each case, as described in the
Pricing Prospectus or as would not, individually or in the
aggregate, have a material adverse effect on the business
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries taken
as a whole (a "Material Adverse Effect");
(ix) The Company is duly incorporated as a public company
with limited liability, and validly existing under the laws of
the Republic of South Africa, is not in bankruptcy, liquidation,
receivership or under judicial management (and no order or
resolution therefore has been presented and no notice of
appointment of any liquidator, receiver, administrative receiver,
administrator or judicial manager has been given) and has full
power and authority under its memorandum and articles of
association and otherwise to own its assets and conduct its
business;
(x) The Company has an authorized and issued share capital
as set forth in the Pricing Prospectus, and all of the
outstanding shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and not subject
to further calls or assessment by the Company and conform in all
material respects to the description of the Stock contained in
the Pricing Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company listed in Schedule III
have been duly and validly authorized and issued, are fully paid
and not subject to further calls or assessment by the Company and
(except for directors' qualifying shares and except
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as set forth in the Pricing Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; all of the issued Stock has
been duly listed and admitted for trading on the JSE Limited, the
New York Stock Exchange (in the form of ADSs), the London Stock
Exchange, Euronext Paris and on the Australian Stock Exchange (in
the form of Clearing House Electronic Subregister System
("CHESS") Depositary Shares represented by CHESS Depositary
Interests ("CDIs")), the Ghana Stock Exchange (in the form of
ordinary Shares and Ghanian Depositary Shares) and are quoted on
Euronext Brussels (in the form of International Depositary
Receipts ("IDRs") (the "Stock Exchanges"); the holders of
outstanding shares of capital stock of the Company are not
entitled to preemptive or similar rights to acquire the Shares or
the ADSs which have not been complied with, extinguished or
waived; there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any
share capital or other equity interest in the Company, or any
contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any share capital of the
Company, any such convertible or exchangeable securities or any
such rights, warrants or options, or obligations of the Company
to issue, the Stock or any other class of capital stock of the
Company (in each case except as set forth in the Pricing
Prospectus); and there are no restrictions on subsequent
transfers of the Shares or ADSs except as described in the
Pricing Prospectus or under the securities laws of countries
other than the United States (except those restrictions imposed
on affiliates of the Company by the Act and rules promulgated
thereunder) and the Republic of South Africa;
(xi) The unissued Firm Shares to be issued and sold by the
Company to purchasers procured by the Underwriters or, failing
that, to the Underwriters, hereunder have been duly and validly
authorized by the Company and, when issued and delivered against
payment therefor as provided herein, will be duly and validly
issued and fully paid and not subject to further calls or
assessment by the Company and will conform, in all material
respects, to the description of the Stock contained in the
Pricing Prospectus and, except as described in the Pricing
Prospectus, the issuance of the Firm Shares to be issued and sold
by the Company is not subject to any preemptive or similar rights
which have not been complied with, extinguished or waived;
(xii) The Deposit Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid
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and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles; upon issuance by the Depositary
of ADRs evidencing ADSs, the deposit of Shares in respect thereof
in accordance with the provisions of the Deposit Agreement, such
ADRs will be duly and validly issued and the persons in whose
names the ADRs are registered will be entitled to the rights
specified therein and in the Deposit Agreement; and the Deposit
Agreement and the ADRs conform in all material respects to the
descriptions thereof contained in the Pricing Prospectus;
(xiii) All consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any court
or governmental agency or body or any stock exchange authorities
(hereinafter referred to as a "Governmental Agency") having
jurisdiction over the Company (hereinafter referred to as
"Company Governmental Authorizations") required to be obtained by
the Company for each of the deposit of Shares to be issued and
sold by the Company only, and the issuance of ADSs in respect
thereof and for the execution, delivery and performance by the
Company of this Agreement have been obtained or made and are in
full force and effect including the approval of the South African
Reserve Bank in respect of the Company's offering of Shares
contemplated herein;
(xiv) All expressions of opinion, intention or expectation
in the Pricing Prospectus, including, without limitation, the
estimates and projections included under the caption "Prospectus
Supplement Summary", on the part of the Company, its directors or
management are, and in the Prospectus will be, fairly and
honestly held and have been made on reasonable grounds after due
and careful consideration and inquiry, in each case subject to
the assumptions set forth therein and to the risks and
uncertainties contemplated under the captions "Forward-looking
Statements" and "Note Regarding Forward-looking Statements"
therein;
(xv) The issue and sale of the Firm Shares to be sold by the
Company hereunder and the deposit of the Firm Shares being
deposited by the Company with the Depository against issuance of
the ADSs, the execution and delivery of this Agreement and the
compliance by the Company with all of the provisions of, and
performance of its obligation under, this Agreement and the
Deposit Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or
8
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, except as would
not both (i) have a Material Adverse Effect and (ii) adversely
affect the consummation of the transactions contemplated herein
to a material extent, nor will such action by the Company result
in any violation of the provisions of the Memorandum and Articles
of Association or Bylaws of the Company or any statute or any
order, rule or regulation of any Governmental Agency having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such Governmental Agency is required
for the issue and sale by the Company of the Firm Shares or the
consummation by the Company of the transactions contemplated by
this Agreement except (A) the registration under the Act of the
Shares, (B) such Company Governmental Authorizations as have been
duly obtained or made and are in full force and effect and copies
of which have been furnished to you and (C) such Company
Governmental Authorizations as may be required under state
securities or Blue Sky laws or any securities laws of
jurisdictions outside the Republic of South Africa and the United
States;
(xvi) Neither the Company nor any of its subsidiaries is in
violation of its Memorandum and Articles of Association or Bylaws
or, except as would not, individually or in the aggregate, have a
Material Adverse Effect, in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is
a party or by which it or any of its properties may be bound;
(xvii) No stamp or other issuance or transfer taxes, levies
or duties or any other tax and no capital gains, income (other
than income tax payable by any Underwriters whose net income is
generally subject to tax by the Republic of South Africa or who
perform any services hereunder through a permanent establishment
or a fixed base in the Republic of South Africa), withholding or
other taxes are payable or will be payable immediately following
the completion of the transactions contemplated hereunder by or
on behalf of purchasers of the Shares procured by the
Underwriters or the Underwriters to the Republic of South Africa
or any political subdivision or taxing authority thereof or
therein in connection with (A) the deposit by
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the Company of Firm Shares with the Depositary against issuance
of ADSs, or (B) for the issuance, sale and delivery by the
Company of Firm Shares or ADSs to purchasers procured by the
Underwriters or to or for the respective accounts of the
Underwriters or (C) the performance by the Company of its
obligations under this Agreement, it being understood that any
subsequent transfer of Shares by purchasers procured by the
Underwriters, or the Underwriters, may cause such taxes to be
payable;
(xviii) Neither the Company nor any of its subsidiaries has
taken, directly or indirectly, any action which was designed to
or which has constituted or which would reasonably be expected to
cause or result in stabilization or manipulation of the price of
any security of the Company, in each case in violation of
applicable laws, to facilitate the sale or resale of the Shares
or ADSs;
(xix) The statements set forth or incorporated by reference
in the Pricing Prospectus and the Prospectus under the captions
"Description of Ordinary Shares and ADSs" and "Taxation" insofar
as they purport to constitute a summary of the matters set forth
therein, fairly summarize these matters in all material respects;
(xx) Other than as set forth in the Pricing Prospectus,
there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened by any Governmental
Agency or by any other person;
(xxi) The Company is not and, after giving effect to the
offering and sale of the Firm Shares to be sold by it and the
application of the proceeds thereof, will not be an "investment
company", as such term is defined in the Investment Company Act
of 1940, as amended (the "Investment Company Act");
(xxii) (A) (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), and (iii) at the time the
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Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) under the Act) made any
offer relating to the Securities in reliance on the exemption of
Rule 163 under the Act, the Company was a "well-known seasoned
issuer" as defined in Rule 405 under the Act; and (B) at the
earliest time after the filing of the Registration Statement that
the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the
Securities, the Company was not an "ineligible issuer" as defined
in Rule 405 under the Act;
(xxiii) The audited financial statements included in the
Registration Statement and the Pricing Prospectus, together with
the related notes and schedules, fairly present in all material
respects the consolidated financial position of the Company and
its subsidiaries as of the dates indicated and the consolidated
results of operations and cash flows of the Company and its
subsidiaries for the periods specified and have been prepared in
compliance with the requirements of the Act and in conformity
with generally accepted accounting principles as applied in the
United States applied, except as set forth in the Pricing
Prospectus, on a consistent basis during the periods presented;
the other financial and statistical data set forth in the
Registration Statement and the Pricing Prospectus are accurately
presented and prepared on a basis materially consistent with the
financial statements and books and records of the Company; and
the Company and its subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not disclosed in the Registration
Statement and the Pricing Prospectus and that are required to be
disclosed therein;
(xxiv) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general
or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with the International Financial Reporting Standards
and generally accepted accounting principles, and to maintain
asset accountability; (C) access to assets is permitted only in
accordance with management's general or specific authorization;
and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(xxv) The Company and each of its subsidiaries have all
licenses, certificates, permits and other authorizations
(including,
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without limitation, all mineral rights, mining authorizations and
mining leases) issued by the appropriate Government Agencies (and
have made all required declarations and filings with such
Governmental Agencies), that are legally required for the
ownership or lease of their respective properties or the conduct
of their respective businesses as described in the Pricing
Prospectus, except as described in the Pricing Prospectus or
where the failure to possess the same would not, individually or
in the aggregate, have a Material Adverse Effect; except as
described in the Pricing Prospectus or as would not, individually
or in the aggregate, have a Material Adverse Effect, neither the
Company nor any of its subsidiaries has received or expects to
receive notice of any revocation or modification of any such
license, certificate, permit or authorization; and the Company
and each of its subsidiaries are in compliance with each of the
same, except for any non-compliance which would not, individually
or in the aggregate, have a Material Adverse Effect;
(xxvi) Ernst & Young, who have certified certain financial
statements of the Company and certain of its subsidiaries,
PricewaterhouseCoopers Inc., who have certified certain financial
statements of Societe des Mines de Morila S.A. and KPMG Inc., who
have certified certain financial statements of Societe
d'Exploitation des Mines d'Or de Sadiola S.A. are each
independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(xxvii) In each case except as described in the Pricing
Prospectus, the Company and its subsidiaries own or possess
adequate rights to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
legally required for the conduct of their respective businesses,
except those that would not, individually or in the aggregate,
have a Material Adverse Effect; and, to the best knowledge of the
Company, except as would not, individually or in the aggregate,
have a Material Adverse Effect, the conduct of their respective
businesses will not conflict with any such rights of others and
the Company and its subsidiaries have not received any notice of
any claim of infringement or conflict with any such rights of
others;
(xxviii) No labor disturbance by or dispute with employees
of the Company or any of its subsidiaries exists or, to the best
knowledge of the Company, is threatened, except as
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described in the Pricing Prospectus or as would not have a
Material Adverse Effect;
(xxix) The Company and its subsidiaries (A) are in
compliance with any and all applicable laws (including the common
law), rules, regulations, ordinances, decrees, judgments,
injunctions, permits, licenses, authorizations, decisions, orders
and other legally binding requirements, in each case promulgated
or declared by Governmental Agencies in all countries and
territories in which the Company or its subsidiaries engage in
mining or other business activities relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
"Environmental Laws"); (B) have received and are in compliance
with all permits, licenses or other approvals issued by
Governmental Agencies and required of them under applicable
Environmental Laws to conduct their respective businesses; (C)
have not received any notice of any actual or potential liability
under, or investigation relating to, any Environmental Law;
except, in each case, as described in the Pricing Prospectus or
as would not, individually or in the aggregate, have a Material
Adverse Effect; and
(xxx) Neither the Company nor any of its subsidiaries (if
acquired by the Company, then prior to its date of acquisition,
to the knowledge of the Company) has violated (i) any provision
of the Foreign Corrupt Practices Act of 1977 and the rules and
regulations promulgated thereunder or (ii) similar
anti-corruption laws of all other applicable jurisdictions,
including those relating to political donations and money
laundering, and the rules, regulations or, to the extent they
have the force and effect of the law, guidelines, issued or
administered thereunder, in each case which violations are of a
character required to be disclosed in the Registration Statement.
(b) The Selling Shareholder represents and warrants to, and
agrees with, each of the Underwriters and the Company that:
(i) The Selling Shareholder is validly existing as a private
company with limited liability under the laws of the Republic of
South Africa and has the power and authority to enter into and
perform its obligations under this Agreement;
(ii) All consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any
Governmental Agency having jurisdiction over the Selling
Shareholder (hereinafter referred to as "Selling Shareholder
Governmental Authorizations") required for the deposit of the
13
Shares being deposited with the Depositary against issuance of
the ADSs to be delivered by the Selling Shareholder at each Time
of Delivery, for the sale and delivery of the Shares to be sold
by the Selling Shareholder hereunder and for the execution and
delivery by the Selling Shareholder of this Agreement, have been
obtained, including any requisite approval of the South African
Reserve Bank in respect of the Selling Shareholder's intended use
of proceeds of its sale of Shares; and the Selling Shareholder
has the full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Shares to
be sold by it hereunder;
(iii) The sale of the Shares to be sold by the Selling
Shareholder, the execution and delivery of this Agreement, the
deposit of the Shares with the Depositary against issuance of the
ADSs to be delivered by the Selling Shareholder at each Time of
Delivery hereunder and the compliance by the Selling Shareholder
with all of the provisions of, and performance of these
obligations under, this Agreement and the Deposit Agreement and
the consummation of the transaction herein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Selling Shareholder is
a party or by which the Selling Shareholder is bound, or to which
any of the property or assets of the Selling Shareholder is
subject, except as would not have a material adverse effect on
the consummation of the transaction contemplated hereby, nor will
such action result in any violation of the provisions of the
Memorandum and Articles of Association or Bylaws of the Selling
Shareholder or any statute or any order, rule or regulation of
any Governmental Agency having jurisdiction over the Selling
Shareholder or the property of the Selling Shareholder;
(iv) No stamp or other issuance or transfer taxes (except
for uncertificated securities tax), levies or duties or any other
kind of tax and no capital gains, income (other than income tax
payable by any Underwriters whose net income is generally subject
to tax by the Republic of South Africa or who perform any
services hereunder through a permanent establishment or a fixed
base in the Republic of South Africa), withholding or other taxes
are payable or will be payable immediately following the
completion of the transactions contemplated hereunder by or on
behalf of purchasers of the Shares procured by the Underwriters
or Underwriters to the Republic of South Africa or any political
subdivision or taxing authority thereof or therein in connection
14
with (A) the deposit by the Selling Shareholder of Shares with
the Depositary against issuance of ADSs, or (B) for the sale and
delivery by the Selling Shareholder of Shares or ADSs to
purchasers procured by the Underwriters or to or for the
respective accounts of the Underwriters or (C) the performance by
the Selling Shareholder of its obligations under this Agreement,
it being understood that any subsequent transfer of Shares by
purchasers procured by the Underwriters, or the Underwriters, may
cause such taxes to be payable;
(v) The Selling Shareholder has, and immediately prior to
each Time of Delivery (as defined in Section 4 hereof) the
Selling Shareholder will have, good and valid title to the Shares
to be sold by the Selling Shareholder hereunder, free and clear
of all liens, encumbrances, equities or claims; and, upon
delivery of such Shares and payment therefor pursuant hereto and
thereto, good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims, will pass to
purchasers procured by the underwriters or the several
Underwriters, as applicable;
(vi) The Selling Shareholder has not taken nor will take,
directly or indirectly, any action which is designed to or which
has constituted or which would reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Company, in each case in violation of applicable
laws, to facilitate the sale or resale of the Shares;
(vii) The written information furnished to the Company by
the Selling Shareholder for use in the Registration Statement,
any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus, or any amendment or supplement thereto, or any Issuer
Free Writing Prospectus (it being understood that the only
written information so furnished by or on behalf of the Selling
Shareholder is the information identified in Schedule IV hereto)
("Selling Shareholder Information") does not and will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which
they were made, not misleading;
(viii) In order to document the Underwriters' compliance
with the reporting and withholding provisions of the Tax Equity
and Fiscal Responsibility Act of 1982 with respect to the
transactions herein contemplated, the Selling Shareholder will
deliver to you prior to or at the First Time of Delivery (as
hereinafter defined) a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form
15
or statement specified by Treasury Department regulations in lieu
thereof);
2. Subject to the terms and conditions herein set forth,
(a) the Company agrees to issue and sell to purchasers procured
by the Underwriters or, failing that, to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to procure
purchasers for or, failing that, to purchase, or cause one of its
affiliates (within the meaning in Rule 405 under the Act) to purchase,
from the Company, at a purchase price per Share of rand [o] and per
ADS of USD[o] (to the extent that the Representatives make the
election to direct delivery or take delivery of the Shares in the form
of ADSs pursuant to Section 4) the respective number of Firm Shares
(to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Firm Shares to be
sold by the Company by a fraction, the numerator of which is the
aggregate number of Firm Shares to be purchased by purchasers procured
by that Underwriter or, failing that, by such Underwriter as set forth
opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be
purchased by all of purchasers procured by the Underwriters or,
failing that, by all of the Underwriters from the Company hereunder;
(b) the Selling Shareholder agrees to sell to purchasers procured
by the Underwriters or, failing that, to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to procure
purchasers for or, failing that, to purchase, or cause one of its
affiliates (within the meaning in Rule 405 under the Act) to purchase,
from the Selling Shareholder, at a purchase price per Share of rand
[o] and per ADS of USD[o] (to the extent that the Representatives make
the election to direct delivery or take delivery of the Shares in the
form of ADSs pursuant to Section 4) the respective number of Firm
Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Firm Shares to be
sold by the Selling Shareholder by a fraction, the numerator of which
is the aggregate number of Firm Shares to be purchased by purchasers
procured by that Underwriter or, failing that, by such Underwriter as
set forth opposite the name of such Underwriter in Schedule I hereto
and the denominator of which is the aggregate number of Firm Shares to
be purchased by all of purchasers procured by the Underwriters or,
failing that, by all of the Underwriters from the Selling Shareholder
hereunder; and
(c) in the event and to the extent that the Underwriters shall
exercise the election to procure purchasers for or, failing that,
purchase themselves, Optional Shares as provided below, the Selling
Shareholder agrees to sell to purchasers procured by the Underwriters
or, failing that,
16
to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to procure purchasers for or, failing that,
to purchase from the Selling Shareholder, at the purchase price per
Share set forth in subsection (b) of this Section 2, that portion of
the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying such number of Optional Shares by a
fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to procure purchasers for
or, failing that, purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Optional Shares that all of the Underwriters are
entitled to procure purchasers for or, failing that, purchase
hereunder.
The Selling Shareholder hereby grants to the Underwriters the right to
procure purchasers for or, failing that, purchase at their election up to [o]
Optional Shares, at the purchase price set forth in subsection (b) of this
Section 2, for the sole purpose of covering sales of shares in excess of the
number of Firm Shares. Any such election to procure purchasers for or, failing
that, purchase Optional Shares may be exercised only by written notice from you
to the Selling Shareholder, given within a period of 30 calendar days after the
date of this Agreement and setting forth the aggregate number of Optional Shares
with respect to which this option is being exercised and the date on which such
Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery or, unless you and the Selling
Shareholder otherwise agree in writing, earlier than two or later than ten
Business Days after the date of such notice.
As compensation to the Underwriters for their commitments hereunder,
the Company and the Selling Shareholder, as the case may be, at each Time of
Delivery will pay to the Representatives, for the accounts of the several
Underwriters, (a) an amount equal to ZAR[o] per Share for the Shares to be
delivered in the form of shares of Stock by the Company and the Selling
Shareholder hereunder, as the case may be, at each Time of Delivery and (b) an
amount equal to $[o] per ADS for Shares to be delivered in the form of ADSs by
the Company and the Selling Shareholder hereunder, as the case may be, at each
Time of Delivery. The Representatives may accept payment of the underwriting
commission by offsetting the amount thereof against payment of the amount
payable pursuant to Section 4 hereof.
3. It is understood that the several Underwriters propose to offer the
Shares for sale, in each instance upon the terms and conditions set forth in the
Prospectus.
4. (a) With respect to all or a portion of the Shares to be purchased
and sold hereunder at each Time of Delivery, the Representatives, on behalf of
the several Underwriters, may elect to have ADSs delivered (to either or both of
17
purchasers procured by the Underwriters or the Underwriters) and paid for
hereunder in lieu of, and in satisfaction of, the Company and the Selling
Shareholder's obligations to sell to purchasers procured by the Underwriters or
the several Underwriters, as applicable, and the several Underwriters'
obligations to procure purchasers for or, failing that, to purchase, Firm Shares
and, in the case of the Selling Shareholder only, the Optional Shares. Written
notice of such election shall be given by the Representatives to the Company and
the Selling Shareholder at least four Business Days prior to such Time of
Delivery (the "Notification Time"). The number of Shares to be purchased by
purchasers procured by the Underwriters or, failing that, by the Underwriters as
a result of the making of such election shall be adjusted by the Representatives
so as to eliminate any fractional ADSs and the purchase price for ADSs so
delivered as a result of making such election shall be the purchase price as set
forth in Section 2 hereof.
(b) (i) The Shares to be delivered to purchasers procured by the
Underwriters or each Underwriter hereunder, as the case may be, in the form
of Shares of Stock shall be delivered by or on behalf of the Company and
the Selling Shareholder through the facilities of STRATE to the
Representatives for the account of such purchasers or Underwriters, as the
case may be, in such authorized denominations and registered in such names
as the Representatives may request by written notice to the Company and the
Selling Shareholder on or prior to the Notification Time.
(ii) If the election has been made in accordance with subsection
(a) above, the ADSs to be delivered to purchasers procured by the
Underwriters or each Underwriter hereunder, as the case may be, shall
be delivered by or on behalf of the Company and the Selling
Shareholder through the facilities of The Depository Trust Company to
the Representatives for the account of such purchasers or
Underwriters, as the case may be, in such authorized denominations and
registered in such names as the Representatives may request by written
notice to the Company and the Selling Shareholder on or prior to the
Notification Time.
(c) (i) With respect to Shares being delivered in the form of Shares,
such Shares shall be delivered against payment by, through or on behalf of
such Underwriter of the purchase price therefor by wire transfer of
same-day funds to the respective accounts specified by the Company and
Selling Shareholder in the Republic of South Africa, as the case may be, to
the Representatives at least two Business Days in advance of a Time of
Delivery.
(ii) With respect to Shares being delivered in the form of ADSs,
such ADSs shall be delivered against payment by, through or on behalf
of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the
18
respective accounts specified by the Company and Selling Shareholder,
as the case may be, to the Representatives at least two Business Days
in advance of a Time of Delivery;
(iii) Payment for the Firm Shares shall be made to the Company
and the Selling Shareholder by, (A) in the case of the Firm Shares to
be delivered in the form of Shares, wire transfer of South African
rand funds or other immediately available funds in Johannesburg and
(B) in the case of Firm Shares to be delivered in the form of ADSs, by
wire transfer of Federal (same day) or other immediately available
funds in New York, in each case against delivery of such Firm Shares
for the respective accounts of the several Underwriters by 11:00 a.m.,
London time, on [o, 2006] or such other time and date as the
Representatives, the Company and Selling Shareholder may mutually
agree upon in writing, and, with respect to the Optional Shares, 11:00
a.m., London time, on the date specified by the Representatives in the
written notice given by the Representatives of the Underwriters'
election to exercise the option with respect to the delivery of such
Optional Shares, or such other time and date as the Representatives
and the Selling Shareholder may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time
of Delivery", such time and date for delivery of the Optional Shares,
if not the First Time of Delivery, is herein called the "Second Time
of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
(d) It is understood and agreed by the parties hereto that no delivery
or transfer of Shares or ADSs to be purchased and sold hereunder at a Time
of Delivery shall be effective until and unless payment therefor has been
made pursuant hereto and the Company and the Selling Shareholder, as the
case may be, shall have furnished or caused to be furnished to the
Representatives, on behalf of the Underwriters at such Time of Delivery
certificates and other evidence reasonably satisfactory to the
Representatives of the execution in favor of purchasers procured by the
Underwriters or, failing that, the Underwriters, of the book-entry transfer
of Shares, whether by delivery of Shares in the Republic of South Africa
through STRATE or delivery of ADSs through the facilities of DTC.
(e) The Shares or ADSs shall be delivered to the Representatives at
each Time of Delivery for the respective accounts of purchasers procured by
the Underwriters as instructed by the Underwriters or for the accounts of
the several Underwriters, with all transfer and any issuance taxes or other
expenses (including, without limitation, any STRATE levy and insider trader
levy payable with respect to the Shares) payable in connection with or
issuance of the Shares or ADSs or the
19
transfer thereof to the Purchasers procured by the Underwriters or the
Underwriters duly paid by the Company or the Selling Shareholder in
accordance with Section 7 hereof.
(f) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Shares and ADSs and any additional documents
requested by the Underwriters pursuant to Section 8(s) hereof, will be
delivered at the offices of 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 such Time of
Delivery. A meeting will be held at the Closing Location at 1:00 p.m.,
London time, on the Business Day next preceding such Time of Delivery, or
such time and place as may mutually be agreed upon in writing by the
Representatives, the Company and the Selling Shareholder, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 4 and Section 5, "Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City, Johannesburg and London are
generally authorized or obligated by law or executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
(which term shall mean for this subsection (a)1(a)(i) any day when
the Commission's office in Washington D.C. is open for business)
following the execution and delivery of this Agreement; to make no
further amendment or any supplement to the Registration Statement, the
Basic Prospectus or the Prospectus prior to the last Time of Delivery
which shall be disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed or becomes effective or any amendment or supplement to the
Prospectus has been filed and to furnish you with copies thereof; to
file promptly all material required to be filed by the Company with
the Commission pursuant to Rule 433(d) under the Act; to file promptly
all reports and any information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale
20
of the Shares; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any preliminary prospectus
or other prospectus in respect of the Securities, of any notice of
objection of the Commission to the use of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act, of the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any preliminary prospectus or
other prospectus or suspending any such qualification, promptly to use
its best efforts to obtain the withdrawal of such order and in the
event of the issuance of any such notice of objection, promptly to
amend the Registration Statement in such manner as may be required and
permit offers in sales of to permit offers and sales of the
Securities; provided that, none of the foregoing shall preclude the
Company from discharging its obligations under the Act or the Exchange
Act;
(ii) If required by Rule 430B(h) under the Act, to prepare a form
of prospectus in a form approved by you and to file such form of
prospectus pursuant to Rule 424(b) under the Act not later than may be
required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus which shall be
disapproved by you promptly after reasonable notice thereof;
(iii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to take any action that would subject it to
general service of process in any jurisdiction where it is not
presently qualified or where it would be subject to taxation as a
foreign corporation;
(iv) If by the third anniversary (the "Renewal Deadline") of the
initial effective date of the Registration Statement, any of the
Shares remain unsold by the Underwriters, the Company will file, if it
has not already done so and is eligible to do so, a new automatic
shelf registration statement relating to
21
the Shares, in a form reasonably satisfactory to you. If at the
Renewal Deadline the Company is no longer eligible to file an
automatic shelf registration statement, the Company will, if it has
not already done so, file a new shelf registration statement relating
to the Shares, in a form reasonably satisfactory to you and will use
its best efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The Company will
take all other action necessary or appropriate to permit the public
offering and sale of the Shares to continue as contemplated in the
expired registration statement relating to the Shares. References
herein to the Registration Statement shall include such new automatic
shelf registration statement or such new shelf registration statement,
as the case may be;
(v) Prior to 10:00 a.m., London time, on the Business Day next
succeeding the date of this Agreement and during the period mentioned
below, to furnish the Underwriters with written and electronic copies
of the Prospectus in New York City or London in such quantities as you
may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required by law at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to
notify you and upon your request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect
such compliance, and in case any Underwriter is required to deliver a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a)
under the Act) in connection with sales of any of the Shares at any
time nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many written and electronic copies
as you may
22
request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(vi) To make generally available to the Company's securityholders
as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(vii) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or dispose, except as provided
hereunder, of shares of Stock or any securities of the Company that
are substantially similar to shares of Stock, including but not
limited to any options or warrants to purchase shares of Stock or any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially
similar securities (other than (A) in connection with any employee
option, bonus, profit sharing, pension, retirement, incentive, savings
or similar agreement, plan or award in effect as of the date of this
Agreement, (B) upon the conversion or exchange of convertible or
exchangeable securities outstanding as of the date of this Agreement
or (C) in consideration for the shares or assets of a company or as
part of a merger, acquisition, corporate reorganization or similar
transaction, provided however that the recipient of any shares of
Stock or other securities as contemplated by this clause (C) shall be
bound by the obligations set forth in this subsection (vii)) without
your prior written consent (which, with respect to clause C only,
shall not be unreasonably withheld by the Representatives where the
recipients of such Stock do not agree to be bound by restrictions
contemplated in this subsection (vii));
(viii) To pay the required Commission filing fees relating to the
Securities within the time required by Rule 456(b)(1) under the Act
without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) under the Act;
(ix) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the
Pricing Prospectus and Prospectus under the caption "Use of Proceeds";
23
(x) Not to (and to cause its subsidiaries not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which would reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company, in each
case in violation of applicable laws, to facilitate the sale or resale
of the Shares;
(xi) For so long as the Company has securities registered under
the Exchange Act, to use its reasonable best efforts to maintain its
listing of its ADSs on the New York Stock Exchange provided that the
Company may delist its ADSs from the New York Stock Exchange in
connection with preparing for an application to the Commission to
deregister its securities under the Exchange Act; and
(xii) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
(b) The Selling Shareholder agrees with each of the Underwriters:
(i) During the period beginning from the date hereof and
continuing to and including the date 270 days after the date of the
Prospectus, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose, except
as provided hereunder of shares of Stock or any securities of the
Company that are substantially similar to the shares of Stock,
including but not limited to any options or warrants to purchase
shares of Stock or any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities (other than in connection with
the sale by the Selling Shareholder of shares of Stock in the context
of an acquisition, merger, corporate reorganization or similar
transaction provided that the recipient of such shares of Stock in
such transactions shall be bound by the obligations set forth in this
subsection (i)) without your prior written consent;
(ii) Prior to each Time of Delivery, to deposit, or cause to be
deposited on its behalf, shares of Stock with the Depositary in
accordance with the provisions of the Deposit Agreement and the
[Letter of Instruction date [o] between the
24
Company, the Selling Shareholder and the Bank of New York (the "Letter
of Instruction")] and otherwise to comply with the Deposit Agreement
and such Letter of Instruction so that ADRs evidencing ADSs will be
executed (and, if applicable, countersigned) and issued by the
Depositary against receipt of such shares of Stock and delivered to
purchasers procured by the Underwriters or to the Underwriters, as
applicable, at such Time of Delivery;
(iii) Not to (and to cause its affiliates other than the Company
and its subsidiaries not to) take, directly or indirectly, any action
which is designed to or which constitutes or which would reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company, in each case in violation of
applicable laws, to facilitate the sale or resale of the Shares.
6. (a) Each of the Company and the Selling Shareholder represents and
agrees, severally and not jointly, that, without the prior consent of the
Representatives and the Company or Selling Shareholder, as applicable, it has
not made and will not make any offer relating to the Shares that would
constitute a "free writing prospectus" as defined in Rule 405 under the Act (a
"Free Writing Prospectus"); each Underwriter (including, for the avoidance of
doubt, each Representative) represents and agrees that, without the prior
consent of the Company, the Selling Shareholder and the Representatives, it has
not made and will not make any offer relating to the Shares that would
constitute a Free Writing Prospectus; any such Free Writing Prospectus the use
of which has been consented to by the Company, the Selling Shareholder and the
Representatives is listed on Schedule II(a) or Schedule II(b) hereto;
(b) The Company has complied and will comply with the
requirements of Rule 433 under the Act applicable to any Issuer Free
Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of
an Issuer Free Writing Prospectus any event occurred or occurs as a
result of which such Issuer Free Writing Prospectus would conflict
with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus or would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances then
prevailing, not misleading, the Company will give prompt notice
thereof to the Selling Shareholder and the Representatives and, if
requested by the Selling Shareholder or the Representatives, will
prepare and furnish without charge to the Selling Shareholder and each
Underwriter an Issuer Free Writing Prospectus or other document which
will correct such conflict, statement or omission;
25
provided, however, that the foregoing shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through the Representatives or by the
Selling Shareholder expressly for use therein.
7. The Company and the Selling Shareholder covenant and agree with
one another and, severally and not jointly, with the several Underwriters
that (a) the Company and the Selling Shareholder will, respectively, pay or
cause to be paid (based on whether the fee or expense is allocable to, and
arises from, the offering of the Shares to be sold by the Company or the
Selling Shareholder, as the case may be, hereunder and, if not so
allocable, pro rata in proportion to the number of Shares to be sold by the
Company and the Selling Shareholder hereunder) the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing, reproduction and
filing of the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the fees, disbursements and
expenses of the Selling Shareholder's counsel; (iii) 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; (iv) 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; (v) all fees and
expenses in connection with the listing of the Shares on the New York Stock
Exchange, the JSE Limited, Euronext Paris, the London Stock Exchange, the
Australian Stock Exchange and quoting on Euronext Brussels and the filing
fees incident thereto; and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Shares; (vi) to the Representatives for the account of the several
Underwriters, $_________ in lieu of reimbursement of expenses; (vii) the
fees and disbursements of Underwriters' counsel in connection with the
transactions contemplated hereby; (viii) all expenses and taxes arising as
a result of the deposit of the Shares with the Depositary and the issuance
and delivery of ADSs; (ix) 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; (x) fees and expenses of the Authorized Agent (as defined in
Section 15 hereof); (xi) the cost of preparing stock certificates; (xii)
the cost and charges of any transfer agent or registrar; and (xiii) all
other costs and expenses incident to the performance of the respective
obligations of the Company and the
26
Selling Shareholder hereunder that are not otherwise specifically provided
for in this Section; (b) the Company will pay or cause to be paid all stamp
or other taxes, expenses, levies (including, without limitation, any STRATE
levy and insider trading levy payable) and duties and any other kind of tax
or withholding tax incurred or arising in connection with the issuance and
sale or delivery of Firm Shares by the Company to the purchasers procured
by the Underwriters or the Underwriters, as applicable; and (c) the Selling
Shareholder will pay or cause to be paid all stamp or other taxes,
expenses, levies (including, without limitation, any STRATE levy and the
insider trading levy payable) and duties and any other kind of tax or
withholding tax incurred or arising in connection with the transfer, sale
or delivery of Shares by the Selling Shareholder to the purchasers procured
by the Underwriters or the Underwriters, as applicable; it being understood
that nothing in clause (b) or (c) hereof is intended or shall be construed
to include any income tax payable in the ordinary course by any of the
Underwriters arising from any fee, commission or other compensation (but
not any payment in respect of expenses pursuant to this Section 7) received
by such Underwriter in accordance with this Agreement. In connection with
clause (c) of the preceding sentence, the Representatives agree to pay New
York State stock transfer tax, and the Selling Shareholder agrees to
reimburse the Representatives for associated carrying costs if such tax
payment is not rebated on the day of payment and for any portion of such
tax payment not rebated. It is understood, however, that, except as
provided in this Section, and Sections 9 and 12 hereof, the Underwriters
will pay all of their own costs and expenses, and stock transfer taxes
(other than any imposed by the Republic of South Africa or the United
States or any political subdivision or taxing authority thereof or therein)
on resale of any of the Shares, by them, and any advertising expenses
connected with any offers they may make provided that the Underwriters
shall be responsible for any taxes, levies or duties incurred or arising
from any subsequent transfer, sale or delivery by an Underwriter of Shares
registered in its name not contemplated by this Agreement.
In each case, payment shall be made by or on behalf of the Company or
the Selling Shareholder within fourteen days of the date of the invoice
from the Representatives.
To the extent that the Company does not satisfy any of its obligations
owed to the Underwriters, if applicable, under this Section 7, the Selling
Shareholder shall not be liable to the Underwriters with respect to such
obligations of the Company. To the extent that the Selling Shareholder does
not satisfy any of its obligations owed to the Underwriters, if applicable,
under this Section 7, the Company shall not be liable to the Underwriters
with respect to such obligations of the Selling Shareholder.
8. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and
other statements of the Company and of the Selling Shareholder herein are,
at and as of such Time of Delivery, true and correct, the condition that
the Company and the Selling
27
Shareholder not be in breach of any of their obligations under this
Agreement in any respect that is material on or before such Time of
Delivery, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time
period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; all material
required to be filed by the Company pursuant to Rule 433(d) under the
Act shall have been filed with the Commission within the applicable
time period prescribed for such filing by Rule 433; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission and no
notice of objection of the Commission to the use of the Registration
Statement pursuant to Rule 401(g)(2) under the Act shall have been
received; no stop order suspending or preventing the use of the
Prospectus or any Issuer Free Writing Prospectus shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Davis Polk & Wardwell, United States counsel for the
Underwriters, shall have furnished to you their written opinion, dated
such Time of Delivery, in form and substance customary and reasonably
satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters;
(c) Shearman & Sterling, LLP, United States counsel for the
Company, shall have furnished to you their written opinion, dated such
Time of Delivery, in form and substance customary and reasonably
satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters;
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, dated such Time of
Delivery, in form and substance customary and reasonably satisfactory
to the Representatives, together with signed or reproduced copies of
such letter for each of the other Underwriters;
(e) Emmet, Marvin & Martin, LLP, counsel for the Depositary,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance customary and reasonably satisfactory
to the Representatives, together with signed or reproduced copies of
such letter for each of the other Underwriters;
28
(f) Sullivan & Cromwell LLP, United States counsel for the
Selling Shareholder, shall have furnished to you their written
opinion, dated such Time of Delivery, in form and substance customary
and reasonably satisfactory to the Representatives, together with
signed or reproduced copies of such letter for each of the other
Underwriters;
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, dated
such Time of Delivery, in form and substance customary and reasonably
satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters;
(h) Peter Arthur, Special Counsel for the Selling Shareholder,
shall have furnished to you his written opinion , dated such Time of
Delivery, in form and substance customary and reasonably satisfactory
to the Representatives, together with signed or reproduced copies of
such letter for each of the other Underwriters;
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction outside the
Republic of South Africa and in rendering an opinion with respect to
the transfer of good and valid title to the Shares to be delivered by
the Selling Shareholder, such counsel may rely upon a certificate of
the Selling Shareholder in respect of matters of fact as to ownership
of and liens, encumbrances, equities or claims on, the Shares sold by
the Selling Shareholder, provided that such counsel shall state that
they believe that both you and they are justified in relying upon such
certificate;
(i) On each of the date of each Preliminary Prospectus, the date
hereof and each Time of Delivery, Ernst & Young shall have furnished
to you a letter or letters, dated the respective dates of delivery
thereof in form and substance customary and reasonably satisfactory to
the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters;
(j) On each of the date of each Preliminary Prospectus, the date
hereof and each Time of Delivery, PricewaterhouseCoopers Inc. shall
have furnished to you a letter or letters, dated the respective dates
of delivery thereof in form and substance customary and reasonably
satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters;
(k) On each of the date of each Preliminary Prospectus, the date
hereof and each Time of Delivery, KPMG Inc. shall have furnished to
29
you a letter or letters, dated the respective dates of delivery
thereof in form and substance customary and reasonably satisfactory to
the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters;
(l) At and as of such 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 such Time of Delivery on
the terms and in the manner contemplated in the Pricing Prospectus;
(m) On or after the Applicable Time until such Time of Delivery
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by rating agency Fitch or preferred stock by
any "nationally recognized statistical rating organization," as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act, (ii) Fitch shall not have publicly announced that it has
under its surveillance or review, with possible negative implications,
its rating of the Company's debt securities, and (iii) no nationally
recognized statistical rating organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of the Company's preferred stock;
(n) At and as of such Time of Delivery, the Company shall have
obtained and delivered to the Representatives executed copies of an
agreement from each of the directors of the Company, substantially to
the effect set forth in Section 5(a)(vii) hereof in form and substance
satisfactory to the Representatives;
(o) On or after the Applicable Time until such Time of Delivery
there shall not have occurred any of the following: (i) a suspension
or material limitation in trading in securities generally on the New
York Stock Exchange, the London Stock Exchange and/or the JSE Limited;
(ii) a suspension or
30
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 such Time of Delivery on the terms and in the manner contemplated
in the Prospectus;
(p) At and as of such Time of Delivery, the Shares shall continue
to be duly listed, subject to notice of issuance, on the JSE Limited,
the New York Stock Exchange (in the form of ADSs) and the London Stock
Exchange;
(q) At and as of such Time of Delivery, the Depositary shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates satisfactory to you evidencing the deposit with it of the
Shares being so deposited against issuance of ADRs evidencing the ADSs
to be delivered by the Company and the Selling Shareholder at such
Time of Delivery, and the execution, countersignature (if applicable),
issuance and delivery of ADRs evidencing such ADSs pursuant to the
Deposit Agreement;
(r) The Company shall have complied with the provisions of
Section 5(a)(v) hereof with respect to the furnishing of prospectuses
on the Business Day next succeeding the date of this Agreement; and
(s) The Company and the Selling Shareholder shall have furnished
or caused to be furnished to you at and as of such Time of Delivery
certificates of officers of the Company and of the Selling
Shareholder, respectively, as to the accuracy of the representations
and warranties of the Company and the Selling Shareholder,
respectively, herein at and as of such Time of Delivery, as to the
performance, in all material respects, by the Company and the Selling
Shareholder of their respective obligations hereunder to be performed
at or prior to such Time of Delivery, and the Company shall have
furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (l) of this Section.
31
9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the ADS
Registration Statement, the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any
amendment or supplement thereto, any Issuer Free Writing Prospectus or any
"issuer information" filed or required to be filed pursuant to Rule 433(d)
under the Act, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in the ADS Registration Statement the Registration Statement, the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein or Selling Shareholder
Information.
(b) The Selling Shareholder will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained in the ADS Registration Statement, the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus, the Prospectus, or any amendment or supplement
thereto or any Issuer Free Writing Prospectus or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the ADS
Registration Statement, the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus, or any amendment or supplement thereto or any Issuer Free
Writing Prospectus in reliance upon and in conformity with the Selling
Shareholder Information, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as
such expenses are
32
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.
(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
33
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 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
34
this Agreement (before deducting expenses) received by the Company and
the Selling Shareholder bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares
purchased under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company or the Selling Shareholder on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Shareholder and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Shareholder
under this Section 9 shall be in addition to any liability which the
Company and the Selling Shareholder may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act and each
broker-dealer affiliate of any Underwriter; and the obligations of the
Underwriters under this Section 9 shall be in addition to any
liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his or her
consent, is named in the Registration Statement as about to become a
director of the Company) and
35
to each person, if any, who controls the Company or the Selling
Shareholder within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to procure
purchasers for or, failing that, refuse to purchase the Shares which it has
agreed to purchase hereunder at a Time of Delivery, you may in your
discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty six hours after
such default you do not make arrangements satisfactory to you, the Company
and the Selling Shareholder for the purchase of such Shares, then the
Company and the Selling Shareholder shall be entitled to a further period
of thirty six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company and
the Selling Shareholder that you have so arranged for the purchase of such
Shares, or the Company and the Selling Shareholder notify you that they
have so arranged for the purchase of such Shares, you or the Company and
the Selling Shareholder shall have the right to postpone such Time of
Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in your opinion may thereby
be made necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to
such Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Shareholder as provided in subsection (a)
above, the aggregate number of such Shares which remains unpurchased
does not exceed one eleventh of the aggregate number of all of the
Shares to be purchased at such Time of Delivery, then the Company and
the Selling Shareholder shall have the right to require each non
defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and,
in addition, to require each non defaulting Underwriter to purchase
its pro rata share (based on the number of Shares which such
Underwriter agreed to procure purchasers for or, failing that,
purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Shareholder as provided in subsection (a)
above, the aggregate number of such Shares which remains unpurchased
exceeds one-eleventh of the aggregate number of all of the Shares to
be purchased
36
at such Time of Delivery, or if the Company and the Selling
Shareholder shall not exercise the right described in subsection (b)
above to require non defaulting Underwriters to procure purchasers for
or to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery,
the obligations of the Underwriters to procure purchasers for or,
failing that, purchase and of the Selling Shareholder to sell the
Optional Shares) shall thereupon terminate, without liability on the
part of any non defaulting Underwriter or the Company or the Selling
Shareholder, except for the expenses to be borne by the Company and
the Selling Shareholder and the Underwriters as provided in Section 7
hereof and the indemnity and contribution agreements in Section 9
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Shareholder and
the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or any of the
Selling Shareholder, or any officer or director or controlling person of
the Company, or any controlling person of the Selling Shareholder, and
shall survive delivery of and payment for the Shares.
12. If this Agreement shall be terminated pursuant to Section 10
hereof, neither the Company nor the Selling Shareholder shall then be under
any liability to any Underwriter except as provided in Sections 7 and 9
hereof; but, if for any other reason any Shares are not delivered by or on
behalf of the Company and the Selling Shareholder as provided herein, the
Company and the Selling Shareholder pro rata (based on the number of Shares
to be sold by the Company and the Selling Shareholder hereunder) will
reimburse the Underwriters through you for all out of pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the
procuring of purchasers or, failing that, purchase, sale and delivery of
the Shares not so delivered, but the Company and the Selling Shareholder
shall then be under no further liability to any Underwriter in respect of
the Shares not so delivered except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by you jointly or by the Representatives on behalf of you as
the representatives; and in all dealings with the Selling Shareholder
hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on by the Selling Shareholder.
37
All statements, requests, notices, agreements and other communications
hereunder shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of the Representatives at each of the following:
(A) Goldman, Sachs & Co. One New York Plaza, 42nd Floor, New York, New York
10004, United States, Attention: Registration Department, fax
+1-212-902-3000 and (B) UBS Limited, 1 Finsbury Avenue, London EC2M 2PP,
United States, Attention: Equity Capital Markets, fax: +44-20-7568-1081,
with a further copy sent to +44-20-7567-2364 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
38
Corporation System, 111 Eighth Avenue, 13th Floor, New York, New York
10011, as their respective authorized agents (the "Authorized Agents") upon
whom process may be served in any such action arising out of or based on
this Agreement or the transactions contemplated hereby which may be
instituted in any New York Court by any Underwriter or by any person who
controls any Underwriter, expressly consents to the jurisdiction of any
such court in respect of any such action, and waives any other requirements
of or objections to personal jurisdiction with respect thereto. Such
appointment shall be irrevocable for five years from the date of this
Agreement. Each of the Company and the Selling Shareholder represents and
warrants that their respective Authorized Agents have agreed to act as such
agent for service of process and agree to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon an Authorized Agent and written notice
of such service to the Company or the Selling Shareholder, as applicable,
shall be deemed, in every respect, effective service of process upon the
Company or the Selling Shareholder, as applicable.
16. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "judgment
currency") other than United States dollars, the Company and the Selling
Shareholder, as the case may be, will, severally and not jointly, indemnify
each Underwriter against any loss incurred by such Underwriter as a result
of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the
purpose of such judgment or order and (ii) the rate of exchange at which an
Underwriter is able to purchase United States dollars with the amount of
the judgment currency actually received by such Underwriter. The foregoing
indemnity shall constitute a separate and independent obligation of the
Company and the Selling Shareholder and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term
"rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion of the judgment currency
into United States dollars.
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, 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
39
responsibility in favor of the Company or the Selling Shareholder with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently
advising the Company or the Selling Shareholder on other matters) or any
other obligation to the Company or the Selling Shareholder except the
obligations expressly set forth in this Agreement and (iv) the Company and
the Selling Shareholder have consulted their own legal and financial
advisors to the extent each deemed appropriate. The Company and the Selling
Shareholder agree that they will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or the Selling Shareholder, in
connection with such transaction or the process leading thereto.
This Agreement supersedes all prior agreements (except the engagement
letter between UBS Limited and the Company dated as of March 23, 2006) and
understandings (whether written or oral) between the Company, the Selling
Shareholder and the Underwriters, or any of them, with respect to the
subject matter hereof.
For the avoidance of doubt, the provisions of this Section 18 shall
not apply to or affect any obligation that any party may have to any other
party pursuant to the engagement letter referred to above.
19. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
20. The Company, the Selling Shareholder and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
21. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute one and
the same instrument.
* * * * *
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and for each of the Representatives
plus one for each counsel counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company, the Selling Shareholder.
40
Very truly yours,
ANGLOGOLD ASHANTI LIMITED
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
ANGLO SOUTH AFRICA CAPITAL
(PROPRIETARY) LIMITED
By:
---------------------------------
Name:
Title:
41
Accepted as of the date hereof at
London, United Kingdom
GOLDMAN, SACHS & CO.
By:
-----------------------------------
Name:
Title:
UBS LIMITED
By:
-----------------------------------
Name:
Title:
UBS LIMITED
By:
-----------------------------------
Name:
Title:
For themselves and on behalf of each of the several
Underwriters listed in Schedule I hereto.
42
SCHEDULE I
Number of Optional Shares to
Total Number of Firm Shares be Purchased if Maximum
to be Purchased Option Exercised
----------------------------- ------------------------------
Anglo South
AngloGold Africa Capital
Ashanti (Proprietary) Anglo South Africa Capital
Underwriter Limited Limited (Proprietary) Limited
----------------------------------------
Goldman, Sachs & Co......................
UBS Limited..............................
J.P. Morgan Securities Ltd...............
BMO Nesbitt Burns Inc....................
Total.................................
----------- ---------------- -----------------------------
Sch-I
SCHEDULE II
(a) Materials other than the Pricing Prospectus that comprise the
Pricing Disclosure Package:
(b) Issuer Free Writing Prospectuses not included in the Pricing
Disclosure Package:
o Electronic roadshow related to the offering
contemplated herein recorded at Capetown, South Africa
on March 29, 2006 and made available at
http://www.netroadshow.com.
(c) Additional Documents Incorporated by Reference:
Sch-II
SCHEDULE III
AngloGold Ashanti Limited
AngloGold 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 forth paragraph under the caption "Selling Shareholder" in
the Pricing Prospectus, regarding a reduction of the number of
such Anglo American plc-affiliated directors following a
reduction in the Selling Shareholder's ownership interest in the
Company.
Sch-IV
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
AngloGold Ashanti Limited has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
ANGLOGOLD ASHANTI LIMITED
Date: April 10, 2006 By: /s/ C R BULL
------------
Name: C R Bull
Title: Company Secretary