EXHIBIT 2.4
FORM OF REGISTRATION RIGHTS AGREEMENT
DURBAN ROODEPOORT DEEP, LIMITED
6% SENIOR CONVERTIBLE NOTES DUE 2006
REGISTRATION RIGHTS AGREEMENT
November 12, 2002
CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Durban Roodepoort Deep, Limited, a corporation incorporated under the laws
of the Republic of South Africa (the "Company"), proposes to issue and sell to
the Purchaser (as defined herein) upon the terms set forth in the Purchase
Agreement (as defined herein) its 6% Senior Convertible Notes due 2006 (the
"Securities"). As an inducement to the Purchaser to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Purchaser
thereunder, the Company agrees with the Purchaser for the benefit of holders (as
defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:
1. DEFINITIONS.
(a) Capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Purchase Agreement. As used in this
Registration Rights Agreement (the "Agreement"), the following defined
terms shall have the following meanings:
"ADRs" mean American Depositary Receipts evidencing American Depositary
Shares representing Ordinary Shares of the Company issuable upon conversion of
the Securities.
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"COMMISSION" means the United States Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"DAMAGES PAYMENT DATE" means each 30th day following the accrual of
Liquidated Damages.
"DTC" means The Depositary Trust Company.
"EFFECTIVENESS PERIOD" has the meaning assigned thereto in Section 2(b)(i)
hereof.
"EFFECTIVE TIME" means the date on which the Commission declares the Shelf
Registration Statement effective or on which the Shelf Registration Statement
otherwise becomes effective.
"ELECTING HOLDER" means any holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire in accordance with
Section 4(a)(i) and 4(a)(ii).
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended.
"INDENTURE" means the Indenture, dated as of November 12, 2002, between the
Company and Bank of New York, as amended and supplemented from time to time in
accordance with its terms.
"LIQUIDATED DAMAGES" means liquidated damages payable by the Company to the
holders of the Securities in the manner set out in Section 3 hereof.
"MANAGING UNDERWRITER" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
conducted pursuant to Section 8 hereto.
"NASD" means the National Association of Securities Dealers, Inc.
"NASD RULES" means the rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement and
Selling Securityholder Questionnaire, substantially in the form of Exhibit A
attached hereto, relating to the Securities.
"ORDINARY SHARES" means the ordinary shares in the capital of the Company.
"PERSON" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"PROSPECTUS" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon
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Rule 430A under the Securities Act) included in the Shelf Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Shelf Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference therein.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of November 4,
2002, between the Company and the Purchaser.
"PURCHASER" means the CIBC World Markets Corp. or CIBC World Markets Inc.,
as the case may be.
"REGISTRABLE SECURITIES" means all or any portion of the Securities issued
from time to time under the Indenture and the Ordinary Shares or ADRs issuable
upon conversion of such Securities; provided, however, that a security ceases to
be a Registrable Security on the earlier of:
(i) the date on which such security has been registered
pursuant to an effective registration statement under the
Securities Act and disposed of in accordance with the
Shelf Registration Statement;
(ii) the date on which such security is transferred in
compliance with Rule 144 or may be sold or transferred by
a person who is not an Affiliate of the Company
immediately without volume or manner of sale restrictions
pursuant to Rule 144(k) under the Securities Act (or any
other similar provision then in force); or
(iii) the date on which such security ceases to be outstanding
(whether as a result of redemption, repurchase and
cancellation, conversion or otherwise).
"RULES AND REGULATIONS" means the published rules and regulations of the
Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"SHELF REGISTRATION" means a registration effected pursuant to Section 2
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement filed
under the Securities Act providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable Securities
pursuant to Rule 415 under the Securities Act and/or any similar rule that may
be adopted by the Commission, filed by the Company pursuant to the provisions of
Section 2 of this Agreement, including the Prospectus contained therein, any
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
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"TRUST INDENTURE ACT" means the United States Trust Indenture Act of 1939,
or any successor thereto, and the rules, regulations and forms promulgated
thereunder, as in effect on the date the Indenture is qualified under the Trust
Indenture Act.
"UNDERWRITER" means any underwriter of Registrable Securities in connection
with an offering thereof under a Shelf Registration Statement.
"UNDERWRITTEN OFFERING" means an offering in which Registrable Securities
of the Company are sold to an underwriter for reoffering to the public.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, Ordinary Shares and ADRs shall be treated as
representing the principal amount of Securities which was surrendered for
conversion or exchange in order to receive such number of shares of
Ordinary Shares or ADRs.
2. SHELF REGISTRATION.
(a) The Company shall, as promptly as is practicable but not later than
90 calendar days after the Closing Date (as defined in the Purchase
Agreement), file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities and,
thereafter, shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective under the Securities Act as
promptly as is practicable but in no event later than 180 calendar days
after the Closing Date; PROVIDED, HOWEVER, that no holder shall be entitled
to be named as a selling securityholder in the Shelf Registration Statement
or to use the Prospectus for resales of Registrable Securities unless such
holder is an Electing Holder (as defined herein).
(b) The Company shall:
(i) subject to any notice by the Company of the commencement
of a Suspension Period (as defined herein), keep the
Shelf Registration Statement continuously effective and
in conformity with the requirements of this Agreement,
the Securities Act and the Rules and Regulations in order
to permit the Prospectus to be usable by holders for
resales of Registrable Securities for a period (the
"Effectiveness Period") that shall terminate on the
earlier of:
A. the date on which all of the Registrable
Securities have been registered pursuant to the
Shelf Registration Statement and disposed of in
accordance with the Shelf Registration Statement;
B. the date on which holders of Registrable
Securities who are not affiliates of the Company
are able to sell such securities immediately
without volume or manner of sale restrictions
pursuant to Rule 144(k) under the Securities Act
(or any other similar provision then in force);
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C. the date on which all Registrable Securities have
ceased to be outstanding (whether as a result of
redemption, repurchase and cancellation,
conversion or otherwise); or
D. two years following the date on which the Shelf
Registration Statement is declared effective.
(ii) after the Effective Time, promptly upon the request of
any holder of Registrable Securities that is not then an
Electing Holder, to take any action reasonably necessary
to enable such holder to use the Prospectus for resales
of Registrable Securities, including without limitation
any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement;
provided, however, that nothing in this subparagraph
shall relieve such holder of the obligation to return a
completed and signed Notice and Questionnaire to the
Company in accordance with Section 4(a) (ii) hereof; and
(iii) ensure that a sufficient number of ADRs have been
registered on a Registration Statement on Form F-6 such
that the maximum number of Ordinary Shares that may be
issued upon conversion of the Securities may be sold in
the form of ADRs.
3. LIQUIDATED DAMAGES.
(a) Liquidated Damages will accrue, and be payable by the Company to the
holders of the Securities, on the Securities in the event that
either of the following occur:
(i) the Shelf Registration Statement has not been filed with
the Commission on or prior to the date which is 90 days
following the date of the Indenture (a "Filing Default");
or
(ii) if the Effective Time does not occur on or prior to the
date that is 180 days following the date of the Indenture
(a "Registration Default").
(b) In the event of a Filing Default, Liquidated Damages will accrue:
(i) on the 91st day following the date of the Indenture, in
the amount of 1.0% of the principal amount of the
Securities outstanding on such date; and
(ii) until the Effective Time occurs, on each 30-day
anniversary thereafter on or before the one-year
anniversary of the date of the Indenture, at the rate of
0.2% of the principal amount of the Securities
outstanding on such 30-day anniversary date.
(c) In the event of a Registration Default without the occurrence of a
Filing Default, Liquidated Damages will accrue:
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(i) on the 181st day following the date of the Indenture in
the amount of 1.0% of the principal amount of the
Securities outstanding on such date; and
(ii) until the Effective Time occurs on each 30-day
anniversary thereafter on or before the one-year
anniversary of the date of the Indenture, at the rate of
0.2% of the principal amount of the Securities
outstanding on such 30-day anniversary date.
(d) In no event will the total Liquidated Damages under section 3(b)
exceed 2.6% of the principal amount of the Securities issued. In no
event will the total Liquidated Damages under section 3(c) exceed
2.0% of the principal amount of the Securities issued. For the
avoidance of doubt, in no event shall Liquidated Damages be payable
under both section 3(b) and 3(c).
(e) The Company shall notify the Trustee as promptly as possible but in
no event more than three Business Days after the date on which a
Filing Default or a Registration Default occurs. Liquidated Damages
will be paid by the Company on each Damages Payment Date in the same
manner as interest on the Securities is paid under the Indenture.
(f) For the avoidance of doubt, Liquidated Damages accrue on and become
payable to the holders of the Securities, whether or not the
Securities are Registrable Securities.
4. REGISTRATION PROCEDURES.
(a) In connection with the Shelf Registration Statement, the following
provisions shall apply:
(i) Not less than 30 calendar days prior to the Effective
Time, as determined by the Company in good faith, the
Company shall mail the Notice and Questionnaire to the
holders of Registrable Securities. No holder shall be
entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time,
and no holder shall be entitled to use the Prospectus for
offers of Registrable Securities at any time unless such
holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response
set forth therein; provided, however, that holders of
Registrable Securities shall have at least 20 calendar
days from the date on which the Notice and Questionnaire
is first mailed to such holders to return a completed and
signed Notice and Questionnaire to the Company.
(ii) After the Effective Time, the Company shall, upon the
request of any holder of Registrable Securities that is
not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder. The Company shall not be
required to take any action to name such holder as a
selling securityholder in the Shelf Registration
Statement or to enable such holder to use the Prospectus
for resales of Registrable Securities until such holder
has returned a completed and signed
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Notice and Questionnaire to the Company. The Company
shall, as promptly as reasonably practicable after the
date a Notice and Questionnaire is delivered, an in any
event not later than 30 Business Days after such date if
required by applicable law, rules and regulations, file
with the Commission on a post-effective amendment to the
Shelf Registration Statement or prepare and, if required
by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other
required document so that the holder delivering such
Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and
the related Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the
Shelf Registration Statement, use its reasonable best
efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly
as is practicable, but in any event by the date that is
60 days after the date such post-effective amendment is
required by this section to be filed.
(b) The Company shall furnish to each Electing Holder, each underwriter,
if any, and their respective counsel no fewer than five Business Days prior
to the initial filing of the Shelf Registration Statement, a copy of such
Shelf Registration Statement, and shall furnish to such persons no fewer
than two Business Days prior to the filing of any amendment or supplement
to the Prospectus, a copy of such amendment or supplement and shall use all
reasonable efforts to reflect in each such document when so filed with the
Commission such comments as such holders and their respective counsel
reasonably may propose. If any such Shelf Registration Statement refers to
any Electing Holder by name or otherwise as the holder of any securities of
the Company, then such Electing Holder shall have the right to require (i)
the insertion therein of language, in form and substance reasonably
satisfactory to such Electing Holder, to the effect that the holding by
such Electing Holder of such securities is not to be construed as a
recommendation by such Electing Holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply
that such Electing Holder will assist in meeting any future financial
requirements of the Company or (ii) in the event that such reference to
such Electing Holder by name or otherwise is not required by the Securities
Act or any similar Federal statute then in force, the deletion of the
reference to such Electing Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
(c) From the date hereof until the end of the Effective Period, the
Company shall (subject to paragraph (j) below) promptly take such action as
may be necessary so that (i) each of the Shelf Registration Statement and
any amendment thereto and the Prospectus and any amendment or supplement
thereto (and each report or other document incorporated by reference
therein in each case) complies in all material respects with the Securities
Act and the Exchange Act and the respective rules and regulations
thereunder, (ii) each of the Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, 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 light of the
circumstances under which
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they were made, not misleading and (iii) each of the Prospectus and any
amendment or supplement to the Prospectus does not at any time during the
Effectiveness Period include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(d) The Company shall promptly (and in any event within three Business
Days) advise the underwriter(s), if any, and each Electing Holder, and
shall confirm such advice in writing if so requested by any such holder
(which notice pursuant to clauses (ii) through (v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until
the requisite changes have been made):
(i) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the
Shelf Registration Statement or any post-effective
amendment thereto has become effective and when the
Prospectus or any Prospectus supplement or post-effective
amendment has been filed;
(ii) of the request by the Commission for amendments to the
Shelf Registration Statement or amendments or supplements
to the Prospectus or for additional information relating
thereto;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for such
purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
securities included in the Shelf Registration Statement
for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the existence of any fact or the occurrence of any
event that makes any statement of a material fact made in
the Shelf Registration statement, the prospectus, any
amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Shelf Registration Statement or the Prospectus in order
to make the statements therein not misleading.
(e) The Company shall use all reasonable efforts to prevent the issuance
of any order suspending the effectiveness of the Shelf Registration
Statement.
(f) If the Shelf Registration Statement or any Subsequent Shelf
Registration Statement (as defined below) ceases to be effective for any
reason at any time during the Effectiveness Period, the Company shall use
its reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30 days
of such cessation of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf
Registration Statement covering all outstanding Registrable Securities as
of the date of such filing (a "Subsequent Shelf Registration Statement").
If a Subsequent Shelf Registration
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Statement is filed, the Company shall use its reasonable best efforts to
cause the Subsequent Shelf Registration Statement to become effective as
promptly as is practicable after such filing and to keep such Subsequent
Shelf Registration Statement continuously effective until the end of the
Effectiveness Period.
(g) The Company shall furnish to each requesting Electing Holder, and to
each of the underwriter(s), if any, without charge, at least one copy of
the Shelf Registration Statement and all post-effective amendments thereto,
including financial statements and schedules, and, if such holder so
requests in writing, all reports, other documents and exhibits that are
filed with or incorporated by reference in the Shelf Registration
Statement.
(h) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder and to each of the underwriter(s), if any, without charge,
as many copies of the Prospectus (including each preliminary Prospectus)
and any amendment or supplement thereto as such Electing Holder may
reasonably request; and the Company consents (except during a Suspension
Period or during the continuance of any event described in Section
4(d)(ii)-(v) above) to the use of the Prospectus and any amendment or
supplement thereto by each of the Electing Holders and the underwriters, if
any, in connection with the offering and sale of the Registrable Securities
covered by the Prospectus and any amendment or supplement thereto during
the Effectiveness Period.
(i) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall (i) register or qualify or
cooperate with the Electing Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities or
"blue sky" laws of such jurisdictions within the United States as any
Electing Holder may reasonably request, (ii) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as may be
necessary to enable any Electing Holder or underwriter, if any, to complete
its distribution of Registrable Securities pursuant to the Shelf
Registration Statement, and (iii) take any and all other actions necessary
or advisable to enable the disposition in such jurisdictions of such
Registrable Securities; provided, however, that in no event shall the
Company be obligated to (A) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be required
to so qualify but for this Section 3(h) or (B) file any general consent to
service of process in any jurisdiction where it is not as of the date
hereof so subject.
(j) The Company shall cooperate with the Electing Holders and the
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to the
Shelf Registration Statement, which certificates shall not bear any
restrictive legends and, if so required by any securities exchange upon
which any Registrable Securities are listed, shall be penned, lithographed
or engraved, or produced by any combination of such methods, on steel
engraved borders, and which certificates shall be free of any restrictive
legends and in such permitted denominations and registered in such names as
Electing Holders or the underwriter(s), if any, may request in connection
with the sale of Registrable Securities pursuant to the Shelf Registration
Statement.
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(k) Upon the existence or occurrence of any fact or event contemplated
by paragraph 4(d)(v) above, the Company shall prepare as promptly as
practicable a post-effective amendment or supplement to the Shelf
Registration Statement or the Prospectus, or any document incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to purchasers of the Registrable Securities included
therein, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Company may suspend the
effectiveness of the Shelf Registration Statement by written notice to the
Electing Holders for a period not to exceed an aggregate of 45 days in any
90-day period, extendable to 75 days in any 90 day period in circumstances
described below, or an aggregate of 90 days in any 12 month period (each
such period, a "Suspension Period") if the board of directors of the
Company determines in good faith that because of valid reasons including
the acquisition or divestiture of assets, pending corporate developments
and similar events, it is in the Company's best interest to do so. The
Suspension Period can be extended to 75 days in any 90 day period if it
possesses material non-public information the disclosure of which would
have a material adverse effect on the Company and its subsidiaries taken as
a whole or if such material undisclosed information relates to an
undisclosed proposal or pending transaction and the Company believes
reasonably that disclosure of such information would impede its ability to
consummate such transaction. If the Company notifies the Electing Holders
in accordance with clauses (ii) through (v) of paragraph 4(d) above to
suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made, then each Electing Holder shall suspend the use
of the Prospectus until (i) such Electing Holder has received copies of the
supplemented or amended Prospectus contemplated by the first sentence of
this paragraph or (ii) such Electing Holder is advised in writing by the
Company that the use of the Prospectus may be resumed and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus.
(l) Not later than the Effective Time, the Company shall provide a CUSIP
number for the Registrable Securities that are debt securities.
(m) The Company shall comply with all applicable Rules and Regulations,
and make generally available to its securityholders as soon as practicable,
but in any event not later than eighteen months after (i) the effective
date (as defined in Rule 158(c) under the Securities Act) of the Shelf
Registration Statement, (ii) the effective date of each post-effective
amendment to the Shelf Registration Statement, and (iii) the date of each
filing by the Company with the Commission of an Annual Report on Form 20-F
that is incorporated by reference in the Shelf Registration Statement, an
earnings statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act and the Rules and Regulations of the
Commission thereunder (including, at the option of the Company, Rule 158).
(n) Not later than the Effective Time, the Company shall cause the
Indenture to be qualified under the Trust Indenture Act; in connection with
such qualification, the Company shall cooperate with the Trustee under the
Indenture and the Holders (as defined in the Indenture) to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the Trust
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Indenture Act; and the Company shall execute, and shall use all reasonable
efforts to cause the Trustee to execute, all documents that may be required
to effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified in a
timely manner. In the event that any such amendment or modification
referred to in this Section 3(m) involves the appointment of a new trustee
under the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(o) The Company shall enter into such customary agreements and take all
other appropriate action in order to expedite and facilitate the
registration and disposition of the Registrable Securities.
(p) The Company shall use all reasonable efforts to take all other steps
necessary to effect the registration, listing offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
(q) Subject to Section 2(k), in the event of an underwritten offering
conducted pursuant to Section 8 hereof, the Company shall, if requested,
promptly include or incorporate in a Prospectus Supplement or
post-effective amendment to the Shelf Registration Statement such
information as the Managing Underwriters reasonably agree should be
included therein and to which the Company does not reasonably object and
shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after it is notified of the
matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
(r) The Company shall enter into such customary agreements (including an
underwriting agreement in customary form in the event of an underwritten
offering conducted pursuant to Section 8 hereof) and take all other
appropriate action in order to expedite and facilitate the registration and
disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially similar to those
set forth in Item 6 hereof with respect to all parties to be indemnified
pursuant to Section 6 hereof.
(s) The Company shall make available at reasonable times for inspection
by any underwriter participating in any disposition pursuant to the Shelf
Registration Statement or one or more representatives of the Electing
Holders, designated in writing by the holders of a majority of the
principal amount of Registrable Securities (determined on a fully converted
basis) included in the Shelf Registration Statement, and any attorney or
accountant retained by such Electing Holders or any such underwriter, all
financial and other records, pertinent corporate documents and properties
of the Company as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and to cause the Company's
officers, directors, managers and employees to supply all information
reasonably requested by any such representative or representatives of the
Electing Holders, underwriter, attorney or accountant in connection with
the Shelf Registration Statement after the filing thereof and before its
effectiveness; provided, however, that any information designated by the
Company as confidential at the time of delivery of such information shall
be kept confidential by the recipient thereof.
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(t) If reasonably requested by any Electing Holders, the Company will
promptly incorporate in the Shelf Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such holders may from time to time reasonably request to
have included therein, including, without limitation, (i) information
concerning such holders, if any, and the distribution of the Registrable
Securities of such holders, (ii) information relating to the "Plan of
Distribution" of the Registrable Securities of such holders, and (iii) any
other terms of the offering of the Registrable Securities to be sold in
such offering; and the Company will make all required filings of such
Prospectus supplement or post-effective amendment as soon as reasonably
practicable after the Company is notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment.
(u) In connection with any underwritten offering conducted pursuant to
Section 8 hereof, the Company shall:
(i) make such representations and warranties to the holders
participating in such underwritten offering and to the
Managing Underwriters in form, scope and substance as are
customarily made to underwriters in primary underwritten
offerings of equity and convertible debt securities, and
covering matters including, but not limited to, those set
forth in the Purchase Agreement;
(ii) obtain opinions of counsel to the Company (which counsel
and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Managing Underwriters)
addressed to the underwriters, covering such matters as
are customarily covered in opinions requested in primary
underwritten offerings of equity and convertible debt
securities and such other matters as may be reasonably
requested by such underwriters (it being agreed that the
matters to be covered by such opinions shall include,
without limitation, as of the date of the opinion and as
of the Effective Time of the Shelf Registration Statement
or most recent post-effective amendment thereto, as the
case may be, the absence from the Shelf Registration
Statement and the Prospectus, including the documents
incorporated by reference therein, of an untrue statement
of a material fact required to be stated therein or
necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which
they were made) not misleading;
(iii) obtain comfort letters and updates thereof from the
independent public accountants of the Company (and, if
necessary, from the independent public accountants of any
subsidiary of the Company or of any business acquired by
the Company for which financial statements and financial
data are, or are required to be, included in the Shelf
Registration Statement), addressed to the underwriters,
in customary form and covering matters of the type
customarily covered in comfort letters in connection with
primary underwritten offerings; and
12
(iv) deliver such documents and certificates as may be
reasonably requested by any Holders participating in such
underwritten offering and the Managing Underwriters, if
any, including, without limitation, certificates to
evidence compliance with any conditions contained herein
or in the underwriting agreement or other agreements
entered into by the Company;
(v) if reasonably requested by any holder participating in
such underwritten offering or the underwriters, promptly
incorporate in the Shelf Registration Statement or
Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such holder
or underwriter may from time to time reasonably request
to have included therein, including, without limitation:
(i) information concerning such holder and the
underwriters, (ii) information relating to the "Plan of
Distribution" of the Registrable Securities, (iii)
information with respect to the principal amount of
Securities or number of Ordinary Shares or ADRs being
sold to such underwriters, (iv) the purchase price being
paid therefor and (v) any other terms of the offering of
the Registrable Securities to be sold in such offering;
and make all required filings of such Prospectus
supplement or post-effective amendment as soon as
reasonably practicable after the Company is notified of
the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(vi) if reasonably requested by the underwriters, make
appropriate officers of the Company available to the
underwriters for "road show" meetings with prospective
purchasers of the Registrable Securities and prepare and
present to potential investors customary "road show"
material in a manner consistent with other new issuances
of other securities similar to the Registrable
Securities; and
(vii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be
retained in accordance with the rules and regulations of
the NASD.
5. REGISTRATION EXPENSES.
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by it whether or not any
Shelf Registration Statement is filed or becomes effective and whether or
not any securities are issued or sold pursuant to any Shelf Registration
Statement. The fees and expenses referred to in the foregoing sentence
shall include, without limitation, (i) all registration and filing fees
(including without limitation fees and expenses (A) with respect to filings
required to be made with the NASD and (B) in compliance with securities or
Blue Sky laws (including without limitation and in addition to that
provided for in (b) below, reasonable fees and disbursements of counsel for
the Purchaser or counsel for the holders of Registrable Securities in
connection with Blue Sky qualifications of the Registrable Securities )),
(ii) printing expenses (including without limitation expenses of printing
certificates for Registrable Securities in a form eligible for deposit with
DTC and of printing Prospectuses if the printing of Prospectuses is
requested by the
13
Purchaser), (iii) messenger, telephone and delivery expenses, (iv) the fees
and disbursements of counsel for the Company and one counsel for the
holders of Registrable Securities, in accordance with the provisions of
Section 4(b) hereof, (v) fees and disbursements of all independent
certified public accountants of the Company (including without limitation
the expenses of any special audit and "comfort" letters required by or
incident to such performance), (vi) Securities Act liability insurance, if
the Company desires such insurance, and (vii) fees and expenses of all
other persons, including special experts, retained by the Company. In
addition, the Company shall pay its internal expenses (including without
limitation all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit,
and the fees and expenses incurred in connection with the listing on the
NASDAQ of the ADRs issuable upon conversion of the Securities.
Notwithstanding the foregoing or anything in this Agreement to the
contrary, each holder of the Registrable Securities being registered shall
pay all commissions, placement agent fees and underwriting discounts and
commissions with respect to any Registrable Securities sold by it and the
fees and disbursements of any counsel or other advisors or experts retained
by such holders (severally or jointly), other than counsel and local
counsel referred to in clause (iv) above.
(b) In connection with any registration hereunder, the Company shall
reimburse the holders of the Registrable Securities being registered in
such registration for the reasonable fees and disbursements of not more
than one counsel chosen by the holders of a majority in amount of the
Registrable Securities (determined on a fully converted basis) for whose
benefit the applicable Shelf Registration Statement is being prepared.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall
indemnify and hold harmless each Electing Holder, the Purchaser, and each
of their respective officers and directors and each person who controls
such Electing Holder or the Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act (each such person
being sometimes referred to as an "Indemnified Person") against any losses,
claims, damages or liabilities, joint or several, to which such Indemnified
Person may become subject under the Securities 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 any Shelf Registration Statement
or any Prospectus contained therein or prepared by the Company, or any
amendment or supplement thereto, 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, in light of
the circumstances in which they were made, not misleading, and the Company
hereby agrees to reimburse such Indemnified Person for any legal or other
expenses reasonably incurred by them 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 to any such Indemnified
Person 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 such Shelf
Registration Statement or
14
Prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Indemnified Person expressly for use therein.
(b) INDEMNIFICATION BY THE HOLDERS. Each Electing Holder agrees,
severally and not jointly, as a consequence of the inclusion of any of such
holder's Registrable Securities in any Shelf Registration Statement, to (i)
indemnify and hold harmless the Company, its directors and executive
officers who sign such Shelf Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company or such other persons
may become subject, under the Securities 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 such Shelf Registration Statement
or Prospectus, or any amendment or supplement thereto, 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 reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Electing
Holder expressly for use therein and (ii) reimburse the Company and its
directors and officers who sign such Shelf Registration Statement for any
legal or other expenses reasonably incurred by the Company and such
directors and officers in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) of this Section 6 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 this
Section 6, notify such indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 6. In the case that any such action is
brought against any indemnified party it shall notify the indemnifying
party of the commencement thereof and such 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 (who
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,
such indemnifying party shall not be liable to such indemnified party under
this Section 6 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; provided, however, that if any indemnified party reasonably
determines that there may be legal defenses available to such indemnified
party which are different from or in addition to those available to such
indemnifying party or that representation of such indemnifying party and
any indemnified party by the same counsel would present a conflict of
interest, then such indemnifying party or parties shall not be entitled to
assume such defense. If an indemnifying party is not entitled to assume the
defense of such action as a result of the proviso to the preceding
15
sentence, counsel for such indemnified party or parties shall be entitled
to conduct the defense of such indemnified party or parties. In no event
shall the indemnifying party be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) separate from its own
counsel for all indemnified parties in connection with any one action. No
indemnifying party shall, without the written consent of the indemnified
party, which consent will not be unreasonably withheld, 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.
(d) CONTRIBUTION. If the indemnification provided for in this Section 6
is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) of this Section 6 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 fault of the indemnifying party
and the indemnified party 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 fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them 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 in this
Section 6(d). 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 shall be deemed to include any legal or other
fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Electing Holders in this Section 6(d) to contribute
shall be several in proportion to the percentage of principal amount of
Registrable Securities registered or underwritten, as the case may be, by
them and not joint.
(e) Notwithstanding any other provision of this Section 6, in no event
will any Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such
16
holder from the sale of such holder's Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant
to any Shelf Registration Statement and (ii) securities professional be
required to undertake liability to any person hereunder for any amounts in
excess of the discount, commission or other compensation payable to such
underwriter, selling agent or other securities professional with respect to
the Registrable Securities underwritten by it and distributed to the
public.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 6 shall be in addition to any liability that such Indemnified
Person may otherwise have to the Company. The remedies provided in this
Section 6 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to an indemnified party at law or in equity.
7. RULES 144 AND 144A.
The Company agrees, for so long as any Registrable Securities remain
outstanding and during any period in which the Company (a) is not subject to
Section 13 of 15(d) of the Exchange Act, to make available, upon request of any
holder of Registrable Securities, to such holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Registrable Securities designated by such holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Registrable Securities pursuant to Rule 144A
under the Securities Act, and (b) is subject to Section 13 of 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Registrable Securities pursuant to Rule 144 under the
Securities Act.
8. UNDERWRITTEN OFFERING
Any holder of Registrable Securities who desires to do so may sell
Registrable Securities (in whole or in part) in an underwritten offering;
provided that (a) the Electing Holders of at least $20 million in aggregate
principal amount of the Registrable Securities shall request such an offering
and (b) at least such aggregate principal amount of such Registrable Securities
shall be included in such offering. Upon receipt of such a request the Company
shall provide all holders of Registrable Securities written notice of the
request, which notice shall inform such holders that they have the opportunity
to participate in the offering. In any such underwritten offering, the
investment banker or bankers and manager or managers that will administer the
offering will be selected by, and the underwriting arrangements with respect
thereto (including the size of the offering) will be approved by the holders of
a majority of the Registrable Securities to be included in such offering;
provided, however, that such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company. No holder may
participate in any underwritten offering contemplated hereby unless such holder
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements, and if such
holder is not then an Electing Holder, such holder returns a completed and
signed Notice and Questionnaire to the Company in accordance with Section 4
hereof within a reasonable amount of time before such underwritten offering. The
holders participating in any underwritten offering shall be responsible for any
underwriting discounts and commissions and fees and, subject to Section 5
hereof, expenses of their own counsel. The
17
Company shall pay all fees customarily borne by issuers, including but not
limited to filing fees, the fees and disbursements of its counsel and
independent public accountants and any printing expenses incurred in connection
with such underwritten offering. Notwithstanding the foregoing, no holders of
Securities shall have any "piggyback" rights on any underwritten offering
initiated by the Company.
9. MISCELLANEOUS.
(a) REMEDIES. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under this Agreement may result
in material irreparable injury to the Purchaser or the holders of
Registrable Securities for which there is no adequate remedy at law, that
it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Purchaser or any holder of
Registrable Securities may obtain such relief as may be required to
specifically enforce the Company's obligations hereunder. The Company
further agrees to waive the defense in any action for specific performance
where a remedy at law would be adequate.
(b) OTHER REGISTRATION RIGHTS. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Company shall not permit any securities other than
the Registrable Securities to be included in any Shelf Registration
Statement. The rights granted to the holders of Registrable Securities
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of
Section 2 hereof and this Section 9(c)(i), the Company has obtained the
written consent of holders of all outstanding Registrable Securities and
(ii) in the case of all other provisions hereof, the Company has obtained
the written consent of holders of a majority of the outstanding principal
amount of Registrable Securities (determined on a fully converted basis)
(excluding Registrable Securities held by the Company or its Affiliates).
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of holders whose
Registrable Securities are being sold pursuant to a Shelf Registration
Statement and that does not affect directly or indirectly the rights of
other holders of Registrable Securities may be given by the holders of a
majority of the outstanding principal amount of Registrable Securities
(determined on a fully converted basis) being sold by such holders pursuant
to such Shelf Registration Statement rather than registered under such
Shelf Registration Statement.
(d) THIRD PARTY BENEFICIARY. The holders of Registrable Securities shall
be third party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Purchaser, on the other hand, and shall
have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect its rights or the
rights of holders of Registrable Securities hereunder.
18
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Indenture.
(f) PARTIES IN INTEREST. The parties to this Agreement intend that all
holders of Registrable Securities shall be entitled to receive the benefits
of this Agreement and that any Electing Holder shall be bound by the terms
and provisions of this Agreement by reason of such election with respect to
the Registrable Securities that are included in a Shelf Registration
Statement. All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto and any holder from
time to time of the Registrable Securities to the aforesaid extent. In the
event that any transferee of any holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be entitled to receive the benefits
of and, if an Electing Holder, be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement
to the aforesaid extent.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning,
construction or interpretation hereof.
(i) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, including without
limitation New York General Obligations Law Section 5-1401.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
(k) SURVIVAL. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made
pursuant hereto 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 Electing Holder, any director, officer or partner of such
holder, any agent or underwriter, any director, officer or partner of such
agent or underwriter, or any controlling person of any of the foregoing,
and shall survive the transfer and registration of the Registrable
Securities of such holder.
(l) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other
19
than those set forth or referred to herein, with respect to the
registration rights granted with respect to the Registrable Securities.
This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
Please confirm by signing in the space provided below that the foregoing
correctly sets forth the agreement between the Company and you.
Very truly yours,
DURBAN ROODEPOORT DEEP, LIMITED
By: /s/ Xxx Xxxxxx
--------------
Name: Xxx Xxxxxx
Title: CFO
CIBC WORLD MARKETS CORP.
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Managing Director
20
EXHIBIT A
DURBAN ROODEPOORT DEEP, LIMITED
Notice of Registration Statement
and
SELLING SECURITYHOLDER QUESTIONNAIRE
(Date)
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") between Durban Roodepoort Deep, Limited (the
"Company") and the Purchaser named therein. Pursuant to the Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form F-_ (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's 6%
Senior Convertible Notes due 2006 (the "Securities") and the Ordinary Shares or
American Depositary Receipts ("ADRs") issuable upon conversion thereof. A copy
of the Registration Rights Agreement is attached hereto. All capitalized terms
not otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "REGISTRABLE SECURITIES" is defined in the Registration Rights
Agreement to mean all or any portion of the Securities issued from time to time
under the Indenture and the Ordinary Shares or ADRs issuable upon conversion of
such Securities; provided, however, that a security ceases to be a Registrable
Security in certain circumstances.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and the Registrable Securities
listed below in Item (3). The undersigned, by signing and returning this Notice
and Questionnaire, agrees to be bound with respect to such Registrable
Securities by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement, including without limitation Section 5 of the
Registration Rights Agreement as if the undersigned Selling Securityholder were
an original party thereto.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
Certain capitalized terms used in this Questionnaire are defined in
Appendix l attached hereto. Capitalized terms used in this Questionnaire but not
defined in Appendix 1 have the meanings given to them in the accompanying
letter.
(1) (a) Full legal name of Selling Securityholder:
__________________________________________________________________________
(i) Is such Selling Securityholder a:
/ / Corporation / / General Partnership
/ / Individual / / Limited Partnership
/ / Other (please specify:____________________)
(ii) In what state is such Selling Securityholder organized or domiciled?
______________________________________
(b) Full legal name of Registered Holder (if not the same as in (a)
above) of Registrable Securities listed in Item (4) below:
__________________________________________________________________________
(c) Full legal name of DTC participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in Item (4) below are held:
____________________________________________________________________
(2) Address for Notices to Selling Securityholder:
____________________________________
____________________________________
____________________________________
Telephone: ____________________________________
Fax: ____________________________________
Contact Person: ____________________________________
(3) Beneficial Ownership of Securities by Another Entity or Individual:
(a) Is another entity or individual the Beneficial Owner of any
Securities or Ordinary Shares or ADRs issued upon conversion
of any Securities?
/ / No (skip questions (b)-(e) below)
/ / Yes (answer questions (b)-(e) below)
(b) What is the full legal name of such Beneficial Owner?
_____________________________________________________________
(c) Is such Beneficial Owner a:
/ / Corporation / / General Partnership
/ / Individual / / Limited Partnership
/ / Other (please specify:____________________)
(d) In what state is such Beneficial Owner organized or domiciled?
_____________________________________________________________
(e) Please provide the name, address and telephone number of a contact
person for such Beneficial Owner.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
(4) Beneficial Ownership of Securities:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED IS NOT A
BENEFICIAL OWNER OF ANY SECURITIES OR ORDINARY SHARES OR ADRs ISSUED UPON
CONVERSION OF ANY SECURITIES.
(a) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) Beneficially Owned:
________________________________________ CUSIP No(s). of such
Registrable Securities: ______________________________
Number of shares of ADRs (if any) issued upon conversion of such
Registrable Securities: _______________________________
(b) Principal amount of Securities other than Registrable Securities
Beneficially Owned:
____________________________________________________________________
CUSIP No(s). of such other Securities:
____________________________________
Number of Ordinary Shares or ADRs (if any) issued upon conversion of
such other Securities:
_______________________________________________________
(c) Principal amount of Registrable Securities that the undersigned
wishes to be included in the Shelf Registration Statement:
________________________________ CUSIP No(s). of such Registrable
Securities to be included in the Shelf Registration Statement:
___________________________________________________________
Number of ADRs (if any) issued upon conversion of Registrable
Securities that are to be included in the Shelf Registration
State-ment:_____________
(5) Beneficial Ownership of Other Securities of the Company:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (5), THE UNDERSIGNED SELLING
SECURITYHOLDER IS NOT A BENEFICIAL OWNER OF ANY SECURITIES, ORDINARY
SHARES, ADRs OR ANY OTHER SECURITIES OF THE COMPANY, OTHER THAN THE
SECURITIES, ORDINARY SHARES AND ADRs LISTED ABOVE IN ITEM (4).
State any exceptions here:
(6) Relationships with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER NOR ANY OF
ITS AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL EQUITY HOLDERS (5% OR
MORE) HAS HELD ANY POSITION OR OFFICE OR HAS HAD ANY OTHER MATERIAL
RELATIONSHIP WITH THE COMPANY (OR ITS PREDECESSORS OR AFFILIATES) DURING
THE PAST THREE YEARS.
State any exceptions here:
(7) Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER INTENDS
TO DISTRIBUTE THE REGISTRABLE SECURITIES LISTED ABOVE IN ITEM (4) ONLY AS
FOLLOWS (IF AT ALL): SUCH REGISTRABLE SECURITIES MAY BE SOLD FROM TIME TO
TIME DIRECTLY BY THE UNDERSIGNED SELLING SECURITYHOLDER OR, ALTERNATIVELY,
THROUGH UNDERWRITERS, BROKER-DEALERS OR AGENTS WHO MAY RECEIVE DISCOUNTS,
CONCESSIONS OR COMMISSIONS FROM THE SELLING
STOCKHOLDER OR THE PURCHASER. SUCH REGISTRABLE SECURITIES MAY BE SOLD IN
ONE OR MORE TRANSACTIONS AT FIXED PRICES, AT PREVAILING MARKET PRICES AT
THE TIME OF SALE, AT PRICES RELATING TO THE PREVAILING MARKET PRICES AT
THE TIME OF SALE, AT VARYING PRICES DETERMINED AT THE TIME OF SALE, OR AT
NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN TRANSACTIONS (WHICH MAY
INVOLVE CROSSES OR BLOCK TRANSACTIONS) (i) ON ANY NATIONAL SECURITIES
EXCHANGE OR QUOTATION SERVICE ON WHICH THE REGISTERED SECURITIES MAY BE
LISTED OR QUOTED AT THE TIME OF SALE, (ii) IN THE OVER-THE-COUNTER MARKET,
(iii) IN TRANSACTIONS OTHERWISE THAN ON SUCH EXCHANGES OR SERVICES OR IN
THE OVER-THE-COUNTER MARKET, (iv) THROUGH THE WRITING OF OPTIONS, WHETHER
SUCH OPTIONS ARE LISTED ON AN OPTION EXCHANGE OR OTHERWISE, OR (iv)
THROUGH THE SETTLEMENT OF SHORT SALES. IN CONNECTION WITH SALES OF THE
REGISTRABLE SECURITIES OR OTHERWISE, THE SELLING SECURITYHOLDER MAY ENTER
INTO HEDGING TRANSACTIONS WITH BROKER-DEALERS OR OTHER FINANCIAL
INSTITUTIONS, WHICH MAY IN TURN ENGAGE IN SHORT SALES OF THE REGISTRABLE
SECURI-TIES IN THE COURSE OF HEDGING THE POSITIONS THEY ASSUME. THE
SELLING SECURITYHOLDER MAY ALSO SELL REGISTRABLE SECURITIES SHORT AND
DELIVER REGISTRABLE SECURITIES TO CLOSE OUT SUCH SHORT POSITIONS, OR LOAN
OR PLEDGE REGISTRABLE SECURITIES TO BROKER-DEALERS THAT IN TURN MAY SELL
SUCH SECURITIES.
State any exceptions here:
(8) Are you a Member, an affiliate of a Member, or a person associated with a
Member, of the National Association of Securities Dealers, Inc. (the
"NASD")?
Yes _____ No _____
If the answer to Question 8 is "yes", state (a) the name of any such NASD
Member, (b) the nature of your affiliation or association with such NASD
Member, (c) information as to such NASD Member's participation in any
capacity in the Offering or the original placement of the Securities, (d)
the number of shares of equity securities or face value of debt securities
of the Company owned by you, (e) the date such securities were acquired
and (f) the price paid for such securities.
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(9) If you answered "yes" to Question 8 above, please fill out the following
table with respect to any purchases from the Company or any of its
Affiliates in a private placement within twelve months prior to the date
hereof (excluding your purchase of the Shares).
Amount and Name of Price or Other
Date of Purchase Seller Securities Consideration
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Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M. The Selling Securityholder also acknowledges that it
understands that the answers to this Questionnaire are furnished for use in
connection with the Registration Statement and any amendments or supplements
thereto filed with the SEC pursuant to the Securities Act of 1933, as amended.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (9) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
The Selling Securityholder acknowledges that material misstatements and
omissions of material facts in the Registration Statement and any amendments or
supplement thereto may give rise to civil and criminal liabilities to the
Company and to each officer and director of the Company signing the Registration
Statement and to other persons signing such document. As a result, in accordance
with the Selling Securityholder's obligation under Section 3(a) of the
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) to the Company:
Durban Roodepoort Deep, Limited
DRD Building 00 Xxxxxx Xxxx, Xxxxxxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxx
X.X. Xxx 000 Xxxxxxxxxx 0000
Attention: Xxx Xxxxxx
(ii) with a copy to:
Xxxxxx Xxxxxxxxx Inc.
0xx Xxxxx, Xxxx Xxxxxx Xxxx,
Xxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxx
2146 Sandton
Attention: Xxxx Xxxxxx
and to:
Fulbright &Jaworski LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000-0000
Attention: Xxxxxx Xxxxxx
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the represen-tations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities Beneficially Owned by such Selling Securityholder and the Registrable
Securities listed in Item (3) above). This Agreement shall be governed in all
respects by the laws of the State of
New York.
I confirm that, to the best of my knowledge and belief, the foregoing
statements (including without limitation the answers to this Questionnaire) are
correct.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: __________________
------------------------------------------------
Selling Securityholder
(Print/type full legal name
of beneficial owner of Registrable Securities)
By:
----------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Fulbright & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000-0000
Attention: Xxxxxx Xxxxxx
APPENDIX 1
DEFINITIONS
For the purpose of this Questionnaire, the following definitions apply:
1. AFFILIATE. As used in Questions 1 - 7 and Question 9, a person is an
"Affiliate" of a person if such person controls, is controlled by, or is under
common control with, another person. Please assume that an "Affiliate" of the
Company includes without limitation, any 5% stock-holder of the Company
(including any person who owns, controls, or holds or holds an option to
acquire, and has the power to vote, 5% or more of the Company's outstanding
voting securities). "Control" is the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of an
entity, whether through the ownership of voting securities, by contract or
otherwise.
As used in Question 8 of this Questionnaire, an "affiliate" of an NASD
member has the following meaning:
(1) a company which controls, is controlled by or is under common control
with a member;
(2) the term affiliate is presumed to include, but is not limited to, the
following:
(a) a company will be presumed to control a member if the company
beneficially owns 10% or more of the outstanding voting
securities of a member which is a corporation, or beneficially
owns a partnership interest in 10% or more of the distributable
profits or losses of a member which is a partnership;
(b) a member will be presumed to control a company if the member and
persons associated with the member beneficially own (i) 10% or
more of the outstanding subordinated debt of a company, (ii) 10%
or more of the outstanding voting securities of a company which
is a corporation or (iii) a partnership interest in 10% or more
of the distributable profits or losses of a company which is a
partnership;
(c) a company will be presumed to be under common control with a
member if:
(i) the same natural person or company controls both the member
and company by beneficially owning 10% or more of the
outstanding voting securities of a member or company which
is a corporation, or by beneficially owning a partnership
interest in 10% or more of the distributable profits or
losses of a member or company which is a partnership; or
(ii) a person having the power to direct or cause the direction
of the management or policies of the member or the company
also has the power to direct or cause the direction of the
management or policies of the other entity in question.
2. BENEFICIAL OWNER. A "Beneficial Owner" of a security includes any person
who, directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has or shares voting power and/or investment power
with respect to such security. Voting power includes "the power to vote, or to
direct the voting, of such security" and investment power includes "the power to
dispose, or to direct the disposition, of such security."
A person is also a Beneficial Owner of a security if he has the right to
acquire beneficial ownership of such security, at any time within sixty days,
including but not limited to, any right to acquire through: (a) the exercise of
an option, warrant or right, (b) the conversion of a convertible security, (c)
the power to revoke a trust, discretionary account or similar arrangement, or
(d) the automatic termination of a trust, discretionary account or similar
arrangement; provided, however, that if the acquisition of an option, warrant,
right, convertible security or power described in (a), (b) or (c) is for the
purpose of maintaining or obtaining control over the issuer of the security, the
holder of the option, warrant, right, convertible security or power shall,
immediately upon such acquisition and regardless of when it is exercisable, be
deemed a beneficial owner of the underlying securities.
The possession of the legal power to vote and/or direct the disposition of
securities, absent unusual circumstances, will be sufficient to confer
beneficial ownership. Such power may be held directly, or indirectly, through
one or more controlled entities.
3. MATERIAL RELATIONSHIP. The term "material relationship" has not been
defined by the Securities and Exchange Commission (the "SEC"). The SEC, however,
is likely to construe as material any relationship which tends to impact arm's
length bargaining in dealings with a company, whether arising from a close
business connection, family relationship, a relationship of control or
otherwise. For example, you should conclude that you have such a relationship
with any organization of which you own, directly or indirectly, 10% more of the
outstanding voting stock, or in which you have some other substantial interest,
and with any person or organization with whom you have, or with whom any
relative (or any other person or organization as to which you have any of the
foregoing other relationships) has, a contractual relationship.
4. MEMBER. Rule 0120 of the NASD's Rules of Fair Practice defines the term
"member" to mean any individual, partnership, corporation or other legal entity
admitted to membership in the NASD, and Article l of the NASD's By-Laws defines
the term "person associated with a member" to mean every sole proprietor,
partner, officer, director, or branch manager of any member, or any natural
person occupying a similar status or performing similar functions, or any
natural person engaged in the investment banking or securities business who is
directly or indirectly controlling or controlled by such member (for example,
any employee), whether or not such person is registered or exempt from
registration with the NASD.
