 |
Home | Previous Page | |
|
||
 |
|
|
|
||
 |
|
|
|
|
|||||||||||||||
|
|
|||||||||||||||
|
|
Securities Act of 1934
|
Re: |
Offers by Harmony Gold Mining Company Limited for all Ordinary Shares, including |
Dear Mr. Basnage:
We are responding to your letter dated March 10, 2005 to Mauri L. Osheroff, Brian V. Breheny and Mara L. Ransom of the Division of Corporation Finance. A copy of your correspondence is attached. By doing this, we avoid having to recite or summarize the facts set forth in your letter. Each defined term in this letter has the same meaning as in your March 10, 2005 correspondence, unless otherwise indicated.
Based on the representations in your letter dated March 10, 2005, the staff of the Division of Corporation Finance will not recommend that the Commission take enforcement action if Harmony accepts and issues instructions to commence settling tendered Gold Fields securities as soon as practicable after the last of the Further Conditions (which is expected to be the Competition Condition) has been satisfied, even if prior to the scheduled expiration of the Initial Offering Period (as then extended), as at that point the Further Offers will have become unconditional for purposes of the Code. In issuing this no-action position, we specifically note Harmony's undertaking to provide adequate disclosure and notice of the possible early termination of the Initial Offering Period upon satisfaction of the Competition Condition and Harmony's representation that proceeding with the Further Offers in this manner is necessary to ensure compliance with the Code.
The foregoing no-action position is based solely on the representations and the facts in your letter dated March 10, 2005, as supplemented by telephone conversations with the Commission staff. The relief is strictly limited to the application of the rules outlined in your letter to the Further Offers. You should discontinue the Further Offers pending further consultations with the staff if any of the facts or representations set forth in your letter change.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Sections 9(a), 10(b) and 14(e) of the Exchange Act and Rule 10b-5 thereunder. The participants in the Further Offers must comply with these and any other applicable provisions of the federal securities laws. The Division of Corporation Finance express no view on any other questions that may be raised by the proposed Further Offers, including but not limited to, the adequacy of disclosure concerning, and the applicability of any other federal or state laws to, the Further Offers.
Sincerely,
Brian V. Breheny
Chief
Office of Mergers & Acquisitions
Division of Corporation Finance
March 10, 2005
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
United States
Attention: |
Mauri L. Osheroff, Esq., Associate Director, Division of Corporation Finance |
Re: |
Offers by Harmony Gold Mining Company Limited for any and all ordinary shares, including ordinary shares represented by ADSs, of Gold Fields Limited |
Dear Ms. Osheroff, Mr. Breheny and Ms. Ransom:
We are writing on behalf of our client, Harmony Gold Mining Company Limited, a corporation organized under the laws of the Republic of South Africa ("Harmony"), in connection with its Further Offers (as defined below) to acquire all of the issued and outstanding ordinary shares, nominal value Rand 0.50, of Gold Fields Limited, a corporation organized under the laws of the Republic of South Africa ("Gold Fields"), first announced by Harmony on October 18, 2004.
We refer to our letter dated November 19, 2004 (the "November Letter") to Ms. Osheroff, Mr. Breheny, Ms. Ransom and Mr. James A. Brigagliano, which sets forth additional information about Harmony, Gold Fields and the Offers (as defined below) and pursuant to which the Securities and Exchange Commission (the "Commission") granted certain exemptions from the Securities Exchange Act of 1934, as amended ("Exchange Act"), and rules adopted by the Commission thereunder, and the staff ("Staff") of the Commission indicated that it would not recommend enforcement action pursuant to such rules in connection with the Offers.
We hereby respectfully request that the Staff confirm that it will not recommend enforcement action in respect of the expiration of the Initial Offering Period (as defined below) and settlement of tendered Gold Fields securities upon satisfaction or, to the extent permitted, waiver of all of the Further Conditions (as defined below), but prior to the scheduled expiration of the Initial Offering Period, as extended, so long as (i) the Further Offers have been open for at least 20 U.S. business days, (ii) each of the Further Conditions has been satisfied or, to the extent permitted, waived, and (iii) adequate disclosure as to the possibility of the expiration of the Initial Offering Period and settlement of tendered Gold Fields securities prior to the scheduled expiration date of the Initial Offering Period has been given to Gold Fields security holders and such disclosure advises Gold Fields security holders as to action to be taken in connection therewith.
Background
On December 3, 2004, Harmony filed with the Commission a registration statement on Form F-4 (as amended from time to time, the "Further Registration Statement") (File no. 333-120975) and a tender offer statement on Schedule TO in connection with the Further Offers. Harmony commenced the Further Offers in accordance with (i) the South African Securities Regulation Code on Takeovers and Mergers and the Rules of the South African Securities Regulation Panel ("SRP") (collectively, the "Code") on December 2, 2004 and (ii) the Exchange Act and rules adopted by the Commission thereunder on December 3, 2004.
Pursuant to the terms of its Further Offers, in connection with its efforts to acquire the entire issued and outstanding ordinary share capital of Gold Fields (including Gold Fields ordinary shares represented by Gold Fields American depositary shares ("ADSs")), Harmony is offering to exchange:
The Gold Fields ordinary shares (including the Gold Fields ordinary shares represented by Gold Fields International Depositary Shares ("IDSs")) and the Gold Fields ADSs are referred to collectively in this Letter as the "Gold Fields securities".
As more fully described in the November Letter, Harmony's proposed acquisition of the entire issued and outstanding share capital of Gold Fields (including Gold Fields ordinary shares represented by Gold Fields ADSs) is being made in two temporally distinct transactions to facilitate conflicting South African and U.S. regulatory requirements. In the first transaction (the "Initial Offers"), Harmony made offers for 34.9% of the entire issued and outstanding ordinary share capital of Gold Fields (including Gold Fields ordinary shares represented by Gold Fields ADSs). As a result of the Initial Offers, Harmony acquired 56,606,246 Gold Fields ordinary shares (including Gold Fields ordinary shares represented by Gold Fields ADSs) or approximately 11.5% of the entire issued and outstanding ordinary share capital of Gold Fields. In the second transaction (the "Further Offers"), Harmony is making offers for the entire issued and outstanding ordinary share capital of Gold Fields (including Gold Fields ordinary shares represented by Gold Fields ADSs) not currently held by Harmony. The Initial Offers and the Further Offers are referred to as the "Offers" in our Letter.
The Further Offers comprises two separate offers:
Availability of Tier II Relief
In order for Harmony to qualify for exemptive relief under Rule 14d-1(d) under the Exchange Act ("Tier II Relief"), among other conditions, holders who are resident in the United States ("U.S. holders") must not hold more than 40% of the outstanding Gold Fields securities. Gold Fields' public disclosure in its 2004 Form 20-F indicated that as of June 30, 2004, 109 record holders of Gold Fields' ordinary shares, holding an aggregate of 152,963,006 ordinary shares (or 31.1% of Gold Fields' total outstanding ordinary share capital), were listed as having addresses in the United States. Information provided on the register maintained by STRATE Ltd. ("STRATE"), which acts as South Africa's central securities depositary, as of November 26, 20041 indicated that 26.9% of Gold Fields' ordinary shares were held by persons with U.S. addresses. Of this figure, Harmony's adviser, HSBC Bank plc, estimates that approximately 19.4% of Gold Fields ordinary shares are currently held by The Bank of New York as depositary for Gold Fields American Depositary Receipt program, as of record or beneficially, for persons with U.S. addresses. (Gold Fields' 2004 Annual Report states that as at June 30, 2004, approximately 18.7% of Gold Fields securities were held in the form of ADSs.) On the basis of Schedule 13D filings, one investor, MMC Norilsk Nickel, a company organized under the laws of the Russian Federation ("Norilsk"), holds approximately 20.0% of the outstanding ordinary shares of Gold Fields. As a result of the Initial Offers, Harmony holds approximately 11.5% of the outstanding ordinary shares of Gold Fields.
Gold Fields has not provided comprehensive information as to the beneficial ownership of the Gold Fields securities as at any date. We have been advised by Harmony's adviser, HSBC Bank plc, that the STRATE register is principally a list of record holders, provided that beneficial owners may elect to flag their holdings on the STRATE register in order to receive shareholder communications electronically. In addition, the JSE Securities Exchange South Africa (the "JSE") does not maintain records of beneficial ownership of securities that trade on the JSE, nor is such information readily available from public sources to Harmony or its advisers.2 Subsequent to commencement of the Further Offers, Harmony requested information covering Gold Fields and its security holders (including beneficial ownership information). On December 20, 2004 Gold Fields provided Harmony with Gold Fields' STRATE register. We note that this register does not contain comprehensive information as to the beneficial ownership of Gold Fields securities.
Harmony does not have sufficiently reliable data on the basis of publicly available information and the other materials provided by Gold Fields to conclude that the percentage of Gold Fields securities held by U.S. holders as of a date "30 days before the commencement of the tender offer" is less than 40% of the total number of outstanding Gold Fields securities held by holders of less than 10% of Gold Fields' securities (as the instructions to paragraphs (c) and (d) of Rule 14d-1 under the Exchange Act provide). Furthermore, the information as to Gold Fields securities provided by Gold Fields does not permit Harmony to calculate "record ownership" in accordance with Rule 12g3-2(a) under the Exchange Act, as is specified in the instructions to paragraphs (c) and (d) of Rule 14d-1.
Harmony is unable to rely on the presumption to Instruction 3 to Rule 14d-1(d) because its adviser, HSBC Bank plc, has advised that aggregate trading volume of Gold Fields securities on all U.S. national securities exchanges and other trading markets in the United States as a percentage of the worldwide aggregate trading for Gold Fields securities in the 12-calendar-month period ending 30 days before December 3, 2004 was approximately 47.2%.
Even if Gold Fields were to provide Harmony with information concerning the holdings of Gold Fields securities by U.S. holders (and, in particular, information that would allow Harmony to calculate U.S. ownership using the "method of calculating record ownership in Exchange Act Rule 12g3-2(a)") Harmony does not believe that it will be able to obtain such information as at and for such dates as would permit Harmony to determine that it can rely on the Tier II exemption in Rule 14d-1(d)(2). This is because even if Gold Fields cooperates fully with Harmony's request, it is practically impossible in South Africa to obtain information as to U.S. beneficial ownership on the precise date "as of 30 days before the commencement" of a tender or exchange offer, as required to establish eligibility for the Tier II exemption.
For the reasons set forth above, Harmony is therefore unable to conclude that it is eligible for Tier II Relief.
Description of the Further Offers
As described above, Harmony has structured its proposed acquisition of Gold Fields as two temporally separate tender offers: the Initial Offers and the Further Offers. The Initial Offers were made for 34.9% of the entire issued and outstanding ordinary share capital of Gold Fields (including Gold Fields ordinary shares represented by Gold Fields ADSs) and expired on November 26, 2004. As a result of the Initial Offers, Harmony acquired approximately 11.5% of the entire issued and outstanding ordinary share capital of Gold Fields. The Further Offers are being made for the entire issued and outstanding ordinary share capital of Gold Fields (including Gold Fields ordinary shares represented by Gold Fields ADSs) not currently held by Harmony and have already commenced.
The Further Offers comprise the Further U.S. Offer and the Further South African Offer. Offers and sales by Harmony of Harmony ordinary shares (including Harmony ordinary shares represented by Harmony ADSs) issued in the Further U.S. Offer are being made by means of a U.S. prospectus (the "Further U.S. Prospectus"), which constitutes Harmony's prospectus under Section 5 of the United States Securities Act of 1933, as amended, as well as Harmony's offer to purchase/exchange under the Exchange Act. Offers by Harmony to exchange Gold Fields securities for Harmony ordinary shares issued in the Further South African Offer are being made by means of a further South African circular (the "Further South African Circular"). The Further South African Circular is not being distributed in the United States or to U.S. persons (as that term is used in Regulation S under the Securities Act).
The Further Offers are structured so as to be conducted in accordance with (i) the U.S. federal securities laws, including Regulations 14D and 14E under the Exchange Act, except to the extent of any exemptive relief granted pursuant to this Letter and the November Letter, and (ii) the Code, which provides for the regulation of South African tender and exchange offers, and applicable South African laws and regulations. The Code provides a comprehensive scheme for the regulation of South African tender and exchange offers. We have been advised by Cliffe Dekker, Inc. that the Code is largely based on the U.K. City Code on Takeovers and Mergers. As described in the November Letter, in order to comply with Rule 14d-7 under the Exchange Act, Harmony has structured the Further Offers so as to provide all tendering Gold Fields security holders with the right to withdraw any Gold Fields securities tendered during the Initial Offering Period.
Further Conditions
The conditions. The Further Offers are subject to the following conditions (collectively, the "Further Conditions"): (i) receipt of acceptances representing in excess of 50.0% of the entire issued and outstanding ordinary share capital of Gold Fields (including those Gold Fields ordinary shares accepted by Harmony in the Initial Offers) (the "Acceptance Condition"), (ii) the transaction pursuant to which IAMGold Corporation Inc. ("IAMGold") would acquire substantially all of Gold Fields' net cash resources and all of Gold Fields' mining, development and exploration assets located outside of the Southern African Development Community in exchange for shares of IAMGold not being implemented for whatever reason, including, inter alia, Gold Fields security holders failing to approve the proposed transaction at the Gold Fields extraordinary general meeting (the "IAMGold Condition"); (iii) the grant of merger clearance from South African competition authorities pursuant to the South African Competition Act 1998 (the "Competition Act") (the "Competition Condition"), (iv) declaration of effectiveness by the Commission of Harmony's Further Registration Statement ("Further Effectiveness Condition") and (v) the approval of all regulatory authorities whose approval is required for the implementation of the Further Offers other than from South African competition authorities, if any (the "Applicable Regulatory Condition"). Harmony will not be obligated to purchase any tendered Gold Fields securities pursuant to the Further Offers unless the Further Conditions have been satisfied or, to the extent permitted, waived.
Time for satisfaction. Pursuant to rule 28.6 of the Code, except with the consent of the SRP, the Acceptance Condition must be satisfied or waived no later than the sixtieth calendar day after the date on which the Further South African Circular was posted, i.e., no later than 5:00 p.m. South African time, 10:00 a.m. New York City time, on January 31, 2005. Pursuant to rule 28.7 of the Code, except with the consent of the SRP, all Further Conditions other than the Acceptance Condition must be satisfied or waived no later than 21 calendar days after the latter of (i) the date on which the Acceptance Condition is satisfied or waived and (ii) the date on which the Further Offers were originally scheduled to expire (February 4, 2005), i.e., no later than 12:00 noon, South African time, 5:00 a.m., New York City time, on February 25, 2005. As described below under "Extension of the Initial Offering Period", the SRP granted Harmony relief under rule 28.7 of the Code extending the time permitted for Harmony to satisfy the Competition Condition until March 18, 2005.3 The SRP also granted Harmony relief under rule 28.7 of the Code extending the time permitted for Harmony to satisfy the Effectiveness Condition and the Applicable Regulatory Condition until March 18, 2005. On March 1, 2005, applied for relief under rule 28.7 of the Code to extend the time permitted for satisfaction of the Competition Condition to May 23, 2005 (one South African business day after the latest date on which the Competition Tribunal is expected to rule). On March 9, 2005 the SRP granted such relief. The consequence of any Further Condition not being satisfied or waived on or prior to time set for its satisfaction or waiver is that the Further Offers would lapse, unless the SRP grants one or more further extensions.
Status of Further Conditions. The IAMGold Condition was deemed to be satisfied on December 7, 2004. As described below, Harmony waived the Acceptance Condition on January 27, 2005.4 Harmony has concluded that other than the grant of merger clearance from the South African competition authorities, no other regulatory approval is currently applicable and, accordingly, the Applicable Regulatory Condition is deemed to have been satisfied. The Commission granted its order of effectiveness in relation to the Further Registration Statement at 5.30 p.m., New York City time, on February 28, 2005 and the Further Effectiveness Condition was deemed satisfied at such time. To date, only the Competition Condition remains unsatisfied. The Competition Condition must be satisfied on or prior to 12:00 noon, South African time, 5:00 a.m., New York City time, May 23, 2005. As described in the November Letter, Harmony has irrevocably undertaken not to waive the Further Effectiveness Condition and is not permitted under South African law5 to waive the Competition Condition.
Extension of the Initial Offering Period
The South African Competition Commission ("Competition Commission") concluded its assessment of Harmony's Further Offers and reported its findings in writing to the South African Competition Tribunal ("Competition Tribunal") on February 11, 2005.6 On February 15, 2005, the Competition Tribunal indicated that it would hold a pre-hearing to consider Harmony's Further Offers on February 25, 2005 (the "Pre-hearing Date"). Upon conclusion of the pre-hearing, the Competition Tribunal indicated on February 25, 2005 that it would hold a public hearing in order to consider the Further Offers on May 3, 4, 5 and 6, 2005 (collectively, the "Hearing Date"). After completion of the public hearing, the Competition Tribunal will, within ten South African business days of the Hearing Date, issue a certificate (i) approving the Further Offers, (ii) approving the Further Offers subject to specified conditions7 or (iii) enjoining the Further Offers. The final ruling of the Competition Tribunal is therefore expected to occur between May 6, 2005 and May 20, 2005.
The Further South African Offer commenced on December 2, 2004 and the Further U.S. Offer commenced on December 3, 2004; both Further Offers are currently pending. The initial offering period of the Further Offers was originally scheduled to expire on February 4, 2005, which is in excess of the 20 U.S. business days required by Rule 14e-1 under the Exchange Act and the 21 calendar days required by rule 28.1 of the Code. On January 14, 2005 Harmony applied for relief under rule 28.7 of the Code to extend the time permitted for satisfaction of the Competition Condition to March 18, 2005. On January 25, 2005 the SRP granted Harmony such relief. Accordingly, Harmony elected to extend the Initial Offering Period voluntarily until 12:00 noon, South African time, 5:00 a.m., New York City time, on March 18, 2005, in accordance with the Code and the Exchange Act, in order to permit further time for the Competition Condition to be satisfied and to ensure that the Further Offers would not lapse on February 4, 2005. On March 1, 2005, applied for further relief under rule 28.7 of the Code to extend the time permitted for satisfaction of the Competition Condition to May 23, 2005. On March 9, 2005 the SRP granted Harmony such relief. Accordingly, Harmony elected to extend the Initial Offering Period voluntarily until 12:00 noon, South African time, 5:00 a.m., New York City time, on May 20, 2005 (the latest date on which the Competition Tribunal is expected to rule), in accordance with the Code and the Exchange Act, in order to permit further time for the Competition Condition to be satisfied and to ensure that the Further Offers would not lapse on March 18, 2005. If the Competition Tribunal does not rule on May 20, 2005, Harmony may once again voluntarily extend the Initial Offering Period in accordance with the Code and the Exchange Act. In this Letter, the "Initial Offering Period" refers to the period from December 3, 2004 until May 20, 2005, unless such period is extended again, in which case, the term shall be construed accordingly.
While it is anticipated that the Competition Tribunal will provide its ruling on or about the time of expiration of the Initial Offering Period, as subsequently extended (and that the Competition Condition and all other Further Conditions would then be satisfied), it is possible that the Competition Tribunal could rule after this date (in which case the Further Offers would lapse, unless the Initial Offering Period has been extended accordingly) and it is also possible that the Competition Tribunal could rule before this date. As such, while it is possible that Gold Fields securities tendered into the Further Offers will be accepted on the last day of the Initial Offering Period, as subsequently extended, if the Competition Tribunal rules earlier and if all other Further Conditions have then been satisfied or, to the extent permitted, waived, then, as a matter of South African law, acceptance and settlement could precede the date set for expiration of the Initial Offering Period.
As described in the November Letter, as soon as the Initial Offering Period terminates, Harmony will, in accordance with South African market practice, provide for a subsequent period (the "Subsequent Offering Period") in compliance with Rule 14d-11 under the Exchange Act affording Gold Fields security holders further opportunity to tender their Gold Fields securities. As described in the November Letter, Gold Fields security holders will not have withdrawal rights during the Subsequent Offering Period.
Relief Requested
Requirements of the Code. Pursuant to rule 28.8 of the Code, Harmony is required to accept and commence settling tendered Gold Fields securities within seven calendar days (in most cases, five South African business days) of the date on which the Further Offers become or have been declared unconditional. As a matter of South African market practice and in order to ensure satisfaction of rule 28.8, an offeror would typically accept and issue instructions to settle, tendered securities shortly after satisfaction of the last offer condition. Harmony therefore intends to accept and issue instructions to commence settling tendered Gold Fields securities as soon as practicable after the last of the Further Conditions (which is expected to be the Competition Condition) has been satisfied, even if prior to the scheduled expiration of the Initial Offering Period (as then extended), as at this point the Further Offers will have become unconditional for purposes of the Code.
In addition to ensuring Harmony's compliance with the Code, early termination of the Initial Offering Period in these circumstances eliminates the uncertainty that would otherwise prevail if the Further Offers were to be treated as if they were still conditional, when in fact, they were not and enables accepting Gold Fields security holders to receive their offer consideration on the earliest possible date. Furthermore, unless Harmony is permitted to accept and commence settling tendered Gold Fields securities shortly after the time at which the last Further Condition is satisfied, there is a substantial risk that it will be unable to comply with rule 28.8 of the Code, which requires that consideration be given to tendering security holders within seven calendar days of the Further Offers becoming or being declared unconditional. Harmony's ability to comply with rule 28.8 is further limited by the presence of withdrawal rights during the Initial Offering Period, which are not customary in South Africa or envisaged by the Code, and will likely require Harmony to defer issuing settlement instructions until the last possible moment in order to take into account withdrawals that may occur immediately prior to the time at which the Competition Tribunal rules.
Regulations 14D and 14E. Regulations 14D and 14E under the Exchange Act are designed to ensure that security holders in a tender offer have appropriate information about the terms of the offer and sufficient time to consider such information in deciding whether or not to tender, sell in the market, or hold their securities.8 Rules 14d-4(d) and 14d-6(c) under the Exchange Act together require that material changes in the information published, sent or given to security holders be disclosed to the target's security holders, that such information be disseminated "in a manner reasonably designed to inform security holders of such change" and that a tender offer be held open for a specified minimum period so as to permit security holders sufficient time to consider and react to the new information.
Harmony does not believe that satisfaction of the Competition Condition would constitute a material change to the Further Offers.9 However, in order to ensure that Gold Fields security holders are informed of developments in the Further Offers relating to the Competition Condition "in a manner reasonably designed to inform security holders of such change", Harmony will disclose to Gold Fields security holders the status of satisfaction of the Competition Condition as soon as practicable on or after the Pre-hearing Date10 and again on the first day of the Hearing Date via a press release reasonably designed to inform security holders in the United States, South Africa and elsewhere. Such press release will disclose (i) the date on which the Competition Tribunal is expected to rule and any other material information relating to the Competition Condition, to the extent known, (ii) Gold Fields security holders' continuing right to withdraw any Gold Field securities tendered into the Further Offers, (iii) the fact that any such tendered Gold Fields securities will be accepted and settled shortly after satisfaction of the Competition Condition, that Gold Fields security holders' right to withdraw their tenders will expire at such time and, accordingly, that Gold Fields security holders should withdraw their tenders as soon as possible if they no longer wish to accept Harmony's offer and (iv) the fact that immediately following satisfaction of the Competition Condition the Subsequent Offering Period will commence, during which time the Further Offers would remain open for tenders, but no withdrawal rights would apply. In addition, Harmony will issue a press release (the "Settlement Release") reasonably designed to inform security holders in the United States, South Africa and elsewhere as promptly as practicable upon satisfaction of the Competition Condition. Such press release will summarize the Competition Tribunal's ruling. To the extent practicable in the circumstances and as expressly permitted by the SRP, Harmony would also defer for a period of 24 hours the settlement of tendered Gold Fields securities and advise Gold Fields security holders by means of the Settlement Release to withdraw their tenders immediately if they no longer wish to tender their Gold Fields securities into the Further Offers.
As discussed above, the Pre-hearing Date was February 25, 2005. The Competition Tribunal indicated that the Hearing Date is May 3, 4, 5 and 6, 2005. Pursuant to the Competition Act, the Competition Tribunal must provide its ruling (with the result that the Competition Condition will be satisfied or the Further Offers will lapse) within ten South African business days of the Hearing Date. In other words, Harmony anticipates that it will give Gold Fields security holders notice as to developments in the Further Offers relating to the Competition Condition (i) 70 calendar days prior to Hearing Date, (ii) up to thirteen South African business days prior to the date on which the Competition Condition is satisfied and (iii) again on the date on which the Competition Condition is satisfied.
We hereby respectfully request that the Staff confirm that it will not recommend enforcement action in respect of the expiration of the Initial Offering Period and settlement of tendered Gold Fields securities upon satisfaction or, to the extent permitted, waiver of all of the Further Conditions, but prior to the scheduled expiration of the Initial Offering Period, as extended, so long as (i) the Further Offers have been open for at least 20 U.S. business days, (ii) each of the Further Conditions has been satisfied or, to the extent permitted, waived, and (iii) the disclosure outlined in this Letter as to (a) the possibility of expiration of the Initial Offering Period and settlement of tendered Gold Fields securities prior to the scheduled expiration date of the Initial Offering Period, (b) the status of the satisfaction of the Competition Condition and (c) the action to be taken by Gold Fields security holders in connection therewith, has been made available to Gold Fields security holders.
We believe that settlement on this basis is consistent with the position taken by the Staff in Amerada Hess Corporation Offer for Shares and ADSs of LASMO plc (December 13, 2000); Offer by RWE Aktiengesellschaft for Innogy Holdings plc (March 22, 2002); Celltech Group plc for Oxford GlycoSciences plc (March 3, 2003); and SERENA Software, Inc. Offer for Shares and ADSs of Merant plc (April 13, 2004). We note that in the transactions described in these letters, tendering security holders were given notice as to the imminent reduction of the minimum tender condition and were given five U.S. business days to withdraw their tenders. Unlike the situation proposed by Harmony, however, each of these letters involved a material change to the offer.
Harmony proposes merely to accept and settle tendered securities upon satisfaction of the last Further Condition - the Competition Condition - a condition to the Further Offers that has existed since the commencement of the Further Offers, is disclosed in the Further U.S. Prospectus, the status of the satisfaction of which will be disclosed via numerous press releases and is entirely outside of the control of Harmony. Finally, we note that pursuant to the Code and in compliance with South African Market practice, in South Africa offerors in practice accept and settle tendered securities as soon as the offer becomes or is declared unconditional. While this practice differs from the practice in the United States, Harmony has undertaken extensive disclosure to bring this feature of the Further Offers to the attention of Gold Fields security holders.
We appreciate the Staff's consideration in these matters. Please do not hesitate to contact the undersigned at 011 44 20 7367 0200 with any questions regarding this matter.
Yours truly,
/s/ John M. Basnage
John M. Basnage
[Letterhead of Cliffe Dekker Attorneys]
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
United States
Our ref
Mr I K Hayes/bb/043670
Your ref
10 March 2005
Ladies and Gentlemen
We have acted as South African counsel to Harmony Gold Mining Company Limited ("Company") in connection with a registration statement on Form F-4 ("Registration Statement") filed with the United States Securities and Exchange Commission ("SEC") for the purpose of registering under the United States Securities Act of 1933, as amended ("Securities Act") approximately 408 million ordinary shares having a par value of R0.50 each, of the Company ("Company Shares"), including Company Shares to be represented by American Depositary Shares of the Company ("Company ADSs") (each Company ADS representing one Company Share) to be issued upon completion of the exchange offers for -
We have reviewed the "No Action" letter prepared by Hogan & Hartson dated today's date and confirm the descriptions of South African market practice and law contained therein.
The foregoing confirmation is limited to matters involving the laws of the Republic of South Africa and the matters expressly stated in this letter. No opinion shall be implied or inferred beyond the matters expressly stated in this letter.
The foregoing confirmation -
We consent to this letter being attached to the "No Action" letter referred to above.
Yours sincerely
/s/ Ian Hayes
IAN HAYES
CLIFFE DEKKER INC.
Direct Line: 290-7121
e-mail: hayes@cliffedekker.com
http://www.sec.gov/divisions/corpfin/cf-noaction/harmony031005.htm
| Home | Previous Page | Modified: 01/27/2006 |