exhibit41descriptionofea






                        DESCRIPTION OF THE COMPANY’S SECURITIES                          REGISTERED PURSUANT TO SECTION 12 OF THE                                SECURITIES EXCHANGE ACT OF 1934             As  of  March  31,  2020,  the  Company  has  two  classes  of  securities  registered  under  Section 12  of  the  Securities Exchange Act of 1934, as amended (the “Exchange Act”): (1) our Capital Stock and (2) our American  Depository Shares.                                  DESCRIPTION OF CAPITAL STOCK       We are a public company incorporated in South Africa with registration number 1995/013858/06.         The  following  description  is  a  summary  of  the  Company’s  share  capital  and  the  various  provisions  of  the  Company’s Memorandum of Incorporation, the South African Companies Act 71 of 2008 (“Companies Act”) and the  Listings Requirements of the JSE Limited (“JSE Listings Requirements”), which does not purport to be complete and  is qualified in its entirety by reference to all of the provisions of those sources.     Share Capital        The Company’s authorized share capital consists of:              1,000,000,000 ordinary shares, no par value, each ranking pari passu in all respects; and                           100,000,000 preference shares.    No preference shares are currently in issue and no specific preferences rights, limitations or other terms have been  determined for the preference shares.  The Company’s Board of Directors may from time to time, in accordance with  the Companies Act and the JSE Listings Requirements determine the preferences, rights, limitations or other terms of  the preference shares.   Voting Rights        Each shareholder is entitled to vote on any matter to be decided by the shareholders and to one vote in respect  of each share held in the case of a vote by means of a poll, and to vote at every general meeting or annual general  meeting, in person or by proxy.    Issuance of Additional Shares and Pre-emption Rights        The Company’s Board of Directors may resolve at any time to issue additional shares provided that:             the Company’s Board of Directors may only issue shares within the classes and to the extent that those shares            have been authorized by or in terms of the Memorandum of Incorporation;            pursuant  to  the  authorization  granted  by  shareholders  at  the  Company’s annual  general  meeting,  the         Company’s Board of Directors may only allot, and/or issue and/or dispose of such number of shares which         shall not exceed 10% of the Company’s issued share capital as from the date of passing of the resolution         authorizing the allotment, issue or disposal, less the aggregate number of shares, if any, held by the Company         and its subsidiaries, from time to time, as treasury shares;                  pursuant to a general authorization, the Company’s Board of Directors may only issue for cash additional         ordinary  shares  representing  up  to  5%  of  the  ordinary  shares  outstanding  at  the  time  of  the  general         authorization and not with a greater than 10% discount to the 30-day VWAP as of the issuance date; and             if the voting power of the class of shares that are issued or issuable as a result of the transaction or series of         integrated transactions will be equal to or exceed 30% of the voting power of all the shares of that class held         by shareholders immediately before that transaction or series of integrated transactions, the approval of the         shareholders by special resolution (i.e., a resolution supported by the holders of at least 75% of the voting         rights exercised on the resolution) will also be required.  





 






     Although holders of ordinary shares have no pre-emptive rights under the Companies Act, the JSE Listings  Requirements and our Memorandum of Incorporation require that any of our unissued equity securities must first be  offered to existing shareholders pro rata to their holdings of shares  unless these securities are issued (i) for the  acquisition of assets or (ii) upon receipt of shareholder approval. Subject to shareholder approval at the shareholder  meeting to be held prior to the completion of the offering, pre-emptive rights will not apply to shares deposited with  the depository for issuance of ADSs because this offering involves a specific issuance of shares for cash.    Variation of Rights   Subject to the provisions  of the Companies  Act, we may  from time to time, by way  of a special resolution of  shareholders (i.e., a resolution supported by the holders of at least 75% of the voting rights exercised on the resolution)  and an amendment to the Memorandum of Incorporation, vary the preferences, rights, limitations or other terms of  any shares (the ordinary shares); provided that if any amendment of the Memorandum of Incorporation relates to the  variation of any preferences, rights, limitation and other share terms attaching to any other class of shares already in  issue (i.e. the preference shares), that amendment must not be implemented without a special resolution of the holders  of the shares of that class at a separate meeting. In such instances, the holders of such shares will be allowed to vote  at the meeting of ordinary shareholders, subject to the provisions of the Memorandum of Incorporation dealing with  “affected shareholders.”   Distributions of Assets on Liquidation        If the Company is liquidated, shareholders are entitled to receive their proportionate share of the Company’s net  assets after the payment of creditors.   Changes in Capital or Objects and Powers        Subject to the provisions of the Companies Act and JSE Listings Requirements, the Company may from time  to time, by way of a special resolution of the shareholders (i.e., a resolution supported by the holders of at least 75%  of the voting rights exercised on the resolution) and an amendment to the Memorandum of Incorporation:             increase or decrease the number of authorized shares of any class of shares;             consolidate and reduce the number of issued and authorized shares of that class without an increase of its            capital;             subdivide its shares of any class by increasing the number of its issued and authorized shares of that class            without an increase of its capital;             reclassify any classified shares that have been authorized but not issued; or             classify any unclassified shares that have been authorized but not issued.   Rights of Minority Shareholders and Fiduciary Duties        Majority shareholders of South African companies have no fiduciary duties to minority shareholders. However,  the Companies Act provides certain relief and protection for minority shareholders, including access to the court in  instances where such minority shareholder has been unfairly prejudiced. The provisions of the Companies Act are  designed to provide some protection and relief for minority shareholders without overly restricting the powers of any  majority shareholder. There may also be common law personal actions available to a minority shareholder of a  company.        The fiduciary obligations of directors may differ from those in the United States and certain other countries. In  South Africa, the common law imposes on directors a duty to act with care, skill and diligence and a fiduciary duty to  conduct the company’s affairs honestly and in the best interests of the company. These common law fiduciary duties  have also been codified in the Companies Act and include acting in good faith and for a proper purpose.    General Meetings of Shareholders   The Company is required to convene an annual general meeting at least once in each calendar year, but not more than  fifteen months after the date of the previous annual general meeting. The Company’s Board of Directors is required  to call a meeting of shareholders if one or more demands are delivered to it and each such demand describes the 





 






specific purpose for which the meeting is proposed and, in the aggregate, demands for substantially the same purpose  are made by shareholders, as of the earliest time specified in any such demands, of at least 10% of the voting rights  entitled to be exercised in relation to the matter proposed to be considered at the meeting. All meetings (whether called  for the passing of special or ordinary resolutions) shall be called on not less than fifteen business days’ notice. Annual  general meetings may be held by way of electronic communication, but may not be held by way of signed written  resolutions.    Change of Control        Various transactions including, without limitation, those which result in a person or a group of persons acting  in concert, holding shares entitled to exercise or cause to be exercised 35% of more of the voting rights at meetings of  the Company’s shareholders,  will be subject to the Takeover Regulations, which are regulated by the Takeover  Regulation  Panel.  The  Takeover  Regulations  impose  various  obligations  in  such  circumstances  including  the  requirement of an offer to minority shareholders.         A transaction will be subject to the approval of the competition authorities in terms of the Competition Act 89  of 1998 (“Competition Act”) if it results in the acquisition of “control”, as defined in the Competition Act, and  otherwise falls within the scope of the Competition Act. The Competition Act prohibits a transaction falling within its  scope from being implemented without the necessary approvals.         To the extent applicable, a transaction may be subject to the JSE Listings Requirements as well as the approval  of the Exchange Control Department of the South African Reserve Bank, and other applicable regulatory bodies.         Certain  fundamental  transactions,  such  as  a  merger,  amalgamation,  scheme  of  arrangement  and  sale  of  a  majority of the company’s assets, require a special resolution of shareholders, and if 15% or more of shareholders  vote against such a resolution, any dissenting shareholder may, within five days, require the company, at its expense,  to obtain court approval before implementing the resolution. Even if less than 15% of the shareholders vote against  the resolution, any dissenting shareholder may apply to court for a review of the transaction.   Non-South African Shareholders        There are no limitations in the Memorandum of Incorporation or under South African law on the right of non- South African shareholders to hold or exercise voting rights attaching to any of the Company’s ordinary shares.    Amendment of the Memorandum of Incorporation        The Memorandum of Incorporation may only be amended by a special resolution approved by the shareholders,  or in compliance with a court order.    Differences in Corporate Law   You should be aware that the Companies Act, which applies to the Company, differs in certain material respects from  laws generally applicable to U.S. corporations and their shareholders. In order to highlight these differences, set forth  below is a summary of certain significant provisions of the Companies Act applicable to the Company which differ in  certain respects from provisions of the Delaware corporate law. As the following statements are summaries, they do  not address all aspects of South African law that may be relevant to the Company and its shareholders.   Duties of Directors        The fiduciary obligations of directors may differ from those in the United States. In South Africa, common law  imposes on directors a duty to act with care, skill and diligence and a fiduciary duty to conduct the company’s affairs  honestly and in the best interests of the company. These common law fiduciary duties have also been codified in the  Companies Act and require that when acting as a director, a person must exercise the powers and perform the functions  of a director:             in good faith and for a proper purpose;             in the best interests of the company; and             with the degree of care, skill and diligence that may reasonably be expected of a person:     





 






          carrying out the same functions in relation to the company as those carried out by that director; and                having the general knowledge, skill and experience of that director.         A director will be seen to have complied with these requirements, if the director has taken reasonably diligent  steps to become informed about the matter; had a rational basis for believing the decision was in the best interests of  the company; and either had no material financial interest in the matter (and had no reasonable basis to know that any  related person had a financial interest in the matter) or complied with the requirements of the Companies Act in  relation to disclosure of such interest and recusal from decisions relating to the matter.         A director is entitled to rely on one or more employees of the company whom the director reasonably believes  to be reliable and competent in the functions performed or the information, opinions, report or statements provided.  In addition, directors may rely on legal counsel, accountants or other professional persons where required.         Under Delaware law, the business and affairs of a corporation are managed by or under the direction of its board  of directors. In exercising their powers, directors are charged with a fiduciary duty of care to protect the interests of  the corporation and a fiduciary duty of loyalty to act in the best interests of its stockholders.         The duty of care requires that directors act in an informed and deliberative manner and inform themselves, prior  to making a business decision, of all material information reasonably available to them. The duty of care also requires  that directors exercise care in overseeing and investigating the conduct of corporate employees. The duty of loyalty  may be summarized as the duty to act in good faith, not out of self-interest, and in a manner which the director  reasonably believes to be in the best interests of the stockholders.         A  party  challenging  the  propriety  of  a  decision  of  a  board  of  directors  bears the burden  of  rebutting  the  applicability of the presumptions afforded to directors by the “business judgment rule”. If the presumption is not  rebutted, the business judgment rule attaches to protect the directors and their decisions, and their business judgments  will  not  be  second  guessed.  Where,  however,  the  presumption  is  rebutted,  the  directors  bear  the  burden  of  demonstrating the entire fairness of the relevant transaction. Notwithstanding the foregoing, Delaware courts subject  directors’ conduct to enhanced scrutiny in respect of defensive actions taken in response to a threat to corporate control  and approval of a transaction resulting in a sale of control of the corporation.     Indemnification of Directors and Officers        The Company may advance expenses to a director or directly or indirectly indemnify a director in respect of the  defense of legal proceedings or liability arising out of his service to the Company (or purchase insurance to protect  the Company or the director) save in certain instances including bad faith, actual knowledge that conduct was outside  the scope of the Memorandum of Incorporation or willful misconduct or willful breach of trust on the part of the  director.          Under Delaware law, a corporation may indemnify a director or officer of the corporation against expenses  (including  attorneys’  fees),  judgments, fines  and  amounts  paid in settlement  actually  and  reasonably  incurred in  defense of an action, suit or proceeding by reason of such position if (i) such director or officer acted in good faith  and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and  (ii) with respect to any criminal action or proceeding, such director or officer had no reasonable cause to believe  his/her conduct was unlawful.   Liability of Directors and Officers         South African law specifies a number of instances where a director may be held personally liable for his actions,  such as instances where he has breached his duties, where he has acted without authority (where he has knowledge of  his incapacity), where he has been party to any act or omission by the company despite knowing that the act or  omission was calculated to defraud a creditor, employee or shareholder of the company or had another fraudulent  purpose, as well as instances where he has been present at a meeting or participated in a decision and failed to vote  against the decision, which decision contravened the provisions of the Companies Act (including the solvency and  liquidity test).         Under  Delaware  law,  a  corporation  may  include  in  its  certificate  of  incorporation  provisions  limiting  the  personal liability of its directors to the corporation or its stockholders for monetary damages for many types of breach  of fiduciary duty. However, these provisions may not limit liability for any breach of the duty of loyalty, acts or 





 






omissions not in good faith or that involve intentional misconduct or a knowing violation of law, the authorization of  unlawful dividends, stock repurchases or stock redemptions, or any transaction  from which a director derived  an  improper personal benefit.   Interested Directors         The Companies Act requires that a director who has a personal financial interest in a matter to be considered at  a board meeting, or knows that a related person has a personal financial interest in the matter, must, amongst other  things, disclose the interest and its general nature, disclose any material information relating to the matter and known  to the director, and must recuse himself from the meeting and not take part in the consideration of the matter. Non- compliance with these requirements can, however, be ratified by an ordinary resolution of shareholders.         Under Delaware law, such transaction would not be voidable if (i) the material facts as to  such interested  director’s relationship or interests are disclosed or are known to the board of directors and the board of directors in  good faith authorizes the transaction by the affirmative vote of a majority of the disinterested directors, (ii) such  material facts are disclosed or are known to the stockholders entitled to vote on such transaction and the transaction  is specifically approved in good faith by vote of the majority of shares entitled to vote thereon or (iii) the transaction  is fair as to the corporation as of the time it is authorized, approved or ratified. Under Delaware law, such interested  director could be held liable for a transaction in which such director derived an improper personal benefit.    Committees of the Board of Directors         The  Companies  Act  provides  that,  except  to  the  extent  that  the  company’s  Memorandum  of  Incorporation  provides otherwise, the board of directors may appoint any number of committees of directors and delegate to any  committee any of the authority of the board. The Company’s Memorandum of Incorporation does not restrict this  provision  and the  Company  has a  number  of  committees,  including  an  Executive  Committee,  an  Audit  and  Risk  Committee, a Remuneration and Nominations Committee and a Social and Ethics Committee.         Delaware law allows the board of directors of a corporation to delegate many of its powers to committees, but  those committees may consist only of directors.   Voting Rights and Quorum Requirements        Under  South  African  law,  the  meeting,  voting  and  quorum  requirements  are  governed  by  a  company’s  memorandum  of  incorporation  and  the  Companies  Act,  except  in  certain  circumstances.  The  quorum  for  a  shareholders’ meeting to begin or for a matter to be considered, is at least three shareholders entitled to attend and  vote. In addition, a shareholders’ meeting may not begin and no matter may be decided until sufficient persons are  present to exercise, in aggregate, at least 25% of the voting rights. If a quorum is not achieved, the meeting will be  postponed by one week and if at the adjourned meeting, a quorum is still not achieved, those present will be deemed  to constitute a quorum.         For an ordinary resolution to be approved it must be supported by more than 50% of the voting rights exercised  in relation to such resolution. For a special resolution to be approved, it must be supported by the holders of at least  75% of the voting rights exercised in relation to such resolution. The Companies Act sets out a number of matters  where  the  approval  of  a  special  resolution  is  required  (e.g.,  amendment  of  the  company’s  memorandum  of  incorporation, granting of financial assistance, winding up of the company). Companies may add further matters to  this list specified in the Companies Act. In accordance with the provisions of the Companies Act and in compliance  with the JSE Listings Requirements, the Company has included a requirement that an increase or decrease in the  number of authorized shares and the classification and reclassification of shares may not be undertaken by the Board  of  Directors  and  requires  approval  of  75%  of  the  votes  represented,  of  our  shareholders.  Furthermore,  any  share  repurchase by the Company requires the same level of shareholder approval. In addition, JSE Listings Requirements  requires a special majority of 75% of the voting rights for an ordinary resolution relating to certain matters including  the issuance of equity securities for cash.          Shareholders are entitled to one vote on a show of hands, irrespective of the number of voting rights held, or  where voting takes place on a poll, the shareholders shall have such number of voting rights as equates to the securities  held by that shareholder. The  Company has  proposed to its shareholders for their approval  an  amendment  to the  Memorandum of Incorporation providing that all votes shall be taken by way of poll.    





 






     Under Delaware law, unless otherwise provided in the company’s certificate of incorporation, each stockholder  is entitled to one vote for each share of stock held by the stockholder. Delaware law provides that a majority of the  shares entitled to vote, present in person or represented by proxy, constitutes a quorum at a meeting of stockholders.  In  matters  other  than  the  election  of  directors,  with  the  exception  of  special  voting  requirements  related  to  extraordinary transactions, the affirmative vote of a majority of shares present in person or represented by proxy at  the meeting and entitled to vote is required for stockholder action, and the affirmative vote of a plurality of shares is  required for the election of directors.   Dividends        Under South African law, a company may not make any proposed distribution unless:             the distribution:                is pursuant to an existing legal obligation of the company, or a court order; or                the board of the company, by resolution, has authorized the distribution;             it reasonably appears that the company will satisfy the solvency and liquidity test (set out in the Companies            Act) immediately after completing the proposed distribution; and             the board, by resolution, has acknowledged that it has applied the solvency and liquidity test, and reasonably            concluded that the company will satisfy the test immediately after completing the proposed distribution.         Under  Delaware law, subject  to any  restrictions  contained  in the  company’s  certificate  of incorporation, a  company may pay dividends out of surplus or, if there is no surplus, out of net profits for the fiscal year in which the  dividend is declared and for the preceding fiscal year. Delaware law also provides that dividends may not be paid out  of net profits if, after the payment of the dividend, capital is less than the capital represented by the outstanding stock  of all classes having a preference upon the distribution of assets.   Amalgamations, Mergers and Similar Arrangements and Takeovers         Various transactions including, without limitation, those which result in a person or a group of persons acting  in concert, holding shares entitling the shareholder(s) to exercise or cause to be exercised 35% or more of the voting  rights at meetings of shareholders of the company, will be subject to the Takeover Regulations, which are regulated  by  the  Takeover  Regulation Panel.  The  Takeover  Regulations impose  various obligations in  such  circumstances  including the requirement of an offer to minority shareholders.         Two or more companies may amalgamate or merge under South African law, if upon the implementation of the  amalgamation or merger, each amalgamated or merged company will satisfy the solvency and liquidity test set out in  the Companies Act. The boards of each company are required to consider the solvency and liquidity test and if the  boards reasonably believe that each proposed amalgamated or merged company will satisfy the solvency and liquidity  test, the agreement may be submitted for consideration at a shareholders meeting. The amalgamation or merger will  need to be approved by way of special resolution of the shareholders and in certain circumstances, a compliance  certificate will need to be obtained from the Takeover Regulation Panel.         A transaction will be subject to the approval of the competition authorities in terms of the Competition Act if it  results in the acquisition of “control,” as defined in the Competition Act and otherwise falls within the scope of the  Competition Act. The Competition Act prohibits a transaction (falling within its ambit) from being implemented  without the necessary approvals.        To the extent applicable, a transaction may be subject to JSE listings requirements, as well as the approval of  the Exchange Control Department of the South African Reserve Bank, and other applicable regulatory bodies.         Certain  fundamental  transactions  (such  as  a  merger,  amalgamation,  scheme  of  arrangement  and  sale  of  a  majority of the company’s assets) require a special resolution of shareholders, and if 15% or more of shareholders  vote against such a resolution, any dissenting shareholder may (within five days) require the company, at its expense,  to obtain court approval before implementing the resolution. Even if less than 15% of the shareholders vote against  the resolution, any dissenting shareholder may apply to court for a review of the transaction.  





 






     Under Delaware law, with certain exceptions, a merger, consolidation or sale of all or substantially all the assets  of a corporation must be approved by the board of directors and a majority of the outstanding shares entitled to vote  thereon. Under Delaware law, a shareholder of a corporation participating in certain major corporate transactions may,  under certain circumstances, be entitled to appraisal rights pursuant to which such shareholder may receive payment  in the amount of the fair market value of the shares held by such shareholder (as determined by a court) in lieu of the  consideration such shareholder would otherwise receive in the transaction.         In respect of takeover transactions, under Delaware law, the board of directors may take defensive actions  against a takeover if the directors believe in good faith that the takeover is a threat to the company’s interests and if  the response is reasonable in light of the threat posed by the takeover. However, the board may not use such measures  for its own personal interests. For example, a board may institute defensive measures to allow it to negotiate a higher  price with the acquirer or prevent shareholders from being coerced into selling at a price which is clearly too low.  However, the board of directors may not use such measures just to keep itself in control of the company. This is  different from South African law, where the board of directors may not, without shareholder and Takeover Regulation  Panel approval, do anything which may result in the frustration of a genuine offer.         In addition, the completion of certain merger or acquisition arrangements above a statutory threshold level is  also subject to the receipt of competition and antitrust clearances in the United States. Under the Hart-Scott-Rodino  Antitrust Improvements Act of 1976, as amended, and the rules promulgated thereunder, such merger or acquisition  transactions  may  not  be  completed  until  notification  and  report  forms  have  been  filed  with  the  Federal  Trade  Commission and the Department of Justice and the applicable waiting periods have expired.   Shareholders’ Suits         Generally, shareholders in South Africa may not sue for wrongs suffered by the company (derivative actions)  and any such action would instead be implemented in the name of the company, under the direction of the board of  directors. The Companies Act does, however, afford shareholders (and certain other interested persons) the right to  serve a demand on the company to commence or continue legal proceedings, or take related steps, to protect the legal  interests of the company. Shareholders would also be entitled to sue in their own names for prejudices or wrongs that  they have suffered through the actions of the company and/or the directors.         A shareholder or a director may apply to court for relief if any act or omission of the company has had a result  that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, such person.         Further, even if a resolution (in relation to a fundamental transaction) has been adopted by way of a special  resolution, the company may not proceed to implement the resolution without the approval of a court if the resolution  was opposed by at least 15% of the voting rights that were exercised on that resolution and any person who voted  against the resolution has required the company to seek court approval; or the court, on an application by any person  who voted against the resolution, grants that person leave to apply to court for a review of the transaction.         In  certain  circumstances  (namely  resolutions  relating  to  the  alteration  of  the  company’s  memorandum  of  incorporation that prejudicially alter the rights of a particular class of shares, or any fundamental transaction, such as  a takeover or merger), the Companies Act allows dissenting shareholders to lodge a written objection to the resolution  prior to the vote being cast, and if the resolution is then adopted such shareholders may demand that the company pay  them the fair value for all of the shares of the company held by that person.         Delaware law generally allows a shareholder to sue for wrongs suffered by the company if the shareholder first  demands that the company sue on its own behalf and the company declines to do so, but allows the shareholder to. In  certain situations, such as when there are specific reasons to believe that the directors are protecting their personal  interests, the shareholder may sue directly without first making the demand.   Inspection of Corporate Records         Rights  of  access  to  information  (including  access  to  inspect  and  copy  the  company’s  memorandum  of  incorporation, directors’ reports, reports of annual meetings, notices and minutes of annual meetings and the securities  register) are granted to persons who hold or have a beneficial interest in any securities in South African companies,  under the Companies Act.         Delaware law permits any shareholder to inspect or obtain copies of a corporation’s shareholder list and its other  books and records for any purpose reasonably related to such person’s interest as a shareholder.  





 






Shareholder Proposals         The Companies Act provides that any two shareholders of a company may propose a resolution concerning any  matter in respect of which they are each entitled to exercise voting rights and may require that the resolution be  submitted to shareholders for consideration at a special meeting demanded in accordance with the provisions of the  Companies Act, at the next meeting of shareholders or by way of written vote.         Under Delaware law, a corporation’s bylaws may provide that if the corporation solicits proxies with respect to  an election of directors, it may be required, to the extent and subject to such procedures or conditions as may be  provided in the bylaws, to include in its proxy solicitation materials, in addition to individuals nominated by the board  of directors, one or more individuals nominated by a shareholder. Furthermore, the corporation’s bylaws may provide  for the reimbursement by the corporation of expenses incurred by a shareholder in soliciting proxies in connection  with an election of directors, subject to certain procedures and conditions. Delaware law does not include a provision  restricting the manner in which nominations for directors may be made by shareholders or the manner in which other  business may be brought before a meeting.   Calling of Special Shareholders’ Meetings    The board of directors of a company is required to call a shareholders meeting if one or more written and signed  demands for such meeting are delivered to the company, and each such demand described the specific purposed for  which the meeting is proposed; and in aggregate, demands for substantially the same purpose are made and signed by  holders of at least 10% of the voting rights entitled to be exercised in relation to the matter proposed to be considered  at the meeting.        Delaware law permits the board of directors or any person who is authorized under a corporation’s certificate  of incorporation or bylaws to call a special meeting of shareholders.   Staggered Board of Directors         In accordance with the Company’s Memorandum of Incorporation, no directors are appointed for life or for an  indefinite period and at least one-third of the non-executive directors retire by rotation each year and stand to re- election at the annual general meeting in accordance with the Memorandum of Incorporation.        Delaware law permits corporations to have a staggered board of directors.   Approval of Corporate Matters by Written Consent         Except in respect of annual general meetings or, in the case of a listed company, any meetings required in terms  of the JSE Listings Requirements, any matter that could be voted on by shareholders at a meeting may instead be  submitted for consideration to the shareholders entitled to vote thereon, and voted on in writing by the shareholders  within 20 business days thereafter.         In addition, South African company law also provides for electronic communication at shareholders’ meetings  and  for  meetings  to  be  conducted  entirely  by  way  of  electronic  communication;  provided  that  the  electronic  communication employed ordinarily enables all persons participating in the meeting to communicate concurrently  with each other without an intermediary, and to participate reasonably effectively in the meeting.         Delaware law permits shareholders to take action by the consent in writing by the holders of outstanding stock  having not less than the minimum number of votes that would be necessary to authorize or take such action at a  meeting of stockholders at which all shares entitled to vote thereon were present and voted.   Amendment of Constitutional Documents         Under South African law, a company’s memorandum of incorporation may only be amended by way of a special  resolution approved by the shareholders, or in compliance with a court order.         Under Delaware law, a company’s certificate of incorporation may be amended if the amendment is approved  by both the board of directors and the shareholders. Unless a different percentage is provided for in the certificate of  incorporation,  a  majority  of  the  voting  power  of  the  shareholders  of  the  corporation  is  required  to  approve  an  amendment. Under Delaware law, the certificate of incorporation may limit or remove the voting power of a class of  the  company’s  stock.  However,  if  the  amendment  would  alter  the  number  of  authorized  shares  or  par  value  or 





 






otherwise adversely affect the rights or preference of a class of stock, the holders of shares of that class are entitled to  vote, as a class, upon the proposed amendment, without regard to the restriction in the certificate of incorporation.  Additionally, Delaware law allows the bylaws of the corporation to be amended either by the shareholders or, if  allowed in the certificate of incorporation, by the board of directors.                                DESCRIPTION OF AMERICAN DEPOSITARY SHARES  American Depositary Shares        The Bank of New York Mellon,  as depositary, registered and delivered American  Depositary Shares,  also  referred to as ADSs. Each ADS represents 25 shares (or a right to receive 25 shares) deposited with the principal  Johannesburg office of any of Standard Bank of South Africa, FirstRand Bank Ltd or Societe Generale (ZA), as  custodian for the depositary. Each ADS will also represent any other securities, cash or other property which may be  held by the depositary. The depositary’s corporate trust office at which the ADSs will be administered is located at  101 Barclay Street,  New  York,  New  York 10286. The Bank of New York  Mellon’s  principal executive office is  located at One Wall Street, New York, New York 10286.         A person may hold ADSs either (A) directly (i) by having an American Depositary Receipt, also referred to as  an ADR, which is a certificate evidencing a specific number of ADSs, registered in that person’s name, or (ii) by  having ADSs registered in a person’s name in the Direct Registration System, or (B) indirectly by holding a security  entitlement in ADSs through a person’s broker or other financial institution. If a person holds ADSs directly, the  person is a registered ADS holder, also referred to as an ADS holder. This description assumes that a person is an  ADS holder. If a person holds the ADSs indirectly, that person must rely on the procedures of his/her broker or other  financial institution to assert the rights of ADS holders described in this section.         The Direct Registration System, or DRS, is a system administered by The Depository Trust Company, also  referred to as DTC, pursuant to which the depositary may register the ownership of uncertificated ADSs, which  ownership is confirmed by periodic statements sent by the depositary to the registered holders of uncertificated ADSs.         As an ADS holder, the Company will not treat a person as one of its shareholders and that person will not have  shareholder rights. South African  law governs shareholder rights. The depositary will be the holder of the shares  underlying the ADSs. As a registered holder of ADSs, a person will have ADS holder rights. A deposit agreement  among the Company, the depositary and the relevant person, as an ADS holder, and all other persons indirectly holding  ADSs sets out ADS holder rights as well as the rights and obligations of the depositary. New York law governs the  deposit agreement and the ADSs.         The following is a summary of the material provisions of the deposit agreement. For more complete information,  please read the entire deposit agreement and the form of ADR.    Dividends and Other Distributions   How will an ADS holder receive dividends and other distributions on the shares?        The depositary has agreed to pay to ADS holders the cash dividends or other distributions it or the custodian  receives on shares or other deposited securities, after deducting its fees and expenses. The ADS holder will receive  these distributions in proportion to the number of Shares that ASD holder’s ADSs represent.          Cash. The depositary will convert any cash dividend or other cash distribution the Company pays on the shares  into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is  not  possible  or  if  any  government  approval  is  needed  and  cannot  be  obtained,  the  deposit  agreement  allows  the  depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so. It will hold the  foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the  foreign currency and it will not be liable for any interest.         Before making a distribution, any withholding taxes, or other governmental charges that must be paid will be  deducted. The depositary will distribute only whole U.S. dollars and cents and will round fractional cents to the nearest  whole cent. If the exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, the  ADS holder may lose some or all of the value of the distribution.  





 






     Shares. The depositary may distribute additional ADSs representing any shares the Company distributes as a  dividend or free distribution. The depositary will only distribute whole ADSs. It will sell shares which would require  it to deliver a fractional ADS and distribute the net proceeds in the same way as it does with cash. If the depositary  does not distribute additional ADSs, the outstanding ADSs will also represent the new shares. The depositary may sell  a portion of the distributed shares sufficient to pay its fees and expenses in connection with that distribution.         Rights to purchase additional shares. If the Company offers holders of its securities any rights to subscribe for  additional shares or any other rights, the depositary may make these rights available to ADS holders. If the depositary  decides it is not legal and practical to make the rights available but that it is practical to sell the rights, the depositary  will use reasonable efforts to sell the rights and distribute the proceeds in the same way as it does with cash. The  depositary will allow rights that are not distributed or sold to lapse. In that case, the ADS holder will receive no value  for them.         If the depositary makes rights available to ADS holders, it will exercise the rights and purchase the shares on  the ADS holder’s behalf. The depositary will then deposit the shares and deliver ADSs to the persons entitled to them.  It will only exercise rights if the ADS holder pays it the exercise price and any other charges the rights require to be  paid.         U.S. securities laws may restrict transfers and cancellation of the ADSs represented by shares purchased upon  exercise of rights. For example, an ADS holder may not be able to trade these ADSs freely in the United States. In  this case, the depositary may deliver restricted depositary shares that have the same terms as the ADSs described in  this section except for changes needed to put the necessary restrictions in place.        Other  Distributions.  The  depositary  will  send  to  ADS  holders  anything  else  the  Company  distributes  on  deposited securities by any means it thinks is legal, fair and practical. If it cannot make the distribution in that way,  the depositary has a choice. It may decide to sell what the Company distributed and distribute the net proceeds, in the  same way as it does with cash. Or, it may decide to hold what the Company distributed, in which case ADSs will also  represent the newly distributed property. However, the depositary is not required to distribute any securities (other  than ADSs) to ADS holders unless it receives satisfactory evidence from the Company that it is legal to make that  distribution. The depositary may sell a portion of the distributed securities or property sufficient to pay its fees and  expenses in connection with that distribution.            The depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available  to any ADS holders. The Company has no obligation to register ADSs, shares, rights or other securities under the  Securities Act. The Company also has no obligation to take any other action to permit the distribution of ADSs, shares,  rights or anything else to ADS holders. This means that an ADS holder may not receive the distributions which the  Company makes on its shares or any value for them if it is illegal or impractical for the Company to make them  available to the ADS holder.    Deposit, Withdrawal and Cancellation   How are ADSs issued?        The depositary will deliver ADSs if the ADS holder or its broker deposits shares or evidence of rights to receive  shares with the custodian. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or  stock transfer taxes or fees, the depositary will register the appropriate number of ADSs in the names the ADS holder  requests and will deliver the ADSs to or upon the order of the person or persons that made the deposit.    How can ADS holders withdraw the deposited securities?        The ADS holder may surrender his/her ADSs at the depositary’s corporate trust office. Upon payment of its fees  and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will deliver  the shares and any other deposited securities underlying the ADSs to the ADS holder or a person the ADS holder  designates at the office of the custodian. Or, at the ADS holder’s request, risk and expense, the depositary will deliver  the deposited securities at its corporate trust office, if feasible.    How do ADS holders interchange between certificated ADSs and uncertificated ADSs?        The ADS holder  may surrender  his/her ADR to the depositary for the purpose of exchanging the ADR  for  uncertificated ADSs. The depositary will cancel that ADR and will send to the ADS holder a statement confirming 





 






that the ADS holder is the registered holder of uncertificated ADSs. Alternatively, upon receipt by the depositary of  a proper instruction from a registered holder of uncertificated ADSs requesting the exchange of uncertificated ADSs  for certificated ADSs, the depositary will execute and deliver to the ADS holder an ADR evidencing those ADSs.   Voting Rights    How do you vote?        ADS holders may instruct the depositary to vote the number of deposited shares their ADSs represent. The  depositary will notify ADS holders of shareholders’ meetings and arrange to deliver the Company’s voting materials  to them if the Company asks it to. Those materials will describe the matters to be voted on and explain how ADS  holders may instruct the depositary how to vote. For instructions to be valid, they much reach the depositary by a date  set by the depositary.    Otherwise, the ADS holder won’t be able to exercise the right to vote unless the shares are withdrawn. However, the  ADS holder may not know about the meeting enough in advance to withdraw the shares.         The  depositary  will  try,  as  far  as  practical,  subject  to  the  laws  of  South  Africa  and  of  the  Company’s  Memorandum of Incorporation or similar documents, to vote or to have its agents vote the shares or other deposited  securities as instructed by ADS holders. The depositary will only vote or attempt to vote as instructed or as described  in the following sentence. If the Company requests the depositary to solicit the ADS holder’s instructions but the  depositary does not receive instructions by the specified date, the depositary will give a discretionary proxy to a person  designated by the Company to vote the shares as to each matter to be voted on, unless the Company notifies the  depositary that (i) the Company does not wish to receive a proxy, (ii) substantial opposition to the matter exists or (iii)  the matter would materially and adversely affect the rights of holders of ADSs.         The Company cannot assure the ADS holders that they will receive the voting materials in time to ensure that  they can instruct the depositary to vote their shares. In addition, the depositary and its agents are not responsible for  failing to carry out voting instructions or for the manner of carrying out voting instructions. This means that the ADS  holder may not be able to exercise the right to vote and there may be nothing the ADS holder can do if the shares are  not voted as requested.       In order to give the ADS holders a reasonable opportunity to instruct the depositary as to the exercise of voting  rights relating to Deposited Securities, if the Company requests the depositary to act, the Company agrees to give the  depositary notice of any such meeting and details concerning the matters to be voted upon as soon as practicable in  advance of the meeting date.   Fees and Expenses                                                          Persons  depositing  or  withdrawing  shares  or  ADS  holders must pay:                                           For:  $5.00 (or less) per 100 ADSs (or portion of 100 ADSs) Issuance of ADSs, including issuances resulting from a                                                    distribution of shares or rights or other property                                                                                                         Cancellation of ADSs for the purpose of  withdrawal,                                                      including if the deposit agreement terminates                                                     $.05 (or less) per ADS                              Any cash distribution to ADS holders                                                     A fee equivalent to the fee that would be payable if securities Distribution  of  securities  distributed  to  holders  of  distributed to the holder had been shares and the shares had deposited  securities  which  are  distributed  by  the  been deposited for issuance of ADSs                 depositary to ADS holders                                                     $.05 (or less) per ADSs per calendar year           Depositary services                                                     Registration or transfer fees                     Transfer and registration of shares on the Company’s                                                   share register to or from the name of the depositary or                                                      its agent when you deposit or withdraw shares 





 






                                                   Expenses of the depositary                        Cable, telex  and  facsimile  transmissions  (when                                                    expressly provided in the deposit agreement)                                                                                                           Converting foreign currency to U.S. dollars                                                     Taxes and other governmental charges the depositary or the As necessary  custodian have to pay on any ADS or share underlying an  ADS,  for  example,  stock  transfer  taxes,  stamp  duty  or  withholding taxes                                                                                       Any  charges  incurred  by  the  depositary  or  its  agents  for As necessary  servicing the deposited securities                          The  depositary  collects  its  fees  for  delivery  and  surrender  of  ADSs directly  from  investors  depositing  shares or  surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees  for making distributions to investors by deducting those fees from the amounts distributed or by selling a portion of  distributable property to pay the fees. The depositary may collect its annual fee for depositary services by deduction  from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants  acting for them. The depositary may collect any of its fees by deduction from any cash distribution payable to ADS  holders that are obligated to pay those fees. The depositary may generally refuse to provide fee-attracting services  until its fees for those services are paid.         From time to time, the depositary may make payments to the Company to reimburse and / or share revenue from  the fees collected from ADS holders, or waive fees and expenses for services provided, generally relating to costs and  expenses arising out of establishment and maintenance of the ADS program. In performing its duties under the deposit  agreement, the depositary may use brokers, dealers or other service providers that are affiliates of the depositary and  that may earn or share fees or commissions.     Payment of Taxes        The ADS holder will be responsible for any taxes or other governmental charges payable on the ADSs or on the  deposited securities represented by any of the ADSs. The depositary may refuse to register any transfer of the ADS  holder’s ADSs or allow the withdrawal of the deposited securities represented by the ADSs until such taxes or other  charges are paid. It may apply payments owed to the ADS holder or sell deposited securities represented by the ADSs  to pay any taxes owed and the ADS holder will remain liable for any deficiency. If the depositary sells deposited  securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds,  or send to ADS holders any property, remaining after it has paid the taxes.    Reclassifications, Recapitalizations and Mergers                                                          If we:                                              Then:  Change the nominal or par value of our shares;    The  cash,  shares  or  other  securities  received  by  the                                                    depositary will become deposited securities. Each ADS  Reclassify,  split  up  or  consolidate  any  of  the  deposited will automatically represent its equal share of the new  securities;                                       deposited securities;                                                       Distribute securities on the shares that are not distributed to and,  the ADS holder; or,                                                                                    The depositary may distribute new ADSs representing  Recapitalize,  reorganize,  merge,  liquidate,  sell  all  or the new deposited securities or ask the ADS holder to  substantially all of the Company’s assets, or take any similar surrender  outstanding  ADRs  in  exchange  for  new  action                                              ADRs identifying the new deposited securities.  Amendment and Termination   How may the deposit agreement be amended?  





 






     The Company may agree with the depositary to amend the deposit agreement and the ADRs without the ADS  holders’  consent  for  any  reason.  If  an  amendment  adds  or  increases  fees  or  charges,  except  for  taxes  and  other  governmental charges or expenses of the depositary for registration fees, facsimile costs, delivery charges or similar  items, or prejudices a substantial right of ADS holders, it will not become effective for outstanding ADSs until 30  days after the depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, the  ADS holders are considered, by continuing to hold ADSs, to agree to the amendment and to be bound by the ADRs  and the deposit agreement as amended.    How may the deposit agreement be terminated?        The depositary will terminate the deposit agreement at the Company’s direction by mailing notice of termination  to the ADS holders then outstanding at least 30 days prior to the date fixed in such notice for such termination. The  depositary may also terminate the deposit agreement by mailing notice of termination to the Company and the ADS  holders if 60 days have passed since the depositary told the Company it wants to resign but a successor depositary has  not been appointed and accepted its appointment.          After termination, the depositary and its agents will do the following under the deposit agreement but nothing  else:  collect  distributions  on the  deposited securities,  sell  rights  and  other  property,  and  deliver  shares  and  other  deposited securities upon cancellation of ADSs. Four months after termination, the depositary may sell any remaining  deposited securities by public or private sale. After that, the depositary will hold the money it received on the sale, as  well as any other cash it is holding under the deposit agreement for the pro rata benefit of the ADS holders that have  not surrendered their ADSs. It will not invest the money and has no liability for interest. The depositary’s only  obligations will be to account for the money and other cash. After termination the Company’s only obligations will  be to indemnify the depositary and to pay fees and expenses of the depositary that the Company agreed to pay.   Limitations on Obligations and Liability    Limits on the Company’s Obligations and the Obligations of the Depositary; Limits on Liability to Holders of ADSs        The deposit agreement expressly limits the Company’s obligations and the obligations of the depositary. It also  limits the Company’s liability and the liability of the depositary. The Company and the depositary:             are only obligated to take the actions specifically set forth in the deposit agreement without negligence or bad            faith;             are not liable if the Company is or is prevented or delayed by law or circumstances beyond the Company’s           control from performing its obligations under the deposit agreement;             are not liable if the Company or it exercises discretion permitted under the deposit agreement;              are not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities         that is not made available to holders of ADSs under the terms of the deposit agreement, or for any special,         consequential or punitive damages for any breach of the terms of the deposit agreement;             have no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the deposit            agreement on the ADS holder’s behalf or on behalf of any other person; and             may rely upon any documents the Company believes or it believes in good faith to be genuine and to have            been signed or presented by the proper person.         In  the  deposit  agreement,  the  Company  and  the  depositary  agree  to  indemnify  each  other  under  certain  circumstances.    Requirements for Depositary Actions        Before  the  depositary  will  deliver  or  register  a  transfer  of  ADSs,  make  a  distribution  on  ADSs,  or  permit  withdrawal of shares, the depositary may require:            payment of stock transfer or other taxes or other governmental charges and transfer or registration fees charged            by third parties for the transfer of any shares or other deposited securities;     





 






       satisfactory proof of the identity and genuineness of any signature or other information it deems necessary;            and             compliance  with  regulations  it  may  establish,  from  time  to  time,  consistent  with  the  deposit  agreement,            including presentation of transfer documents.         The depositary may refuse to deliver ADSs or register transfers of ADSs generally when the transfer books of  the depositary or the Company’s transfer books are closed or at any time if the depositary or the Company think it  advisable to do so.    The ADS holder’s Right to Receive the Shares Underlying the ADS holder’s ADSs        ADS holders have the right to cancel their ADSs and withdraw the underlying shares at any time except:             when temporary delays arise because: (i) the depositary has closed its transfer books or the Company has         closed its transfer books; (ii) the transfer of shares is blocked to permit voting at a shareholders’ meeting; or         (iii) the Company is paying a dividend on its shares;             when the ADS holder owes money to pay fees, taxes and similar charges; or             when it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations            that apply to ADSs or to the withdrawal of shares or other deposited securities.        This right of withdrawal may not be limited by any other provision of the deposit agreement.    Pre-Release   The deposit agreement permits the depositary to deliver ADSs before deposit of the underlying shares. This is called  a pre-release of the ADSs. The deposit agreement permits the depositary to deliver shares before surrender of ADSs  if the shares are delivered to a South African bank. This is called a pre-release of the shares. Pre-release of ADSs and  pre-release of shares is referred to generally as pre-release. The depositary may also deliver shares upon cancellation  of pre-released ADSs (even if the ADSs are canceled before the pre-release transaction has been closed out). A pre- release of ADSs is closed out as soon as the underlying shares are delivered to the depositary. The depositary may  receive ADSs instead of shares to close out a pre-release of ADSs. The depositary may pre-release only under the  following conditions: (1) before or at the time of the pre-release, the person to whom the pre-release is being made  represents to the depositary in writing that it or its customer owns the shares or ADSs to be remitted; (2) the pre- release is fully collateralized with cash or other collateral that the depositary considers appropriate and, in the case of  a pre-release of shares, preceded or accompanied by an unconditional guaranty by a South-African bank to deliver  ADSs for cancellation on the same calendar day on which the shares are delivered to the South-African bank (or, if  such ADSs are not so delivered, to return the shares) and (3) the depositary must be able to close out the pre-release  on not more than five business days’ notice. In addition, the depositary will limit the number of ADSs that may be  outstanding at any time as a result of pre-release, although the depositary may disregard the limit from time to time,  if it thinks it is appropriate to do so.   Direct Registration System        In  the  deposit  agreement,  all  parties  to  the  deposit  agreement  acknowledge  that  the  DRS  and  Profile  Modification System, or Profile, will apply to uncertificated ADSs upon acceptance thereof to DRS by DTC. DRS is  the system administered by DTC under which the depositary may register the ownership of uncertificated ADSs,  which  ownership  will  be  evidenced  by  periodic  statements  sent  by  the  depositary  to  the  registered  holders  of  uncertificated ADSs. Profile is a required feature of DRS that allows a DTC participant, claiming to act on behalf of  a registered holder of ADSs, to direct the depositary to register a transfer of those ADSs to DTC or its nominee and  to  deliver  those  ADSs  to  the  DTC  account  of  that  DTC  participant  without  receipt  by  the  depositary  of  prior  authorization from the ADS holder to register that transfer.         In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties  to the deposit agreement understand that the depositary will not determine whether the DTC participant that is claiming  to be acting on behalf of an ADS holder in requesting registration of transfer and delivery described in the paragraph  above has the actual authority to act on behalf of the ADS holder (notwithstanding any requirements under the Uniform  Commercial Code). In the deposit agreement, the parties agree that the depositary’s reliance on and compliance with 





 






instructions received by the depositary through the DRS/Profile System and in accordance with the deposit agreement  will not constitute negligence or bad faith on the part of the depositary.   Shareholder Communications; Inspection of Register of Holders of ADSs; Disclosure of Interests        The depositary will make available for the ADS holder’s inspection at its office all communications that it  receives from the Company as a holder of deposited securities that the Company makes generally available to holders  of deposited securities. The depositary will send the ADS holder copies of those communications if the Company asks  it to. The ADS holder has a right to inspect the register of holders of ADSs, but not for the purpose of contacting those  holders about a matter unrelated to the Company’s business or the ADSs.         In the deposit agreement, each ADS holder agrees to comply with requests from the Company pursuant to  applicable law or the rules of any applicable stock exchange or clearing system, or the Company’s Memorandum of  Incorporation, as to the capacity in which the ADS holder owns ADSs (and the ordinary shares as the case may be)  and regarding the identity of any other persons interested in those ADSs (and the ordinary shares, as the case may be)  and the nature of such interest and various other matters, whether or not they are ADSs holders at the time of such  request.