December 21, 2004
Via Facsimile at (011-44-207) 367-0220 and Air Mail
Elizabeth L. Katkin, Esq.
John M. Basnage, Esq.
Hogan & Hartson L.L.P.
One Angel Court
London, EC2R 7HJ, U.K.
Re: Harmony Gold Mining Company Limited
Form F-4 Filed on December 3, 2004
File No. 333-120975
Schedule TO Filed on December 3, 2004
File No. 5-78350
Dear Messrs. Katkin and Basnage:
This is to advise you that the staff has performed a limited
review of the registration statement, focusing primarily on the
terms
of the exchange offer and related disclosure. No further review
of
the registration statement has been or will be made. All persons
who
are by statute responsible for the adequacy and accuracy of the
registration statement are urged to be certain that all
information
required pursuant to the Securities Act of 1933 has been included.
You are also reminded to consider applicable requirements
regarding
distribution of the preliminary prospectus. We have the following
comments:
Form F-4
General
1. Please consider revising your materials to remove the
references
to fractional cents and round up or down to the nearest cent
throughout this prospectus.
Summary, page 1
2. In an appropriate place in this discussion, please elaborate
upon
the irrevocable undertaking entered into with Norilsk.
Specifically,
please elaborate upon the conditions under which such shares will
be
offered and sold to Harmony and what terms of the undertaking are
left to be satisfied.
Terms of the U.S. Offer, page 2
3. Here and elsewhere in the prospectus you provide information
regarding the premium percentage being offered in the transaction
as
of October 14, 2004 because it was, as you have indicated, the
last
trading day before rumors and press articles significantly
affected
the share prices and trading volumes. With a view towards
disclosure,
please also provide the premium percentage being offered in the
transaction as of the last trading day before the commencement of
this offer so that readers are aware of the current offer price.
In
doing so, please indicate whether this represents a discount to
the
current trading price.
Conditions to the U.S. Offer, page 4
4. You indicate that the conditions you reference are subject to
fulfillment or waiver. Please revise your disclosure to clearly
indicate which of these conditions are waivable, as applicable,
and
whether there are any temporal restrictions upon when these
conditions must be fulfilled or waived. Also, please update this
discussion to disclose whether any of the conditions have been
satisfied or waived, such as the Non-implementation of the IAMGold
transaction.
Future Plans for Gold Fields; Compulsory Acquisition, page 6
5. Here and elsewhere in the prospectus, please clearly state that
there is a limit upon the time period in which you may be able to
effectuate a compulsory acquisition under South African law.
Under
those circumstances, disclose to shareholders what your plans are
if
you satisfy the Minimum Tender Condition but fail to acquire at
least
90% of Gold Fields shares.
Summary Selected Comparative Historical and Pro Forma Per Share
Data,
page 21
6. We note that the information disclosed under the second and
fourth
columns, US GAAP Pro Forma Combined per Ordinary Share/ADS and
Equivalent US GAAP Pro Forma per Ordinary Share/ADS, respectively,
appears to be identical. We presume this to be in error. It
appears
that the equivalent pro forma per share amounts have not been
adjusted for the merger exchange ratio. Please revise or advise.
Background and Reasons for the Offers, page 57
Legal Proceedings, page 62
7. Please ensure that your discussion in this section is complete.
We note, for example, that you have not made reference to the
appeal
made by Harmony to the Supreme Court of Appeal of South Africa
regarding the November 26th ruling of the CAC. Please revise or
advise.
The Offer, page 68
Conditions to the US Offer, page 71
8. Please elaborate upon the Competition and other regulatory
approvals condition. What other regulatory approvals are
required?
Please revise to more specifically discuss this condition so that
security holders may objectively determine when this condition has
been fulfilled.
Plans for Gold Fields After the Completion of the Offers, page 92
9. Please revise this discussion to elaborate upon Harmony`s plans
in
the event Harmony is successful in obtaining, at a minimum,
effective
control over Gold Fields. What are your plans for the business
and
mining operations? Please revise. See Item 1006(a) of Regulation
M-
A.
Unaudited Pro Forma Condensed Combined Financial Information, page
131
10. We note your analysis as to whether or not Harmony will be
deemed
to be the accounting acquirer for purposes of US GAAP.
Specifically,
we note the factors relating to the composition of the governing
body
and senior management of the combined entity. Please provide us
with
a supplemental analysis explaining the basis for your belief that
Harmony will succeed in having the ability to elect or appoint a
voting majority of the governing body and Harmony`s senior
management
will dominate that of the combined entity.
11. See Note 2 and your allocation of $10,927,938 to property,
plant
and equipment (mineral interests). Please disclose the manner in
which you have arrived at this allocation, including all material
assumptions relied upon in making this determination.
Experts, page 171
12. Because your registration statement requires financial
statements
of Gold Fields, the audit report of the Gold Fields independent
accountants must be included in the registration statement. Rule
436
of Regulation C requires the consent of Gold Field`s auditor to
the
inclusion of its report in the registration statement. We note the
statements in the second paragraph that you are requesting the
consent to incorporate by reference the audit report contained in
Gold Field`s Form 20-F for the year ended June 30, 2004. We refer
you to SAB Topic 1A requiring that any publicly filed financial
information of Gold Fields, including its financial statements, be
included in your exchange offer filing or incorporated by
reference
into, and therefore made a part of, this filing.
Until you obtain the consent of Gold Fields and its auditor,
please
revise your disclosure to refrain from naming the auditor and to
disclose the legal and practical implications for your
shareholders
and Gold Fields shareholders of the inability to obtain the
cooperation of Gold Fields or consent of it`s auditor. Please
ensure
that you do not expressly or implicitly purport to disclaim your
liability for the Gold Fields financial statements.
If you are unable to receive the cooperation from Gold Fields and
consent from their independent accountants following your best
efforts to do so, please submit a written request for a waiver of
the
consent pursuant to Rule 437 of Regulation C. Your request should
be
addressed to the Office of the Chief Accountant of the Division of
Corporation Finance, and should address the following:
? Please include an original manually signed affidavit in the
request documenting your specific actions to obtain the other
party`s
cooperation as well as the auditors` consent.
? Include all correspondence evidencing your request.
If your waiver is accepted, without naming the auditor, please
revise
to clearly disclose that, although an audit report was issued on
their financial statements and included in their annual report
filed
with the Commission, the auditor has not permitted use of the
report
in your registration statement.
We will consider your request for acceleration of the
effective
date, and any request from underwriters, if applicable, as
confirmation of the fact that those making the request are aware
of
their obligations under the Securities Act of 1933. Under
delegated
authority, we will grant a request for acceleration of the
effective
date upon resolution of the comments outstanding in connection
with
our review of this Form F-4.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
Please respond to these comments by promptly amending the
filing and submitting a response letter filed via EDGAR and
"tagged"
as correspondence. If the information you provide in response to
our
comments materially changes the information that you have already
provided to security holders, disseminate the revised materials in
a
manner reasonably calculated to inform them of the new
information.
If you do not agree with a comment, please tell us why in your
response.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the bidder is in possession of all
facts
relating to its disclosure, it is responsible for the accuracy and
adequacy of the disclosures it has made.
In connection with responding to our comments, please
provide,
in writing, a statement from all filing persons acknowledging
that:
* the bidder is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the bidder may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
Please contact me at (202) 942-2801 with any questions. You
may also reach me via facsimile at (202) 942-9638.
Sincerely,
Mara L. Ransom
Special Counsel
Office of Mergers and
Acquisitions
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December 21, 2004
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0303
DIVISION OF
CORPORATION FINANCE