February 10, 2005
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
Amendment No. 1 to Form F-4 Filed on January 10, 2005
Amendment No. 2 to Form F-4 Filed on February 2, 2005
File No. 333-120975
Schedule TO-T/A Filed on February 2, 2005
File No. 5-78350
Dear Messrs. Katkin and Basnage:
We have the following comments on the above filings:
Form F-4
General
1. We note the recent press releases that discuss your intent to
sell
your stake in African Rainbow Minerals in order to raise 1.1
billion
rand. See, for example the article on Reuters entitled "Harmony
Q2
loss narrows, to sell ARM stake," dated February 3, 2005. Please
revise the registration statement to discuss this potential
transaction and its effects on your business and financial
condition.
2. See prior comment 1. We note that it appears that you have
removed references to the phrase "fractional cents," except as
indicated in your response, however, it does not appear that you
have
removed the numerical references to fractional cents in the
financial
presentations in the registration statement. Please revise or
advise.
The Offer, page 69
Conditions to the US Offer, page 73
3. Consistent with prior comment 3 issued in our letter dated
January
28, 2005, we reiterate our request that you ensure that the
disclosure in your registration statement on Form F-4 explains the
requirements as to waiver and satisfaction of conditions pursuant
to
South African law. Specifically, we understand that, under South
African law, 21 days after the minimum acceptance condition has
been
satisfied or waived, all remaining conditions to the offer must be
satisfied or waived. It does not appear that you discuss this
requirement or the fact that you 1) have obtained relief from this
requirement with respect to the competition condition and 2) this
means that the F-4 declared effective condition must be satisfied
by
approximately February 25, 2005. Please revise.
Plans for Gold Fields After the Completion of the Offers, page 94
4. Previously we sought disclosure regarding Harmony`s plans in
the
event Harmony is successful in obtaining, at a minimum, effective
control over Gold Fields. In light of the recent waiver of the
minimum acceptance condition, please revise to also disclose your
plans in the event you do not obtain effective control over Gold
Fields. We note, for example, your statement that you plan to
increase your stake in Gold Fields, "whether under the subsequent
offer or gradually over time until [you] acquire control over Gold
Fields." See the Form 425 filed on February 8, 2005 entitled "Op-
Ed
for Business Day by Bernard Swanepoel..." and the article quoting
Mr.
Swanepoel entitled "Harmony says battle for Gold Fields may last
years," dated February 3, 2005.
Unaudited Pro Forma Condensed Combined Financial Information, page
133
5. Considering you have recently opted to waive the minimum
acceptance condition, we believe that you should present pro forma
financial information to reflect a scenario in which you might
acquire less than 50% (but more than 11%, as you already settled
upon
this amount in the initial offering period) of the outstanding
shares
of Gold Fields.
6. We note your response to prior comment 10. Please elaborate
upon
the basis for your belief that Harmony will be deemed to be the
accounting acquirer for purposes of US GAAP. Be specific in your
explanation as to how 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. For example, if Harmony obtains a majority in interest in
Gold Fields, do you plan to call a special meeting to remove the
current board of directors and elect your own nominees? If so,
are
there any restrictions upon your ability to do so? Further, this
information should be disclosed in the registration statement so
that
it is clear to readers how you believe that you will be deemed to
be
the accounting acquirer.
Experts, page 173
7. See prior comment 12. We note your indication that you intend
to
apply for a waiver from the requirement to provide an auditor`s
consent of Gold Fields pursuant to Rule 437 of Regulation C.
Please
ensure that you allow sufficient time for the staff to process
your
application in advance of seeking effectiveness of this
registration
statement.
Schedule 13D Filed January 31, 2005
8. See Exhibit D, the letter from Mr. Swanepoel to MMC Norilsk
Nickel
dated January 28, 2005. This letter states that you will
"confirm"
to Norilsk Nickel that you have "sufficient acceptances of the
subsequent offer as will...equate to holding in excess of 50%."
Please supplementally provide us with additional information as to
what you mean when you state that you will "confirm" this
information. Specifically, at what point in the offer and how do
you
intend to "confirm" this information? Do you plan on making this
information available to all tendering shareholders?
Form 425 Filed February 4, 2005 - Review for the Quarter Ended 13
December 2005
9. See page 4. You state, under "Progress with our bid for Gold
Fields," that the offer has "no conditions precedent remaining,
except Competition Authorities approval..." Your omission of the
condition that this F-4 be declared effective could be confusing
to
shareholders, particularly in light of the disclosure you
previously
made on Form 425 filed January 25, 2005 where it appeared that you
were leading shareholders to believe that all conditions to the
offer
were satisfied, absent the minimum acceptance condition. In
future
communications regarding the remaining conditions of the offer,
please ensure that your disclosure is clear and consistent with
regard to the status of the conditions.
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.
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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February 10, 2005
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0303
DIVISION OF
CORPORATION FINANCE