UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
Pursuant to Rule 13a-16 or 15d-16
under the Securities Exchange Act of 1934
October 1, 2020
Commission File Number: 001-14846
ANGLOGOLD ASHANTI LIMITED
(Translation of registrant’s name into English)
76 Rahima Moosa Street
Newtown, Johannesburg, 2001
(PO Box 62117, Marshalltown, 2107)
South Africa
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
Each of AngloGold Ashanti Limited and AngloGold Ashanti Holdings plc is filing the following exhibits on this Report on Form 6-K, each of which is hereby incorporated by reference into their respective Registration Statements Nos. 333-230651 and 333-230651-01.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on the first day of October, 2020.
| AngloGold Ashanti Limited | ||||
| By: | /s/ Lizelle Marwick | |||
| Name: | Lizelle Marwick | |||
| Title: |
Executive Vice President – General Counsel, | |||
| Compliance and Interim Company Secretary | ||||
Exhibit 1.1
ANGLOGOLD ASHANTI HOLDINGS PLC
U.S.$ 700,000,000 3.750% Notes due 2030
Fully and Unconditionally Guaranteed by
ANGLOGOLD ASHANTI LIMITED
Underwriting Agreement
(the “Agreement”)
September 28, 2020
Barclays Bank PLC
5 The North Colonnade
Canary Wharf
London E14 4BB
United Kingdom
BMO Capital Markets Corp.
3 Times Square
New York, New York 10036
United States of America
BNP Paribas
10 Harewood Avenue
London NW1 6AA
United Kingdom
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
United States of America
CIBC World Markets Corp.
300 Madison Avenue, 5th Floor
New York, New York 10017
United States of America
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
United States of America
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
United Kingdom
J.P. Morgan Securities plc
25 Bank Street
Canary Wharf
London E14 5JP
United Kingdom
RBC Capital Markets, LLC
Brookfield Place
200 Vesey Street, 8th Floor,
New York, New York 10281
United States of America
Scotia Capital (USA) Inc.
250 Vesey Street
New York, New York 10281
United States of America
Standard Chartered Bank
One Basinghall Avenue
London EC2V 5DD
United Kingdom
Australia and New Zealand Banking Group Limited
28th Floor
40 Bank Street
Canary Wharf
London E14 5EJ
United Kingdom
Ladies and Gentlemen:
AngloGold Ashanti Holdings plc, a corporation duly organized and existing under the laws of the Isle of Man (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the several underwriters named in Schedule I hereto (the “Underwriters”) for whom J.P. Morgan Securities plc and Deutsche Bank AG, London Branch are acting as representatives (the “Representatives”), U.S.$ 700,000,000 aggregate principal amount of its 3.750% Notes due 2030 (the “Notes”). The Notes will be entitled to the benefit of a full and unconditional guarantee (the “Guarantee” and, together with the Notes, the “Securities”) by AngloGold Ashanti Limited, a public company with limited liability incorporated under the laws of the Republic of South Africa (the “Guarantor”), pursuant to which the Guarantor will guarantee the obligations of the Company under the Notes. The Securities will be issued pursuant to an indenture dated April 28, 2010 (the “Indenture”) among the Company, the Guarantor and The Bank of New York Mellon, as trustee (the “Trustee”).
1. The Company and the Guarantor jointly and severally represent and warrant to, and agree with, each of the Underwriters that:
(i) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), on Form F-3 (File No. 333-230651 and 333-230651-01) in respect of the Securities has been filed with the U.S. Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and to the knowledge of the Company or the Guarantor no proceeding for that purpose has been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-
effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company or the Guarantor (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in Section 1(iii) hereof), is hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Section 6(i) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Guarantor filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”);
(ii) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Prospectus, as of its date, did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter expressly for use therein;
(iii) For the purposes of this Agreement, the “Applicable Time” is 1:04 p.m. (New York City time) on the date of this Agreement; the Pricing Prospectus as supplemented by those Issuer Free Writing Prospectuses and other documents listed in Schedule III(a) hereto, if applicable, taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule III(a) or Schedule III(b) hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply (A) to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter expressly for use therein or (B) that part of the Registration Statement that constitutes the Statement of Eligibility (“Form T-1”) under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the Trustee;
(iv) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus is in compliance in all material respects with the Commission’s published rules, regulations and guidelines applicable thereto; provided that no such documents were filed with the Commission since the Commission’s close of business on the business day (which term shall mean for this subsection (iv) any day when the Commission’s office in Washington D.C. is open for business) immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule III(c) hereto and except for such other documents as were delivered to you prior to the Applicable Time;
(v) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Securities Act and the Trust Indenture Act and, in each case, the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to (A) any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter expressly for use therein or (B) the Form T-1 of the Trustee;
(vi) Neither the Guarantor nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus, any loss or interference with its business from fire, explosion, flood, pandemic or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, in each case materially adverse to the Company or the Guarantor and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any material increase in the long term debt of the Guarantor and its subsidiaries taken as a whole or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business affairs, management, financial position, shareholders’ equity or results of operations of the Guarantor and its subsidiaries taken as a whole, in each case, otherwise than as set forth or contemplated in the Pricing Prospectus;
(vii) The Guarantor and its subsidiaries have good and marketable title to all real property owned by them free and clear of all liens, encumbrances and defects, and any real property and buildings held under lease by the Guarantor and its subsidiaries are held by them under valid, subsisting and enforceable leases except, in each case, as described in the Pricing Prospectus or as would not, individually or in the aggregate, have a material adverse effect on the business affairs, management, financial position, shareholders’ equity or results of operations of the Guarantor and its subsidiaries taken as a whole (a “Material Adverse Effect”);
(viii) Each of the Company and the Guarantor is duly incorporated, and validly existing under the laws of the jurisdiction of its incorporation, is not in bankruptcy, liquidation, receivership or under judicial management (and no order or resolution therefor has been presented and no notice of appointment of any liquidator, receiver, administrative receiver, administrator or judicial manager has been given) and has full power and authority under its Memorandum of Association and Articles of Association or Memorandum of Incorporation, as applicable, and otherwise to own its assets and conduct its business;
(ix) The Guarantor has an authorized and issued share capital as set forth in the Pricing Prospectus, and all of the outstanding shares of capital stock of the Guarantor have been duly and validly authorized and issued, are fully paid and not subject to further calls or assessment by the Guarantor and conform in all material respects to the description thereof contained in the Pricing Prospectus; and all of the issued shares of capital stock of each subsidiary of the Guarantor listed in Schedule IV have been duly and validly authorized, allotted and issued, are fully paid and (except for directors’ qualifying shares and except as set forth in the Pricing Prospectus) are owned directly or indirectly by the Guarantor, free and clear of all liens, encumbrances, equities or claims;
(x) All consents, approvals, authorizations, orders, registrations, clearances and qualifications of or with any court or governmental agency or body or any stock exchange authorities (hereinafter referred to as a “Governmental Agency”) having jurisdiction over the Company or the Guarantor (hereinafter referred to as “Governmental Authorizations”) required to be obtained by the Company or the Guarantor for the execution and delivery of, and the performance of the obligations under, the Notes or the Guarantee by the Company or the Guarantor, as the case may be, and for the execution, delivery and performance by the Company and the Guarantor of this Agreement, the Securities and the Indenture have been obtained or made and are in full force and effect, including the approval of the South African Reserve Bank in respect of the Guarantee to be provided by the Guarantor;
(xi) All expressions of opinion, intention or expectation in the Pricing Prospectus are, and in the Prospectus will be, fairly and honestly held and have been made on reasonable grounds after due and careful consideration and inquiry, in each case subject to the assumptions set forth therein and to the risks and uncertainties contemplated under the captions “Forward-looking Statements” and “Note Regarding Forward-looking Statements” therein;
(xii) The execution and delivery by each of the Company and the Guarantor of, and the performance by the Company and Guarantor of their respective obligations under, the Notes and the Guarantee, as the case may be, the execution and delivery of this Agreement and the Indenture and the compliance by the Company and the Guarantor with all of the provisions of, and performance of their respective obligations under, this Agreement, the Securities and the Indenture and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or the Guarantor is a party or by which the Company or the Guarantor is bound or to which any of the property or assets of the Company or the Guarantor is subject, except as would not both (i) have a Material Adverse Effect and (ii) adversely affect the consummation of the transactions contemplated herein to a material extent, nor will such action by the Company or the Guarantor result in any violation of the provisions of their respective Memorandum of Association and Articles of Association or Memorandum of Incorporation, as applicable, or any statute or any order, rule or regulation of any Governmental Agency having jurisdiction over the Company, the Guarantor or any of their respective properties; and no consent, approval, authorization, order, registration or qualification of or with any such Governmental Agency is required for the execution and delivery of, and the performance of the obligations under, the Notes or the Guarantee, as the case may be, or the consummation by the Company and the Guarantor of the transactions contemplated by this Agreement, except (A) the registration under the Securities Act and the Exchange Act of the Securities, (B) such Governmental Authorizations as have been duly obtained or made and are in full force and effect and copies of which have been furnished to you upon your request and (C) such Governmental Authorizations as may be required under state securities or Blue Sky laws or any securities laws of jurisdictions outside the Republic of South Africa, the Isle of Man and the United States;
(xiii) Neither the Guarantor nor any of its subsidiaries is in violation of its Memorandum of Association and Articles of Association or Memorandum of Incorporation, as applicable, or, except as would not, individually or in the aggregate, have a Material Adverse Effect, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(xiv) Other than as set forth in the Pricing Prospectus, no stamp or other issuance or transfer taxes, levies or duties or any other tax and no capital gains, income (other than income tax payable by any Underwriter whose net income is generally subject to tax by the Republic of South Africa or the Isle of Man or who performs any services hereunder through a permanent establishment or a fixed base in the Republic of South Africa or the Isle of Man), withholding or other taxes are payable or will be payable immediately following the completion of the transactions contemplated hereunder by or on behalf of the initial purchasers of the Securities procured by the Underwriters or the Underwriters to the Republic of South Africa, the Isle of Man or any political subdivision or taxing authority thereof or therein in connection with (A) the issue and initial delivery of the Securities by the Company or the Guarantor, (B) the purchase by the Underwriters of the Securities, (C) the sale and delivery of the Securities by the Underwriters to the initial purchasers thereof or (D) the performance by the Company and the Guarantor of their respective obligations under this Agreement;
(xv) The statements set forth or incorporated by reference in the Pricing Prospectus and the Prospectus under the captions “Description of Debt Securities”, “Description of Notes” and “Taxation” insofar as they purport to constitute a summary of the matters set forth therein, fairly summarize these matters in all material respects;
(xvi) Other than as set forth in the Pricing Prospectus, there are no legal or governmental proceedings pending to which the Company, the Guarantor or any of the Guarantor’s subsidiaries is a party or of which any property of the Company, the Guarantor or any of the Guarantor’s subsidiaries is the subject which, if determined adversely to the Company, the Guarantor or any of the Guarantor’s subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to the best knowledge of the Company and the Guarantor, no such proceedings are threatened by any Governmental Agency or by any other person;
(xvii) Neither the Company nor the Guarantor is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will be an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended;
(xviii) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or Guarantor or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, the Guarantor was a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act; and (B) at the earliest time after the filing of the Registration Statement that the Company, the Guarantor or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities, the Guarantor was not an “ineligible issuer” as defined in Rule 405 under the Securities Act;
(xix) This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor;
(xx) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and the Guarantor and, assuming it has been duly executed and delivered by the Trustee, is a valid and binding agreement of the Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting the enforcement of creditors’ rights generally and equitable principles of general applicability; and the Indenture has not been amended or supplemented since April 28, 2010;
(xxi) The Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability, and will be entitled to the benefits of the Indenture;
(xxii) The Guarantee has been duly authorized by the Guarantor and, when the Notes have been duly executed and authenticated in accordance with the provisions of the Indenture and paid for by the Underwriters in accordance with the terms of this Agreement, will be valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting the enforcement of creditors’ rights generally and equitable principles of general applicability;
(xxiii) Each of (i) the audited financial statements, (ii) the unaudited condensed consolidated financial statements as at March 31, 2020 and for the three-month periods ended March 31, 2020 and 2019 and (iii) the unaudited condensed consolidated financial statements as at June 30, 2020 and for the six-month periods ended June 30, 2020 and 2019, together with their respective related notes and schedules, in each case, included or incorporated by reference in the Registration Statement and the Pricing Prospectus, fairly present in all material respects the consolidated financial position of the Guarantor and its subsidiaries or Kibali (Jersey) Limited (“Kibali”), as applicable, as of the dates indicated and the consolidated results of operations and cash flows of the Guarantor and its subsidiaries or Kibali, as applicable, for the periods specified and have been prepared in compliance with the requirements of the Securities Act and in conformity with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”), except as set forth in the Pricing Prospectus, applied on a consistent basis during the periods presented; the other financial and statistical data set forth in the Registration Statement and the Pricing Prospectus are accurately presented and prepared on a basis materially consistent with the financial statements and books and records of the Guarantor; and the Guarantor and its subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not disclosed in the Registration Statement and the Pricing Prospectus and that are required to be disclosed therein;
(xxiv) The Guarantor maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS as issued by the IASB, and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(xxv) The Guarantor and each of its subsidiaries have all licenses, certificates, permits and other authorizations (including, without limitation, all mineral rights, mining authorizations and mining leases) issued by the appropriate Governmental Agencies (and have made all required declarations and filings with such Governmental Agencies), that are legally required for the ownership, license or lease of their respective properties or the conduct of their respective businesses as described in the Pricing Prospectus, except as described in the Pricing Prospectus or where the failure to possess the same would not, individually or in the aggregate, have a Material Adverse Effect; except as described in the Pricing Prospectus or as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Guarantor nor any of its subsidiaries has received or expects to receive notice of any revocation or modification of any such license, certificate, permit or authorization; and the Guarantor and each of its subsidiaries are in compliance with each of the same, except for any non-compliance which would not, individually or in the aggregate, have a Material Adverse Effect;
(xxvi) (A) Ernst & Young, Inc. who have certified the consolidated financial statements of the Guarantor and its subsidiaries as of and for each of the years ended December 31, 2019, 2018 and 2017, were at the times of certifying such financial statements independent registered public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder; and (B) BDO LLP, who have certified the consolidated financial statements of Kibali as of and for each of the years ended December 31, 2019, 2018 and 2017, were at the times of certifying such financial statements independent registered public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder;
(xxvii) In each case, except as described in the Pricing Prospectus, the Guarantor and its subsidiaries own or possess adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) legally required
for the conduct of their respective businesses, except those that would not have a Material Adverse Effect; and, to the best knowledge of the Guarantor, except as would not, individually or in the aggregate, have a Material Adverse Effect, the conduct of their respective businesses will not conflict with any such rights of others and the Guarantor and its subsidiaries have not received any notice of any claim of infringement or conflict with any such rights of others;
(xxviii) No labor disturbance by or dispute with employees of the Guarantor or any of its subsidiaries exists or, to the best knowledge of the Guarantor, is threatened, except as described in the Pricing Prospectus or as would not, individually or in the aggregate, have a Material Adverse Effect;
(xxix) The Guarantor and its subsidiaries (A) are in compliance with any and all applicable laws (including the common law), rules, regulations, ordinances, decrees, judgments, injunctions, permits, licenses, authorizations, decisions, orders and other legally binding requirements, in each case promulgated or declared by Governmental Agencies in all countries and territories in which the Guarantor or its subsidiaries engage in mining or other business activities, that relate to the protection of human health and safety or the environment or the use, management or disposal of hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (B) have received and are in compliance with all permits, licenses or other approvals issued by Governmental Agencies and required of them under applicable Environmental Laws to conduct their respective businesses; and (C) have not received any notice of any actual or potential liability under, or investigation relating to, any Environmental Law; except, in each case, as described in the Pricing Prospectus or as would not, individually or in the aggregate, have a Material Adverse Effect;
(xxx) Neither the Company nor the Guarantor nor any of their respective subsidiaries or affiliates, nor any of their respective directors, officers or employees, nor to the Company’s or the Guarantor’s knowledge, any agent or representative of the Company or the Guarantor or any of their respective subsidiaries or affiliates has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful
payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit; (iv) violated any provision of the U.S. Foreign Corrupt Practices Act of 1977 and the rules and regulations promulgated thereunder, the UK Bribery Act 2010 or the South African Prevention and Combating of Corrupt Activities Act, No. 12 of 2004, in each case which violations are required to be disclosed in the Pricing Prospectus, Prospectus or Registration Statement; or (v) violated similar anti-corruption laws of all other applicable jurisdictions to which they are subject, including those relating to political donations and money laundering, in each case which violations are required to be disclosed in the Pricing Prospectus, Prospectus or Registration Statement; to the Company’s and the Guarantor’s knowledge, no actions or investigations by any governmental or regulatory agency are ongoing or threatened against the Company and the Guarantor and their respective subsidiaries, or any of their respective directors, officers, employees, agents or representatives in relation to a breach of such anti-corruption laws; and the Company and the Guarantor and their respective subsidiaries and affiliates have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such anti-corruption laws and with the representations and warranties contained herein; and the Company and the Guarantor and their respective subsidiaries will not directly or indirectly use, lend or contribute the proceeds raised under this Agreement for any purpose that would breach any such anti-corruption laws;
(xxxi) Neither the Company nor the Guarantor nor any of their respective subsidiaries or affiliates, nor any of their respective directors, officers, agents or employees is currently the subject of any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), U.S. Department of State or Her Majesty’s Treasury (“HMT”) or equivalent European Union measure; and neither the Company nor the Guarantor nor any of their respective subsidiaries will, directly or indirectly, use any proceeds of the offering of the Securities or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing any activities of any person or entity or in any country or territory that, at the time of such financing, is the subject of any sanctions administered by OFAC (including persons listed on the Specially Designated Nationals List), the U.S. Department of State or HMT or any equivalent European Union measure. The representation and undertaking in this Section 1(xxxi) will not apply to any party hereto to which Council Regulation (EC) No. 2271/96 (the “EU Blocking Regulation”) applies, if and to the extent that such representation and undertaking are or would be unenforceable by or in respect of that person by reason of breach of (i) any provision of the EU Blocking Regulation (or any law or regulation implementing such EU Blocking Regulation in any member state of the European Union or the United Kingdom), (ii) Section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) or (iii) any similar blocking or anti-boycott law in the United Kingdom; and
(xxxii) In each case, except as described in the Pricing Prospectus, (i) there has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company’s, the Guarantor’s, and their respective subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company, the Guarantor and their respective subsidiaries, and any such data processed or stored by third parties on behalf of the Company, the Guarantor and their respective subsidiaries), equipment or technology (collectively, “IT Systems and Data”); and (ii) neither the Company, nor the Guarantor nor any of their respective subsidiaries has been notified of, and have no knowledge of any event or condition that could result in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data, except as would not in the case of (i) and (ii) above individually or in the aggregate reasonably be expected to have a Material Adverse Effect; and (iii) the Company and the Guarantor and their respective subsidiaries have implemented controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent in all material respects with industry standards and practices or applicable regulatory standards.
2. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective principal amounts of the Notes set forth in Schedule I hereto opposite its name at a purchase price of 98.678% of the principal amount thereof plus, in each case, accrued interest, if any, from October 1, 2020 to the Time of Delivery (as defined in Section 5).
3. Each of the Company and the Guarantor is advised that the Underwriters propose to make a public offering of their respective portions of the Securities in the United States and may conduct private offerings outside the United States, in each case, as soon after this Agreement has become effective as in the judgment of the Underwriters is advisable. Each of the Company and the Guarantor is further advised by the Underwriters that the Securities are to be offered to the public in the United States and to qualifying institutional investors outside the United States upon the terms set forth in the Prospectus.
4. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
5. Payment for the Securities shall be made to the Company in Federal or other funds immediately available in New York City against delivery of the Securities to the Representatives for the respective accounts of the several Underwriters at the offices of Davis Polk & Wardwell London LLP, 5, Aldermanbury Square, London EC2V 7HR at 9:00 a.m. (New York City time) on October 1, 2020, or at such other time not later than five Business Days after the date of this Agreement as shall be agreed by the Company, the Guarantor and the Representatives in writing, such time being referred to as the “Time of Delivery”.
The Company will deliver to the Representatives, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly paid, against payment therefor, the Securities in the form of one or more permanent global certificates (the “Global Securities”), registered in the name of Cede & Co., as nominee for The Depository Trust Company (“DTC”).
The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 9 hereof, including the cross-receipt for any Securities, will be delivered at the offices of Davis Polk & Wardwell London LLP, 5, Aldermanbury Square, London EC2V 7HR (the “Closing Location”) or electronically, and the Securities will be delivered as specified in this Section 5, all at the Time of Delivery. A meeting will be held at the Closing Location or electronically, on the Business Day immediately preceding the Time of Delivery,
or such time and place as may mutually be agreed upon in writing by the Representatives, the Company and the Guarantor, or their respective counsel, at which meeting the Global Securities and the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 5 and Section 6, “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City, Johannesburg or London are generally authorized or obligated by law or executive order to close.
6. The Company and the Guarantor jointly and severally agree with each of the Underwriters as follows:
(i) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day (which term shall mean for this subsection 6(i) any day when the Commission’s office in Washington D.C. is open for business) following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly (x) after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof, or (y) if, prior to the filing of the Prospectus pursuant to Rule 424(b) under the Securities Act, any event occurs as a result of which the Pricing Disclosure Package would contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances in which they were made or then prevailing, not misleading and to supplement or amend the Pricing Disclosure Package to correct such statement or omission, and furnish to you without charge with copies thereof; to file promptly all material required to be filed by the Company or the Guarantor with the Commission pursuant to Rule 433(d) under the Securities Act; to file promptly all reports and any information statements required to be filed by the Company or the Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Securities; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or suspending the use of any preliminary prospectus or other prospectus in respect of the Securities, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any preliminary prospectus or other prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order and in the event of the issuance of any such notice of objection, promptly to amend the Registration Statement in such manner as may be required and permit offers in sales of to permit offers and sales of the Securities; provided that, none of the foregoing shall preclude the Company or the Guarantor from discharging its obligations under the Securities Act or the Exchange Act;
(ii) If required by Rule 430B(h) under the Securities Act, to prepare a form of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Securities Act not later than may be required by Rule 424(b) under the Securities Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by you promptly after reasonable notice thereof;
(iii) Promptly from time to time to take such action as you may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities; provided that in connection therewith the Company or the Guarantor shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation.
(iv) Prior to 9:00 a.m., (New York City time) on the Business Day next succeeding the date of this Agreement and during the period mentioned below, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City or London in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required by law at any time prior to the expiration of nine months after the date hereof and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(v) To make generally available to the security holders of the Company and the Guarantor, as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Guarantor and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(vi) During the period beginning on the date hereof and continuing to and including the Time of Delivery, not to offer, sell, contract to sell or otherwise dispose of any debt securities or guarantees of the Company or the Guarantor or warrants to purchase or otherwise acquire debt securities or guarantees of the Company or the Guarantor substantially similar to the Securities (other than (i) the Securities, (ii) commercial paper issued in the ordinary course of business or (iii) securities or warrants permitted with the prior written consent of the Representatives).
(vii) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act;
(viii) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Pricing Prospectus and Prospectus under the caption “Use of Proceeds”;
(ix) To prepare a final term sheet relating to the offering of the Securities, containing information that describes the final terms of the Securities or the offering in a form consented to by the Underwriters, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities;
(x) To use commercially reasonable efforts to list the Securities on the New York Stock Exchange;
(xi) To cooperate with the Underwriters and use commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC;
(xii) If the Company and the Guarantor elect to rely upon Rule 462(b), the Company and the Guarantor shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company and the Guarantor shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act; and
(xiii) Not to (and to cause the subsidiaries of the Guarantor not to) take, directly or indirectly, any action which is designed to or which constitutes or which would reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company or the Guarantor, in each case in violation of applicable laws, to facilitate the sale or resale of the Securities contemplated by this Agreement.
7. (a) The Company and the Guarantor jointly and severally represent and agree that, without the prior consent of the Underwriters, they have not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”); each Underwriter represents and agrees that, without the prior consent of the Company, the Guarantor and the Underwriters, other than one or more term sheets relating to the Securities containing customary information and conveyed to purchasers of Securities, which in their final form will not be inconsistent with the final term sheet set forth in Schedule II hereto, it has not made and will not make any offer relating to the Securities that would constitute a Free Writing Prospectus; any such Free Writing Prospectus the use of which has been consented to by the Company, the Guarantor and the Underwriters is listed on Schedule III(a) or Schedule III(b) hereto;
(b) The Company and the Guarantor jointly and severally represent and warrant to, and agree with each of the Underwriters that it has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and
(c) The Company and the Guarantor agree that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Company and the Guarantor will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each of the Underwriters an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that the foregoing shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter expressly for use therein.
8. The Company and the Guarantor jointly and severally covenant and agree with the several Underwriters that (a) the Company and the Guarantor will pay or cause to be paid the following: (i) the fees, disbursements and expenses of counsel for the Company and the Guarantor and the Guarantor’s accountants in connection with the registration of the Securities under the Securities Act and all other expenses in connection with the preparation, printing, reproduction and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing this Agreement, any Blue Sky and Legal Investment Memoranda, and closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 6(iii) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) all fees and expenses in connection with the listing of the Securities on the New York Stock Exchange and the filing fees incident thereto; and the fees and disbursements of counsel for the Underwriters in connection with securing any required review by the Financial Industry Regulatory Authority, Inc. of the terms of the offering of the Securities; (v) to the Representatives for the account of the several Underwriters, U.S.$15,000 in lieu of reimbursement of the Underwriters’ expenses; (vi) the fees and disbursements of Underwriters’ counsel in connection with the transactions contemplated hereby but excluding any such fees and disbursements incurred or arising in connection with any subsequent transfer, sale or delivery by the Underwriter of the Securities; (vii) fees and expenses of the Authorized Agent (as defined in Section 17 hereof); (viii) the cost of preparing certificates representing the Securities; (ix) the cost and charges of any transfer agent or registrar, if any; (x) any fees charged by securities rating services for rating the Securities; (xi) any costs, fees and charges of any trustee, transfer agent, registrar or depositary; (xii) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Securities; and (xiii) all other reasonable costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder that are not otherwise specifically provided for in this Section; (b) the Company and the Guarantor will pay or cause to be paid all stamp or other taxes, levies and duties, if any, and any other kind of tax, including withholding tax, incurred or arising in connection with (i) the issuance and initial delivery of the Securities by the Company or the Guarantor, (ii) the deposit of the Securities with a custodian for DTC (iii) the purchase by the Underwriters of the Securities, (iv) the sale and delivery of the Securities by the Underwriters to the initial purchasers thereof, and (v) the execution and delivery of this Agreement, including all taxes payable by the Underwriters arising from the reimbursement of any expenses, other than income tax from any fee, commission or other compensation received by the Underwriters in accordance with this Agreement; it being understood that nothing
in clause (b) hereof is intended or shall be construed to include any stamp or other taxes, expenses, levies and duties and any other kind of tax, including withholding tax, incurred or arising from any subsequent transfer, sale or delivery of the Securities by (A) an initial purchaser of the Securities procured by the Underwriter or (B) the Underwriter. It is understood, however, that, except as provided in this Section, and Sections 10 and 13 hereof, each Underwriter will pay all of its own advertising expenses in connection with any offers they make and any costs, expenses and fees, stamp or other taxes, levies and duties and any other kind of tax, including withholding tax, incurred or arising from any subsequent transfer, sale or delivery of the Securities by the Underwriters.
Payment shall be made by or on behalf of the Company and the Guarantor within fourteen days of the date of the invoice from the Representatives, which invoice shall set forth the amount payable due in reasonable detail.
9. The obligations of the Underwriters hereunder, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Guarantor herein are, at and as of the Time of Delivery, true and correct, the condition that the Company and the Guarantor not be in breach of any of their respective obligations under this Agreement in any respect that is material on or before the Time of Delivery, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 6 hereof; all material required to be filed by the Company and the Guarantor pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Davis Polk & Wardwell London LLP, United States counsel for the Underwriters, shall have furnished to you their disclosure letter and written opinion substantially in the form set forth in Annex I(a) hereto, dated the Time of Delivery, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Cravath, Swaine & Moore LLP, United States counsel for the Company and the Guarantor, shall have furnished to you their disclosure letter and written opinion substantially in the form set forth in Annex I(b) hereto, dated the Time of Delivery;
(d) Cains Advocates Limited, Isle of Man counsel for the Company and the Guarantor shall have furnished to you their written opinion substantially in the form set forth in Annex I(c) hereto, dated the Time of Delivery;
(e) ENSafrica (Edward Nathan Sonnenbergs Inc.), South African counsel for the Company and the Guarantor, shall have furnished to you their written opinion substantially in the form set forth in Annex I(d) hereto, dated the Time of Delivery;
(f) Slaughter and May, UK tax counsel for the Guarantor shall have furnished to you their written opinion substantially in the form set forth in Annex I(e) hereto, dated the Time of Delivery;
(g) (i) On the date hereof, Ernst & Young Inc. shall have furnished to you a letter, dated the date hereof, which shall be attached as Annex II(a) hereto and (ii) on the Time of Delivery, Ernst & Young Inc. shall have furnished to you a letter substantially in agreed form, dated the Time of Delivery;
(h) At and as of the Time of Delivery, (i) neither the Guarantor nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus, any loss or interference with its business from fire, explosion, flood, pandemic or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, in each case materially adverse to the Guarantor and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall not have been any material increase in the long term debt of the Guarantor and its subsidiaries taken as a whole or any change, or any development involving a prospective change, in or affecting the business affairs, management, financial position, shareholders’ equity or results of operations of the Guarantor and its subsidiaries taken as a whole, in each case, otherwise than as set forth or
contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at the Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(i) On or after the Applicable Time until the Time of Delivery there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the JSE Limited; (ii) a suspension or material limitation in trading in the securities of the Guarantor on the New York Stock Exchange or the JSE Limited; (iii) a general moratorium on commercial banking activities in New York, the Republic of South Africa, the Isle of Man or London declared by the relevant authorities, or a material disruption in commercial banking or securities settlement or clearance services in the United States, the Republic of South Africa, the Isle of Man or the United Kingdom; (iv) a change or development involving a prospective change in the Republic of South Africa or the Isle of Man taxation adversely affecting the Securities or the transfer thereof; (v) the outbreak or escalation of hostilities involving the United States, the Republic of South Africa or the United Kingdom or the declaration by the United States, the Republic of South Africa or the United Kingdom of a national emergency or war or (vi) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions or currency exchange rates or controls in the United States, the Republic of South Africa, the Isle of Man or the United Kingdom or elsewhere, if the effect of any such event specified in clause (v) or (vi) in the reasonable judgment of the Underwriters makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at the Time of Delivery to, or as directed by, the Underwriters on the terms and in the manner contemplated in the Prospectus;
(j) The Company and the Guarantor shall have complied with the provisions of Section 6(iv) hereof with respect to the furnishing of prospectuses on the Business Day next succeeding the date of this Agreement;
(k) The Company shall have delivered to you an accounting officer’s certificate dated as of the date hereof with respect to certain financial information contained in the Pricing Prospectus and Prospectus substantially in the form set forth in Annex II(b) hereto;
(l) On or after the Applicable Time, (i) there shall not have occurred any lowering of the rating of any of the debt securities of the Company or the Guarantor by Moody’s Investors Service, Inc. or Standard & Poor’s Ratings Services and (ii) no such organization shall have announced that it has under surveillance or review, with possible negative implications, its ratings of any of the debt securities of the Company or the Guarantor; and
(m) Each of the Company and the Guarantor shall have furnished or caused to be furnished to you at and as of the Time of Delivery certificates of directors or officers of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company and the Guarantor, as the case may be, herein at and as of the Time of Delivery, as to the performance, in all material respects, by the Company and the Guarantor of their respective obligations hereunder to be performed at or prior to the Time of Delivery, and each of the Company and the Guarantor shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a), (h) and (l) of this Section.
10. (a) The Company and the Guarantor jointly and severally will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act or identified in Schedule III(b) hereto, or the documents identified in Schedule III(d) hereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and the Guarantor shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company or the Guarantor by any Underwriter expressly for use therein.
(b) Each Underwriter, severally, but not jointly, will indemnify and hold harmless the Company and the Guarantor against any losses, claims, damages or liabilities to which the Company or the Guarantor may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any “issuer information” filed pursuant to Rule 433(d) under the Securities Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any “issuer information” filed pursuant to Rule 433(d) under the Securities Act, in reliance upon and in conformity with written information furnished to the Company and the Guarantor by such Underwriter expressly for use therein; and will reimburse the Company and the Guarantor for any legal or other expenses reasonably incurred by the Company or the Guarantor in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission to so notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (which shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 10 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantor on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities under this Agreement (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantor on the one hand or the
Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which any Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Guarantor under this Section 10 shall be in addition to any liability which the Company or the Guarantor may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Securities Act and each broker-dealer affiliate of any Underwriter and the obligations of the Underwriters under this Section 10 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company or the Guarantor (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company or the Guarantor) and to each person, if any, who controls the Company or the Guarantor within the meaning of the Securities Act.
11. (a) If any Underwriter shall default in its obligation to purchase the Securities which it has agreed to purchase hereunder at the Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Securities on the terms contained herein. If within thirty-six hours after such default you do not make arrangements satisfactory to you, the Company and the Guarantor for the purchase of such Securities, then the Company and the Guarantor shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Securities on such terms. In the event that, within the respective prescribed periods, you notify the Company and the Guarantor that you have so arranged for the purchase of such Securities, or the
Company and the Guarantor notify you that they have so arranged for the purchase of such Securities, you or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of Securities of a defaulting Underwriter or Underwriters by you, the Company and the Guarantor as provided in subsection (a) above, the principal amount of such Securities which remain unsold does not exceed one-eleventh of the aggregate principal amount of all of the Securities to be purchased at the Time of Delivery, then the Company and the Guarantor shall have the right to require each nondefaulting Underwriter to purchase the number of Securities which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to require each nondefaulting Underwriter to purchase its pro rata share (based on the principal amount of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of Securities of a defaulting Underwriter or Underwriters by you, the Company and the Guarantor as provided in subsection (a) above, the principal amount of such Securities which remain unsold exceeds one-eleventh of the aggregate principal amount of all the Securities to be sold at the Time of Delivery, or if the Company and the Guarantor shall not exercise the right described in subsection (b) above to require nondefaulting Underwriters to purchase the Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any nondefaulting Underwriter on the one hand or the Company and the Guarantor on the other, except for the expenses to be borne by the Company and the Guarantor on the one hand and the Underwriters on the other as provided in Section 8 hereof and the indemnity and contribution agreements in Section 10 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Guarantor and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, the Company or the Guarantor, or any officer or director or controlling person of the Company or the Guarantor, and shall survive delivery of and payment for the Securities.
13. If this Agreement shall be terminated pursuant to Section 11 hereof, the Company and the Guarantor shall then not be under any liability to you except as provided in Sections 8 and 10 hereof; but, if for any other reason any Securities are not delivered by or on behalf of the Company and the Guarantor as provided herein, the Company and the Guarantor will reimburse the Underwriters through you for all out of pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the sale and delivery of the Securities not so delivered, but the Company and the Guarantor shall then be under no further liability to any Underwriter in respect of the Securities not so delivered except as provided in Sections 8 and 10 hereof.
14. In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by either Representative.
15. All statements, requests, notices, agreements and other communications hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the Underwriters listed in Schedule I hereto at the following: Barclays Bank PLC, 5 The North Colonnade, Canary Wharf, London E14 4BB, United Kingdom, +44 (0) 20 7773 9098, LeadManagedBondNotices@barclayscorp.com, attention: Debt Syndicate; BMO Capital Markets Corp., 3 Times Square, New York, New York 10036, United States of America; BNP Paribas, 10 Harewood Avenue, London NW1 6AA, United Kingdom, +44 207 595 8222, new.york.syndicate@bnpparibas.com, mary.chapmen@bnpparibas.com, adele.green@bnpparibas.com, carly.palmer@bnpparisbas.com,
baiju.ganatra@bnpparibas.com; BofA Securities, Inc., One Bryant Park, New York, New York 10036, United States of America, dg.hg_ua_notices@bofa.com; CIBC World Markets Corp., 300 Madison Avenue, 5th Floor, New York, New York 10017, United States of America; Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013, United States of America, attention: General Counsel; Deutsche Bank AG, London Branch, Winchester House, 1 Great Winchester Street, London EC2N 2DB, United Kingdom, attention: DCM Debt Syndicate, +44 207 545 4361; J.P. Morgan Securities plc, 25 Bank Street, Canary Wharf, London E14 5JP, United Kingdom, head_of_EMEA_DCMG@jpmorgan.com, attention: Head of Debt Syndicate and Head of EMEA Capital Markets Group; RBC Capital Markets, LLC, Brookfield Place, 200 Vesey Street, 8th Floor, New York, New York 10281, United States of America; Scotia Capital (USA) Inc., 250 Vesey Street, New York, New York 10281, United States of America; Standard Chartered Bank, One Basinghall Avenue, London EC2V 5DD, United Kingdom, +44 207 885 8888, attention: Capital Markets; and Australia and New Zealand Banking Group Limited, 28th Floor 40 Bank Street, Canary Wharf London E14 5EJ, United Kingdom and if to the Company or the Guarantor shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company or the Guarantor, as the case may be, set forth in the Registration Statement, Attention: Company Secretary. Any such statements, requests, notices, agreements and other communications shall, if sent by fax, conclusively be deemed to have been given or served at the time of dispatch upon generation of transmission confirmation and, if sent by post, be conclusively deemed to have been received 48 hours from the time of posting.
16. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Guarantor, and to the extent provided in Sections 10 and 12 hereof, the officers and directors of the Company and the Guarantor and each person who controls the Company, the Guarantor or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
17. Each of the parties hereto irrevocably (i) agrees that any legal suit, action or proceeding against the Company or the Guarantor brought by any Underwriter or by any person who controls the Underwriter arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any Federal or State court in the Borough of Manhattan, The City of New York (each a “New York Court”), (ii) waives, to the fullest extent permitted by law any objection which it may now or hereafter have to the laying of venue of any such proceeding and (iii) submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each of the Company and the Guarantor
has appointed AngloGold Ashanti North America Inc., 4601 DTC Boulevard, Suite 550, Denver, CO 80237, United States of America as their authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Agreement or the transactions contemplated hereby which may be instituted in any New York Court by any Underwriter or by any person who controls the Underwriter, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable for five years from the date of this Agreement. Each of the Company and the Guarantor represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agree to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company or the Guarantor, as the case may be, shall be deemed, in every respect, effective service of process upon the Company.
18. In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than United States dollars, the Company and the Guarantor will indemnify each Underwriter against any loss incurred by such Underwriter as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange at which an Underwriter is able to purchase United States dollars with the amount of the judgment currency actually received by such Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Company and the Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion of the judgment currency into United States dollars.
19. Time shall be of the essence of this Agreement, both as regards any dates, times or periods mentioned and as regards any dates, times or periods which may be substituted for them in accordance with this Agreement or by agreement in writing between the parties.
20. Each of the Company and the Guarantor acknowledges and agrees that (i) the purchase of the Securities by the several Underwriters pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantor, on the one hand, and the Underwriters, on the other, (ii) solely in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company or the Guarantor with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Guarantor on other matters) or any other obligation to the Company or the Guarantor except the obligations expressly set forth in this Agreement and (iv) each of the Company and the Guarantor has consulted and will consult their own legal and financial advisors to the extent each deemed appropriate. Each of the Company and the Guarantor agrees that it will not claim that the Underwriters, or any of them, have rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or the Guarantor, in connection with such transaction or the process leading thereto.
21. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Guarantor on the one hand and the Underwriters, or any of them, on the other with respect to the subject matter hereof.
22. Recognition of the U.S. Special Resolution Regimes
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a Covered Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 22:
“Covered Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the U.S. Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
23. Acknowledgment Relating to Manufacturers Responsibilities
Solely for the purposes of the requirements of Article 9(8) of the MIFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the responsibilities of manufacturers under the Product Governance Rules:
(a) each of Barclays Bank PLC, Deutsche Bank AG, London Branch and Standard Chartered Bank (each, a “Manufacturer”) acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Pricing Prospectus, the Prospectus and any announcements in connection with the Securities; and
(b) each of the Company, the Guarantor and each of the Underwriters notes the application of the Product Governance Rules and acknowledges the target market and distribution channels identified as applying to the Securities by the Manufacturers and the related information set out in the Pricing Prospectus, the Prospectus and any announcements in connection with the Securities.
24. Contractual Recognition of Bail-In
Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding among the Company, the Guarantor and the Underwriters (each a “Bail-in Party”), each Bail-in Party acknowledges and accepts that a Bail-in Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
| (a) | the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any Bail-in Liability of a Bail-in Party (“Relevant Bail-in Party”) under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the Bail-in Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the Bail-in Liability into shares, other securities or other obligations of the Relevant Bail-in Party or another person (and the issue to or conferral on the other Bail-in Party of such shares, securities or obligations) |
| (iii) | the cancellation of the Bail-in Liability; |
| (iv) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; |
| (b) | the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority. |
For purposes of this Section 24, the following terms shall have the respective meanings set out below:
“Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time and in relation to the United Kingdom, Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“Bail-in Liability” means a liability in respect of which the relevant Write-down and Conversion Powers in the applicable Bail-in Legislation may be exercised.
“Bail-in Powers” means any Write-down and Conversion Powers as defined in relation to the relevant Bail-in Legislation.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended or superseded.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Relevant Bail-in Party.
25. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflicts of laws provision thereof.
26. Each of the Company, the Guarantor and the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
27. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
28. Agreement Among Managers
The Underwriters agree as between themselves that they will be bound by and will comply with the International Capital Markets Association Agreement Among Managers Version 1/New York Law Schedule (the “Agreement Among Managers”) as amended in the manner set out below.
For purposes of the Agreement Among Managers, “Managers” means the Underwriters and the Underwriters shall be joint “Lead Managers”, “Settlement Lead Manager” and “Stabilising Manager” mean J.P. Morgan Securities plc, “Subscription Agreement” means this Underwriting Agreement. Clause 3 of the Agreement Among Managers shall be deleted in its entirety and replaced with Section 11 of the Underwriting Agreement. In addition, the Agreement Among Managers shall be supplemented to include the following language: “By participating in this offering, each Manager agrees that it, each of its affiliates participating in this offering as underwriter or financial intermediary and each controlling person of it and each such participating affiliate are bound by the Agreement Regarding Oral Due Diligence currently in effect between such Manager and Ernst & Young Inc. that participate in oral due diligence in this offering.”
29. In connection with the issue of the Securities, J.P. Morgan Securities plc (in this capacity, the “Stabilizing Manager”) (or any person acting on behalf of the Stabilizing Manager) may over-allot Securities or effect transactions with a view to supporting the market price of the Securities at a level higher than that which might otherwise prevail. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilization action. Any stabilization action may begin on or after the date on which adequate public disclosure of the final terms of the offer of the Securities is made, and, if begun, may be ended at any time, but it must end no later than the earlier of 30 days after the issue of the Securities and 60 days after the date of the allotment of the Securities. Such stabilization shall be carried out in accordance with applicable laws and regulations. Any loss or profit sustained as a consequence of any such over-allotment or stabilization shall be for the account of the Stabilizing Manager. The Stabilizing Manager may conduct these transactions in the over-the-counter market or otherwise. If the Stabilizing Manager commences any stabilization action, it may discontinue them at any time.
* * * * *
If the foregoing is in accordance with your understanding, please sign and return to us four counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Company and the Guarantor.
| Very truly yours, | ||
| ANGLOGOLD ASHANTI HOLDINGS PLC | ||
| By: | /s/ Rob Hayes | |
| Name: Rob Hayes | ||
| Title: | Director | |
| ANGLOGOLD ASHANTI LIMITED | ||
| By: | /s/ Ian Kramer | |
| Name: Ian Kramer | ||
| Title: Interim Chief Financial Officer | ||
[Signature Page to the Underwriting Agreement]
| Accepted as of the date hereof | ||
| BARCLAYS BANK PLC | ||
| By: | /s/ Lynda Fleming | |
| Name: Lynda Fleming | ||
| Title: | Authorized Signatory | |
| BMO CAPITAL MARKETS CORP. | ||
| By: |
/s/ Mark Spadaccini | |
| Name: Mark Spadaccini | ||
| Title: | Managing Director | |
| BNP PARIBAS | ||||||||
| By: | /s/ Ama Ocansey |
By: | /s/ Benedict Foster | |||||
| Name: | Ama Ocansey | Name: | Benedict Foster | |||||
| Title: | Authorized Signatory | Title: | Authorized Signatory | |||||
| BOFA SECURITIES, INC. | ||
| By: | /s/ Andrew R. Karp | |
| Name: | Andrew R. Karp | |
| Title: | Managing Director | |
| CIBC WORLD MARKETS CORP. | ||
| By: | /s/ Michael Kim | |
| Name: | Michael Kimr | |
| Title: | Managing Director | |
| CITIGROUP GLOBAL MARKETS INC. | ||
| By: | /s/ Adam D. Bordner | |
| Name: | Adam D. Bordner | |
| Title: | Director | |
| DEUTSCHE BANK AG, LONDON BRANCH | ||
| By: | /s/ Mark Lewellen | |
| Name: | Mark Lewellen | |
| Title: | Managing Director | |
| By: | /s/ Neal Ganatra | |
| Name: | Neal Ganatra | |
| Title: | Director | |
| J.P. MORGAN SECURITIES PLC | ||
| By: | /s/ Clark Gard | |
| Name: | Clark Gard | |
| Title: | Executive Director | |
| RBC CAPITAL MARKETS, LLC | ||
| By: | /s/ Scott G. Primrose | |
| Name: | Scott G. Primrose | |
| Title: | Authorized Signatory | |
| SCOTIA CAPITAL (USA) INC. | ||
| By: | /s/ Elsa Wang | |
| Name: | Elsa Wang | |
| Title: | Managing Director & Head | |
| STANDARD CHARTERED BANK | ||
| By: | /s/ James Nelson | |
| Name: | James Nelson | |
| Title: | Managing Director, Debt Capital Markets | |
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED | ||
| By: | /s/ Paul Snowden | |
| Name: | Paul Snowden | |
| Title: | Head of Client Solutions, Europe and America | |
SCHEDULE I
| Underwriter |
Principal Amount of Notes to be Purchased |
|||
| Barclays Bank PLC |
$ | 58,333,000 | ||
| BMO Capital Markets Corp. |
$ | 58,333,000 | ||
| BNP Paribas |
$ | 58,333,000 | ||
| BofA Securities, Inc. |
$ | 58,333,000 | ||
| CIBC World Markets Corp. |
$ | 58,333,000 | ||
| Citigroup Global Markets Inc. |
$ | 58,333,000 | ||
| Deutsche Bank AG, London Branch |
$ | 58,335,000 | ||
| J.P. Morgan Securities plc |
$ | 58,335,000 | ||
| RBC Capital Markets, LLC |
$ | 58,333,000 | ||
| Scotia Capital (USA) Inc. |
$ | 58,333,000 | ||
| Standard Chartered Bank |
$ | 58,333,000 | ||
| Australia and New Zealand Banking Group Limited |
$ | 58,333,000 | ||
|
|
|
|||
| Total |
$ | 700,000,000 | ||
|
|
|
|||
Schedule I-1
SCHEDULE II
Filed pursuant to Rule 433
Registration Statement Nos. 333-230651
and 333-230651-01
AngloGold Ashanti Holdings plc
$700,000,000 3.750% Notes due 2030
Fully and Unconditionally Guaranteed by
AngloGold Ashanti Limited
Pricing Term Sheet
September 28, 2020
| Issuer: | AngloGold Ashanti Holdings plc | |
| Guarantor: | AngloGold Ashanti Limited | |
| Issue Type: | Senior Unsecured Guaranteed Notes | |
| Format: | SEC-Registered | |
| Principal Amount: | $700,000,000 | |
| Maturity: | October 1, 2030 | |
| Coupon: | 3.750% | |
| Interest Payment Dates: | April 1 and October 1, commencing April 1, 2021 | |
| Price to Public: | 99.678% of principal amount, plus accrued interest, if any, from October 1, 2020 | |
| Underwriting Discount: | 1.000% | |
| Yield to Maturity: | 3.789% | |
| Benchmark Treasury: | UST 0.625% due August 15, 2030 | |
| Spread to Benchmark Treasury: | +312.5 basis points | |
Schedule II-1
| Benchmark Treasury Price and Yield: | 99-20 / 0.664% | |
| Change of Control Put: | 101% | |
| Redemption Provisions: | Optional and Tax | |
| Optional Redemption: | Prior to July 1, 2030: at a discount rate of Treasury plus 50 basis points
On or after July 1, 2030: 100% | |
| Tax Redemption: | 100% | |
| Trade Date: | September 28, 2020 | |
| Settlement (*): | October 1, 2020 (T+3) | |
| CUSIP / ISIN: | 03512TAE1 / US03512TAE10 | |
| Denominations: | $200,000 and integral multiples of $1,000 | |
| Expected Security Ratings (**): | [omitted] | |
| Governing Law: | State of New York | |
| Listing: | Application will be made to list the Notes on the New York Stock Exchange. There can be no guarantee that the application to list the Notes on the New York Stock Exchange will be approved or the Notes will be listed, and settlement of the Notes is not conditioned on obtaining this listing. | |
| Joint Book-Runners: | Barclays Bank PLC
BMO Capital Markets Corp.
BNP Paribas
BofA Securities, Inc.
CIBC World Markets Corp.
Citigroup Global Markets Inc.
Deutsche Bank AG, London Branch
J.P. Morgan Securities plc
RBC Capital Markets, LLC
Scotia Capital (USA) Inc.
Standard Chartered Bank | |
| Passive Book-Runner: | Australia and New Zealand Banking Group Limited | |
Schedule II-2
(*) Note: It is expected that delivery of the Notes will be made against payment therefor on or about October 1, 2020, which will be the third business day following the date of pricing of the Notes (this settlement cycle being referred to as “T+3”). Under Rule 15c6-1 of the U.S. Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes on the date of pricing will be required, by virtue of the fact that the Notes initially will settle in T+3, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to make such trades should consult their own advisor.
(**) Note: A security rating is not a recommendation to buy, sell or hold securities. Ratings are subject to revision or withdrawal at any time by the assigning rating organization. Each rating should be evaluated independently of any other rating.
In addition to the foregoing pricing information, the preliminary prospectus supplement dated September 22, 2020 (the “Preliminary Prospectus Supplement”) is hereby revised to reflect the following:
On page 50 of the 2020 Half Year Report, incorporated by reference in the Preliminary Prospectus Supplement, in the third column of the table entitled “Operations in Continental Africa (DRC, Mali, Ghana, Guinea and Tanzania)” for the six months ended June 30, 2020, in respect of “Total cash costs net of by-product revenue adjusted for non-controlling interests and non-gold producing companies” for joint ventures, “52” shall be substituted by “108”.
*****
The Issuer and the Guarantor have filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer and the Guarantor have filed with the SEC for more complete information about the Issuer, the Guarantor and this offering. Certain restrictions relating to the offering that are set forth in the prospectus apply to this document.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, the Guarantor, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Barclays Bank PLC at +1 888 603 5847; or by calling BMO Capital Markets Corp. at +1 866 864 7760; or by calling BNP Paribas at +44 207 595 8222 or by emailing new.york.syndicate@bnpparibas.com; or by calling BofA Securities, Inc. at +1 800 294 1322 or by emailing dg.prospectus_requests@bofa.com; or by calling CIBC World Markets Corp. at +1 800 282 0822; or by calling Citigroup Global Markets Inc. at +1 800 831 9146; or by calling Deutsche Bank AG, London Branch at +44 207 545 4361 or by emailing prospectus.CPDG@db.com; or by calling J.P. Morgan Securities plc toll-free at +1 866 471 2526 or by emailing head_of_EMEA_DCMH@jpmorgan.com; or by calling RBC Capital Markets, LLC at +1 866 375 6829; or by calling Scotia Capital (USA) Inc. at +1 800 372 3930; or by calling Standard Chartered Bank at +44 207 885 8889; or by calling Australia and New Zealand Banking Group Limited at +1 800 477 9173.
Schedule II-3
SCHEDULE III
(a) Materials other than the Pricing Prospectus that comprise the Pricing Disclosure Package:
Issuer Free Writing Prospectus dated September 28, 2020 containing the final terms of the Notes
(b) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
Issuer Free Writing Prospectus dated September 22, 2020 containing the roadshow investor presentation
(c) Additional Documents Incorporated by Reference:
None
(d) Additional Document
None
Schedule III-1
SCHEDULE IV
AngloGold Ashanti Australia Limited
AngloGold Ashanti Holdings plc
AngloGold Ashanti USA Incorporated
AngloGold Ashanti Córrego do Sítio Mineração S.A.
AngloGold Ashanti (Ghana) Limited
AngloGold Ashanti (Iduapriem) Limited
Cerro Vanguardia S.A.
Geita Gold Mining Limited
Mineração Serra Grande S.A.
Societé AngloGold Ashanti de Guinée S.A.
Schedule IV-1
ANNEX I(a)
[Form of Opinion of U.S. Counsel]
ANNEX I(b)
[Form of Opinion of U.S. Counsel]
ANNEX I(c)
[Form of Opinion of Isle of Man Counsel]
ANNEX I(d)
[Form of Opinion of South Africa Counsel]
ANNEX II(a)
[Form of Auditor Comfort letter]
ANNEX II(b)
[Form of Chief Financial Officer’s Certificate]
Exhibit 4.1
ANGLOGOLD ASHANTI HOLDINGS PLC
ANGLOGOLD ASHANTI LIMITED
OFFICERS’ CERTIFICATE
Officers’ Certificate pursuant to Section 301 of the Indenture
(the “301 Officers’ Certificate”)
3.750% Notes due 2030
Each of, Rob Hayes and Simon Scott, duly appointed as a director of AngloGold Ashanti Holdings plc (the “Company”), pursuant to Section 301 of the indenture dated April 28, 2010 (the “Indenture”) among the Company, AngloGold Ashanti Limited as guarantor (the “Guarantor”) and The Bank of New York Mellon as trustee (the “Trustee”) and pursuant to a resolution duly adopted by the Board of Directors of the Company on September 21, 2020 provided as Exhibit A hereto, whereby each director of the Company designated as an “Authorized Person” was authorized to do anything and to execute and deliver any document necessary, desirable or incidental to an offering of Notes to be issued in one tranche with a maturity of 10 years from the date of issuance, HEREBY APPROVE AND CONFIRM that one series of Notes be established hereby, consisting of U.S.$700 million aggregate principal amount of 3.750% Notes due 2030 (the “Notes”).
| Title: | 3.750% Notes due 2030 | |
| Principal Amount: | $700,000,000 | |
| Currency: | U.S. dollar | |
| Stated Maturity: | October 1, 2030 | |
| Issue Price: | 99.678% | |
| Interest Rate: | 3.750% per year | |
| Interest Payment Dates: | April 1 and October 1, commencing April 1, 2021 | |
| Issue Date: | October 1, 2020 | |
| Regular Record Dates: | March 15 and September 15 (whether or not a Business Day) immediately preceding the applicable interest payment date | |
| Guarantee: | The Notes will be fully and unconditionally guaranteed by the Guarantor as to the payment of principal of, premium, if any, and interest on the Notes, including any Additional Amounts. | |
1
| Form: | The Notes will be issued in the form of one or more global notes, which will be executed and delivered in substantially the form attached hereto as Exhibit B in fully registered, book-entry form. The global notes will be deposited with or on behalf of The Depository Trust Company (“DTC”) and registered in the name of Cede & Co., as nominee of DTC or such other name as may be requested by an authorized representative of DTC. | |
| Denominations: | The Notes will be issued in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof. | |
| Place of Payment, Paying Agent: | The Bank of New York Mellon 240 Greenwich Street New York, New York 10286 United States of America Attention: Global Corporate Trust | |
| Business Day: | Any day, other than a Saturday or Sunday, which is not, in New York City or London, United Kingdom, a legal holiday or a day on which banking institutions are authorized or obligated by law, regulation or executive order to close. | |
| Notices and Demands: | If to the Company:
AngloGold Ashanti Holdings plc 4th Floor Communications House South Street Staines-upon-Thames TW18 4PR United Kingdom Tel: +44 (0)203 968 3320 Attention: The General Manager | |
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| If to the Guarantor:
AngloGold Ashanti Limited 76 Rahima Moosa Street Newtown, Johannesburg, 2001 P.O. Box 62117, Marshalltown, 2107 South Africa Tel: +27 (11) 637 6000 Attention: The Company Secretary | ||
| Covenants: | The covenants set forth in the Indenture shall apply to the Notes. | |
| In connection with such covenants: | ||
| • The percentage of Consolidated Net Tangible Assets not to be exceeded in connection with the limitations on liens set forth in Section 1006 of the Indenture and the limitations on sale and leaseback transactions in Section 1007 of the Indenture shall be 10% and 10%, respectively. | ||
| • The percentage of Consolidated Net Tangible Assets in excess of which a property may be considered a “Principal Property”, as further described in the Indenture under the definition of “Principal Property”, shall be 5%. | ||
| • The definition of “Principal Property” as used in the Indenture shall be amended and supplemented, with respect to the Notes only, by deleting the phrase “in each case, and the net book value” and inserting in lieu thereof the phrase “in each case, the net book value”.
• The definition of “Attributable Debt” as used in the Indenture shall be amended and supplemented, with respect to the Notes only, by inserting the parenthetical “(as determined in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”), as in effect immediately prior to the adoption of IFRS 16—“Leases”)” following the term “operating lease”. | ||
| Payment of Additional Amounts: | The Company or the Guarantor may be required to pay Holders Additional Amounts as set forth in Section 1005 of the Indenture and the form of the Notes attached hereto as Exhibit B. | |
3
| In addition to the exceptions and limitations described in the Indenture, neither the Company nor the Guarantor shall be required to pay any Additional Amounts for or on account of any taxes required to be withheld or deducted under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, or any amended or successor versions of such Sections (“FATCA”), any regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA. | ||
| Optional Tax Redemption: | In the event of certain tax law changes that require the Company or the Guarantor to pay Additional Amounts, and in other limited circumstances as described in the Indenture and the form of the Notes attached hereto as Exhibit B, the Company or the Guarantor may redeem all, but not less than all, of the Notes prior to maturity. | |
| Notice of redemption shall be given in the manner provided for in the Indenture and the form of the Notes attached hereto as Exhibit B not less than 10 nor more than 60 days prior to the Redemption Date. | ||
| Optional Redemption: | Prior to July 1, 2030, the Company or the Guarantor may redeem the Notes, in whole or in part, at any time and from time to time at a Redemption Price equal to the greater of (1) 100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed if such Notes matured on July 1, 2030 | |
4
| (exclusive of interest accrued and unpaid to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Make-whole Spread, plus, in each case, accrued and unpaid interest thereon to, but not including, the Redemption Date. | ||
| On or after July 1, 2030, the Company or the Guarantor may redeem the Notes, in whole or in part, at any time and from time to time at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon to, but not including, the Redemption Date. | ||
| Further installments of interest on the Notes to be redeemed that are due and payable on the Interest Payment Dates falling on or prior to a Redemption Date shall be payable on the Interest Payment Date to the Holders as of the close of business on the relevant Regular Record Date according to the Notes and the Indenture. | ||
| In connection with such optional redemption, the following defined terms apply: | ||
| “Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. | ||
5
| “Comparable Treasury Issue” means the U.S. Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed (assuming, for this purpose, that the Notes mature on July 1, 2030) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of the Notes (assuming, for this purpose, that the Notes mature on July 1, 2030). | ||
| “Comparable Treasury Price” means, with respect to any Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations. | ||
| “Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company. | ||
| “Make-whole Spread” means 50 basis points. | ||
| “Reference Treasury Dealer” means each of any four of BMO Capital Markets Corp., BNP Paribas, BofA Securities, Inc., Citigroup Global Markets Inc., Deutsche Bank AG, London Branch, J.P. Morgan Securities plc, RBC Capital Markets, LLC and Scotia Capital (USA) Inc. or their respective affiliates, in each case that are primary U.S. Government securities dealers, selected by the Company, and their respective successors; provided, however, that if any of the foregoing or their respective affiliates shall cease to be a primary U.S. Government securities dealer in New York City, the Company shall substitute therefor another such primary U.S. Government securities dealer. | ||
6
| “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer at 3:30 p.m. New York City time on the third business day preceding such Redemption Date. | ||
| The Company will give notice to each Holder of Notes to be redeemed of any redemption the Company or the Guarantor proposes to make at least 10 days, but not more than 60 days, before the Redemption Date or request that the Trustee send such notice of redemption to each Holder of Notes to be redeemed in the name of the Company and at its expense. If fewer than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected as set forth under “Selection and Notice” below. | ||
| Subject to the terms of the applicable notice of redemption, Notes called for redemption become due on the Redemption Date. Unless the Company or the Guarantor defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption. | ||
| Selection and Notice: | If less than all of the Notes are to be redeemed at any time, the Trustee will select the Notes for redemption in compliance with the requirements of the principal securities exchange, if any, on which the Notes are listed, as certified to the Trustee by the | |
7
| Company, and in compliance with the requirements of DTC, or if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through DTC or DTC prescribes no method of selection, on a pro rata basis; provided, however, that no Note of $200,000 in aggregate principal amount or less shall be redeemed in part. | ||
| If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed, in which case a portion of the original Note will be issued in the name of the Holder thereof upon cancelation of the original Note. In the case of a global note, an appropriate notation will be made on such Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof. | ||
| At all times, for the purposes of the terms set forth in this 301 Officers’ Certificate and the Indenture, the terms relating to selection and notice of this 301 Officers’ Certificate will supersede the applicable terms of Article Eleven of the Indenture to the extent inconsistent with such terms. | ||
| Change of Control Repurchase Event: | In certain circumstances the Company may be required to make an offer to each Holder of Notes to repurchase all or any part of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to, but not including, the date of repurchase, as set forth in the form of the Notes attached hereto as Exhibit B. | |
| Consolidation, Merger, Conveyance or Transfer: | Neither the Company nor the Guarantor will consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person, unless certain conditions are met, as set forth in the form of the Notes attached hereto as Exhibit B. | |
8
| Sinking Fund: | The Notes will not be entitled to the benefit of a sinking fund. | |
| Further Issuance: | The Company may, without the consent of the Holders of the Notes, issue additional notes (the “Additional Notes”) having the same ranking and same interest rate, maturity date, redemption terms and other terms as the Notes except for the price to the public and issue date; provided, however, that no Additional Notes may be issued unless they are fungible with the Notes for U.S. federal income tax purposes. Any Additional Notes, together with the Notes, will constitute a single series of Securities under the Indenture. There is no limitation on the amount of the Notes or other debt securities that the Company may issue under the Indenture. | |
| Other Terms: | At all times, for the purposes of the covenants set forth in the Indenture, references in Section 1008 of the Indenture to (i) Section 301(14) will be deleted and replaced in its entirety by reference to Section 301(16) and (ii) Section 301(15) will be deleted and replaced in their entirety by references to Section 301(17). | |
| The other terms of the Notes shall be substantially as set forth in the Indenture dated April 28, 2010 and the form of the Notes attached hereto as Exhibit B. | ||
For purposes of this 301 Officers’ Certificate, except as otherwise provided, all capitalized terms not defined herein shall have the meaning provided in the Indenture.
All provisions in the form of the Notes attached hereto as Exhibit B which are specifically referred to herein are hereby incorporated in and made a part of this 301 Officers’ Certificate as if set forth in full herein.
9
IN WITNESS WHEREOF, each of the undersigned has executed this 301 Officers’ Certificate on the date and in the capacity described herein.
Dated: October 1, 2020
| ANGLOGOLD ASHANTI HOLDINGS PLC | ||||
| By: | /s/ Rob Hayes | |||
| Name: | Rob Hayes | |||
| Title: | Director | |||
| By: | /s/ Simon Scott | |||
| Name: | Simon Scott | |||
| Title: | Director | |||
[Signature page – Officers’ Certificate Pursuant to Section 301 of Indenture – AGAH]
| ACKNOWLEDGED AND AGREED | ||||
| Dated: October 1, 2020 | ||||
| ANGLOGOLD ASHANTI LIMITED | ||||
| By: | /s/ Kandimathie Christine Ramon | |||
| Name: | Kandimathie Christine Ramon | |||
| Title: | Executive Director and Interim Chief Executive Officer | |||
| By: | /s/ Lizelle Marwick | |||
| Name: | Lizelle Marwick | |||
| Title: | Executive Vice President, General Counsel and Compliance and Interim Company Secretary | |||
[Signature page – Officers’ Certificate Pursuant to Section 301 of Indenture – AGA]
Exhibit A
A-1
[Resolutions of Board of Directors]
A-2
EXHIBIT B
FORM OF NOTE
[FACE OF GLOBAL NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
ANGLOGOLD ASHANTI HOLDINGS PLC
3.750% Notes due 2030
Guaranteed By
ANGLOGOLD ASHANTI LIMITED
| No. 00[1] | $[•] | |
| CUSIP No. 03512TAE1 | ||
| ISIN No. US03512TAE10 |
ANGLOGOLD ASHANTI HOLDINGS PLC, a company incorporated under the laws of the Isle of Man (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of $[•] on October 1, 2030 and to pay interest thereon from October 1, 2020 or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, semi-annually in arrears on April 1 and October 1 in each year, commencing April 1, 2021 (each, an “Interest Payment Date”), at the rate of 3.750% per annum, until principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note is registered at the close of business on March 15 and September 15 immediately preceding the applicable Interest Payment Date, each, a “Regular Record Date” for such interest. Any such interest which is payable, but is not punctually paid or duly provided for, on such Interest Payment Date will forthwith cease to be payable to such Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in this Note may be paid by the Company or the Guarantor, at its election, in each case, as provided in the Indenture.
Interest on this Note shall be computed on the basis of a 360-day year of twelve 30-day months.
Payment of the principal of, and interest, if any, on this Note will be made at the office or agency of the Company maintained for that purpose in New York City, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature of an authorized signatory, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed manually or in facsimile.
Dated: October 1, 2020
| ANGLOGOLD ASHANTI HOLDINGS PLC | ||
| By: | ||
| Name: | ||
| Title: Director | ||
| By: | ||
| Name: | ||
| Title: Director | ||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated: October 1, 2020
This is one of the Notes of the series designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
FORM OF GUARANTEE
For value received, ANGLOGOLD ASHANTI LIMITED, a corporation duly organized and existing under the laws of South Africa (herein called the “Guarantor”, which term includes any successor Person under the Indenture (the “Indenture”) referred to in the Note on which this Guarantee is endorsed), has unconditionally guaranteed, pursuant to the terms of the Guarantee contained in Article Sixteen of the Indenture, the due and punctual payment of the principal of and any premium and interest on such Note, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of such Note and the Indenture.
All payments pursuant to this Guarantee shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Isle of Man, the United Kingdom or South Africa or the jurisdiction of organization of any successor to the Company or the Guarantor, or any political subdivision or taxing authority thereof or therein, unless such taxes, duties, assessments or governmental charges are required by the Isle of Man, the United Kingdom or South Africa or such other jurisdiction or any such subdivision or authority to be withheld or deducted. In that event, the Guarantor will pay such Additional Amounts as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to the Holder of the Note on which this Guarantee is endorsed of the amounts which would have been payable in respect of the Guarantee thereof had no such withholding or deduction been required, subject to certain exceptions as set forth in Article Ten of the Indenture.
The obligations of the Guarantor to the Holders of the Notes and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Sixteen of the Indenture, and reference is hereby made to such Article and Indenture, which includes the particular terms of the Note on which this Guarantee is endorsed established pursuant to Section 301 of the Indenture, for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Note upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized signatories.
Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Indenture.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
Dated: October 1, 2020
| ANGLOGOLD ASHANTI LIMITED | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
[REVERSE OF GLOBAL NOTE]
This Note is one of a duly authorized issue of Securities of the Company (herein called the “Note”), issued and to be issued in one or more series under an indenture, dated as of April 28, 2010 (herein called the “Indenture” which term shall have the meaning assigned to it in such instrument), among the Company, AngloGold Ashanti Limited, as guarantor (herein called the “Guarantor”, which term includes any successor Person under the Indenture) and The Bank of New York Mellon, as trustee (herein called the “Trustee”, which term includes any other successor Trustee under the Indenture) and reference is hereby made to the Indenture and the Officers’ Certificate dated as of October 1, 2020 issued pursuant to Section 301 of the Indenture (herein called the “301 Officers’ Certificate”) for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee, and the Holders of the Notes of this series and of the terms upon which the Notes of this series are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, initially limited in aggregate principal amount to U.S.$700,000,000.
The Company may, without the consent of the Holders of the Notes of this series, issue additional notes of this series (the “Additional Notes”) having the same ranking and same interest rate, maturity date, redemption terms and other terms as the Notes of this series except for the price to the public and issue date; provided, however, that no Additional Notes may be issued unless they are fungible with the Notes of this series for U.S. federal income tax purposes. Any Additional Notes, together with the Notes of this series, will constitute a single series of Securities under the Indenture. There is no limitation on the amount of Notes of this series or other debt securities that the Company may issue under the Indenture.
The Notes of this series will constitute unsecured and unsubordinated indebtedness of the Company and will rank equally with all of its other unsecured and unsubordinated indebtedness from time to time outstanding.
The Notes of this series are issuable only in registered form without coupons in minimum denominations of $200,000 and integral multiples of $1,000 in excess thereof. The Notes of this series will initially be issued in the form of one or more global notes (each, a “Global Note”). Except as provided in the Indenture, a Global Note shall not be exchangeable for one or more definitive Notes.
If an Event of Default with respect to Notes of this series occurs and is continuing, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes of this series may declare the principal of all of the Notes of this series to be due and payable in the manner and with the effect provided in the Indenture.
If an Event of Default with respect to Notes of this series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Notes of this series and related coupons by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in the Indenture or in aid of the exercise of any power granted therein, or to enforce any other proper remedy.
All payments of, or in respect of, principal of and any premium and interest on any Note of this series, and all payments pursuant to the Guarantee, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Isle of Man, the United Kingdom or South Africa, any other jurisdiction where the Company or the Guarantor is tax resident or in which the Company does business, the government of a jurisdiction in which any successor to the Company or the Guarantor is organized or
tax resident or any political subdivision or taxing authority thereof or therein (a “Taxing Jurisdiction”), unless such taxes, duties, assessments or governmental charges are required by such Taxing Jurisdiction to be withheld or deducted. In that event, the Company or the Guarantor, as applicable, will pay such additional amounts of, or in respect of, principal and any premium and interest (“Additional Amounts”) as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to each Holder of Notes of this series of the amounts which would have been payable in respect of such Notes or the Guarantee, as the case may be, had no such withholding or deduction been required, except that no Additional Amounts shall be so payable for or on account of:
(1) any tax, duty, assessment or other governmental charge imposed by any jurisdiction other than a Taxing Jurisdiction (including the United States or any political subdivision or taxing authority thereof or therein);
(2) any tax, duty, assessment or other governmental charge which would not have been imposed but for (A) the existence of any present or former connection between such Holder or a third party on behalf of such Holder by reason of its (or between a fiduciary, settlor, beneficiary member, shareholder or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) having some present or former connection with a Taxing Jurisdiction (including being or having been a citizen or resident of a Taxing Jurisdiction or being or having been engaged in a trade or business or present therein or having or having had a permanent establishment therein, but not including the mere holding or ownership of a debt security), or (B) the presentation of such Note or the Guarantee thereof for payment more than 30 days after the date on which such payment became due or was provided for, whichever is later;
(3) any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or other governmental charge;
(4) any tax, duty, assessment or other governmental charge which is payable otherwise than by withholding or deduction from payments of (or in respect of) principal of or any premium or interest on the Notes or the Guarantee thereof;
(5) any tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Note with a request of the Company or the Guarantor addressed to the Holder (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(6) any withholding or deduction that is imposed on a payment to an individual and required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN (European Union Economic and Finance Ministers) Counsel Meeting of 26 - 27 November 2000 or any law implementing or complying with or introduced in order to conform to such Directive;
(7) any taxes required to be withheld or deducted under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, or any amended or successor versions of such Sections (“FATCA”), any regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA; or
(8) any combination of items (1), (2), (3), (4), (5), (6) and (7).
Additionally, Additional Amounts shall not be paid with respect to any payment in respect of any Note to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of such Note.
References herein to the payment of the principal of or any premium or interest on, or in respect of, any Note of this series (or any payments pursuant to the Guarantee thereof) such mention shall be deemed to include mention of the payment of Additional Amounts provided for herein to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions herein and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
The provisions herein shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Company or the Guarantor is organized, or any political subdivision or taxing authority thereof or therein.
The Notes of this series are redeemable at the option of the Company or the Guarantor (or their successors) in whole but not in part at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if, (i) the Company or the Guarantor is or would be required to pay Additional Amounts as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of a Taxing Jurisdiction or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which a Taxing Jurisdiction is a party, which change, execution or amendment becomes effective on or after the date of issuance of the Notes of this series on October 1, 2020 (or in the case of a successor Person to the Company or the Guarantor, the date on which such successor Person became such or in the case of an assumption by the Guarantor or its Subsidiaries of obligations of the Company under the Notes of this series, the date of such assumption), or (ii) as a result of any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which a Taxing Jurisdiction is a party, which change, execution or amendment is proposed and becomes effective on or after a date on which the Guarantor or any of its Subsidiaries (an “Intercompany Debtor”) borrows money from the Company, the Intercompany Debtor is or would be required to deduct or withhold tax on any payment to the Company to enable the Company to make any payment of principal, premium, if any, or interest, and the payment of such Additional Amounts, in the case of clause (i), or such deductions or withholding, in the case of clause (ii), cannot be avoided by the use of any reasonable
measures available to the Company, the Guarantor or the Intercompany Debtor. Prior to the giving of notice of such redemption, the Company will deliver to the Trustee an Officers’ Certificate, stating that the Company is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of the Company to redeem such Notes pursuant to the Indenture have been satisfied.
Prior to July 1, 2030, the Company or the Guarantor may redeem the Notes of this series, in whole or in part, at any time and from time to time at a Redemption Price equal to the greater of (1) 100% of the principal amount of the Notes of this series to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes of this series to be redeemed if such Notes matured on July 1, 2030 (exclusive of interest accrued and unpaid to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Make-whole Spread, plus, in each case, accrued and unpaid interest thereon to, but not including, the Redemption Date.
On or after July 1, 2030, the Company or the Guarantor may redeem the Notes of this series, in whole or in part, at any time and from time to time at a Redemption Price equal to 100% of the principal amount of the Notes of this series to be redeemed plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
Further installments of interest on the Notes of this series to be redeemed that are due and payable on the Interest Payment Dates falling on or prior to a Redemption Date shall be payable on the Interest Payment Date to the Holders as of the close of business on the relevant Regular Record Date according to the Notes of this series and the Indenture.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
“Comparable Treasury Issue” means the U.S. Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes of this series to be redeemed (assuming, for this purpose, that the Notes of this series mature on July 1, 2030) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of the Notes of this series (assuming, for this purpose, that the Notes of this series mature on July 1, 2030).
“Comparable Treasury Price” means, with respect to any Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.
“Make-whole Spread” means 50 basis points.
“Reference Treasury Dealer” means each of any four of BMO Capital Markets Corp., BNP Paribas, BofA Securities, Inc., Citigroup Global Markets Inc., Deutsche Bank AG, London Branch, J.P. Morgan Securities plc, RBC Capital Markets, LLC and Scotia Capital (USA) Inc. or their respective affiliates, in each case that are primary U.S. Government securities dealers, selected by the Company, and their respective successors; provided, however, that if any of the foregoing or their respective affiliates shall cease to be a primary U.S. Government securities dealer in New York City, the Company shall substitute therefor another such primary U.S. Government securities dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer at 3:30 p.m. New York City time on the third business day preceding such Redemption Date.
The Company will give notice to each Holder of Notes of this series to be redeemed of any redemption the Company or the Guarantor proposes to make at least 10 days, but not more than 60 days, before the Redemption Date or request that the Trustee send such notice of redemption to each Holder of Notes of this series to be redeemed in the name of the Company and at its expense. If fewer than all of the Notes of this series are to be redeemed, the Notes of this series to be redeemed shall be selected as set forth below.
Subject to the terms of the applicable notice of redemption, Notes of this series called for redemption become due on the Redemption Date. Unless the Company or the Guarantor defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes of this series or portions thereof called for redemption.
If less than all of the Notes of this series are to be redeemed at any time, the Trustee will select the Notes of this series for redemption in compliance with the requirements of the principal securities exchange, if any, on which the Notes of this series are listed, as certified to the Trustee by the Company, and in compliance with the requirements of The Depository Trust Company (“DTC”), or if the Notes of this series are not so listed or such exchange prescribes no method of selection and the Notes of this series are not held through DTC or DTC prescribes no method of selection, on a pro rata basis; provided, however, that no Note of this series of $200,000 in aggregate principal amount or less shall be redeemed in part.
If any Note of this series is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed, in which case a portion of the original Note will be issued in the name of the Holder thereof upon cancelation of the original Note. In the case of a Global Note, an appropriate notation will be made on such Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof.
At all times, for the purposes of the terms set forth in the 301 Officers’ Certificate, this Note and the Indenture, the terms relating to selection and notice of the 301 Officers’ Certificate and this Note will supersede the applicable terms of Article Eleven of the Indenture to the extent inconsistent with such terms.
If a Change of Control Repurchase Event occurs in respect of the Notes of this series, unless either the Company or the Guarantor has exercised its right to redeem the Notes of this series as described above, the Company will be required to make an offer to each Holder of Notes of this series to repurchase all or any part (in minimal denominations of $200,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes of this series at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes of this series repurchased plus any accrued and unpaid interest on the Notes of this series repurchased to, but not including, the date of repurchase. Within 30 days following any Change of Control Repurchase Event or, at the option of the Company, prior to any Change of Control, but after the public announcement of the proposed Change of Control, the Company will mail a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes of this series on the payment date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is mailed, other than as may be required by law. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice. Holders of Notes of this series electing to have their Notes of this series purchased pursuant to a Change of Control Repurchase Event offer will be required to surrender their Notes of this series, with the form entitled “Option of Holder to Elect Purchase” on the reverse of this Note completed, to the Paying Agent at the address specified in the notice, or transfer their Notes of this series to the Paying Agent by book-entry transfer pursuant to the applicable procedures of the Paying Agent, prior to the close of business on the third business day prior to the repurchase payment date. The Company will comply with the requirements of Rule 14e-1 under the U.S. Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”) and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes of this series as a result of a Change of Control Repurchase Event. To the extent that the provisions of any applicable securities or corporate laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes of this series, the Company will comply with the applicable securities or corporate laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes of this series by virtue of such conflict.
On the repurchase date following a Change of Control Repurchase Event, the Company will, to the extent lawful:
(1) accept for payment all Notes of this series or portions of the Notes of this series properly tendered pursuant to its offer;
(2) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of all the Notes of this series or portions of the Notes of this series properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes of this series properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes of this series being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes of this series properly tendered the purchase price for the Notes of this series (or make payment through the Depositary), and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note of this series equal in principal amount to any unpurchased portion of any Notes of this series surrendered; provided, however, that each new Note of this series will be in a minimum principal amount of $200,000 and integral multiples of $1,000 in excess thereof.
The Company will not be required to make an offer to repurchase the Notes of this series issued by it upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes of this series properly tendered and not withdrawn under its offer.
“Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger, scheme of arrangement, amalgamation or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Guarantor and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) other than to the Guarantor, a Qualified Holding Company and/or one of their respective subsidiaries;
(2) the consummation of any transaction (including, without limitation, any merger, scheme of arrangement, amalgamation or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) (other than a subsidiary of the Guarantor) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the Guarantor’s Voting Stock or other Voting Stock into which the Guarantor’s Voting Stock is reclassified, consolidated, exchanged or changed measured by voting power rather than number of shares; or
(3) the Guarantor consolidates with, or merges with or into, or enters into a scheme of arrangement with or amalgamates with, any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act), or any person consolidates with, or merges with or into, or enters into a plan or arrangement with, the Guarantor, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Guarantor or such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the Guarantor outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person immediately after giving effect to such transaction.
Notwithstanding the foregoing, a Permitted Reorganization shall be deemed not to involve a Change of Control.
“Change of Control Repurchase Event” means the circumstance where each of the Rating Agencies has reduced its rating of the Notes of this series by one or more gradations (including gradations within rating categories as well as between rating categories) on any date during the 60-day period (which period shall be extended so long as the rating of this series of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) (the “Trigger Period”) after the earlier of (1) the occurrence of a Change of Control; and (2) public notice of the intention by the Guarantor to effect a Change of Control; provided, however, that a Change of Control Repurchase Event shall be deemed not to have occurred if (A) a Rating Agency that has reduced its rating of the Notes of this series by one or more gradations (including gradations within rating categories as well as between rating categories) during the Trigger Period does not announce or publicly confirm or inform the Trustee in writing at the Company’s request that the reduction was the result, in whole or in part, of any event or circumstance comprised from or arising as a result of the applicable Change of Control (regardless of whether that Change of Control shall then have occurred) or (B) a rating of the Notes of this series by one of the Rating Agencies is within the Trigger Period subsequently
upgraded to a credit rating gradation not less than that at the commencement of such 60-day period. Notwithstanding the foregoing, a Change of Control Repurchase Event will be deemed not to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated. Any change in the outlook of a rating will not constitute a change in gradation.
“Fitch” means Fitch Ratings, Inc. and its successors.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Permitted Reorganization” means a transaction or a series of related transactions in which (1) the Guarantor becomes a direct or indirect wholly-owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Guarantor’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction, no “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Qualified Holding Company” means a holding company of which the Guarantor becomes a direct or indirect wholly-owned subsidiary pursuant to a Permitted Reorganization, and its successors and assigns.
“Rating Agency” means each of Fitch, Moody’s and S&P; provided, however, that if any of Fitch, Moody’s or S&P ceases to rate the Notes of this series or fails to make a rating of the Notes of this series publicly available for reasons outside of the Guarantor’s control, the Guarantor may select (as certified by a resolution of the Guarantor’s board of directors) a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Securities Exchange Act, as a replacement agency for Fitch, Moody’s or S&P, or all of them, as the case may be.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.
“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
Neither the Company nor the Guarantor shall consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person, unless:
(1) either the Company or the Guarantor shall be the continuing corporation, or the corporation formed by such consolidation or into which the Company or the Guarantor is merged or the Person which acquires by conveyance or transfer the properties and assets of the Company or the Guarantor substantially as an entirety (or in the case of any conveyance or transfer of the properties and assets of the Guarantor substantially as an entirety to a Qualified Holding Company and/or any direct or indirect wholly-owned subsidiary of a Qualified Holding Company in connection with a Permitted
Reorganization, such Qualified Holding Company) shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee acting reasonably, in the case of the Company, the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Notes and the performance of every covenant of the Indenture on the part of the Company to be performed or observed, and, in the case of the Guarantor, the due and punctual performance of the Guarantee and the performance or observance of every covenant of the Indenture on the part of the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(3) the Company or such Person shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with these provisions and that all conditions precedent provided for in the Indenture relating to such transaction have been complied with.
The above paragraph shall only apply to a merger or consolidation in which the Company or the Guarantor, as the case may be, is not the surviving corporation and to conveyances and transfers by the Company or the Guarantor, as the case may be, as transferor.
Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company or the Guarantor, as the case may be, substantially as an entirety to any Person in accordance with the preceding paragraphs, the successor Person formed by such consolidation or into which the Company or the Guarantor is merged or to which such conveyance or transfer is made (or in the case of any such conveyance or transfer to a Qualified Holding Company and/or any direct or indirect wholly-owned subsidiary of a Qualified Holding Company in connection with a Permitted Reorganization, such Qualified Holding Company) shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor under the Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, in the Indenture; and in the event of any such conveyance or transfer, the Company or the Guarantor, as the case may be, shall be discharged from all obligations and covenants under the Indenture and the Notes and the coupons, or the Guarantee, as the case may be, and may be dissolved and liquidated.
The Indenture contains provisions for defeasance at any time of the entire indebtedness on this Note upon compliance by the Company with certain conditions set forth thereon, which provisions apply to this Note.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company or the Guarantor and the rights of the Holders of the Notes of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Notes at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes of each series at the time Outstanding, on behalf of the Holders of all Notes of such series to waive compliance by the Company or the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Note of this series or any related coupon shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Notes of this series; (ii) the Holders of not less than 25% in principal amount of the Outstanding Notes of this series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee; (iii) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (v) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Notes of this series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of the Indenture to affect, disturb or prejudice the rights of any other such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under the Indenture, except in the manner provided in the Indenture and for the equal and ratable benefit of all such Holders of Notes of this series.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, or the Guarantor which is absolute and unconditional, to pay the principal of, and interest, if any, on this Note at the time, place and rate, and in the coin or currency, herein prescribed or to convert this Note as provided in the Indenture.
No service charge shall be made for any registration of transfer or exchange of Notes of this series, but the Company, the Guarantor, or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith, as provided in the Indenture.
Prior to due presentation of this Note for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee, may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, the Guarantor, the Trustee, or any such agent shall be affected by notice to the contrary. None of the Company, the Guarantor, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Note in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Nothing shall prevent the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such Global Note or impair, as between such depositary and owners of beneficial interests in such Global Note, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Note.
This Note shall be governed by and construed in accordance with the laws of the State of New York.
Unless otherwise defined herein, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture or the 301 Officers’ Certificate. To the extent any provision of this Note conflicts with the express provisions of the Indenture (except as otherwise specified in the 301 Officers’ Certificate), the provisions of the Indenture shall govern and be controlling.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to the Change of Control Repurchase Event provisions of this Note, check the following box:
☐ Purchase pursuant to Change of Control Repurchase Event
If you want to elect to have only part of this Note purchased by the Company pursuant to the Change of Control Repurchase Event provisions of this Note, state the amount:
| $ | ||||
| Date: | Your Signature: | |||
| (Sign exactly as your name appears on the other side of the Note) | ||||
| Signature Guarantee: | ||||
| Signature must be guaranteed by a participant in a recognized signature guarantee medallion program or other signature guarantor acceptable to the Trustee. | ||||
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Note shall be $[•]. The following decreases/increases in the principal amount of this Note have been made:
| Date of Decrease/Increase |
Decrease in Principal Amount |
Increase in Principal Amount |
Total Principal Amount Following such Decrease/Increase |
Notation Made by or on Behalf of Trustee | ||||||
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Exhibit 5.1
[Cravath London Letterhead]
October 1, 2020
AngloGold Ashanti Holdings plc
AngloGold Ashanti Limited
$700,000,000 3.750% Notes due 2030
Ladies and Gentlemen:
We have acted as U.S. counsel for AngloGold Ashanti Holdings plc, a company incorporated under the laws of the Isle of Man (the “Company”) and AngloGold Ashanti Limited, a company incorporated under the laws of the Republic of South Africa (the “Guarantor”), in connection with the public offering and sale by the Company of $700,000,000 aggregate principal amount of the Company’s 3.750% Notes due 2030 (the “Debt Securities”), to be issued pursuant to the indenture dated April 28, 2010, among the Company, the Guarantor and The Bank of New York Mellon, as Trustee, (the “Base Indenture”). Pursuant to the Base Indenture, the Debt Securities are unconditionally guaranteed by the Guarantor (the “Guarantee” and, together with the Debt Securities, the “Securities”).
In that connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary or appropriate for the purposes of this opinion, including: (a) the registration statement on Form F-3 of the Company and the Guarantor (Registration Nos. 333-230651 and 333-230651-01) (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”) relating to the registration under the Securities Act of various securities of the Company and the Guarantor; (b) the Base Indenture and the officers’ certificate of the Company dated as of October 1, 2020, establishing the terms of the Notes and the Guarantee (the “Officers’ Certificate” and, together with the Base Indenture, the “Indenture”); and (c) the form of the Securities.
Based on the foregoing and subject to the qualifications set forth herein, we are of opinion that, assuming that the Debt Securities and the Guarantee have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for as contemplated in the Registration Statement, the Debt Securities and the Guarantee will constitute legal, valid and binding obligations of the Company and the Guarantor, as applicable, entitled to the benefits of the Indenture and enforceable against the Company and the Guarantor, as applicable, in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally from time to time in effect, to public policy considerations and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law).
We are admitted to practice in the State of New York, and we express no opinion as to matters governed by any laws other than the laws of the State of New York and the Federal laws of the United States of America. In particular, we do not purport to pass on any matter governed by the laws of England and Wales, the Isle of Man or the Republic of South Africa. For purposes of our opinion, we have assumed that (i) the Guarantor has been duly incorporated and is a validly existing company under the laws of the Republic of South Africa and (ii) the Indenture and the Guarantee have been duly authorized, executed and delivered by the Guarantor insofar as the laws of the Republic of South Africa are concerned. With respect to all matters of South Africa law, we note that you are being provided with the opinion, dated the date hereof, of ENSafrica (Edward Nathan Sonnenbergs Inc.), South African counsel to the Company and the Guarantor. For purposes of our opinion, we have also assumed that (i) the Company has been duly incorporated and is a validly existing company under the laws of the Isle of Man and (ii) the Indenture and the Debt Securities have been duly authorized, executed and delivered by the Company insofar as the laws of the Isle of Man are concerned. With respect to all matters of Isle of Man law, we note that you are being provided with the opinion, dated the date hereof, of Cains Advocates Limited, Isle of Man counsel to the Company and the Guarantor.
We have also relied as to certain matters on information obtained from public officials, officers of the Company and the Guarantor and other sources believed by us to be responsible, and we have assumed that the Indenture has been duly authorized, executed and delivered by the Trustee thereunder, an assumption which we have not independently verified. We have assumed (a) the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to us as copies and (b) that the Securities conform to the form of Securities examined by us.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We consent to the filing of this opinion with the Securities and Exchange Commission (the “Commission”) as Exhibit 5.1 to AngloGold Ashanti Limited’s Current Report on Form 6-K filed on October 1, 2020 and to the incorporation by reference of this opinion into the Registration Statement, and to the references to us under the heading “Legal Matters” in the Registration Statement and the Prospectus Supplement related to the offering of the Securities, dated September 28, 2020. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder.
| Very truly yours, |
| /s/ Cravath, Swaine & Moore LLP |
AngloGold Ashanti Limited
76 Rahima Moosa Street
Newtown, Johannesburg, 2001
(P.O. Box 62117, Marshalltown, 2107)
South Africa
AngloGold Ashanti Holdings plc
Falcon Cliff
Palace Road
Douglas
Isle of Man, IM2 4LB
O
Exhibit 5.2
ENSafrica
The MARC | Tower 1
129 Rivonia Road Sandton
Johannesburg South Africa 2196
P O Box 783347 Sandton South Africa 2146
Docex 152 Randburg
tel +2711 269 7600
info@ENSafrica.com
opinion
| AngloGold Ashanti Limited 76 Rahima Moosa Street Newtown Johannesburg 2001 (P.O. Box 62117, Marshalltown, 2107) South Africa
AngloGold Ashanti Holdings plc Falcon Cliff Palace Road Douglas Isle of Man IM2 4LB
(the “Addressees”) |
vm003
1 October 2020 |
our ref your ref date | ||
Ladies and Gentlemen,
AngloGold Ashanti Limited: issue by AngloGold Ashanti Holdings plc of U.S. $700,000,000 3.750% notes due 2030 guaranteed by AngloGold Ashanti Limited
| 1. | Introduction |
| 1.1. | We have acted as independent South African legal adviser to AngloGold Ashanti Limited (the “Guarantor”) and AngloGold Ashanti Holdings plc (the “Issuer”), in connection with the issue by the Issuer of U.S. $700,000,000 3.750% notes due 2030 (the “Notes”), which Notes are unconditionally guaranteed by the Guarantor. |
| 1.2. | Capitalised terms used but not otherwise defined herein shall have the meaning ascribed thereto in the Registration Statement (as defined below). |
| 1.3. | In connection with this opinion (this “Opinion”), we have: |
| 1.3.1. | examined a copy of: |
| 1.3.1.1. | the executed Indenture dated 28 April 2010 between the Issuer, the Guarantor and The Bank of New York Mellon (as trustee) (the “Indenture”), together with the guarantee (the “Guarantee”) contemplated therein; |
| 1.3.1.2. | the various parts (including all exhibits thereto) of the executed F3 Registration Statement dated 1 April 2019, including the Prospectus dated 1 April 2019 (the “Registration Statement”); |
| 1.3.1.3. | the Prospectus Supplement dated 28 September 2020 (the “Prospectus Supplement”); |
| 1.3.1.4. | the form of the Notes; and |
| 1.3.1.5. | the form of the Guarantee |
(the Notes, the Guarantee and the documents listed in paragraph 1.3.1.1 to paragraph 1.3.1.3 above being hereinafter referred to as the “Issue Documents”);
| 1.3.2. | relied upon and examined: |
| 1.3.2.1. | a copy of: |
| 1.3.2.1.1. | the minutes of the meeting of the shareholders of the Guarantor held on 10 June 2020, pursuant to which the board of directors of the Guarantor is authorised to provide direct or indirect financial assistance to any related or inter-related company or corporation, in terms of sections 44 and/or 45 of the Companies Act, 2008 (the “Companies Act”); |
| 1.3.2.1.2. | the resolution of the board of directors of the Guarantor held on 22 September 2020, pursuant to which (i) the Guarantor is authorised to enter into or issue, as the case may be, the Issue Documents and the transactions contemplated by the Issue Documents, (ii) the Guarantor is authorised to provide direct or indirect financial assistance, and (iii) the Authorised Persons (as defined therein) are authorised, on behalf of the Guarantor, to negotiate and sign the applicable Issue Documents and to act in connection with the Issue Documents; |
| 1.3.2.2. | a certificate, dated 28 September 2020, containing an original list of the names and specimen signatures of the Authorised Persons; |
| 1.3.2.3. | a certificate, dated 28 September 2020, certifying a copy of all constitutive documents of the Guarantor, including, without limitation, the Memorandum of Incorporation (previously the Memorandum and Articles of Association) of the Guarantor; |
| 1.3.2.4. | a copy of the written application (dated 24 August 2020) by the Guarantor to the Financial Surveillance Department of the South African Reserve Bank (“Excon”), seeking approval for, inter alia, the issue of the Guarantee pursuant to the issue of the Notes (the “Excon Application”); |
| 1.3.2.5. | a copy of the written approval of Excon (given on condition that Excon should be informed if the Guarantee is called upon), dated 17 September 2020, in relation to the issue of the Guarantee pursuant to the issue of the Notes (the “Excon Approval”, and together with the Excon Application, the “Excon Approval Documents”) |
(the documents listed in paragraph 1.3.2 above hereinafter being referred to as the “Authorising Documents”);
| 1.3.3. | relied upon and examined a copy of the report(s) produced by a search of the records of the Companies and Intellectual Property Commission (“CIPC”) carried out in respect of the Guarantor on 28 September 2020; and |
| 1.3.4. | relied upon a search made at the Registrar’s office at the North Gauteng High Court of South Africa (Pretoria) on 29 September 2020 and the South Gauteng High Court of South Africa (Johannesburg) on 29 September 2020, which search indicated that no applications, resolutions or orders for the liquidation or winding-up of the Guarantor are reflected in the records of the North Gauteng High Court of South Africa (Pretoria) and the South Gauteng High Court of South Africa (Johannesburg) as at 29 September 2020. |
| 2. | Opinions |
| 2.1. | Based upon our examination of all the documents and information referred to in paragraph 1.3 above, and subject to the assumptions and qualifications set forth herein, it is our opinion that: |
| 2.1.1. | the Guarantor is a limited liability company duly incorporated and validly existing under the laws of the Republic of South Africa (“South Africa”); |
| 2.1.2. | the Guarantor has corporate power and authority to enter into and perform its obligations under the Issue Documents, has validly executed the Indenture and the execution and performance of the Issue Documents has been duly authorised by all necessary action on the part of the Guarantor and such entry into and performance thereof will not violate the applicable laws of South Africa now in effect; |
| 2.1.3. | the entering into the Issue Documents by the Guarantor and the performance by the Guarantor of its obligations thereunder do not and will not conflict with, or result in a breach of, any of the terms or provisions of any of the Guarantor’s constitutive documents, including without limitation, the Memorandum of Incorporation of the Guarantor; |
| 2.1.4. | the Authorised Persons that signed the Indenture on behalf of the Guarantor are authorised by the Guarantor to sign the Indenture and to act in connection with the Issue Documents; |
| 2.1.5. | the Issue Documents, in so far as they relate to the Guarantor, constitute the legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms, except as such enforcement may be limited by applicable insolvency, liquidation, business rescue, curatorship, reorganization or other similar laws affecting the enforcement of creditors’ rights generally; |
| 2.1.6. | no consent, approval, authorisation, orders, clearances or qualification of or with any court or governmental agency or stock exchange authority or body having jurisdiction over the Guarantor is required in South Africa for the issuance by the Guarantor of the Guarantee, save in respect of the consent and authorisation of the Financial Surveillance Department of the South African Reserve Bank, which, pursuant to the Excon Approval Documents, has been duly obtained and is of full force and effect; |
| 2.1.7. | the statements set forth (i) in the Prospectus Supplement, under the caption ‘Taxation – South African Taxation’, and (ii) in the Registration Statement under the caption ‘Taxation’, insofar as they purport to describe provisions of the laws of South Africa, fairly summarise the matters described therein, subject to the context of the disclaimer set out in the Prospectus Supplement under the captions ‘Taxation – South African Taxation: General’); |
| 2.1.8. | to the best of our knowledge and belief, and based solely on the searches relied upon in paragraph 1.3.4 above, no order or resolution for the winding-up of the Guarantor has been made or passed and no judgment has been delivered declaring the Guarantor insolvent or otherwise subject to business rescue proceedings. |
| 3. | Assumptions, Reservations and Qualifications |
1. The opinions contained herein are subject to the following assumptions, reservations and qualifications (and those contained elsewhere in this Opinion):
| 3.1. | The opinions contained herein are given as of the date hereof. We express no opinion as to the laws of any jurisdiction other than the laws of South Africa. This Opinion is limited to the laws and regulations in effect in South Africa on and as of the date of this Opinion and is given on the basis that it will be governed and construed in accordance with South African law applicable as at the date hereof. No obligation is assumed to update this Opinion or to inform any person of any changes in South African law or other matters coming to our knowledge and occurring after the date hereof, which may affect this Opinion in any respect. This Opinion encompasses only the matters expressly dealt with herein and its ambit may not be extended by implication or otherwise to deal with or encompass any other matters. |
| 3.2. | This Opinion assumes (with your consent) in relation to the Issue Documents: |
| 3.2.1. | that all legal and administrative formalities in relation to the issue of Notes and the Guarantee (other than as stated in paragraph 2 above), will be complied with; |
| 3.2.2. | the authenticity of each signatory’s signature to the Issue Documents; |
| 3.2.3. | the completeness and conformity to the copy of the Issue Documents supplied to us; |
| 3.2.4. | that the Guarantee issued pursuant to the Indenture will conform with the form of the Guarantee described in paragraph 1.3.1.5 above, and the Notes issued pursuant to the Indenture will conform with the form of the Notes described in paragraph 1.3.1.4; |
| 3.2.5. | that the Issue Documents and/or Authorising Documents as reviewed by us have not been superseded, amended or novated in any respect, except that we are aware that the Registration Statement has been supplemented by the Prospectus Supplement; |
| 3.2.6. | that each of the parties to the Issue Documents (other than the Guarantor) has, in accordance with the laws of the jurisdiction in which such party is incorporated: |
| 3.2.6.1. | the capacity, power and authority; |
| 3.2.6.2. | fulfilled all internal authorisation procedures and applicable formalities; and |
| 3.2.6.3. | obtained all necessary agreements, consents, licenses or qualifications (whether as a matter of any law or regulation applicable to it or as a matter of any contract binding upon it), |
to enter into the Issue Documents and to perform their respective obligations thereunder;
| 3.2.7. | that none of the parties to the Issue Documents (other than the Guarantor) has adopted any resolution or taken any action that would affect in any respect any of the opinions expressed herein; |
| 3.2.8. | that all authorisations constituted by the resolutions referred to in paragraph 1.3.2.1 and the delegation of all authorities under and/or in respect thereof have been validly made and remain in full force and effect, the directors have been duly appointed, the meetings of directors or shareholders, as the case may be, were duly convened and held (where applicable) and all such resolutions have been duly passed and in respect of any board or shareholder resolutions, such resolutions have been duly passed in accordance with the provisions of the Companies Act; |
| 3.2.9. | that the board of directors of the Guarantor is bona fide in its assessment of the reasonably foreseeable financial circumstances of the Guarantor and the board of directors of the Guarantor is satisfied that: (i) immediately after providing the contemplated financial assistance, the Guarantor would satisfy ‘the solvency and liquidity test’ (as defined in the Companies Act); and (ii) the terms under which the financial assistance is proposed to be given are fair and reasonable to the Guarantor; |
| 3.2.10. | the copy of the Memorandum of Incorporation of the Guarantor supplied to us was true, complete and up to date in all respects; |
| 3.2.11. | the transactions contemplated by and the obligations assumed under the Issue Documents are for the benefit of the parties thereto and that no person has been, or will be, engaged in conduct that is misleading or deceptive or likely to mislead or deceive in relation thereto; |
| 3.2.12. | that there are no provisions of the laws of any jurisdiction outside South Africa which invalidate the choice of New York law by the parties to the Issue Documents; |
| 3.2.13. | that the Issue Documents are valid and binding on each party under the laws of any jurisdiction, other than South Africa; |
| 3.2.14. | that there are no agreements, documents or arrangements in existence between the parties to the Issue Documents which have not been disclosed which materially affect, amend or vary the terms of the transactions contemplated under the Issue Documents; |
| 3.2.15. | there are no provisions of the laws of any jurisdiction outside South Africa which would be contravened by the execution or delivery of the Issue Documents, and that, insofar as any obligation expressed to be incurred under the Issue Documents is to be performed in or is otherwise subject to the laws of any jurisdiction outside South Africa, its performance will not be illegal or ineffective by virtue of the laws of that jurisdiction; |
| 3.2.16. | except as provided in paragraph 2.1.8, that the Guarantor is not insolvent or unable to pay its debts as they fall due and will not become insolvent or unable to pay its debts as they fall due as a result of its entry into the Issue Documents and performance of the transactions contemplated therein; |
| 3.2.17. | except as provided in paragraph 2.1.8, that none of the parties to the Issue Documents has taken any corporate action and no other steps have been taken and no legal proceedings have been started or threatened for the liquidation, winding up, sequestration or similar proceedings, as the case may be, in any relevant jurisdiction in respect of any of the parties to the Issue Documents; |
| 3.2.18. | the documents referred to in paragraph 1.3.2.3 were correctly certified as true copies of the original document, were complete in all respects and had not been superseded, amended or novated in any respect. |
| 3.3. | Any foreign judgment obtained in respect of the Issue Documents will, subject to the permission of the Minister of Economic Affairs (or the appropriate minister in whose portfolio the duties of the Minister of Economic Affairs may fall under) (if the Protection of Businesses Act, 99 of 1978 (the “Businesses Act”) is applicable), be recognised and enforced in accordance with the ordinary procedures applicable under South African law for the enforcement of foreign judgments; provided that: |
| 3.3.1. | the judgment is final and conclusive; |
| 3.3.2. | the recognition and enforcement of the judgment is not against public policy in that, among other things, the judgment was not obtained by fraud or rendered contrary to natural justice, and does not involve the enforcement of foreign penal or revenue laws; |
| 3.3.3. | the recognition and enforcement of the judgment does not contravene section1A of the Businesses Act, which prohibits the payment of multiple or punitive damages; |
| 3.3.4. | the foreign court in question had jurisdiction and is competent within its own jurisdiction according to the principles recognised by the laws of South Africa and, in regard to these principles, and foreign judgments based on money claims, the courts of South Africa recognise such jurisdiction and competence on the basis of the submission, whether by agreement or by conduct, of the defendant to the jurisdiction of the foreign court or the residence of the defendant in the area of the foreign court at the time of the commencement of the action. |
| 3.4. | The South African courts will not apply a foreign law if: |
| 3.4.1. | it is not pleaded and proved; or |
| 3.4.2. | the selection of the foreign law was not bona fide and legal; or |
| 3.4.3. | to do so would be contrary to public policy. |
| 3.5. | In respect of any suit or action by any counterparty against the Guarantor in South African courts, such counterparty, as a foreign plaintiff or perigrinus: |
| 3.5.1. | may be required in terms of South African law to deposit security for certain legal costs in respect of legal proceedings instituted in the courts of South Africa; |
| 3.5.2. | may not be required to provide security for certain legal costs if at the time of commencement of such suit or action, under South African law, such counterparty is considered to be a national of: |
| 3.5.2.1. | a contracting State of the Convention Relating to Civil Procedures made at the Hague on 1 March 1954, which convention has, at the time of commencement of such suit or action, been duly ratified by the national legislature of South Africa and adopted into South African law; or |
| 3.5.2.2. | a State that has entered into a bilateral treaty with South Africa that eliminates the requirement of security for such legal costs in respect of suits or actions between nationals of State parties to the bilateral treaty on a reciprocal basis, which bilateral treaty has, at the time of commencement of such suit or action, been duly ratified by the national legislature of South Africa and adopted into South African law. |
| 3.6. | As at the date hereof, South Africa has not ratified or adopted the Convention Relating to Civil Procedures made at the Hague on 1 March 1954 or the bilateral treaty contemplated in paragraph 3.5.2.2 above. |
| 3.7. | Any signature on the Issue Documents signed outside South Africa must be authenticated: |
| 3.7.1. | if signed in England, by a notary public in England; or |
| 3.7.2. | if elsewhere, in accordance with the Uniform Rules of Court (of South Africa) |
in order for the document to be received in the courts of South Africa unless the document is shown to the satisfaction of the court to have been actually signed by the person purporting to have signed such document.
| 3.8. | Under South African law, a court will not accept a complete ouster of jurisdiction, although generally it recognises party autonomy and gives effect to a choice of law. However, jurisdiction remains within the discretion of the court and a court may, in certain instances, assume jurisdiction provided there are sufficient jurisdictional connecting factors. Similarly, the courts may, in rare instances, choose not to give effect to a choice of jurisdiction clause, if such choice is contrary to public policy. |
| 3.9. | It is uncertain under South African law whether the parties to a contract can agree in advance the governing law of claims connected with the contract but which are not claims under the contract, such as claims in delict (tort). |
| 3.10. | A South African court may determine, in its discretion, that the parties to the Issue Documents are able to amend it by oral agreement despite any provisions to the contrary. |
| 3.11. | South African company law is governed by statute and by common law. The Companies Act and the regulations published under section 223 thereof have replaced the Companies Act, 1973 (Act 61 of 1973) (the “Old Companies Act”), except for chapter 14 thereof, that deals with the winding-up of companies, in its entirety. Absent a general body of case law and general practice, opinions given in respect of the Companies Act are given with reference to section 5 and 7 thereof that set out the purpose of the Companies Act and principles applicable to its interpretation and having regard to South African common law. |
| 3.12. | Winding-Up and Insolvency |
| 3.12.1. | In South African law, the winding-up, business rescue and judicial management of companies is regulated by both the Companies Act, the Old Companies Act and the Insolvency Act, 24 of 1936 (the “Insolvency Act”). |
| 3.12.2. | The effect of the Companies Act, the Old Companies Act and the Insolvency Act (together with any other laws regulating the enforcement of creditors’ rights generally) is such that if the parties are subject to winding up or judicial management, then the parties may not have the power, capacity and authority to conclude the Issue Documents to which they are a party, as the power, capacity and authority of the parties may be limited or affected by bankruptcy, insolvency, reorganisation, moratorium, fraudulent conveyance and other similar laws (including constitutional laws and court decisions) including, without limitation, limitations introduced by way of equitable principles. |
| 3.12.3. | The further effect of the Old Companies Act, the Companies Act and the Insolvency Act and any other laws regulating the enforcement of creditors’ rights generally is such that it may not be possible for the parties to enforce the rights conferred by the Issue Documents to the full extent therein contemplated as the enforceability of such Issue Documents may be limited or affected by bankruptcy, insolvency, reorganisation, moratorium, fraudulent conveyance and other similar laws (including court decisions) now or hereafter in effect, including without limitation, limitations introduced by way of equitable principles. Accordingly, as used in this Opinion, the term “enforceable” means that each of the obligations of the Guarantor under the Issue Documents is of a type and form enforced by the courts of South Africa. It is not certain, however, that each such obligation will be enforced in accordance with its terms in every circumstance, enforcement being subject to, among other things: |
| 3.12.3.1. | the laws affecting creditors’ rights generally including, but not limited to, insolvency laws; |
| 3.12.3.2. | the laws of prescription and set-off: claims may become time barred or may be or may become subject to defences of set-off or counterclaim; |
| 3.12.3.3. | where obligations are to be performed in a jurisdiction outside South Africa, they may not be enforceable in South Africa to the extent that performance would be illegal under the laws of the other jurisdiction or contrary to public policy in such other jurisdiction; |
| 3.12.3.4. | payment obligations that are contrary to the exchange control regulations of any country or economic union in whose currency the relevant amounts are payable may not be enforceable in South Africa; |
| 3.12.3.5. | enforcement may be limited to the extent that matters in respect of which it has been expressly assumed herein will be done, have not been done; |
| 3.12.3.6. | enforcement of obligations may be invalidated by reason of fraud, duress, misrepresentation, or undue influence; |
| 3.12.3.7. | matters of procedure upon enforcement of the Issue Documents will be governed by and determined in accordance with the law of the forum where such enforcement takes place; |
| 3.12.3.8. | principles of equity and the doctrine of the South African courts in enforcing equitable remedies and principles of public policy. |
| 3.12.4. | In terms of the Old Companies Act, a company may be wound up (i) voluntarily (a creditors’ voluntary winding- up or a members’ voluntary winding up) by way of a special resolution of the members of the company or (ii) by the court by way of a court order. Any report produced by a search of the records of CIPC will not necessarily reveal (i) any special resolution which has been passed by |
| the members of a company for a creditors’ or a members’ voluntary winding-up of the company which has not been registered with CIPC, (ii) any order made by a court for the liquidation, winding-up or judicial management of a company of which CIPC has not been notified, or (iii) any petition presented to a court for the liquidation, winding-up or judicial management of a company. In regard to subparagraph (ii) it should be noted that there may be a delay of more than six months before an order made by a court for the liquidation, winding-up or judicial management of a company is notified to CIPC. |
| 3.13. | To the extent that any matter is expressed to be determined by future agreement or negotiation, the relevant provision may be unenforceable or void for uncertainty under South African law. |
| 3.14. | The effectiveness of any provision of any Issue Document which allows an invalid provision to be severed in order to save the remainder of such Issue Document will be determined by the South African courts in their discretion. |
| 3.15. | Any provision in the Issue Documents that a person shall not exercise a right or obligation conferred or imposed on that person by South African law, is subject to considerations of public policy. There is authority in South African law to indicate that persons may not contract in violation of South African law made for the benefit of the public. |
| 3.16. | South African courts may not enforce a provision of the Issue Documents that limits a fundamental constitutional right of a South African contract party. In determining the constitutional validity of contractual provisions, South African courts will have regard to (i) public policy considerations, including whether the contractual provision is fair and reasonable in content and with reference to its enforcement in the relevant circumstances; (ii) competing rights such as the common law right of freedom of contract; and (iii) the relative bargaining positions of the contract parties. |
| 3.17. | The Conventional Penalties Act, 15 of 1962 of South Africa provides (inter alia) that: |
| 3.17.1. | a creditor shall not be entitled to recover, in respect of an act or omission which is the subject of a penalty stipulation, both the penalty and damages or, except where the relevant contract expressly so provides, to recover damages in lieu of the penalty; and |
| 3.17.2. | if upon the hearing of a claim for a penalty, it appears to the court that such penalty is out of proportion to the prejudice suffered by the creditor by reason of the act or omission in respect of which the penalty was stipulated, the court may reduce the penalty to such extent as it may consider equitable in the circumstances; provided that in determining the extent of such prejudice the court shall take into consideration not only the creditor’s proprietary interest but every other rightful interest which may be affected by the act or omission in question. |
| 3.18. | The power of a South African court to order specific performance of an obligation or to grant injunctive relief is discretionary and, accordingly, we express no opinion as to whether such remedies will be available in respect of any of the obligations of the Guarantor under the Issue Documents. |
| 3.19. | Generally, certificates as evidence of indebtedness issued by a creditor to a debtor, or as to other facts, are under South African law, subject to enquiry and may accordingly not be valid or enforceable if expressed to be conclusive. |
| 3.20. | Provisions that a defaulting party will pay all of the innocent party’s legal costs of taking action are not enforced by the South African courts, and the general rules relating to party and party, attorney and client and attorney and own client costs are applied. |
| 3.21. | A determination, designation, calculation or certificate of any party to the Issue Documents, as to any matter provided for in the Issue Documents might, in certain circumstances, be held by the South African courts not to be final, conclusive or binding (for example, if it could be shown to have an arbitrary basis or not to have been reached in good faith) notwithstanding the provisions of the Issue Documents. |
| 3.22. | Where a party to the Issue Documents is vested with a discretion or may determine a matter in its opinion, the South African courts if called upon to consider the question may require that such discretion is exercised reasonably or that such opinion is based upon reasonable grounds. |
| 3.23. | The effectiveness of terms releasing or exculpating any party from, or limiting or excluding, a liability or duty otherwise owed, may be limited by law in South Africa. |
| 3.24. | Any claim that any counterparty may have against the Guarantor arising out of or in connection with the Issue Documents will, under the laws of South Africa, prescribe after the expiry of a period of 3 (three) years from the date on which the cause of action in respect of such claim arose. |
| 3.25. | Except as explicitly stated herein, we give no opinion as to: |
| 3.25.1. | matters of fact; |
| 3.25.2. | any liability to any form of tax; |
| 3.25.3. | the applicability of any provision relating to competition law in South Africa; |
| 3.25.4. | the commercial desirability or reasonability of any of the terms of the Issue Documents or the transactions referred to therein; |
| 3.25.5. | the suitability or adequacy or correctness of the representations, warranties and undertakings of the Issue Documents; |
| 3.25.6. | the fulfilment of any of the conditions precedent in any of the Issue Documents; |
| 3.25.7. | whether the Guarantor will be in a position to fulfil its obligations under the Issue Documents; |
| 3.25.8. | except with respect to paragraph 2.1.3, whether the acceptance, execution or performance of the Guarantor’s obligations under the Issue Documents will result in the breach of or infringe any other agreement, deed or arrangement entered into by or binding on the Guarantor; or |
| 3.25.9. | except with respect to paragraph 2.1.2, compliance by the parties with South African law in the performance of their obligations under, and implementation of, the Issue Documents. |
| 3.26. | The content of paragraph 1.3.3 is dependent on the integrity of the records and information systems of CIPC, which records and information systems are often incomplete and outdated. It is not possible to verify the accuracy of the search results referred to in paragraph 1.3.3 which we obtained from CIPC. |
| 3.27. | The content of paragraph 1.3.4 is dependent on the integrity of the records and information systems of the North Gauteng High Court of South Africa (Pretoria) or the South Gauteng High Court of South Africa (Johannesburg), which records and information systems are often incomplete and outdated, and only reflect applications or actions brought in those courts and not any other court. It is not possible to verify the accuracy of the search results referred to in paragraph 1.3.4 which we obtained from the North Gauteng High Court of South Africa (Pretoria) and the South Gauteng High Court of South Africa (Johannesburg), nor is it possible to confirm whether or not any applications have been brought before any other court in South Africa. |
| 4. | This Opinion is being furnished at the request of the Addressees, on the basis that this Opinion is required (i) under item 601(b)(5) of Regulation S:K of the United States Securities Act of 1933, pursuant to the filing, with the Commission, of the Registration Statement and the Prospectus Supplement, (ii) pursuant to the issue of the Notes, and (iii) for the issue of the Guarantee. |
| 5. | This Opinion is intended solely for use in connection with (i) the filing with the Commission, of the Form F-3 Registration Statement and the Prospectus Supplement, (ii) the issuance of the Notes, and (iii) the issue of the Guarantee, subject to the Registration Statement, and is not to be relied upon for any other purpose. |
| 6. | We consent (the “Consent”) to (i) the filing of this Opinion with the Commission, as an exhibit to a report on Form 6-K to be filed with the Commission and incorporated by reference into the Registration Statement, (ii) the references to this Opinion in the Registration Statement, and (iii) the references to Edward Nathan Sonnenbergs Inc. (“ENS”), in (i) the Registration Statement under the section headed ‘Legal Matters’, and (ii) the Prospectus Supplement under the section headed ‘Legal Matters’. In giving this Consent, ENS does not admit or concede that it is within the category of persons whose consent is required under section 7 of the U.S. Securities Act of 1933, or the rules or regulations of the Commission promulgated thereunder. ENS is a privately incorporated company of lawyers admitted to practice in South Africa, and (i) the lawyers of ENS are, for purposes of the Consent and/or this Opinion, not admitted in, (ii) ENS does not hold itself out as being experts on, and (iii) ENS does not express any opinion on, the law of any jurisdiction other than the laws of South Africa. |
/s/ ENSafrica
Exhibit 5.3
| Your Ref:
Our Ref: 28359.0005/62476684.1
Tel No: +44 1624 638300 |
Please Respond To: Tristan Head
Direct Dial: +44 1624 638393
Email: tristan.head@cains.com |
| 1 October 2020 |
| AngloGold Ashanti Limited 76 Rahima Moosa Street Newtown Johannesburg, 2001 (P.O. Box 62117, Marshalltown, 2107) South Africa
AngloGold Ashanti Holdings plc Falcon Cliff Palace Road Douglas Isle of Man IM2 4LB |
Dear Sirs,
AngloGold Ashanti Holdings plc (Company Registration No: 001177V) (the “Company”)
| 1. | We have acted as Isle of Man legal advisers to the Company and AngloGold Ashanti Limited (the “Guarantor”) in connection with the Company’s offering of US$700,000,000 aggregate principal amount at maturity of its 3.750% notes due 2030 (the “Notes”), each fully and unconditionally guaranteed by the Guarantor (the “Guarantees” and, together with the Notes, the “Debt Securities”), being the Company’s holding company, in an underwritten public offering pursuant to an underwriting agreement dated 28 September 2020 (the “Underwriting Agreement”) between the Company, the Guarantor and the several underwriters listed in Schedule I annexed thereto (the “Underwriters”). |
| 2. | The Debt Securities are to be issued pursuant to an indenture dated 28 April 2010 (the “Indenture”) among the Company, the Guarantor and The Bank of New York Mellon (as trustee). |
Documents Examined
| 3. | For the purpose of giving this opinion we have examined copies of the following documents (but no others): |
| 3.1 | the Underwriting Agreement; |
| 3.2 | the Indenture; |
| 3.3 | the terms of the Debt Securities and the certificates representing the Debt Securities; |
| 3.4 | the Prospectus Supplement dated 28 September 2020, filed with the Commission (as defined herein) (the “Prospectus”); |
| 3.5 | the Memorandum and Articles of Association of the Company appearing on the file of the Company maintained by the Isle of Man Registrar of Companies (the “Registrar”) appointed pursuant to the Companies Act 2006 (the “Act”) on 1 October 2020 (the “Search Date”); and |
| 3.6 | resolutions of the board of directors of the Company passed on 20 April 2010 and 21 September 2020, approving, inter alia, the issue and the offer of the Notes (the “Resolutions”). |
For the purposes of this opinion, the documents listed at paragraphs 3.1 to 3.3 inclusive are together referred to as the “Documents”.
Searches
| 4.1 | On the Search Date, we procured a search of the file maintained by the Registrar in relation to the Company. Please note that our search only reflected documentation which had been processed by the Registrar and placed on such file and did not reflect matters which had been lodged for registration, but had not actually been placed on such file. |
| 4.2 | On the Search Date, we also procured that an on-line search of the entries and filings available for public inspection at the Isle of Man Courts Public Office and the Isle of Man Central Registry be undertaken in respect of the Company. However, we would ask you to note that these searches cannot be conclusively relied upon to reveal any litigation in which the Company may be involved. |
Isle of Man Law
| 5. | This opinion is given only with respect to the currently applicable laws of the Isle of Man and is given on the basis that it will be governed by and construed in accordance with such laws. |
| 6. | We have made no investigation of the laws of any jurisdiction other than the Isle of Man and neither express nor imply any opinion as to any other laws and in particular the laws of the State of New York and the laws of the United States of America and South Africa. |
Assumptions
| 7. | For the purposes of giving this legal opinion, we have assumed: |
| 7.1 | the genuineness of all signatures; the capacity of all signatories; the authenticity and completeness of all documents submitted to us as copies; and the correctness of all facts stated in and representations made in the Documents (except as otherwise expressly opined upon herein); |
| 7.2 | that we have been provided with copies or originals of all documents which are relevant to the transaction governed by, or referred to in, the Documents or which might affect the opinions expressed in this letter; |
| 7.3 | that each party to the Underwriting Agreement and the Indenture, as the case may be, other than the Company, was duly organised and validly existing as at the date of the Underwriting Agreement and the Indenture, as the case may be, and remains duly organised and existing at the date of this opinion and that each has and will have full capacity, power and authority and all necessary regulatory and other approvals, exemptions, licences and authorisations to execute, deliver and perform each of its obligations under the Underwriting Agreement and the Indenture, as the case may be; |
| 7.4 | that no provisions of the laws of any jurisdiction outside the Isle of Man would be contravened by the execution or delivery of the Documents and the offer or issue of the Debt Securities; |
| 7.5 | that, insofar as any obligation under any of the Documents falls to be performed in any jurisdiction outside the Isle of Man, its performance would not be unlawful by virtue of the laws of that jurisdiction; |
| 7.6 | that no laws (other than of the Isle of Man) which may apply with respect to the Documents or the transactions and matters contemplated thereby would be such as to affect any of the opinions stated herein; |
| 7.7 | that each of the Documents is valid, binding and effective and imposes valid, legally binding and enforceable duties and liabilities on the parties thereto in accordance with its terms under the laws by which it is expressed to be governed and any other applicable law (in each case, excluding the laws of the Isle of Man); |
| 7.8 | that, as at the Search Date, the file maintained by the Registrar in relation to the Company accurately and completely recorded and reflected all resolutions passed and other actions or events in relation to the Company which give rise to an obligation on the part of the Company or any other party to deliver forms or documents to the Registrar; |
| 7.9 | that the Resolutions have not been varied, amended or revoked and remain in full force and effect at the date of this letter; |
| 7.10 | that the directors of the Company are acting bona fide in the best interests of the Company; and |
| 7.11 | that there are no vitiating factors of which we are unaware such as fraud, undue influence or duress, which might affect the opinions expressed in this letter. |
Opinion
| 8. | On the basis of the foregoing, we advise you that, in our opinion: |
| 8.1 | the Notes have been duly authorised in accordance with the Indenture, and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, the Debt Securities will constitute valid and binding obligations of the Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with their terms; and |
| 8.2 | the statements made in the Prospectus under the caption “Taxation — Isle of Man Taxation”, insofar as they purport to describe the material tax consequences of an investment in the Debt Securities, fairly summarise the matters therein described. |
Qualification
| 9. | References herein to the obligations of the Company or the Guarantor being legal, valid and binding upon it should be construed to mean that such obligations are of a nature generally considered to be legal, valid and binding by the Isle of Man courts as a matter of Isle of Man law. Our opinion as to the validity and enforceability of the Debt Securities is subject to applicable laws relating to bankruptcy, insolvency, liquidation, reorganisation, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity; enforceability may depend upon the particular factual circumstances; enforcement may depend upon the exercise of suitable discretion by the Isle of Man courts; and claims may become barred under the Limitation Act 1984 (as amended) or be subject to set-off or counterclaim. |
Reliance
| 10. | This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the United States Securities Act of 1933. |
| 11. | We consent to the filing of this opinion with the United States Securities and Exchange Commission (the “Commission”) as an exhibit to a report on Form 6-K to be filed by the Company and the Guarantor on or around the date hereof and incorporated by reference into the Form F-3 Registration Statement filed with the Commission by the Company and the Guarantor. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933, or the rules or regulations of the Commission promulgated thereunder. |
Yours faithfully,
/s/ Cains Advocates Limited