As filed with the Securities and Exchange Commission on August 24, 2020
Registration Statement No. 333-227263
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
Form F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Sasol Limited
(Exact Name of Registrant as Specified in its Charter)
Republic of South Africa
(State or Other Jurisdiction of Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification Number)
Sasol Place, 50 Katherine Street, Sandton, 2196
South Africa
Tel: +27 10 344 5000
(Address and Telephone Number of Registrants Principal Executive Offices)
Sasol Financing USA LLC
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification Number)
12120 Wickchester Lane
Houston, Texas 77079, USA
Tel: +1 281-588-3000
(Address and Telephone Number of Registrants Principal Executive Offices)
CT Corporation System
111 Eighth Avenue
New York, New York 10011, USA
Tel: +1 404-888-6494
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Trevor Ingram
Shearman & Sterling (London) LLP
9 Appold Street
London EC2A 2AP, England
Tel: +44 (20) 7655-5000
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. x
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. x
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company o
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
The term new or revised financial accounting standard refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
CALCULATION OF REGISTRATION FEE
Title of Each Class of |
|
Amount to be |
|
Amount of |
Ordinary shares of Sasol Limited (including ordinary shares represented by American Depositary Shares)(1) |
|
Indeterminate(2) |
|
$0(3) |
Rights to purchase ordinary shares of Sasol Limited (including ordinary shares represented by American Depositary Shares)(1) |
|
Indeterminate(2) |
|
$0(3) |
(1) A portion of the ordinary shares, no par value, of Sasol Limited may be represented by American Depositary Shares, each of which represents one ordinary share.
(2) An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units or represented by depositary shares.
(3) In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the registrants are deferring payment of all of the registration fee.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement on Form F-3 (File No. 333-227263) (the Registration Statement) of Sasol Limited and Sasol Financing USA LLC is being filed for the purposes of (i) registering, in addition to the indeterminate amount of debt securities and guarantees previously registered on the Registration Statement, an indeterminate amount of ordinary shares of Sasol Limited (including ordinary shares represented by American Depositary Shares) and rights to purchase ordinary shares of Sasol Limited (including ordinary shares represented by American Depositary Shares), (ii) filing a prospectus relating to the ordinary shares of Sasol Limited and the rights to purchase such ordinary shares, to be issued from time to time by Sasol Limited, (iii) filing as a new Exhibit 4.4, the Agreement of Resignation, Appointment and Acceptance, dated as of August 5, 2020, by and among Sasol Financing USA LLC, Sasol Limited, Citibank, N.A. and Wilmington Savings Fund Society, FSB, to confirm the succession of Wilmington Savings Fund Society, FSB as the trustee under the Sasol Financing USA LLC guaranteed debt indenture, (iv) filing a new Form T-1 relating to the eligibility of Wilmington Savings Fund Society, FSB to replace the previously filed Exhibit 25.1 and (v) filing additional exhibits to the Registration Statement. No changes or additions are being made hereby to the existing prospectus dated September 10, 2018 relating to guaranteed debt securities to be issued from time to time by Sasol Financing USA LLC, which remains a part of the Registration Statement, and therefore it is omitted from this filing. This Post-Effective Amendment No. 1 to the Registration Statement shall become effective immediately upon filing with the Securities and Exchange Commission.
Prospectus
Sasol Limited
(incorporated in the Republic of South Africa with limited liability)
This prospectus offers:
Ordinary Shares, no par value,
including Ordinary Shares represented by American Depositary Shares
Rights to Subscribe for Ordinary Shares
We will provide the specific terms of the securities that may be offered, and the manner in which they are being offered, in one or more supplements to this prospectus. Any supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement, together with the additional information described under the heading Where You Can Find More Information, before investing in our securities. The amount and price of the offered securities will be determined at the time of the offering.
Our ordinary shares are listed on the Main Board of the JSE Limited under the symbol SOL. The American depositary shares, or ADSs, each representing one ordinary share, are listed on the New York Stock Exchange under the symbol SSL.
Investing in these securities involves risks that are described in the Risk Factors section contained in the applicable prospectus supplement and may be described in certain of the documents we incorporate by reference in this prospectus.
Neither the United States Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is August 24, 2020.
1 | |
1 | |
2 | |
2 | |
2 | |
2 | |
3 | |
3 | |
3 | |
3 | |
3 | |
3 | |
4 | |
5 | |
6 | |
6 |
This prospectus is part of a registration statement on Form F-3 that has been filed with the Securities and Exchange Commission, which we refer to as the SEC, using a shelf registration process. Under this shelf registration process, we may offer and sell any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we use this prospectus to offer the offered securities, we will provide one or more prospectus supplements that will contain specific information about the offering and the terms of those securities and the extent to which such terms differ from the general terms described in this prospectus. The prospectus supplements may also add, update or change the information contained in this prospectus. You should read this prospectus and any applicable prospectus supplement(s), together with the additional information described under the heading Where You Can Find More Information, prior to purchasing any of the securities offered by this prospectus.
All references to the group, us, we, our, company, or Sasol in this prospectus are to Sasol Limited, its group of subsidiaries and its interests in associates, joint arrangements and structured entities. All references in this prospectus are to Sasol Limited or the companies comprising the group, as the context may require. All references to (Pty) Ltd refer to Proprietary Limited, a form of corporation in South Africa which restricts the right of transfer of its shares and prohibits the public offering of its shares.
WHERE YOU CAN FIND MORE INFORMATION
We file annual and other reports with the SEC. The SEC maintains a website (http://www.sec.gov) on which our annual and other reports are made available. You may also read and copy these documents at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. Copies of certain information filed by us with the SEC are also available on our website at www.sasol.com. Our website is not a part of this prospectus and is not incorporated by reference in this prospectus.
The SEC allows us to incorporate by reference the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents that are considered part of this prospectus. Information that we file with the SEC in the future and incorporate by reference will automatically update and supersede the previously filed information. We incorporate by reference the document listed below:
We also incorporate by reference in this prospectus all subsequent annual reports filed with the SEC on Form 20-F under the Securities Exchange Act of 1934 and those of our reports submitted to the SEC on Form 6-K that we specifically identify in such form as being incorporated by reference in this prospectus after the date hereof and prior to the completion of an offering of securities under this prospectus. This prospectus is part of a registration statement filed with the SEC.
As you read the above documents, this prospectus and any prospectus supplement, you may find inconsistencies in information from one document to another. If you find inconsistencies you should rely on the statements made in the most recent document, including this prospectus and any prospectus supplement. All information appearing in this prospectus is qualified in its entirety by the information and financial statements, including the notes thereto, contained in the documents we have incorporated by reference.
Upon written or oral request, we will provide to any person, at no cost to such person, including any beneficial owner to whom a copy of this prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus. You may make such a request by writing or telephoning us at the following address or telephone number:
Senior Vice President: Legal, Intellectual Property & Regulatory Services
Sasol South Africa Ltd
Sasol Place
50 Katherine Street
Sandton 2196
South Africa
Telephone: +27 10 344 6390
Fax: +27 11 522 8538
We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus and in any prospectus supplement or free writing prospectus prepared by us or on our behalf or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell or to buy only the securities referred to herein, but only under circumstances and in jurisdictions where it is lawful to do so. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the cover page of those documents.
This prospectus includes and incorporates by reference forward-looking statements. We have based these forward-looking statements on our current expectations and projections of future events. These forward-looking statements are subject to risks, uncertainties and assumptions about our business. You should consider any forward-looking statements in light of the risks and uncertainties described in the information contained or incorporated by reference in this prospectus. See Where You Can Find More Information. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. In light of these risks, uncertainties and assumptions, the future events described in this prospectus may not occur.
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES
Sasol Limited is incorporated under the laws of the Republic of South Africa (South Africa). Most of Sasol Limiteds directors and officers, and the experts named herein, reside outside the United States, principally in South Africa. You may not be able, therefore, to effect service of process within the United States upon those directors and officers with respect to matters arising under the federal securities laws of the United States.
In addition, most of our assets and the assets of our directors and officers are located outside the United States. As a result, you may not be able to enforce against us or our directors and officers judgments obtained in U.S. courts predicated on the civil liability provisions of the federal securities laws of the United States.
We have been advised by Edward Nathan Sonnenbergs Inc., our South African counsel, that any foreign judgment obtained in respect of the Registration Statement will, subject to the permission of the Minister of Trade and Industry of South Africa (if the Protection of Businesses Act, 1978 (Act No. 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:
· the judgment is final and conclusive and the judgement has not been superannuated or, if an appeal is pending, the court may use its discretion to stay the proceedings pending the appeal;
· 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;
· the recognition and enforcement of the judgment does not contravene section 1A of the Businesses Act, which prohibits the payment of multiple or punitive damages;
· the foreign court in question had jurisdiction and international competence 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 jurisdiction and international 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.
Sasol is an international integrated chemicals and energy company that, through its talented people, uses selected technologies to safely and sustainably source, produce and market chemical and energy products competitively to create superior value for our customers, shareholders and other stakeholders.
Sasol Limited, which is the ultimate holding company of our group, is a public company. It was incorporated under the laws of the Republic of South Africa in 1979 and has been listed on the JSE Limited (JSE) since October 1979 and our ADRs have been listed on the New York Stock Exchange (NYSE) since April 2003. Our registered office and corporate headquarters are at Sasol Place, 50 Katherine Street, Sandton, Johannesburg 2196, South Africa and our telephone number is +27 10 344 5000. Our general website is at www.sasol.com. Information contained on our website is not, and shall not be deemed to be, part of this prospectus.
For a description of some of the risks that could materially affect an investment in the securities being offered, you should read the discussion of risk factors in Item 3D: Risk Factors, starting on page 7 in our Form 20-F, and identified in our future filings with the SEC, incorporated herein by reference, and in any applicable prospectus supplement in relation to an offering of securities. Additional risk factors not presently known to us or that we currently deem immaterial may also impair our business operations.
REASONS FOR THE OFFERING AND USE OF PROCEEDS
Except as may be described otherwise in a prospectus supplement, we will add the net proceeds from our sale of the securities under this prospectus to our general funds and will use them for our general corporate purposes, including for repayment of existing indebtedness, funding our working capital, project development or capital expenditure requirements.
We may designate a specific allocation of the net proceeds of an offering of securities by us to a specific purpose, if any, at the time of the offering and will describe any allocation in the related prospectus supplement.
This prospectus provides you with a general description of the securities that may be offered. Unless the context otherwise requires, we will refer to the ordinary shares, ADSs and rights as the offered securities. Each time offered securities are subscribed for, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add to, update or change information contained in this prospectus. Accordingly, to the extent inconsistent, information in this prospectus is superseded by the information in the prospectus supplement. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading Where You Can Find More Information prior to purchasing any of the securities offered by this prospectus and the applicable prospectus supplement.
The prospectus supplement to be attached to the front of this prospectus will describe the terms of the offering, including the amount and more detailed terms of offered securities, the initial public offering price, the price paid for the offered securities, net proceeds to us, the expenses of the offering, the terms of offers and sales outside of the United States, if any, our capitalization, the nature of the plan of distribution, the other specific terms related to the offering, and any U.S. federal income tax consequences and South African tax considerations applicable to the offered securities.
For more detail on the terms of the offered securities, you should read the exhibits filed with, or incorporated by reference into, our registration statement on Form F-3.
SOUTH AFRICAN RESERVE BANK APPROVAL
The issuance of securities under this prospectus may be subject to the approval of the South African Reserve Bank.
For a description of our share capital, including the rights and obligations attached thereto, please refer to Item 10. Additional Information10.B Memorandum and articles of association in our Form 20-F, incorporated by reference herein.
For a description of our ADSs, including the rights and obligations attached thereto, please refer to Item 12.D American depositary shares in our Form 20-F and Exhibit 2.2 to our Form 20-F, incorporated by reference herein.
DESCRIPTION OF RIGHTS TO SUBSCRIBE FOR ORDINARY SHARES
We may issue subscription rights to subscribe for our ordinary shares. We may issue these rights independently or together with any other offered security. The rights may or may not be transferable in the hands of their holders.
The applicable prospectus supplement will describe the specific terms of any subscription rights offering, including:
· the title of the subscription rights;
· the securities for which the subscription rights are exercisable;
· the exercise price for the subscription rights;
· the number of subscription rights issued;
· the extent to which the subscription rights are transferable;
· if applicable, a discussion of the material U.S. federal or other income tax considerations applicable to the issuance or exercise of the subscription rights;
· any other terms of the subscription rights, including terms, procedures and limitations relating to the exchange and exercise of the subscription rights;
· if applicable, the record date to determine who is entitled to the subscription rights and the ex-rights date;
· the date on which the rights to exercise the subscription rights will commence, and the date on which the rights will expire;
· the extent to which the offering includes an over-subscription privilege with respect to unsubscribed securities; and
· if applicable, the material terms of any standby or other underwriting arrangement we enter into in connection with the offering.
Each subscription right will entitle its holder to subscribe for cash a number of our ordinary shares, ADSs or any combination thereof at an exercise price described in the applicable prospectus supplement. Subscription rights may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights will become void.
Upon receipt of payment and the subscription form properly completed at the subscription rights agents office or another office indicated in the applicable prospectus supplement, we will, as soon as practicable, deliver our ordinary shares or ADSs purchasable with this exercise. Rights to purchase ordinary shares represented by ADSs will be evidenced by certificates issued by our ADS rights agent upon receipt by the ADS depositary of the rights to subscribe for ordinary shares registered hereby. The applicable prospectus supplement may offer more details on how to exercise the subscription rights.
We may determine to offer subscription rights to our shareholders only or additionally to persons other than shareholders as described in the applicable prospectus supplement. In the event subscription rights are offered to our shareholders only and their rights remain unexercised, we may determine to offer the unsubscribed offered securities to persons other than shareholders. In addition, we may enter into a standby or other underwriting arrangement with one or more underwriters under which the underwriter(s) will subscribe for any offered securities remaining unsubscribed for after the offering, as described in the applicable prospectus supplement.
The prospectus supplement will describe certain material U.S. federal income tax consequences of the ownership and disposition of any securities offered under this prospectus to certain United States persons (within the meaning of the U.S. Internal Revenue Code of 1986, as amended) who are initial investors.
The prospectus supplement will describe certain material South African income tax consequences to an initial investor who is a non-resident of South Africa of acquiring, owning and disposing of any securities offered under this prospectus, including whether the payments of dividends, if any, on the ordinary shares will be subject to South African withholding tax.
The offered securities may be sold, and the underwriters may resell these offered securities, directly or through agents in one or more transactions, including negotiated transactions, at a fixed public offering price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. The offered securities may be sold in portions outside the United States at an offering price and on terms specified in the applicable prospectus supplement relating to a particular issue of these offered securities. Without limiting the generality of the foregoing, any one or more of the following methods may be used when selling the offered securities:
· ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
· block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;
· purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
· an exchange distribution in accordance with the rules of the applicable exchange;
· privately negotiated transactions;
· settlement of short sales entered into after the date of this prospectus;
· sales in which broker-dealers agree with us to sell a specified number of securities at a stipulated price per security;
· through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
· by pledge to secure debts or other obligations;
· by an underwritten public offering;
· in a combination of any of the above; or
· any other method permitted pursuant to applicable law.
In addition, the offered securities may be sold by way of exercise of rights granted pro rata to our existing shareholders.
The offered securities may also be sold short and securities covered by this prospectus may be delivered to close out such short positions, or the securities may be loaned or pledged to broker-dealers that in turn may sell them. Options, swaps, derivatives or other transactions may be entered into with broker-dealers or other financial institutions which require the delivery to such broker-dealer or other financial institution of the offered securities and ordinary shares, respectively, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
Any underwriters or agents will be identified and their compensation described in the applicable prospectus supplement.
In connection with the sale of offered securities, the underwriters or agents may receive compensation from us or from purchasers of the offered securities for whom they may act as agents. The underwriters may sell offered securities to or through dealers, who may also receive compensation from the underwriters or from purchasers of the offered securities for whom they may act as agents. Compensation may be in the form of discounts, concessions or commissions. Underwriters, dealers and agents that participate in the distribution of the offered securities may be deemed to be underwriters as defined in the U.S. Securities Act of 1933, as amended, or the U.S. Securities Act, and any discounts or commissions received by them from us and any profit on the resale of the offered securities by them may be treated as underwriting discounts and commissions under the U.S. Securities Act.
We may enter into agreements that will entitle the underwriters, dealers and agents to indemnification by us against and contribution toward certain liabilities, including liabilities under the U.S. Securities Act.
Certain underwriters, dealers and agents and their associates may be customers of, engage in transactions with or perform commercial banking, investment banking, advisory or other services for us, including our subsidiaries, in the ordinary course of their business.
If so indicated in the applicable prospectus supplement relating to a particular issue of offered securities, the underwriters, dealers or agents will be authorized to solicit offers by certain institutions to purchase the offered securities under delayed delivery contracts providing for payment and delivery at a future date. These contracts will be subject only to those conditions set forth in the applicable prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of these contracts.
Certain legal matters with respect to South African law will be passed upon for us by our South African counsel, Edward Nathan Sonnenbergs Inc. Certain legal matters with respect to United States and New York law will be passed upon for us by Shearman & Sterling (London) LLP, who may rely, without independent investigation, on Edward Nathan Sonnenbergs Inc. regarding certain South African legal matters.
The financial statements and management's assessment of the effectiveness of internal control over financial reporting (which is included in Management's Annual Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form 20-F for the year ended June 30, 2020 have been so incorporated in reliance on the report (which contains an explanatory paragraph relating to the Company's ability to continue as a going concern as described in Note 2 to the financial statements and which contains an adverse opinion on the effectiveness of internal control over financial reporting) of PricewaterhouseCoopers Inc., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers
South African law
Clause 36 of the Memorandum of Incorporation of Sasol Limited provides that, subject to the provisions of the South Africa Companies Act 2008, Sasol Limited will indemnify its directors, prescribed officers or any member of any committee of the board of Sasol Limited against liability or all costs, losses and expenses they may incur or become liable to pay by reason of any act or omission done or omitted to be done by them in the discharge of their duties.
According to Section 78(6) of the South Africa Companies Act 2008, a company may not indemnify a director or prescribed officer in respect of any liability for any loss, damages or costs arising as a direct or indirect consequence of:
· the director or prescribed officer having acted in the name of the company, signed anything on behalf of the company, or purported to bind the company or authorize the taking of any action by or on behalf of the company, despite knowing that he or she lacked the authority to do so;
· the director or prescribed officer having acquiesced in the carrying on of the companys business despite knowing that it was being conducted recklessly, with gross negligence, with intent to defraud any person or for any fraudulent purposes;
· the director or officer having been a party to an act or omission by the company despite knowing that the act or omission was calculated to defraud a creditor, employee or shareholder of the company, or had another fraudulent purpose; or
· wilful misconduct or wilful breach of trust on the part of the director or prescribed officer; and
· a company may not indemnify a director in respect of any fine that may be imposed on a director or prescribed officer as a consequence of that director having been convicted of an offense under national legislation, unless the conviction was based on strict liability.
According to Section 77(7) of the South African Companies Act 2008, proceedings against directors and prescribed officers to recover any loss, damages or costs for which such a person is or may be held liable under Section 77 may generally not be commenced more than three years after the act of omission that gave rise to that liability.
A company may in, in accordance with Section 78(8) of the South African Companies Act 2008, claim reimbursement from any director or officer of the company for any money paid directly or indirectly to or on behalf of such director or officer in any manner inconsistent with the provisions of the South Africa Companies Act 2008, particularly Section 78 thereof.
Section 78(7) of the South Africa Companies Act 2008 provides that, except to the extent that the companys Memorandum of Incorporation disallows it, a company may purchase insurance to protect a director or prescribed officer against any liability or expense for which the company may lawfully indemnify a director or prescribed officer and any expenses that the company is permitted to advance to a director or officer.
Item 9. Exhibits
Exhibits:
*1.1 |
|
Form of underwriting agreement for guaranteed debt securities of Sasol Financing USA LLC. |
*1.2 |
|
Form of underwriting agreement for equity securities of Sasol Limited. |
4.1 |
|
Form of indenture for guaranteed debt securities of Sasol Financing USA LLC, among Sasol Financing USA LLC, as issuer, Sasol Limited, as guarantor, and Citibank, N.A., as trustee.(1) |
4.2 |
|
Form of guaranteed fixed rate note of Sasol Financing USA LLC.(1) |
*4.3 |
|
Form of letter of allocation to exercise rights to purchase ordinary shares. |
4.4 |
|
Agreement of Resignation, Appointment and Acceptance, dated as of August 5, 2020, by and among Sasol Financing USA LLC, Sasol Limited, Citibank, N.A. and Wilmington Savings Fund Society, FSB. |
5.1 |
|
Opinion of Shearman & Sterling (London) LLP, U.S. counsel, as to the validity of the debt securities.(1) |
5.2 |
|
Opinion of Edward Nathan Sonnenbergs Inc., South African counsel to Sasol Limited, as to the validity of the debt securities.(1) |
5.3 |
|
Opinion of Edward Nathan Sonnenbergs Inc., South African counsel to Sasol Limited, as to the validity of the ordinary shares and rights. |
23.1 |
|
Consent of PricewaterhouseCoopers Inc., independent registered public accounting firm. |
23.2 |
|
Consent of Shearman & Sterling (London) LLP (included in its opinion filed as Exhibit 5.1). |
23.3 |
|
Consent of Edward Nathan Sonnenbergs Inc. (included in its opinions filed as Exhibit 5.2 and Exhibit 5.3). |
24.1 |
|
Powers of Attorney (included on the signature pages).(1) |
25.1 |
|
Statement of eligibility of Wilmington Savings Fund Society, FSB, as trustee, under the Trust Indenture Act of 1939 on Form T-1. |
* To be filed on a Form 6-K depending on the nature of the offering, if any, pursuant to this registration statement.
(1) Previously filed with the Sasol Limited Registration Statement on Form F-3 on September 10, 2018.
Item 10. Undertakings
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by such registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Rule 3-19 if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by such registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of such registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: Each of the undersigned registrants undertakes that in a primary offering of securities of such undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of such undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of such undersigned registrant or used or referred to by such undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about such undersigned registrant or its securities provided by or on behalf of such undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by such undersigned registrant to the purchaser.
(b) Each undersigned registrant hereby undertakes that for purposes of determining any liability under the Securities Act of 1933, each filing of such registrants annual reports pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of any registrant pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by such registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) Each undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Pursuant to the requirements of the Securities Act of 1933, the registrant, Sasol Limited, a corporation organized and existing under the laws of the Republic of South Africa, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Post-Effective Amendment No. 1 to its registration statement on Form F-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in Johannesburg, South Africa on the 24 day of August, 2020.
|
SASOL LIMITED | |||
| ||||
|
By: | |||
|
|
/s/ Paul Victor | ||
|
|
|
Name: |
Paul Victor |
|
|
|
Title: |
Chief Financial Officer |
POWER OF ATTORNEY
Each of Fleetwood Grobler, Vuyo Kahla, Moveshen Moodley, Sipho Abednego Nkosi and Katherine Harper does hereby constitute and appoint Paul Victor his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in his or her name, place and stead, in any and all capacities (including his or her capacity as a director and/or officer of the registrant), to sign any and all amendments and post-effective amendments and supplements to this registration statement, and including any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature |
|
Title |
|
|
|
|
|
|
|
/s/ Fleetwood Grobler |
|
Executive Director and President and Chief Executive Officer |
|
August 24, 2020 |
Fleetwood Grobler |
|
|
| |
|
|
|
|
|
/s/ Paul Victor |
|
Executive Director and Chief Financial Officer (Principal Financial Officer) |
|
August 24, 2020 |
Paul Victor |
|
|
| |
|
|
|
| |
|
|
|
|
|
/s/ Moveshen Moodley |
|
Senior Vice President: Financial Control Services (Principal Accounting Officer) |
|
August 24, 2020 |
Moveshen Moodley |
|
|
| |
|
|
|
| |
|
|
|
|
|
/s/ Vuyo Kahla |
|
Executive Director and Executive Vice President: Advisory, Assurance and Supply Chain |
|
August 24, 2020 |
Vuyo Kahla |
|
|
| |
|
|
|
| |
|
|
|
|
|
* |
|
Independent Non-Executive |
|
August 24, 2020 |
Colin Beggs |
|
Director |
|
|
|
|
|
|
|
* |
|
Independent Non-Executive |
|
August 24, 2020 |
Manual Cuambe |
|
Director |
|
|
|
|
|
|
|
* |
|
Independent Non-Executive |
|
August 24, 2020 |
Nomgando Matyumza |
|
Director |
|
|
* |
|
Independent Non-Executive Director |
|
August 24, 2020 |
Moses Mkhize |
|
|
| |
|
|
|
|
|
* |
|
Independent Non-Executive Director |
|
August 24, 2020 |
Peter Robertson |
|
|
| |
|
|
|
|
|
* |
|
Independent Non-Executive Director |
|
August 24, 2020 |
Stephen Westwell |
|
|
| |
|
|
|
|
|
* |
|
Independent Non-Executive Director |
|
August 24, 2020 |
Beatrix Kennealy |
|
|
| |
|
|
|
|
|
* |
|
Independent Non-Executive Director |
|
August 24, 2020 |
Mpho Nkeli |
|
|
| |
|
|
|
|
|
* |
|
Independent Non-Executive Director |
|
August 24, 2020 |
Muriel Dube |
|
|
| |
|
|
|
|
|
* |
|
Independent Non-Executive Director |
|
August 24, 2020 |
Martina Flöel |
|
|
| |
|
|
|
|
|
/s/ Sipho Abednego Nkosi |
|
Independent Non-Executive Director and Chairman |
|
August 24, 2020 |
Sipho Abednego Nkosi |
|
|
| |
|
|
|
|
|
/s/ Katherine Harper |
|
Independent Non-Executive |
|
August 24, 2020 |
Katherine Harper |
|
Director |
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Jennifer Gallagher |
|
Authorized Representative in the United States |
|
August 24, 2020 |
Jennifer Gallagher |
|
|
|
*By:
/s/ Paul Victor |
|
Attorney-in-fact |
|
August 24, 2020 |
Paul Victor |
|
|
|
|
Pursuant to the requirements of the Securities Act of 1933, the registrant, Sasol Financing USA LLC, a limited liability company organized and existing under the laws of the State of Delaware, certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form F-3 and has duly caused this this Post-Effective Amendment No. 1 to its registration statement on Form F-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in Houston, Texas on the 24 day of August, 2020.
|
SASOL FINANCING USA LLC | ||
|
| ||
|
By: | ||
|
|
/s/ Paul Victor | |
|
|
Name: |
Paul Victor |
|
|
Title: |
Authorized Signatory |
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature |
|
Title |
|
|
|
|
|
|
|
* |
|
Director and Chairman |
|
August 24, 2020 |
Frederick Colin Meyer |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
August 24, 2020 |
Michael S. Thomas |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
* |
|
Director |
|
August 24, 2020 |
Nina Stofberg |
|
(Principal Financial Officer and Principal |
|
|
|
|
Accounting Officer) |
|
|
|
|
|
|
|
*By:
/s/ Paul Victor |
|
Attorney-in-fact |
|
August 24, 2020 |
Paul Victor |
|
|
|
|
Exhibit |
|
Description |
*1.1 |
|
Form of underwriting agreement for guaranteed debt securities of Sasol Financing USA LLC. |
*1.2 |
|
Form of underwriting agreement for equity securities of Sasol Limited. |
4.1 |
|
|
4.2 |
|
Form of guaranteed fixed rate note of Sasol Financing USA LLC.(1) |
*4.3 |
|
Form of letter of allocation to exercise rights to purchase ordinary shares. |
4.4 |
|
|
5.1 |
|
|
5.2 |
|
|
5.3 |
|
|
23.1 |
|
Consent of PricewaterhouseCoopers Inc., independent registered public accounting firm. |
23.2 |
|
Consent of Shearman & Sterling (London) LLP (included in its opinion filed as Exhibit 5.1). |
23.3 |
|
Consent of Edward Nathan Sonnenbergs Inc. (included in its opinions filed as Exhibit 5.2 and Exhibit 5.3). |
24.1 |
|
|
25.1 |
|
* To be filed on a Form 6-K depending on the nature of the offering, if any, pursuant to this registration statement.
(1) Previously filed with the Sasol Limited Registration Statement on Form F-3 on September 10, 2018.
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this Acceptance Agreement), dated as of August 5, 2020 by and among the SASOL FINANCING USA LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (the Company), SASOL LIMITED, a public company with limited liability duly incorporated and existing under the laws of the Republic of South Africa, as Guarantor (the Guarantor), WILMINGTON SAVINGS FUND SOCIETY, FSB, a federal savings bank organized and existing under the laws of the United States of America and having a corporate trust office at 500 Delaware Avenue, Wilmington, Delaware 19801, as successor Trustee, Paying Agent, and Security Registrar (in such capacities, collectively, the Successor Trustee), and CITIBANK, N.A., a national banking association duly organized and existing under the laws of the United States of America, in its capacities as resigning Trustee, Paying Agent, and Security Registrar (in such capacities, collectively, the Resigning Trustee) under that certain Indenture, dated as of September 27, 2018 (the Indenture), by and among the Company, the Guarantor, and the Resigning Trustee, as Trustee, Paying Agent, and Security Registrar, relating to the Companys (i) $1,500,000,000 5.875% Notes due 2024, (ii) $750,000,000 6.500% Notes due 2028 (collectively, the Notes). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture.
Resignation under the Indenture
WHEREAS, there is currently U.S.$2,250,000,000 aggregate principal amount of the Notes outstanding under the Indenture;
WHEREAS, the Company appointed the Resigning Trustee as the Trustee, Paying Agent, and Security Registrar under the Indenture;
WHEREAS, Sections 608(a) and (b) of the Indenture provide that the Resigning Trustee may at any time resign with respect to its role as Trustee by giving written notice of such resignation to the Company and the Guarantor, effective upon the acceptance by a successor Trustee of its appointment as a successor Trustee;
WHEREAS, Section 608(e) of the Indenture provides that, if the Resigning Trustee shall resign as Trustee, the Company and the Guarantor shall promptly appoint a successor Trustee;
WHEREAS, Section 609(a) of the Indenture provides that any successor Trustee shall execute and deliver an instrument accepting its appointment as Trustee to the Resigning Trustee and to the Company, and thereupon the resignation of the Resigning Trustee as Trustee shall become effective and the successor Trustee shall have all of the rights, powers, trusts and duties of the Trustee under the Indenture;
WHEREAS, the Resigning Trustee has given written notice to the Company and the Guarantor that it is resigning as Trustee, Paying Agent and Security Registrar under the Indenture;
Appointment of Successor
WHEREAS, the Company desires to appoint the Successor Trustee as successor Trustee, Paying Agent, and Security Registrar to succeed the Resigning Trustee in such capacities under the Indenture; and
WHEREAS, the Successor Trustee is willing to accept such appointments as successor Trustee, Paying Agent, and Security Registrar under the Indenture.
NOW, THEREFORE, the Company, the Guarantor, the Resigning Trustee, and the Successor Trustee, for and in consideration of the premises and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby consent and agree as follows:
1. THE RESIGNING TRUSTEE
1.1 Pursuant to Section 608(b) of the Indenture, the Resigning Trustee has by letter, dated June 8, 2020, notified the Company and the Guarantor that the Resigning Trustee is resigning as Trustee, Paying Agent, and Security Registrar under the Indenture.
1.2 The Resigning Trustee hereby represents and warrants to the Successor Trustee that:
(a) The Resigning Trustee duly authorized, executed and delivered the Indenture and each amendment and supplemental indenture, if any, to the Indenture. Assuming each such document was validly and lawfully executed and delivered by the Company and is in full force and effect as to the Company, each such document remains in full force and effect as to Resigning Trustee.
(b) No covenant or condition contained in the Indenture has been waived by Resigning Trustee or, to the best knowledge of responsible officers of Resigning Trustees corporate trust department, by the Holders of the percentage in aggregate principal amount of the Notes required by the Indenture to effect any such waiver.
(c) There is no action, suit or proceeding pending or, to the best knowledge of responsible officers of the Resigning Trustees corporate trust department, threatened against the Resigning Trustee before any court or any governmental authority arising out of any act or omission of the Resigning Trustee as Trustee, Paying Agent, or Security Registrar under the Indenture.
(d) As of the Effective Date of this Acceptance Agreement, the Resigning Trustee will hold no moneys or property under the Indenture.
(e) Pursuant to Section 303 of the Indenture, the Resigning Trustee has duly authenticated and delivered U.S.$2,250,000,000 aggregate principal amount of Notes, of which U.S.$2,250,000,000 is outstanding as of the date hereof.
(f) The registers in which Resigning Trustee has registered and transferred registered Notes accurately reflect the amount of Notes issued and outstanding and the amounts payable thereon.
(g) Each person who so authenticated the Notes was duly elected, qualified and acting as an officer or authorized signatory of the Resigning Trustee and empowered to authenticate the Notes at the respective times of such authentication and the signature of such person or persons appearing on such Notes is each such persons genuine signature.
(h) This Acceptance Agreement has been duly authorized, executed and delivered on behalf of the Resigning Trustee and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms.
(i) The Resigning Trustee hereby assigns, transfers, delivers and confirms to the Successor Trustee all right, title and interest of Resigning Trustee in and
to the trust under the Indenture and all the rights, powers and trusts of the Resigning Trustee in its capacities as Trustee, Paying Agent, and Security Registrar under the Indenture. The Resigning Trustee shall execute and deliver such further instruments and shall do such other things as the Successor Trustee may reasonably require so as to more fully and certainly vest and confirm in the Successor Trustee all the rights, powers and trusts hereby assigned, transferred, delivered and confirmed to the Successor Trustee as Trustee, Paying Agent, and Security Registrar under the Indenture.
1.3 The Resigning Trustee shall deliver to the Successor Trustee, as of or promptly after the Effective Date hereof, all of the documents listed on Exhibit A hereto.
2. THE COMPANY AND THE GUARANTOR
2.1 Each of the Company and the Guarantor hereby accepts the resignation of Resigning Trustee as Trustee, Paying Agent, and Security Registrar under the Indenture.
2.2 Each of the Company and the Guarantor hereby certifies that it has duly authorized certain officers or other representatives to: (a) accept the Resigning Trustees resignation as Trustee, Paying Agent, and Security Registrar; (b) appoint the Successor Trustee as Trustee, Paying Agent, and Security Registrar under the Indenture; and (c) execute and deliver such agreements and other instruments as may be necessary or desirable to effectuate the succession of the Successor Trustee as Trustee, Paying Agent, and Security Registrar under the Indenture.
2.3 The Company and the Guarantor hereby appoint the Successor Trustee as Trustee, Paying Agent, and Security Registrar under the Indenture to succeed to, and vest the Successor Trustee with, all the rights, powers, duties and obligations of the Resigning Trustee as Trustee, Paying Agent, and Security Registrar under the Indenture with like effect as if originally named as Trustee, Paying Agent, and Security Registrar in the Indenture.
2.4 Each of the Company and the Guarantor hereby represents and warrants to the Resigning Trustee and the Successor Trustee that:
(a) It is an organization duly and validly organized and existing pursuant to the laws of its jurisdiction and organization.
(b) The Indenture, and each amendment or supplemental indenture thereto, if any, was validly and lawfully executed and delivered by the Company and the Guarantor and is in full force and effort and the Notes were validly issued by the Company.
(c) It has performed or fulfilled prior to the date hereof, and will continue to perform and fulfill after the date hereof, each covenant, agreement, condition, obligation and responsibility under the Indenture.
(d) No other event has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under Section 501 of the Indenture.
(e) No covenant or condition contained in the Indenture has been waived by the Company or the guarantors party thereto or, to the best of the Companys knowledge, by Holders of the percentage in aggregate principal amount of the Notes required to effect any such waiver.
(f) There is no action, suit or proceeding pending or, to the best of the Companys knowledge, threatened against the Company or the guarantors party to the Indenture before any court or any governmental authority arising out of any act or omission of the Company or the guarantors under the Indenture.
(g) This Acceptance Agreement has been duly authorized, executed and delivered on behalf of the Company and the Guarantor, as applicable, and constitutes each of their respective legal, valid and binding obligation, enforceable in accordance with its terms.
(h) All conditions precedent relating to the appointment of WILMINGTON SAVINGS FUND SOCIETY, FSB as Successor Trustee under the Indenture have been complied with by the Company and the Guarantor, as applicable.
2.5 Promptly after the Effective Date of this Acceptance Agreement, the Company shall cause a notice, substantially in the form of Exhibit B annexed hereto, to be sent to each of the Holders of the Notes in accordance with the provisions of Section 608(f) of the Indenture.
3. THE SUCCESSOR TRUSTEE
3.1 The Successor Trustee hereby represents and warrants to the Resigning Trustee, the Guarantor and to the Company that:
(a) The Successor Trustee is eligible under the provisions of Section 607 of the Indenture to act as Trustee under the Indenture.
(b) This Acceptance Agreement has been duly authorized, executed and delivered on behalf of WILMINGTON SAVINGS FUND SOCIETY, FSB as the Successor Trustee and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms.
3.2 The Successor Trustee hereby accepts its appointment as successor Trustee, Paying Agent, and Security Registrar under the Indenture and accepts the rights, powers, duties and obligations of the Resigning Trustee as Trustee, Paying Agent, and Security Registrar under the Indenture, upon the terms and conditions set forth therein, with like effect as if originally named as Trustee, Paying Agent, and Security Registrar under the Indenture.
3.3 References in the Indenture to Corporate Trust Office or other similar terms shall be deemed to refer to the principal corporate trust office of the Successor Trustee, which is presently located at 500 Delaware Avenue, Wilmington, Delaware 19801, Attention: Global Capital Markets.
4. MISCELLANEOUS
4.1 This Acceptance Agreement and the resignation, appointments and acceptances effected hereby shall be effective on the date first above written; provided, that, the resignation of the Resigning Trustee and the appointment of the Successor Trustee as Trustee, Paying Agent, and Security Registrar for all the Notes under the Indenture shall be effective upon the latest of: (a) 10 business days after the date first above written, (b) the second business day following receipt by the Successor Trustee of the Certified Holders List, and (c) receipt by The Depository
Trust Company (DTC) of both the Resigning Trustees transfer agency change notice and the Successor Trustees transfer agency change notice (the Effective Date).
4.2 The Resigning Trustee hereby acknowledges payment or provision for payment in full by the Company and the Guarantor of compensation for all services rendered by the Resigning Trustee in its capacity as Trustee, Paying Agent, and Security Registrar under the Indenture and reimbursement in full of the expenses, disbursements and advances incurred or made by the Resigning Trustee in its capacity as Trustee, Paying Agent, and Security Registrar in accordance with the provisions of the Indenture. The Resigning Trustee acknowledges that it relinquishes any lien it may have upon all property or funds held or collected by it to secure any amounts due it. This Acceptance Agreement does not constitute a waiver or assignment by the Resigning Trustee of any compensation, reimbursement, expenses or indemnity to which it is or may be entitled pursuant to the Indenture. The Company and the Guarantor acknowledges their joint and several obligation set forth in Section 606(3) of the Indenture to indemnify the Resigning Trustee for, and to hold the Resigning Trustee (including its officers, directors, employees and agents) for, and to hold it harmless against, any loss, damage, claim, liability or expense incurred without negligence or willful misconduct on the part of the Resigning Trustee as determined by a final non-appealable judgment of a court of competent jurisdiction and arising out of or in connection with the Indenture or the Securities, and the transactions contemplated thereby, including the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, the Guarantor, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder or thereunder (including with respect to enforcement of its right to indemnity hereunder). The Company and the Guarantor each further acknowledge that this obligation shall survive the execution hereof and the termination of the Indenture.
4.3 This Acceptance Agreement does not constitute a waiver by any of the parties hereto of any obligation or liability which Resigning Trustee may have incurred in connection with its serving in the capacities of Trustee, Paying Agent, and Security Registrar under the Indenture or an assumption by Successor Trustee of any liability of Resigning Trustee arising out of a breach by Resigning Trustee prior to the Effective Date. The parties hereto agree that the Successor Trustee, in its individual capacity and in its capacity as Successor Trustee, shall
bear no responsibility or liability for (i) any actions taken or omitted to be taken by the Resigning Trustee while it served as Trustee, Paying Agent or Security Registrar under the Indenture or (ii) any event, circumstance, condition or action existing prior to the Effective Date, with respect to the Indenture (other than actions of the Successor Trustee in its capacity as Successor Trustee that precede the Effective Date) or the transactions contemplated thereby. The parties hereto agree that the Resigning Trustee, in its individual capacity and in its capacity as Resigning Trustee, shall bear no responsibility or liability for any actions taken or omitted to be taken by the Successor Trustee as Trustee, Paying Agent or Security Registrar under the Indenture or for any event, circumstance, condition or action existing on or after the Effective Date with respect to the Indenture or the transactions contemplated thereby.
4.4 All notices, whether faxed or mailed, will be deemed received when sent pursuant to the following instructions:
TO THE COMPANY:
Sasol Financing USA LLC, as the Company
12120 Wickchester Lane
Houston, Texas 77079
United States
Telephone No.: +1 281 588 3000
TO THE GUARANTOR:
Sasol Limited, as Guarantor
Sasol Place
50 Katherine Street
Sandton 2196
South Africa
Telephone No.: +27 10 344 6390
Facsimile No.: +27 11 522 8538
Attention: Senior Vice President: Legal, Intellectual Property & Regulatory Services
TO THE RESIGNING TRUSTEE:
Citibank, N.A.
Citi Agency & Trust
388 Greenwich Street
New York, NY 10013
Attention: Danny Lee, Vice President (danny1.lee@citi.com)
With a copy to:
Hinckley Allen & Snyder LLP
28 State Street
Boston, Massachusetts 02109-1775
Attention: Michael J. Tentindo (mtentindo@hinckleyallen.com)
TO THE SUCCESSOR TRUSTEE:
Wilmington Savings Fund Society, FSB
500 Delaware Avenue
Wilmington, Delaware 19801
Attn: Global Capital Markets
With a copy to:
Arnold & Porter Kaye Scholer LLP
250 West 55th Street
New York, NY 10019-9710
Attention: Jonathan I. Levine (jonathan.levine@arnoldporter.com)
4.5 This Acceptance Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof that would result in the application of laws of any other jurisdiction.
4.6 This Acceptance Agreement may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement of Resignation, Appointment and Acceptance to be duly executed, all as of the day and year first above written.
|
SASOL FINANCING USA LLC, | |
|
| |
|
By: |
/s/ Paul Victor |
|
Name: |
Paul Victor |
|
Title: |
Authorized Person |
|
| |
|
SASOL LIMITED, | |
|
| |
|
By: |
/s/ Paul Victor |
|
Name: |
Paul Victor |
|
Title: |
Chief Financial Officer |
|
| |
|
CITIBANK, N.A., | |
|
as Resigning Trustee | |
|
| |
|
By: |
/s/ Danny Lee |
|
Name: |
Danny Lee |
|
Title: |
Senior Trust Officer |
|
| |
|
WILMINGTON SAVINGS FUND SOCIETY, FSB, | |
|
as Successor Trustee | |
|
| |
|
By: |
/s/ Geoffrey J. Lewis |
|
Name: |
Geoffrey J. Lewis |
|
Title: |
Vice President |
EXHIBIT A
Documents to be delivered to the Successor Trustee
1. Executed copy of Indenture and each amendment and supplemental indenture thereto, if any.
2. Copies of the Notes.
3. File of closing documents from initial issuance.
4. Copies of the most recent of each of the certificates and/or reports delivered by the Company and/or the Guarantor pursuant to Sections 102 and 703 of the Indenture.
5. Certified list of Holders, including certificate detail and all stop transfers and the reason for such stop transfers (or, alternatively, if there are a substantial number of registered Holders, the computer tape reflecting the identity of such Holders).
6. Copies of any official notices sent by the Resigning Trustee to all the Holders of the Notes pursuant to the terms of the Indenture during the past twelve months.
7. List of any documents which, to the knowledge of the Resigning Trustee, are required to be furnished but have not been furnished to the Resigning Trustee.
EXHIBIT B
NOTICE
To the Holders of:
Sasol Financing USA LLC
(i) $1,500,000,000 5.875% Notes due 2024, Cusip No. 80386WAA3
(ii) $750,000,000 6.500% Notes due 2028, Cusip No. 80386WAB1
NOTICE IS HEREBY GIVEN, pursuant to Section 608(f) of that certain Indenture, dated as of September 27, 2018 (the Indenture), by and among Sasol Financing USA LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (the Company), Sasol Limited, a public company with limited liability duly incorporated and existing under the laws of the Republic of South Africa, as Guarantor (the Guarantor), and Citibank N.A., a national association (Citibank), as Trustee (the Trustee), Paying Agent (the Paying Agent), and Security Registrar (the Security Registrar), relating to the Companys (i) $1,500,000,000 5.875% Notes due 2024, (ii) $750,000,000 6.500% Notes due 2028 , that Citibank, N.A. has resigned as Trustee, Security Registrar, and Paying Agent under the Indenture.
Pursuant to Sections 608(a) and (e) of the Indenture, Wilmington Savings Fund Society, FSB, a federal savings bank organized and existing under the laws of the United States of America has accepted appointment as Trustee, Security Registrar, and Paying Agent under the Indenture. The address of the corporate trust office of the successor Trustee is 500 Delaware Avenue, Wilmington, Delaware 19801, Attention: Global Capital Markets.
Citibanks resignation as Trustee, Security Registrar, and Paying Agent and the appointment of Wilmington Savings Fund Society, FSB as successor Trustee, Security Registrar, and Paying Agent were effective as [ , 2020].
Dated: [ , 2020]
Wilmington Savings Fund Society, FSB, |
| |
as Successor Trustee |
| |
|
| |
By: |
|
|
Name: |
|
|
Title: |
|
|
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
|
Sasol South Africa Limited 50 Katherine Street Sandton South Africa 2196 |
Witness Makhubele |
our ref |
|
your ref | |
24 August 2020 |
date |
Dear Sir/Madam
SASOL LIMITED: FORM F-3 REGISTRATION STATEMENT PURSUANT TO THE U.S. SECURITIES ACT OF 1933, DATED 24 AUGUST 2020
1. INTRODUCTION
1.1. We, Edward Nathan Sonnenbergs Incorporated (Registration No. 2006/018200/21) (ENSafrica or we), have acted as external South African legal adviser to Sasol Limited (Sasol) in connection with the filing by it, with the U.S. Securities and Exchange Commission (the Commission), of the Form F-3 registration statement dated 24 August 2020 (the Registration Statement), which Registration Statement:-
1.1.1. includes a prospectus to be supplemented by one or more prospectus supplements;
1.1.2. is in respect of the registration of (i) an indeterminate principal amount of Sasol ordinary shares (the SOL Shares) and (ii) an indeterminate number of rights which may be exercised to subscribe for SOL Shares (the Rights); and
1.1.3. is filed pursuant to the U.S. Securities Act of 1933.
1.2. Capitalised terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Registration Statement.
1.3. In connection with this opinion (this Opinion), we have:-
1.3.1. examined an executed copy of the Registration Statement;
1.3.2. relied upon and examined:-
1.3.2.1. an extract of the minutes of the meeting of the board of directors of Sasol (Directors) held on 14 August 2020, pursuant to which -
Africas largest law firm |
ENSafrica.com |
Edward Nathan Sonnenbergs Incorporated | registration number 2006/018200/21
M.M. Katz (chairman) M. Mgudlwa (chief executive) M.W. Matlou (chief operating officer) Y.A. Mendelsohn (chief operating officer)
a list of directors is available on our website ENSafrica.com/letterheadSA
level 1 BBBEE rating
1.3.2.1.1. Sasol is authorised to execute and file the Registration Statement with, inter alia, the Commission; and
1.3.2.1.2. the Authorised Persons (as defined therein) are authorised, on behalf of Sasol, to (i) prepare and/or negotiate and sign and file the Registration Statement, inter alia, with the Commission and all such other agreements, instruments and documents, including, but not limited to, all certificates, contracts, powers of attorney, receipts or other papers, (ii) prepare, negotiate, settle all the terms and conditions of, execute and deliver or cause to be prepared, negotiated, settled, executed and delivered, the notation or other evidence of guarantee of the shares, (iii) incur and pay or cause to be paid all fees, expenses and taxes, including, without limitation, legal fees and expenses, (iv) engage such persons as they shall in their judgment determine to be necessary or appropriate, and (v) do any and all other acts and things or make such amendments as he or she deems necessary or advisable to carry out fully the intent and purposes of the foregoing resolutions and each of the transactions contemplated thereby;
1.3.2.2. the constitutive documents of Sasol, being Sasols Memorandum of Incorporation and Certificate of Incorporation (Constitutive Documents),
(collectively, the Authorising Documents); and
1.3.3. relied upon and examined a copy of the report produced by an electronic search of the records of the South African Companies and Intellectual Property Commission (CIPC) carried out in respect of Sasol on 11 August 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, reservations and qualifications as described in paragraph 3 below, it is our opinion that:-
2.1.1. Sasol is a limited liability company duly incorporated and validly existing under the laws of South Africa;
2.1.2. Sasol has corporate power and authority to enter into and perform its obligations under the Registration Statement, has validly executed the Registration Statement to which it is a party and the execution and performance thereof has been duly authorised by all necessary action on the part of Sasol and do not violate the applicable laws of South Africa now in effect;
2.1.3. the entering into the Registration Statement by Sasol and the performance by Sasol 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 Sasols Constitutive Documents as presently constituted;
2.1.4. the Authorised Persons who signed the Registration Statement on behalf of Sasol are authorised by Sasol to sign the Registration Statement and to act in connection with the Registration Statement;
2.1.5. the obligations of Sasol arising or which may from time to time arise pursuant to the:-
2.1.5.1. Registration Statement; and
2.1.5.2. SOL Shares and Rights, in each case subject to paragraphs 2.1.6 to 2.1.7 below, as the case may be,
constitute the legal, valid and binding obligations of Sasol, enforceable against Sasol in accordance with their terms, except as such enforcement may be limited by applicable insolvency, liquidation, business rescue, curatorship, reorganisation or other similar laws affecting the enforcement of creditors rights generally;
2.1.6. when the SOL Shares to which the Registration Statement relates have been (i) duly authorised and duly authorised to be issued by the Sasol shareholders, (ii) duly issued in accordance with the Companies Act, 2008 (Companies Act) and the Memorandum of Incorporation of Sasol (Sasol MOI), and (iii) duly paid for, the SOL Shares will be duly and validly issued, fully paid and non-assessable;
2.1.7. when the Rights to which the Registration Statement relates, have been (i) duly authorised, (ii) duly issued in accordance with the relevant provisions of the Companies Act and the Sasol MOI , the Rights will be duly and validly issued under South African law.
3. ASSUMPTIONS, RESERVATIONS AND QUALIFICATIONS
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 in relation to the Registration Statement:-
3.2.1. that the SOL Shares will be duly authorised, issued and paid for (or consideration thereon will be duly received by Sasol), all in accordance with the Companies Act and the Sasol MOI;
3.2.2. that the term non-assessable, as contemplated in paragraph 2.1.6 above, means, for purposes of this Opinion, that a holder of the SOL Shares will not, solely because of its status as holder of the SOL Shares, be liable, to Sasol or the creditors of Sasol, for any additional assessments or calls in respect of the SOL Shares;
3.2.3. that the SOL Shares to which the Rights relate, will be duly authorised, issued and paid for, all in accordance with the relevant provisions of the Companies Act and the Sasol MOI;
3.2.4. that all legal and administrative formalities in relation to the authorisation and issue of the SOL Shares, including, but not necessarily limited to, the endorsement, by the relevant authority, of the share certificates of the SOL Shares as non-resident, will be complied with;
3.2.5. the authenticity of each signatorys signature to the Registration Statement;
3.2.6. the legal capacity of all signatories, and that persons purporting to hold particular offices or to sign any document in particular capacity to hold those offices or fill those capacities;
3.2.7. that there is an absence of any fraud or mistake in contract on the part of the parties to the Registration Statement and, where applicable, their respective officers, employees, agents and advisors when entering into the Registration Statement;
3.2.8. the due execution of the Registration Statement by the parties thereto;
3.2.9. the completeness and conformity of the original Registration Statement to the copies of the Registration Statement supplied to us;
3.2.10. that the Registration Statement and Authorising Documents as reviewed by us have not been superseded, amended or novated in any respect;
3.2.11. that each of the parties to the Registration Statement (other than Sasol) has, in accordance with the laws of the jurisdiction in which such party is incorporated:-
3.2.11.1. the capacity, power and authority;
3.2.11.2. fulfilled all internal authorisation procedures and applicable formalities; and
3.2.11.3. 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 Registration Statement and to perform their respective obligations thereunder;
3.2.12. that none of the parties to the Registration Statement has adopted any resolution or taken any action that would affect in any respect any of the opinions expressed herein;
3.2.13. that none of the parties to the Registration Statement (other than Sasol, to the extent indicated in any report produced by a search of the records of CIPC) has passed a voluntary winding up resolution, no petition has been presented or order made by a court for the winding up, dissolution, business rescue proceedings or other administration of such parties, nor has any receiver, liquidator, business rescue practitioner or similar officer been appointed in relation to such parties or in relation to any of the assets or revenues of such parties;
3.2.14. that all authorisations constituted by the written resolution 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 Directors duly disclosed any personal financial interests as required by section 75 of the Companies Act (and duly complied with the provisions of that section to the extent applicable) and all such Director resolutions have been duly passed in accordance with the applicable provisions of the Companies Act and the Sasol MOI;
3.2.15. that all exchange control approvals will, if and when required, be obtained by Sasol;
3.2.16. that the copies of the Constitutive Documents supplied to us were true, complete and up-to-date in all respects and have not been amended, superseded or novated in any respect;
3.2.17. that the transactions contemplated by and the obligations assumed under the Registration Statement 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 and no disposition of property effected by any Offering Document is made wilfully to defeat an obligation owed to a creditor or at an undervalue in violation of the applicable laws of South Africa now in effect;
3.2.18. 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 Registration Statement;
3.2.19. that the Registration Statement is valid and binding on each party under the laws of any jurisdiction other than South Africa;
3.2.20. that there are no agreements, documents or arrangements in existence between the parties to the Registration Statement which materially affect, amend or vary the terms of the transactions contemplated under the Registration Statement;
3.2.21. that there are no provisions of the laws of any jurisdiction outside South Africa which would be contravened by the execution or delivery of the Registration Statement, and that, insofar as any obligation expressed to be incurred under the Registration Statement 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;
3.2.22. that Sasol 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 Registration Statement and performance of the transactions contemplated therein;
3.2.23. that none of the parties to the Registration Statement has taken any corporate action or other steps, 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 Registration Statement;
3.3. Any foreign judgment obtained in respect of the Registration Statement will, subject to the obtaining of the permission of the Minister of Trade and Industry of South Africa (if the Protection of Businesses Act, 1978 (Act No. 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 and the judgement has not been superannuated or, if an appeal is pending, the court may use its discretion to stay the proceedings pending the appeal;
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 section 1A of the Businesses Act, which prohibits the payment of multiple or punitive damages;
3.3.4. the foreign court in question had jurisdiction and international competence 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 jurisdiction and international 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. South Africa has enacted the International Arbitration Act, 2017 (Act No. 15 of 2017) (International Arbitration Act) which provides for the enforcement of foreign arbitration awards in South Africa and which also provides for the incorporation of the Model Law on International Commercial Arbitration, as adopted by the United Nations Commission on International Trade Law, into South African law. In terms of section 16 of the International Arbitration Act, any foreign arbitration award (including an award obtained in respect of the Registration Statement) will be recognised and enforced in South Africa, provided that a party seeking the recognition or enforcement of a foreign arbitral award must produce:-
3.4.1. the original award and the original arbitration agreement in terms of which an award was made, authenticated in a manner in which foreign documents must be authenticated to enable them to be produced in any court, or certified copy of that award and of that agreement; and
3.4.2. a sworn translation of the arbitration agreement or arbitral award authenticated in a manner in which foreign documents must be authenticated for production in court, if the agreement or award is in a language other than one of the official languages of South Africa, provided that the court may accept other documentary evidence regarding the existence of the foreign arbitral award and arbitration agreement as sufficient proof where the court considers.it appropriate to do so.
3.5. In terms of section 18 of the International Arbitration Act a court may only refuse to recognise or enforce a foreign arbitral award if:
3.5.1. the court finds that
3.5.1.1. a reference to arbitration of the subject matter of the dispute is not permissible under the law of South Africa; or
3.5.1.2. the recognition or enforcement of the award is contrary to the public policy of South Africa; or
3.5.2. the party against whom the award is invoked, proves to the satisfaction of the court that
3.5.2.1. a party to the arbitration agreement had no capacity to contract under the law applicable to that party;
3.5.2.2. the arbitration agreement is invalid under the law to which the parties have subjected it, or where the parties have not subjected it to any law, the arbitration agreement is invalid under the law of the country in which the award was made;
3.5.2.3. that a party did not receive the required notice regarding the appointment of the arbitrator or of the arbitration proceedings or was otherwise not able to present his or her case;
3.5.2.4. the award deals with a dispute not contemplated by, or not falling within the terms of the reference to arbitration, or contains decisions on matters beyond the scope of the reference to arbitration, subject to the provisions of section 18(2) of International Arbitration Act;
3.5.2.5. the constitution of the arbitration tribunal or the arbitration procedure was not in accordance with the relevant arbitration agreement or, if the agreement does not provide for such matters, with the law of the country in which the arbitration took place; or
3.5.2.6. the award is not yet binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.
3.6. The South African courts will not apply a foreign law if:-
3.6.1. it is not pleaded and proved; or
3.6.2. the selection of the foreign law was not bona fide and legal; or
3.6.3. to do so would be contrary to public policy.
3.7. In respect of any suit or action by any counterparty against Sasol in South African courts, such counterparty, as a foreign plaintiff or perigrinus:-
3.7.1. 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;
3.7.2. 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:-
3.7.2.1. 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
3.7.2.2. 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.
3.8. 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 3.7.2.2 above.
3.9. Any signature on the Registration Statement signed outside South Africa must be authenticated:-
3.9.1. if signed in England, by a notary public in England; or
3.9.2. if elsewhere, in accordance with the Uniform Rules of the High 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.
3.10. 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.
3.11. The position under South African law currently accepted by commentators (there being no case law on this point) is that parties to a contract cannot agree in advance to the governing law of claims connected with the contract but which are not claims under the contract, such as claims in delict (tort).
3.12. South African courts have determined that parties to a contract (including the Registration Statement) would not be able to amend it by oral agreement if the contract provides that it can only be amended by written agreement between the parties.
3.13. 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 (the Old Companies Act) in its entirety, except for Chapter 14 thereof, that deals with the winding-up of companies. The views expressed in this Opinion are based on our interpretation of the Companies Act as at the date of this Opinion.
3.14. Winding-Up and Insolvency
3.14.1. Under South African law, the winding-up and business rescue of companies is regulated by both the Old Companies Act (and in the case of voluntary winding up by the Companies Act) and the Insolvency Act, 1936 (the Insolvency Act).
3.14.2. The effect of the Companies Act, the Old Companies Act and the Insolvency Act (together with any other South African laws regulating the enforcement of creditors rights generally) is such that if any party to the Registration Statement, if that party is governed by South African law, is subject to winding up, then the party may not have the power, capacity and authority to conclude the Registration Statement, as the power, capacity and authority of the party 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 and public policy.
3.14.3. The further effect of the Companies Act, the Old Companies Act and the Insolvency Act and any other South African 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 Registration Statement to the full extent contemplated therein as the enforceability of such Registration Statement may be limited or affected by bankruptcy, insolvency, business rescue proceedings, 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 Sasol under the Registration Statement 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:-
3.14.3.1. the laws affecting creditors rights generally including, but not limited to, insolvency laws;
3.14.3.2. the laws of prescription and set-off, pursuant to which claims may become time-barred or may be or may become subject to defences of set-off or counterclaim;
3.14.3.3. where obligations are to be performed in a jurisdiction outside t 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;
3.14.3.4. 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;
3.14.3.5. 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;
3.14.3.6. enforcement of obligations may be invalidated by reason of fraud, duress, misrepresentation, or undue influence;
3.14.3.7. matters of procedure upon enforcement of the Registration Statement will be governed by and determined in accordance with the law of the forum where such enforcement takes place;
3.14.3.8. principles of equity and the doctrine of the South African courts in enforcing equitable remedies and principles of public policy.
3.14.4. Under the 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 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 filed with CIPC, (ii) any order made by a court for the liquidation, winding-up or
business rescue of a company of which CIPC has not been notified, or (iii) any petition presented to a court for the liquidation, winding-up or business rescue of a company. In regard to sub-paragraph (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 business rescue of a company is notified to CIPC.
3.15. 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.
3.16. The effectiveness of any provision of any Offering Document which allows an invalid provision to be severed in order to save the remainder of such Offering Document will be determined by the South African courts in their discretion.
3.17. Any provision in the Registration Statement 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 South African 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.
3.18. South African courts may not enforce a provision of the Registration Statement that limits a constitutional right of a South African contract party. In determining the constitutional validity of contractual provisions, South African courts will have regard to, amongst other things, (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.
3.19. The Conventional Penalties Act, 1962 (Act No.15 of 1962) of South Africa provides (inter alia) that:-
3.19.1. 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
3.19.2. 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 creditors proprietary interest but every other rightful interest which may be affected by the act or omission in question.
3.20. 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 Sasol under the Registration Statement.
3.21. 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.
3.22. Provisions that a defaulting party will pay all of the innocent partys 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.
3.23. A determination, designation, calculation or certificate of any party to the Registration Statement, as to any matter provided for in the Registration Statement 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 Registration Statement.
3.24. Where a party to the Registration Statement 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.
3.25. 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.
3.26. Any claim that any counterparty may have against Sasol arising out of or in connection with the Registration Statement will, under the laws of South Africa, prescribe after the expiry of a period of three years from the date on which the cause of action in respect of such claim arose.
3.27. Any provision that a person shall not exercise or perform a right or obligation conferred or imposed on that person by statute, is subject to considerations of public policy.
3.28. Except as explicitly stated herein, we give no opinion as to:-
3.28.1. matters of fact;
3.28.2. any liability to any form of tax;
3.28.3. the applicability of any provision relating to competition law in South Africa;
3.28.4. the commercial desirability or reasonability of any of the terms of the Registration Statement or the transactions referred to therein;
3.28.5. the suitability or adequacy or correctness of the representations, warranties and undertakings of the Registration Statement;
3.28.6. the creditworthiness of the parties to the Registration Statement;
3.28.7. the fulfilment of any of the conditions precedent in the Registration Statement;
3.28.8. whether Sasol will be in a position to fulfil its obligations under the Registration Statement;
3.28.9. except with respect to paragraph 2.1.3, whether the acceptance, execution or performance of Sasols obligations under the Registration Statement will result in the breach of or infringe any other agreement, deed or arrangement entered into by or binding on Sasol; or
3.28.10. 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 Registration Statement.
3.29. 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.
4. This Opinion is being furnished at the request of Sasol, on the basis that this Opinion is required under Item 601(b)(5) of Regulation S-K under the U.S. Securities Act of 1933, in connection with the filing, with the Commission, of the Registration Statement.
5. This Opinion is intended solely for use in connection with the filing, with the Commission, of Registration Statement and the issuance of securities subject to the Registration Statement, and is not to be relied upon for any other purpose.
6. We consent to (i) the filing of this Opinion with the Commission, as an exhibit to the Registration Statement, (ii) the references to this Opinion in the Registration Statement, and (iii) the references, in the Registration Statement under the section headed Legal Matters, to ENSafrica (the Consent). In giving the Consent, we do not admit or concede that we are 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.
7. ENSafrica is a private company incorporated in South Africa, with its shareholders being lawyers admitted to practice in South Africa. The lawyers of ENSafrica are, for purposes of the Consent and/or this Opinion,
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of Sasol Limited of our report dated 24 August 2020 relating to the consolidated financial statements and the effectiveness of internal control over financial reporting, which appears in Sasol Limiteds Annual Report on Form 20-F for the year ended 30 June 2020. We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/ PricewaterhouseCoopers Inc.
Johannesburg, Republic of South Africa
24 August 2020
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) o
WILMINGTON SAVINGS FUND SOCIETY, FSB
(Exact name of Trustee as specified in its charter)
N/A |
|
51-0054940 |
(Jurisdiction of incorporation of organization if not a U.S. |
|
(I.R.S. Employer Identification No.) |
500 Delaware Avenue, 11th Floor
Wilmington, DE 19801
(302) 792-6000
(Address of principal executive offices, including zip code)
WILMINGTON SAVINGS FUND SOCIETY
CONTROLLERS OFFICE
500 Delaware Avenue
Wilmington, DE 19801
(302) 792-6000
(Name, address, including zip code, and telephone number, including area code, of agent of service)
SASOL FINANCING USA LLC
(Exact name of obligor as specified in its charter)
Delaware |
|
Not Applicable |
(State or other jurisdiction or incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
12120 Wickchester Lane
Houston, Texas 77079
(Address of principal executive offices, including zip code)
$1,500,000,000 5.875% Notes due 2024
$750,000,000 6.50% Notes due 2028
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
Securities and Exchange Commission
Washington, DC 20549
Federal Reserve
District 3
Philadelphia, PA
FDIC
Washington, DC 20549
Office of the Comptroller of the Currency
New York, NY 10173
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
Listed below are all exhibits filed as part of this Statement of Eligibility and Qualification.
Exhibit 1. A copy of the articles of association of the trustee as now in effect.
Exhibit 2. A copy of the certificate of authority of the trustee to commence business, if not contained in the articles of association.
Exhibit 3. A copy of the authorization of the trustee to exercise corporate trust powers, if such authorization is not contained in the documents specified in paragraph (1) or (2) above.
Exhibit 4. A copy of the existing bylaws of the trustee, or instruments corresponding thereto.
Exhibit 5. Not applicable.
Exhibit 6. The consents of United States institutional trustees required by Section 321(b) of the Act.
Exhibit 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
Exhibit 1 Charter of Wilmington Savings Fund Society, FSB (see attached) 1
() Office of the Comptroller of the Currency Washington, DC 20219 CERTIFIED FEDERAL SAVINGS ASSOCIATION CHARTER I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that the document hereto attached is a true and correct copy, as recorded in the Office of the Comptroller of the Currency (successor to the Office of Thrift Supervision), of the charter for the federal savings association listed below: Wilmington Savings Fund Society, FSB Wilmington, Delaware OTS Docket No. 7938 IN TESTIMONY WHEREOF, today, July 29, 2015, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
... C.'-, ·-:::> J"" ._.,. .. - FEDERAL STOCK CHARTER r.1 :::..J OTSOOCKET4t 1137 ('")c -;'-·. : .. . . 0 ,·' WILMINGTON SAVINGS FUND SOCIETY.. :.,.;:: SECTION I. Corporate Titlt. The full corporate title of the savins bank is "Wilmin tin si"vinj].und Society, Federal Savings Bank." "'' SECTION 2. Office. The home offi<:e of the savings bank shall be located in the County of New Castle, State of Delaware. SECTION .J. Duration. The duration of the savings bank is perpetual. SECTION 4. Purpos and Power. The purpose of the savings bank is to pursue any or all of the lawful objectives of a Federal savings bank chartered under Section S of the Home Owners' Loan Act and to exercise all the express, implied, and incidental powers conferred thereby and by all acts amendatory thereof and supplemental thereto, subject to the Constitution and laws of the United States as they are now in effect, or as they may hereafter bamended, and subject to all lawful and applicable rules, regulations, and orders of the Federal Home Loan Bank Board ("Board"). In addition, the savings bank may make any investment and engage in any activity as may be specifically authorized by action of the Board, including authorization by delegated authority, in connection with action approving the issuance of the charter. SECTION S . Capital Stock. The total number of shares of aU classes of the capital stock which the savings bank has authority to issue is Twenty Five Million ( 25,000,000 ), of wh.ich Seventeen and One Half Million ( 17,500,000) shall be common stock, par value S.Ol per share, and ofwh.ich Seven and One Half Million ( 7,500,000) shall be preferred stock, par value $.01 per share. The shares may be issued from time to time as authorized by the board of directors without further approval of stockholders except as otherwise provided in this Section 5 or to the extent that such approval is required by governing law, rule, or regulation. The consideration for the issuance of the shares shall be paid in full before their issuance and sh.all not be less than the par value. Neither promissory notes nor future services shall constitute payment or pan payment for the issuance of shares of the savings bank. The consideration for the shares shall be cash, tanaible or intan&iblc property (to the extent direct investment in such property would be permitted), labor or services actually performed for the savings bank, or any combination of the foregoing. In the absence of actual fraud in the transaction, the value of such property, labor, or services, as determined by the board of directors of the savings bank, shall be conclusive. Upon payment of such consideration, such shares shall be deemed to be fl lly paid and nonassessable. In the case of a stock dividend, that part of the surplus of the savings bank wh..ich is transferred to stated capital upon the issuance of shares as a share dividend shall be deemed to be the consideration for their issuance. Except for shares issuable in connection with the conversion of the savinas bank from the mutual to the stock form of capitalization, no shares of capital stock (including shares issuable upon conversion, exchange, or exercise of other securities) shall be issued, directly or indirectly, to officen, directors, or control1ins persons of the savings bank other than as pan of a general public olferinK or as qualifyina shares to a director, unless their issuance or the plan under which they would be issued has been approved by a majority of the total votes eliaible to be cast at a legal meetine. Nothing contained in this SectionS (or in any supplementary sections hereto) shall entitle the holders of any class of a series of capital stock to vote as a separate class or series or to more than one vote per share, except as to the cumulation of votes for the election of directors: ProYided.That this restriction on voting separately by class or series shall not apply: (i) To any provision which would authorize the holders of preferred stock, voting as a class or series, to elect some members of the board of directors, less than a majority thereof, in the event of y.J:.default in the payment of dividends on any class or series of preferred stock: ·:-·
( ii)"""To any-provision which would require the holders of preferred stock, voting as a class or series, to approve the mereer or consolidation of the savings bank with another corporation or the sale, lease, or conveyance (other than by mortgage or pledge) of properties or business in exchange for securities of a corporation other than the savings bank if the preferred stock is -exchanged for securities of such other corporation: Provided, That no provision may require such approval for payments, if any, to which such holders are respectively entitled in preference to the common stock, savings bank available for distribution remaining after: ( i) p ymcnt or provision for payment of the savings bank's debts and liabilities; ( ii) distributions or pro ion for distributions in settlement of its liquidation account; and (iii) distributions or provision for distributions to holders of any class or series of stock havina preference over the common stock in the liquidation, dissolution, or winding up of the savings bank. Each share of common stock shall have the same relative rights as and be identical in all respects with all the other shares of common stock. B. Preferred Stock. The savines bank may provide in supplementary sections to its chaner for one or more classes of preferred stock, which shall be separately identified. The shares of any Class may be divided into and issued in series, with each series separately designated so as to distinguish the shares thereof from the shares of all other series and classes. The terms of each series shall be set forth in a supplementary section to the chaner. All shares of the same class shall be identical except as to the followine relative rights and preferences, as to which there may be variations between different series: (a) The distinctive serial designation and the number of shares constitutine such series; ( b ) The dividend rate or the amount of dividends to be paid on the shares of such series, wh.ether dividends shall be cumulative and, if so, from which date( s) the payment date( s) for dividends, and the participating or other special rights, if any, with respect to dividends; (c) The voting powers, full or limited, if any, of the shares of such series; (d) Whether the shares of such series shall be redeemable and, if so, the price( s) at which, and the terms and conditions on which, such shares may be redeemed: 2 . transactions undertaken with the assistance or pursuant to the direction of the Federal Savings and Loan Insurance Corporation; (iii) To any amendment which would adversely change the specific terms of any class of series of capital stock as set forth in th.i5 Section S (or in any supplementary sections hereto), including any amendment which would create or enlarge any class or series ranking prior thereto in rights and preferences. An amendment which increases the number of authorized shares of any class or series of capital stock, or substitutes the survivina association in a merger or consolidation for the savings bank, shall not be considered to be such an adverse change. A description of the dilferent classes and series (if any) of the savings bank's capital stock and a statement of the designations, and the relative rights, preferences, and limitations of the shares of each class of and series (if any) of capital stock are as foUows: A. Common Stock. Except as provided in this Section S (or in any supplementary sections hereto) the holders of the common stock shall exclusively possess all votina power. Each holder of shares of common stock shall be entitled to one vote for each share held by such holder, except as to the cummulation of votes for the election of directors. Whenever there shall have been paid, or declared and set aside for payment, to the holders of the outstanding shares of any class of stock having preference over the common stock as to the payment of dividends, the full amount of dividends and of sinking fund, retirement fund, or other retirement then dividends may be paid on the common stock and on any class or series of stock entitled to panicipate therewith as to dividends out of any assets legally available for the payment of dividends. In the event of any liquidation, dissolution, or winding up of the savings bank, the holders of the common stock (and the holders of any class or series of stock entitled to participate with the common stock in the distribution of assets) shall be entitled to receive, in cash or in kind, the assets of the
involuntary liquidation. dissolution, or windina up to the savings bank; (f) Whether the shares of such series shall be entitled to the benefit of a sinking or retirement fund to be applied to the purchase or redemption of such shares, and if so enritled, the amount of such fund and the manner of itS application, includin& the price( s) at which such fixine and determinina the relative riahts and preferences thereof person in excess of 10% shall be considered 'excess shares' and shall not be counted as shares entitled Te) Th'i! amount(s) payable upon the shares.of such series in the event of voluntary or shares may be redeemed or purchased through the application of such fund; (i) Whether the shares of such series shall be convenible into, or cllchanaeable for, shares of any other class or classes of stock of the savings bank and, if so, the conversion price( s) or the rate(s) of exchange, and the adjwtmencs thereof, if any, at which such conversion or exchange may be made, and any other terms and conditions of such conversion or exchange. (h) The price or other consideration for which the shares of such series shall be issued; and ( i) Whether the shares of such series which are redeemed or converted shall have the status of authorized but unissued shares of serial preferred stock and whether such shares may be reissued as shares of the same or any other series of serial preferred stock. Each share of each series of serial preferred stock shall have the same relative rights as and be identical in all respecu with all the other shares of the same series. The board of directors shall have authority to divide, by the adoption of supplementary charter sections, any authorized class of preferred stock into series, and, within the limitations set forth in this section and the articles of incorporation, fix and determine the relative ri&hts and preferences of the shares of any series so established. Prior to the issuance of any preferred shares of a series established by a supplementary charter section adopted by the board of directors, the savinas bank shall file with the Secretary to the Board a dated copy of that supplementary section of this charter establishina and desienatin1 the series and SECTION 6. Net Worth Certificates. Notwithstandin& any provision of Section 5, Capital Stock, the savin&s bank may issue net worth certificates, income capital certificates or similar certificates to the Federal Savings and Loan Insurance Corporation (the "Corporation") or the Federai Deposit Insurance Corporation in exchange for appropriate consideration, includina promissory notes of the Corporation, in accordance with the rules, regulations, and policies of the Board. Subject to such rules, regulations, and policies, the board of directors of the savinas bank is authorized without the prior approval of the stockholders of the savin&s banX. and by resolutioo( s) from time to time adopted by the board of directors to cause the issua.ncc of net worth certi.ftcates to the Corporation and to fix the designations, preferences, and relative, participatin1. optional, oother _special rights of th.e certificates, and the qualifications, limitations, and restrictions thereon. Stockholders of the savings bank shall not be entitled to preemptive rights with respect to the issuance of net worth certificates, nor shall holders of such certificates be entitled to preemptive riahts with respect to any additional issuance of net worth certificates. SECTION 7; Preemptive Right.r. Holders of the capital stock of the savings bank shall not be entitled to preemptive riahts with respect to any shares of the savings bank which may be issued. SECTION 8. Certain provisioiU applicablfor five years. Notwithstandina anything contained in the savings bank charter or bylaws to the contrary, for a period of five years from the date of completion of the conversion of the savings bank from mutual to stock fonn, the foUowing provisions shall apply: A. Beneficial ownership limitation. No person shall directly or indirectly offer to acquire or acquire the beneficial ownership of more than 10 percent of any class of an equity security of the savins bank. This limitation shall not apply to a transaction in which the savings bank fonns a holding company without change in the respective beneficial ownership interests of its stockholders other than pursuant to the exercise of any dissenter and appraisal rights or the _ purchase of shares by underwriters in connection with a public offering. In the event shares are acquired in violation of this Section 8, aU shares beneficially owned by any to vote and shall not be voted by any person or counted as voting shares in connection with any matters submitted to the stockholders for a vote. 3
For""ffie purposes of this Section 8, the following definitions apply. ( l) The term "person'' includes an individual, a group acting in concen, a corporation. a partnership, an association, a joint stock company, a trust, any unincorporated organization or similar company, a syndicate or any other group formed for the purpose of acquiring, holding or disposing of securities of the savings bank. ( 2) The term "olfer" includes every olfer to buy or otherwise acquire, solichation of an offer to sell, tender offer for, or request or invitation for tenders of, a security or interest in a security for value. ( 3) The term "acqui,n," includes every rype of acquisition, whether effected by purchase, exchange, operation of law or otherwise. ( 4) The term acting in concert.. means (a) knowing participation in a joint activity or conscious paraJlel action towards a common goal whether or not pursuant to an express agreement, or (b) a combination or pooling of voting or other interests in the securities of an issuer for a common purpose pursuant to any contract, understanding, relationship, agreement or other arrangemenu, whether written or otherwise. B. Cumulativvoti11g limitation. Stockholders shaU not be permitted to cumulate their votes for election of directors. C. Call for special meetingt. Special meetinp of stockholders relating to changes in control of the savings bank or amendmenu to its charter shall be called only upon direction of the board of directors. SECTION 9. Liquidation Account. Pursuant to the requirements of the Board's reaulations ( 12 C.F.R. Subchapter D), the savinas bank shall establish and maintain a liquidation account for the benefit of its savings account holders as of December 31, 1983 ( ..eligible savers"). In the event of a complete liquidation of the savings bank, it shaU comply with such reaulations with respect to the amount and the priorities on liquidation of each of the savings bank's elipble saver's inchoate interest in the liquidation account, to the extent it is still in existence: Provided, that an eligible saver's inchoate interest in the liquidation account shall not entitle such eliaible saver to any voting rights at meetings of the savings bank's stockholders. SECTION 10. DirectorJ. The savinas bank shall be under the direction of a board of directorS. The authorized number of directors, as stated in the savings bank's bylaws, shall not be less than seven or more than fifteen except when a areater number is approved by the Board. SECTION 11. Amendmtnt of Chart r. Except as provided in Section S, no amendment, addition, alteration, chance, or repeal of this charter shall be made, uoless such is first proposed by the board of directors of the savings bank, then preliminarily approved by the Board, which preliminary approval may be granted by the Board pursuant to regulations specifying preapproved charter amendments, and thereafter approved by the shareholders by a majority of the total votes eli&ible to be cast at a leaal meeting. Any amendment, addition, alteration, change, or repeal so acted upon shall be effective upon lilina with the Board in accordance with regulatory procedures or on such other date as the Board may specify in irs preliminary approval. 4
Any amendm"Hat, addition, alteration, change or repeal so acted upon shall be effective upon tiling with the Board in ac rdancc with the: regulatory procedures or on such other date as the Board may specify in its preliminary approval . 0. Secr tary fl/the Sa111'ngs .Ba1t_nk ay:?9--G (d_ .:._ Attest: President or Chief Executive the Savings Ban.k , 198 . FEDEIVJ. HOME LoAN BANK BoARD . Declared effective this · 5
.--------- - . - ' .. OTSOOCKET# 7731 WILMINGTON SAVINGS FUND SOCIETY, Society, Federal Savings Bank (the sank }, the Board of Directors of the Bank does hereby adopt a Preferred Stock iD a series to consist of Two Million (2,000,000) shares, $.01 par value per share, to be known distinguishing characteristiCs, relative gbts and preferences, including the designation, preferences and relative series of stock (in addition to those set forth iD the Federal Stock Charter of the Bank which are applicable to Perpetual Convertible Preferred Stock, .Series r (the series 1 Preferred Stock") and the number of shares . . . ' Dividends acauing on outstanding shares of Series 1 Preferred Stock shall not be cumulative. Dividends paid accrued and payable on such shares shall be aJioc:ated pro rata on a share-by-share basis among all such shares 'SUPPLEMENTARY SECTION TO THE FEDERAL stoCK CHARTER OF FEDERAL SA'viNGS BANK Authorization of Non-CumulaUve Convertible Perpetual Inferred Stock, Series 1, $.01 Par Value Per Sbare RESOLVBD that. pursuant to Section S of the Federal Stock Charter of Wdmington Savings Fund Supplementary Scd.ion to the Federal Stock Charter of the Bank to provide for the issuance of shares of. as the Bank's ".Non-Cumulative Convertible Perpetual Preferred Stock, Series r and docs hereby fiX the participating. optional or other special rights. and t.lie qualificatiODS, limitations and restrictions thereof, of such the Preferred Stock of all series), as follows: · Section 1. Desi@ation and Amount. The shares or this series shall be designated as "Non-Cumulative constituting the Series 1.Preferred Stock shall.bc Two Million (2,000,000) shares. Section 2. Dividends and Distributions. (A) The holders of record of shares of Series 1Preferred Stock shall be entitled to receive, if,as and when declared by the Board of Directors out of funds legally available for the purpose, quarterly cash dividends payable in arrears on the first day of January, April, July and October in each year (each such date being referred to herein as a Quarterly Dividend Payment Date"), to the holders of record of the Series 1Preferred Stock at the close or business ODor about the l.Stb day or the month next preceding the fU"St day of January, April, July· or October, as the case may be, fiXed by the Board of Directors (the Record Date), commencing on the frrst Quarterly DlYidend Payment Date after March 31, 1994 in an amount (if any) per share (rounded to the nearest cent), subject to the provision for adjustment hereinafter set forth, equal to one-quarter. of the total annual dividend of oi.uety cents (90¢) per share.·· (B) Dividends due pursuant to paragraph (A) of this Section shall begin to accrue on outstanding shares of Series 1 Preferred Stock from the Quarterly Dividend Payment Date next preceding March 31, 1994. on the shares of Series 1 Preferred Stock in an amount less than the total amount of such dividends at the time at the time outstanding. · (C) No dividends shall accrue or·be paid on the Series 1 Preferred Stock, if after payment, the Bank would be undercapitalized within the meaning of Section 38(d) o£ the Federal Deposit Insurance Act. Section 3. Certain Restrictions. (A) Prior to March 31, 1994, the Bank shall not in any circumstances, and after March 31, 1994, whenever quarterly dividends or other" dividends or distributions payable OD the Series 1 Preferred Stodc as provided ln Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions. wliether or not declared, on shares or Series 1 Preferred Stock outstanding shall have been paid in full, the Bank shall not: {i) declare or pay dividends, or make any other distributions, on any shares or stock ranking junior (eitlier as to dividend.<or upon liquidation, dissolution or winding up) to the Series 1Preferred Stock; (ii) declare or pay dividends, or make any other distributions, on any shares. of stock ranking on. a parity (either as to dividends or upon liquidation, dissolution or winding up)· with the Series 1 Preferred Stock, except dividends paid ratably on the Series 1 Preferred Stock and all such parity stock
all such shares arc then entitledor Stoclc, provided that the Bank may at any time redeem, purchase or otherwise acquire shares of any such consideration any shares of stock of the Bank unless the Bank could, under paragraph (A) of this Section 3, or the regu]ations of the Offiee·of Thrift Supervision, or any successor thereto, holders of Series·1 Preferred h.is·optioO, at any-time or from time to time to cqnvert such share into six (6) fuUy paid and nonassessable shares accumulated or otherwise. If the Bank subdivides or combine in a larger or smaller n ber of &bares its of Series 1Preferred Stock will be proportionately increased in the case of a subdivision and decreased in the combination becomes effective. If the Bank at any time pays to the holders of its Common Stock a dividend in shall be proportionally increased, effective at the osc of business on the record date for determination of the 1Preferred Stoclc sbaU convert shall be automatically adjusted from time to time in the ume manner and to t e notice Of election to convert such shares of Series 1Preferred Stock or .portion thereof executed on the form the conversion of such shares of Series 1 Prefcned Stock and scrip, in respect of any fraction of a share 9f ·-.. to be exchangeable for the number of full shares of Common Stock represented thereby, to be issued in such on which dividends are payable or in arrears in proportion to the total amounts to which the holders of (iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation. dissolution or winding up) to tbe Series 1 Prderred junior &tock in exchange for shares of any stock of the Bank ranking junior (as to dividends and upon dissolutioo. liquidation or winup) to the Series 1 Prefened Stock. (B). The Bank shall not permit any subsidiary of the Bank to purchase or otherwise acquire for purchase or otherwise acquire such shares at such c and in such manner. Section 4. Voting Rights. Except as otherwise provided by statute, the Bank's Federal StCharter Stock shall have no special voting rights and their c:oosent shall not be required for taking any rporataction. Section 5. Conversion. · · · (A) Conversion Privilege. Each holder of a share of cries 1 Preferred Stock shall have the right, at of the Bank's common stock, $.01 par value pc;r share (the eommon Stock"). No adjustment Ol' allowance shall be made for dividends on shares of Series 1Preferred Stock sunendered for conversion, whether acaued, outstanding sb es of Common Stock, then the number o.f shares of Common Stock issuable upon the conversion case of a combiuation. effec.t.ive in eithu c:asc at the close of business on the date' that the subdivision or Common Stock, the number of shares of Common Stock issuable upon the conversion of Series·1Preferred Stock holdus of the Common Stock entitled to the dividend. In additioo. the number of shares into which the Series same extent as the number of shares into which the 10% Convertible Preferred Stock, Series 1, $.01par value per share, of Star States Corporation (the star States Series 1Preferred Stock") shall be entitled to convert so that each share of the Series 1 Preferred Stock shall at all.times be convertible into the same number of shares of Common Stock as a share of Star States S_eries 1Preferred Stock would then be entitled to con:vert.. (B) Manner of Exercise. In order to exercise the conversion privilege with respect to any shares of Series 1Preferred Stock, the holder thereof shall surrender the certificate or certificates therefor to any transfer agent of the Bank for the Series 1Prefened Stock, duly endorsed in blank for transfer, ac.companied by written set forth on such certificates or on such other form as may be provided from time to time by the Bank. As soon as practicable after the sunender of such certificates as provided above, the Bank shall cause to be issued and delivered, at the offiee of such transfer agent, to or on the order of the bolder of the certificates thus .surrendered, a certificate or certificates for the number of full sbares of Common Stock issuable hereunder upon Common Stock issuable upon such conversion as provided in paragraph (C). Such conversion shall be deemed to have been effected on the date on which the certificates for such shares of Series 1 Preferred Stock have been surrendered as provided above, and the person in whose name any certificate or certificates for shares of Common Stock are issuable upon such conversion shall be deemed to have become on such date the holder of reCord of the shares represented thereby. (C). Issuance of Serio in Lieu of Fractional Shares. No fractional shares of Common Stock shall be issued upon aoy co.nversion of Ser-ies 1 Preferred Stock. If two or more shares of Series 1 Preferred Stock arc surrendered for conversion at one time by the same holder, the number of fuJI shares issuable upon the conversion of such shares shall be computed· on the basis of the aggregate Original Liquidation Value (without adjustment for allowanee for dividends whether acaued, accumulated or otherwise) of such shares. In lieu of any fraction of a share of Common Stock to which any holder would otherwise be entitled upon conversion of _;. · any shares of Seri1Preferred Stock. the Bank shall issue non-interest-bearing and non-voting scrip certificates ( .which shall not be entitled to dividends for such fraction, such c.ertificate..together with other similar certificates, . \
- '. denominatios and in such form, to expire after such reasonable time (which shall be not less than o.nc year after ·· the date of issue thereof), to contain such p.rovisioDS for the sale, for the account of the holders of such certificates, of shares of Common Stock for which such certificates are exchangeable, and to be subjed to such other terms and conditions. as the Board of Directors may from time to time determine prior to the issue thereof. (D) The Bank shall at all times reserve and keep available out of the authorized Common Stock the full number of shares of the Common Stock issuable upon the conversion of all outstanding shares of the Series 1 redeem all or any portion of the Series 1Prefcned Stock then outstanding at a price per share equal to the to pay to the holder thereof on. the date on which redemption is to be made (the Redemption Date), upon amount in cash equal. to e dollars ($9) per share (the "Redemption cc·). Preferred Stock are to be. redee ed_ the number of shares to be redeemed shall be determined by the Board method as may be determined by such Board of Directors in its sole discretion to be equitable, and the certificate notice of such redemption shall be given by ftrst class mail, postage prepaid. mailed not less than .fifteen (IS) nor be redeemed and. if fewer than all the shares held by such holder are to be redeemed, the number of such shares applicable conversion price' or· rate; (V1') the place or places where certificates for such shares to be surrendered paragraph (C), dividends on the shares of Series 1Prefened Stock so caUed (or redemption shall cease to accroe, and after the time and date fued in the notice of Redemption Date or (ii) if the Bank shall so elect and state earlier date not less than f..Cteen (15) days after the date of maili.og of the redemption notice) on which the Bank any"such paying agent which shall not be required for such redemption because of the exercise of any right of redeemed by che Bank at the Redemption Price. ln case fewer thao all the shares represented by any such Preferred Stock. Section 6. Redemption of the Series 1 Preferred Stock. (A) Redemption at the Bank's Option. At any time on or after January i, 1996, the·Bank may Redemption Price (udefined he.rein) .For each share which is called for redemption, the Bank willbe obligated surrender by such holder at the offices of the transfer agent for the Series 1Preferred Stock qf the certificate representing such share, duly endorsed in blank or accompanied by BD appropriate form of ·assignment, an (B) Partial Redemption. In tlie· event that less than all of the outstanding shares of the Series 1 of Directors of the Bank and the shares to be redeemed shall be determined by lot or pro rata or by any other of the Banks Secretary filed with the transfer agent for the Series 1 Preferred Stock in respect of such determination shall be conclusive. (C) Notice of Redemption. In the event the Baalc shall redeem shares of Series 1Preferred Stock, more than sixty (60) days prior to te Redemption Date, to each record holder of the shares to be redeemed, at such bolder's address as the same appears on the boob of the Bank. Each such notice shall state:(i) the time and date as of which the rcdemptioo shall occur; (ii) the total number of shares of Serie.s 1Preferred Stock to to be redeemed from such holder; (ill) the Redemption Price; (iv) that the shares of Series 1 Prefened SfOck ca1Jed for redemption may be converted at·any time prior to the time and date ftxed for redemption; (v) the for payment.of the Redemption Price; and (vii)' that divideads on the shares to be redeerned will cease to accrue on such Redemption Date. (D) Dividends After Redemption Date. Jr notice of redemption shall have been given as provided in such shares shall no longer be deemed to be outstanding. and all rights of the holders thereof :IS stockholders of the Bank (except the right to receive from the Bank the Redemption Price without interest and dcept the right to convert such shares in accordance with Section S) shall cease (including any right to receive dividends .otherwise payabJe on any Dividend Payment Date that would have occurred after the Redemption Date) from in the notice of redemption, from and after the ti.me and date (which date shaU be the Re4emption Date or an shaD irrevocably deposit witb a designated bank or trust company, as paying agent, money ·umcient to pay at the oCfice of such paying agent on the Redcmptioo Date, the Redemption Price. Any money o deposited \\ilh conversion or otherwise shall be returned to the Bank forthwith. Upon surrender (in accordanct With the notice of redemption) of the certificate or certHicates for any shares to be so redeemed (properly endorsed or assigned for transfer, if the Bank shall so require and the notice of redemption shall so state), such shares shaU be certificate arc to be redeemed, a new c:crtificate shall be issued representing the unredeemed shares, without cost to the holder thereof, together with scrip in lieu of fractional shares in accordance with Section S(C). Subject to applicable escheat laws, any moneys so set aside by the Bank and unclaimed at the end of one year from the Redemption Date shall revert to the general funds of the Bank, after which reversion the holders of such shares so caJicd for redemption shall look only to the general funds of the Bank for the payment of the Redemption Price without interest. Any interest accrued on runds so deposited shall be paid to the Bank from time to time.
reissued as part of a new series of Preferred Stock subje<:t to theconditions and restrictions on issuucc set forth Charter creating a series of Preferred Stock or any similar stock or as otherwise required by Jaw. provision for payment of tlle Baoks debts and Uabni ea and .distnoutions or provision.s for distirbutions in hereinafter set forth, equal to nine dollars ($9) (the origin'aJ Uquidatioa Value") per share and the holders of referred to as the Liquidation Paymeota:Upoa any such liquidation, dissolution or winding up of the Bank, entitled, the remainiog net assets of the Banlc. may be distributed to the holders of the Common Stock. Written thirty (30) days prior to the payment date stated therein, to the holders of record of the Series 1Preferred Stock, Neither the coasolidatioa nor merger of the Bank into or with any other corporation or corporations, nor the shall be deemed to be a liquidation, dissolution or winding up of the Bank within the meaning of any of the stock or secwities. cash and/or any other property, then in any such event each sbarof Series 1 eferred Stock adjustment hereinafter set forth, equal to the amount which would have been received by the bolder thereof if : ··.(SEAL) Marvin N. Schoenhals., President .. (E) No Other Redemption. The Series 1Preferred Stock shall not be subject to redemption except as provided in this Section 6. . Section 7. Reacquired Sbues. Any sbues of Series 1Preferred Stock purchased or otherwise acquired by the Banlc in uy manner whatsoever shall be retired and canceUed promptly after the acquisition thereof. All .such shares shall upon their c.anceU tion become authorized but unissued shues of Preferred Stoclc and may be herein, in the Federal Stock Charter of the Bank, including any supplementary sec:t.ioa to tho Federal Stock Scctioa 8. Liquidation. Qissolution or Winding Up. Upon any liquidation, dissolution or winding up of the Bank the holders of. shares of Series 1 Preferred Stock sbaU be entitled to receive, after payment or settlement of its Uquidatioo accoUnt. an aggregate amount· per share, subject to the provis.ioo for adjustment the Series 1Preferred Stock shall not be entitled to any further payment, such amount& behereia sometimes after the holden of the Series 1Preferred Stock shall babeen paid in full the amounts to which they shall be notice of any such liquidation, dissolution or winding up, stating a payment datethe amount of the Liquidation Payments and the place !'here said sums shall be payable shaU be given by mail, postage prepaid, not less than such notice to be addressed to each stockholder at his post office address as shown by the records of the Bank. sale or transfer by the Bank of all or any part of its as.sets, nor lhe reduction of the capital stock of the Bank, provisions of this Section 8. . Section 9. cOnsolidation, Merger.ete. In the event the Banlc shall enter mto any consolidatlon, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other shall at the same. time be similarly exchanged or changed into an amount per share, subject to the provision for such share of Series 1 Preferred Stock had been converted· to Common Stock immediately prior to such transaction pursuant to Section S hereof. The undersigned President and Seaetary of the Bank hereby certify that the foregoing Supplementary Section to the Federal Stock Charter of the Bank was duly adopted by the Board of Directors of the Bank. Dated as of the ...!..:_th day of September, 19?2-Wll..MINGTON SAVINGS FUND SOCIETY .· .. A'rfEST: .
Exhibit 4 Bylaws of Wilmington Savings Fund Society, FSB (see attached) 2
BYLAWS OF WILMINGTON SAVINGS FUND SOCIETY, FEDERAL SAVINGS BANK ARTICLE J. HOME OFFICE The home office of Wilmington Savings Fund Society, Federal Savings Bank ("Bank") shall be at Wilmington in the county of New Castle in the State of Delaware. ARTICLE !I. STOCKHOLDERS SECTION I. Place of Meetings. All annual and special meetings of stockholders shall be held at such place as the board of directors may determine in the state in which the Bank has its principal place of business. ' · SECTION 2. Annual Meeting. The annual meeting of the stockholders of the Bank for the election of directors and for the transaction of any other business bf the Bank shall be held within 120 days after the end of the Bank's fiscal year. Such meeting date shall be designated annually by the board of directors. SECTION 3. Special Meetings. Special Meetings or' the shareholders for any purpose or purposes, unless otherwise prescribed by the regulations of the Federal Home Loan Bank Board ("Board") (which as hereinafter used includes the Federal Savings and Loan Insurance Corporation), may be called at any· time by the chairman of the board, the president, or a majority of the board of directors, and shall be called by the chairman of the board, the president, or.the secretary upon the written request of the holders of not less than one-tenth of all of the outstanding capital stock of the Bank entitled to vote at the meeting. Such written request shall state the purposor purposes of the meeting and shall be delivered to the home office of the Bank addressed to the chairman of the board, the president, or the secretaty. SECTION 4. Conduct of Meetings. Annual and special meetings shall be conducted in accordance with the most current edition of Roberr's Rules of Order unless otherwise prescribed by regulations of the Federal Home Loan Bank Board, or these bylaws. The board of directors shali designate, when present, either the chairman of the board·or president to preside at such meetings. SECTION 5. Notice of Meetings. Written notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than twenty nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the chairman of the board, the president, the secretary, the directors calling the meeting to each stockholder of record entitled to vote at such meeting. If .mailed, such notice shall be deemed to be delivered when deposited in the U.S. mail, addressed to the stockholder at his address as it appears on the stock transfer books or records of the Bank as of the record date prescribed in Section 6 of this Arricle II, with postage thereon prepaid. When any stockholders' meeting, either annual or special, is adjourned for thirry days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. It shall not be necessaty to give any notice of the time and place of any meeting adjourned for less than thirry days or of the business to be transacted thereat, other than an announcement at the meeting at which such adjournment is taken. SECTION 6. Fixing of Record Date. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or.stockholders entitbl to receive payment of any dividend, or in order to make a determination of stockholders for any other proper purpose, the board of directors shall fix in advance a date as the record date for any such determination of stockholders. Such date in any case. shall be not more than sixty days and, in case of a meeting of
stockholders, not fewer than ten days prior to the date on which the particular action, requiring such determination of stockholders, is to be taken. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof. SECTION 7. Voring Lists. The officer or agent having charge of the stock transfer books for shares of the Bank shall make, at least twenty days before each meeting of the stockholders, a complete list of the stockholders entitled to vote 01 such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, shall be kept on file at the home office of the Bank and shall be subject to inspection by any stockholder at any time during usual business hours, for a period of twenty days prior to such meeting. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting. The original stock transfer book shall be prima facie evidence as to who are the stockholders entitled to examine such list or transfer books or to vote at any meeting of stockholders. In lieu of making the stockholders list available for inspection by any stockholder as provided in the preceding paragraph; the board of directors may elect to follow the procedures prescribed in Section 552.6( d) of the Board's Regulations, as now or hereafter in effect. SECTION 8. Quorom. A majority of the outstanding shares of the Bank entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than a majority of the ·omstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without funher notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized· meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. \ SECTION 9. Proxies. A> all meetings of stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Proxies solicited on behalf of the management shall be voted as directed by the stockholder or, in the absence of such direction, as determined by a majority of the board of directors. No proxy shall be valid after eleven months from the date of its execution except for a proxy coupled with an interest. SECTION 10. Voting of Shares in the Name of Two or More Persons. When ownership stands in the name of two or more persons, in the absence of.written directions to the Bank to the contrary, at any meeting of the stockholders of the Bank any one or more of such stockholders may cast, in person or by proxy, all votes to which such ownership is entitled. In the event ·an attempt is made to cast conflicting votes, in person or by proxy, by the several persons in whose names shares of stock stand, the vote or votes to which those persons are entitled shall be cast as directed by a majority of those holding such stock and present in person or by proxy at such meeting, but no votes shall be cast for such stock if a majority cannot agree. SECTION II. Voting of Shares by Certain Holders. Shares standing in the name of another corporation may be voted by any officer, agent or proxy as the bylaws ·of such corporation may prescribe, or. in the absence of such provision, as the board of directors of such corporation may determine. Shares heid by an administrator, executor, guardian or conservator may be v·ated by him, either i:, person or by proxy, without a transfer of such ::.hares into his name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by h;m without a transfer of sUch shares into his name. Shares :itanding in the name of a receiver may be fated by such receiver, and shares held by or under the control ot' a receiver may be voted by such receiver without the transfer thereof into his name if authority to do so is contained in an appropriate order of the court or other public authority by which such receiver was appointed. A stockholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee and thereafter the pledgee shall be entitled to vote the shareso transferred. 2
.. . . Neither 1reasury shares of its own s10ck held by the Bank, nor shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation are held by the Bank, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting. SECTION 12. Cumulative Voting. For a period of five years following the date of the completion of the conversion of 1he Bank from mutual 10 s1ock form, the cumulation of votes for the election of directors is not permitted. Thereafter, at each election for directors every stockholder entitled to vote at such election shall have the right either to vote, in person or by proxy, the number of shares owned by him for as many persons as there are directors to be elected and for whose election he has a right to vote, or to cumulate his votes by giving one candidate as many votes as the number of such directors to be elected multiplied by the number of his shares shall equal, or by distributing such votes on the same principle among any number of candidates. SECTION 13. Informal Action by Stockholders. Any action required to be taken at a meeting of the stockholders, or any other action which may be taken at a meeting of the stockholders, may be taken without a meeting if unanimous consent in writing, setting forth the action so taken, shall be given by all of the stockholders entitled to vote with respect to the subject matter thereof. SECTION 14. Inspectors of Election. In advance of any meeting of stockholders, the board of directors may appoint any persons other than nominees for office as inspectors of election to act at such meeting or any adjournment thereof. The number of inspectors shall be either one or three. If the board of directors so appoints either one or three such inspectors that appointment shall not be altered at the meeting. If inspectors of election are not so appointed, the chairman of the board or the president may make such appointment at the meeting. If appointed at the meeting, the majority of the votes present shall determine whether one or three inspectors are to be appointed. In case any person appointed as inspector fails to appear or refuses to act, the vacancy may be filled by appointment by the board of directors in advance of the meeting, by the chairman of the board, or by the president. Unless otherwise prescribed by regulations of the Federal Home Loan Bank Board, the duties of such inspectors shall include: determining the number of shares of stock and the voting power of each share, the shares of stock represented at the meeting, _the existence of a quorum, the authentidty, validity and effect of proxies: receiving votes, ballots or consents; hearing and determining all challenges and questions in any way arising in connection with the right to vme; counting and tabulating all votes or consents; determining the result; and such acts as may be proper to conduct the election or vote with fairness to all stockholders. SECTION 15. Nominating Committee. The board of direcwrs shall act as a nominating committee for selecting the management nominees for election as directors. Except in the case of a nominee substituted as a result of the death or othe(-incapacity of a management nominee, the nominating committee shall deliver written nominations to the secretary ar-least 20 days prior to the date of the annual meeting. Upon delivery, such nominations shall be posted in a conspicuous place in each office of the-Bank. No nominations for directors except those made by the nominating committee shall be voted upon at the annual meeting unless other nominations by stockholders are made in writing and delivered to the secretary of the Bank at least five days prior to the date of the annual meeting. Upon delivery, such nominations shall be posted in a conspicuous place in each office of the Bank. Ballots bearing the names of all the persons nominated by the nominating committee and by stockholders shall be provided for use at the annual meeting. However. if the nominating committee shall fail or refuse to act at least 20 days prior to the annual meeting, nominations for directors may be made at the annual meeting by any stockholder entitled to vote and shall be voted upon. SECTION 16. New Business. Any new business proposed by a stockholder to be taken up at the annual meeting shall be stated in writing and tiled with the secretary of the Bank at least five days before the date of the annual meeting, and all business so stated, proposed and filed shall be considered at the annual meeting, but no other proposal shall be acted upon at the annual meeting. Such writing tiled with the secretary shall contain such information as required by Regulation 14A and Schedule l4A under the Securities E.xchange Act 1934. Any stockholder may make any other proposal at the annual meeting and the same may be discussed and considered, but unless stated in writing and tiled with the secretary at least five days before the meeting, as provided above, such proposal shall be laid over for action at an 3
adjourned. special or annual meeting of the stockholders taking p!ace thirty days or more thereafter. This provision shall not prevent the consideration and approval or disapproval at the annual meeting of reports of officers, directors and committees, but in connection with such reports no new business shall be acted upon at such annual meeting unless stated and filed as herein provided. ARTICLE ill. BOARD OF DIRECTORS SECTION 1. General Powers. The business and affairs of the Bank shall be under the direction of its board of directors. The board of directors shall annually elect a chairman of the board and a president from among its members and shall designate, when present, either the chairman of the board or the president to preside at its meetings. · SECTION 2. Number and Term. The board of directors shall consist of eleven ( 11) members and shall be divided into three classes as nearly equal in number as possible. The members of each class shall be elected for a term of three years and until their successors are elected and qualified. One class shall be elected by ballot annually. SECTION 3. Regular Meetings. A regular meeting of the board of directors shall be held without other notice than this bylaw immediately after, and at the same place as, the annual meeting of stockh ?lders. The board of directors may provide, by resolution, the time and place, within the Bank's regular lending area, for the holding of additional regular meetings without pther notice than such resolution. SECTION 4. Qualification. Each Director shall at all times be the beneficial owner of not less than 100 Shares of capital stock of the association unless the association is a wholly owned subsidiary of a holding company. SECTION 5. Special Meetings. Special meetings of the board of directors may be called by or at the request of the chairman of the board, the president or one-third of the directors. The persons authorized to call special meetings of the board of directors may fix any place, within the Bank's regular lending area, as the place for holding any special meeting of the board of directors called by such persons. All meetings of the board of directors shall be conducted in accordance with the most current edition of Robert's Rules of Order. Members of the board of directors may panicipate in meetings by means of conference telephone, or by means of similar communications equiPment by which all persons panicipating in the meeting can hear each other. Such participation shall constitute presence in person but shall not constitute attendance for the purpose of compensation pursuant to Section 12 of this Article. SECTION 6. Notice. \Vriuen notice of any special meeting shall be given to each director at least twO days prior thereto delivered personally or by telegram, or at least five days prior thereto when delivered l:!y mail at the address at which the.director is most likely to be reached. Such notice shall be deemed to be delivered when deposited in the U.S. mail so addressed, with postage thereon prepaid if mailed, or when delivered to the telegraph company if sent by telegram. Any director may waive notice of any meeting by a writing filed with the secretary. The attendance of a director at a meeti.ng shall constitute a waiver of notice of such meeting. except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting of the board of directors need be specified in the notice or waiver of notice of such meetihg. SECTION 7. Quorum. A majority of the number of directors fixed by Section 2 of this Article 111 shall constitute a quorum for the transaction of business at any meeting of the board of directors, but if less than such majority is pi-esent at a meeting, a majority of the directors present may adjourn the meeting from time to time. Notice of any adjourned meeting shaH be given in the same manner as prescribed by Section 6 of this Article Ill. SECTION 8. Manner of Acting. The act of <he majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless governing law, rules or regulation requires otherwise. SECTION 9. Action Without a Meeting. Any action required or permitted tO be taken by the board of directors at a meeting may be taken withom a meeting if a consent in writing, setting: forth the action so taken, shall be signed by all of the directors. 4
s·ECTION 10. Resignation. Any director may resign at any time by sending a written notice of such resignation to the home office of the Bank addressed to the secretary. Unless otherwise specified therein such resignation shall take effect upon receipt thereof by the secretary. SECTION 11. Vacancies. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors, even if less than a quorum of the board of directors remains. A director elected to fill a vacancy shall be elected to serve until the next election of directors by the stockholders. Any directorship to be filled by reason of an increase in the number of directors may be filled by the board of directors for a term of office continuing only until the next election of directors by the stockholders. SECTION 12. Compensation. Directors, as such. may receive a stated compensation for their services. By resolution of the board of directors, a reasonable fixed sum, and reasonable expenses of attendance, if any, may be allowed for actual attendance at each regular or special meeting of the board of directors. Members of either standing or special committees may be allowed such compensation for actual attendance at committee meetings as the board of directors may determine. SECTION 13. Presumption of Assent. A directcr of the Bank who is present at a meeting of the board of directors at which action on any Bank matter is taken shall be presumed to have assented to the action taken unless his dissent or abstention shall be entered in the minutes of the meeting or unless he shall file his written dissenc to such action with the person acting as the secretary of the meeting before the .adjournment thereof or shall forward such dissent by registered mail to the secretary of the Bank within five days afler the date he receives a copy of the minutes of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. · SECTION 14. Removal of Directors. At a meeting of stockholders called expressly for that purpose, any director may be removed for cause by a vote of the holders of a majority of the shares then entitled to vote at an election of directors. If less then the entire board is to be removed, no one of the directors may be removed if the votes cast against the removal would be sufficient to elect a director if then cumulatively voted at an election of the class of directors of which such director is a pan. Whenever the holders of the shares of any class are entitled to elect one or more directors by the provisions of the charter or supplemental sections thereto, the provisions of this section shall apply, in respect to the removal of a director or directors so elected, to the vote of the holders of the outstanding shares of that class and not to the vote of the outstanding shares as a whole. SECTION 15. Age limitation on directors. No person shall be eligible for election, re-election, appointment. or reappointment to the board of directors of the Bank if such person -is then more than 75 years of age. No director shall serve beyond the annual meeting qf the Bank immediately following his attainment of75 years of age. The age limitation shall not apply to a person serving as a director emeritus of the Bank. Directors emeritus may be appointed and their compensation for services (in an amount not to exceed those fees paid to voting directors) determined by resolution of the board of directors of the Bank. Only former directors of the Bank (including former directors of other banks which have merged with, or otherwise been acquired by the Bank) shall be eligible to serve as directo.rs emeritus. Directors emeritus shall be available for consultation with and advice to management of the Bank. Directors emeritus may attend meetings of the board of directors, but shall have no vote on any matter acted upon by such board. ARTICLE IV. ExEctJTIVE AND OTHER CoMMITTEES SECTION l. Appointment. The board of directors, by resolution adopted by a majority of the full board, may designate the chief executive officer and two or more of the other directors to constitute an executive committee. The designation of any committee pursuant to this Article IV and the delegation of authority thereto shall not operate to relieve the board of directors, or any director, of an)' responsibility imposed by law or regulation. SECTION 2. Authoriry. The executive committee, when the board of directors is not in session. shall have and may exercise all of the authority of the board of directors except to the extent. if Jny, that such 5
authority shall be limited by the resolution appointing the executive committee; and except also that the executive committee shaH not have the authority of the board of directors with reference to: a declaration of dividends, an amendment of the charter or bylaws of the Bank, or recommending to the stockholders a plan of merger, consolidation, or conversion; the sale, lease or other disposition of all or substantially all of the property and assets of the Bank mherwise than in the usual and regular course of its business; a voluntary dissolution of the Bank: a revocation of any of the foregoing; or the approval of a transaction in which any member of the executive committee, directly or indirectly, has any material beneficial interest. SECTION 3. Tenure. Subject to the provisions of Section 8 of this Article IV, each member of the executive committee shall hold office until the next regular annual meeting of the board of directors following his designation and until his successor is designated as a member of the executive committee. SECTION 4. Meetings. Regular meetings of the executive committee may be held without notice at such times and places as the executive committee may fix from time to time by resolution. Special meetings of the executive committee may be called by a member thereof upon not less than one days' notice stating the place. date and hour of the meeting, which notice may be written or oral. Any member of the executive committee may waive notice of any meeting and no notice of any meeting need be given tO any member thereof who attends in person. The notice of a meeting of the executive committee need not state the business proposed to be transacted at the meeting. SECTION 5. Quorum. A majoriry of the members of the executive committee shall constitute a quorum .for the transaction of business at any meeting thereof, a·ild action of the executive committee must be authorized by the affirmative vote of a majority of the members present at a meeting at which a quorum is present. SECTION 6. Action Vithout a lvleeting. Any action required or permitted to be taken by the executive committee at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken. shall be signed by all of the members of the executive committee. SECTION 7. Vacancies. Any vacancy. in the executive committee may be filled by a resolution adopted by a majority of the full board of directors. SECTlON 8. Resignations and Removal. Any member of the executive committee may be removed at any time with or without cause by resolution adopted by a majority of the full board of directors. Any member of the executive committee may resign from the executive committee at any time by giving written notice to the president or the secretary of the Bank. Unless othenvise specified therein, such resignation shall take effect upon receipt. The acceptance of such resignation shall not be necessary to make it effective. SECTION 9. Procedure. The executive committee shall elect a Presiding officer from its members and may fix its own rules of procedure which shall not be inconsistent with these bylaws. It shall keep regular minutes of its proceedings and report the same to the board of directors for its information at the meeting thereof held next after the proceedings shall have occurred. SECTION 10. Other Committees. The board of directors may by resolution establish an audit commiuee. a loan committee or other committees composed of directors as they may determine to be necessary or appropriate tor the conduct of the business of the Bank and may prescribe the duties, constitution and procedures thereof. ARTICLE V. OFFtCERS SECTION I. Positions. The officers of the Bank shall be a president, one or more vice presidents, a secretary and a treasurer. each of whom shall be elected by the board of directors. The board of directors may also designate the chairman of the board as an officer. The president shall be the chief execuuvc officer, unless the board of directors designates the chairman of the board as chief executive officer. The president shall be a director of the Bank. The offices of the secretary and treasurer may be held by the same person and a vice president may also be either the secretary or the treasurer. The board of directOrs may designate one or more vice presidents as executive vice president or senior vice prcsidl!nt. The board 6
of directors may also elect or authorize the appointment of such other officers as the business of the Bank may require. The officers shall have such authority and perform such duties as the board of directors may from time to rime authorize or determine. In the abseOce of action by the board of directors, the officers shall have such powers and duties as generally pertain to their respective offices. SECTION 2. Election and Term of Office. The officers of the Bank shall be elected annually at the first meeting of the board of directors held after each annual meeting of the stockholders. If the election of officers is not held at such meeting, such election shall be held as soon thereafter as possible. Each officer shall hold office until his successor shall have been duly elected and qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Election or appointment of an officer, employee or agent shall not of itself create contract rights. The board of directors may authorize the Bank to enter into an employment contract with any officer in accordance with regulations of the Federal Home Loan Bank Board; but no such contract shall impair the right of the board of directors to remove any officer at any time in accordance with Section 3 of this Article V. SECTION J. Removal. Any officer may be removed by the board of directors whenever in its judgment the best interests of the Bank shall be served thereby, but such removal, other than for cause, shall be without prejudice to the contract rights, if any, of the person so removed. Vacancies. A vacancy in any office because of death, resignation, removal,· diS SECTION 4. qualification or otherwise, may be filled by the board of directors for the unexpired portion of the term: SECTION 5. Remuneration. The remuneration of the 'officers shall be fixed from time to time by the board of directors. SECTION 6. Age limitation on officers. No person 65 years of age or above shall be eligible for election, re-election, appointment, or reappointment as an officer of the Bank. No officer shall serve beyond the annual meeting of the Bank immediately following his or her becoming 65. ARTICLE VI. CONTRACTS, LOANS, CHECKS AND DEPOSITS SECTION I. Contracts. To the extent permitted by regulations of the Federal Home Loan Bank Board, and except as otherwise prescribed by the bylaws with respect to certificates for shares, the board of directors may authorize any officer, employee, or agent of the Bank to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Bank. Such amhority may be general or confined to specific insmnces. SECTION 2. Loans. No loans shall be contracted on behalf of the Bank and no evidence of indebtedness shall be issued in irs name unless authorized by the board of directors. Such authority may be general or confined to specific instances. SECTION J. Checks, Drafrs, Ere. All checks, drafts or orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Bank shall be signed by one or more officers, employees or agents of the Bank in such manner as shall from time to time be determined by the board of directors. SECTION 4. Deposits. All funds of the Bank not otherwise employed shall be deposited from time to time to the credit of the Bank in any of its duly authorized depositories as the board of directors may select. ARTICLE VII. CERTIFICATES FOR SHARES AND THEIR TRANSFER SECTION 1. Certificates for Shares. Certificates representing shares of capital stock of the Bank shall be in such form as shall be determined by the board of directors and approved by the Federal Home Loan Bank Board. Such certificates shall be signed by the chief executive officer or by any other officer of the Bank authorized by the board of directors, attested by the secretary or an assistant secretary, and sealed with the corporate seal or a facsimile thereof: The signatures of such officers upon a cenilicate may be facsimiles if the certificate is manually signed on behalf of a transfer agent or a registrar, other than the Bank itself or one of its employees. Each certificate for shares of capital stock shall be consecutively 7
.. ; numbered or otherwise identified. The name and address of the person to whom the shares are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the Bank. All cenificates surrendered to the Bank for transfer shall be cancelled and no new cenificate shall be issued until the former cenificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost or destroyed certificate, a new cenificate may be issued therefor upon such terms and indemnity to the Bank as the board of directors may prescribe. SECTION 2. Transfer of Shares. Transfer of shares of capital stock of the Bank shall be made only on its stock transfer books. Authority for such transfer shall be given only by the holder of record thereof or by his legal representative, who shall furnish proper evidence of such authority, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Bank. Such transfer shall be made only on surrender for cancellation of the certificate for such shares. The person in whose name shares of capital stock stand on the books of the Bank shall be deemed by the Bank to be the owner thereof for all purposes. ARTICLE VIII. FISCAL YEAR; ANNUAL AUDIT The fiscal year of the Bank shall end on the 31st day of December of each year. The Bank shall be subject to an annual audit as of the end of its fiscal year by independent public accountants appointed by by and responsible to the board of directors. The appointment of such accountants shall be subject to ·annual ratification by the stockholders. ARTICLE IX. DIVIDENDS Subject to the terms of the Bank's chaner and the regulations and orders of the Federal Home Loan Bank Board, the board of directors may, from time to time, declare and the Bank may pay, dividends to its outstanding shares of capital stock. ARTICLE X. CORPORATE SEAL The board of directors shall approve a Bank seal. ARTICLE XI. AMENDMENTS · These bylaws may be amended in any manner not inconsistent with applicable laws, rules, regulations or the chaner at any time by a majority of the full board of directors, or by a majority vote of the votes cast by the shareholders of the Bank at any legal meeting called expressly for that purpose. 8
I . --t i---------------CERTIFICATE I, BELINDA K. RUMPLE, Assistant Corporate Secretary of Wilmington Savings Fund Society,FSB,certify that theattached Certificate of CorporateResolutionis atrue and correct copy and said resolution appears in the Corporate Min tes of January 26,1988.I furthercertify that at · said meeting a quorum was present and acting throughout. January 4, 1991 \Vilmington S,wim;fund So(it>lv, fSB 1: d \\dlll!fl '.ltl/l. I 1,· , 1 .-.o tt' i' '.t!l '\\,11 .t'l "lrl·t·l
..., I , CERTIFICATE OF CORPORATE RESOLUTION I, RONALD c. SMITH, Secretary of the Wilmington Savings Fund Society, FSB ("WSFS"} a corporation organized under the laws of the Uniied States, do hereby certify that at a regular monthly meeting of the Board of Directors of said corporation, duly held at its offices on January 26, 1988, at which a quorum was present and acting throughout, the following Resolution was duly moved, seconded and unanimously adopted: that the Board of Directors does hereby the Wilmington"Savings Fund Society, FSB, to read as follows: BE IT RESOLVED, amend the Bylaws of to add an Article ARTICLE IX. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES Section 1.General.The Bank shall indemnify any person against whom an action is brought or threatened because that person is or was a director, officer or employee of the Bank or a director, officer or employee of any wholly-owned subsidiary, only as provided in this Article, for any amount for which that person becomes liable under a judgment or settlement in such action plus reasonable costs and expenses, including attorney's fees actually paid or incurred by that person in defending or settling such action, or in enforcing his rights under this section, if he obtains a favorable judgment in such enforcement action: Provided, that nothing herein shall authorize indemnification by the Bank of directors, officers or employees of affiliates, affiliated persons, or subsidiaries of the Bank for actions in their capacity as such unless such person was a director, officer or employee of a wholly-owned subsidiary. Section 2. Conditions,Indemnification shall be made to a person described in Section 1 if final judgment on the merits is in his f vor.· In addition, in the case of settlement, final judgment against him or final judgment in his favor other than on the merits, indemnification shall be made to a person described in Section 1 if it is determined that he was acting in good faith within the scope of his employment or authority as he could reasonably have perceived it under the circumstances and for a purpose he could reasonably have believed under the circumstances was in the best interests of the Bank or its members, and in the case of criminal action, he had no reasonable cause to believe his conduct was unlawful. Such determination shall be made by the board of directors by a majority vote of a quorum consisting of disinterested directors.However, no indemnification shall be made unless the Bank gives the Board at least 60 days' notice of its intention to make such indemnification.Such notice shall state the facts on which the action arose, the terms of any settlement, and any disposition of the action by a court.A
': . ... ' copy of such notice, and a certified copy of the resolution containing the required determination by the board of directors, shall be sent to the Board in accordance with its regulations.No such indemnification shall be made if the Board or its designee advises the Bank in writing, within such notice period, of its objection thereto.In addition, when the action is brought or threatened by the Bank or on behalf of the Bank, indemnification shall be limited to reasonable costs and expenses as described in Section 1.Under no circumstances may indemnification be made in connection with any claim, issue or matter with regard to which there has been final judgment that the person was liable for negligerice or misconduct in the performance of his duty to the Bank. Section 3. Insurance. The Bank may obtain insurance to protect it and its directors, officers and employees or the directors, officers and employees of a wholly-owned subsidiary from potential losses arising from claims against any of them for alleged wrongful acts, or wrongful acts committed in their capacity as directors, officers oemployees:Provided, that the Bank may not obtain insurance which provides for payment of losses of any person incurred as a consequence of his willful or criminal misconduct. Section 4. Advance Payment of Expenses. If a majority of the disinterested directors of the Bank concludes that, in connection with any action, any person ultimately may become entitled to indemnification under this section, such directors may authorize payment of reasonable costs and expenses, including attorney's fees, arising from the defense or settlement of such action.Nothing in this section shall prevent the directors of a Bank from imposing such conditions on a payment of expenses as they deem warranted and in the interests of the Bank.Before making advance payment of expenses under this section, the Bank shall obtain an agreement in writing that the Bank will be repaid if the person on whose behalf payment is made is later determined not to be entitled to such indemnification. Section 5, Indemnification, Nothing in this section shall authorize indemnification of directors, officers or employe.es of the Bank when such indemnification would contravene public policy as expressed by federal statutes or the regulations of the Board. Section 6. Rights Not Exclusive, The foregoing rights of indemnification or reimbursement shall not be exclusive of other rights to which the person referred to above, or their heirs, executors, administrators or legal representatives, may be entitled as a matter of law, and the Bank may indemnify such persons to the extent permitted by the pertinent rules and regulations of the Federal Home Loan Bank Board or
' other statutory law, as such regulations or law may be amended from time to time. Section 7, Definitions and Rules of Construction. Definitions and rules of construction for purposes of this Article shall be in accordance with Federal Home Loan Bank Board regulations on indemnification of directors, officers or employees. ·I further certify that the full force and effect, and h s and conforms with the Articles the corporation. IN WITNESS WHEREOF, I have foregoing Resolution remains in not been rescinded or modified, of incorporation and Bylaws of hereunto set my hand as Secretary of WSFS and affixed its corporate seal, by order of the Board of Directors, this day of January, 1988. Ronald C. Smith, Secretary {SEAL)
. ,; AMENDMENT TO BYLAWS WILMINGTON SAVINGS FUND SOCIETY, FSB February 27, 1992 Be it resolved, that the Board of savings Fund Society, FSB, upon motion hereby adopt by a majority vote of the Directors of Wilmington duly made and seconded, full Board of Directors, the following amendments to the bylaws of Wilmington Savings Fund Society: 1}Article II, Section 3 is amended by changing "Federal Home Loan Bank Board ("Board")" to "Office of Thrift Supervision ("OTS")" and by deleting the reference to the Federal saving and Loan Insurance Corporation. 2) Article II, Section 4 is amended by changing "Federal Home Loan Bank Board" to "Office of Thrift Supervision". 3) Article II, Section 7 is amended by changing "Board's" to "OTS'.". 4) Article II, Section 14 is amended by changing "Federal Home Loan Bank Board" to "Office of Thrift Supervision". 5) Article III, Section 2 is amended by deleting sentence and replacing it with -thefollowing: The the first board of more than directors shall consist of at least seven (7} but not fifteen (15) members as determined by a vote of the majority of the full board of directors. The number of directors shall remain fixed until a majority of the full board of directors next vote to change the number of directors. 6) Article III, Section 4 is amended by deleting the existing sentence and replacing it with the following: Each Director shall at all times be the beneficial owner of no less than 100 shares of capital stock of the Bank unless the Bank is a wholly owned subsidiary of a holding company, in which case each Director shall at all times be the beneficial owner .of no less than 100 shares of capital stock of the holding company. 7) to "one Article III, Section 6 is amended by changing 11two days" day" in, the first sentence. 8) Article III, Section 15 is amended by adding the following as a fourth sentence: Notwithstanding anything to the contrary contained in this Section 15, a majority of the full Board (excepting the director who has reached age 75} may vote to permit a director who has reached the age of 75 to remain on the Board for up to an additional twelve months provided the director, during the additional period, does not stand for election to a term exceeding the length of the extension granted by the Board.
9) sentence officers Article V, Section 1 is amended by deleting the first and replacing it with the following two sentences: The of the Bank shall be a president, one or more vice presidents, a secretary and a treasurer. The president, secretary, treasurer and any executive vice presidents shall be elected by the Board of Directors. 10) Article V, Section 2 is amended by changing "Federal Home Loan Bank Board'' to ''Office of Thrift Supervision''· 11)Article V, Section 6 is deleted in its entirety. 12) Article VI, Section 1 is amended by changing "Federal Home Loan Bank Board" to "Office of Thrift Supervision". 13) Article VII, Section 1 is amended by changing "Federal Home Loan Bank Board" to "Office of Thrift Supervision". 14) Article IX is amended by changing "Federal Board'' to ''Office of Thrift Supervision''· Home Loan Bank By: Charles G. Cheleden, Chairman By: Joseph R. JulJ.an By: William J. Miller, Jr. By: Randall T. Murrill, Jr. By: Thomas P. Preston By: Dr. Robert L. Richards, Jr. By: Marvin N. Schoenhals By: Thomas c. Shea By: James E. Vachris, Sr. February 13, 1992
Exhibit 6 Consents of Wilmington Savings Fund Society, FSB (see attached) 4
fttt u u i jP!( ii Hl 111f l tIJ Ji!ftffr l ff' '1tl l j - , I JJI I 'i' . t· ,r c Jit J'tt'J1l1i,;l i( · Ji;r !ir!: j I 1 IfJ· f 11 f l·J'' 1 1!1 11 1''i J1tr1 U;'de1 nt1t: .r f.t: ,U.l,tt! :IJt Cl li ifi·J' lt!J ii·t!l 111 Ii t·l( Pi. r ·hltl 1f l .,tJil ft.f.. tJ.. I·I,It lfl .t lfrif l J,rIJlIl ·t h t J! ;li -til il
..tloa"W-o-lf· ·t-'l-'loll.llh4.io,iiM.._....._.. ...._-_t....,._. _..-,.."...-i·iii-:IT·.._-...-....-. --117-'Tllol.,..,-..lil-_, ..........,._.....,..(1_.. .. .................... -. <1.,.. _ :."....-...-".....-.,..::..O...r-......,..,..:....,....'......,..,...,. .......,. ....TMI .,. .. .........,... _,...,.........,._...-.........,..............-... ......,_,_ ... .. ......,-...., .......... ·-..-.--.....-....---oQoolpool. _.. c....,.,. . 7, Ae<.. lllll .... ...,..... . _ .......... ot ...-.--,._..,...-..-..,-.............."w.'._·.-..'_ -.,.. a..,..,.... _
Exhibit 7 Current Report of Wilmington Savings Fund Society, FSB (see attached) 4
Wilmington Savings Fund Society-FDIC Certificate Number: 17838 Submitted to CDR on 07/30/2020 at 02:59PM FFIEC041 Page 17 of 86 RC-1 Consolidated Report of Condition for Insured Banks and Savings Associations for June 30, 2020 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC-Balance Sheet l.a. 1.b. 2.a. 2.b. 2.c. 3.a. 3.b. =.5.3a6.9....----==L10.9..,4:.5;3; 4.a. 4.b. .:1:.:9:.:2+.-..... -------f 4.c. 4.d. 5. 6. 7. 8. 9. 10. 11. 12. 13.a. 13.a.1. 13.a.2. 69_9_3+-------0-' 14.a. 69_9_5+------0-14.b. 35_4_8+-------0-' 15. 16. 17. and 18. Not applicable 19. Subordinated notes and debentures (11).................................................................................................................... , 32_o_o..._ ;;0.... 19. 1 Includes cash items in process of collection and unposted debits. 2 Includes time certificates of deposit not held for trading. 3 Institutions that have adopted ASU 2016-13 should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B. 4 Item 2.c is to be completed only by institutions that have adopted ASU 2016-01, which includes provisions governing the accounting for investments in equity securities. See the instructions for further detail on ASU 2016-01. 5 Includes all securities resale agreements, regardl ess of maturity. 6 Institutions that have adopted ASU 2016-13 should report in items 3. b and 11 amounts net of any applicable allowance for credit losses. 7 Institutions that have adopted ASU 2016-13 should report in item 4.c the allowance for credit losses on loans and leases. 8 Includes noninterest-bearing, demand, time, and savings deposits. 9 Report overnight Federal Home loan Bank advances in Schedule RC, item 16, "Other borrowed money." 10 Includes all securities repurchase agreements, regardless of maturity. 11 Includes limited-life preferred stock and related surplus. August 19, 2020 11:13 AM Reporting Period: June 30, 2020 Dollar Amount s in Thousands RCONAmount Assets 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1)........................................................................................ b. Interest-bearing balances (2) ................ .................................................................................................................. 2. Securities: a . Held-to-maturity securities (from Schedule RC-B, column A) (3)............................................................................. b. Available-for-sale securities (from Schedule RC-B, column D)................................................................................. c. Equity securities with readily determinable fair values not held for trading (4) ....................................................... 3. Federal funds sold and securities purchased under agreements to resell: a. Federal funds sold.................................................................................................................................................... b. Securities purchased under agreements to resell (5,6)............................................................................................ 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale...........................................................................................;..:..:..:.·c:..:;.:.-:;·:";".:.:".:.::".:c:·.:.c.:..:.::.:.:..:..::·.:";o.::o".::.":.:.:.:":.:c-b. Loans and leases held for investment............................................................................. I B528l9 352,480 c. LESS: Allowance for loan and lease losses (7}................................................................. IL.:-:31:.:2.:1.3.1-_:2;:::3:,:2; d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c}......................................................... 5. Trading assets (from Schedule RC-D)........................................................................................................................... 6. Premises and fixed assets (including capitalized leases)............................................................................................. 7. Other real estate owned (from Schedule RC-M}.......................................................................................................... 8. Investments in unconsolidated subsidiaries and associated companies.................................................................... 9. Direct and indirect investments in real estate ventures............................................................................................. 10. Intangible assets (from Schedule RC-M) ...................................................................................................................... 11. Other assets (from Schedule RC-F) (6}......................................................................................................................... 12. Total assets (sum of items 1 through 11).................................................................................................................... Liabilities 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E).......................................................... (1) Non interest-bearing (8) .............................................................................................I 6631 I 3,194,756 (2) Interest-bearing......................................................................................................... 166361 7 971,699 b. Not applicable 14. Federal funds purchased and securities sold under agreements to repurchase: 00811469,981 0071 474,009 JJ34 127,601 1773 2,195,389 JA22 0 B987 0 6989 0 6529 9,120,288 3545 0 2145 99165 2150 4153 2130 5 454 3656 0 2143 537,323 2160 397 548 2170 13 540 364 2200 11,166.455 a. Federal funds purchased (9).................................................................................................................................... b. Securities sold under agreements to repurchase (10)............................................................................................ 15. Trading liabilities (from Schedule RC-D)................................... ................................................................................... 16. Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M)...................................................31_9_o ..._ -1=3"'0-"0""6"7-'-l
Wilmington Savings Fund Society-FDIC Certificate Number: 17838 Submitted to CDR on 07/30/2020 at 02:59 PM FFIEC 041 Page 18 of 86 RC-2 Schedule RC-Continued 20. 21. 23. 24. 25. 26.a. 26.b. 26.c. 27.a. 27.b. 28. 29. Memoranda To be reported with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2019..... ........................................................................................................................... 1a = An integrated audit of the reporting institution's financial state ments and its internal control over financial reporting conducted in accordance with the standards of the American Institute of Certified Public Accountants IAICPA) or the Public Company Accounting Oversight Board (PCAOB) by an independent public accountant that submits a report on the institution 1b =An audit of the reporting institution's financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the institution 2a = An integrated audit of the reporting institution's parent holding company's consolidated financial statements and its internal con trol over financial reporting conducted in accordance with the standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) 2b = An audit of the reporting Institution's parent holding com pany's consolidated financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) To be reported with the March Report of Condition. 3 = This number is not to be used 4 = Directors' examination of the bank conducted in accordance with generally a ccepted auditing standards by a certified public accounting firm (may be required by state-chartering authority) 5 = Directors' examination of the bank performed by other external auditors (may be required by state-chartering authority) 6 = Review of the bank's financial statements by external auditors 7 = Compilation of the bank's financial statements by external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work I. =R _1:1----..:::..D::=a-te-N--IRMI.2. 2. Bank's fiscal year-end date (report the date in MMDD format)........................................................ ............................. 8 1 Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments. 2 Includes treasury stock and unearned Employee Stock Ownership Plan shares. Reporting Period: June 30, 2020 August 19, 2020 11:13 AM Dollar Amounts in Thousands RCONAmount Liabilities-continued 20. Other liabilities (from Schedule RC-6)......................................................................................................................... 21. Total liabilities (sum of items 13 through 20)....._....................................................................................................... 22. Not applicable Equity Capital Bank Equity Capital 23. Perpetual preferred stock and related surplus............................................................................................................ 24. Common stock............................................................................................................................................................. 25. Surplus (excludes all surplus related to preferred stock)............................................................................................ 26. a. Retained earnings.................................................................................................................................................... b. Accumulated other comprehensive income (1)................................................._.................................................. c. Other equity capital components (2)........................................................................................................................ 27. a. Total bank equity capital (sum of items 23 through 26.c)....................................................................................... b. Noncontrolling (minority) interests in consolidated subsidiaries........................................................................... 28. Total equity capital (sum of items 27.a and 27.b)....................................................... ................................................ 29. Total liabilities and equity capital (sum of items 21and 28)....................................................................................... 2930 387 291 2948 11,683.813 3838 0 3230 0 3839 1,538 174 3632 247 472 8530 72,780 ABO 0 3210 1,858,426 3000 (1,8751 G105 1,856.551 3300 13,540,364
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Savings Fund Society, FSB, a federal savings bank organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 24th day of August, 2020.
|
|
WILMINGTON SAVINGS FUND SOCIETY, FSB | ||
|
|
|
| |
Attest: |
/s/ Kristin L.Moore |
|
By: |
/s/ Patrick J. Healy |
Assistant Secretary |
|
Name: |
Patrick J. Healy | |
|
|
Title: |
Senior Vice President | |
M ! /#QB!6.(%$D,/"O ) U-,;M<+OI,RV\(O'P@ WW(WZK(MV_4"UL(.Y*(J
M?>5=;*(-F@=L # O1U4P. 4 <"5Z #0P.! GQG!T2R8H#?&
^7#'!-JPK"X\ (*X(0^VM$",7B!;J$X!00@H"Q]
M>.("GH@ ! Y3"\ 4 !'YT$(U0A$&;.0C%&(P QHHU1<-F"X _&I'*-00C(&(
MXQ3;$( ' V3*.89'_'%"S^27JSMX$;.$L_Z$$J9U%! @"Y:(= ,2SY
M\ Y!61'C4 T!( I861I#.0S!$I#5R"JLT1&;5A%@MXNB$ #46(,Y804&0%@%
M 0M@>1E=(QJ9 8"J\2;6( F81G: %A>)JED1=2F2N70H=3(0XFT8[:MP_R
M,!6U, #$H ^= ![F91-^6T4>A.T8 #S4 L&, XVT0XL&0L 8 8C<1=%TQ.<
M$ 'G* H9@ %AB4 :&8=X:',-(PX8@ 'V4ASD( 8%< VL&3M0) ^?T 6@"4HK
M=8=!00^(P)DX(0ZB( IA^!:50@["<'M,YUSV:)$AI7]'AY&2!W-:\U ( #MC,Q+T3CL@: @#AH
M% \Z<>%8EC'#!-IP!:W<)A_QJ$)6Z'&%EG " )P@#;(40$"N"D?L!! $2&$
MBB"NH@J/@1P&J'+1<1 Q P9X#!< ($(%$0CP^"2&@#0A6!@Y23R,$ 7)\8%
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M!F 0Q0XPW5
M:-+'@@M6RD<>3P@X8)M\'L!(PDZD\VP>>NC!0$$-]0D% &OTV> (@BZJF=/^6"('.9QXEVU@TC4(\P %O06%TO@:92C(DN%,:2DY
M D D*_L2S&J66J^-+6RI[16P:"4)[LLJC0;9;KT9K2!"*:6,:]"\X^\2[EW6+#T&QN$RZC[&
M[L(9WE^J2_J8%:$V;GH1K]06G(KD7=RJJ\+=K9SWR;I7N;#O**_I^+OP>
MS3F:;9@.$R&>;+KF+?4Z[CMYSA_\:$,0Q5MXY@4\
&"5RA"EVH@@M3I(\WW- LGMC %2S0!BX(])45P( 5
M).8>R+#B"EB@GBCFXR&EO<(+"FQ#-U(A#D^X@1:T:$,U:-*.6"C.&K6(12QH
MD0M:P"(6U7C'*L0ACV[ PD"TD\4/R7$1>I0C'N2X64;:00YRM.,X2FNM&NL9
MI\_I]EB2P]-_U,,G0M&I:KK5)"?^9_0X_K!$5\^"R'\T(I!P%(65R+4N9CZ)
M$'@\( !
E(SX-K<,,Y1NG3+(%#3/@*C45"
0 R\@ "[@DG80 T[0@B^(!UC( #>X@@G8"2^X BV@ARW^BH R0#8TX (K
MV [?:1HO.(,OV(9WN N"@4O$ ,.(E5T((K\(1'"X8QP ++P)=06(7]R0>,
MH 4[> ,IY8U0L(-0P LTBX9JZ% [6 5I +YJ8 5BZ,=\L(8-@")YD(=MD(=H
M< =WP!G&^9!]H 6*RB=(TP8%U8<)A:3=X))QP <'*,T4J:&V$HMV0(R8.DZW
M_+HT ZJ\*0JNZS.!Q3,O>\N6"BF6XSA!6UH<\3,7L='8S ?XVSC>6 5/$E@@
MBQ%RL( "0#:DHH4(8!>>@DJGPXY]T(8#>)LY944A68X-\(1.P((OR#*,8(4J
M@(4 $ -6P ):, .(!X*#G0.T+^%Z&'-D"$ RBCPYU.%<-)"A/+K"3+#>LH
MZ^Q"W;)4$S2X2 0QWO *=.&&EG" @M$'30D',= ->1L&"$I D%!:B&:G" * '-" QL G5 7=J&F!\@ ;5"*1;*"@J$
P()H$"[JN )K4A?(S =H&@9ZB).\&:1H" WL =W
MO0(-4(,6&(P *&%;H(<,4*5@P !K0 M:& 8!" /"8Q$KZ+4 ( ]BN !:Z 0"
M" 9XF+DR< *(-\N.*(: '[&,K^?%"#*I@E^Y %W,*3L-"'6)##"LC64' #
M-, "BG(',6B#*G!?Y9%6+( U6N""6# #R:B&+N "+R@ X- &1'@#,1B;?*B%
M,5 #"' L;6(*6[/6&"%;C"#/'(187" 1X&M"B '3Z %P) '3_B$=^ 5WE 7
ML)B'>3@5H1@& QBF? B& &"#;DB(PA6R88@'CR(!V=QHZI"^"9O23!21T]
MU8Q)BZB=6H$':^RQ9IQE68XX1(WE7UX7?9C?50@' @G9*8@R3B,8<"&FC7 NPJ$&@ QC 9@;NP0JDCQF9:B- %=18(T
HAVB2RI#!.O4I-Y.,;W!9&*/(1KE$*
M
&8[Q;Y5!G%LS8!E2T5UE+?D3%1=3L)LER=\TK-\T\U
M5?LF=19!E5JL$U,Y5"HDU4,U=A7^8X* $N$M"(.[? ,?NN$R;% ?/N9G0B/E
MI*LWGNOAP@$"4BBFTD4'&](H',!"^HT(20[13 BB@L1NBDP^CI$E/&$Y:"=)
M8F.E^F2DJ
MA80QEV$0:+ >X6 !8=$72T)?]*5JGX$( ^M :^Y:0-/59?X"1>(WDQ!J &
M;6 Q4'$Y:416I(*RH&:JGFCXP4+7L %B# &7H %,,.PDDH/;H %#X0HE"$&
M6@ *IX > #9[!A$+7S#",&R*#&H/[D +U2 ,M)#+(^P5LD \]% /XT /\_ .
M[S!.-MR%V>BF0-N5T&3&$HEXDAJFH)N1]2B_<2F&_B0@';NT6'EW8QB3U#C+
M'!F)-RK-B9B-:$C&_;N@IF,0LE+^-/)P2@91!J5"P_G@#GK%31;&%.L44+4F
M88!1!=Q@*O0$&9!A:?DC &%A.!7P6L169_@ &>&P"L7<:P&W4(3L:KWC!GXA
M#N%@!@PQ#Q/!O",7:]MU!@#0R3-B 5
"@ELZ0GP)LTR=-
M&,8K&