e6vk
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF
THE SECURITIES EXCHANGE ACT OF 1934
Report
on Form 6-K dated April 22, 2010
This Report on Form 6-K shall be incorporated by reference in
the automatic shelf registration statement on Form F-3 of
AngloGold Ashanti Limited, AngloGold Ashanti Holdings plc and
AngloGold Ashanti Holdings Finance plc (File no. 333-161634) and our
Registration Statements on Form S-8 (File Nos. 333-10990 and 333-113789) as amended,
to the extent not superseded by documents or reports subsequently filed by us under the
Securities Act of 1933 or the Securities Exchange Act of 1934, in each case as amended
Commission File Number 1-14846
AngloGold Ashanti Limited
76 Jeppe Street
Newtown, 2001
(P.O. Box 62117, Marshalltown, 2107)
South Africa
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of
Form 20-F or Form 40-F.
Form 20-F þ Form 40-F o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(1):
Yes o No þ
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(7):
Yes o No þ
Indicate by check mark whether the registrant by furnishing the information contained in
this Form is also thereby furnishing the
information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.
Yes o No þ
|
|
|
Enclosure: |
|
Form of underwriting agreement between AngloGold Ashanti Holdings plc, AngloGold
Ashanti Limited, Barclays Capital Inc. and Goldman, Sachs & Co. |
ANGLOGOLD ASHANTI HOLDINGS PLC
U.S.$[] []% Notes due 20[]
U.S.$[] []% Notes due 20[]
Fully and Unconditionally Guaranteed by
ANGLOGOLD ASHANTI LIMITED
Underwriting Agreement
April [], 2010
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
United States of America
Goldman, Sachs & Co.
200 West Street
New York, New York 10282
United States of America
As the representatives of the several underwriters named in Schedule I
hereto (the Representatives)
Ladies and Gentlemen:
AngloGold Ashanti Holdings plc, a corporation duly organized and existing under the laws of
the Isle of Man (the Company), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several underwriters named in Schedule I hereto (the Underwriters), for
whom you are acting as Representatives, U.S.$[] aggregate principal amount of its []%
Notes due 20[] (the 20[] Notes) and U.S.$[] aggregate principal amount of
its []% Notes due 20[] (the 20[] Notes, and together with the 20[]
Notes, the Notes). The Notes will be entitled to the benefit of a full and
unconditional guarantee (the Guarantees and, together with the Notes, the Securities) by
AngloGold Ashanti Limited, a public company with limited liability incorporated under the laws of
the Republic of South Africa (the Guarantor), pursuant to which the Guarantor will guarantee the
obligations of the Company under the Notes. The Securities will be issued pursuant to an indenture
to be dated as of the Time of Delivery (as defined below) (the Indenture) to be entered into
among the
Company, the Guarantor and The Bank of New York Mellon, as trustee (the Trustee).
1. The Company and the Guarantor jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) An automatic shelf registration statement as defined under Rule 405
under the Securities Act of 1933, as amended, (the Act) on Form F-3 (File No.
333-161634) in respect of the Securities has been filed with the Securities and
Exchange Commission (the Commission) not earlier than three years prior to the
date hereof; such registration statement, and any post-effective amendment
thereto, became effective on filing; and no stop order suspending the
effectiveness of such registration statement or any part thereof has been issued
and to the knowledge of the Company or the Guarantor no proceeding for that
purpose has been initiated or threatened by the Commission, and no notice of
objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has
been received by the Company or the Guarantor (the base prospectus filed as part
of such registration statement, in the form in which it has most recently been
filed with the Commission on or prior to the date of this Agreement, is
hereinafter called the Basic Prospectus; any preliminary prospectus (including
any preliminary prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter called a
Preliminary Prospectus; the various parts of such registration statement,
including all exhibits thereto and including any prospectus supplement relating
to the Securities that is filed with the Commission and deemed by virtue of Rule
430B to be part of such registration statement, each as amended at the time such
part of the registration statement became effective, are hereinafter
collectively called the Registration Statement; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time (as defined in
Section 1(iii) hereof), is hereinafter called the Pricing Prospectus; the form
of the final prospectus relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)(i) hereof
is hereinafter called the Prospectus; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 6 of Form F-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-
2
effective amendment to the Registration Statement, any prospectus
supplement relating to the Securities filed with the Commission pursuant to Rule
424(b) under the Act and any documents filed under the Securities Exchange Act
of 1934, as amended (the Exchange Act), and incorporated therein, in each case
after the date of the Basic Prospectus, such Preliminary Prospectus, or the
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Guarantor filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any issuer free writing
prospectus as defined in Rule 433 under the Act relating to the Securities is
hereinafter called an Issuer Free Writing Prospectus);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Prospectus, as
of its date, did not or will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company and the Guarantor by an
Underwriter through the Representatives expressly for use therein;
(iii) For the purposes of this Agreement, the Applicable Time is []:[]
[a.m./p.m.] (New York City time) on the date of this Agreement; the Pricing
Prospectus as supplemented by those Issuer Free Writing Prospectuses and other
documents listed in Schedule III(a) hereto, if applicable, taken together
(collectively, the Pricing Disclosure Package) as of the Applicable Time, did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and each Issuer
Free Writing Prospectus listed on Schedule III(a) or Schedule III(b) hereto does
not conflict with the information contained in the
3
Registration Statement, the Pricing Prospectus or the Prospectus and each
such Issuer Free Writing Prospectus, as supplemented by and taken together with
the Pricing Disclosure Package as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply (A) to statements or omissions made
in an Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company and the Guarantor by an
Underwriter through the Representatives expressly for use therein or (B) that
part of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the Trust
Indenture Act), of the Trustee;
(iv) The documents incorporated by reference in the Pricing Prospectus and
the Prospectus, when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; provided that no such documents were filed with the Commission since
the Commissions close of business on the business day (which term shall mean
for this subsection (iv) any day when the Commissions office in Washington D.C.
is open for business) immediately prior to the date of this Agreement and prior
to the execution of this Agreement, except as set forth on Schedule III(c)
hereto and except for such other documents as were delivered to you prior to the
Applicable Time;
(v) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act and the Trust
Indenture Act and, in each case, the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
each part of the Registration Statement and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, contain an untrue
4
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to (A)
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company and the Guarantor by an
Underwriter through the Representatives expressly for use therein or (B) the
Form T-1 of the Trustee;
(vi) Neither the Guarantor nor any of its subsidiaries has sustained, since
the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, in each case materially adverse to the Company or the Guarantor and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Pricing Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Pricing Prospectus, there has not
been any material increase in the long term debt of the Guarantor and its
subsidiaries taken as a whole or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business
affairs, management, financial position, shareholders equity or results of
operations of the Guarantor and its subsidiaries taken as a whole, in each case,
otherwise than as set forth or contemplated in the Pricing Prospectus;
(vii) The Guarantor and its subsidiaries have good and marketable title to
all real property owned by them free and clear of all liens, encumbrances and
defects, and any real property and buildings held under lease by the Guarantor
and its subsidiaries are held by them under valid, subsisting and enforceable
leases except, in each case, as described in the Pricing Prospectus or as would
not, individually or in the aggregate, have a material adverse effect on the
business affairs, management, financial position, shareholders equity or
results of operations of the Guarantor and its subsidiaries taken as a whole (a
Material Adverse Effect);
(viii) Each of the Company and the Guarantor is duly incorporated, and
validly existing under the laws of the jurisdiction of its incorporation, is not
in bankruptcy, liquidation, receivership or under judicial management (and no
order or resolution therefor has been presented and no notice of appointment of
any liquidator, receiver, administrative receiver,
5
administrator or judicial manager has been given) and has full power and
authority under its Memorandum and Articles of Association or Bylaws and
otherwise to own its assets and conduct its business;
(ix) The Guarantor has an authorized and issued share capital as set forth
in the Pricing Prospectus, and all of the outstanding shares of capital stock of
the Guarantor have been duly and validly authorized and issued, are fully paid
and not subject to further calls or assessment by the Guarantor and conform in
all material respects to the description thereof contained in the Pricing
Prospectus; and all of the issued shares of capital stock of each subsidiary of
the Guarantor listed in Schedule IV have been duly and validly authorized,
allotted and issued, are fully paid and (except for directors qualifying shares
and except as set forth in the Pricing Prospectus) are owned directly or
indirectly by the Guarantor, free and clear of all liens, encumbrances, equities
or claims;
(x) All consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any court or governmental agency or
body or any stock exchange authorities (hereinafter referred to as a
Governmental Agency) having jurisdiction over the Company or the Guarantor
(hereinafter referred to as Governmental Authorizations) required to be
obtained by the Company or the Guarantor for the execution and delivery of, and
the performance of the obligations under, the Notes or the Guarantees by the
Company or the Guarantor, as the case may be, and for the execution, delivery
and performance by the Company and the Guarantor of this Agreement, the
Securities and the Indenture have been obtained or made and are in full force
and effect, including the approval of the South African Reserve Bank in respect
of the Guarantees to be provided by the Guarantor;
(xi) All expressions of opinion, intention or expectation in the Pricing
Prospectus, including, without limitation, the estimates and projections
included under the caption Prospectus Supplement Summary, on the part of the
Guarantor, its directors or management are, and in the Prospectus will be,
fairly and honestly held and have been made on reasonable grounds after due and
careful consideration and inquiry, in each case subject to the assumptions set
forth therein and to the risks and uncertainties contemplated under the captions
Forward-looking Statements and Note Regarding Forward-looking Statements
therein;
6
(xii) The execution and delivery by each of the Company and the Guarantor
of, and the performance by the Company and Guarantor of their respective
obligations under, the Notes and the Guarantees, as the case may be, the
execution and delivery of this Agreement and the Indenture and the compliance by
the Company and the Guarantor with all of the provisions of, and performance of
their respective obligations under, this Agreement, the Securities and the
Indenture and the consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
the Guarantor is a party or by which the Company or the Guarantor is bound or to
which any of the property or assets of the Company or the Guarantor is subject,
except as would not both (i) have a Material Adverse Effect and (ii) adversely
affect the consummation of the transactions contemplated herein to a material
extent, nor will such action by the Company or the Guarantor result in any
violation of the provisions of their respective Memorandum and Articles of
Association or Bylaws or any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over the Company, the Guarantor or any
of their respective properties; and no consent, approval, authorization, order,
registration or qualification of or with any such Governmental Agency is
required for the execution and delivery of, and the performance of the
obligations under, the Notes or the Guarantees, as the case may be, or the
consummation by the Company and the Guarantor of the transactions contemplated
by this Agreement, except (A) the registration under the Act and the Exchange
Act of the Securities, (B) such Governmental Authorizations as have been duly
obtained or made and are in full force and effect and copies of which have been
furnished to you and (C) such Governmental Authorizations as may be required
under state securities or Blue Sky laws or any securities laws of jurisdictions
outside the Republic of South Africa, the Isle of Man and the United States;
(xiii) Neither the Guarantor nor any of its subsidiaries is in violation of
its Memorandum and Articles of Association or Bylaws or, except as would not,
individually or in the aggregate, have a Material Adverse Effect, in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
7
(xiv) No stamp or other issuance or transfer taxes, levies or duties or any
other tax and no capital gains, income (other than income tax payable by any
Underwriter whose net income is generally subject to tax by the Republic of
South Africa or the Isle of Man or who performs any services hereunder through a
permanent establishment or a fixed base in the Republic of South Africa or the
Isle of Man), withholding or other taxes are payable or will be payable
immediately following the completion of the transactions contemplated hereunder
by or on behalf of the initial purchasers of the Securities procured by the
Underwriters or the Underwriters to the Republic of South Africa, the Isle of
Man or any political subdivision or taxing authority thereof or therein in
connection with (A) the issue and initial delivery of the Securities by the
Company, (B) the purchase by the Underwriters of the Securities, (C) the sale
and delivery of the Securities by the Underwriters to the initial purchasers
thereof or (D) the performance by the Company and the Guarantor of their
respective obligations under this Agreement;
(xv) The statements set forth or incorporated by reference in the Pricing
Prospectus and the Prospectus under the captions Description of Debt
Securities, Description of Notes and Taxation insofar as they purport to
constitute a summary of the matters set forth therein, fairly summarize these
matters in all material respects;
(xvi) Other than as set forth in the Pricing Prospectus, there are no legal
or governmental proceedings pending to which the Company, the Guarantor or any
of the Guarantors subsidiaries is a party or of which any property of the
Company, the Guarantor or any of the Guarantors subsidiaries is the subject
which, if determined adversely to the Company, the Guarantor or any of the
Guarantors subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best knowledge of the Company and the Guarantor, no
such proceedings are threatened by any Governmental Agency or by any other
person;
(xvii) Neither the Company nor the Guarantor is and, after giving effect to
the offering and sale of the Securities and the application of the proceeds
thereof, will be an investment company, as such term is defined in the
Investment Company Act of 1940, as amended;
(xviii) (A) (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act
8
(whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or Guarantor or any person acting
on their behalf (within the meaning, for this clause only, of Rule 163(c) under
the Act) made any offer relating to the Securities in reliance on the exemption
of Rule 163 under the Act, the Guarantor was a well-known seasoned issuer as
defined in Rule 405 under the Act; and (B) at the earliest time after the filing
of the Registration Statement that the Company, the Guarantor or another
offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Act) of the Securities, the Guarantor was not an ineligible
issuer as defined in Rule 405 under the Act;
(xix) This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantor;
(xx) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and the
Guarantor and, when duly executed and delivered by the Trustee, will be a valid
and binding agreement of the Company and the Guarantor, enforceable against the
Company and the Guarantor in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting the enforcement of creditors
rights generally and equitable principles of general applicability;
(xxi) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors rights generally
and equitable principles of general applicability, and will be entitled to the
benefits of the Indenture;
(xxii) The Guarantees have been duly authorized by the Guarantor and, when
the Notes have been duly executed and authenticated in accordance with the
provisions of the Indenture and paid for by the Underwriters in accordance with
the terms of this Agreement, will be valid and binding obligations of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting the
enforcement of creditors rights generally and equitable principles of general
applicability;
9
(xxiii) The audited financial statements included or incorporated by
reference in the Registration Statement and the Pricing Prospectus fairly
present in all material respects the consolidated financial position of the
Guarantor and its subsidiaries as of the dates indicated and the consolidated
results of operations and cash flows of the Guarantor and its subsidiaries for
the periods specified and have been prepared in compliance with the requirements
of the Act and in conformity with generally accepted accounting principles as
applied in the United States, except as set forth in the Pricing Prospectus,
applied on a consistent basis during the periods presented; the other financial
and statistical data set forth in the Registration Statement and the Pricing
Prospectus are accurately presented and prepared on a basis materially
consistent with the financial statements and books and records of the Guarantor;
and the Guarantor and its subsidiaries do not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet obligations),
not disclosed in the Registration Statement and the Pricing Prospectus and that
are required to be disclosed therein;
(xxiv) The consolidated pro forma financial data (the Pro Forma Financial
Data), for the year ended December 31, 2009 and the related notes, related to
the sale of the Companys 33.33% interest in the Boddington joint venture, have
been prepared in accordance with the applicable requirements of the Act and of
the Exchange Act and the rules and regulations thereunder (including, without
limitation, Regulation S-X), have been properly compiled on the basis of the
assumptions stated therein and the assumptions used in the preparation of the
Pro Forma Financial Data are reasonable;
(xxv) The Guarantor maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with managements general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles as
applied in the United States, and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with managements general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(xxvi) The Guarantor and each of its subsidiaries have all licenses,
certificates, permits and other authorizations (including, without limitation,
all mineral rights, mining authorizations and
10
mining leases) issued by the appropriate Governmental
Agencies (and have made all required declarations and filings with such
Governmental Agencies), that are legally required for the ownership, license or
lease of their respective properties or the conduct of their respective
businesses as described in the Pricing Prospectus, except as described in the
Pricing Prospectus or where the failure to possess the same would not,
individually or in the aggregate, have a Material Adverse Effect; except as
described in the Pricing Prospectus or as would not, individually or in the
aggregate, have a Material Adverse Effect, neither the Guarantor nor any of its
subsidiaries has received or expects to receive notice of any revocation or
modification of any such license, certificate, permit or authorization; and the
Guarantor and each of its subsidiaries are in compliance with each of the same,
except for any non-compliance which would not, individually or in the aggregate,
have a Material Adverse Effect;
(xxvii) Ernst & Young, Inc., who have certified the consolidated financial
statements of the Guarantor and its subsidiaries as of and for each of the years
ended December 31, 2007, 2008 and 2009, were at the time of certifying such
financial statements, independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder;
(xxviii) In each case, except as described in the Pricing Prospectus, the
Guarantor and its subsidiaries own or possess adequate rights to use all
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) legally required for the
conduct of their respective businesses, except those that would not,
individually or in the aggregate, have a Material Adverse Effect; and, to the
best knowledge of the Guarantor, except as would not, individually or in the
aggregate, have a Material Adverse Effect, the conduct of their respective
businesses will not conflict with any such rights of others and the Guarantor
and its subsidiaries have not received any notice of any claim of infringement
or conflict with any such rights of others;
(xxix) No labor disturbance by or dispute with employees of the Guarantor
or any of its subsidiaries exists or, to the best knowledge of the Guarantor, is
threatened, except as described in the Pricing Prospectus or as would not have a
Material Adverse Effect;
11
(xxx) The Guarantor and its subsidiaries (A) are in compliance with
any and all applicable laws (including the common law), rules, regulations,
ordinances, decrees, judgments, injunctions, permits, licenses, authorizations,
decisions, orders and other legally binding requirements, in each case
promulgated or declared by Governmental Agencies in all countries and
territories in which the Guarantor or its subsidiaries engage in mining or other
business activities relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (collectively, Environmental Laws); (B) have received and are in
compliance with all permits, licenses or other approvals issued by Governmental
Agencies and required of them under applicable Environmental Laws to conduct
their respective businesses; (C) have not received any notice of any actual or
potential liability under, or investigation relating to, any Environmental Law;
except, in each case, as described in the Pricing Prospectus or as would not,
individually or in the aggregate, have a Material Adverse Effect;
(xxxi) None of the Company, the Guarantor or any of the Guarantors
subsidiaries (if acquired by the Guarantor, then prior to its date of
acquisition, to the knowledge of the Guarantor) has violated (i) any provision
of the Foreign Corrupt Practices Act of 1977 and the rules and regulations
promulgated thereunder or (ii) similar anti-corruption laws of all other
applicable jurisdictions, including those relating to political donations and
money laundering, and the rules, regulations or, to the extent they have the
force and effect of the law, guidelines, issued or administered thereunder, in
each case which violations are of a character required to be disclosed in the
Registration Statement; and
(xxxii) None of the Company, the Guarantor or any of the Guarantors
subsidiaries or, to the knowledge of the Company or the Guarantor, any director,
officer, agent, employee or affiliate of the Company, the Guarantor or any of
the Guarantors subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Department of
the Treasury (OFAC); and the Company and the Guarantor will not directly or
indirectly use the proceeds of the offering and sale of the Securities
hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of
knowingly financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
2. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon
the basis of the representations and warranties herein
12
contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective
principal amounts of the 20[] Notes set forth in Schedule I hereto opposite its name at a
purchase price of []% of the principal amount thereof and the respective principal amounts
of the 20[] Notes set forth in Schedule I hereto opposite its name at a purchase price of
[]% of the principal amount thereof, plus, in each case, accrued interest, if any, from
[], 2010 to the Time of Delivery (as defined in Section 4).
3. Each of the Company and the Guarantor is advised by the Representatives that the
Underwriters propose to make a public offering of their respective portions of the Securities in
the United States as soon after this Agreement has become effective as in the judgment of the
Representatives is advisable. Each of the Company and the Guarantor is further advised by the
Representatives that the Securities are to be offered to the public in the United States upon the
terms set forth in the Prospectus.
4. Payment for the Securities shall be made to the Company in Federal or other funds
immediately available in New York City against delivery of the Securities to the Representatives
for the respective accounts of the several Underwriters at the offices of Davis Polk & Wardwell
LLP, 99 Gresham Street, London EC2V 7NG at [] [a.m./p.m.] (New York City time) on [], 2010, or at
such other time not later than five Business Days after the date of this Agreement as shall be
agreed by the Company, the Guarantor and the Representatives in writing, such time being referred
to as the Time of Delivery.
The Company will deliver to the Representatives, for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer of the Securities to
the Underwriters duly paid, against payment therefor, the Securities in the form of one or more
permanent global certificates (the Global Securities), registered in the name of Cede & Co., as
nominee for The Depository Trust Company (DTC).
The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross-receipt for any Securities and any additional
documents requested by the Underwriters pursuant to 8(l) hereof, will be delivered at the offices
of Davis Polk & Wardwell LLP, 99 Gresham Street, London EC2V 7NG (the Closing Location), and the
Securities will be delivered as specified in this Section 4, all at the Time of Delivery. A
meeting will be held at the Closing Location at 9:00 a.m., New York City time, on the Business Day
immediately next preceding the Time of Delivery, or such time and place as may mutually be agreed
upon in writing by the Representatives, the Company and the Guarantor, or their respective counsel,
at which meeting the Global Securities and the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4 and Section 5, Business Day shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which
13
banking institutions in New York City, Johannesburg and London are generally authorized or obligated by law
or executive order to close.
5. (a) The Company and the Guarantor jointly and severally agree with each of the Underwriters
as follows:
(i) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commissions
close of business on the second business day (which term shall mean for this
subsection 5(a)(i) any day when the Commissions office in Washington D.C. is
open for business) following the execution and delivery of this Agreement; to
make no further amendment or any supplement to the Registration Statement, the
Basic Prospectus or the Prospectus prior to the Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any amendment or
supplement to the Prospectus has been filed and to furnish you with copies
thereof; to file promptly all material required to be filed by the Company or
the Guarantor with the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any information statements required to be filed by the
Company or the Guarantor with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required in connection with the offering or
sale of the Securities; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any preliminary prospectus or other
prospectus in respect of the Securities, of any notice of objection of the
Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of
the qualification of the Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of
any preliminary prospectus or other prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of such
order and in the event of the issuance of any such notice of objection, promptly
to amend the Registration Statement in such manner as may be required and permit offers in
14
sales of to permit offers and
sales of the Securities; provided that, none of the
foregoing shall preclude the Company or the Guarantor from discharging its
obligations under the Act or the Exchange Act;
(ii) If required by Rule 430B(h) under the Act, to prepare a form of
prospectus in a form approved by you and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act; and to make no further amendment or supplement to such
form of prospectus which shall be disapproved by you promptly after reasonable
notice thereof;
(iii) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may request and to comply with such laws so as
to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company or the Guarantor shall not be
required to qualify as a foreign corporation or to take any action that would
subject it to general service of process in any jurisdiction where it is not
presently qualified or where it would be subject to taxation as a foreign
corporation;
(iv) Prior to []:00 [a.m./p.m.], (New York City time) on the Business Day
next succeeding the date of this Agreement and during the period mentioned
below, to furnish the Underwriters with written and electronic copies of the
Prospectus in New York City or London in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required by law at any time prior
to [ ], 2010 and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or
the Exchange Act, to notify you and upon your request to file such document and
to prepare and furnish without charge to each Underwriter and to any dealer in securities
15
as many written and electronic copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(v) To make generally available to the security holders of the Company and
the Guarantor, as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Guarantor and its
subsidiaries (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(vi) During the period beginning on the date hereof and continuing to and
including the Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of any debt securities or guarantees of the Company or the
Guarantor or warrants to purchase or otherwise acquire debt securities or
guarantees of the Company or the Guarantor substantially similar to the
Securities (other than (i) the Securities, (ii) commercial paper issued in the
ordinary course of business or (iii) securities or warrants permitted with the
prior written consent of the Representatives).
(vii) To pay the required Commission filing fees relating to the Securities
within the time required by Rule 456(b)(1) under the Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under
the Act;
(viii) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Pricing
Prospectus and Prospectus under the caption Use of Proceeds;
(ix) To prepare a final term sheet relating to the offering of the
Securities, containing information that describes the final terms of the
Securities or the offering in a form consented to by the Representatives, and to
file such final term sheet within the period required by Rule 433(d)(5)(ii)
under the Act following the date the final terms have been established for the
offering of the Securities;
(x) To use the commercially reasonable efforts of the Company and the
Guarantor to list the Securities on the New York Stock Exchange;
16
(xi) To cooperate with the Underwriters and use the commercially reasonable
efforts of the Company and the Guarantor to permit the Securities to be eligible
for clearance and settlement through the facilities of DTC, Euroclear Bank
SA/NV, as operator of the Euroclear System or Clearstream Banking, société
anonyme, as the case may be; and
(xii) If the Company and the Guarantor elect to rely upon Rule 462(b), the
Company and the Guarantor shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C.
time, on the date of this Agreement, and the Company and the Guarantor shall at
the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
6. (a) The Company and the Guarantor jointly and severally represent and agree that, without
the prior consent of the Representatives, they have not made and will not make any offer relating
to the Securities that would constitute a free writing prospectus as defined in Rule 405 under
the Act (a Free Writing Prospectus); each Underwriter represents and agrees that, without the
prior consent of the Company, the Guarantor and the Representatives, other than one or more term
sheets relating to the Securities containing customary information and conveyed to purchasers of
Securities, which in their final form will not be inconsistent with the final term sheet set forth
in Schedule II hereto, it has not made and will not make any offer relating to the Securities that
would constitute a Free Writing Prospectus; any such Free Writing Prospectus the use of which has
been consented to by the Company, the Guarantor and the Representatives is listed on Schedule
III(a) or Schedule III(b) hereto;
(b) The Company and the Guarantor jointly and severally represent and warrant to, and
agree with each of the Underwriters that it has complied and will comply with the
requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and legending; and
(c) The Company and the Guarantor agree that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which such
Issuer Free Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement
of a material fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances then prevailing, not misleading, the
Company and the Guarantor will give prompt notice thereof to the Representatives and, if
requested by the Representatives, will prepare and furnish without charge
17
to each of the Underwriters an Issuer Free Writing Prospectus or other document which
will correct such conflict, statement or omission; provided, however, that the foregoing
shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in writing to the Company or
the Guarantor by an Underwriter through the Representatives expressly for use therein.
7. The Company and the Guarantor jointly and severally covenant and agree with the several
Underwriters that (a) the Company and the Guarantor will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of counsel for the Company and the Guarantor and the
Guarantors accountants in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing this
Agreement, any Blue Sky and Legal Investment Memoranda, and closing documents (including any
compilations thereof) and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in Section 5(a)(iii)
hereof, including the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal investment surveys; (iv) all fees
and expenses in connection with the listing of the Securities on the New York Stock Exchange and
the filing fees incident thereto; and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the Financial Industry Regulatory Authority, Inc.
of the terms of the offering of the Securities; (v) to the Representatives for the account of the
several Underwriters, U.S.$[] in lieu of reimbursement of the Underwriters expenses; (vi) the
fees and disbursements of Underwriters counsel in connection with the transactions contemplated
hereby but excluding any such fees and disbursements incurred or arising in connection with any
subsequent transfer, sale or delivery by the Underwriter of the Securities; (vii) fees and expenses
of the Authorized Agent (as defined in Section 15 hereof); (viii) the cost of preparing
certificates representing the Securities; (ix) the cost and charges of any transfer agent or
registrar, if any; (x) any fees charged by securities rating services for rating the Securities;
(xi) any costs, fees and charges of any trustee, transfer agent, registrar or depositary; (xii) all
fees and expenses in connection with the preparation and filing of the registration statement on
Form 8-A relating to the Securities; and (xiii) all other reasonable costs and expenses incident to
the performance of the obligations of the Company and the Guarantor hereunder that are not
otherwise specifically provided for in this Section; (b) the Company and the Guarantor will pay or
cause to be paid all stamp or other taxes, levies and duties, if any, and any other kind of tax,
including withholding tax, incurred or arising in connection with (i) the issuance and initial
delivery of the Securities by
18
the Company, (ii) the deposit of the Securities with a custodian for DTC, Euroclear Bank
SA/NV, as operator of Euroclear System or Clearstream Banking, société anonyme, as the case may be,
(iii) the purchase by the Underwriters of the Securities, (iv) the sale and delivery of the
Securities by the Underwriters to the initial purchasers thereof, and (v) the execution and
delivery of this Agreement, including all taxes payable by the Underwriters arising from the
reimbursement of any expenses, other than income tax from any fee, commission or other compensation
received by the Underwriters in accordance with this Agreement; it being understood that nothing in
clause (b) hereof is intended or shall be construed to include any stamp or other taxes, expenses,
levies and duties and any other kind of tax, including withholding tax, incurred or arising from
any subsequent transfer, sale or delivery of the Securities by (A) an initial purchaser of the
Securities procured by the Underwriter or (B) the Underwriter. It is understood, however, that,
except as provided in this Section, and Sections 9 and 12 hereof, each Underwriter will pay all of
its own advertising expenses in connection with any offers they make and any costs, expenses and
fees, stamp or other taxes, levies and duties and any other kind of tax, including withholding tax,
incurred or arising from any subsequent transfer, sale or delivery of the Securities by the
Underwriters.
Payment shall be made by or on behalf of the Company and the Guarantor within fourteen days of
the date of the invoice from the Representatives.
8. The obligations of the Underwriters hereunder, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of the Company and the
Guarantor herein are, at and as of the Time of Delivery, true and correct, the condition that the
Company and the Guarantor not be in breach of any of their respective obligations under this
Agreement in any respect that is material on or before the Time of Delivery, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 5(a) hereof; all material
required to be filed by the Company and the Guarantor pursuant to Rule 433(d) under the
Act shall have been filed with the Commission within the applicable time period prescribed
for such filing by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission and no notice of
objection of the Commission to the use of the Registration Statement pursuant to Rule
401(g)(2) under the Act shall have been received; no stop order suspending or preventing
the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated
or threatened by the Commission; and all requests for additional information on the part
of the
19
Commission shall have been complied with to your reasonable satisfaction;
(b) Davis Polk & Wardwell LLP, United States counsel for the Underwriters, shall have
furnished to you their disclosure letter and written opinion in forms reasonably
acceptable to the Representatives, dated the Time of Delivery and such counsel shall have
received such papers and information as they may reasonably request to enable them to pass
upon such matters;
(c) Shearman & Sterling LLP, United States counsel for the Company and the Guarantor,
shall have furnished to you their disclosure letter and written opinion in forms
reasonably acceptable to the Representatives, dated the Time of Delivery.
(d) Cains Advocates Limited, Isle of Man counsel for the Company shall have furnished
to you their written opinion in a form reasonably acceptable to the Representatives, dated
the Time of Delivery;
(e) Taback and Associates (Pty) Limited, South African counsel for the Guarantor,
shall have furnished to you their written opinion in a form reasonably acceptable to the
Representatives, dated the Time of Delivery;
(f) On each of the date of the date hereof and the Time of Delivery, Ernst & Young,
Inc. shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof in forms reasonably acceptable to the Representatives;
(g) At and as of the Time of Delivery, (i) neither the Guarantor nor any of its
subsidiaries shall have sustained, since the date of the latest audited financial
statements included or incorporated by reference in the Pricing Prospectus, any loss or
interference with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental action, order
or decree, in each case materially adverse to the Guarantor and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii)
since the respective dates as of which information is given in the Registration Statement
and the Pricing Prospectus, there shall not have been any material increase in the long
term debt of the Guarantor and its subsidiaries taken as a whole or any change, or any
development involving a prospective change, in or affecting the business affairs,
management, financial position, shareholders equity or results of operations of the
Guarantor and its subsidiaries taken as a whole, in each case, otherwise than as set forth
or contemplated in the Pricing Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is in the judgment of the Representatives so material and adverse
as to make it
20
impracticable or inadvisable to proceed with the public offering or the delivery of
the Securities being delivered at the Time of Delivery on the terms and in the manner
contemplated in the Pricing Prospectus;
(h) On or after the Applicable Time until the Time of Delivery there shall not have
occurred any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange and/or the JSE Limited; (ii) a
suspension or material limitation in trading in the securities of the Guarantor on the New
York Stock Exchange or the JSE Limited; (iii) a general moratorium on commercial banking
activities in New York, the Republic of South Africa, the Isle of Man or London declared
by the relevant authorities, or a material disruption in commercial banking or securities
settlement or clearance services in the United States, the Republic of South Africa, the
Isle of Man or the United Kingdom; (iv) a change or development involving a prospective
change in the Republic of South Africa or the Isle of Man taxation adversely affecting the
Securities or the transfer thereof; (v) the outbreak or escalation of hostilities
involving the United States, the Republic of South Africa or the United Kingdom or the
declaration by the United States, the Republic of South Africa or the United Kingdom of a
national emergency or war or (vi) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions or currency exchange rates or
controls in the United States, the Republic of South Africa, the Isle of Man or the United
Kingdom or elsewhere, if the effect of any such event specified in clause (v) or (vi) in
the reasonable judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities being delivered at the
Time of Delivery to, or as directed by, the Underwriters on the terms and in the manner
contemplated in the Prospectus;
(i) The Company and the Guarantor shall have complied with the provisions of Section
5(a)(iv) hereof with respect to the furnishing of prospectuses on the Business Day next
succeeding the date of this Agreement;
(j) At and as of the Time of Delivery, an application shall have been made for
listing the Securities on the New York Stock Exchange;
(k) On or after the Applicable Time, (i) there shall not have occurred any lowering
of the rating of any of the debt securities of the Company or the Guarantor by Moodys
Investors Service, Inc. or Standard & Poors Rating Services, a division of the
McGraw-Hill Companies, Inc. and (ii) no such organization shall have announced that it has
under surveillance or review, with possible negative implications, its ratings of any of
the debt securities of the Company or the Guarantor; and
21
(l) Each of the Company and the Guarantor shall have furnished or caused to be
furnished to you at and as of the Time of Delivery certificates of officers of the Company
and the Guarantor as to the accuracy of the representations and warranties of the Company
and the Guarantor, as the case may be, herein at and as of the Time of Delivery, as to the
performance, in all material respects, by the Company and the Guarantor of their
respective obligations hereunder to be performed at or prior to the Time of Delivery, and
each of the Company and the Guarantor shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a), (g) and (k) of this Section.
9. (a) The Company and the Guarantor jointly and severally will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or any issuer information filed or required to be
filed pursuant to Rule 433(d) under the Act or identified in Schedule III(b) hereto, or arise out
of or are based upon the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such expenses are incurred;
provided, however, that the Company and the Guarantor shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the Company or the Guarantor
by any Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter, severally, but not jointly, will indemnify and hold harmless
the Company and the Guarantor against any losses, claims, damages or liabilities to which
the Company or the Guarantor may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus,
the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
22
to the extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in
conformity with written information furnished to the Company and the Guarantor by such
Underwriter through the Representatives expressly for use therein; and will reimburse the
Company and the Guarantor for any legal or other expenses reasonably incurred by the
Company or the Guarantor in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above
of notice of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such action shall
be brought against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified
party (which shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each
23
indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits received by
the Company and the Guarantor on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the relative fault of
the Company and the Guarantor on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Guarantor on the
one hand and the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Securities under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantor on the one hand or the Underwriters
on the other and the parties relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the Guarantor
and the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which any Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters
24
obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company and the Guarantor under this Section 9 shall be in
addition to any liability which the Company or the Guarantor may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act and each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 shall be in
addition to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the Company or
the Guarantor (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company or the Guarantor) and
to each person, if any, who controls the Company or the Guarantor within the meaning of
the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which it
has agreed to purchase hereunder at the Time of Delivery, you may in your discretion arrange for
you or another party or other parties to purchase such Securities on the terms contained herein.
If within thirty-six hours after such default you do not make arrangements satisfactory to you, the
Company and the Guarantor for the purchase of such Securities, then the Company and the Guarantor
shall be entitled to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Securities on such terms. In the event that,
within the respective prescribed periods, you notify the Company and the Guarantor that you have so
arranged for the purchase of such Securities, or the Company and the Guarantor notify you that they
have so arranged for the purchase of such Securities, you or the Company shall have the right to
postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term Underwriter as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally been a party to
this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of Securities of a
defaulting Underwriter or Underwriters by you, the Company and the Guarantor as provided
in subsection (a) above, the principal amount of such Securities which remain unsold does
not exceed one-eleventh of the aggregate principal amount of all of the Securities to be
purchased at the Time of Delivery, then the Company and the Guarantor shall have the right
to require each nondefaulting Underwriter to purchase the number of Securities which such
Underwriter agreed to
25
purchase hereunder at the Time of Delivery and, in addition, to require each
nondefaulting Underwriter to purchase its pro rata share (based on the principal amount of
Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of Securities of a
defaulting Underwriter or Underwriters by you, the Company and the Guarantor as provided
in subsection (a) above, the principal amount of such Securities which remain unsold
exceeds one-eleventh of the aggregate principal amount of all the Securities to be sold at
the Time of Delivery, or if the Company and the Guarantor shall not exercise the right
described in subsection (b) above to require nondefaulting Underwriters to purchase the
Securities of a defaulting Underwriter or Underwriters, then this Agreement shall
thereupon terminate, without liability on the part of any nondefaulting Underwriter on the
one hand or the Company and the Guarantor on the other, except for the expenses to be
borne by the Company and the Guarantor on the one hand and the Underwriters on the other
as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9
hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Guarantor and the several Underwriters, as set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, the Company or the
Guarantor, or any officer or director or controlling person of the Company or the Guarantor, and
shall survive delivery of and payment for the Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company and the
Guarantor shall then not be under any liability to you except as provided in Sections 7 and 9
hereof; but, if for any other reason any Securities are not delivered by or on behalf of the
Company and the Guarantor as provided herein, the Company and the Guarantor will reimburse the
Underwriters through you for all out of pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for
the sale and delivery of the Securities not so delivered, but the Company and the Guarantor shall
then be under no further liability to any Underwriter in respect of the Securities not so delivered
except as provided in Sections 7 and 9 hereof.
26
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by either of you.
All statements, requests, notices, agreements and other communications hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to you as the Representatives of the several Underwriters listed in Schedule I hereto
at the following: Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention:
Syndicate Registration, fax: +1-646-834-8133 and Goldman, Sachs & Co., 200 West Street, New York,
New York 10282, Attention: Registration Department; and if to the Company or the Guarantor shall be
delivered or sent by mail, telex or facsimile transmission to the address of the Company or the
Guarantor, as the case may be, set forth in the Registration Statement, Attention: Company
Secretary. Any such statements, requests, notices, agreements and other communications shall, if
sent by fax, conclusively be deemed to have been given or served at the time of dispatch upon
generation of transmission confirmation and, if sent by post, be conclusively deemed to have been
received 48 hours from the time of posting.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company and the Guarantor,
which information may include the name and address of their respective clients, as well as other
information that will allow the Underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and the Guarantor, and to the extent provided in Sections 9 and 10
hereof, the officers and directors of the Company and the Guarantor and each person who controls
the Company, the Guarantor or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or have any right under
or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
15. Each of the parties hereto irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by any Underwriter or by any person who controls the
Underwriter arising out of or based upon this Agreement or the transactions contemplated hereby may
be instituted in any Federal or State court in the Borough of Manhattan, The City of New York (each
a New York Court), (ii) waives, to the fullest extent permitted by law any objection which it may
now or hereafter have to the laying of venue of any such proceeding and (iii) submits to the
exclusive jurisdiction of such courts in any such suit, action or proceeding. Each of the Company
and the Guarantor has appointed AngloGold Ashanti North America Inc., 7400 East Orchard Road, Suite
350, Greenwood Village, Colorado 80111 as their authorized agent (the Authorized Agent)
27
upon whom process may be served in any such action arising out of or based on this Agreement
or the transactions contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls the Underwriter, expressly consents to the jurisdiction
of any such court in respect of any such action, and waives any other requirements of or objections
to personal jurisdiction with respect thereto. Such appointment shall be irrevocable for five
years from the date of this Agreement. Each of the Company and the Guarantor represents and
warrants that the Authorized Agent has agreed to act as such agent for service of process and agree
to take any and all action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent and written notice of such service to the Company or the
Guarantor, as the case may be, shall be deemed, in every respect, effective service of process upon
the Company.
16. In respect of any judgment or order given or made for any amount due hereunder that is
expressed and paid in a currency (the judgment currency) other than United States dollars, the
Company and the Guarantor will indemnify each Underwriter against any loss incurred by such
Underwriter as a result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of such judgment or
order and (ii) the rate of exchange at which an Underwriter is able to purchase United States
dollars with the amount of the judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of the Company and the
Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term rate of exchange shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion of the judgment currency into United States dollars.
17. Time shall be of the essence of this Agreement, both as regards any dates, times or
periods mentioned and as regards any dates, times or periods which may be substituted for them in
accordance with this Agreement or by agreement in writing between the parties.
18. Each of the Company and the Guarantor acknowledges and agrees that (i) the purchase of the
Securities by the several Underwriters pursuant to this Agreement is an arms-length commercial
transaction between the Company and the Guarantor, on the one hand, and the Underwriters, on the
other, (ii) solely in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no
Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the
Company or the Guarantor with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
or the Guarantor on other matters) or any other obligation to the Company or the Guarantor except
the obligations expressly set forth in this Agreement and (iv)
28
each of the Company and the Guarantor has consulted and will consult their own legal and
financial advisors to the extent each deemed appropriate. Each of the Company and the Guarantor
agrees that it will not claim that the Underwriters, or any of them, have rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the Company or the
Guarantor, in connection with such transaction or the process leading thereto.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the Guarantor on the one hand and the Underwriters, or any of them, on the
other with respect to the subject matter hereof.
19. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York without giving effect to the conflicts of laws provision thereof.
20. Each of the Company, the Guarantor and the Underwriters hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
21. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
* * * * *
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company and the Guarantor.
29
|
|
|
|
|
|
Very truly yours,
ANGLOGOLD ASHANTI HOLDINGS PLC
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
ANGLOGOLD ASHANTI LIMITED
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
Accepted as of the date hereof
BARCLAYS CAPITAL INC.
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
GOLDMAN, SACHS & Co.
|
|
|
By: |
|
|
|
|
(Goldman, Sachs & Co.) |
|
|
|
|
|
|
|
SCHEDULE I
|
|
|
|
|
|
|
|
|
|
|
Principal Amount |
|
|
Principal Amount |
|
|
|
of 20[] Notes to |
|
|
of 20[] Notes to |
|
Underwriter |
|
be Purchased |
|
|
be Purchased |
|
Barclays Capital Inc. |
|
$ |
[ ] |
|
|
$ |
[ ] |
|
Goldman, Sachs & Co. |
|
|
[ ] |
|
|
|
[ ] |
|
[ ] |
|
|
[ ] |
|
|
|
[ ] |
|
|
|
|
|
|
|
|
Total |
|
$ |
[ ] |
|
|
$ |
[ ] |
|
|
|
|
|
|
|
|
SCHEDULE II
[Pricing Term Sheet]
AngloGold Ashanti Holdings plc
Pricing Term Sheet
[ ], 2010
|
|
|
20[ ] Notes |
|
|
Issuer:
|
|
AngloGold Ashanti Holdings plc |
Guarantor
|
|
AngloGold Ashanti Limited |
Size:
|
|
$[ ] |
Maturity:
|
|
[ ], 20[ ] |
Coupon:
|
|
[ ]% |
Price to Public:
|
|
[ ]% of principal amount, plus accrued
interest, if any, from [ ], 2010 |
Yield to maturity:
|
|
[ ]% |
Spread to Benchmark Treasury:
|
|
[ ] basis points |
Benchmark Treasury:
|
|
[ ] |
Benchmark Treasury Yield:
|
|
[ ] / [ ]% |
Interest Payment Dates:
|
|
[ ] and [ ], commencing [ ], 2010 |
Change of control put:
|
|
[ ]% |
Redemption Provisions:
|
|
Make-whole call and Tax |
Make-whole call:
|
|
At any time at a discount rate of Treasury plus
[ ] basis points |
Tax Redemption:
|
|
100% |
Settlement:
|
|
[ ], 2010 |
CUSIP / ISIN:
|
|
[ ] / [ ] |
Ratings:
|
|
[ ] |
Note: A securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time.
The issuer and the guarantor have filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer and the guarantor have
filed with the SEC for more complete information about the issuer, the guarantor and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, the guarantor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it by calling Barclays Capital Inc.
at toll-free 1-888-603-5847 or Goldman, Sachs & Co. toll-free at 1-866-471-2526.
AngloGold Ashanti Holdings plc
Pricing Term Sheet
[ ], 2010
|
|
|
20[ ] Notes |
|
|
Issuer:
|
|
AngloGold Ashanti Holdings plc |
Guarantor
|
|
AngloGold Ashanti Limited |
Size:
|
|
$[ ] |
Maturity:
|
|
[ ], 20[ ] |
Coupon:
|
|
[ ]% |
Price to Public:
|
|
[ ]% of principal amount, plus accrued
interest, if any, from [ ], 2010 |
Yield to maturity:
|
|
[ ]% |
Spread to Benchmark Treasury:
|
|
[ ] basis points |
Benchmark Treasury:
|
|
[ ] |
Benchmark Treasury Yield:
|
|
[ ] / [ ]% |
Interest Payment Dates:
|
|
[ ] and [ ], commencing [ ], 2010 |
Change of control put:
|
|
[ ]% |
Redemption Provisions:
|
|
Make-whole call and Tax |
Make-whole call:
|
|
At any time at a discount rate of Treasury plus
[ ] basis points |
Tax Redemption:
|
|
100% |
Settlement:
|
|
[ ], 2010 |
CUSIP / ISIN:
|
|
[ ] / [ ] |
Ratings:
|
|
[ ] |
Note: A securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time.
The issuer and the guarantor have filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer and the guarantor have
filed with the SEC for more complete information about the issuer, the guarantor and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, the guarantor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it by calling Barclays Capital Inc.
at toll-free 1-888-603-5847 or Goldman, Sachs & Co. toll-free at 1-866-471-2526.
Sch - II-2
SCHEDULE III
(a) Materials other than the Pricing Prospectus that comprise the Pricing Disclosure Package:
Issuer Free Writing Prospectus dated [ ], 2010 containing the final terms of the
20[ ] Notes
Issuer Free Writing Prospectus dated [ ], 2010 containing the final terms of the
20[ ] Notes
[Others, if any]
(b) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
Issuer Free Writing Prospectus dated [ ], 2010 containing the roadshow investor
presentation
[Others, if any]
(c) Additional Documents Incorporated by Reference:
[None]
SCHEDULE IV
AngloGold Ashanti Australia Limited
AngloGold Ashanti (Ghana) Limited
AngloGold Ashanti Holdings plc
AngloGold Ashanti USA Incorporated
AngloGold Brasil Ltda
AngloGold Offshore Investments Limited
AngloGold South America Ltd
Cerro Vanguardia S.A.
Cluff Resources Ltd
Geita Gold Mining Limited
Mineração Morro Velho Ltda
Mineração Serra Grande S.A.
Société Ashanti Goldfields de Guinée S.A.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
|
|
|
|
|
|
AngloGold Ashanti Limited
|
|
Date: April 22, 2010 |
By: |
/s/ L EATWELL |
|
|
|
Name: |
L EATWELL |
|
|
|
Title: |
Company Secretary |
|
|