Sasol Ltd 6-K, filed Mar 19, 2021
Sasol Ltd (SSL)
About this 6-K
Sasol Ltd filed this 6-K on March 19, 2021.
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
| For the month of: March, 2021 | Commission File Number: 001-31615 |
Sasol Limited
(Name of Registrant)
Sasol Place
50 Katherine Street
Sandton, 2196
South Africa
(Address of Principal Executive Offices)
This Report on Form 6-K shall
be incorporated by reference in
our automatic shelf Registration Statement on Form F-3 as amended (File No. 333-184526),
to the extent not superseded by documents or reports subsequently filed by us under the Securities Act of 1933, as amended, or
the Securities Exchange Act of 1934, as amended
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 X Form 40-F
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ___
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ___
Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934:
Yes No X
If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): N/A
Each of Sasol Limited and Sasol Financing USA LLC is filing the following exhibit on this Report on Form 6-K, which is hereby incorporated by reference:
| Exhibit No. | Description |
| 1.1 | Underwriting Agreement among Sasol Limited, Sasol Financing USA LLC and the underwriters named therein. |
| 5.1 | Opinion of Shearman & Sterling (London) LLP, U.S. counsel. |
| 5.2 | Opinion of Edward Nathan Sonnenbergs, Inc., South African counsel to Sasol Limited. |
| 23.1 | Consent of Shearman & Sterling (London) LLP (included in its opinion filed as Exhibit 5.1). |
| 23.2 | Consent of Edward Nathan Sonnenbergs, Inc. (included in its opinion filed as Exhibit 5.2). |
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.
Date: March 18, 2021
| Sasol Limited | ||
| By: | /s/ Paul Victor | |
| Name: Paul Victor Title: Authorized Signatory | ||
Exhibit 1.1
Execution version
Sasol Financing USA LLC
U.S.$650,000,000 4.375% Notes due 2026
U.S.$850,000,000 5.500% Notes due 2031
Fully and Unconditionally Guaranteed by
SASOL LIMITED
Underwriting Agreement
March 11, 2021
BofA Securities, Inc.
One Bryant Park
New York, NY 10036
United States
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
United States
Mizuho International plc
Mizuho House
30 Old Bailey
London EC4M 7AU
United Kingdom
MUFG Securities EMEA plc
Ropemaker Place, 25 Ropemaker Street
London EC2Y 9AJ
United Kingdom
As the representatives of the several underwriters
named in
Schedule I hereto (the “Representatives”)
Ladies and Gentlemen:
Sasol Financing USA LLC, a Delaware limited liability company (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.$650,000,000 aggregate principal amount of its 4.375% Notes due 2026 (the “2026 Notes”) and U.S.$850,000,000 aggregate amount of its 5.500% Notes due 2031 (the “2031 Notes” and, together with the 2026 Notes, the “Notes”). The 2026 Notes and the 2031 Notes will be entitled to the benefit of full and unconditional guarantees (the “Guarantees” and, together with the Notes, the “Securities”) by Sasol 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 2026 Notes and the 2031 Notes, respectively.
The Securities will be issued pursuant to an indenture entered into on September 27, 2018 (the “Indenture”) as modified by an Agreement of Resignation, Appointment and Acceptance dated as of August 5, 2020 by and among the Company, the Guarantor, Citibank, N.A., as resigning trustee and Wilmington Savings Fund Society, as successor trustee (the “Trustee”).
The Company and the Guarantor hereby confirm their engagement of Citigroup Global Markets Inc. as, and Citigroup Global Markets Inc. hereby confirms its agreement with the Company and the Guarantor to render services as, the “qualified independent underwriter,” within the meaning of FINRA Rule 5121 of the Financial Industry Regulatory Authority, Inc. (“FINRA”) with respect to the offering and sale of the Securities. Citigroup Global Markets Inc., solely in its capacity as the qualified independent underwriter and not otherwise, is referred to herein as the “QIU.”
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. 333-227263) 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 or pursuant to Section 8A of the Act 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 under the Act 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(i) hereof is hereinafter called the “Prospectus”;
| 2 |
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 Part I 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-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 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Prospectus, as of its date, did not or will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter through BofA Securities, Inc., Citigroup Global Markets Inc., Mizuho International plc and MUFG Securities EMEA plc expressly for use therein;
| 3 |
(iii) For the purposes of this Agreement, the “Applicable Time” is 5:00 p.m. (New York City time) on the date of this Agreement; the Pricing Prospectus as supplemented by those Issuer Free Writing Prospectuses and other documents listed in Schedule III(a) hereto, if applicable, taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule III(a) or Schedule III(b) hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter through BofA Securities, Inc., Citigroup Global Markets Inc., Mizuho International plc and MUFG Securities EMEA plc expressly for use therein;
(iv) The documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package 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 Registration Statement or 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 Commission’s close of business on the business day (which term shall mean for this subsection (iv) any day when the Commission’s office in Washington, D.C. is open for business) immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule III(c) hereto and except for such other documents as were delivered to you prior to the Applicable Time;
(v) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and, in each case, the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to (A) any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter through BofA Securities, Inc., Citigroup Global Markets Inc., Mizuho International plc and MUFG Securities EMEA plc expressly for use therein or (B) that part of the Registration Statement that constitutes the Statement of Eligibility on Form T-1 under the Trust Indenture Act of the Trustee;
| 4 |
(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 Disclosure Package, 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 Disclosure Package; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Disclosure Package, 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 Disclosure Package;
(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 Disclosure Package or as would not, individually or in the aggregate, have a material adverse effect on the business affairs, management, financial position, shareholders’ equity or results of operations of the Guarantor and its subsidiaries taken as a whole (a “Material Adverse Effect”);
(viii) Each of the Company and the Guarantor is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation, is not in bankruptcy, liquidation, receivership or under judicial management (and no order or resolution therefor has been presented and no notice of appointment of any liquidator, receiver, administrative receiver, administrator or judicial manager has been given) and has full power and authority under its Memorandum and Articles of Association or Bylaws and otherwise to own its assets and conduct its business;
| 5 |
(ix) The Guarantor has an authorized and issued share capital as set forth in the Pricing Disclosure Package, 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 Disclosure Package; 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 as set forth in the Pricing Disclosure Package) 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 Disclosure Package, including, without limitation, any estimates and projections included under the caption “Summary” in the Pricing Prospectus, 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 the 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 do not and 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 does or 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 judgment, 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, the Securities and the Indenture, 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 upon your request and (C) such Governmental Authorizations as may be required under state securities or Blue Sky laws or any securities laws of jurisdictions outside the Republic of South Africa and the United States;
(xiii) Neither the Guarantor nor any of its subsidiaries is (A) in violation of its Memorandum and Articles of Association or Bylaws or (B), except as would not, individually or in the aggregate, have a Material Adverse Effect, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(xiv) Other than as set forth in the Pricing Disclosure Package, 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 who performs any services hereunder through a permanent establishment or a fixed base in the Republic of South Africa), 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 or any political subdivision or taxing authority thereof or therein in connection with (A) the issue and initial delivery of the Securities by the Company or the Guarantor, (B) the purchase by the Underwriters of the Securities, (C) the sale and delivery of the Securities by the Underwriters to the initial purchasers thereof or (D) the performance by the Company and the Guarantor of their respective obligations under this Agreement;
| 7 |
(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 Disclosure Package, there are no legal or governmental proceedings pending to which the Company, the Guarantor or any of the Guarantor’s subsidiaries is a party or of which any property of the Company, the Guarantor or any of the Guarantor’s subsidiaries is the subject which, if determined adversely to the Company, the Guarantor or any of the Guarantor’s subsidiaries, would individually or in the aggregate have a Material Adverse Effect or would be required to be disclosed in the Registration Statement; 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) The Company and Guarantor are not, and after giving pro forma effect to the offering and sale of the Securities and the application of the proceeds thereof, would not be required to register as 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 (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 the 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;
| 8 |
(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, has been duly authorized, executed and delivered by the Company and the Guarantor and is a valid and binding agreement of the Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting the enforcement of creditors’ rights generally and equitable principles of general applicability;
(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;
(xxiii) The audited financial statements included or incorporated by reference in the Registration Statement and the Pricing Disclosure Package 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 the Exchange Act, and in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board (“IFRS”), except as set forth in the Pricing Disclosure Package, applied on a consistent basis during the periods presented; the other financial and statistical data set forth in the Registration Statement and the Pricing Disclosure Package 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 Disclosure Package and that are required to be disclosed therein;
| 9 |
(xxiv) The Guarantor and its subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and that are sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(xxv) The Guarantor and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Guarantor in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Guarantor’s management as appropriate to allow timely decisions regarding required disclosure. The Guarantor has carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act;
(xxvi) The Guarantor and each of its subsidiaries have all licenses, certificates, permits and other authorizations (including, without limitation, all mining rights, prospecting rights, mining authorizations and mining leases) issued by the appropriate Governmental Agencies (and have made all required declarations and filings with such Governmental Agencies), that are legally required for the ownership, license or lease of their respective properties or the conduct of their respective businesses as described in the Pricing Disclosure Package, except as described in the Pricing Disclosure Package 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 Disclosure Package 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;
| 10 |
(xxvii) PricewaterhouseCoopers Inc., who have (i) audited the consolidated financial statements of the Guarantor and its subsidiaries as of June 30, 2018, 2019 and 2020 and (ii) reviewed the interim financial statements of the Guarantor and its subsidiaries as of and for the six months ended December 31, 2020 and 2019 were at the time of performing such audit and review independent registered 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 Disclosure Package, 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 Disclosure Package or as would not have a Material Adverse Effect;
(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 exploration, drilling, mining, producing liquid fuels, fuel components and chemicals 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; and (C) have not received any notice of any actual or potential liability under, or investigation relating to, any Environmental Law; except, in each case, as described in the Pricing Disclosure Package or as would not, individually or in the aggregate, have a Material Adverse Effect;
| 11 |
(xxxi) Neither the Company nor the Guarantor nor any of their respective subsidiaries or affiliates, nor any of their respective directors, officers or employees, nor to the Company’s or the Guarantor’s knowledge, any agent or representative of the Company or the Guarantor or any of their respective subsidiaries or affiliates is aware of or has taken any action, directly or indirectly, that would result in a violation of any provisions of: (i) the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations promulgated thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, (ii) the U.K. Bribery Act 2010 (the “Bribery Act”), or (iii) similar anti-corruption laws of all other applicable jurisdictions to which they are subject, including those relating to political donations and money laundering; and the Company and the Guarantor and their respective subsidiaries and affiliates have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representations and warranties contained herein;
(xxxii) The operations of the Company, the Guarantor and their respective subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the U.S. Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental or regulatory agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Guarantor or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Guarantor, threatened;
| 12 |
(xxxiii) None of the Company, the Guarantor or any of their subsidiaries, nor any director, officer, or employee of the Company, the Guarantor or any of their subsidiaries, nor, to the Guarantor’s knowledge, any agent, affiliate or representative of the Company, the Guarantor or any of their subsidiaries, is (A) an individual or entity (“Person”) that is, or is owned or controlled by a Person that is currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State, the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”) or the Republic of South Africa (collectively, “Sanctions”), or (B) located, organized or resident in a country or territory that is the subject of Sanctions (currently, Crimea, Cuba, Iran, North Korea and Syria). The Company will not, directly or indirectly, use the proceeds of the sale of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering of the Notes, whether as underwriter, advisor, investor or otherwise). With regard to (i) Mizuho International plc, BNP Paribas, Deutsche Bank AG, London Branch, J.P. Morgan Securities plc and Intesa Sanpaolo S.p.A., London Branch, the representation, warranty and undertaking given in this Section 1(xxxiii) will not apply if and to the extent that such representation, warranty and undertaking are or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) 2271/96 (the “Blocking Regulation”), or any law or regulation implementing such Blocking Regulation in any member state of the European Union; or (ii) Mizuho International plc, MUFG Securities EMEA plc, BNP Paribas, Deutsche Bank AG, London Branch, J.P. Morgan Securities plc and Intesa Sanpaolo S.p.A., London Branch, the representation, warranty and undertaking given in this Section 1(xxxiii) will not apply if and to the extent that such representation, warranty and undertaking are or would be unenforceable by reason of breach of any provision of the Council Regulation (EC) 2271/96 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Blocking Regulation”), or any law, regulation or order implementing the UK Blocking Regulation. With regard to Deutsche Bank AG, London Branch, the representation, warranty and undertaking given in this Section 1(xxxiii) apply only if and to the extent that they do not result in a violation of the Council Regulation (EC) no. 2271/96 of 22 November 1996, section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung – AWV) or any other applicable anti-boycott or similar laws or regulations; and
(xxxiv) There is and has been no failure on the part of the Guarantor or any of the Guarantor’s directors or officers, in their capacities as such, to comply with Section 402 of the Sarbanes-Oxley Act of 2002 related to loans and Sections 302 and 906 related to certifications.
| 13 |
2. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective principal amounts of the Notes set forth in Schedule I hereto opposite its name of (A) the 2026 Notes at a purchase price of 99.420% of the principal amount thereof plus, in each case, accrued interest, if any, from March 18, 2021 to the Time of Delivery (as defined in Section 4) and (B) the 2031 Notes at a purchase price of 99.420% of the principal amount thereof plus, in each case, accrued interest, if any, from March 18, 2021 to the Time of Delivery.
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 and may conduct private offerings outside the United States, in each case, as soon after this Agreement has become effective as in the judgment of the 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 and to qualifying institutional investors outside 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 London LLP, 5 Aldermanbury Square, London EC2V 7HR at 9:00 a.m. (New York City time) on March 18, 2021, 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 (l) hereof, will be delivered electronically to Davis Polk & Wardwell London LLP, and the Securities will be delivered as specified in this Section 4, all at the Time of Delivery. A meeting will be held, on the Business Day immediately preceding the Time of Delivery, or such time and place as may mutually be agreed upon in writing by the Representatives, the Company and the Guarantor, or their respective counsel, at which meeting the Global Securities and the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4 and Section 5, “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City, Johannesburg or London are generally authorized or obligated by law or executive order to close.
| 14 |
5. 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 Commission’s close of business on the second business day (which term shall mean for this subsection 5(i) any day when the Commission’s office in Washington, D.C. is open for business) following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly (x) after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof, or (y) if, prior to the filing of the Prospectus pursuant to Rule 424(b) under the Act, any event occurs as a result of which the Pricing Disclosure Package would contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances in which they were made or then prevailing, not misleading and to supplement or amend the Pricing Disclosure Package to correct such statement or omission, and furnish to you without charge with copies thereof; to file promptly all material required to be filed by the Company or the Guarantor with the Commission pursuant to Rule 433(d) under the 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 pursuant to Section 8A of the Act, 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 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;
| 15 |
(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 9:00 a.m. (New York City time) on the Business Day next succeeding the date of this Agreement and during the period mentioned below, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City or London in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required by law at any time prior to the expiration of nine months after the date hereof and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 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 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;
| 16 |
(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 issue or sell, or announce any intention to issue or sell, any debt securities of the Guarantor or any of its subsidiaries without the prior written consent of the Representatives; provided, however, that this Section 5(vi) shall not apply to (i) the Securities, (ii) any issuance or sale, or announcement of issuance or sale, or any announcement of an intention to issue or sell, notes by the Guarantor under its domestic medium term note program in South Africa, or (iii) any sale of, or any announcement of an intention to sell, any preference shares by the Guarantor or any of its affiliates under the Guarantor’s Khanyisa transactions in South Africa.
(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 Disclosure Package 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 commercially reasonable efforts to list the Securities on the New York Stock Exchange;
(xi) To cooperate with the Underwriters and use commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC;
| 17 |
(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 under the Act; and
(xiii) Not to (and to cause the subsidiaries of the Guarantor not to) take, directly or indirectly, any action which is designed to or which constitutes or which would reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company or the Guarantor, in each case in violation of applicable laws, to facilitate the sale or resale of the Securities contemplated by this Agreement.
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 that would be required to be filed; 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 they have 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 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 BofA Securities, Inc., Citigroup Global Markets Inc., Mizuho International plc and MUFG Securities EMEA plc expressly for use therein.
| 18 |
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 Guarantor’s 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(iii) hereof; (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; (v) fees and expenses of the Authorized Agent (as defined in Section 16 hereof); (vi) the cost of preparing certificates representing the Securities; (vii) the cost and charges of any transfer agent or registrar, if any; (viii) any fees charged by securities rating services for rating the Securities; (ix) any costs, fees and charges of any trustee, transfer agent, registrar or depositary; (x) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Securities; (xi) on presentation of fully itemized invoices with supporting vouchers where appropriate, all properly incurred out-of-pocket costs and expenses of the Underwriters, including the fees and expenses of any investor presentation, travel or accommodation expenses incurred by the Underwriters in connection with the transactions contemplated by this Agreement and the preparation of all other documentation contemplated hereby; and (xii) all other reasonable costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder that are not otherwise specifically provided for in this Section; (b) the Company and the Guarantor will pay or cause to be paid all stamp or other taxes, levies and duties, if any, and any other kind of tax, including withholding tax, incurred or arising in connection with (i) the issuance and initial delivery of the Securities by the Company or the Guarantor, (ii) the deposit of the Securities with a custodian for DTC, (iii) the purchase by the Underwriters of the Securities, (iv) the initial resale and delivery of the Securities by the Underwriters as contemplated by this Agreement, 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. It is further agreed that the Company will not be responsible for any fees or disbursements of counsel to the Underwriters, which fees and disbursements shall be the sole responsibility of the Underwriters.
| 19 |
The Underwriters may, only after consultation with the Company and the Guarantor and upon presentation to the Company and the Guarantor of fully itemized invoices with supporting vouchers where appropriate, deduct the Underwriters’ costs and expenses from the proceeds of the offering of Securities. If the Company or the Guarantor, as the case may be, is required by law to make any deduction or withholding on account of any tax of any nature, the amount payable in respect of the fees or expenses, as the case may be, shall be grossed up to the extent necessary to ensure that, after such deduction or withholding, the amount received and retained by the Representatives will equal the full amount which would have been received had no deduction or withholding been made.
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 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 or pursuant to Section 8A of the Act 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 Commission shall have been complied with to your reasonable satisfaction;
(b) Davis Polk & Wardwell London LLP, United States counsel for the Underwriters, shall have furnished to you their disclosure letter and written opinion substantially in the forms set forth in Annex I(a) hereto, dated the Time of Delivery and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
| 20 |
(c) Shearman & Sterling (London) LLP, United States counsel for the Company and the Guarantor, shall have furnished to you their disclosure letter and written opinion substantially in the forms set forth in Annex I(b) hereto, dated the Time of Delivery.
(d) Edward Nathan Sonnenbergs Inc., South African counsel for the Guarantor, shall have furnished to you their written opinion substantially in the form set forth in Annex I(d) hereto, dated the Time of Delivery;
(e) Bowman Gilfillan Inc., South African counsel for the Underwriters, shall have furnished to you their written opinion substantially in the form set forth in Annex I(e) hereto, dated the Time of Delivery;
(f) On each of the date hereof and the Time of Delivery, PricewaterhouseCoopers Inc. shall have furnished to you a letter or letters, dated the respective dates of delivery thereof to the effect set forth in Annex II hereto;
(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 Disclosure Package, 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 Disclosure Package, and (ii) since the respective dates as of which information is given in the Registration Statement and the Pricing Disclosure Package, 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 Disclosure Package, 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 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 Disclosure Package;
| 21 |
(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 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 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 or the United Kingdom; (iv) a change or development involving a prospective change in the Republic of South Africa 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 or the United Kingdom or elsewhere, if the effect of any such event specified in clause (v) or (vi) in the 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(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 Moody’s Investors Service, Inc. or S&P Global Ratings Inc., a division of S&P Global 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
(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 directors or officers of the Company and the Guarantor as to the accuracy of the representations and warranties of the Company and the Guarantor, as the case may be, herein at and as of the Time of Delivery, as to the performance, in all material respects, by the Company and the Guarantor of their respective obligations hereunder to be performed at or prior to the Time of Delivery, and each of the Company and the Guarantor shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a), (h) and (k) of this Section.
| 22 |
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 (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Basic Prospectus, any Preliminary Prospectus, the Pricing Disclosure Package, 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 the documents identified in Schedule III(d) hereto, or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein, in light of circumstance under which they were made, 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 Disclosure Package, 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 BofA Securities, Inc., Citigroup Global Markets Inc., Mizuho International plc and MUFG Securities EMEA plc 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 (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Basic Prospectus, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any “issuer information” filed pursuant to Rule 433(d) under the Act, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any “issuer information” filed pursuant to Rule 433(d) under the Act, in reliance upon and in conformity with written information furnished to the Company and the Guarantor by such Underwriter through BofA Securities, Inc., Citigroup Global Markets Inc., Mizuho International plc and MUFG Securities EMEA plc 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.
| 23 |
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission to so notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (which shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 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 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.
| 24 |
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’ 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 or the Exchange Act, each director and officer of any Underwriter, 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 or the Exchange Act.
| 25 |
(f) The Company and the Guarantor jointly and severally also agree to indemnify and hold harmless the QIU and each person, if any, who controls the QIU within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages, liabilities and judgments incurred as a result of the QIU’s participation as a “qualified independent underwriter” within the meaning of Rule 5121 of FINRA in connection with the offering of the Securities, except for any losses, claims, damages, liabilities, and judgments resulting from the QIU’s, or such controlling person’s, willful misconduct. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to Section 9(f) hereof in respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for the QIU in its capacity as a “qualified independent underwriter” and all persons, if any, who control the QIU within the meaning of either Section 15 of the Act or Section 20 of the Exchange 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 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.
| 26 |
(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.
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.
| 27 |
14. 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: BofA Securities, Inc., 1540 Broadway, NY8-540-26-02, New York, New York 10036, United States, fax no.: +1 646 855 5958, attention: High Grade Transaction Management/Legal; Citigroup Global Markets Inc., 388 Greenwich Street, New York, NY 10013, United States, +1 646 291 1469, attention: General Counsel; Mizuho International plc, Mizuho House, 30 Old Bailey, London EC4M 7AU, United Kingdom, email: DL-MHI-PrimaryDebt-Syndicate@uk.mizuho-sc.com, attention: Primary Debt Syndicate Desk; MUFG Securities EMEA plc, Ropemaker Place, 25 Ropemaker Street, London EC2Y 9AJ, United Kingdom, email: legal-primarymarkets@int.sc.mufg.jp, attention: Legal – Primary Markets 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.
15. 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 11 hereof, the officers and directors of the Company, the Guarantor and any Underwriters, 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.
16. Each of the parties hereto irrevocably (i) agrees that any legal suit, action or proceeding against the Company or the Guarantor brought by any Underwriter or by any person who controls the Underwriter arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any Federal or State court in the Borough of Manhattan, The City of New York (each a “New York Court”), (ii) waives, to the fullest extent permitted by law any objection which it may now or hereafter have to the laying of venue of any such proceeding and (iii) submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each of the Company and the Guarantor has appointed Sasol (USA) Corporation, 12120 Wickchester Lane, Houston, Texas 77079, United States, as their authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Agreement or the transactions contemplated hereby which may be instituted in any New York Court by any Underwriter or by any person who controls the Underwriter, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable for five years from the date of this Agreement.
| 28 |
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.
17. 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.
18. 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.
19. Each of the Company and the Guarantor acknowledges and agrees that (i) the purchase of the Securities by the several Underwriters pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantor, on the one hand, and the Underwriters and the QIU, on the other, (ii) solely in connection therewith and with the process leading to such transaction the Underwriter and QIU are each acting solely as a principal and not the agent or fiduciary of the Company, (iii) none of the Underwriters or the QIU 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 or the QIU has advised or is currently advising the Company or the Guarantor on other matters) or any other obligation to the Company or the Guarantor and (iv) each of the Company and the Guarantor has consulted and will consult their own legal and financial advisors to the extent each deemed appropriate. Each of the Company and the Guarantor agrees that it will not claim that the Underwriters, the QIU, 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.
| 29 |
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.
20. This Agreement, and any claim, controversy or dispute relating to or arising out of 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 provisions thereof.
21. 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.
22. This Agreement may be executed in two or more counterparts (which may include counterparts delivered by any form of electronic communication or telecommunication), each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement, if any, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, domestic or foreign, including, without limitation, the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
23. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Underwriters, the Company and the Guarantor, each of the Company and the Guarantor acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by:
(a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of an Underwriter to the Company and the Guarantor under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
| 30 |
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant Underwriter or another person, and the issue to, or conferral on, the Company and the Guarantor of such shares, securities or obligations;
(iii) the cancellation of the BRRD Liability; or
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
For purposes of this Section 23, the following terms shall have the respective meanings set out below:
“Bail-in Legislation” shall mean, in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
“Bail-in Powers” shall mean any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
“BRRD” shall mean Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“EU Bail-in Legislation Schedule” shall mean the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/.
“BRRD Liability” shall mean a liability in respect of which the relevant Write-down and Conversion Powers in the applicable Bail-in Legislation may be exercised.
“Relevant Resolution Authority” shall mean the resolution authority with the ability to exercise any Bail-in Powers in relation to any of the Underwriters.
24. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Underwriters, the Company and the Guarantor and accepts that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by:
| 31 |
(a) the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of an Underwriter to the Company and the Guarantor under this agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of an Underwriter or another person, and the issue to or conferral on the Company and the Guarantor of such shares, securities or obligations;
(iii) the cancellation of the UK Bail-in Liability;
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;
(b) the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority.
“UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
“UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
25. In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
| 32 |
In the event that any Underwriter that is a Covered Entity or a Covered Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For the purposes of this Section 25:
“Covered Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b);
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and
“U.S. Special Resolution Regime” means each of (i) the U.S. Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
* * * * *
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.
| 33 |
Very truly yours,
SASOL FINANCING USA LLC
By: /s/ Paul Victor
Name: Paul Victor
Title: Authorized Signatory
SASOL LIMITED
By: /s/ Paul Victor
Name: Paul Victor
Title: Authorized Signatory
Accepted as of the date hereof
BofA Securities, Inc.
Citigroup Global Markets Inc.
Mizuho International plc
MUFG Securities EMEA plc
As representatives of the several Underwriters
BOFA SECURITIES, INC.
By: /s/ Andrew R Karp
Name: Andrew R Karp
Title: Managing Director
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Adam D. Bordner
Name: Adam D. Bordner
Title: Director
MIZUHO INTERNATIONAL PLC
By: /s/ Manabu Shibuya
Name: Manabu Shibuya
Title: Executive Director
MUFG SECURITIES EMEA PLC
By: /s/ Corina Painter
Name: Corina Painter
Title: Authorised Signatory
J.P. MORGAN SECURITIES PLC
By: /s/ Clark Gard
Name: Clark Gard
Title: Executive Director
SCHEDULE I
|
Underwriter |
Principal Amount of the 2026 Notes to be Purchased |
| BofA Securities, Inc. | $195,000,000 |
| Citigroup Global Markets Inc. | $136,500,000 |
| Mizuho International plc | $136,500,000 |
| MUFG Securities EMEA plc | $136,500,000 |
| ABN AMRO Securities (USA) LLC | $6,500,000 |
| BNP Paribas | $6,500,000 |
| Deutsche Bank AG, London Branch | $6,500,000 |
| Intesa Sanpaolo S.p.A., London Branch | $6,500,000 |
| J.P. Morgan Securities plc | $6,500,000 |
| SMBC Nikko Securities America, Inc. | $6,500,000 |
| UniCredit Capital Markets LLC |
$6,500,000 |
| Total |
$650,000,000 |
|
Underwriter |
Principal Amount of the 2031 Notes to be Purchased |
| BofA Securities, Inc. | $255,000,000 |
| Citigroup Global Markets Inc. | $178,500,000 |
| Mizuho International plc | $178,500,000 |
| MUFG Securities EMEA plc | $178,500,000 |
| ABN AMRO Securities (USA) LLC | $8,500,000 |
| BNP Paribas | $8,500,000 |
| Deutsche Bank AG, London Branch | $8,500,000 |
| Intesa Sanpaolo S.p.A., London Branch | $8,500,000 |
| J.P. Morgan Securities plc | $8,500,000 |
| SMBC Nikko Securities America, Inc. | $8,500,000 |
| UniCredit Capital Markets LLC |
$8,500,000 |
| Total |
$850,000,000 |
SCHEDULE II
| Free Writing Prospectus | Dated March 11, 2021 |
| (To Preliminary Prospectus Supplement dated March 8, 2021 and Prospectus dated September 20, 2018) | Registration Statement No. 333-227263 |
Sasol Financing USA LLC
$650,000,000 4.375% Notes due 2026
Fully and Unconditionally Guaranteed by Sasol Limited
Pricing Term Sheet
March 11, 2021
| Issuer: | Sasol Financing USA LLC |
| Guarantor: | Sasol Limited |
| Principal Amount: | $650,000,000 |
| Net Proceeds (before expenses): | $646,230,000 |
| Maturity Date: | September 18, 2026 |
| Coupon: | 4.375% |
| Price to Public: | 100.000% of principal amount, plus accrued interest, if any, from March 18, 2021 |
| Yield to Maturity: | 4.375% |
| Benchmark Treasury: | UST 0.500% due February 28, 2026 |
| Spread to Benchmark Treasury: | + 359.7 basis points |
| Benchmark Treasury Price and Yield: | 98-203/4 / 0.778% |
| Interest Payment Dates: | March 18 and September 18, commencing September 18, 2021 |
| Day Count Fraction: | 30 / 360 |
| Change of Control: | 101% |
| Redemption Provisions: | |
| Make-whole Call: | At any time prior to August 18, 2026, at a discount rate of Treasury plus 50 basis points |
| Par Call: | On or after August 18, 2026 at 100% |
| Tax Redemption: | 100% |
| Trade Date: | March 11, 2021 |
| Expected Settlement Date: | March 18, 2021 (T+5) |
| Denominations: | $200,000 and integral multiples of $1,000 in excess thereof |
| CUSIP / ISIN: | 80386WAC9 / US80386WAC91 |
| Expected Listing: | New York Stock Exchange |
| Sole Global Coordinator and Joint Bookrunner: | BofA Securities, Inc. |
| 37 |
| Joint Bookrunners: | Citigroup Global Markets Inc. |
| Mizuho International plc | |
| MUFG Securities EMEA plc | |
| ABN AMRO Securities (USA) LLC | |
| BNP Paribas | |
| Deutsche Bank AG, London Branch | |
| Intesa Sanpaolo S.p.A., London Branch | |
|
J.P. Morgan Securities plc SMBC Nikko Securities America, Inc. UniCredit Capital Markets LLC |
* A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
***
It is expected that delivery of the securities will be made against payment therefor on or about March 18, 2021, which will be five business days (as such term is used for purposes of Rule 15c6-1 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”)) following the date hereof (such settlement cycle being referred to as “T+5”). Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in two business days unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes on the date of pricing or the next two succeeding business days may be required, by virtue of the fact that the securities initially will settle in T+5, to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. Purchasers of the securities who wish to make such trades should consult their own advisors.
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 BofA Securities, Inc. toll-free at +1 800 294 1322; or by calling Citigroup Global Markets Inc. toll-free at +1 800 831 9146; or by calling Mizuho International plc at +44 20 7090 6698; or by calling MUFG Securities EMEA plc at +44 20 7628 5555.
MiFID II professionals / ECPs-only / No PRIIPs KID – Manufacturer target market (MIFID II product governance) is eligible counterparties and professional clients only (all distribution channels). No PRIIPs key information document (KID) has been prepared as not available to retail in the EEA.
| 38 |
UK MiFIR professionals / ECPs-only / No UK PRIIPs KID – Manufacturer target market (UK MiFIR product governance) is eligible counterparties and professional clients only (all distribution channels). No UK PRIIPs key information document (KID) has been prepared as not available to retail in the UK.
No key information document (KID) required by Regulation (EU) No 1286/2014 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 has been prepared as not available to retail in UK. No sales to retail clients in the UK. Manufacturer target market (UK MiFIR product governance) is eligible counterparties and professional clients only (all distribution channels).
| 39 |
| Free Writing Prospectus | Dated March 11, 2021 |
| (To Preliminary Prospectus Supplement dated March 8, 2021 and Prospectus dated September 20, 2018) | Registration Statement No. 333-227263 |
Sasol Financing USA LLC
$850,000,000 5.500% Notes due 2031
Fully and Unconditionally Guaranteed by Sasol Limited
Pricing Term Sheet
March 11, 2021
| Issuer: | Sasol Financing USA LLC |
| Guarantor: | Sasol Limited |
| Principal Amount: | $850,000,000 |
| Net Proceeds (before expenses): | $845,070,000 |
| Maturity Date: | March 18, 2031 |
| Coupon: | 5.500% |
| Price to Public: | 100.000% of principal amount, plus accrued interest, if any, from March 18, 2021 |
| Yield to Maturity: | 5.500% |
| Benchmark Treasury: | UST 1.125% due February 15, 2031 |
| Spread to Benchmark Treasury: | +397.9 basis points |
| Benchmark Treasury Price and Yield: | 96-11+ / 1.521% |
| Interest Payment Dates: | March 18 and September 18, commencing September 18, 2021 |
| Day Count Fraction: | 30 / 360 |
| Change of Control: | 101% |
| Redemption Provisions: | |
| Make-whole Call: | At any time prior to December 18, 2030, at a discount rate of Treasury plus 50 basis points |
| Par Call: | On or after December 18, 2030 at 100% |
| Tax Redemption: | 100% |
| Trade Date: | March 11, 2021 |
| Expected Settlement Date: | March 18, 2021 (T+5) |
| Denominations: | $200,000 and integral multiples of $1,000 in excess thereof |
| CUSIP / ISIN: | 80386WAD7 / US80386WAD74 |
| Expected Listing: | New York Stock Exchange |
| Sole Global Coordinator and Joint Bookrunner: | BofA Securities, Inc. |
| 40 |
| Joint Bookrunners: | Citigroup Global Markets Inc. |
| Mizuho International plc | |
| MUFG Securities EMEA plc | |
| ABN AMRO Securities (USA) LLC | |
| BNP Paribas | |
| Deutsche Bank AG, London Branch | |
| Intesa Sanpaolo S.p.A., London Branch | |
|
J.P. Morgan Securities plc SMBC Nikko Securities America, Inc. UniCredit Capital Markets LLC |
* A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
***
It is expected that delivery of the securities will be made against payment therefor on or about March 18, 2021, which will be five business days (as such term is used for purposes of Rule 15c6-1 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”)) following the date hereof (such settlement cycle being referred to as “T+5”). Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in two business days unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes on the date of pricing or the next two succeeding business days may be required, by virtue of the fact that the securities initially will settle in T+5, to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. Purchasers of the securities who wish to make such trades should consult their own advisors.
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 BofA Securities, Inc. toll-free at +1 800 294 1322; or by calling Citigroup Global Markets Inc. toll-free at +1 800 831 9146; or by calling Mizuho International plc at +44 20 7090 6698; or by calling MUFG Securities EMEA plc at +44 20 7628 5555.
MiFID II professionals / ECPs-only / No PRIIPs KID – Manufacturer target market (MIFID II product governance) is eligible counterparties and professional clients only (all distribution channels). No PRIIPs key information document (KID) has been prepared as not available to retail in the EEA.
| 41 |
UK MiFIR professionals / ECPs-only / No UK PRIIPs KID – Manufacturer target market (UK MiFIR product governance) is eligible counterparties and professional clients only (all distribution channels). No UK PRIIPs key information document (KID) has been prepared as not available to retail in the UK.
No key information document (KID) required by Regulation (EU) No 1286/2014 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 has been prepared as not available to retail in UK. No sales to retail clients in the UK. Manufacturer target market (UK MiFIR product governance) is eligible counterparties and professional clients only (all distribution channels).
Any disclaimer or other notice that may appear below is not applicable to this communication and should be disregarded. Such disclaimer or notice was automatically generated as a result of this communication being sent by Bloomberg or another email system.
| 42 |
SCHEDULE III
(a) Materials other than the Pricing Prospectus that comprise the Pricing Disclosure Package:
Issuer Free Writing Prospectus dated March 11, 2021 containing the final terms of the Notes
(b) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
Issuer Free Writing Prospectus dated March 2021 containing the roadshow investor presentation
(c) Additional Documents Incorporated by Reference:
None
(d) Additional Document(s):
None
| 43 |
SCHEDULE IV
Sasol Investment Company (Pty) Ltd
Sasol South Africa Limited
Sasol Chemicals North America LLC
Sasol Oil (Pty) Ltd
Sasol Gas (Pty) Ltd
Sasol Germany GmbH
Sasol Chemicals (USA) LLC
Sasol Financing International Limited
| 44 |
Exhibit 5.1
 |
|
9 Appold Street +44.20.7655.5000 |
18 March 2021
| The Board of Directors Sasol Limited Sasol Place, 50 Katherine Street Sandton 2196 South Africa |
| The Board of Directors Sasol Financing USA LLC 12120 Wickchester Lane Houston, Texas 77079 United States of America |
Sasol Limited
Sasol Financing USA LLC
Ladies and Gentlemen
We have acted as counsel for Sasol Limited, a public company incorporated under the laws of the Republic of South Africa (the “Guarantor”), and Sasol Financing USA LLC, a limited liability company organized under the laws of the State of Delaware (the “Issuer”), in connection with the purchase of $650,000,000 aggregate principal amount of the Issuer’s 4.375% Notes due 2026 and $850,000,000 aggregate principal amount of the Issuer’s 5.500% Notes due 2031 (together, the “Notes”) pursuant to the Underwriting Agreement, dated as of March 11, 2021 (the “Underwriting Agreement”), among the Issuer, the Guarantor and each of the representatives of the several underwriters named therein. The Notes will be issued pursuant to an Indenture, dated as of September 27, 2018 (the “Indenture”), among the Issuer, the Guarantor and Citibank, N.A., as trustee, as modified by an Agreement of Resignation, Appointment and Acceptance dated as of August 5, 2020 by and among the Issuer, the Guarantor, Citibank, N.A., as resigning trustee and Wilmington Savings Fund Society, FSB, as successor trustee (the “Trustee”). The Notes will be fully and unconditionally guaranteed by the Guarantor pursuant to guarantees (each a “Guarantee” and, together with the Notes, the “Securities”), as provided for in the Indenture.
In that connection, we have reviewed originals or copies of the following documents:
| (a) | The Underwriting Agreement. |
| SHEARMAN.COM |
| We operate in the United Kingdom as Shearman & Sterling (London) LLP, a limited liability partnership organised in the United States under the laws of the State of Delaware, which laws limit the personal liability of partners. Shearman & Sterling (London) LLP is a multi-national partnership authorised and regulated by the Solicitors Regulation Authority (firm SRA number 211340). A list of all partners’ names, which includes solicitors and registered foreign lawyers, is available for inspection at the above address. Each partner of Shearman & Sterling (London) LLP is also a partner of Shearman & Sterling LLP. The Firm practices in Saudi Arabia in association with The Law Firm of Dr. Sultan Almasoud in association with Shearman & Sterling LLP. The Firm practices in Italy in association with Studio Legale Associato Shearman & Sterling LLP. Partners in the Rome and Milan offices are partners in Studio Legale Associato Shearman & Sterling LLP. |
| 18 March 2021 |
| (b) | The Indenture and the certificate of an officer of the Issuer dated March 18, 2021 pursuant to Section 301 of the Indenture setting forth certain terms of the Notes. |
| (c) | The Notes in global form as executed by the Issuer. |
| (d) | The Guarantees. |
The documents described in the foregoing clauses (a) through (d) are collectively referred to herein as the “Opinion Documents.”
We have also reviewed the following:
| (a) | The automatic shelf registration statement on Form F-3 (Registration No. 333-227263) filed by the Guarantor and the Issuer under the Securities Act of 1933, as amended (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”) on September 10, 2018, as amended by the post-effective amendment thereto filed with the Commission on August 24, 2020 (such registration statement, including the information deemed to be part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, and the documents incorporated by reference therein, hereinafter collectively referred to as the “Registration Statement”). |
| (b) | Originals or copies of such other records of the Issuer and the Guarantor, certificates of public officials and officers of the Issuer and the Guarantor and agreements and other documents as we have deemed necessary as a basis for the opinions expressed below. |
In our review of the Opinion Documents and other documents, we have assumed:
| (a) | The genuineness of all signatures. |
| (b) | The authenticity of the originals of the documents submitted to us. |
| (c) | The conformity to authentic originals of any documents submitted to us as copies. |
| (d) | As to matters of fact, the truthfulness of the representations made in the Underwriting Agreement and the other Opinion Documents and in certificates of public officials and officers of the Issuer and the Guarantor. |
| (e) | That each of the Opinion Documents is the legal, valid and binding obligation of each party thereto, other than the Issuer and the Guarantor, enforceable against each such party in accordance with its terms. |
| (f) | That: |
| (i) | The Guarantor is an entity duly organized and validly existing under the laws of the jurisdiction of its organization. |
| (ii) | The Guarantor has power and authority (corporate or otherwise) to execute, deliver and perform, and has duly authorized, executed and delivered (except to the extent Generally Applicable Law (as defined below) is applicable to such execution and delivery), the Opinion Documents to which it is a party. |
| Page 2 of 5 |
| 18 March 2021 |
| (iii) | The execution, delivery and performance by each of the Issuer and the Guarantor of the Opinion Documents to which it is a party do not and will not: |
| (A) | except with respect to the Issuer, contravene its Memorandum of Incorporation or other organizational documents; or |
| (B) | except with respect to Generally Applicable Law, violate any law, rule or regulation applicable to it. |
| (g) | That the execution, delivery and performance by the Issuer and the Guarantor of the Opinion Documents to which it is a party do not and will not result in any conflict with or breach of any agreement or document binding on it. |
| (h) | That, except with respect to Generally Applicable Law, no authorization, approval, consent or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Issuer and the Guarantor of any Opinion Document to which it is a party or, if any such authorization, approval, consent, action, notice or filing is required, it has been duly obtained, taken, given or made and is in full force and effect. |
| (i) | That no law other than Generally Applicable Law will affect any of the conclusions stated in this opinion. |
| (j) | That insofar as any obligation is to be performed in a jurisdiction other than the State of New York or the State of Delaware, its performance would not be illegal or ineffective under the laws of that jurisdiction. |
We have not independently established the validity of the foregoing assumptions.
“Generally Applicable Law” means the federal law of the United States of America, and the law of the State of New York (including in each case the rules or regulations promulgated thereunder or pursuant thereto), that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Issuer, the Guarantor, the Opinion Documents or the transactions governed by the Opinion Documents, and, for purposes of assumption paragraphs (f) and (h) above, the Limited Liability Company Act of the State of Delaware with respect to the Issuer. Without limiting the generality of the foregoing definition of Generally Applicable Law, the term “Generally Applicable Law” does not include any law, rule or regulation that is applicable to the Issuer, the Guarantor, the Opinion Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Opinion Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.
| Page 3 of 5 |
| 18 March 2021 |
Based upon the foregoing and upon such other investigation as we have deemed necessary and subject to the qualifications set forth below, we are of the opinion that:
| 1. | The Notes have been duly executed by the Issuer, and, when authenticated by the Trustee in accordance with the Indenture and delivered and paid for as provided in the Underwriting Agreement, the Notes will be the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms and entitled to the benefits of the Indenture. |
| 2. | The Guarantees have been duly executed by the Guarantor, to the extent such execution and delivery is a matter of New York law, and, when the Notes have been authenticated by the Trustee in accordance with the Indenture and delivered and paid for as provided in the Underwriting Agreement, the Guarantees will be the legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms. |
Our opinions expressed above are subject to the following qualifications:
| (a) | Our opinions in paragraphs 1 and 2 above are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers) and (ii) possible judicial action giving effect to governmental actions or foreign laws affecting creditors’ rights. |
| (b) | Our opinions in paragraphs 1 and 2 above are also subject to the effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law). |
| (c) | We express no opinion as to any provision in any Opinion Document, insofar as any such provision (i) relates to the subject matter jurisdiction of the United States District Court for the Southern District of New York or any U.S. federal court where jurisdiction based on diversity of citizenship under 28 U.S.C. §1332 does not exist to adjudicate any controversy related to such Opinion Document or (ii) purports to grant any court exclusive jurisdiction. |
| (d) | We express no opinion with respect to the enforceability of any indemnity against any loss in converting into a specified currency the proceeds or amount of a court judgment in another currency. |
| (e) | Our opinions are limited to Generally Applicable Law, and we do not express any opinion herein concerning any other law. |
We hereby consent to the filing of this opinion as an exhibit to a report on Form 6-K, dated the date hereof, filed by the Guarantor and the Issuer and incorporated by reference into the Registration Statement and to the use of our name under the heading “Legal Matters” in the prospectus and prospectus supplement included or deemed included in the Registration Statement as of the date hereof. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
| Page 4 of 5 |
| 18 March 2021 |
This opinion letter speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter and which might affect the opinions expressed herein.
Yours faithfully
/s/ SHEARMAN & STERLING (LONDON) LLP
Shearman and Sterling LLP
| Page 5 of 5 |
Exhibit 5.2
 |
ENSafrica 35 lower Long Street Foreshore Cape Town South Africa 8001 P O Box 2293 Cape Town South Africa 8000 Docex 14 Cape Town tel +27 21 410 2500 info@ENSafrica.com |
opinion
Sasol Limited Sasol Place 50 Katherine Street Sandton 2196 SOUTH AFRICA
Sasol Financing USA LLC 12120 Wickchester Lane Houston, Texas 77079 UNITED STATES |
CvL/DR/0488319 18 March 2021 |
our ref your ref date |
Ladies and Gentlemen
ISSUE BY SASOL FINANCING USA LLC OF (i) US$650,000,000 4.375% NOTES DUE 2026 AND (ii) US$850,000,000 5.500% NOTES DUE 2031, FULLY AND UNCONDITIONALLY GUARANTEED BY SASOL LIMITED: CAPACITY AND AUTHORITY OPINION
We have acted as South African legal advisers to Sasol Limited (registration no. 1979/003231/06) (the “Guarantor”) in connection with the unconditional guarantee of the Notes issued by the Guarantor (the “Guarantee”).
| 1. | Definitions |
In this opinion (“Opinion”):
| 1.1. | “CIPC” means the Companies and Intellectual Property Commission; |
| 1.2. | “Constitutional Documents” means the documents listed in paragraph 3.3; |
| 1.3. | “Issuer” means Sasol Financing USA LLC, a Delaware limited liability company; and |
| 1.4. | “Notes” means: |
| 1.4.1. | the US$650,000,000 4.375% notes due 2026 issued by the Issuer, fully and unconditionally guaranteed by the Guarantor; and |
| 1.4.2. | the US$850,000,000 5.500% notes due 2031 issued by the Issuer, fully and unconditionally guaranteed by the Guarantor. |
2
| 2. | Scope |
| 2.1. | This Opinion is given in respect of the questions of law expressly addressed in paragraph 5 and for no other purpose. It does not extend by implication or otherwise to any other matters. No opinion is expressed as to matters of fact. |
| 2.2. | This Opinion relates only to the laws of South Africa as interpreted by South African courts at 09h00 (Johannesburg time) on the date of this Opinion. We assume no obligation to advise the addressees or any other parties to whom this Opinion may be disclosed of any changes of law or fact which may occur after that time, notwithstanding that those changes may affect the legal analysis or conclusions contained in this Opinion. |
| 2.3. | This Opinion is given on the basis that it will be construed in accordance with South African law. Anyone relying on this Opinion agrees that this Opinion and all matters (including any liability) arising in any way from it are to be governed by South African law and will be subject to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division. |
| 2.4. | Nothing in this Opinion shall be construed as tax advice. |
| 2.5. | We are legal advisers to the Guarantor and provide this Opinion on its instructions. Our responsibility to any party to whom this Opinion is disclosed in connection with this Opinion and the transactions it contemplates is strictly limited to the express terms of this Opinion. We owe you no fiduciary duty nor are we in an attorney/client relationship with you in connection with this Opinion and those transactions, even if you are a past or present client of this firm. Any special arrangements or retainers between us do not apply in connection with this Opinion and those transactions. |
| 3. | Documents |
For purposes of providing the opinions set out in this Opinion, we have examined and rely on:
| 3.1. | an executed copy of the Guarantee; |
| 3.2. | copies of: |
| 3.2.1. | the automatic shelf registration statement on Form F-3 (registration no. 333-227263) filed by the Issuer and the Guarantor under the US Securities Act, 1933 (the “Act”) with the Securities and Exchange Commission (the “Commission”) on 10 September 2018, as amended by the post-effective amendment filed on 24 August 2020 (that registration statement, including the information deemed to be part of that statement at the time of effectiveness pursuant to Rule 430B under the Act and the documents incorporated by reference into that statement, the “Registration Statement”); |
3
| 3.2.2. | the base prospectus dated 10 September 2018 which forms part of the Registration Statement with respect to the offering from time to time of the securities described in that prospectus and was included as part of the Registration Statement at the time it became effective on 10 September 2018 (the “Base Prospectus”); |
| 3.2.3. | the preliminary prospectus supplement relating to the Notes dated 8 March 2021 (the “Preliminary Prospectus Supplement” and the Base Prospectus, as amended and supplemented by the Preliminary Prospectus Supplement, in the form first filed by the Issuer and the Guarantor pursuant to Rule 424(b) under the Act with the Commission, including the documents incorporated by reference into that prospectus, the “Preliminary Prospectus”); |
| 3.2.4. | the free writing prospectus of the Issuer relating to the Notes dated 11 March 2021 in the form first filed by the Issuer and the Guarantor pursuant to Rule 433 under the Act with the Commission; |
| 3.2.5. | the final prospectus supplement relating to the Notes dated 11 March 2021 (the “Final Prospectus Supplement” and the Base Prospectus as amended and supplemented by the Final Prospectus Supplement, in the form first filed by the Issuer and the Guarantor pursuant to Rule 424(b) under the Act with the Commission, including the documents incorporated by reference into that prospectus, the “Prospectus”); and |
| 3.2.6. | the form of indenture included as Exhibit 4.1 to the Registration Statement; |
| 3.3. | copies of the following constitutional documents of the Guarantor: |
| 3.3.1. | the Guarantor’s certificate of incorporation dated 26 June 1979; |
| 3.3.2. | the Guarantor’s certificate to commence business dated 26 June 1979; and |
| 3.3.3. | the Guarantor’s memorandum of incorporation in the form amended on 27 November 2019; |
| 3.4. | a copy of the Guarantor’s corporate certificate dated 18 March 2021 certifying, among other things, that the copies of its Constitutional Documents and resolutions delivered to us for purposes of this Opinion are complete, true, correct and in full force and effect; |
4
| 3.5. | a copy of an extract of the minutes of the meeting of the board of directors of the Guarantor held on 19 February 2021, dated 4 March 2021; |
| 3.6. | a copy of an extract of the minutes of the annual general meeting of the shareholders of the Guarantor held on 20 November 2020 dated 18 February 2021; |
| 3.7. | a copy of the exchange control application (application number 455/2021-02-22) dated 22 February 2021 by Absa Bank Limited (as authorised dealer) on behalf of the Guarantor (as applicant) to the Financial Surveillance Department of the South African Reserve Bank (“FinSurv”); and |
| 3.8. | a copy of the exchange control approval (approval number 2021-6235) of FinSurv dated 4 March 2021. |
| 4. | Searches |
| 4.1. | We have relied on a company search conducted by us on 18 March 2021 of the electronic records maintained by the CIPC in respect of the Guarantor. |
| 4.2. | We have assumed that the results of the search of the CIPC’s records fully and accurately reflect the information provided by the Guarantor to the CIPC. We have not examined any documents that the Guarantor may have filed with the CIPC other than where we have expressly stated otherwise in this Opinion. The information produced by the search may be not correct, complete or up to date. |
| 4.3. | We have not conducted any other searches or investigations for purposes of this Opinion. |
| 5. | Opinion |
Our opinion is as follows, subject to the assumptions in Schedule 1 and the qualifications in Schedule 2:
| 5.1. | The Guarantor is duly incorporated as a company and exists under the laws in force in South Africa. |
| 5.2. | The Guarantor has the legal capacity, corporate power and authority to enter into and to perform its obligations under the Guarantee. The Guarantor has taken all corporate action for it to enter into and perform its obligations under the Guarantee. |
| 5.3. | The Guarantor’s signatories have been duly authorised by it and are able lawfully to execute the Guarantee on its behalf. |
| 5.4. | The Guarantee has been duly executed by the Guarantor in accordance with the requirements of South African law. |
5
| 5.5. | The entry by the Guarantor into and the performance by it of its obligations under the Guarantee does not and will not contravene: |
| 5.5.1. | any law or regulation of South Africa applicable to companies generally which is binding on it; or |
| 5.5.2. | its Constitutional Documents. |
| 6. | Benefit |
| 6.1. | We are providing this Opinion to you in connection with the matters described in paragraph 2.1 and solely for use in connection with the issuance of the Notes and the Guarantee. It is not to be used or relied on for any other purpose. |
| 6.2. | This Opinion is given strictly on the basis that (and it is recorded that, by virtue of having received this Opinion, each addressee and each other party to whom the Opinion is disclosed, has expressly agreed that): |
| 6.2.1. | ENSafrica’s total aggregate liability for any claim whatsoever arising as a result of the opinions set out forth in this Opinion and/or the reliance on those opinions by any party shall be limited to and shall not exceed the amount recoverable by way of recourse against ENSafrica, its assets and its professional indemnity cover; and |
| 6.2.2. | as a stipulation for the benefit of each director and shareholder from time to time of ENSafrica, there shall be no recourse and no claims will be capable of being brought or instituted against any director or shareholder of ENSafrica in their personal capacity. |
| 6.3. | Nothing contained in this Opinion shall be construed as: |
| 6.3.1. | limiting in any way our rights to contest, defend or oppose any claim brought by you against us; or |
| 6.3.2. | reducing or limiting the rights of our insurer in terms of our professional indemnity insurance (including without limitation any rights of subrogation or similar rights of our insurer); or |
| 6.3.3. | requiring us to act in a manner which may void, limit or reduce our professional indemnity cover or which may otherwise confer on our insurer a right to repudiate the claim made by us under our professional indemnity insurance in whole or in part. |
6
| 7. | Consent |
| 7.1. | We consent to: |
| 7.1.1. | the filing of this Opinion with the Commission as an exhibit to a report on Form 6-K, dated the date of this Opinion, filed by the Guarantor and the Issuer and incorporated by reference into the Registration Statement; and |
| 7.1.2. | the references to Edward Nathan Sonnenbergs Inc. or ENSafrica in: |
| 7.1.2.1. | the sections of the Preliminary Prospectus Supplement headed “Enforcement of Certain Civil Liabilities” and “Legal Matters”; and |
| 7.1.2.2. | the sections of the Final Prospectus Supplement headed “Enforcement of Certain Civil Liabilities” and “Legal Matters”. |
| 7.2. | In giving this consent, we do not admit or concede that the consent is within the category of persons whose consent is required under section 7 of the Act or the rules or regulations of the Commission promulgated under the Act. |
| 7.3. | We are a privately incorporated company of lawyers admitted to practice in South Africa. Our lawyers are for purposes of the consent in this paragraph 7 and this Opinion, not admitted to practice in any jurisdictions other than South Africa. We do not hold ourselves out as being experts on the law of any jurisdiction other than the laws of South Africa. We do not express any opinion on the law of any jurisdiction other than the laws of South Africa. |
Yours faithfully
EDWARD NATHAN SONNENBERGS INC
Per:
/s/ Clinton Van Loggerenberg
CLINTON VAN LOGGERENBERG
7
| Schedule 1 |
Assumptions
| 1. | All dates and signatures (including electronic signatures) on all documents submitted to us, whether original or copies, are genuine. |
| 2. | All documents submitted to us are authentic and complete, and have been duly submitted, where applicable, to the appropriate regulatory authority. |
| 3. | If we have reviewed a copy (including an electronic copy) of a document, it is a correct and complete copy of the original. |
| 4. | If we have reviewed only a draft of a document, it has been or will be executed in the form of that draft. |
| 5. | If we have reviewed a conformed copy of a document, each party actually executed the document in that form. |
| 6. | No documents reviewed for purposes of this Opinion (including the Guarantee) have been amended or superseded between the time of their dating or certification (as applicable) and the date of this Opinion. The completeness and accuracy of a document will not be affected by the omission from that document of any page or part or the substitution of any page or part of that document. |
| 7. | The Constitutional Documents, each of the resolutions and each of the authorisations listed in paragraph 3 of this Opinion remain in full force and effect. FinSurv has not communicated any condition, change or request to the Guarantor that was not recorded in the documents listed in paragraphs 3.7 and 3.8. |
| 8. | There has not been any change in the status or condition of the Guarantor as disclosed in the search referred to in paragraph 4 of this Opinion. |
| 9. | The Guarantor entered into the Guarantee as principal, and not as trustee or agent or in any other capacity. |
| 10. | None of the parties to the Guarantee has taken any action, nor are there any agreements or arrangements in existence between those parties, which would affect, amend or vary the terms of the transactions as set out in the Guarantee. |
| 11. | None of the parties to the Guarantee is precluded by any agreement to which it is a party from entering into or performing its obligations under the Guarantee. |
8
| 12. | The entry by the Guarantor into and performance by it of its obligations under the Guarantee will not result in it exceeding any borrowing, indemnifying, guaranteeing or similar limits applicable to it which are not apparent from the documents reviewed for purposes of this Opinion. |
| 13. | The Guarantor was solvent and was not “financially distressed” (as defined in the Companies Act, 2008 (the “Companies Act”)) when and immediately after it entered into the Guarantee. The Guarantor will not become insolvent or “financially distressed” as a result of performing its obligations under the Guarantee. |
| 14. | None of the parties to the Guarantee has taken any corporate action or other steps in respect of, and no legal proceedings have been started or threatened for, the liquidation, winding-up, business rescue, appointment of a business rescue practitioner or similar proceedings of or in respect of those parties or any of their assets. |
| 15. |
| 15.1. | The Guarantor has complied with any internal procedures and rules in connection with its entry into and the performance of its obligations under the Guarantee. |
| 15.2. | There are no defects of whatsoever nature in the appointment of any of the directors of the Guarantor and those directors have accordingly been duly appointed. |
| 15.3. | None of the directors of the Guarantor is an ineligible or disqualified person. |
| 15.4. | All relevant interests (including personal financial interests as defined in section 1 of the Companies Act) of directors and related persons (each as defined in section 75(1) of the Companies Act) were disclosed. |
| 15.5. | Board meetings, shareholder meetings and other meetings at which any resolutions, authorisations or mandates were passed or adopted were duly convened, quorate and held. |
| 15.6. | Any notices of meetings or matters to be decided on other than at a meeting were correctly given to all persons required to receive those notices. |
| 16. | Each person who executed the Guarantee on behalf of the Guarantor: |
| 16.1. | is actually a person named in the Guarantor’s board resolution; |
| 16.2. | actually holds the position they purport to hold; |
| 16.3. | actually signs in the capacity in which they purport to sign; and |
| 16.4. | where execution is by electronic signature, actually applied his/her electronic signature to the Guarantee. |
9
| 17. | No person has engaged or will engage in unconscionable, misleading or deceptive conduct (by act or omission) that might make any part of this Opinion incorrect. No person has engaged or will engage in any other conduct, and there are no facts or circumstances not evident from the face of the documents listed in paragraph 3 of this Opinion, that might make any part of this Opinion incorrect. None of the parties to the Guarantee is on actual notice of any prohibition or restriction on any other party’s ability to enter into or perform under the Guarantee and no party has deliberately refrained from making inquiries in circumstances where it had any suspicion that such a prohibition or restriction may be applicable. None of the parties to the Guarantee has entered into it primarily or substantially to defeat or reduce the effect of a prohibition or requirement established by or in terms of an unalterable provision of the Companies Act. |
| 18. | The Guarantee has been entered into: |
| 18.1. | in good faith, for bona fide commercial reasons and on arms’ length terms; and |
| 18.2. | without the intention of preferring one creditor above another or to defraud creditors. |
| 19. | All conditions precedent (other than delivery of this Opinion) have been timeously fulfilled or waived. |
| 20. | The accuracy, adequacy, completeness and correctness of: |
| 20.1. | all information supplied to us by the Guarantor (including by its directors, officers, employees, representatives or agents); |
| 20.2. | any facts in the documents reviewed for purposes of this Opinion (including the Guarantee); and |
| 20.3. | any representations and warranties in the documents reviewed for purposes of this Opinion (including the Guarantee) other than where those representations and warranties directly address questions of law on which we expressly opine in this Opinion. |
| 21. | No foreign law affects the conclusions set out in this Opinion. |
| 22. | Neither the Guarantee nor any transaction effected by it is primarily or substantially intended to defeat or reduce the effect of a prohibition or requirement established by or in terms of an unalterable provision of the Companies Act. |
We have not taken any steps to investigate, nor do we express any opinion on, whether the assumptions in this Opinion are correct, except as expressly stated in the Opinion. However, without making any inquiries beyond the steps stated in this Opinion, the people primarily responsible for the preparation of this Opinion (being Clinton van Loggerenberg and Dean Rose) are not actually aware that any of the assumptions are incorrect or misleading.
10
| Schedule 2 |
Qualifications
| 1. | Accuracy of information in the Registration Statement, Preliminary Prospectus and Prospectus |
The Registration Statement, the Preliminary Prospectus and the Prospectus have been prepared by the Issuer who has accepted responsibility for the information contained in those documents. Other than where we have expressly stated otherwise in this Opinion, we have not investigated or verified the truth or accuracy of any information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, nor have we been responsible for ensuring that no material information has been omitted from those documents.