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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF
THE SECURITIES EXCHANGE ACT OF 1934
Report on Form 6-K dated September 14, 2010
This Report on Form 6-K shall be incorporated by reference in
the automatic shelf registration statement on Form F-3 of
AngloGold Ashanti Limited, AngloGold Ashanti Holdings plc and
AngloGold Ashanti Holdings Finance plc (File no. 333-161634) and our
Registration Statements on Form S-8 (File Nos. 333-10990 and 333-113789) as amended,
to the extent not superseded by documents or reports subsequently filed by us under the
Securities Act of 1933 or the Securities Exchange Act of 1934, in each case as amended
Commission File Number 1-14846
AngloGold Ashanti Limited
76 Jeppe Street
Newtown, 2001
(P.O. Box 62117, Marshalltown, 2107)
South Africa
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of
Form 20-F or Form 40-F.
Form 20-F þ
Form 40-F o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(1):
Yes o No þ
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(7):
Yes o No þ
Indicate by check mark whether the registrant by furnishing the information contained in
this Form is also thereby furnishing the
information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.
Yes o No þ
Enclosure: |
|
Form of underwriting agreement between AngloGold Ashanti Limited and the underwriters
to be named therein. |
ANGLOGOLD ASHANTI LIMITED
Ordinary Shares, par value 25 ZAR cents
Underwriting Agreement
[], 2010
[]
[]
As the representatives of the several underwriters named in Schedule I hereto (the
Representatives)
Ladies and Gentlemen:
AngloGold Ashanti Limited, a public company with limited liability incorporated under the laws
of the Republic of South Africa (the Company), proposes, subject to the terms and conditions
stated herein, to allot and issue to subscribers procured by the several underwriters named in
Schedule I hereto (the Underwriters) for whom you are acting as Representatives or, failing that,
to the several Underwriters an aggregate of [] ordinary shares par value 25 ZAR cents (such
number of ordinary shares, the Firm Shares) of the Company. In addition, solely for the purpose
of covering over-allotments, the Company grants hereunder to the Underwriters the option to
purchase from the Company up to an additional [] ordinary shares par value 25 ZAR cents
(such number of ordinary shares, the Additional Shares). The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the Shares.
The Underwriters may elect to direct delivery of the Shares, or take delivery of the Shares
themselves, in the form of ordinary shares or in the form of American Depositary Shares (ADSs).
The ADSs are to be issued pursuant to an amended and restated deposit agreement, dated as of June
3, 2008, among the Company, The Bank of New York Mellon, as depositary (the Depositary), and
holders from time to time of the American Depositary Receipts (the ADRs) issued by the Depositary
and evidencing the ADSs (as amended and restated from time to time, the Deposit Agreement). Each
ADS will initially represent the right to receive one Share deposited pursuant to the Deposit
Agreement.
Except as used in Sections 2, 4 and 12 herein, and except as the context may otherwise
require, references hereinafter to the Shares shall include all of the
Shares, whether in the form of ordinary shares or ADSs, which may be allotted and issued
pursuant to this Agreement.
Concurrently with the transactions contemplated by this Agreement, AngloGold Ashanti Holdings
Finance plc, as issuer, and the Company, as guarantor, propose to enter into an underwriting
agreement with [] and [] as representatives of the several underwriters named therein
to issue and sell U.S.$[] aggregate principal amount (and up to an additional U.S.$[]
aggregate principal amount pursuant to the over-allotment option granted to the several
underwriters named therein) of AngloGold Ashanti Holdings Finance plcs Mandatory Convertible
Subordinated Bonds due 2013 (the Mandatory Convertible Bonds), which Mandatory Convertible Bonds
will be unconditionally and irrevocably guaranteed by the Company and will be mandatorily
convertible into ADSs (or, in certain circumstances, the cash value thereof) (the Mandatory
Convertible Bond Offering). The closing of the sale of the Shares pursuant to this Agreement is
not conditional on the closing of the Mandatory Convertible Bond Offering.
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(i) An automatic shelf registration statement as defined under Rule 405
under the Securities Act of 1933, as amended, (the Act) on Form F-3 (File No.
333-161634), as amended by post-effective amendment No. 1 thereto, in respect of
the Shares 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 Companys
knowledge no proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company (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
Shares (other than any preliminary prospectus in respect of the Mandatory
Convertible Bond Offering) filed with
2
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 Shares (other
than any prospectus supplement in respect of the Mandatory Convertible Bond
Offering) that is filed with the Commission and deemed by virtue of Rule 430B to
be part of such registration statement, each as amended at the time such part of
the registration statement became effective, are hereinafter collectively called
the Registration Statement; the Basic Prospectus, as amended and supplemented
immediately prior to the Applicable Time (as defined in Section 1(iii) hereof),
is hereinafter called the Pricing Prospectus; the form of the final prospectus
relating to the Shares filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(i) hereof is hereinafter called the
Prospectus; any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to
Item 6 of Form F-3 under the Act, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Shares 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 Company 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 Shares 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
3
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Prospectus, as
of its date, did not or will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in
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 by an Underwriter through the
representatives expressly for use therein;
(iii) For the
purposes of this Agreement, the Applicable Time is [ : ] [a.m./p.m.], New York City time, on the date of this
Agreement; the Pricing Prospectus as supplemented by those Issuer Free Writing
Prospectuses and other documents listed in Schedule II(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 II(a) or Schedule II(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 by an Underwriter through the
Representatives expressly for use therein;
(iv) The documents incorporated by reference in the Pricing Prospectus and
the Prospectus, when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, any further documents so filed and incorporated by
reference in the Prospectus or any further
4
amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; provided that no such documents were filed with the Commission since
the Commissions close of business on the business day (which term shall mean
for this subsection (iv) any day when the Commissions office in
Washington D.C. is open for business) immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set forth on
Schedule II(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 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 any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use therein;
(vi) Two registration statements on Form F-6 (File Nos. 333-133049, as
amended by post-effective amendment No. 1 thereto, and 333-159248) in respect of
the ADSs have been filed with the Commission; each registration statement, as
amended from time to time, excluding exhibits, in the form heretofore delivered
to the Representatives has been declared effective by the Commission in such
form; no stop order suspending the effectiveness of each such registration
statement has been issued and to the Companys knowledge, no proceeding for that
purpose has been initiated or threatened by the Commission (the various parts of
each registration statement, including all exhibits thereto, each as amended at
the time such part of the registration statement became effective, being
hereinafter called a ADS Registration Statement); and each ADS Registration
Statement when it became effective conformed, and any further amendments thereto
5
will conform, in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder, and did not, as of the
applicable effective date, 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;
(vii) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the
Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, in each case
materially adverse to the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Pricing Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, there has not been any material adverse
change in the capital stock of the Company or any material increase in the long
term debt of the Company 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 Company and its
subsidiaries taken as a whole, in each case, otherwise than as set forth or
contemplated in the Pricing Prospectus;
(viii) The Company 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 Company and
its subsidiaries are held by them under valid, subsisting and enforceable leases
except, in each case, as described in the Pricing Prospectus or as would not,
individually or in the aggregate, have a material adverse effect on the business
affairs, management, financial position, shareholders equity or results of
operations of the Company and its subsidiaries taken as a whole (a Material
Adverse Effect);
(ix) The Company is duly incorporated as a public company with limited
liability, and validly existing under the laws of the Republic of South Africa,
is not in bankruptcy, liquidation, receivership or under judicial management
(and no order or resolution therefor has been presented and no notice of
6
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;
(x) The Company has an authorized and issued share capital as set forth in
the Pricing Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and not
subject to further calls or assessment by the Company and conform in all
material respects to the description thereof contained in the Pricing
Prospectus; all of the issued shares of capital stock of each subsidiary of
the Company listed in Schedule III have been duly and validly authorized,
allotted and issued, are fully paid and not subject to further calls or
assessment by the Company and (except for directors qualifying shares and
except as set forth in the Pricing Prospectus) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or claims;
all of the issued ordinary shares of the Company have been duly listed and
admitted for trading on the JSE Limited, the New York Stock Exchange (in the
form of ADSs), the London Stock Exchange, Euronext Paris and on the Australian
Stock Exchange (in the form of Clearing House Electronic Subregister System
(CHESS) Depositary Shares represented by CHESS Depositary Interests), the
Ghana Stock Exchange (in the form of ordinary shares and Ghanaian Depositary
Shares) and are quoted on Euronext Brussels (in the form of International
Depositary Receipts); the holders of issued shares of the Company are not
entitled to preemptive or similar rights to acquire the Shares or the ADSs which
have not been complied with, extinguished or waived; except as set forth in the
Pricing Prospectus, there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any share capital
or other equity interest in the Company, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any share
capital of the Company, any such convertible or exchangeable securities or any
such rights, warrants or options, or obligations of the Company to issue, any
class of share capital of the Company and there are no restrictions on
subsequent transfers of the Shares or ADSs except as described in the Pricing
Prospectus or under the securities laws of countries other than the United
States (except those restrictions imposed on affiliates of the Company by the
Act and rules promulgated thereunder) and the Republic of South Africa;
7
(xi) The unissued Shares to be allotted and issued by the Company to
subscribers procured by the Underwriter or, failing that, to the Underwriter
hereunder have been duly and validly authorized by the Company and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and not subject to further calls or assessment by
the Company and will conform, in all material respects, to the description of
the ordinary shares of the Company contained in the Pricing Prospectus and, the
issuance of the Shares to be allotted and issued by the Company is not subject
to any preemptive or similar rights which have not been complied with,
extinguished or waived;
(xii) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and legally binding agreement
of the Company, enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors rights and to general
equity principles; upon issuance by the Depositary of ADRs evidencing ADSs, the
deposit of Shares in respect thereof in accordance with the provisions of the
Deposit Agreement, such ADRs will be duly and validly issued and the persons in
whose names the ADRs are registered will be entitled to the rights specified
therein and in the Deposit Agreement; and the Deposit Agreement and the ADRs
conform in all material respects to the descriptions thereof contained in the
Pricing Prospectus;
(xiii) 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 (hereinafter
referred to as Company Governmental Authorizations) required to be obtained by
the Company for each of the deposit of Shares to be allotted and issued by the
Company only, and the issuance of ADSs in respect thereof and for the execution,
delivery and performance by the Company of this Agreement 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 Companys offering of Shares contemplated
herein;
(xiv) All expressions of opinion, intention or expectation in the Pricing
Prospectus, including, without limitation, the estimates and projections
included under the
8
caption Prospectus Supplement Summary, on the part of the
Company, 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;
(xv) The allotment and issue of the Shares and the deposit of the Shares
being deposited by the Company with the Depository against issuance of the ADSs,
the execution and delivery of this Agreement and the compliance by the Company
with all of the provisions of, and performance of its obligations
under, this Agreement and the Deposit Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, except as
would not both (i) have a Material Adverse Effect and (ii) adversely affect the
consummation of the transactions contemplated herein to a material extent, nor
will such action by the Company result in any violation of the provisions of the
Memorandum and Articles of Association or Bylaws of the Company or any statute
or any order, rule or regulation of any Governmental Agency having jurisdiction
over the Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
Governmental Agency is required for the allotment and issue by the Company of
the Shares or the consummation by the Company of the transactions contemplated
by this Agreement except (A) the registration under the Act of the Shares, (B)
such Company Governmental Authorizations as have been duly obtained or made and
are in full force and effect and copies of which have been furnished to you and
(C) such Company 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;
(xvi) Neither the Company nor any of its subsidiaries is in violation of
its Memorandum and Articles of Association or Bylaws or, except as would not,
individually or in the aggregate, have a Material Adverse Effect, in default in
the performance or
9
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;
(xvii) 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 the
Underwriter, if its net income is generally subject to tax by the Republic of
South Africa or if it 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 subscribers of the
Shares procured by the Underwriter or the Underwriter to the
Republic of South Africa or any political subdivision or taxing authority
thereof or therein in connection with (A) the deposit by the Company of Shares
with the Depositary against issuance of ADSs, (B) for the allotment, issuance
and delivery by the Company of Shares or ADSs to subscribers procured by the
Underwriter or to or for the account of the Underwriter or (C) the performance
by the Company of its obligations under this Agreement, it being understood that
any subsequent transfer of Shares by subscribers procured by the Underwriter, or
by the Underwriter, may cause such taxes to be payable;
(xviii) Neither the Company nor any of its subsidiaries has taken, directly
or indirectly, any action which was designed to or which has constituted or
which would reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company, in each case in
violation of applicable laws, to facilitate the sale or resale of the Shares or
ADSs;
(xix) The statements set forth or incorporated by reference in the Pricing
Prospectus and the Prospectus under the captions Description of Share Capital,
Description of ADSs and Taxation insofar as they purport to constitute a
summary of the matters set forth therein, fairly summarize these matters in all
material respects;
(xx) Other than as set forth in the Pricing Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject
10
which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best of the Companys knowledge, no such proceedings
are threatened by any Governmental Agency or by any other person;
(xxi) The Company is not and, after giving effect to the offering,
allotment and issue of the Shares and the application of the proceeds thereof,
will not be an investment company, as such term is defined in the Investment
Company Act of 1940, as amended;
(xxii) (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
any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the Shares in reliance on
the exemption of Rule 163 under the Act, the Company 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 or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under
the Act) of the Shares, the Company was not an ineligible issuer as defined in
Rule 405 under the Act;
(xxiii) This Agreement has been duly authorized, executed and delivered by
the Company;
(xxiv) Each of (i) the audited financial statements included or
incorporated by reference in the Registration Statement and the Pricing
Prospectus, and (ii) the unaudited interim financial statements as at June 30,
2010 and December 31, 2009 and for the six-month periods ended June 30, 2010 and
June 30, 2009 included or incorporated by reference in the Registration
Statement and the Pricing Prospectus, together with their respective related
notes and schedules, fairly present in all material respects the consolidated
financial position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the Company and its
subsidiaries for the periods specified and have been prepared in compliance with
the requirements of the Act and in
11
conformity with generally accepted accounting
principles as applied in the United States, except as set forth in the Pricing
Prospectus, applied on a consistent basis during the periods presented; the
other financial and statistical data set forth in the Registration Statement and
the Pricing Prospectus are accurately presented and prepared on a basis
materially consistent with the financial statements and books and records of the
Company; and the Company and its subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off-balance
sheet obligations), not disclosed in the Registration Statement and the Pricing
Prospectus and that are required to be disclosed therein;
(xxv) The consolidated pro forma financial data (the Pro Forma Financial
Data), for the year ended December 31, 2009 and the related notes, related to
the sale of the Companys 33.33% interest in the Boddington joint venture, have
been prepared in accordance with the applicable requirements of the Act and of
the Exchange Act and the rules and regulations
thereunder (including, without limitation, Regulation S-X), have been
properly compiled on the basis of the assumptions stated therein and the
assumptions used in the preparation of the Pro Forma Financial Data are
reasonable;
(xxvi) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with managements general or specific authorizations; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles as
applied in the United States, and to maintain asset accountability; (C) access
to assets is permitted only in accordance with managements general or specific
authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(xxvii) The Company and each of its subsidiaries have all licenses,
certificates, permits and other authorizations (including, without limitation,
all mineral rights, mining authorizations and mining leases) issued by the
appropriate Governmental Agencies (and have made all required declarations and
filings with such Governmental Agencies), that are legally required for the
ownership, license or lease of their respective properties or the conduct of
their respective businesses as described in the Pricing
12
Prospectus, except as
described in the Pricing Prospectus or where the failure to possess the same
would not, individually or in the aggregate, have a Material Adverse Effect;
except as described in the Pricing Prospectus or as would not, individually or
in the aggregate, have a Material Adverse Effect, neither the Company 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
Company 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;
(xxviii) Ernst & Young, Inc., who have certified the consolidated financial
statements of the Company and its subsidiaries as of and for each of the years
ended December 31, 2007, 2008 and 2009, were at the times of certifying such
financial statements, independent registered public accountants as required by
the Act and the rules and regulations of the Commission thereunder;
(xxix) In each case except as described in the Pricing Prospectus, the
Company 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 Company, 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 Company and
its subsidiaries have not received any notice of any claim of infringement or
conflict with any such rights of others;
(xxx) No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the Company, is
threatened, except as described in the Pricing Prospectus or as would not have a
Material Adverse Effect;
(xxxi) The Company and its subsidiaries (A) are in compliance with any and
all applicable laws (including the common law), rules, regulations, ordinances,
decrees, judgments,
13
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
Company or its subsidiaries engage in mining or other business activities
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, Environmental Laws); (B) have received and are in compliance
with all permits, licenses or other approvals issued by Governmental Agencies
and required of them under applicable Environmental Laws to conduct their
respective businesses; and (C) have not received any notice of any actual or
potential liability under, or investigation relating to, any Environmental Law;
except, in each case, as described in the Pricing Prospectus or as would not,
individually or in the aggregate, have a Material Adverse Effect;
(xxxii) Neither the Company nor any of its subsidiaries or affiliates, nor
any of their respective directors, officers or employees, nor to the Companys
knowledge, any agent or representative of the Company or any of their respective
subsidiaries or affiliates has violated (i) any provision of the U.S. Foreign
Corrupt Practices Act of 1977 and the rules and
regulations promulgated thereunder, (ii) similar anti-corruptions laws of
all other applicable jurisdictions to which they may be subject, including those
relating to political donations and money laundering, and (iii) the Company and
its 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; and
(xxxiii) Neither the Company nor any affiliate, director, officer, agent or
employee of the Company is currently the subject of any sanctions administered
by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(OFAC) or equivalent European Union measure; and the Company will not,
directly or indirectly, use any proceeds of the offering of the Shares or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the
activities of any person or entity that, at the time of such financing, is the
subject of any sanctions administered by OFAC (including persons listed on the
Specially Designated Nationals List) or any equivalent European Union measure;
14
2. Subject to the terms and conditions herein set forth, the Company agrees to allot and issue
to subscribers procured by the several Underwriters or, failing that, to each of the Underwriters,
and each of the Underwriters agrees to procure subscribers for or, failing that, to subscribe, or
cause one of its affiliates (within the meaning in Rule 405 under the Act) to subscribe, from the
Company, at a subscription price per Firm Share of South African rand [] and per ADS of
U.S.$[] (to the extent that the Representatives make, or are deemed to make, the election to
direct delivery or take delivery of the Firm Shares in the form of ADSs pursuant to Section 4) the
respective number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) as
set forth opposite the name of such Underwriter in Schedule I hereto.
In addition, the Company hereby grants to the several Underwriters the option (the
Over-Allotment Option) to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriters, severally and not jointly,
shall have the right to procure purchasers for or, failing that, purchase at their election up to
[] Additional Shares, from the Company, ratably in accordance with the number of Firm Shares
to be purchased by each of them, all or a portion of the Additional Shares as may be necessary to
cover over-allotments made in connection with the offering of the Firm Shares, at a subscription
price per Additional Share of South African rand [] and per ADS of U.S.$[] (to the
extent that the Representatives make, or are deemed to make, the election to direct delivery or
take delivery of the Additional Shares in the form of ADSs pursuant to Section 4). The
Over-Allotment Option
may be exercised by the Representatives on behalf of the several Underwriters at any time and
from time to time on or before the thirtieth day following the date of the Prospectus Supplement by
written notice to the Company. Such notice shall set forth the number of Additional Shares as to
which the Over-Allotment Option is being exercised and the date and time when the Additional Shares
are to be delivered (any such date and time being herein referred to as an Additional Time of
Delivery); provided, however, that no Additional Time of Delivery shall be earlier than the Time
of Delivery nor earlier than the fifth business day after the date on which the Over-Allotment
Option shall have been exercised nor later than the tenth business day after the date on which the
Over-Allotment Option shall have been exercised unless otherwise agreed between the Company and the
Representatives. The number of Additional Shares to be allotted and issued to subscribers procured
by each Underwriter or, failing that, to each of the Underwriters, shall be the number of
Additional Shares (to be adjusted by you so as to eliminate fractional shares) which bears the same
proportion to the aggregate number of Additional Shares being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule I hereto bears to the aggregate
number of Firm Shares, subject to adjustment in accordance with Section 10 hereof.
15
As compensation to the Underwriters for their commitments hereunder, the Company at the Time
of Delivery (as defined below) and any Time of Delivery will pay to the Representatives, for the
accounts of the several Underwriters, (a) an amount equal to South African rand [] per Share
for the Shares to be delivered in the form of ordinary shares by the Company hereunder, as the case
may be, at the Time of Delivery or Additional Time of Delivery, as the case may be, and (b) an
amount equal to U.S.$[] per ADS for Shares to be delivered in the form of ADSs by the
Company hereunder, as the case may be, at the Time of Delivery or any Additional Time of Delivery,
as the case may be. The Representatives may accept payment of the underwriting commission by
offsetting the amount thereof against payment of the amount payable pursuant to Section 4 hereof.
3. It is understood that the several Underwriters propose to offer the Shares for sale, in
each instance upon the terms and conditions set forth in the Prospectus.
4. (a) With respect to all or a portion of the Shares to be allotted and issued hereunder at
the Time of Delivery or any Additional Time of Delivery, as the case may be, the Representatives,
on behalf of the several Underwriters, may elect to have ADSs delivered (to either or both of
subscribers procured by the Underwriters or the Underwriters) and paid for hereunder in lieu of,
and in satisfaction of, the Companys obligation to issue Shares to subscribers procured by the
Underwriters or the several Underwriters, as applicable, and the several Underwriters obligation
to procure subscribers for or, failing that, to subscribe Firm Shares or any Additional Shares, as
the case may be. Written notice of such election shall be given by the Representatives to the
Company at least four
Business Days prior to the Time of Delivery or any Additional Time of Delivery, as the case
may be (a Notification Time). The number of Shares to be subscribed by subscribers procured by
the Underwriters or, failing that, by the Underwriters as a result of the making of such election
shall be adjusted by the Representatives so as to eliminate any fractional ADSs and the
subscription price for ADSs so delivered as a result of making such election shall be the
subscription price as set forth in Section 2 hereof.
(b) (i) The Shares to be delivered to subscribers procured by the Underwriters or each
Underwriter hereunder, as the case may be, in the form of Shares shall be delivered by or on
behalf of the Company through the facilities of Strate Limited, licensed as a central
securities depositary in terms of the South African Securities Services Act of 2004 No. 36
(Strate) to the Representatives for the account of such subscribers or Underwriters, as
the case may be, in such authorized denominations and registered in such names as the
Underwriter may request by written notice to the Company on or prior to the relevant
Notification Time.
16
(ii) If the election has been made in accordance with subsection (a) above,
the ADSs to be delivered to subscribers procured by the Underwriters or each
Underwriter hereunder, as the case may be, shall be delivered by or on behalf of
the Company through the facilities of The Depository Trust Company to the
Representatives for the account of such subscribers or Underwriters, as the case
may be, in such authorized denominations and registered in such names as the
Representatives may request by written notice to the Company on or prior to the
relevant Notification Time.
(c) (i) With respect to Shares being delivered in the form of Shares, such Shares shall
be delivered against payment by, through or on behalf of such Underwriter of the
subscription price therefor through the facilities of Strate, such details of the Company
necessary to make such a transfer to be provided by the Company to the Representatives at
least five Business Days in advance of the Time of Delivery or any Additional Time of
Delivery, as the case may be.
(ii) With respect to Shares being delivered in the form of ADSs, such ADSs
shall be delivered against payment by, through or on behalf of such Underwriter
of the subscription price therefor by wire transfer of Federal (same-day) funds
to the respective account specified by the Company to the Representatives at
least two Business Days in advance of the Time of Delivery or any Additional
Time of Delivery, as the case may be;
(iii) Payment for the Firm Shares shall be made to the Company by, (A) in
the case of the Firm Shares to be delivered in the form of ordinary shares,
through the facilities of Strate in South African rand and (B) in the case of
Firm Shares to be delivered in the form of ADSs, by wire transfer in United
States dollars of Federal (same day) or other immediately available funds in New
York, in each case against delivery of such Firm Shares for the respective
accounts of the several Underwriters by []:00 a.m., New York City time,
on [], 2010 or such other time and date as the Representatives and the
Company may mutually agree upon in writing (including email). Such time and
date for delivery of the Shares is herein called the Time of Delivery.
(iv) Payment for the Additional Shares (whether in the form of ordinary
shares or ADSs) shall be made at the Additional Time of Delivery in the same
manner and at the same office and time of day as the payment for the Firm
Shares.
17
(d) It is understood and agreed by the parties hereto that no delivery or transfer of
Shares or ADSs to be allotted and issued hereunder at the Time of Delivery or any Additional
Time of Delivery, as the case may be, shall be effective until and unless payment therefor
has been made pursuant hereto and the Company shall have furnished or caused to be furnished
to the Representatives, on behalf of the Underwriters, at the Time of Delivery or any
Additional Time of Delivery, as the case may be, certificates and other evidence reasonably
satisfactory to the Representatives of the execution in favor of subscribers procured by the
Underwriters or, failing that, the Underwriters, of the book-entry transfer of Shares,
whether by delivery of Shares in the Republic of South Africa through Strate or delivery of
ADSs through the facilities of DTC.
(e) The Shares or ADSs shall be delivered to the Representatives at the Time of
Delivery or any Additional Time of Delivery, as the case may be, for the respective accounts
of subscribers procured by the Underwriters as instructed by the Underwriters or for the
account of the Underwriters, with any transfer and any issuance taxes or other expenses
(including, without limitation, any Strate levy, investor protection levy, securities
transfer tax and insider trader levy payable with respect to the Shares) payable in
connection with the issuance or allotment of the Shares, or transfer of the ADSs, to the
subscribers procured by the Underwriters or, failing that, with the issuance or allotment of
the Shares, or transfer of the ADSs, to the Underwriters duly paid by the Company in
accordance with Section 7 hereof.
(f) The documents to be delivered at the Time of Delivery or, if applicable, any
Additional Time of Delivery by or on behalf of the parties hereto pursuant to Section 8
hereof, including the cross-receipt for the
relevant Shares and ADSs and any additional documents requested by the Underwriters
pursuant to Section 8(m) hereof, will be delivered at the offices of Davis Polk & Wardwell
LLP, 99 Gresham Street, London EC2V 7NG (the Closing Location), and the applicable Shares
and ADSs will be delivered as specified in subsection (b) above, all at the Time of Delivery
or, if applicable, any Additional Time of Delivery. A meeting will be held at the Closing
Location at []:00 a.m., New York City time, on the Business Day immediately next
preceding the Time of Delivery or, if applicable, any Additional Time of Delivery, or such
time and place as may mutually be agreed upon in writing by the Representatives and the
Company, or their respective counsel, at which meeting 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
18
City, Johannesburg or London are generally authorized or obligated
by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commissions
close of business on the second business day (which term shall mean for this
subsection 5(i) any day when the Commissions office in Washington D.C. is open
for business) following the execution and delivery of this Agreement; to make no
further amendment or any supplement to the Registration Statement, the Basic
Prospectus or the Prospectus prior to the Time of Delivery or any Additional
Time of Delivery, if applicable, which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus
has been filed and to furnish you with copies thereof; to file promptly all
material required to be filed by the Company 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 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 Shares; 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 Shares, 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 Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any preliminary prospectus or other prospectus or
suspending any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order and in the event of the issuance of any such notice
of objection, promptly to amend the Registration
19
Statement in such manner as may
be required and permit offers in sales of to permit offers and sales of the
Shares; provided that, none of the foregoing shall preclude the Company from
discharging its obligations under the Act or the Exchange Act;
(ii) If required by Rule 430B(h) under the Act, to prepare a form of
prospectus in a form approved by you and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act; and to make no further amendment or supplement to such
form of prospectus which shall be disapproved by you promptly after reasonable
notice thereof;
(iii) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares 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 Shares, provided
that in connection therewith the Company 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) If by the third anniversary (the Renewal Deadline) of the initial
effective date of the Registration Statement, any of the Shares remain unsold by
the Underwriters, the Company will file, if it has not already done so and is
eligible to do so, a new automatic shelf registration statement relating to the
Shares, in a form reasonably satisfactory to you. If at the Renewal Deadline
the Company is no longer eligible to file an automatic shelf registration
statement, the Company will, if it has not already done so, file a new shelf
registration statement relating
to the Shares, in a form reasonably satisfactory to you and will use its
commercially reasonable efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Deadline. The Company will
take all other action necessary or appropriate to permit the public offering and
sale of the Shares to continue as contemplated in the expired registration
statement relating to the Shares. References herein to the Registration
Statement shall include such new automatic shelf registration statement or such
new shelf registration statement, as the case may be;
20
(v) Prior to 10:00 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 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, and in case any Underwriter is required
to deliver a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) in connection with sales of any of the Shares at any time
nine months or more after the date hereof, upon your request but at the expense
of such Underwriter, to prepare and deliver to such Underwriter as many written
and electronic copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act; provided that, for the
avoidance of doubt, nothing in this paragraph shall require the Company to delay
the making public of its quarterly or annual results under International
Financial Reporting Standards or from discharging its obligations under the Act
or the Exchange Act;
(vi) To make generally available to the Companys securityholders 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 Company 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);
21
(vii) During the period beginning on the date hereof and continuing to and
including the date 90 days after the date of the Prospectus, (a) not to offer,
sell, contract to sell, pledge, grant any option to purchase, make any short
sale or dispose, except as provided hereunder, of ordinary shares of the Company
or any securities of the Company that are substantially similar to ordinary
shares, including but not limited to any options or warrants to purchase
ordinary shares of the Company or any securities that are convertible into or
exchangeable for, or that represent the right to receive, ordinary shares or any
such substantially similar securities and (b) not to enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, any of the consequences of ownership of the ordinary shares of
the Company or any securities of the Company that are substantially similar to
ordinary shares, whether any such swap or transaction described in paragraph (a)
and (b) above is to be settled by delivery of the ordinary shares of the Company
or any such substantially similar securities, in cash or otherwise (other than
(A) in connection with any employee option, bonus, profit sharing, pension,
retirement, incentive, savings or similar agreement, plan or award in effect as
of the date of this Agreement, (B) upon the conversion or exchange of
convertible or exchangeable securities outstanding as of the date of this
Agreement, (C) in consideration for the shares or assets of a company or as part
of a merger, acquisition, corporate reorganization or similar transaction,
provided however that the recipient of any ordinary shares of the Company or
other securities as contemplated by this clause (C) shall be bound by the
obligations set forth in this subsection (vii) or (D) upon the conversion of the
U.S.$[],000,000 []% Guaranteed Mandatory Convertible Bonds due
2013 to be issued by Anglo Gold Ashanti Holdings Finance plc, which bonds will
be unconditionally and irrevocably guaranteed by the Company and will be
exchangeable for ADSs (or, in certain circumstances, the cash value thereof),
that are being offered concurrently with the offering of Shares contemplated by
this Agreement) without your prior written consent (which, with respect to
clause (C) only, shall not be unreasonably withheld by the Representatives where
the recipients
of such ordinary shares of the Company do not agree to be bound by
restrictions contemplated in this subsection (vii));
(viii) 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
22
otherwise in accordance with Rules 456(b) and
457(r) under the Act;
(ix) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Pricing Prospectus and
Prospectus under the caption Use of Proceeds;
(x) Not to (and to cause its subsidiaries 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, in each case in violation of
applicable laws, to facilitate the sale or resale of the Shares;
(xi) For so long as the Company has securities registered under the
Exchange Act, to use its commercially reasonable efforts to maintain the listing
of its ADSs on the New York Stock Exchange provided that the Company may delist
its ADSs from the New York Stock Exchange in connection with preparing for an
application to the Commission to deregister its securities under the Exchange
Act;
(xii) If the Company elects to rely upon Rule 462(b), the Company 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 shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act;
and
(xiii) To prepare a final term sheet relating to the offering of the Shares
and the Mandatory Convertible Bond Offering, containing information that
describes the final terms of (a) the Shares or the offering and (b) the
Mandatory Convertible Bonds or the Mandatory Convertible Bond Offering in a form
reasonably 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 Shares and the Mandatory Convertible
Bond Offering.
6. (a) The Company represents and agrees that, without the prior consent of the
Representatives, it has not made and will not make any offer
23
relating to the Shares 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 and the Representatives, other than one or more term
sheets relating to the offering of the Shares and the Mandatory Convertible Bond Offering
containing customary information conveyed to purchasers of the Shares or the Mandatory Convertible
Bonds, as the case may be, it has not made and will not make any offer relating to the Shares that
would constitute a Free Writing Prospectus; any such Free Writing Prospectus the use of which has
been consented to by the Company and the Representatives are listed on Schedule II(a) or Schedule
II(b) hereto;
(b) The Company represents and warrants to, and agrees with each of the Underwriters
that it has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the
Commission or retention where required and legending; and
(c) The Company agrees 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 will give prompt notice
thereof to the Representatives and, if requested by the Representatives, will prepare and
furnish without charge to the Representatives 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 by an Underwriter through the Representatives expressly for use therein.
7. The Company covenants and agrees with each of the Underwriters that (a) the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Companys
counsel and accountants in connection with the registration of the Shares 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 Shares; (iii) all expenses in
24
connection with the qualification of the Shares for
offering and sale under state
securities laws as provided in Section 5(iii) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (iv) all fees and expenses in connection with the listing of the
Shares on the New York Stock Exchange, the JSE Limited, Euronext Paris, the London Stock Exchange,
the Australian Stock Exchange and quoting on Euronext Brussels and the filing fees incident
thereto; and the fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the Financial Industry Regulatory Authority, Inc. of the terms of
the offering of the Shares; (v) to the Representatives for the account of the several Underwriters
U.S.$[] in lieu of reimbursement of the Underwriters expenses; (vi) the fees and
disbursements of Underwriters counsel in connection with the transactions contemplated hereby but
excluding any such fees and disbursements incurred or arising in connection with any subsequent
transfer, sale or delivery by an Underwriter of Shares; (vii) all expenses and taxes arising as a
result of the deposit of the Shares with the Depositary and the issuance and delivery of ADSs;
(viii) the fees and expenses (including fees and disbursements of their respective counsel) if any,
of the Depositary and any custodian appointed, as applicable, under the Deposit Agreement in
connection with the transactions contemplated hereby, other than the fees and expenses to be paid
by holders of the ADSs, as applicable; (ix) fees and expenses of the Authorized Agent (as defined
in Section 15 hereof); (x) the cost of preparing certificates representing the Shares; (xi) the
cost and charges of any transfer agent or registrar in connection with the transactions
contemplated hereby; and (xii) all other reasonable costs and expenses incident to the performance
of the obligations of the Company hereunder that are not otherwise specifically provided for in
this Section; (b) the Company will pay or cause to be paid all stamp or other taxes, levies
(including, without limitation, any Strate levy, investor protection levy, securities transfer tax
and insider trading levy payable) and duties, if any, and any other kind of tax, including
withholding tax, incurred or arising in connection with the allotment, issuance and or delivery of
Shares by the Company to the subscribers procured by the Underwriters or the Underwriters, as
applicable, including all taxes payable by the Underwriter arising from the reimbursement of any
expenses, other than income tax from any fee, commission or other compensation received by any of
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
(including, without limitation, any Strate levy, investor protection levy and the insider trading
levy payable) and duties and any other kind of tax, including withholding tax, incurred or arising
from any subsequent transfer, sale or delivery of Shares by (A) a subscriber procured by the
Underwriters or (B) an 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 (including, without limitation, any Strate levy, investor
25
protection levy, securities
transfer tax and the insider trading levy payable) and
duties and any other kind of tax, including withholding tax, incurred or arising from any
subsequent transfer, sale or delivery of Shares by an Underwriter.
Payment shall be made by or on behalf of the Company within fourteen days of the date of the
invoice from the Representatives.
8. The obligations of the Underwriters hereunder, as to procuring subscribers for or, failing
that, subscribing the Shares to be delivered at the Time of Delivery or any Additional Time of
Delivery, as the case may be, shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company herein are, at and as of the
Time of Delivery or any Additional Time of Delivery, as the case may be, true and correct, the
condition that the Company not be in breach of any of its obligations under this Agreement in any
respect that is material on or before the Time of Delivery or any Additional Time of Delivery, as
the case may be, 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 pursuant to Rule 433(d) under the Act shall have been filed with the
Commission within the applicable time period prescribed for such filing by Rule 433; no stop
order suspending the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been initiated or threatened
by the Commission and no notice of objection of the Commission to the use of the
Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received; no
stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Davis Polk & Wardwell LLP, United States counsel for the Underwriters, shall have
furnished to you their disclosure letter and written opinion in forms reasonably
satisfactory to the Representatives, dated the Time of Delivery or any Additional Time of
Delivery, as the case may be, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such matters;
(c) Shearman & Sterling LLP, United States counsel for the Company, shall have
furnished to you their disclosure letter and written
26
opinion in forms reasonably
satisfactory to the Representatives, dated the Time of Delivery or any Additional Time of
Delivery, as the case may be;
(d) Taback and Associates (Pty) Limited, South African counsel for the Company shall
have furnished to you their written opinion in a form reasonably satisfactory to the
Representatives, dated the Time of Delivery or any Additional Time of Delivery, as the case
may be;
(e) Emmet, Marvin & Martin, LLP, counsel for the Depositary, shall have furnished to
you their written opinion in a form reasonably satisfactory to the Representatives, dated
the Time of Delivery or any Additional Time of Delivery, as the case may be;
(f) On each of the date of the date hereof and the Time of Delivery or any Additional
Time of Delivery, as the case may be, Ernst & Young, Inc. shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof in forms reasonably
satisfactory to the Representatives;
(g) At and as of the Time of Delivery or any Additional Time of Delivery, as the case
may be, (i) neither the Company nor any of its subsidiaries shall have sustained, since the
date of the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus, any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, in each case materially adverse to the Company and
its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the
Pricing Prospectus, and (ii) since the respective dates as of which information is given in
the Pricing Prospectus there shall not have been any material adverse change in the share
capital of the Company or any material increase in the long term debt of the Company 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 Company and its subsidiaries taken as a whole, in
each case otherwise than as set forth or contemplated in the Pricing Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered at the Time
of Delivery or any Additional Time of Delivery, as the case may be, on the terms and in the
manner contemplated in the Pricing Prospectus;
(h) On or after the Applicable Time until the Time of Delivery or any Additional Time
of Delivery, as the case may be, there shall not have
27
occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange and/or the JSE Limited; (ii) a suspension or material limitation in trading in the
Companys securities 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, or 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 Shares 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
reasonable judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered at the Time of
Delivery to or any Additional Time of Delivery, as the case may be, or as directed by, the
Underwriters on the terms and in the manner contemplated in the Prospectus;
(i) At and as of the Time of Delivery or any Additional Time of Delivery, as the case
may be, the Shares shall continue to be duly listed, subject to notice of issuance, on the
JSE Limited and the New York Stock Exchange (in the form of ADSs);
(j) At and as of the Time of Delivery or any Additional Time of Delivery, as the case
may be, the Depositary shall have furnished or caused to be furnished to you at the Time of
Delivery or any Additional Time of Delivery, as the case may be, certificates satisfactory
to you evidencing the deposit with it of the Shares being so deposited against issuance of
ADRs evidencing the ADSs to be delivered by the Company at the Time of Delivery or any
Additional Time of Delivery, as the case may be, and the execution, countersignature (if
applicable), issuance and delivery of ADRs evidencing such ADSs pursuant to the Deposit
Agreement;
(k) The Company shall have complied with the provisions of Section 5(v) hereof with
respect to the furnishing of prospectuses on the Business Day next succeeding the date of
this Agreement;
28
(l) On or after the Applicable Time, there shall not have occurred any lowering of
one or more notches of the rating of any of the debt securities of the Company, AngloGold
Ashanti Holdings plc or AngloGold Ashanti Holdings Finance plc by Moodys Investors
Service, Inc. or Standard & Poors Rating Services, a division of the McGraw-Hill
Companies, Inc.; provided that, for the avoidance of doubt, this paragraph shall not apply
to a change from stable to negative watch or the
equivalent by Moodys Investors Service, Inc. or Standard & Poors Rating Services, a
division of the McGraw-Hill Companies, Inc.; and
(m) The Company shall have furnished or caused to be furnished to you at and as of the
Time of Delivery or any Additional Time of Delivery, as the case may be, certificates of
officers of the Company as to the accuracy of the representations and warranties of the
Company herein at and as of the Time of Delivery or any Additional Time of Delivery, as the
case may be, as to the performance, in all material respects, by the Company of their
respective obligations hereunder to be performed at or prior to the Time of Delivery or any
Additional Time of Delivery, as the case may be, and the Company shall have furnished or
caused to be furnished certificates as to the matters set forth in subsections (a), (g) and
(l) of this Section.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in an ADS Registration Statement, the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or any issuer information filed or required to be
filed pursuant to Rule 433(d) under the Act or identified in Schedule II(b) hereto, or arise out of
or are based upon the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are incurred; provided,
however, that the Company 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 each ADS Registration Statement, the Registration
Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the
29
Company by any
Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter, severally but not jointly, will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, an ADS Registration Statement, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, each ADS Registration
Statement, 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 by such
Underwriter through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the omission to so notify
the indemnifying party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified party
(which shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election to so assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof
30
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 on the one hand and the Underwriters on the other from the
offering of the Shares. 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 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 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 Shares
subscribed under this Agreement (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters with respect
to the Shares subscribed under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. 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 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 and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
31
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 the Shares 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 under this Section 9 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the meaning of the
Act and each broker-dealer affiliate of any Underwriter; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company (including any person who, with his or her consent,
is named in the Registration Statement as about to become a director of the Company) and to
each person, if any, who controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to procure subscribers for or,
failing that, refuse to subscribe the Shares which it has agreed to subscribe hereunder at the Time
of Delivery or any Additional Time of Delivery, as the case may be, you may in your discretion
arrange for you or another party or other parties to subscribe such Shares on the terms contained
herein. If within thirty-six hours after such default you do not make arrangements satisfactory to
you for the subscription of such Shares, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties satisfactory to you to
subscribe such Shares on such terms. In the event that, within the respective prescribed periods,
you notify the Company that you have so arranged for the subscription of such Shares, or the
Company notifies you that they have so arranged for the subscription of such
32
Shares, you or the
Company shall have the right to postpone the Time of Delivery or such Additional Time of Delivery,
as the case may be, 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 Shares.
(b) If, after giving effect to any arrangements for the subscription of the Shares of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate number of such Shares which remains unsubscribed does not exceed one
eleventh of the aggregate number of all of the Shares to be subscribed at the Time of
Delivery or such Additional Time of Delivery, as the case may be, then the Company shall
have the right to require each non defaulting Underwriter to subscribe the number of Shares
which such Underwriter agreed to subscribe hereunder at the Time of Delivery or such
Additional Time of Delivery, as the case may be, and, in addition, to require each non
defaulting Underwriter to subscribe its pro rata share (based on the number of Shares which
such Underwriter agreed to procure subscribers for or, failing that, subscribe hereunder) of
the Shares of such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from liability for
its default.
(c) If, after giving effect to any arrangements for the subscription of the Shares of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate number of such Shares which remains unsubscribed exceeds one-eleventh
of the aggregate number of all of the Shares to be subscribed at the Time of Delivery or
such Additional Time of Delivery, as the case may be, or if the Company shall not exercise
the right described in subsection (b) above to require non defaulting Underwriters to
procure subscribers for or to subscribe Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to any Additional Time of Delivery, the obligations of
the Underwriters to procure subscribers for or, failing that, to subscribe, or of the
Company to sell, Additional Shares) shall thereupon terminate, without liability on the part
of any non defaulting Underwriter or the Company or the Company, except for the expenses to
be borne by the Company and the Company and the Underwriters as provided in Section 7 hereof
and the indemnity and contribution agreements in Section 9 hereof;
33
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 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, or the Company or any officer or
director or controlling person of the Company and shall survive delivery of and payment for the
Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall
then not be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of the Company as
provided herein, the Company 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 procuring of
subscribers or, failing that, subscription, sale and delivery of the Shares not so delivered, but
the Company shall then be under no further liability to you in respect of the Shares 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.
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: (A) [] and (B) []; and if to the Company shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company 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, which information may
include the name and address of
34
their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters
and the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and directors
of the Company and each person who controls the Company 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 Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Each of the parties hereto irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by any Underwriter or by any person who controls any
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. The Company has appointed AngloGold Ashanti North America Inc., 7400 East Orchard
Road, Suite 350, Greenwood Village, Colorado 80111 as its 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 any 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. The Company 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 shall be deemed, in every respect, effective service of
process upon the Company.
16. In respect of any judgment or order given or made for any amount due hereunder that is
expressed and paid in a currency (the judgment currency) other than United States dollars, the
Company 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
35
by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term rate of exchange shall include
any premiums and costs of exchange payable in connection with the purchase of or conversion of the
judgment currency into United States dollars.
17. Time shall be of the essence of this Agreement, both as regards any dates, times or
periods mentioned and as regards any dates, times or periods which may be substituted for them in
accordance with this Agreement or by agreement in writing between the parties.
18. The Company acknowledges and agrees that (i) the procurement of subscribers for or,
failing that, the subscription of the Shares by the Underwriters pursuant to this Agreement is an
arms-length commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other, (ii) solely in connection therewith and with the process leading to
such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company, (iii) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters)
or any other obligation to the Company except the obligations expressly set forth in this
Agreement and (iv) the Company has consulted and will consult its own legal and financial advisors
to the extent each deemed appropriate. The Company agrees that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
19. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York without giving effect to the conflicts of laws provision thereof.
20. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
21. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an
36
original, but all such counterparts shall
together constitute one and the same instrument.
* * * * *
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters and the Company.
37
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Very truly yours,
ANGLOGOLD ASHANTI LIMITED
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Accepted as of the date hereof
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SCHEDULE I
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Total Number of Firm Shares to be |
Underwriter |
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Subscribed |
[] |
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Total |
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Sch I-1
SCHEDULE II
(a) Materials other than the Pricing Prospectus that comprise the Pricing Disclosure Package:
Issuer Free Writing Prospectus dated the date hereof containing the final terms of (a) the
Shares and (b) the Mandatory Convertible Bonds
[Any others]
(b) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
[None]
(c) Additional Documents Incorporated by Reference:
[None]
Sch II-1
SCHEDULE III
AngloGold Ashanti Australia Limited
AngloGold Ashanti (Ghana) Limited
AngloGold Ashanti Holdings plc
AngloGold Ashanti USA Incorporated
AngloGold Brasil Ltda
AngloGold Offshore Investments Limited
AngloGold South America Ltd
Cerro Vanguardia S.A.
Cluff Resources Ltd
Geita Gold Mining Limited
Mineração Morro Velho Ltda
Mineração Serra Grande S.A.
Société Ashanti Goldfields de Guinée S.A.
Sch III-1
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.
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AngloGold Ashanti Limited
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Date: September 14, 2010
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By: |
/s/ L Eatwell |
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Name: |
L EATWELL |
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Title: |
Company Secretary |
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