posasr
As filed with the Securities and Exchange Commission on April
20, 2010
Registration Statement No. 333-161634
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Post-Effective Amendment No.
1
to
Form F-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
AngloGold Ashanti
Limited
(Exact Name of Registrant as
Specified in its Charter)
The Republic of South Africa
(State or Other Jurisdiction of
Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification
Number)
76 Jeppe Street
Newtown, Johannesburg, 2001
(PO Box 62117, Marshalltown, 2107)
South Africa
Tel: +27 (11) 637-6000
(Address and Telephone Number of
Registrants Principal Executive Offices)
AngloGold Ashanti Holdings
plc
(Exact Name of Registrant as
Specified in its Charter)
The Isle of Man
(State or Other Jurisdiction of
Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification
Number)
1st Floor, Atlantic House
4-8 Circular Road
Douglas, Isle of Man, IM1 1AG
Tel: +44 (1624) 697 280
(Address and Telephone Number of
Registrants Principal Executive Offices)
AngloGold Ashanti Holdings
Finance plc
(Exact Name of Registrant as
Specified in its Charter)
The Isle of Man
(State or Other Jurisdiction of
Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification
Number)
1st Floor, Atlantic House
4-8 Circular Road
Douglas, Isle of Man, IM1 1AG
Tel: +44 (1624) 697 280
(Address and Telephone Number of
Registrants Principal Executive Offices)
AngloGold Ashanti North America Inc.
7400 East Orchard Road, Suite 350
Greenwood Village, CO 80111
Tel:
+1 (303) 889-0700
(Name, Address and Telephone
Number of Agent for Service)
Copies to:
Richard J.B. Price
Shearman & Sterling LLP
9 Appold Street
London EC2A 2AP, England
Tel:
+44 (20) 7655-5000
Approximate date of commencement of proposed sale to the
public: From time to time after this registration
statement becomes effective.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, please check the
following
box. þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.C. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. þ
CALCULATION OF
REGISTRATION FEE
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Amount to be Registered/Proposed
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Maximum Offering Price Per
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Amount of
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Title of Each Class of
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Unit/Proposed
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Registration
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Securities to be Registered
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Maximum Aggregate Offering Price
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Fee
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Ordinary shares, debt securities(1), guarantees(2), warrants to
purchase ordinary shares, and rights to purchase ordinary shares
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Indeterminate(3)
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$0(4)
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(1) |
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There is being registered hereunder an indeterminate
principal amount of AngloGold Ashanti Limited debt securities
and, each separately, guaranteed debt securities of AngloGold
Ashanti Holdings plc and AngloGold Ashanti Holdings Finance plc
and related guarantees of each thereof of AngloGold Ashanti
Limited, each as may be issued from time to time at
indeterminate prices. |
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(2) |
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Please see note (1) above for a description of these
guarantees. No separate consideration will be received for the
guarantees. |
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An indeterminate aggregate initial offering price or number
of the securities of each identified class is being registered
as may from time to time be offered at indeterminate prices.
Separate consideration may or may not be received for securities
that are issuable on exercise, conversion or exchange of other
securities or that are issued in units or represented by
depositary shares. |
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In accordance with Rules 456(b) and 457(r), the
registrants are deferring payment of all of the registration
fee. |
EXPLANATORY
NOTE
This Post-Effective Amendment No. 1 to the Registration
Statement (Registration
No. 333-161634)
is being filed for the principal purposes of (1) adding
AngloGold Ashanti Holdings plc as issuer and co-registrant to
the Registration Statement, (2) adding a class of
securities of AngloGold Ashanti Holdings plc and related
guarantees of AngloGold Ashanti Limited to the Registration
Statement as described in the accompanying prospectus and
(3) filing additional exhibits to the Registration
Statement. This Post-Effective Amendment No. 1 shall become
effective immediately upon filing with the Securities and
Exchange Commission.
Prospectus
AngloGold Ashanti
Limited
(Registration
No. 1944/017354/06)
AngloGold Ashanti Holdings
plc
AngloGold Ashanti Holdings
Finance plc
This prospectus
offers:
Ordinary Shares, par value 25
South African cents, of AngloGold Ashanti Limited
in the form of Ordinary Shares
or American Depositary Shares
Debt Securities of AngloGold
Ashanti Limited
Guaranteed Debt Securities of
AngloGold Ashanti Holdings plc
Guaranteed Debt Securities of
AngloGold Ashanti Holdings Finance plc
Warrants to Purchase Ordinary
Shares of AngloGold Ashanti Limited
Rights to Purchase Ordinary
Shares of AngloGold Ashanti Limited
We will provide the specific terms of the securities that may be
offered, and the manner in which they are being offered, in one
or more supplements to this prospectus. Any supplement may also
add, update or change information contained in this prospectus.
You should read both this prospectus and any prospectus
supplement, together with the additional information described
under the heading Where You Can Find More
Information, before investing in our securities. The
amount and price of the offered securities will be determined at
the time of the offering. This prospectus may be used by a
selling securityholder to sell securities from time to time.
Our American depositary shares, or ADSs, each representing one
ordinary share, are listed on the New York Stock Exchange under
the symbol AU. Our ordinary shares are listed on the
JSE Limited under the symbol ANG, the London Stock
Exchange under the symbol AGD, Euronext Paris under
the symbol VA, the Australian Stock Exchange in the
form of CHESS depositary interests, each representing one-fifth
of an ordinary share, under the symbol AGG, the
Ghana Stock Exchange where our shares are quoted under the
symbol AGA, each representing one-hundredth of an
ordinary share and in the form of Ghanaian Depositary Shares
under the symbol AADS, and Euronext Brussels where
our shares are quoted in the form of unsponsored international
depositary receipts under the symbol ANG.
Investing in these securities involves risks that are
described in the Risk Factors section contained in
the applicable prospectus supplement and may be described in
certain of the documents we incorporate by reference in this
prospectus.
Neither the United States Securities and Exchange Commission
nor any state securities commission has approved or disapproved
of these securities or passed upon the adequacy or accuracy of
this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is April 20, 2010
ABOUT THIS
PROSPECTUS
Unless the context otherwise requires, the Company,
we, us and our refers to
AngloGold Ashanti Limited and its consolidated subsidiaries.
WHERE YOU CAN
FIND MORE INFORMATION
We file annual and other reports with the United States
Securities and Exchange Commission, or the SEC. The SEC
maintains a website
(http://www.sec.gov)
on which our annual and other reports are made available. You
may also read and copy any document we file at the SECs
public reference room at 100 F Street, N.E.,
Washington D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the public reference room. You may
also read and copy these documents at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York
10005.
The SEC allows us to incorporate by reference the
information we file with the SEC, which means that we can
disclose important information to you by referring you to those
documents that are considered part of this prospectus.
Information that we file with the SEC in the future and
incorporate by reference will automatically update and supersede
the previously filed information. We incorporate by reference
the documents listed below:
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Our annual report on
Form 20-F
for the year ended December 31, 2009 filed with the SEC on
April 19, 2010 (our
Form 20-F); and
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Our
Form 6-K
furnished to the SEC on April 20, 2010 containing pro forma
financial information for the year ended December 31, 2009
related to the sale of our 33.33% interest in the Boddington
joint venture.
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We also incorporate by reference in this prospectus all
subsequent annual reports filed with the SEC on
Form 20-F
under the Securities Exchange Act of 1934 and those of our
reports submitted to the SEC on
Form 6-K
that we specifically identify in such form as being incorporated
by reference in this prospectus after the date hereof and prior
to the completion of an offering of securities under this
prospectus. This prospectus is part of a registration statement
filed with the SEC.
As you read the above documents, this prospectus and any
prospectus supplement, you may find inconsistencies in
information from one document to another. If you find
inconsistencies you should rely on the statements made in the
most recent document, including this prospectus and any
prospectus supplement. All information appearing in this
prospectus is qualified in its entirety by the information and
financial statements, including the notes thereto, contained in
the documents we have incorporated by reference.
Upon written or oral request, we will provide to any person, at
no cost to such person, including any beneficial owner to whom a
copy of this prospectus is delivered, a copy of any or all of
the information that has been incorporated by reference in this
prospectus but not delivered with this prospectus. You may make
such a request by writing or telephoning us at the following
address or telephone number:
AngloGold Ashanti North America Inc.
7400 East Orchard Road
Suite 350
Greenwood Village, CO 80111
Telephone: +1 303 889 0753
Fax: +1 303 889 0707
E-mail:
MPatterson@AngloGoldAshantiNA.com
You should rely only on the information incorporated by
reference or provided in this prospectus and in any prospectus
supplement. We have not authorized anyone else to provide you
with different information. This prospectus is an offer to sell
or to buy only the securities referred to herein, but only
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under circumstances and in jurisdictions where it is lawful to
do so. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any
date other than the date on the front of those documents.
FORWARD-LOOKING
STATEMENTS
This prospectus includes and incorporates by reference
forward-looking statements. We have based these forward-looking
statements on our current expectations and projections of future
events. These forward-looking statements are subject to risks,
uncertainties and assumptions about our business. You should
consider any forward-looking statements in light of the risks
and uncertainties described in the information contained or
incorporated by reference in this prospectus. See Where
You Can Find More Information. We undertake no obligation
to publicly update or revise any forward-looking statements,
whether as a result of new information, future events or
otherwise. In light of these risks, uncertainties and
assumptions, the future events described in this prospectus may
not occur.
ENFORCEABILITY OF
CERTAIN CIVIL LIABILITIES
AngloGold Ashanti Limited is incorporated under the laws of
South Africa and both AngloGold Ashanti Holdings plc and
AngloGold Ashanti Holdings Finance plc are organized under the
laws of the Isle of Man. All except two of AngloGold Ashanti
Limiteds directors and officers, all of the directors and
officers of AngloGold Ashanti Holdings plc and AngloGold Ashanti
Holdings Finance plc, and the experts named herein, reside
outside the United States, principally in South Africa. You may
not be able, therefore, to effect service of process within the
United States upon those directors and officers with respect to
matters arising under the federal securities laws of the United
States.
In addition, substantially all of our assets and the assets of
our directors and officers are located outside the United
States. As a result, you may not be able to enforce against us
or our directors and officers judgments obtained in
U.S. courts predicated on the civil liability provisions of
the federal securities laws of the United States.
We have been advised by Cains Advocates Limited, our Isle of Man
counsel, that there is no statutory procedure in the Isle of Man
for the recognition or enforcement of judgments of the
U.S. courts. However, under Isle of Man common law, a
judgment in personam given by a U.S court may be
recognized and enforced by an action for the amount due under it
provided that the judgment: (i) is for a debt or definite
sum of money (not being a sum payable in respect of taxes or
other changes of a like nature or in respect of a fine or other
penalty); (ii) is final and conclusive; (iii) was not
obtained by fraud; (iv) is not one whose enforcement would
be contrary to public policy in the Isle of Man; and
(v) was not obtained in proceedings which were opposed to
natural justice in the Isle of Man.
Based on the foregoing, we have been advised by counsel in the
Isle of Man that there is no certainty as to the enforceability
in the Isle of Man, either in original actions or in actions for
enforcement of judgments of U.S. courts, of liabilities
predicated upon the civil liability provisions of the
U.S. federal securities laws.
We have been advised by Taback & Associates (Pty)
Limited, our South African counsel, that there is doubt as to
the enforceability in South Africa, in original actions or in
actions for enforcement of judgments of U.S. courts, of
liabilities predicated on the U.S. federal securities laws.
ANGLOGOLD ASHANTI
LIMITED
We are a global gold company with a diversified portfolio of
assets in many key gold producing regions. As at
December 31, 2009, we had gold reserves of
68.3 million ounces. For the year ended December 31,
2009, we had consolidated revenues of $3,784 million (which
excludes revenue from
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by-products and interest earned) and gold production of
4.6 million ounces.
We were formed following the consolidation of the gold interests
of Anglo American plc into a single company in 1998. At that
time, our production and reserves were primarily located in
South Africa (97% of 1997 production and 99% of reserves as at
December 31, 1997) and one of our objectives was to
achieve greater geographic and ore body diversity. Through a
combination of mergers, acquisitions, disposal initiatives and
organic growth, and through the operations in which we have an
interest, we have developed a high quality, well diversified
asset portfolio, including:
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production from 20 operations in ten countries: Argentina,
Australia, Brazil, Ghana, Guinea, Mali, Namibia, South Africa,
Tanzania and the United States;
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gold production and reserves for the year ended
December 31, 2009 of 61% and 56%, respectively, from
operations outside South Africa; and
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gold production from a broad variety of ore body types as well
as a variety of open-pit and heap-leach (42%) underground (54%)
and surface and dump reclamation (4%) operations.
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We were incorporated in the Republic of South Africa in 1944
under the name of Vaal Reefs Exploration and Mining Company
Limited and in South Africa we are subject to the South African
Companies Act 61 of 1973, as amended. Paragraph 2 of our
memorandum and articles of association provides that our main
business is to carry on gold exploration, the mining and
production of gold, the manufacturing, marketing and selling of
gold products and the development of markets for gold. On
April 26, 2004, we acquired the entire issued share capital
of Ashanti Goldfields Company Limited and changed our name to
AngloGold Ashanti Limited. Our principal executive office is
located at 76 Jeppe Street, Newtown, Johannesburg, 2001
(P.O. Box 62117, Marshalltown, 2107), South Africa
(Telephone +27 11
637-6000).
Our general website is at www.anglogoldashanti.com. Information
contained in our website is not, and shall not be deemed to be,
part of this prospectus.
ANGLOGOLD ASHANTI
HOLDINGS PLC
AngloGold Ashanti Holdings plc was incorporated as a private
limited company under the Isle of Man Companies Act 1931 to 2004
(as amended) under the name of SMI Holdings Limited with
registration number 56961C. On February 2, 2004,
Holdings name was changed to AngloGold Holdings Limited.
On February 6, 2004, Holdings was converted to a public
company and changed its name to become AngloGold Holdings plc.
Holdings name was changed to AngloGold Ashanti Holdings
plc on October 18, 2005. On July 17, 2007, Holdings
re-registered in the Isle of Man as a company incorporated and
existing under the Isle of Man Companies Act 2006.
Holdings registered office is at 1st Floor, Atlantic
House, 4-8 Circular Road, Douglas, Isle of Man, IM1 1AG.
AngloGold Ashanti Holdings plc is a wholly-owned subsidiary of
AngloGold Ashanti Limited. The principal activity of AngloGold
Ashanti Holdings plc is to act as a holding company for certain
of AngloGold Ashanti Limiteds operations and assets
located outside South Africa.
ANGLOGOLD ASHANTI
HOLDINGS FINANCE PLC
AngloGold Ashanti Holdings Finance plc was incorporated as a
limited company under the laws of the Isle of Man on
June 4, 2008. It is incorporated under the Isle of Man
Companies Act 2006 with registered number 002740V. AngloGold
Ashanti Holdings Finance plcs registered office is at
1st Floor, Atlantic House, 4-8 Circular Road, Douglas, Isle
of Man, IM1 1AG.
AngloGold Ashanti Holdings Finance plc is a finance company that
is wholly-owned by AngloGold Ashanti Limited. Its business is to
issue debt securities to finance the activities of AngloGold
Ashanti Limited and its subsidiaries and affiliates. It has no
other operations or employees.
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RISK
FACTORS
For a description of some of the risks that could materially
affect an investment in the securities being offered, you should
read the discussion of risk factors, starting on page 16 in
our
Form 20-F,
and identified in our future filings with the SEC, incorporated
herein by reference. Additional risk factors not presently known
to us or that we currently deem immaterial may also impair our
business operations.
RATIO OF EARNINGS
TO FIXED CHARGES
Our ratio of earnings to fixed charges for the periods indicated
below were as follows:
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Year Ended December 31,
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2005
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2006
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2007
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2008
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2009
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Ratio of earnings to fixed charges
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$(232)m:$96m(1)
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$66m:$87m(1)
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$(571)m:$85m(1)
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$(223)m:$102m(1)
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$(674):$136(1)
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(1)
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In millions. In each year, we had a
deficiency of earnings to fixed charges.
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We computed the ratio of earnings to fixed charges by dividing
the amount of earnings by the amount of fixed charges. For the
purposes of calculating this ratio, and the deficiency, if any,
of earnings available to cover fixed charges, we have calculated
earnings by adding (i) pre-tax income from continuing
operations before income from affiliates, tax and noncontrolling
interests; (ii) fixed charges; (iii) amortization of
capitalized interest; (iv) distributed income of equity
investees (dividends received); and (v) our share of any
pre-tax losses of equity investees for which charges from
guarantees are included in fixed charges. Interest capitalized,
preference security dividend requirements of consolidated
subsidiaries, and the noncontrolling interest in pre-tax income
of subsidiaries that have not incurred fixed charges were
subtracted from the total of the added items to give earnings.
For the purposes of calculating the ratio of earnings to fixed
charges and the deficiency, if any, of earnings available to
cover fixed charges, fixed charges consist of the total of
(i) interest expensed; (ii) interest capitalized;
(iii) amortized premiums, discounts and capitalized
expenses related to indebtedness; (iv) estimates of
interest within rental expense; and (v) preference security
dividend requirements of consolidated subsidiaries.
REASONS FOR THE
OFFERING AND USE OF PROCEEDS
Except as may be described otherwise in a prospectus supplement,
we will add the net proceeds from our sale of the securities
under this prospectus to our general funds and will use them for
funding any potential future acquisitions, or our working
capital, project development or capital expenditure requirements
or for our other general corporate purposes. In addition, we may
apply the proceeds of such sale to the reduction of our
short-term and other indebtedness as may be described in a
prospectus supplement.
AngloGold Ashanti Holdings plc may lend the net proceeds from
the sale of any guaranteed debt securities offered by it to us
or our other subsidiaries to be used for these purposes.
AngloGold Ashanti Holdings Finance plc may lend the net proceeds
from the sale of any guaranteed debt securities offered by it to
us or our other subsidiaries to be used for these purposes.
We may designate a specific allocation of the net proceeds of an
offering of securities by us to a specific purpose, if any, at
the time of the offering and will describe any allocation in the
related prospectus supplement.
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PROSPECTUS
SUPPLEMENT
This prospectus provides you with a general description of the
securities that may be offered. Unless the context otherwise
requires, we will refer to the ordinary shares, ADSs, debt
securities, guarantees, warrants and rights as the offered
securities. Each time offered securities are sold, we will
provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus
supplement may also add to, update or change information
contained in this prospectus. Accordingly, to the extent
inconsistent, information in this prospectus is superseded by
the information in the prospectus supplement. You should read
both this prospectus and any prospectus supplement together with
the additional information described under the heading
Where You Can Find More Information.
The prospectus supplement to be attached to the front of this
prospectus will describe the terms of the offering, including
the amount and more detailed terms of offered securities, the
initial public offering price, the price paid for the offered
securities, net proceeds to us or a selling securityholder, the
expenses of the offering, the terms of offers and sales outside
of the United States, if any, our capitalization, the nature of
the plan of distribution, the terms of any rights offering,
including the subscription price for ordinary shares, record
date, ex-rights date and exercise period, the other specific
terms related to the offering, and any U.S. federal income
tax consequences and South African tax considerations applicable
to the offered securities.
For more detail on the terms of the offered securities, you
should read the exhibits filed with, or incorporated by
reference into, our registration statement on
Form F-3,
as well as the registration statements on
Form F-6
(Registration Nos.
333-133049
and
333-159248)
relating to the ADSs.
SOUTH AFRICAN
RESERVE BANK APPROVAL
The issuance of securities under this prospectus may be subject
to the approval of the South African Reserve Bank.
DESCRIPTION OF
SHARE CAPITAL
Our authorized share capital consists of four classes of shares:
ordinary shares of par value in South African rands, or ZAR, of
0.25 each, E ordinary shares of par value ZAR 0.25 each, A
redeemable preference shares of par value ZAR 0.50 each, and B
redeemable preference shares of par value ZAR 0.01 each. The
ordinary shares, E ordinary shares and the A redeemable
preference shares have voting rights, while the B redeemable
preference shares have voting rights only under certain
circumstances, and in respect of each of these classes of
shares, there is no provision in our memorandum and articles of
association for cumulative voting. There is no limitation
imposed by our memorandum and articles of association or by
South African law on the rights of any person, including
non-residents, to own our ordinary shares or to exercise voting
rights in respect of our ordinary shares.
For a further description of our share capital please refer to
Item 10 of our
Form 20-F,
incorporated by reference herein.
DESCRIPTION OF
ADSs
For a description of our ADSs, including the rights and
obligations attached thereto, please refer to Item 10 of
our
Form 20-F,
incorporated by reference herein, as well as the registration
statements on
Form F-6
(Registration Nos.
333-133049
and
333-159248).
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DESCRIPTION OF
DEBT SECURITIES
We, AngloGold Ashanti Holdings plc and AngloGold Ashanti
Holdings Finance plc may issue debt securities in one or more
distinct series. Most of the financial terms and other specific
terms of any series of debt securities that we offer will be
described in a prospectus supplement to be attached to the front
of this prospectus. Since the terms of specific debt securities
may differ from the general information we have provided below,
you should rely on information in the prospectus supplement that
contradicts the general information set forth below.
As required by United States federal law for all bonds and notes
of companies that are publicly offered, the debt securities are
governed by a document called an indenture. An
indenture is a contract between us and a financial institution
acting as trustee on behalf of holders of such bonds or notes.
The trustee has two main roles. First, the trustee can enforce
the rights of such persons against us if we default. There are
some limitations on the extent to which the trustee acts on such
persons behalf, described under Events of
Default on page 14. Second, the trustee performs
certain administrative duties for us.
AngloGold Ashanti Limited will issue debt securities under an
indenture, as supplemented from time to time (the debt
indenture), to be entered into between AngloGold Ashanti
Limited and The Bank of New York Mellon as trustee (the
debt trustee). AngloGold Ashanti Holdings plc will
issue guaranteed debt securities under an indenture, as
supplemented from time to time (the AGA Holdings
guaranteed debt indenture), to be entered into among
AngloGold Ashanti Holdings plc, AngloGold Ashanti Limited as
guarantor, and The Bank of New York Mellon as trustee (the
AGA Holdings guaranteed debt trustee). AngloGold
Ashanti Holdings Finance plc will issue guaranteed debt
securities under an indenture, as supplemented from time to time
(the AGA Holdings Finance guaranteed debt indenture
and, together with the AGA Holdings guaranteed debt indenture,
the guaranteed debt indentures), to be entered into
among AngloGold Ashanti Holdings Finance plc, AngloGold Ashanti
Limited as guarantor, and The Bank of New York Mellon as trustee
(the AGA Holdings Finance guaranteed debt trustee
and, together with its role as the AGA Holdings guaranteed debt
trustee, the guaranteed debt trustee). Except where
the context clearly refers to AngloGold Ashanti Holdings plc or
AngloGold Ashanti Holdings Finance plc as the issuer of the debt
securities and AngloGold Ashanti Limited as the guarantor of
those securities, we, us and
our in this section refers to any of AngloGold
Ashanti Limited, AngloGold Ashanti Holdings plc or AngloGold
Ashanti Holdings Finance plc, whichever is issuing the debt
securities at any particular time.
The term trustee refers to the debt trustee, the AGA
Holdings guaranteed debt trustee or the AGA Holdings Finance
guaranteed debt trustee, as appropriate. We will refer to the
debt indenture, the AGA Holdings guaranteed debt indenture and
the AGA Holdings Finance guaranteed debt indenture collectively
as the indentures and each as an
indenture. The indentures are subject to and
governed by the United States Trust Indenture Act of 1939,
as amended.
As this section is a summary, it does not describe every aspect
of the debt securities and the indentures. We urge you to read
the applicable indenture because it, and not this description,
defines the rights of holders of debt securities. For example,
in this section, we use capitalized words to signify terms that
are specifically defined in the indentures. Some of the
definitions are repeated in this prospectus, but for the rest
you will need to read the indentures. We have filed the form of
each indenture as an exhibit to the registration statement that
we have filed with the SEC. See Where You Can Find More
Information on page 1 for information on how to
obtain a copy of the indentures.
General
The debt securities offered by this prospectus will not be
limited and the indentures will not limit the amount of debt
securities that may be issued under them. Each indenture
provides that any debt securities proposed to be sold under this
prospectus and the attached prospectus supplement and any debt
securities issuable upon the exercise of debt warrants or upon
conversion or exchange of
6
debt securities, as well as other unsecured debt securities, may
be issued under that indenture in one or more series.
The prospectus supplement, which will accompany this prospectus,
will describe the particular series of debt securities being
offered including:
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whether the debt securities are issued by AngloGold Ashanti
Limited, AngloGold Ashanti Holdings plc or AngloGold Ashanti
Holdings Finance plc;
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the designation or title of the series of debt securities;
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the total principal amount of the series of debt securities;
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the percentage of the principal amount at which the series of
debt securities will be offered;
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the date or dates on which principal will be payable;
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the rate or rates (which may be either fixed or variable)
and/or the
method of determining such rate or rates of interest, if any;
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the date or dates from which any interest will accrue, or the
method of determining such date or dates, and the date or dates
on which any interest will be payable;
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the terms for redemption, extension or early repayment, if any;
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the currencies in which the series of debt securities are issued
and payable;
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the provision for any sinking fund;
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any provisions modifying the restrictive covenants in the
indentures;
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any provisions modifying the events of default in the indentures;
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whether the series of debt securities are issuable in
certificated form;
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any provisions modifying the defeasance and covenant defeasance
provisions;
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any special tax implications, including provisions for original
issue discount;
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any provisions for convertibility or exchangeability of the debt
securities into or for any other;
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whether the debt securities are subject to subordination and the
terms of such subordination;
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whether the debt securities are guaranteed and the terms of such
guarantee;
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the place or places of payment, transfer, conversion
and/or
exchange of the debt securities;
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whether and under what circumstances we will pay additional
amounts in respect of any tax, assessment or governmental charge
and, if so, whether we will have the option to redeem the debt
securities rather than pay the additional amounts, and the terms
of this option;
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any provisions granting special rights to the holders of the
debt securities, including any provisions requiring us to offer
to repurchase debt securities, upon the occurrence of specific
events;
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the percentages of consolidated net tangible assets applicable
to each of (i) the definition of Principal Property,
(ii) the limitation on liens and (iii) the limitation
on sale and leaseback transactions; and
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The debt securities will be our unsecured obligations. Unless
the debt securities are subject to subordination as specified in
the prospectus supplement and related supplemental indenture,
debt securities will rank equally with our other unsecured and
unsubordinated indebtedness. If subordinated, debt securities
will be unsecured and subordinated in right of payment to the
prior payment in
7
full of all of our unsecured and unsubordinated indebtedness,
subject to the terms of subordination to be set forth in the
prospectus supplement and the supplemental indenture.
Unless the prospectus supplement states otherwise, principal
(and premium, if any) and interest, if any, will be paid by us
in immediately available funds.
For purposes of this prospectus, any reference to the payment of
principal of or premium or interest, if any, on debt securities
will include additional amounts if required by the terms of the
debt securities.
None of the indentures limits the amount of debt securities that
may be issued thereunder from time to time. Debt securities
issued under an indenture, when a single trustee is acting for
all debt securities issued under that indenture, are called the
securities. Each indenture also provides that there
may be more than one trustee, each with respect to one or more
different series of securities. See Resignation of
Trustee on page 19. At a time when two or more
trustees are acting under one of the indentures, each with
respect to only certain series, the term securities
means the one or more series of debt securities with respect to
which each respective trustee is acting. In the event that there
is more than one trustee under one of the indentures, the powers
and trust obligations of each trustee described in this
prospectus will extend only to those series of securities for
which it is trustee. If two or more trustees are acting under
one of the indentures, then the securities for which each
trustee is acting would be treated as if issued under separate
indentures.
The indentures do not contain any provisions that give you
protection in the event we issue a large amount of debt or we
are acquired by another entity.
We refer you to the prospectus supplement for information with
respect to any deletions from, modifications of or additions to
the Events of Default or our covenants that are described below,
including any addition of a covenant or other provision
providing event risk or similar protection.
We have the ability to issue securities with terms different
from those of securities previously issued and, without the
consent of the holders thereof, to reopen a previous issue of a
series of securities and issue additional securities of that
series unless the reopening was restricted when that series was
created.
Conversion and
Exchange
If any debt securities are convertible into or exchangeable for
other securities, the prospectus supplement will explain the
terms and conditions of the conversion or exchange, including
the conversion price or exchange ratio (or the calculation
method), the conversion or exchange period (or how the period
will be determined), if conversion or exchange will be mandatory
or at the option of the holder or us, provisions for adjusting
the conversion price or the exchange ratio and provisions
affecting conversion or exchange in the event of the redemption
of the underlying debt securities. These terms may also include
provisions under which the number or amount of other securities
to be received by the holders of the debt securities upon
conversion or exchange would be calculated according to the
market price of the other securities as of a time stated in the
prospectus supplement.
Full and
Unconditional Guarantee of Debt Securities of AngloGold Ashanti
Holdings plc and AngloGold Ashanti Holdings Finance
plc
AngloGold Ashanti Limited will fully and unconditionally
guarantee any debt securities issued by AngloGold Ashanti
Holdings plc or AngloGold Ashanti Holdings Finance plc under a
guarantee of the payment of principal of, and any premium,
interest and additional amounts on, these debt
securities when due, whether at maturity or otherwise. AngloGold
Ashanti Limited must obtain the approval of the South African
Reserve Bank (SARB) to provide this guarantee. Therefore, the
issuance of debt securities by AngloGold Ashanti Holdings plc or
AngloGold Ashanti Holdings Finance plc under this prospectus
requires the approval of the SARB. Unless the guarantees are
subject to subordination as specified in the prospectus
supplement and related supplemental indenture, the guarantees
will rank
8
equally with other unsecured and unsubordinated indebtedness of
AngloGold Ashanti Limited. Because the guarantees determine the
ranking of the debt guaranteed by them, guaranteed debt
securities issued by AngloGold Ashanti Holdings plc or AngloGold
Ashanti Holdings Finance plc will also rank equally with other
unsecured and unsubordinated indebtedness of AngloGold Ashanti
Limited, unless otherwise specified in the prospectus supplement
and related supplemental indenture. For a discussion of the
payment of additional amounts, please see
Payment of Additional Amounts with Respect to the Debt
Securities below. Under the terms of the full and
unconditional guarantee, holders of the guaranteed debt
securities will not be required to exercise their remedies
against AngloGold Ashanti Holdings plc or AngloGold Ashanti
Holdings Finance plc, as the case may be, before they proceed
directly against AngloGold Ashanti Limited.
Payment of
Additional Amounts with Respect to the Debt Securities
Unless otherwise indicated in the applicable prospectus
supplement, we will pay all amounts of principal of, and any
premium and interest on, any debt securities, without deduction
or withholding for any taxes, assessments or other charges
imposed by the government of South Africa or the Isle of Man or
any other jurisdiction where we are tax resident or in which we
do business, as the case may be, or the government of a
jurisdiction in which a successor to any of us, as the case may
be, is organized or tax resident (Taxing
Jurisdiction). If deduction or withholding of any of these
charges is required by a Taxing Jurisdiction, we will pay any
additional amounts necessary to make the net amount paid to the
affected holders equal the amount the holders would have
received in the absence of the deduction or withholding.
However, these additional amounts will not include:
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the amount of any tax, assessment or other governmental charge
imposed by any government of any jurisdiction other than a
Taxing Jurisdiction (including any unit of the federal or a
state government of the United States);
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the amount of any tax, assessment or other governmental charge
that is only payable because either:
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a type of connection exists between the holder and a Taxing
Jurisdiction; or
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the holder presented the debt security for payment more than
30 days after the date on which the relevant payment
becomes due or was provided for, whichever is later;
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any estate, inheritance, gift, sale, transfer, personal property
or similar tax, duty, assessment or other governmental charge;
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the amount of any tax, assessment or other governmental charge
that is payable other than by deduction or withholding from a
payment on the debt securities;
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the amount of any tax, assessment or other governmental charge
that is imposed or withheld due to the holder or beneficial
owner of the debt security failing to accurately comply with a
request from us either to provide information concerning the
beneficial owners nationality, residence or identity or
make any claim or to satisfy any information or reporting
requirement, if the completion of either is required by the
Taxing Jurisdiction as a precondition to exemption from the
applicable governmental charge;
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any withholding or deduction that is imposed on a payment to an
individual and required to be made pursuant to any European
Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN (European Union Economic and Finance
Ministers) Counsel Meeting of
26-27 November
2000 or any law implementing or complying with or introduced in
order to conform to such Directive; or
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any combination of the withholdings, taxes, assessments or other
governmental charges described above.
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Additionally, additional amounts shall not be paid with respect
to any payment to a holder who is a fiduciary or partnership or
other than the sole beneficial owner of such payment to the
extent a beneficiary or settlor with respect to such fiduciary
or a member of such partnership or a beneficial owner would not
have been entitled to such additional amounts had it been the
holder.
The prospectus supplement will describe any additional
circumstances under which additional amounts will not be paid
with respect to guaranteed debt securities.
References in this prospectus and the prospectus supplement to
principal or interest will be deemed to include additional
amounts payable with respect thereto.
Optional Tax
Redemption
Unless otherwise indicated in the applicable prospectus
supplement, except in the case of debt securities that have a
variable rate of interest and that may be redeemed on any
interest payment date, we may redeem each series of guaranteed
debt securities at our option in whole but not in part at any
time, if:
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we would be required to pay additional amounts, as a result of
any change in the tax laws (including the application or
interpretation thereof) of a Taxing Jurisdiction or of which a
Taxing Jurisdiction is a party that, in the case of any of us,
becomes effective on or after the date of issuance of that
series (or, in the case of a successor that becomes effective
after the date such successor becomes obligated under the debt
securities), as explained above under Payment of
Additional Amounts with Respect to the Debt
Securities, or
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there is a change in the tax laws (including the application or
interpretation thereof) of a Taxing Jurisdiction or of which a
Taxing Jurisdiction is a party, this change is proposed and
becomes effective on or after a date on which one of our
affiliates borrows money from us, and because of the change this
affiliate would be required to deduct or withhold tax on
payments to us to enable us to make any payment of principal,
premium, if any, or interest.
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Except in the case of outstanding original issue discount debt
securities, which may be redeemed at the redemption price
specified by the terms of that series of debt securities, the
redemption price will be equal to the principal amount plus
accrued interest to the date of redemption.
In both of these cases, however, we will not be permitted to
redeem a series of debt securities if we can avoid either the
payment of additional amounts, or deductions or withholding, as
the case may be, by using reasonable measures available to us.
Additional
Mechanics
We may issue the debt securities in registered form, in which
case we may issue them either in book-entry form only or in
certificated form. Debt securities issued in
book-entry form will be represented by global securities. We
expect that we will usually issue debt securities in book-entry
form only represented by global securities.
We also will have the option of issuing debt securities in
non-registered form as bearer securities if we issue the
securities outside the United States to
non-U.S. persons.
In that case, the prospectus supplement will set forth selling
and other restrictions applicable to the offer and purchase of
such debt securities and the mechanics for holding the bearer
securities, including the procedures for receiving payments, for
exchanging the bearer securities for registered securities of
the same series, and for receiving notices. The prospectus
supplement will also describe the requirements with respect to
our maintenance of offices or agencies outside the United States
and the applicable U.S. tax law requirements.
Holders of
Registered Debt Securities
Book-Entry Holders. We will issue
registered debt securities in book-entry form only, unless we
specify otherwise in our applicable prospectus supplement. This
means debt securities will be
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represented by one or more global securities registered in the
name of a depositary that will hold them on behalf of financial
institutions that participate in the depositarys
book-entry system. These participating institutions, in turn,
hold beneficial interests in the debt securities held by the
depositary or its nominee. These institutions may hold these
interests on behalf of themselves or customers.
Under each indenture, only the person in whose name a debt
security is registered is recognized as the holder of that debt
security. Consequently, for debt securities issued in global
form, we will recognize only the depositary as the holder of the
debt securities and we will make all payments on the debt
securities to the depositary. The depositary will then pass
along the payments it receives to its participants, which in
turn will pass the payments along to their customers who are the
beneficial owners. The depositary and its participants do so
under agreements they have made with one another or with their
customers; they are not obligated to do so under the terms of
the debt securities.
As a result, investors will not own debt securities directly.
Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution
that participates in the depositarys book-entry system or
holds an interest through a participant. As long as the debt
securities are issued in global form, investors will be indirect
holders, and not holders, of the debt securities.
Street Name Holders. In the future, we
may issue debt securities in certificated form or terminate a
global security. In these cases, investors may choose to hold
their debt securities in their own names or in street
name. Debt securities held in street name are registered
in the name of a bank, broker or other financial institution
chosen by the investor, and the investor holds a beneficial
interest in those debt securities through the account he or she
maintains at that institution.
For our debt securities held in street name, we will recognize
only the intermediary banks, brokers and other financial
institutions in whose names the debt securities are registered
as the holders of those debt securities and we will make all
payments on those debt securities to them. These institutions
will pass along the payments they receive to their customers who
are the beneficial owners, but only because they agree to do so
in their customer agreements or because they are legally
required to do so. Investors who hold debt securities in street
name will be indirect holders, and not holders, of the debt
securities.
Legal Holders. Our obligations, as well
as the obligations of the applicable trustee and those of any
third parties employed by us or the applicable trustee, run only
to the legal holders of the debt securities. We do not have
obligations to investors who hold beneficial interests in global
securities, in street name or by any other indirect means. This
will be the case whether an investor chooses to be an indirect
holder of a debt security or has no choice because we are
issuing the debt securities only in global form.
For example, once we make a payment or give a notice to the
holder, we have no further responsibility for the payment or
notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass it along
to the indirect holders but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose (for
example, to amend an indenture or to relieve us of the
consequences of a default or of our obligation to comply with a
particular provision of an indenture), we would seek the
approval only from the holders, and not the indirect holders, of
the debt securities. Whether and how the holders contact the
indirect holders is up to the holders.
When we refer to you, we mean those who invest in the debt
securities being offered by this prospectus, whether they are
the holders or only indirect holders of those debt securities.
When we refer to your debt securities, we mean the debt
securities in which you hold a direct or indirect interest.
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Special Considerations for Indirect
Holders. If you hold debt securities through
a bank, broker or other financial institution, either in
book-entry form or in street name, we urge you to check with
that institution to find out:
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders consent, if
ever required;
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whether and how you can instruct it to send you debt securities
registered in your own name so you can be a holder, if that is
permitted in the future for a particular series of debt
securities;
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how it would exercise rights under the debt securities if there
were a default or other event triggering the need for holders to
act to protect their interests; and
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if the debt securities are in book-entry form, how the
depositarys rules and procedures will affect these matters.
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Global
Securities
What is a Global Security? As noted above, we
usually will issue debt securities as registered securities in
book-entry form only. A global security represents one or any
other number of individual debt securities. Generally, all debt
securities represented by the same global securities will have
the same terms.
Each debt security that we issue in book-entry form will be
represented by a global security that we deposit with and
register in the name of a financial institution or its nominee
that we select. The financial institution that we select for
this purpose is called the depositary. Unless we specify
otherwise in the applicable prospectus supplement, The
Depository Trust Company, New York, New York, known as DTC,
will be the depositary for all debt securities issued in
book-entry form.
A global security may not be transferred to or registered in the
name of anyone other than the depositary or its nominee, unless
special termination situations arise. We describe those
situations below under Special Situations when a Global
Security Will Be Terminated. As a result of these
arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all debt securities represented
by a global security, and investors will be permitted to own
only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker,
bank or other financial institution that in turn has an account
with the depositary or with another institution that has an
account with the depositary. Thus, an investor whose security is
represented by a global security will not be a holder of the
debt security, but only an indirect holder of a beneficial
interest in the global security.
Special Considerations for Global
Securities. As an indirect holder, an
investors rights relating to a global security will be
governed by the account rules of the investors financial
institution and of the depositary, as well as general laws
relating to securities transfers. The depositary that holds the
global security will be considered the holder of the debt
securities represented by the global security.
If debt securities are issued only in the form of a global
security, an investor should be aware of the following:
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An investor cannot cause the debt securities to be registered in
his or her name, and cannot obtain non-global certificates for
his or her interest in the debt securities, except in the
special situations we describe below.
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An investor will be an indirect holder and must look to his or
her own bank or broker for payments on the debt securities and
protection of his or her legal rights relating to the debt
securities, as we describe under Holders of Registered
Debt Securities above.
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An investor may not be able to sell interests in the debt
securities to some insurance companies and other institutions
that are not permitted by law to own securities in book-entry
form.
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An investor may not be able to pledge his or her interest in a
global security in circumstances where certificates representing
the debt securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be
effective.
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The depositarys policies, which may change from time to
time, will govern payments, transfers, exchanges and other
matters relating to an investors interest in a global
security. We and the trustee have no responsibility for any
aspect of the depositarys actions or for its records of
ownership interests in a global security. We and the trustee
also do not supervise the depositary in any way.
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The depositary requires that those who purchase and sell
interests in a global security deposited in its book-entry
system use immediately available funds. Your broker or bank may
also require you to use immediately available funds when
purchasing or selling interests in a global security.
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Financial institutions that participate in the depositarys
book-entry system, and through which an investor holds its
interest in a global security, may also have their own policies
affecting payments, notices and other matters relating to the
debt security. There may be more than one financial intermediary
in the chain of ownership for an investor. We do not monitor and
are not responsible for the actions of any of those
intermediaries.
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Special Situations when a Global Security Will Be
Terminated. In a few special situations
described below, a global security will be terminated and
interests in it will be exchanged for certificates in non-global
form (certificated securities). After that exchange, the choice
of whether to hold the certificated debt securities directly or
in street name will be up to the investor. Investors must
consult their own banks or brokers to find out how to have their
interests in a global security transferred on termination to
their own names, so that they will be holders. We have described
the rights of holders and street name investors under
Holders of Registered Debt Securities above.
The special situations for termination of a global security are
as follows:
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if the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global
security, and we do not appoint another institution to act as
depositary within 120 days;
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if we notify the trustee that we wish to terminate that global
security;
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if an Event of Default has occurred with regard to the debt
securities represented by that global security and has not been
cured or waived; we discuss defaults later under Events of
Default; or
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if any other condition specified in our prospectus supplement
occurs.
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The prospectus supplement may list situations for terminating a
global security that would apply only to the particular series
of debt securities covered by the prospectus supplement. If a
global security is terminated, only the depositary, and not we
or the applicable trustee, is responsible for deciding the names
of the institutions in whose names the debt securities
represented by the global security will be registered and,
therefore, who will be the direct holders of those debt
securities.
Payment and
Paying Agents
We will pay interest to the person listed in the applicable
registrars records as the owner of the debt security at
the close of business on a particular day in advance of each due
date for interest, even if that person no longer owns the debt
security on the interest due date. That day, usually about two
weeks in advance of the interest due date, is called the
regular record date. Because we will pay all the
interest for an interest period to the holders on the regular
record date, holders buying and
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selling debt securities must work out between themselves the
appropriate purchase price. The most common manner is to adjust
the sales price of the debt securities to prorate interest
fairly between buyer and seller based on their respective
ownership periods within the particular interest period. This
prorated interest amount is called accrued interest.
Payments on Global Securities. We will
make payments on a global security in accordance with the
applicable policies of the depositary as in effect from time to
time. Under those policies, we will make payments directly to
the depositary, or its nominee, and not to any indirect holders
who own beneficial interests in the global security. An indirect
holders right to those payments will be governed by the
rules and practices of the depositary and its participants, as
described under Global Securities What Is a
Global Security?
Payments on Certificated Securities. We
will make payments on a debt security in non-global certificated
form as follows. We will pay interest that is due on an interest
payment date by check mailed on the interest payment date to the
holder at his or her address shown on the trustees records
as of the close of business on the regular record date. We will
make all payments of principal and premium, if any, by check at
the office of the applicable trustee in New York
and/or at
other offices that may be specified in the prospectus supplement
or in a notice to holders, against surrender of the debt
security. All payments by check will be made in
next-day
funds, that is funds that become available on the day after the
check is cashed.
Alternatively, if a certificated security has a face amount of
at least $10,000,000 and the holder asks us to do so, we will
pay any amount that becomes due on the debt security by wire
transfer of immediately available funds to an account at a bank
in New York, on the due date. To request payment by wire, the
holder must give the applicable trustee or other paying agent
appropriate transfer instructions at least 15 business days
before the requested wire payment is due. In the case of any
interest payment due on an interest payment date, the
instructions must be given by the person who is the holder on
the relevant regular record date. Any wire instructions, once
properly given, will remain in effect unless and until new
instructions are given in the manner described above.
Payment when Offices Are Closed. If any
payment is due on a debt security on a day that is not a
business day, we will make the payment on the next day that is a
business day. Payments postponed to the next business day in
this situation will be treated under the indentures as if they
were made on the original due date. A postponement of this kind
will not result in a default under any debt security or
indenture, and no interest will accrue on the postponed amount
from the original due date to the next day that is a business
day.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS
OR BROKERS FOR INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS ON
THEIR DEBT SECURITIES.
Events of
Default
You will have special rights if an Event of Default occurs in
respect of the debt securities of your series and is not cured,
as described later in this subsection.
What Is an Event of Default? Unless we specify
otherwise in the applicable prospectus supplement, the term
Event of Default in respect of the debt securities
of your series means any of the following:
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we do not pay the principal of, or any premium on, a debt
security of the series on its due date;
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we do not pay interest or additional amounts on a debt security
of the series within 30 days of its due date;
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we do not pay when due, after the expiration of any applicable
grace period, any portion of the principal of, or involuntary
acceleration of the maturity (which acceleration is not
rescinded or annulled within 10 days) of, debt of AngloGold
Ashanti Limited or AngloGold Ashanti Holdings
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plc or AngloGold Ashanti Holdings Finance plc (as applicable)
having an aggregate principal amount in excess of the greater of
(i) $100,000,000 and (ii) 5% of the consolidated net
tangible assets of AngloGold Ashanti Limited and its
consolidated subsidiaries;
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we do not deposit any sinking fund payment in respect of debt
securities of the series on its due date;
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we remain in breach of a covenant in respect of debt securities
of the series for 60 days after we receive a written notice
of default stating we are in breach. The notice must be sent by
either the trustee or holders of 25% of the principal amount of
debt securities of that series;
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we file for bankruptcy or certain other events of bankruptcy,
insolvency or reorganization occur; or
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any other Event of Default in respect of debt securities of the
series described in the prospectus supplement occurs.
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An Event of Default for a particular series of debt securities
does not necessarily constitute an Event of Default for any
other series of debt securities issued under the same or any
other indenture. The trustee may withhold notice to the holders
of debt securities of any default, except in the payment of
principal or interest, if it considers the withholding of notice
to be in the best interests of the holders.
Remedies if an Event of Default
Occurs. Unless we specify otherwise in the
applicable prospectus supplement, if an Event of Default has
occurred and has not been cured, the trustee or the holders of
25% in principal amount of the debt securities of the affected
series may declare the entire principal amount of all the debt
securities of that series to be due and immediately payable.
This is called a declaration of acceleration of maturity. A
declaration of acceleration of maturity may be canceled by the
holders of at least a majority in principal amount of the debt
securities of the affected series.
Except in cases of default, where the trustee has some special
duties, the trustee is not required to take any action under the
applicable indenture at the request of any holders unless the
holders offer the trustee protection from expenses and liability
(called an indemnity) satisfactory to the trustee.
If indemnity reasonably satisfactory to the trustee is provided,
the holders of a majority in principal amount of the outstanding
debt securities of the relevant series may direct the time,
method and place of conducting any lawsuit or other formal legal
action seeking any remedy available to the trustee. The trustee
may refuse to follow those directions in certain circumstances.
No delay or omission in exercising any right or remedy will be
treated as a waiver of that right, remedy or Event of Default.
Unless we specify otherwise in the applicable prospectus
supplement, before you are allowed to bypass your trustee and
bring your own lawsuit or other formal legal action or take
other steps to enforce your rights or protect your interests
relating to the debt securities, the following must occur:
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you must give your trustee written notice that an Event of
Default has occurred and remains uncured;
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the holders of 25% in principal amount of all outstanding debt
securities of the relevant series must make a written request
that the trustee take action because of the default and must
offer indemnity to the trustee reasonably satisfactory to the
trustee against the cost and other liabilities of taking that
action;
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the trustee must not have taken action for 60 days after
receipt of the above notice and offer of indemnity; and
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the holders of a majority in principal amount of the debt
securities of the relevant series must not have given the
trustee a direction inconsistent with the above notice.
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However, you are entitled at any time to bring a lawsuit for the
payment of money due on your debt securities on or after the due
date.
Unless we specify otherwise in the applicable prospectus
supplement, holders of a majority in principal amount of the
debt securities of the affected series may waive any past
defaults other than:
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the payment of principal, any premium or interest; and
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in respect of a covenant that cannot be modified or amended
without the consent of each holder.
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BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS
OR BROKERS FOR INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO
OR MAKE A REQUEST OF THE TRUSTEE AND HOW TO DECLARE OR CANCEL AN
ACCELERATION.
Each year, we will furnish to each trustee a written statement
of certain of our officers certifying that to their knowledge we
are in compliance with the applicable indenture and the debt
securities, or else specifying any default.
Merger or
Consolidation
Under the terms of the indentures, we are generally permitted to
consolidate or merge with another entity. We are also permitted
to sell all or substantially all of our assets to another
entity. However, we may not take any of these actions unless all
the following conditions are met:
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where we merge out of existence or sell our assets, the
resulting entity must agree to be legally responsible for the
debt securities;
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immediately after giving effect to the merger or sale of assets,
no default on the debt securities shall have occurred and be
continuing. For purposes of this no-default test, a default
would include an Event of Default that has occurred and has not
been cured, as described on page 14 under Events of
Default What Is an Event of Default?. A
default for this purpose would also include any event that would
be an Event of Default if the requirements for giving us a
notice of default or our default having to exist for a specific
period of time were disregarded;
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we must deliver certain certificates and documents to the
trustee; and
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we must satisfy any other requirements specified in the
prospectus supplement relating to a particular series of debt
securities.
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Modification or
Waiver
There are three types of changes we can make to any of the
indentures and the debt securities issued under the indentures.
Changes Requiring Your Approval. First,
there are changes that we cannot make to your debt securities
without your specific approval. Following is a list of those
types of changes unless we specify otherwise in the applicable
prospectus supplement:
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change the stated maturity of the principal of or interest on a
debt security;
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reduce any amounts due on a debt security;
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reduce the amount of principal payable upon acceleration of the
maturity of a security following a default;
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adversely affect any right of repayment at the holders
option;
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change the place (except as otherwise described in the
prospectus or prospectus supplement) or currency of payment on a
debt security;
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impair your right to sue for payment;
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adversely affect any right to convert or exchange a debt
security in accordance with its terms;
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reduce the percentage in principal amount of holders of debt
securities whose consent is needed to modify or amend the
applicable indenture;
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reduce the percentage in principal amount of holders of debt
securities whose consent is needed to waive compliance with
certain provisions of the applicable indenture or to waive
certain defaults;
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modify any other aspect of the provisions of the applicable
indenture dealing with modification and waiver of past defaults,
changes to the quorum or voting requirements or the waiver of
certain covenants; and
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change any obligation to pay additional amounts, as explained
above under Payment of Additional Amounts with Respect to
the Debt Securities.
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Changes Not Requiring Approval. The
second type of change does not require any vote by the holders
of the debt securities. This type is limited to clarifications
and certain other changes that would not adversely affect
holders of the outstanding debt securities in any material
respect. Nor do we need any approval to make any change that
affects only debt securities to be issued under any of the
indentures after the change takes effect.
Changes Requiring Majority
Approval. Any other change to any of the
indentures and the debt securities would require the following
approval unless we specify otherwise in the applicable
prospectus supplement:
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If the change affects only one series of debt securities, it
must be approved by the holders of a majority in principal
amount of that series;
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If the change affects more than one series of debt securities
issued under the same indenture, it must be approved by the
holders of a majority in principal amount of all of the series
affected by the change, with all affected series voting together
as one class for this purpose.
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In each case, the required approval must be given by written
consent.
The holders of a majority in principal amount of all of the
series of debt securities issued under an indenture, voting
together as one class for this purpose, may waive our compliance
with some of our covenants in that indenture. However, we cannot
obtain a waiver of a payment default or of any of the matters
covered by the bullet points included above under Changes
Requiring Your Approval.
Further Details Concerning Voting. We
will generally be entitled to set any day as a record date for
the purpose of determining the holders of outstanding securities
that are entitled to vote or take other action under the
indentures. If we set a record date for a vote or other action
to be taken by holders of one or more series, that vote or
action may be taken only by persons who are holders of
outstanding securities of those series on the record date, and
the vote or other action must be taken within eleven months
following the record date. Unless otherwise specified in the
applicable prospectus supplement or supplemental indenture, the
holder of a debt security will be entitled to one vote for each
$1,000 principal amount of the debt security that is outstanding
and held by it. Debt securities will not be considered
outstanding, and therefore not eligible to vote, if we have
deposited or set aside in trust money for their payment or
redemption. Debt securities will also not be eligible to vote if
they have been fully defeased as described later under
Defeasance Full Defeasance.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS
OR BROKERS FOR INFORMATION ON HOW APPROVAL MAY BE GRANTED OR
DENIED IF WE SEEK TO CHANGE THE APPLICABLE INDENTURE OR THE DEBT
SECURITIES OR REQUEST A WAIVER.
17
Defeasance
The following provisions will be applicable to each series of
debt securities unless we state otherwise in the applicable
prospectus supplement that the provisions of covenant defeasance
and full defeasance will not be applicable to that series.
Covenant Defeasance. Under current
U.S. federal tax law, we can make the deposit described
below and be released from some of the restrictive covenants in
the indenture under which a particular series was issued. This
is called covenant defeasance. In that event, you
would lose the protection of those restrictive covenants but
would gain the protection of having cash and
U.S. government securities set aside in trust to repay your
debt securities. In order to achieve covenant defeasance, we
must do the following:
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we must deposit in trust for the benefit of all holders of the
debt securities of the particular series a combination of cash
and U.S. government or U.S. government agency notes or
bonds that will generate enough cash to make interest, principal
and any other payments on the debt securities on their various
due dates;
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the covenant defeasance must not otherwise result in
a breach of the indenture or any of our other material
agreements;
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no Event of Default must have occurred and remain uncured;
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we must deliver to the trustee a legal opinion of our counsel
confirming that, under current federal income tax law, we may
make the above deposit without causing you to be taxed on the
debt securities any differently than if we did not make the
deposit and just repaid the debt securities ourselves at
maturity; and
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we must deliver to the trustee a legal opinion and
officers certificate, each stating that all conditions
precedent to covenant defeasance under the indenture
have been met.
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If we accomplish covenant defeasance, you can still look to us
for repayment of the debt securities if there is a shortfall in
the trust deposit or the trustee is prevented from making
payment. In fact, if one of the remaining Events of Default
occurred (such as our bankruptcy) and the debt securities became
immediately due and payable, there might be a shortfall.
Depending on the event causing the default, you may not be able
to obtain payment of the shortfall.
Full Defeasance. If there is a change
in U.S. federal tax law, as described below, we can legally
release ourselves from all payment and other obligations on the
debt securities of a particular series (called full
defeasance) if we put in place the following arrangements
for you to be repaid:
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we must deposit in trust for the benefit of all holders of the
debt securities of the particular series a combination of cash
and U.S. government or U.S. government agency notes or
bonds that will generate enough cash to make interest, principal
and any other payments on the debt securities on their various
due dates;
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the full defeasance must not otherwise result in a
breach of the indenture or any of our other material agreements;
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no Event of Default must have occurred and remain uncured;
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we must deliver to the trustee a legal opinion confirming that
there has been a change in current federal tax law or an IRS
ruling that lets us make the above deposit without causing you
to be taxed on the debt securities any differently than if we
did not make the deposit and just repaid the debt securities
ourselves at maturity. Under current U.S. federal tax law,
the deposit and our legal release from the debt securities would
be treated as though we paid you your share of the cash and
notes or bonds at the time the cash and notes or bonds were
deposited in trust in exchange for your debt securities and you
would recognize gain or loss on the debt securities at the time
of the deposit; and
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we must deliver to the trustee an opinion of counsel and an
officers certificate, each stating that all conditions
precedent to full defeasance under the indenture
have been met.
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If we ever did accomplish full defeasance, as described above,
you would have to rely solely on the trust deposit for repayment
of the debt securities. You could not look to us for repayment
in the unlikely event of any shortfall.
Form, Exchange
and Transfer of Registered Securities
If registered debt securities cease to be issued in global form,
they will be issued:
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only in fully registered certificated form;
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without interest coupons; and
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unless we indicate otherwise in the applicable prospectus
supplement, in denominations of $1,000 and amounts that are
multiples of $1,000.
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Holders may exchange their certificated securities for debt
securities of smaller denominations or combined into fewer debt
securities of larger denominations, as long as the total
principal amount is not changed.
Holders may exchange or transfer their certificated securities
at the place of payment specified in the applicable prospectus
supplement. We have appointed the trustee to act as our agent
for registering debt securities in the names of holders
transferring debt securities. We may appoint another entity to
perform these functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer
or exchange their certificated securities, but they may be
required to pay any tax or other governmental charge associated
with the transfer or exchange. The transfer or exchange will be
made only if our transfer agent is satisfied with the
holders proof of legal ownership.
If we have designated additional transfer agents for your debt
security, they will be named in the applicable prospectus
supplement. We may appoint additional transfer agents or cancel
the appointment of any particular transfer agent. We may also
approve a change in the office through which any transfer agent
acts.
If any debt securities of a particular series are redeemable, we
may block the transfer or exchange of those debt securities
during the period beginning 15 days before the day we mail
the notice of redemption and ending on the day of that mailing,
in order to freeze the list of holders to prepare the mailing.
We may also refuse to register transfers or exchanges of any
debt securities selected for redemption, except that we will
continue to permit transfers and exchanges of the unredeemed
portion of any debt security that will be partially redeemed.
If a registered debt security is issued in global form, only the
depositary will be entitled to transfer and exchange the debt
security as described in this subsection, since it will be the
sole holder of the debt security.
Resignation of
Trustee
Each trustee may resign or be removed with respect to one or
more series of securities provided that a successor trustee is
appointed to act with respect to these series. In the event that
two or more persons are acting as trustee with respect to
different series of securities under one of the indentures, each
of the trustees will be a trustee of a trust separate and apart
from the trust administered by any other trustee.
19
Limitation on
Liens
We covenant in the debt indenture and in each of the guaranteed
debt indentures that we will not, nor will we permit any
Restricted Subsidiary to, create, incur, issue,
assume or guarantee any Capital Markets Indebtedness if the
Capital Markets Indebtedness is secured by any mortgage,
security interest, pledge, lien or other encumbrance
(collectively, a lien or liens) upon any
Principal Property of ours or any Restricted
Subsidiary or any shares of stock of or debt owed to any
Restricted Subsidiary, whether owned at the date of the
applicable indenture or thereafter acquired, without effectively
securing the securities issued under that indenture equally and
ratably with or prior to this secured debt. Please see further
below for definitions of Restricted Subsidiary,
Capital Markets Indebtedness and Principal
Property.
This lien restriction will not apply to, among other things:
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liens already existing at the time of our first issuance of debt
securities under the applicable indenture;
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liens on property or securities of any corporation existing at
the time such corporation becomes a Restricted Subsidiary;
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liens arising by operation of law in the ordinary course of
business and securing amounts not more than 60 days overdue;
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liens created on an undertaking or asset in favor of a
governmental or quasi-governmental (whether national, local or
regional) or supra-governmental body in respect of the financing
of that undertaking or asset at a preferential rate which
secures only the payment or repayment of the financing for that
undertaking or asset;
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liens created in respect of any margin or collateral delivered
or otherwise provided in connection with metal transactions;
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liens on any property acquired, constructed or improved after
the date of the applicable indenture that are created or assumed
before or within 12 months after the acquisition,
construction or improvement to secure or provide for the payment
of all or any part of the purchase price or cost of construction
or improvement incurred after the date of the applicable
indenture, or existing liens on property acquired after the date
of the applicable indenture, provided that such liens are
limited to such property acquired or constructed or to the
improvement of such properties;
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liens on any Principal Property imposed to secure the payment of
costs of exploration, drilling, development, operation,
construction, alteration, repair, improvement or rehabilitation,
if they are created or assumed before or within 12 months
after completion of these activities;
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liens securing debt owed by a Restricted Subsidiary to us or to
another Restricted Subsidiary;
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liens on any property, shares of stock or indebtedness of a
corporation consolidated with or merged into, or substantially
all of the assets of which are acquired by us or a Restricted
Subsidiary existing at the time of such acquisition;
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certain deposits or pledges of assets;
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liens in favor of governmental bodies to secure partial,
progress, advance or other payments under any contract or
statute or to secure indebtedness incurred to finance all or any
part of the purchase price or cost of constructing or improving
the property subject to these liens, including liens to secure
tax exempt pollution control revenue bonds;
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liens on property acquired by us or a Restricted Subsidiary
through the exercise of rights arising out of defaults on
receivables acquired in the ordinary course of business;
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judgment liens in which the finality of the judgment is being
contested in good faith;
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liens for the sole purpose of extending, renewing or replacing
debt secured by the permitted liens listed here, subject to
certain limitations;
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liens for taxes or assessments or governmental charges or levies
not yet due or delinquent, or which can be paid without penalty
after they are due, or which are being contested in good faith;
landlords liens on leased property; and other similar
liens which do not, in our opinion, materially impair the use of
that property in the operation of our business or the business
of a Restricted Subsidiary or the value of that property for the
purposes of that business;
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any sale of receivables that is reflected as secured
indebtedness on a balance sheet prepared in accordance with
international financial reporting standards;
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liens on margin stock owned by us and Restricted Subsidiaries to
the extent this margin stock exceeds 25% of the fair market
value of the sum of the Principal Property and that of the
Restricted Subsidiaries plus the shares of stock (including
margin stock) and indebtedness incurred by the Restricted
Subsidiaries;
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liens over assets for the purpose of securing financing for
construction and development of a project such as a mining
venture, which we usually call project finance;
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any mineral right, royalty, production payment, interest in net
proceeds or profits, right to take production in kind, easement,
right of way, surface use right, water right or other interest
kept by the seller in a property we acquire, and any sale by us
to another person of a mineral right, royalty, production
payment, interest in net proceeds or profits, right to take
production in kind, easement, right of way, surface use right,
water right or other interest;
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any lien created to secure our portion of someone elses
expenses to develop or conduct operations with respect to
mineral resources on a property in which we or one of our
Restricted Subsidiaries has an interest;
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any conveyance or assignment under the terms of which we or one
of our Restricted Subsidiaries conveys or assigns to any person
an interest in any mineral
and/or the
proceeds thereof, any royalty, production payment, interest in
net proceeds or profits, right to take production in kind,
easement, right of way, surface use right, water right or other
interest in real property; and
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any lien to secure the performance of our obligations to others
who jointly hold an interest in property with us.
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In addition, the general lien restriction does not apply to debt
secured by a lien, if the debt, together with all other debt
secured by liens (not including permitted liens described above)
and the Attributable Debt (generally defined as the discounted
present value of net rental payments, but excluding payments on
bona fide operating leases) associated with Sale and
Lease Back Transactions entered into after our first issuance of
debt securities under the relevant indenture (but not including
Sale and Lease Back Transactions pursuant to which
debt has been retired), does not exceed a certain percentage of
the consolidated net tangible assets of AngloGold Ashanti
Limited and its consolidated subsidiaries. The specific
percentage will be determined at the time we issue any debt and
will be described in the applicable prospectus supplement.
The term Restricted Subsidiary is defined in these
indentures to mean any wholly-owned subsidiary of ours which
also owns a Principal Property, unless the subsidiary is
primarily engaged in the business of a finance company.
The term Capital Markets Indebtedness is defined in
the indentures to mean any indebtedness for money borrowed or
interest thereon in the form of bonds, notes, debentures, loan
stock or other similar securities that are, or are capable of
being, quoted, listed or ordinarily dealt with in any stock
exchange, over-the-counter or other securities market, having an
original maturity of more than
21
365 days from its date of issue, or any guarantee or
indemnity in respect of Capital Markets Indebtedness.
The term Principal Property is defined in the
indentures to mean any mine or mining-related facility, together
with the land upon which such plant or other facility is
erected, whose net book value exceeds a certain percentage of
the consolidated net tangible assets of AngloGold Ashanti
Limited and its consolidated subsidiaries, unless our board of
directors thinks that the property is not of material importance
to our overall business or that the portion of a property in
question is not of material importance to the rest of it. The
specific percentage will be determined at the time we issue any
debt and will be described in the applicable prospectus
supplement.
The term Margin Stock as used in these indentures is
intended to mean such term as defined in Regulation U of
the Board of Governors of the U.S. Federal Reserve System.
Limitation on
Sale and Lease Back Transactions
We covenant in the debt indenture and in each of the guaranteed
debt indentures that we will not, nor will we permit any
Restricted Subsidiary, to enter into any arrangement with any
party providing for the leasing to us or any Restricted
Subsidiary of any Principal Property (except for temporary
leases for a term, including renewals, of not more than three
years) which has been or is to be sold by us or the Restricted
Subsidiary to the party (a Sale and Lease Back
Transaction), unless:
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the Attributable Debt (generally defined as the discounted
present value of net rental payments, but excluding payments on
bona fide operating leases) of the Sale and Lease Back
Transaction, together with the Attributable Debt of all other
Sale and Lease Back Transactions entered into since the first
issuance of debt securities under the indenture and the
aggregate principal amount of our debt secured by liens on
Principal Property of ours or any Restricted Subsidiary or any
shares of stock of or debt owed to any Restricted Subsidiary
(but excluding debt secured by authorized liens bulleted under
Limitation on Liens above, and excluding Sale and
Lease Back Transactions pursuant to which debt has been retired)
would not exceed a certain percentage of the consolidated net
tangible assets of AngloGold Ashanti Limited and its
consolidated subsidiaries, which percentage will be determined
at the time we issue any debt and will be described in the
applicable prospectus supplement;
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we or the Restricted Subsidiary would be entitled to incur debt
secured by a lien on the Principal Property to be leased without
securing the securities issued under the applicable indenture,
as described in the bullet points under Limitation on
Liens above;
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we apply an amount equal to the fair value of the Principal
Property that is the subject of a Sale and Leaseback Transaction
to the retirement of the securities, or to the retirement of
long-term indebtedness of ours or a Restricted Subsidiary that
is not subordinated to the debt securities issued; or
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we enter into a bona fide commitment to expend for the
acquisition or improvement of a Principal Property an amount at
least equal to the fair value of the Principal Property leased.
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Certain
Considerations Relating to Foreign Currencies
Debt securities denominated or payable in currencies other than
U.S. dollars may entail significant risks to
U.S. holders. These risks include the possibility of
significant fluctuations in the currency markets, the imposition
or modification of foreign exchange controls and potential
illiquidity in the secondary market. These risks will vary
depending upon the currency or currencies involved and will be
more fully described in the applicable prospectus supplement.
22
DESCRIPTION OF
WARRANTS
The following is a general description of the terms of the
warrants we may issue from time to time. Particular terms of any
warrants we offer will be described in the applicable prospectus
supplement.
General
We may issue warrants to purchase ordinary shares. Such warrants
may be issued independently or together with any other
securities and may be attached or separate from those
securities. We will issue each series of warrants under a
separate warrant agreement to be entered into between us and a
warrant agent. The warrant agent will act solely as our agent
and will not assume any obligation or relationship of agency for
or with holders or beneficial owners of warrants.
The applicable prospectus supplement related to our issue of
warrants will describe the particular terms of any series of
warrants we may issue, including the following:
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the title of the warrants;
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the aggregate number of the warrants;
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the price or prices at which the warrants will be issued;
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the currency or currencies, including composite currencies, in
which the price of the warrants may be payable;
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the designation and terms of the securities purchasable upon
exercise of the warrants and the number of the securities
issuable upon exercise of the warrants;
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the price at which and the currency or currencies, including
composite currencies, in which the securities purchasable upon
exercise of the warrants may be purchased;
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the date on which the right to exercise the warrants shall
commence and the date on which the right to exercise will expire;
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whether the warrants will be issued in registered form or bearer
form;
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if applicable, the minimum or maximum amount of the warrants
which may be exercised at any one time;
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if applicable, the designation and terms of the securities with
which the warrants are issued and the number of the warrants
issued with each security;
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if applicable, the date on and after which the warrants and the
related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of certain U.S. federal and
other applicable income tax considerations; and
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any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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Amendments and
Supplements to Warrant Agreement
We and the warrant agent may amend or supplement the warrant
agreement for a series of warrants without the consent of the
holders of the warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the warrants and
that do not materially and adversely affect the interests of the
holders of the warrants.
23
DESCRIPTION OF
RIGHTS TO PURCHASE ORDINARY SHARES
We may issue subscription rights to purchase our ordinary
shares. We may issue these rights independently or together with
any other offered security. The rights may or may not be
transferable in the hands of their holders.
The applicable prospectus supplement will describe the specific
terms of any subscription rights offering, including:
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the title of the subscription rights;
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the securities for which the subscription rights are exercisable;
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the exercise price for the subscription rights;
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the number of subscription rights issued;
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the extent to which the subscription rights are transferable;
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if applicable, a discussion of the material U.S. federal or
other income tax considerations applicable to the issuance or
exercise of the subscription rights;
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any other terms of the subscription rights, including terms,
procedures and limitations relating to the exchange and exercise
of the subscription rights;
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if applicable, the record date to determine who is entitled to
the subscription rights and the ex-rights date;
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the date on which the rights to exercise the subscription rights
will commence, and the date on which the rights will expire;
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the extent to which the offering includes an over-subscription
privilege with respect to unsubscribed securities; and
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if applicable, the material terms of any standby underwriting
arrangement we enter into in connection with the offering.
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Each subscription right will entitle its holder to purchase for
cash a number of our ordinary shares, ADSs or any combination
thereof at an exercise price described in the applicable
prospectus supplement. Subscription rights may be exercised at
any time up to the close of business on the expiration date set
forth in the prospectus supplement. After the close of business
on the expiration date, all unexercised subscription rights will
become void.
Upon receipt of payment and the subscription form properly
completed and executed at the subscription rights agents
office or another office indicated in the applicable prospectus
supplement, we will, as soon as practicable, forward our
ordinary shares or ADSs purchasable with this exercise. Rights
to purchase ordinary shares in the form of ADSs will be
represented by certificates issued by the ADS depositary upon
receipt of the rights to purchase ordinary shares registered
hereby. The applicable prospectus supplement may offer more
details on how to exercise the subscription rights.
We may determine to offer subscription rights to our members
only or additionally to persons other than members as described
in the applicable prospectus supplement. In the event
subscription rights are offered to our members only and their
rights remain unexercised, we may determine to offer the
unsubscribed offered securities to persons other than members.
In addition, we may enter into a standby underwriting
arrangement with one or more underwriters under which the
underwriter(s) will purchase any offered securities remaining
unsubscribed for after the offering, as described in the
applicable prospectus supplement.
TAXATION
The applicable prospectus supplement will describe certain
U.S. federal income tax considerations of the acquisition,
ownership and disposition of any securities offered under this
prospectus by
24
an initial investor who is a U.S. person (within the
meaning of the U.S. Internal Revenue Code), including, to
the extent applicable, any such consequences relating to debt
securities payable in a currency other than the
U.S. dollar, issued at an original issue discount for
U.S. federal income tax purposes or containing early
redemption provisions or other special items.
The applicable prospectus supplement will describe certain South
African income tax considerations to an investor who is a
non-resident of South Africa of acquiring any securities offered
under this prospectus, including whether the payments of
principal of, premium and interest, if any, on the debt
securities will be subject to South African non-resident
withholding tax.
If the offered securities are debt securities issued by
AngloGold Ashanti Holdings plc or AngloGold Ashanti Holdings
Finance plc, the applicable prospectus supplement will describe
certain Isle of Man income tax considerations to an investor who
is a non-resident of the Isle of Man of acquiring certain
securities offered under this prospectus, including whether the
payments of principal of, premium and interest, if any, on debt
securities will be subject to non-resident withholding tax in
the Isle of Man.
PLAN OF
DISTRIBUTION
The offered securities may be sold, and the underwriters may
resell these offered securities, directly or through agents in
one or more transactions, including negotiated transactions, at
a fixed public offering price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices
related to prevailing market prices or at negotiated prices. The
offered securities may be sold in portions outside the United
States at an offering price and on terms specified in the
applicable prospectus supplement relating to a particular issue
of these offered securities. Without limiting the generality of
the foregoing, any one or more of the following methods may be
used when selling the offered securities:
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ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the
securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
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an exchange distribution in accordance with the rules of the
applicable exchange;
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privately negotiated transactions;
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settlement of short sales entered into after the date of this
prospectus;
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sales in which broker-dealers agree with us or a selling
securityholder to sell a specified number of securities at a
stipulated price per security;
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through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise;
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by pledge to secure debts or other obligations;
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by an underwritten public offering;
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by an underwritten offering of debt instruments convertible into
or exchangeable for our ordinary shares on terms to be described
in the applicable prospectus supplement;
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in a combination of any of the above; or
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any other method permitted pursuant to applicable law. In
addition, the offered securities may be sold by way of exercise
of rights granted pro rata to our existing shareholders.
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The offered securities may also be sold short and securities
covered by this prospectus may be delivered to close out such
short positions, or the securities may be loaned or pledged to
broker-dealers that in turn may sell them. Options, swaps,
derivatives or other transactions may be entered into with
broker-dealers or other financial institutions which require the
delivery to such broker-dealer or other financial institution of
the offered securities and ordinary shares, respectively, which
securities
25
such broker-dealer or other financial institution may resell
pursuant to this prospectus (as supplemental or amended to
reflect such transaction).
Any underwriters or agents will be identified and their
compensation described in the applicable prospectus supplement.
In connection with the sale of offered securities, the
underwriters or agents may receive compensation from us, a
selling securityholder or from purchasers of the offered
securities for whom they may act as agents. The underwriters may
sell offered securities to or through dealers, who may also
receive compensation from the underwriters or from purchasers of
the offered securities for whom they may act as agents.
Compensation may be in the form of discounts, concessions or
commissions. Underwriters, dealers and agents that participate
in the distribution of the offered securities may be deemed to
be underwriters as defined in the U.S. Securities Act of
1933, as amended, or the U.S. Securities Act, and any
discounts or commissions received by them from us or a selling
securityholder and any profit on the resale of the offered
securities by them may be treated as underwriting discounts and
commissions under the U.S. Securities Act.
We or a selling securityholder may enter into agreements that
will entitle the underwriters, dealers and agents to
indemnification by us or a selling securityholder against and
contribution toward certain liabilities, including liabilities
under the U.S. Securities Act.
Certain underwriters, dealers and agents and their associates
may be customers of, engage in transactions with or perform
commercial banking, investment banking, advisory or other
services for a selling securityholder or us, including our
subsidiaries, in the ordinary course of their business.
If so indicated in the applicable prospectus supplement relating
to a particular issue of offered securities, the underwriters,
dealers or agents will be authorized to solicit offers by
certain institutions to purchase the offered securities under
delayed delivery contracts providing for payment and delivery at
a future date. These contracts will be subject only to those
conditions set forth in the applicable prospectus supplement,
and the prospectus supplement will set forth the commission
payable for solicitation of these contracts.
We will advise any selling securityholder that while it is
engaged in a distribution of the offered securities, it is
required to comply with Regulation M promulgated under the
U.S. Securities Exchange Act of 1934, as amended. With limited
exceptions, Regulation M precludes a selling
securityholder, any affiliated purchasers and any broker-dealer
or other person who participates in the distribution from
bidding for or purchasing, or attempting to induce any person to
bid for or purchase, any security which is the subject of the
distribution until the entire distribution is complete. All of
the foregoing might affect the marketability of the offered
securities.
LEGAL
MATTERS
Certain legal matters with respect to South African law will be
passed upon for us by our South African counsel,
Taback & Associates (Pty) Limited. Certain legal
matters with respect to Isle of Man law will be passed upon for
us by Cains Advocates Limited. Certain legal matters with
respect to United States and New York law will be passed upon
for us by Shearman & Sterling LLP, who may rely,
without independent investigation, on Taback &
Associates (Pty) Limited regarding certain South African legal
matters and on Cains Advocates Limited regarding certain Isle of
Man matters.
EXPERTS
Ernst & Young Inc., independent registered public
accounting firm, has audited our consolidated financial
statements included in our Annual Report on
Form 20-F
for the year ended December 31, 2009, as set forth in their
report, which is incorporated by reference in this prospectus.
Our financial statements for the years ended December 31,
2007, 2008 and 2009, are incorporated by reference in reliance
on the report of Ernst & Young Inc., given on their
authority as experts in accounting and auditing.
26
PART II
INFORMATION NOT
REQUIRED IN PROSPECTUS
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Item 8.
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Indemnification
of Directors and Officers
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Section 247 of the South African Companies Act 61 of 1973
as amended provides that a company may indemnify a director,
officer or auditor in respect of any liability incurred by that
person in defending any proceedings against them (in their
capacity as director, officer or auditor of the company),
whether civil or criminal, in which judgment is given in their
favor or in which they are acquitted, or in the circumstance
where the proceedings are abandoned. The indemnity may include
expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
such a person in the action, suit or proceedings.
Section 248 of the South African Companies Act 61 of 1973
as amended allows the court to grant relief to any director,
officer or auditor of a company if it appears to the court that
the person concerned is or may be liable for negligence,
default, breach of duty or breach of trust, but has acted
honestly and reasonably, and that, in light of all the
circumstances, including those connected with the appointment,
that person ought fairly to be excused for the negligence,
default, breach of duty or breach of trust. In this situation,
the court may relieve the person, either wholly or partly, from
his or her liability on such terms as the court may deem fit.
Our articles of association provide that, subject to the
provisions of the South African Companies Act 61 of 1973 as
amended, we will indemnify our directors, managers, secretaries,
and other officers or servants against all costs, losses and
expenses they may incur or become liable to pay by reason of any
contract entered into, or any act or omission done or omitted to
be done by them in the discharge of their duties, including
traveling expenses.
There will be certain changes to the foregoing once the 2008
Companies Act enters into force, which is expected to be 2010.
Under the 2008 Companies Act, a company may not indemnify a
director or officer against any liability for any loss, damages
or costs sustained by a company as a direct or indirect
consequence of the director having acted in the name of the
company, signed anything on behalf of the company, or purported
to bind the company or authorize the taking of any action by or
on behalf of the company, despite knowing that he lacked the
authority to do so. In addition, a company may not indemnify a
director or officer from any wilful misconduct or wilful breach
of trust on the part of the director, or from any fine imposed
under any South African national legislation. A company may
claim reimbursement from any director or officer of the company
for any money paid directly or indirectly to or on behalf of
such director or officer in any manner inconsistent with the
provisions of the 2008 Companies Act.
We have purchased directors and officers liability
insurance. The 2008 Companies Act provides that, except to the
extent that the Companys Memorandum of Incorporation
disallows it, a company may purchase insurance to protect a
director or officer against any liability or expense for which
the company may indemnify a director or officer and any expenses
that the company is permitted to advance to a director or
officer.
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Exhibits:
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*1
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.1
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Proposed form of underwriting agreement for debt securities.
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*1
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.2
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Proposed form of underwriting agreement for guaranteed debt
securities of AngloGold Ashanti Holdings Finance plc.
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*1
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.3
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Proposed form of underwriting agreement for equity securities.
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*1
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.4
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Proposed form of distribution agreement.
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*1
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.5
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Proposed form of underwriting agreement for guaranteed debt
securities of AngloGold Ashanti Holdings plc.
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II-1
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Exhibits:
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****3
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.1
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Amended Memorandum and Articles of Association of AngloGold
Ashanti Limited in effect as of June 2, 2009.
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****4
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.1
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Proposed form of debt indenture between AngloGold Ashanti
Limited and The Bank of New York Mellon, as trustee.
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*4
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.2
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Proposed form of senior fixed rate redeemable or non-redeemable
note.
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****4
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.3
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Proposed form of indenture for guaranteed debt securities of
AngloGold Ashanti Holdings Finance plc, among AngloGold Ashanti
Holdings Finance plc, as issuer, AngloGold Ashanti Limited, as
guarantor, and The Bank of New York Mellon, as trustee.
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*4
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.4
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Proposed form of guaranteed fixed rate redeemable or
non-redeemable note of AngloGold Ashanti Holdings Finance plc.
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*4
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.5
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Proposed form of ordinary shares warrant agreement.
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*4
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.6
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Proposed form of subscription agreement to exercise rights to
purchase ordinary shares.
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**4
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.7
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Amended and Restated Deposit Agreement dated as of June 3,
2008 among AngloGold Ashanti Limited, The Bank of New York
Mellon as Depositary, and all Owners and Beneficial Owners from
time to time of American Depositary Shares issued thereunder.
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***4
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.8
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Form of American Depositary Receipt.
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4
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.9
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Proposed form of indenture for guaranteed debt securities of
AngloGold Ashanti Holdings plc, among AngloGold Ashanti Holdings
plc, as issuer, AngloGold Ashanti Limited, as guarantor, and The
Bank of New York Mellon, as trustee.
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*4
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.10
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Proposed form of guaranteed fixed rate redeemable or
non-redeemable note of AngloGold Ashanti Holdings plc.
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5
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.1
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Opinion of Shearman & Sterling LLP, U.S. counsel.
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5
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.2
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Opinion of Taback & Associates (Pty) Limited, South
African counsel to AngloGold Ashanti Limited.
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.1
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Consent of Ernst & Young Inc., independent registered
public accounting firm.
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.2
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Consent of KPMG Inc., independent registered accounting firm.
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.3
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Consent of BDO Stoy Hayward LLP, independent registered
accounting firm.
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.4
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Consent of Shearman & Sterling LLP (included in its
opinion filed as Exhibit 5.1).
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.5
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Consent of Taback & Associates (Pty) Limited (included
in its opinion filed as Exhibit 5.2).
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Powers of Attorney of the registrants (included on the signature
pages).
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****25
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.1
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Statement of eligibility of The Bank of New York Mellon, as
trustee, under the Trust Indenture Act of 1939 on
Form T-1
relating to the AngloGold Ashanti Limited debt indenture.
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****25
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.2
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Statement of eligibility of The Bank of New York Mellon, as
trustee, under the Trust Indenture Act of 1939 on
Form T-1
relating to the AngloGold Ashanti Holdings Finance plc
guaranteed debt indenture.
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.3
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Statement of eligibility of The Bank of New York Mellon, as
trustee, under the Trust Indenture Act of 1939 on
Form T-1
relating to the AngloGold Ashanti Holdings plc guaranteed debt
indenture.
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* |
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To be furnished on a
Form 6-K
depending on the nature of the offering, if any, pursuant to
this registration statement.
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**
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Incorporated by reference from
Registration Statement
No. 333-159248.
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*** |
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Included in Exhibit 4.7.
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**** |
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Previously filed.
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II-2
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the Commission by such registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration
statement to include any financial statements required by
Item 8.A. of
Form 20-F
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act of 1933 need
not be furnished, provided, that the registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in
the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with
respect to registration statements on
Form F-3,
a post-effective amendment need not be filed to include
financial statements and information required by
Section 10(a)(3) of the Securities Act of 1933 or
Rule 3-19
if such financial statements and information are contained in
periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the
Form F-3.
II-3
(5) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by such registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(Bi) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(6) That, for the purpose of determining liability of such
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities: Each of the
undersigned registrants undertakes that in a primary offering of
securities of such undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, such undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of such
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of such undersigned registrant or used
or referred to by such undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
such undersigned registrant or its securities provided by or on
behalf of such undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by such undersigned registrant to the purchaser.
(b) Each undersigned registrant hereby undertakes that for
purposes of determining any liability under the Securities Act
of 1933, each filing of such registrants annual reports
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Each undersigned registrant hereby undertakes to
supplement the prospectus, after the expiration of the
subscription period, to set forth the results of the
subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities
to be
II-4
purchased by the underwriters, and the terms of any subsequent
reoffering thereof. If any public offering by the underwriters
is to be made on terms differing from those set forth on the
cover page of the prospectus, a post-effective amendment will be
filed to set forth the terms of such offering.
(d) Insofar as indemnification for liabilities under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of any registrant pursuant to
the foregoing provisions, or otherwise, each registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by such registrant of expenses incurred
or paid by a director, officer or controlling person of such
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, such
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(e) Each undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, AngloGold Ashanti Limited, a corporation organized
and existing under the laws of the Republic of South Africa,
certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on
Form F-3
and has duly caused this
Form F-3
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Johannesburg, South
Africa on the 20th day of April, 2010.
AngloGold Ashanti Limited
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By:
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/s/ Srinivasan
Venkatakrishnan
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Name: Srinivasan Venkatakrishnan
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Title:
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Executive Director, Finance
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POWER OF
ATTORNEY
Each of the undersigned do hereby constitute and appoint
Srinivasan Venkatakrishnan, Mark P. Lynam and Paul J. G.
Dennison and each of them, individually, his or her true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, in his or her name, place and
stead, in any and all capacities (including his capacity as a
director
and/or
officer of the registrant), to sign any and all amendments and
post-effective amendments and supplements to this registration
statement, and including any registration statement for the same
offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act, and to file the same,
with all exhibits thereto and other documents in connection
therewith, with the SEC, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them, or his substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Form F-3
registration statement has been signed by the following persons
in the capacities and on the date indicated.
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Signature
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Title
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/s/ *
Mark
Cutifani
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Executive Director and
Chief Executive Officer
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April 20, 2010
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/s/ Srinivasan
Venkatakrishnan
Srinivasan
Venkatakrishnan
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Executive Director and
Chief Financial Officer
(Principal Financial Officer)
* Attorney-in-Fact
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April 20, 2010
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/s/ *
Frank
B. Arisman
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Independent Non-Executive Director
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April 20, 2010
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/s/ *
Russell
P. Edey
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Independent Non-Executive Director and Chairman
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April 20, 2010
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/s/ *
Thokoana
J. Motlatsi
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Independent Non-Executive Director and Deputy Chairman
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April 20, 2010
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II-6
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Signature
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Title
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/s/ *
William
A. Nairn
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Independent Non-Executive Director
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April 20, 2010
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/s/ *
Lumkile
W. Nkuhlu
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Independent Non-Executive Director
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April 20, 2010
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/s/ *
Sipho
M. Pityana
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Independent Non-Executive Director
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April 20, 2010
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/s/ *
John
E. Staples
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Principal Accounting Officer
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April 20, 2010
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/s/ Wayne
M. Chancellor
Wayne
M. Chancellor
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Authorized Representative in the
United States
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April 20, 2010
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II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, AngloGold Ashanti Holdings plc, a corporation
organized and existing under the laws of the Isle of Man,
certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on
Form F-3
and has duly caused this
Form F-3
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Douglas, Isle of Man
on the 20th day of April, 2010.
AngloGold Ashanti Holdings plc
Name: Lloyd McGlew
POWER OF
ATTORNEY
Each of the undersigned do hereby constitute and appoint
Srinivasan Venkatakrishnan, Lloyd McGlew, Emma Callister, Mark
P. Lynam and Paul J.G. Dennison and each of them, individually,
his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, in his or her
name, place and stead, in any and all capacities (including his
or her capacity as a director
and/or
officer of the registrant), to sign any and all amendments and
post-effective amendments and supplements to this registration
statement, and including any registration statement for the same
offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act, and to file the same,
with all exhibits thereto and other documents in connection
therewith, with the SEC, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them, or his or her substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Form F-3
registration statement has been signed by the following persons
in the capacities and on the date indicated.
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Signature
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Title
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/s/ Jonathan
G. Best
Jonathan
G. Best
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Director
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April 20, 2010
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/s/ Lloyd
C. McGlew
Lloyd
C. McGlew
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Director
(Principal Executive Officer)
(Principal Financial Officer)
(Principal Accounting Officer)
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April 20, 2010
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/s/ Dewald
L. Joubert
Dewald
L. Joubert
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Director
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April 20, 2010
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/s/ Donald
C. Lindsay
Donald
C. Lindsay
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Director
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April 20, 2010
|
II-8
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Signature
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Title
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/s/ Srinivasan
Venkatakrishnan
Srinivasan
Venkatakrishnan
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Director
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April 20, 2010
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/s/ Charles
P.A. Vanderpump
Charles
P.A. Vanderpump
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Director
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April 20, 2010
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/s/ Wayne
M. Chancellor
Wayne
M. Chancellor
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Authorized Representative in the
United States
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April 20, 2010
|
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, AngloGold Ashanti Holdings Finance plc, a
corporation organized and existing under the laws of the Isle of
Man, certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on
Form F-3
and has duly caused this
Form F-3
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Douglas, Isle of Man
on the 20th day of April, 2010.
AngloGold Ashanti Holdings Finance plc
Name: Lloyd McGlew
POWER OF
ATTORNEY
Each of the undersigned do hereby constitute and appoint Lloyd
McGlew, Emma Callister, Mark P. Lynam and Paul J.G. Dennison and
each of them, individually, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, in his or her name, place and stead, in any
and all capacities (including his capacity as a director
and/or
officer of the registrant), to sign any and all amendments and
post-effective amendments and supplements to this registration
statement, and including any registration statement for the same
offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act, and to file the same,
with all exhibits thereto and other documents in connection
therewith, with the SEC, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of
them, or his substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Form F-3
registration statement has been signed by the following persons
in the capacities and on the date indicated.
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Signature
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Title
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/s/ Lloyd
C. McGlew
Lloyd
C. McGlew
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Director
(Principal Executive Officer)
* Attorney-in-Fact
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April 20, 2010
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/s/ *
Dewald
L. Joubert
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Director
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April 20, 2010
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/s/ *
Hendrik
J. Snyman
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Director
(Principal Financial Officer)
(Principal Accounting Officer)
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April 20, 2010
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/s/ Emma
Callister
Emma
Callister
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Director
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April 20, 2010
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/s/ *
Donald
C. Lindsay
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Director
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April 20, 2010
|
II-10
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Signature
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Title
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/s/ *
Charles
P.A. Vanderpump
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Director
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April 20, 2010
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/s/ Wayne
M. Chancellor
Wayne
M. Chancellor
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Authorized Representative in the
United States
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April 20, 2010
|
II-11
EXHIBITS
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Exhibit
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Number
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Description
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*1
|
.1
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Proposed form of underwriting agreement for debt securities.
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*1
|
.2
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Proposed form of underwriting agreement for guaranteed debt
securities of AngloGold Ashanti Holdings Finance plc.
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*1
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.3
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Proposed form of underwriting agreement for equity securities.
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*1
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.4
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Proposed form of distribution agreement.
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|
*1
|
.5
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Proposed form of underwriting agreement for guaranteed debt
securities of AngloGold Ashanti Holdings plc.
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****3
|
.1
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Amended Memorandum and Articles of Association of AngloGold
Ashanti Limited in effect as of June 2, 2009.
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****4
|
.1
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Proposed form of debt indenture between AngloGold Ashanti
Limited and The Bank of New York Mellon, as trustee.
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*4
|
.2
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Proposed form of senior fixed rate redeemable or non-redeemable
note.
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****4
|
.3
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Proposed form of indenture for guaranteed debt securities of
AngloGold Ashanti Holdings Finance plc, among AngloGold Ashanti
Holdings Finance plc, as issuer, AngloGold Ashanti Limited, as
guarantor, and The Bank of New York Mellon, as trustee.
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*4
|
.4
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|
Proposed form of guaranteed fixed rate redeemable or
non-redeemable note of AngloGold Ashanti Holdings Finance plc.
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|
*4
|
.5
|
|
Proposed form of ordinary shares warrant agreement.
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|
*4
|
.6
|
|
Proposed form of subscription agreement to exercise rights to
purchase ordinary shares.
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|
**4
|
.7
|
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Amended and Restated Deposit Agreement dated as of June 3,
2008 among AngloGold Ashanti Limited, The Bank of New York
Mellon as Depositary, and all Owners and Beneficial Owners from
time to time of American Depositary Shares issued thereunder.
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***4
|
.8
|
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Form of American Depositary Receipt.
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|
4
|
.9
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Proposed form of indenture for guaranteed debt securities of
AngloGold Ashanti Holdings plc, among AngloGold Ashanti Holdings
plc, as issuer, AngloGold Ashanti Limited, as guarantor, and The
Bank of New York Mellon, as trustee.
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*4
|
.10
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Proposed form of guaranteed fixed rate redeemable or
non-redeemable note of AngloGold Ashanti Holdings plc.
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|
5
|
.1
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Opinion of Shearman & Sterling LLP, U.S. counsel.
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|
5
|
.2
|
|
Opinion of Taback & Associates (Pty) Limited, South
African counsel to AngloGold Ashanti Limited.
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|
23
|
.1
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Consent of Ernst & Young Inc., independent registered
public accounting firm.
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|
23
|
.2
|
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Consent of KPMG Inc., independent registered accounting firm.
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|
23
|
.3
|
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Consent of BDO Stoy Hayward LLP, independent registered
accounting firm.
|
|
23
|
.4
|
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Consent of Shearman & Sterling LLP (included in its
opinion filed as Exhibit 5.1).
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23
|
.5
|
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Consent of Taback & Associates (Pty) Limited (included
in its opinion filed as Exhibit 5.2).
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24
|
|
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Powers of Attorney of the registrants (included on the signature
pages).
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|
****25
|
.1
|
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Statement of eligibility of The Bank of New York Mellon, as
trustee, under the Trust Indenture Act of 1939 on
Form T-1
relating to the AngloGold Ashanti Limited debt indenture.
|
|
****25
|
.2
|
|
Statement of eligibility of The Bank of New York Mellon, as
trustee, under the Trust Indenture Act of 1939 on
Form T-1
relating to the AngloGold Ashanti Holdings Finance plc
guaranteed debt indenture.
|
|
25
|
.3
|
|
Statement of eligibility of The Bank of New York Mellon, as
trustee, under the Trust Indenture Act of 1939 on
Form T-1
relating to the AngloGold Ashanti Holdings plc guaranteed debt
indenture.
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|
|
|
*
|
|
To be furnished on a
Form 6-K
depending on the nature of the offering, if any, pursuant to
this registration statement.
|
|
**
|
|
Incorporated by reference from
Registration Statement
No. 333-159248.
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|
***
|
|
Included in Exhibit 4.7.
|
|
**** |
|
Previously filed.
|
II-12