5
September 2024
NOT FOR
DISTRIBUTION IN OR INTO THE UNITED STATES, AUSTRALIA, JAPAN, SOUTH
AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH DISTRIBUTION WOULD
BE PROHIBITED BY APPLICABLE LAW (SEE "IMPORTANT INFORMATION"
BELOW)
This press release relates to the
disclosure of information that qualified, or may have qualified, as
inside information within the meaning of Article 7(1) of (i)
Regulation (EU) No 596/2014 of the European Parliament and of the
Council of 16 April 2014, as amended (the "EU Market Abuse
Regulation") and (ii) the EU Market Abuse Regulation as it forms
part of United Kingdom domestic law by virtue of the European Union
(Withdrawal) Act 2018.
For immediate
release
ASOS plc
Global Online Fashion
Destination
Successful placement of
Convertible Bonds due 2028 and Results of Concurrent Repurchase of
Outstanding Convertible Bonds due 2026
ASOS plc ("ASOS", the "Company" or
the "Issuer", and together with its subsidiaries, the "Group")
today announces the pricing and final terms of (i) an offering of
£253 million of Convertible Bonds due 2028
(the "Bond Offering" and the "Bonds") and (ii) a concurrent partial
repurchase of the outstanding £500 million 0.75% Convertible Bonds
due 2026 (ISIN: XS2332692719) issued on 16 April 2021 (the
"Outstanding Bonds") (the "Concurrent Repurchase" and together with
the Bond Offering, the "Offering").
Rationale for the Offering
As detailed in a separate RNS, ASOS
has earlier today announced that it has entered into a binding
agreement with HEARTLAND to form a Joint Venture which will
purchase the Topshop and Topman brands from ASOS. HEARTLAND will
hold a 75% interest in the Joint Venture for £135 million cash
consideration, which represents net cash proceeds to ASOS (after
transaction fees and pro-rata payment to Nordstrom) of approx. £118
million (the "Transaction").
The net proceeds from the
Transaction, alongside net proceeds from the Bond Offering and cash
from the balance sheet to the extent required are intended to be
used to fund the Concurrent Repurchase. The purpose of these steps
is to, amongst other things, simultaneously reduce the Company's
net debt position (noting the discount the 2026 Convertible Bonds
currently trade at relative to par), while also proactively
extending the maturity profile of ASOS' debt. The Company believes
that this improved financial flexibility will help accelerate its
core Back to Fashion strategy.
Bond Offering
The Bonds will be
issued by ASOS and will be guaranteed by other entities within the
Group.
Purchasers will subscribe to
£100,000 in principal amount of the Bonds by either (i) paying
£100,000 in cash, or (ii) delivering £100,000 in principal amount
of the Outstanding Bonds (the "Exchange Offer"), in each case on
the Settlement Date. The aggregate principal amount of the
Outstanding Bonds delivered pursuant to the Exchange Offer is £253
million.
The Company will also pay, on the
Settlement Date (as defined below), an amount in cash (rounded down
to the nearest £0.01) equal to interest accrued and unpaid on those
Outstanding Bonds delivered pursuant to the Exchange Offer from and
including 16 April 2024 (being the immediately preceding interest
payment date of the Outstanding Bonds) to but excluding the
Settlement Date, which on the basis of the expected Settlement Date
will amount to £319.67 per £100,000 in principal amount of the
Outstanding Bonds.
The Bonds will constitute direct,
unconditional, senior and unsubordinated obligations of the Issuer
and will be subject to a negative pledge in respect of capital
market indebtedness except for incurrence of any secured
indebtedness as may be expressly permitted pursuant to the
Intercreditor Agreement (as defined below).
The Bonds and the Outstanding Bonds
which will remain outstanding following the completion of the
Offering will both benefit from certain common security granted by
members of the Group, which will secure the liabilities owed to
both (i) super senior creditors and senior creditors and (ii)
second lien creditors (which shall include obligations of the
members of the Group under the Bonds and the Outstanding Bonds
which will remain outstanding following the completion of the
Offering). In connection with the common security arrangements, the
trustee of the Bonds and the trustee of the Outstanding Bonds will
enter into an intercreditor agreement which shall regulate the
priority of secured creditors (the "Intercreditor
Agreement").
The Bonds will be issued at par and
will carry a coupon of 11% per annum payable semi-annually in
arrears and will, subject to certain conditions, be convertible
into fully paid new and/or existing Ordinary Shares of the Company
(the "Shares").
The initial conversion price will be
set at £79.65 (in line with the conversion price of the Outstanding
Bonds), which will be subject to adjustments in certain
circumstances in line with market practice.
The Bonds will include customary
change of control adjustments, which will be set at levels
corresponding with the change of control adjustments applicable to
the Outstanding Bonds. The maximum reduction to the conversion
price in a change of control scenario will be 47.5%, in line with
the Outstanding Bonds.
Settlement and delivery of the Bonds
is expected to take place on or around 19 September 2024 (the
"Settlement Date").
The Bonds will be redeemed on 19
September 2028, unless previously converted, exchanged, redeemed or
purchased and cancelled in accordance with the terms and conditions
of the Bonds, at a redemption price of 120% of the principal
amount, implying an annual yield to maturity of 14.84%.
The Bonds may be redeemed at the
option of the Issuer at the Accreted Redemption Amount plus accrued
but unpaid interest (i) at any time on or after 10 October 2027, if
the Parity Value (as defined in the Terms and Conditions) on at
least 20 out of any period of 30 consecutive dealing days ending no
more than five London business days prior to the giving of the
relevant redemption notice, shall have equalled or exceeded 130% of
the Accreted Redemption Amount of the Bond; or (ii) at any time, if
15% or less of the principal amount of the Bonds originally issued
remains outstanding.
The "Accreted Redemption Amount" is
set in such a manner that, with accrued interest, it guarantees at
the date of effective repayment to an initial subscriber of the
Bonds (at the Settlement Date of the Bonds) an annual yield to
maturity that is identical to that which it would have obtained
from redemption upon maturity, namely an annual yield of
14.84%.
Application is intended to be made
for the Bonds to be admitted to trading on the unregulated open
market (Freiverkehr) of
the Frankfurt Stock Exchange after the Settlement Date but prior to
the first interest payment date of the Bonds.
J.P. Morgan Cazenove acted as Sole
Bookrunner for the Bond Offering, and as Sole Dealer Manager for
the Concurrent Repurchase.
Concurrent Repurchase
Concurrently with the Bond Offering,
the Sole Dealer Manager assisted the Company in collecting
indications of interest from holders in tendering their Outstanding
Bonds for purchase by the Company for a cash consideration of
£85,000 per £100,000 in principal amount of the Outstanding Bonds
(the "Purchase Price").
In addition to the Purchase Price,
the Company will pay, in respect of the Outstanding Bonds accepted
for purchase pursuant to the Concurrent Repurchase, a cash amount
representing interest accrued but unpaid on the Outstanding Bonds
from and including 16 April 2024, being the immediately preceding
interest payment date prior to the Concurrent Repurchase to but
excluding the Settlement Date. The accrued interest amount per
£100,000 of the Outstanding Bonds will be £319.67.
The Company has accepted for
repurchase £173.4 million in aggregate principal amount of the
Outstanding Bonds. The Outstanding Bonds repurchased by the Issuer
will be cancelled thereafter in accordance with their terms and
conditions.
Following the settlement of the
Exchange Offer and Concurrent Repurchase on the Settlement Date,
£73.6 million in aggregate principal amount of the Outstanding
Bonds are expected to remain outstanding.
For the avoidance of doubt, the
Company confirms that the transaction condition to each the Bond
Offering and the Concurrent Repurchase, which was summarised in the
launch RNS published earlier today, has been satisfied.
For
further information:
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Investors:
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Emily MacLeod, ASOS Head of Strategy
& Investor Relations
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Tel: 020 7756 1000
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Media:
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Jonathan Sibun / Will Palfreyman,
Teneo
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Tel: 020 7353 4200
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Background note
ASOS is a destination for
fashion-loving 20-somethings around the world, with a purpose to
give its customers the confidence to be whoever they want to be.
Through its app and mobile/desktop web experience, available in
nine languages and in over 200 markets, ASOS customers can shop a
curated edit of nearly 50,000 products, sourced from nearly 900
global and local third-party brands alongside a mix of fashion-led
own brand labels - including ASOS Design, ASOS Edition, ASOS 4505,
Collusion, Reclaimed Vintage, Topshop, Topman, and Miss Selfridge.
ASOS aims to give all its customers a truly frictionless
experience, with a number of different payment methods and hundreds
of local deliveries and return options, dispatched from
state-of-the-art fulfilment centres in the UK, US, and
Germany.
REPRESENTATIONS BY
INVESTORS
AN
INVESTMENT IN THE BONDS AND/OR PARTICIPATION IN THE CONCURRENT
REPURCHASE INCLUDES A SIGNIFICANT DEGREE OF RISK. IN MAKING ANY
DECISION TO PURCHASE THE BONDS AND/OR PARTICIPATION IN THE
CONCURRENT REPURCHASE, AN INVESTOR WILL BE DEEMED (A) TO HAVE SUCH
BUSINESS AND FINANCIAL EXPERIENCE AS IS REQUIRED TO GIVE IT THE
CAPACITY TO PROTECT ITS OWN INTERESTS IN CONNECTION WITH THE
PURCHASE OF THE BONDS AND/OR PARTICIPATION IN THE CONCURRENT
REPURCHASE, (B) NOT TO HAVE RELIED ON (i) ANY INVESTIGATION THAT
THE SOLE BOOKRUNNER OR ANY OF ITS AFFILIATES, OR ANY PERSON ACTING
ON BEHALF OF THE SOLE BOOKRUNNER OR ANY OF ITS AFFILIATES, MAY HAVE
CONDUCTED WITH RESPECT TO THE ISSUER, THE GUARANTORS, THE BONDS,
THE GUARANTEES IN RESPECT THEREOF OR THE ORDINARY SHARES TO BE
ISSUED OR TRANSFERRED AND DELIVERED UPON CONVERSION OF THE BONDS
AND NOTIONALLY UNDERLYING THE BONDS (COLLECTIVELY HEREINAFTER, THE
"SECURITIES"), OR (ii) ANY DISCUSSIONS, NEGOTIATIONS OR OTHER
COMMUNICATIONS ENTERED INTO WITH, OR ANY OTHER WRITTEN OR ORAL
INFORMATION MADE AVAILABLE BY THE SOLE BOOKRUNNER OR ITS OFFICERS,
EMPLOYEES OR AGENTS, (C) TO HAVE MADE ITS OWN INVESTMENT DECISION
REGARDING THE SECURITIES AND THE CONCURRENT REPURCHASE BASED ON ITS
OWN KNOWLEDGE, INVESTIGATION AND ASSESSMENT OF THE ISSUER, THE
GUARANTORS, THE GUARANTORS' SUBSIDIARIES, THE SECURITIES, THE TERMS
OF THE BONDS AND THE TERMS OF THE PLACEMENT OF THE BONDS, AND BASED
ON SUCH OTHER PUBLICLY AVAILABLE INFORMATION IT DEEMS NECESSARY,
APPROPRIATE AND SUFFICIENT (AND WHICH IT CONFIRMS IT HAS BEEN ABLE
TO ACCESS, READ AND UNDERSTAND) AND (D) TO HAVE CONSULTED ITS OWN
INDEPENDENT ADVISERS OR TO OTHERWISE HAVE SATISFIED ITSELF
CONCERNING, WITHOUT LIMITATION, ACCOUNTING, REGULATORY, TAX OR
OTHER CONSEQUENCES IN THE LIGHT OF ITS PARTICULAR SITUATION UNDER
THE LAWS OF ALL RELEVANT JURISDICTIONS.
IMPORTANT
INFORMATION
THIS PRESS RELEASE IS AN
ADVERTISEMENT AND DOES NOT COMPRISE A PROSPECTUS FOR THE PURPOSES
OF THE PROSPECTUS REGULATION (AS DEFINED BELOW) AND/OR PART VI OF
THE FINANCIAL SERVICES AND MARKETS ACT 2000 OF THE UNITED KINGDOM
(THE "FSMA") OR THE
CONCURRENT REPURCHASE OR OTHERWISE.
IN CONNECTION WITH THE OFFERING OF
THE BONDS AND THE CONCURRENT REPURCHASE, A PROSPECTUS IS NOT
REQUIRED TO BE PUBLISHED PURSUANT TO THE PROSPECTUS
REGULATION.
NO ACTION HAS BEEN TAKEN BY THE
ISSUER, THE GUARANTORS, THE SOLE BOOKRUNNER OR ANY OF ITS
AFFILIATES THAT WOULD PERMIT AN OFFERING OF THE BONDS, THE
OUTSTANDING BONDS, PARTICIPATION IN THE CONCURRENT REPURCHASE OR
POSSESSION OR DISTRIBUTION OF THIS PRESS RELEASE OR ANY OFFERING OR
PUBLICITY MATERIAL RELATING TO THE BONDS, THE CONCURRENT REPURCHASE
OR ANY OF THE SECURITIES IN ANY JURISDICTION WHERE ACTION FOR THAT
PURPOSE IS REQUIRED. PERSONS INTO WHOSE POSSESSION THIS PRESS
RELEASE COMES ARE REQUIRED BY THE ISSUER, THE GUARANTORS AND THE
SOLE BOOKRUNNER TO INFORM THEMSELVES ABOUT, AND TO OBSERVE, ANY
SUCH RESTRICTIONS.
THIS PRESS RELEASE IS DIRECTED
EXCLUSIVELY AT MARKET PROFESSIONALS AND INSTITUTIONAL INVESTORS,
BEING "QUALIFIED INVESTORS" WITHIN THE MEANING OF THE PROSPECTUS
REGULATION. IT IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE
RELIED UPON IN SUBSTITUTION FOR THE EXERCISE OF INDEPENDENT
JUDGEMENT. IT IS NOT INTENDED AS INVESTMENT ADVICE AND UNDER NO
CIRCUMSTANCES IS IT TO BE USED OR CONSIDERED AS AN OFFER TO SELL,
OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY OR ANY
OUTSTANDING BONDS NOR IS IT A RECOMMENDATION TO BUY OR SELL ANY
SECURITY OR ANY OUTSTANDING BONDS OR WHETHER OR NOT TO PARTICIPATE
IN THE CONCURRENT REPURCHASE.
ANY DECISION TO PURCHASE ANY OF THE
SECURITIES AND/OR PARTICIPATE IN THE CONCURRENT REPURCHASE SHOULD
ONLY BE MADE ON THE BASIS OF AN INDEPENDENT REVIEW BY A PROSPECTIVE
INVESTOR OF THE ISSUER'S AND THE GUARANTORS' PUBLICLY AVAILABLE
INFORMATION AND THE TERMS OF THE SECURITIES, THE TERMS OF THE
OUTSTANDING BONDS AND/OR THE TERMS OF THE CONCURRENT REPURCHASE, AS
APPLICABLE. NEITHER THE SOLE BOOKRUNNER NOR ANY OF ITS AFFILIATES
ACCEPT ANY LIABILITY ARISING FROM THE USE OF, OR MAKE ANY
REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF, THIS PRESS
RELEASE OR THE ISSUER'S AND THE GUARANTORS' PUBLICLY AVAILABLE
INFORMATION. THE INFORMATION CONTAINED IN THIS PRESS RELEASE IS
SUBJECT TO CHANGE IN ITS ENTIRETY WITHOUT NOTICE UP TO THE
SETTLEMENT DATE.
THIS PRESS RELEASE IS NOT FOR
RELEASE, PUBLICATION, DISTRIBUTION OR FORWARDING, DIRECTLY OR
INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES. THIS
PRESS RELEASE IS NOT AN OFFER TO SELL SECURITIES OR THE
SOLICITATION OF ANY OFFER TO BUY SECURITIES, NOR SHALL THERE BE ANY
OFFER OF SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER OR SALE
WOULD BE UNLAWFUL.
IN CONNECTION WITH THE OFFERING OF
THE BONDS, THE SOLE BOOKRUNNER AND ANY OF ITS AFFILIATES ACTING AS
AN INVESTOR FOR ITS OWN ACCOUNT MAY TAKE UP THE SECURITIES AND IN
THAT CAPACITY MAY RETAIN, PURCHASE OR SELL FOR ITS OWN ACCOUNT THE
SECURITIES OR ANY OTHER SECURITIES OF THE ISSUER, THE GUARANTORS OR
RELATED INVESTMENTS, AND MAY OFFER OR SELL THE SECURITIES OR OTHER
INVESTMENTS OTHERWISE THAN IN CONNECTION WITH THE OFFERING OF THE
BONDS. THE SOLE BOOKRUNNER DOES NOT INTEND TO DISCLOSE THE EXTENT
OF ANY SUCH INVESTMENT OR TRANSACTIONS OTHERWISE THAN IN ACCORDANCE
WITH ANY LEGAL OR REGULATORY OBLIGATION TO DO SO. IN ADDITION, THE
SOLE BOOKRUNNER AND ITS SUBSIDIARIES AND AFFILIATES MAY PERFORM
SERVICES FOR, OR SOLICIT BUSINESS FROM, THE ISSUER, THE GUARANTORS
OR MEMBERS OF THE ISSUER'S GROUP, MAY MAKE MARKETS IN THE
SECURITIES OF SUCH PERSONS AND/OR HAVE A POSITION OR EFFECT
TRANSACTIONS IN SUCH SECURITIES.
EACH PROSPECTIVE INVESTOR SHOULD
PROCEED ON THE ASSUMPTION THAT IT MUST BEAR THE ECONOMIC RISK OF AN
INVESTMENT IN THE SECURITIES. NONE OF THE ISSUER, THE GUARANTORS OR
THE SOLE BOOKRUNNER MAKE ANY REPRESENTATION AS TO (I) THE
SUITABILITY OF THE SECURITIES FOR ANY PARTICULAR INVESTOR, (II) THE
APPROPRIATE ACCOUNTING TREATMENT AND POTENTIAL TAX CONSEQUENCES OF
INVESTING IN THE SECURITIES OR (III) THE FUTURE PERFORMANCE OF THE
SECURITIES EITHER IN ABSOLUTE TERMS OR RELATIVE TO COMPETING
INVESTMENTS.
THE SOLE BOOKRUNNER IS ACTING ON
BEHALF OF THE ISSUER AND THE GUARANTORS AND NO ONE ELSE IN
CONNECTION WITH THE SECURITIES AND THE CONCURRENT REPURCHASE AND
WILL NOT BE RESPONSIBLE TO ANY OTHER PERSON FOR PROVIDING THE
PROTECTIONS AFFORDED TO CLIENTS OF THE SOLE BOOKRUNNER OR FOR
PROVIDING ADVICE IN RELATION TO THE SECURITIES, THE OUTSTANDING
BONDS OR THE CONCURRENT REPURCHASE.
ANY ALLOCATION OF THE BONDS IS MADE
EXPRESSLY SUBJECT TO THE TERMS AND DISCLOSURE SET OUT IN THE FINAL
TERMS AND CONDITIONS RELATING TO THE BONDS TO BE PRODUCED IN
RESPECT OF THE BONDS IN DUE COURSE, AND ON THE CONDITION THAT ANY
OFFERING OF THE SECURITIES IS COMPLETED AND THAT THE BONDS ARE
ISSUED. IN PARTICULAR, IT SHOULD BE NOTED THAT ANY SUCH OFFERING
AND FORMAL DOCUMENTATION RELATING THERETO WILL BE SUBJECT TO
CONDITIONS PRECEDENT AND TERMINATION EVENTS, INCLUDING THOSE WHICH
ARE CUSTOMARY FOR SUCH AN OFFERING. ANY SUCH OFFERING WILL NOT
COMPLETE UNLESS SUCH CONDITIONS PRECEDENT ARE FULFILLED AND ANY
SUCH TERMINATION EVENTS HAVE NOT TAKEN PLACE OR THE FAILURE TO
FULFIL SUCH A CONDITION PRECEDENT OR THE OCCURRENCE OF A
TERMINATION EVENT HAS BEEN WAIVED, IF APPLICABLE. THE SOLE
BOOKRUNNER RESERVES THE RIGHT TO EXERCISE OR REFRAIN FROM
EXERCISING THEIR RIGHTS IN RELATION TO THE FULFILMENT OR OTHERWISE
OF ANY SUCH CONDITION PRECEDENT OR THE OCCURRENCE OF ANY
TERMINATION EVENT IN SUCH MANNER AS THEY MAY DETERMINE IN THEIR
ABSOLUTE DISCRETION.
POTENTIAL INVESTORS WHO ARE IN ANY
DOUBT ABOUT THE CONTENTS OF THIS PRESS RELEASE SHOULD CONSULT THEIR
STOCKBROKER, BANK MANAGER, SOLICITOR, ACCOUNTANT OR OTHER FINANCIAL
ADVISER. IT SHOULD BE REMEMBERED THAT THE PRICE OF SECURITIES AND
THE INCOME FROM THEM CAN GO DOWN AS WELL AS UP.
U.S., UK AND EEA SELLING RESTRICTIONS
THIS PRESS RELEASE IS NOT AN OFFER
OF SECURITIES FOR SALE IN THE UNITED STATES. THE SECURITIES
REFERRED TO HEREIN HAVE NOT BEEN, AND WILL NOT BE, REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR
INDIRECTLY, IN OR INTO THE UNITED STATES ABSENT REGISTRATION OR AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT. THERE IS NO INTENTION TO REGISTER ANY SECURITIES
REFERRED TO HEREIN IN THE UNITED STATES OR TO MAKE A PUBLIC
OFFERING OF THE SECURITIES IN THE UNITED STATES.
THIS PRESS RELEASE AND THE OFFERING
WHEN MADE ARE ONLY ADDRESSED TO, AND DIRECTED IN, MEMBER STATES OF
THE EUROPEAN ECONOMIC AREA (THE "EEA") (EACH, A "MEMBER STATE") AND THE UNITED KINGDOM,
AT PERSONS WHO ARE "QUALIFIED INVESTORS" WITHIN THE MEANING OF THE
PROSPECTUS REGULATION ("QUALIFIED
INVESTORS"). EACH PERSON IN A MEMBER STATE OR IN THE UNITED
KINGDOM WHO INITIALLY ACQUIRES ANY BONDS OR TO WHOM ANY OFFER OF
BONDS MAY BE MADE AND, TO THE EXTENT APPLICABLE, ANY FUNDS ON
BEHALF OF WHICH SUCH PERSON IS ACQUIRING THE BONDS THAT ARE LOCATED
IN A MEMBER STATE OR IN THE UNITED KINGDOM WILL BE DEEMED TO HAVE
REPRESENTED, ACKNOWLEDGED AND AGREED THAT IT IS A QUALIFIED
INVESTOR. FOR THESE PURPOSES, THE EXPRESSION "PROSPECTUS REGULATION" MEANS REGULATION
(EU) 2017/1129 AND REGULATION (EU) 2017/1129 AS IT FORMS PART OF
UNITED KINGDOM DOMESTIC LAW BY VIRTUE OF THE EUROPEAN UNION
(WITHDRAWAL) ACT 2018, AS AMENDED (THE "EUWA").
Solely for the purposes of the
product governance requirements contained within: (a) EU Directive
2014/65/EU on markets in financial instruments, as amended
("MiFID II"); (b) Articles
9 and 10 of Commission Delegated Directive (EU) 2017/593
supplementing MiFID II; (c) local implementing measures IN THE EEA;
(D) REGULATION (EU) NO 600/2014 AS IT FORMS PART OF UNITED KINGDOM
DOMESTIC LAW BY VIRTUE OF THE EUWA ("UK MIFIR"); AND (E) THE FCA HANDBOOK
PRODUCT INTERVENTION AND PRODUCT GOVERNANCE SOURCEBOOK (together,
the "Product Governance
Requirements"), and disclaiming all and any liability,
whether arising in tort, contract or otherwise, which any
"manufacturer" (for the purposes of the Product Governance
Requirements) may otherwise have with respect thereto, the Bonds
have been subject to a product approval process, which has
determined that: (i) the target market for the Bonds is (A) IN THE
EEA, eligible counterparties and professional clients only, each as
defined in MiFID II AND (B) IN THE UNITED KINGDOM, ELIGIBLE
COUNTERPARTIES (AS DEFINED IN THE FCA HANDBOOK CONDUCT OF BUSINESS
SOURCEBOOK) AND PROFESSIONAL CLIENTS (AS DEFINED IN UK MIFIR); and
(ii) all channels for distribution of the Bonds to eligible
counterparties and professional clients are appropriate. Any person
subsequently offering, selling or recommending the Bonds (a
"Distributor") should take
into consideration the manufacturer's target market assessment;
however, a Distributor subject to MiFID II OR THE FCA HANDBOOK
PRODUCT INTERVENTION AND PRODUCT GOVERNANCE SOURCEBOOK is
responsible for undertaking its own target market assessment in
respect of the Bonds (by either adopting or refining the
manufacturer's target market assessment) and determining
appropriate distribution channels.
The target market assessment is
without prejudice to the requirements of any contractual or legal
selling restrictions in relation to any offering of the
Bonds.
For the avoidance of doubt, the
target market assessment does not constitute: (a) an assessment of
suitability or appropriateness for the purposes of MiFID II
OR UK MIFIR; or (b) a recommendation to any
investor or group of investors to invest in, or purchase, or take
any other action whatsoever with respect to the Bonds.
The BondS are not intended to be
offered, sold or otherwise made available to and should not be
offered, sold or otherwise made available to any retail investor in
the EEA OR THE UNITED KINGDOM. For these purposes, a retail
investor means (A) IN THE EEA, a person who is one (or more) of:
(i) a retail client as defined in point (11) of Article 4(1) of
MiFID II; or (ii) a customer within the meaning of Directive (EU)
2016/97, where that customer would not qualify as a professional
client as defined in point (10) of Article 4(1) of MiFID II AND (B)
IN THE UNITED KINGDOM, A PERSON WHO IS ONE (OR MORE) OF (I) A
RETAIL CLIENT, AS DEFINED IN POINT (8) OF ARTICLE 2 OF REGULATION
(EU) NO 2017/565 AS IT FORMS PART OF UNITED KINGDOM DOMESTIC LAW BY
VIRTUE OF THE EUWA OR (II) A CUSTOMER WITHIN THE MEANING OF THE
PROVISIONS OF THE FSMA AND ANY RULES OR REGULATIONS MADE UNDER THE
FSMA TO IMPLEMENT DIRECTIVE (EU) 2016/97, WHERE THAT CUSTOMER WOULD
NOT QUALIFY AS A PROFESSIONAL CLIENT, AS DEFINED IN POINT (8) OF
ARTICLE 2(1) OF REGULATION (EU) NO 600/2014 AS IT FORMS PART OF
UNITED KINGDOM DOMESTIC LAW BY VIRTUE OF THE EUWA.
Consequently, no key information
document required by Regulation (EU) No 1286/2014, as amended (the
"PRIIPs Regulation") OR THE
PRIIPS REGULATION AS IT FORMS PART OF UNITED KINGDOM DOMESTIC LAW
BY VIRTUE OF THE EUWA (THE "UK
PRIIPS REGULATION") for offering or selling the Bonds or
otherwise making them available to retail investors in the EEA OR
THE UNITED KINGDOM has been prepared and therefore offering or
selling the Bonds or otherwise making them available to any retail
investor in the EEA OR THE UNITED KINGDOM may be unlawful under the
PRIIPS Regulation AND/OR THE UK PRIIPS REGULATION.
IN ADDITION, IN THE UNITED KINGDOM
THIS PRESS RELEASE IS BEING DISTRIBUTED ONLY TO, AND IS DIRECTED
ONLY AT, QUALIFIED INVESTORS (I) WHO HAVE PROFESSIONAL EXPERIENCE
IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) OF
THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION)
ORDER 2005, AS AMENDED (THE "ORDER") AND QUALIFIED INVESTORS FALLING
WITHIN ARTICLE 49(2)(A) TO (D) OF THE ORDER, AND (II) TO WHOM IT
MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER
BEING REFERRED TO AS "RELEVANT
PERSONS"). THIS PRESS RELEASEMUST NOT BE ACTED ON OR RELIED
ON (I) IN THE UNITED KINGDOM, BY PERSONS WHO ARE NOT RELEVANT
PERSONS, AND (II) IN ANY MEMBER STATE OF THE EEA, BY PERSONS WHO
ARE NOT QUALIFIED INVESTORS. ANY INVESTMENT OR INVESTMENT ACTIVITY
TO WHICH THIS PRESS RELEASE RELATES IS AVAILABLE ONLY TO (A)
RELEVANT PERSONS IN THE UNITED KINGDOM AND WILL BE ENGAGED IN ONLY
WITH RELEVANT PERSONS IN THE UNITED KINGDOM AND (B) QUALIFIED
INVESTORS IN MEMBER STATES OF THE EEA.
IMPORTANT NOTICE RELATING TO THE CONCURRENT REPURCHASE AND THE
EXCHANGE OFFER
OFFER RESTRICTIONS
United States
NEITHER The Concurrent Repurchase
NOR THE EXCHANGE OFFER is being made, and will not be made,
directly or indirectly, in or into, or by use of the mail of, or by
any means or instrumentality of interstate or foreign commerce of,
or of any facilities of a national securities exchange of, the
United States. This includes, but is not limited to, facsimile
transmission, electronic mail, telex, telephone and the
internet.
The Outstanding Bonds may not be
tendered in the Concurrent Repurchase OR EXCHANGED PURSUANT TO THE
EXCHANGE OFFER by any such use, means, instrumentality or facility
from or within the United States or by persons located or resident
in the United States. Accordingly, copies of this PRESS RELEASE and
any other documents or materials relating to the Concurrent
Repurchase OR THE EXCHANGE OFFER are not being, and must not be,
directly or indirectly, mailed or otherwise RELEASED, transmitted,
distributed or forwarded (including, without limitation, by
custodians, nominees or trustees) in or into the United States OR
ANY PERSONS LOCATED OR RESIDENT IN THE UNITED STATES. Any purported
tender OR EXCHANGE of Outstanding Bonds in the Concurrent
Repurchase OR EXCHANGE OFFER, AS THE CASE MAY BE, resulting
directly or indirectly from a violation of these restrictions will
be invalid and any purported tender OR EXCHANGE of Outstanding
Bonds in the Concurrent Repurchase OR EXCHANGE OFFER, AS THE CASE
MAY BE, made by a person located in the United States or any agent,
fiduciary or other intermediary acting on a non-discretionary basis
for a principal giving instructions from within the United States
will be invalid and will not be accepted.
Each holder of Outstanding Bonds
participating in the Concurrent Repurchase AND/OR EXCHANGE OFFER
will represent that it is not located in the United States and is
not participating in such Concurrent Repurchase OR EXCHANGE OFFER,
AS THE CASE MAY BE, from the United States, or it is acting on a
non-discretionary basis for a principal located outside the United
States that is not giving an order to participate in such
Concurrent Repurchase from the United States. For the purposes of
this and the above two paragraphs, "United States" means the United
States of America, its territories and possessions, any state of
the United States of America and the District of
Columbia.
United Kingdom
The communication of this PRESS
RELEASE and any other documents or materials relating to the
Concurrent Repurchase OR THE exchange offer is not being made, and
such documents and/or materials have not been approved, by an
authorised person for the purposes of Section 21 of the FSMA.
Accordingly, such documents and/or materials are not being
distributed to, and must not be passed on to, the general public in
the United Kingdom. The communication of such documents and/or
materials as a financial promotion is only being made to those
persons in the United Kingdom falling within the definition of
investment professionals (as defined in Article 19(5) of the
Financial Promotion Order) or persons who are within Article 43(2)
or 49(2)(a) to (d) of the Financial Promotion Order or any other
persons to whom it may otherwise lawfully be made under the
Financial Promotion Order.
Italy
None of this PRESS RELEASE or any
other documents or materials relating to the Concurrent Repurchase
have been or will be submitted to the clearance procedure of the
Commissione Nazionale per le Società e la Borsa ("CONSOB") pursuant to Italian laws and
regulations.
The Concurrent Repurchase is being
carried out in the Republic of Italy as an exempted offer pursuant
to article 101-bis, paragraph 3-bis of the Legislative Decree No.
58 of 24 February 1998, as amended (the "Italian Financial Services Act") and
article 35-bis, paragraph 3 of CONSOB Regulation No. 11971 of 14
May 1999, as amended (the "Issuers' Regulation"). Accordingly, the
Concurrent Repurchase is only addressed to holders of Outstanding
Bonds located in the Republic of Italy who are "qualified
investors" (investitori qualificati) as defined pursuant to and
within the meaning of Article 2(1)(e) of the Regulation (EU)
2017/1129 and article 34-ter, paragraph 1, letter b) of the
Issuers' Regulation.
Holders or beneficial owners of the
Outstanding Bonds located in the Republic of Italy can tender some
or all of their Outstanding Bonds pursuant to the Concurrent
Repurchase through authorised persons (such as investment firms,
banks or financial intermediaries permitted to conduct such
activities in the Republic of Italy in accordance with the Italian
Financial Services Act, CONSOB Regulation No. 20307 of 15 February
2018, as amended from time to time, and Legislative Decree No. 385
of 1 September 1993, as amended) and in compliance with applicable
laws and regulations or with requirements imposed by CONSOB or any
other Italian authority.
Each intermediary must comply with
the applicable laws and regulations concerning information duties
vis-à-vis its clients in connection with the Outstanding Bonds or
the Concurrent Repurchase or the exchange offer.
France
This PRESS RELEASE and any other
offering material relating to the Concurrent Repurchase may not be
distributed in the Republic of France except to qualified investors
as defined in Article 2(e) of the Prospectus Regulation.
JERSEY
NO PERSON SHALL, WITHOUT THE CONSENT
OF THE JERSEY FINANCIAL SERVICES COMMISSION, CIRCULATE IN JERSEY
THIS PRESS RELEASE OR ANY offer for subscription, sale or exchange
of the bonds or outstanding bonds.
General
Neither this PRESS RELEASE nor the
electronic transmission thereof constitutes an offer to buy or the
solicitation of an offer to sell bonds (and tenders of Outstanding
Bonds for purchase pursuant to the Concurrent Repurchase OR
EXCHANGE PURSUANT TO THE EXCHANGE OFFER will not be accepted from
holders of Outstanding Bonds) in any circumstances in which such
offer or solicitation is unlawful. In those jurisdictions where the
securities, blue sky or other laws require the Concurrent
Repurchase or the exchange offer to be made by a licensed broker or
dealer and the Sole Bookrunner or any of its affiliates is such a
licensed broker or dealer in any such jurisdiction, the Concurrent
Repurchase and the exchange offer shall be deemed to be made by
such Sole Bookrunner or such affiliate, as the case may be, on
behalf of the Issuer in such jurisdiction.
DEEMED REPRESENTATIONS AND UNDERTAKINGS BY HOLDERS OF THE
OUTSTANDING BONDS IN RESPECT OF THE CONCURRENT REPURCHASE and
exchange offerBy submitting an offer
to either sell Outstanding Bonds in the Concurrent Repurchase or
exchange Outstanding Bonds pursuant to the Concurrent Repurchase, a
holder of Outstanding Bonds and any intermediary on such holder's
behalf will be deemed to MAKE CERTAIN agreements, acknowledgements,
representations, warranties and undertakings to the Issuer and the
Sole Bookrunner on the date of submission of such offer and on the
settlement date for the Concurrent Repurchase or the exchange
offer, as FURTHER Set out in the launch term Sheet relating to the
concurrent Repurchase.
