Filed by Ardagh Metal Packaging S.A.
Pursuant to Rule 425 under the Securities
Act of 1933
and deemed filed pursuant to 14a-12 under
the
Securities Exchange Act of 1934
Form F-4 File No. (333- )
Subject Companies:
Ardagh Metal Packaging S.A.
Gores Holdings V, Inc.
(Commission File No. 001-39429)
The following is a Form 6-K filed by Ardagh Group S.A. on February
23. 2021.
UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the month of February, 2021
Commission File Number: 001-38032
Ardagh Group S.A.
(Name of Registrant)
56, rue Charles Martel
L-2134 Luxembourg, Luxembourg
+352 26 25 85 55
(Address of Principal Executive Offices)
Indicate by check mark whether the registrant files or will
file annual reports under cover of Form 20-F or Form 40-F.
Indicate by check mark if the registrant is submitting the Form 6-K
in paper as permitted by Regulation S-T Rule 101(b)(1):
Indicate by check mark if the registrant is submitting the Form 6-K
in paper as permitted by Regulation S-T Rule 101(b)(7):
Entry into a Material Definitive Agreement.
On February 22,
2021, Ardagh Group S.A. (the “Company” or “AGSA”) entered into a Business Combination Agreement
(the “Business Combination Agreement”), by and among the Company, Ardagh Metal Packaging S.A. (“AMPSA”),
Gores Holdings V, Inc. (“GHV”) and Ardagh MP MergeCo Inc. (“MergeCo”), which provides for,
among other things: (a) a series of transactions that will result in the subsidiaries of AGSA that are engaged in the business
of developing, manufacturing, marketing and selling metal beverage cans and ends and providing related technical and customer
services becoming wholly-owned by AMPSA (the “Pre-Closing Restructuring”), and (b) the merger of MergeCo with
and into GHV, with GHV being the surviving corporation as a wholly-owned subsidiary of AMPSA (the “Merger”,
and, together with the Pre-Closing Restructuring and other transactions contemplated in the Business Combination Agreement, the
“Business Combination”).
The Business Combination
Agreement and the transactions contemplated thereby were unanimously approved by the Board of Directors of the Company on February
22, 2021 and the Board of Directors of GHV on February 22, 2021.
The Business Combination Agreement
Consideration to be Received in the
Business Combination
The aggregate consideration
to be paid to AGSA pursuant to the Transfer Agreement (as defined within the Business Combination Agreement) and the Business Combination
Agreement consists of (a) $2,315,000,000, payable in cash and in equivalent in U.S. dollars or euros (or a combination thereof),
(b) 484,956,250 shares of AMPSA, with a nominal value of EUR 0.01 per share (the “AMPSA Shares”), (c) a promissory
note issued by AMPSA in the amount of $1,085,000,000, to be paid in cash at the consummation of the Merger (the “Closing”)
or, in certain circumstances, a combination of cash and AMPSA Shares, and (d) the right to receive, during the five-year period
commencing 180 days after the Closing 60,730,000 additional AMPSA Shares in five equal installments depending on whether the price
of AMPSA Shares maintains for a certain period of time a volume weighted average price of $13.00, $15.00, $16.50, $18.00 or $19.50
(collectively, the “AGSA Consideration”).
Representations and Warranties
The Business Combination
Agreement contains customary representations, warranties and covenants of AMPSA, AGSA, GHV and MergeCo relating to, among other
things, their ability to enter into the Business Combination Agreement and their outstanding capitalization.
Covenants
The Business Combination
Agreement includes customary covenants of the parties with respect to operation of their respective businesses prior to consummation
of the Business Combination and efforts to satisfy conditions to consummation of the Business Combination. The Business Combination
Agreement also contains additional covenants of the parties, including, among others, covenants providing for the Company and GHV
to cooperate in the preparation of the Proxy Statement/Prospectus and Registration Statement (as each such term is defined in the
Business Combination Agreement) required to be filed in connection with the Business Combination. The covenants of the parties
to the Business Combination Agreement will not survive the Closing, except for those covenants that by their terms expressly apply
in whole or in part after the Closing.
Conditions to Consummation of the Business
Combination
The consummation
of the Business Combination is conditioned upon, among other things, (a) no action or governmental order or law shall have
been enacted, issued, promulgated, enforced or entered that restrains, enjoins or otherwise prohibits the consummation of the
Business Combination or would cause any part of the Business Combination to be rescinded following the Closing; (b) the
proposal to adopt the Business Combination Agreement and approve the Business Combination shall have been approved and
adopted by the requisite affirmative vote of the GHV stockholders; (c) a Luxembourg statutory independent auditor
(réviseur d’entreprises agréé) of AMPSA shall have issued appropriate reports regarding the
contributions relating to the AMPSA Shares to be issued to GHV stockholders or AGSA as set forth in the Business Combination
Agreement; (d) all closing conditions to the private placement pursuant to which investors will purchase 60,000,000 AMPSA
Shares for a purchase price of $10.00 per share (the “PIPE Shares”) shall have been satisfied or waived
and the $600,000,000 gross proceeds from the private placement shall have been paid to AMPSA on the date the Merger is
consummated; (e) the Registration Statement of which the Proxy Statement/Prospectus forms a part shall have been declared
effective under the Securities Act and no stop order or proceedings for purposes of suspending the effectiveness of the
registration statement shall have been initiated by the SEC and not withdrawn; and (f) the AMPSA Shares shall have been
approved for listing on NYSE, subject to official notice of issuance.
Termination
The Business Combination
Agreement may be terminated at any time prior to the Closing (whether before or after the required GHV stockholder vote has been
obtained) by mutual written consent of the Company and GHV and in certain other circumstances, including if the Business Combination
has not been consummated by September 30, 2021 and the delay in closing prior to such date is not due to the breach of the Business
Combination Agreement by the party seeking to terminate.
The foregoing description
of the Business Combination Agreement and the Business Combination does not purport to be complete and is qualified in its entirety
by the terms and conditions of the Business Combination Agreement, a copy of which is incorporated by reference as Exhibit 2.1
and is incorporated herein by reference. The Business Combination Agreement contains representations, warranties and covenants
that the respective parties made to each other as of the date of such agreement or other specific dates. The assertions embodied
in those representations, warranties and covenants were made for purposes of the contract among the respective parties to the Business
Combination Agreement and are subject to important qualifications and limitations agreed to by the contracting parties in connection
with negotiating the Business Combination Agreement. The Business Combination Agreement has been incorporated by reference to provide
investors with information regarding its terms. It is not intended to provide any other factual information about the Company or
any other party to the Business Combination Agreement. In particular, the representations, warranties, covenants and agreements
contained in the Business Combination Agreement, which were made only for purposes of the Business Combination Agreement and as
of specific dates, were solely for the benefit of the respective parties to the Business Combination Agreement, may be subject
to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes
of allocating contractual risk between the respective parties to the Business Combination Agreement instead of establishing these
matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable
to the Company’s investors and security holders. Company investors and stockholders are not third-party beneficiaries under
the Business Combination Agreement and should not rely on the representations, warranties or covenants of any party to the Business
Combination Agreement. Moreover, information concerning the subject matter of the representations and warranties may change after
the date of the Business Combination Agreement, which subsequent information may or may not be fully reflected in the Company’s
public disclosures.
Private Placement Subscription Agreements
In connection with the execution of the
Business Combination Agreement, on February 22, 2021, AMPSA and GHV entered into Subscription Agreements (each, a “Subscription
Agreement” and collectively, the “Subscription Agreements”) with certain investors and
Gores Sponsor V LLC (the “Sponsor”), pursuant to which the investors and the Sponsor agreed to
purchase, and AMPSA agreed to sell to the investors and the Sponsor the PIPE Shares for an aggregate cash amount
of $600,000,000.
The issuance of the PIPE Shares pursuant
to the Subscription Agreements is contingent upon, among other customary closing conditions, the substantially concurrent consummation
of the Business Combination. Pursuant to the Subscription Agreements, AMPSA agreed that, within 30 calendar days after the date
of Closing, it will file with the SEC (at AMPSA’s sole cost and expense) a registration statement registering the resale
of the PIPE Shares, and AMPSA will use its commercially reasonable efforts to have the registration statement declared effective
as soon as practicable after the filing thereof.
The Sponsor’s Subscription
Agreement is substantially similar to the Subscription Agreement for the investors, except that (i) the Sponsor
has agreed to subscribe for up to an additional 9,500,000 AMPSA Shares (the “Backstop Shares”) for a
purchase price of $10.00 per share in the event that redemptions of GHV’s Class A Common Stock, if any, result in an
aggregate redemption price of more than $1,000,000 and (ii) the Sponsor has the right to syndicate the PIPE Shares required
to be purchased under the Sponsor’s Subscription Agreement in advance of the closing of the Business Combination,
provided that such syndication shall not relieve the Sponsor of the obligation to ensure that all of the PIPE Shares are
acquired and paid for.
The foregoing description of the Subscription
Agreement and the issuances contemplated thereby does not purport to be complete and is qualified in its entirety by the terms
and conditions of the Subscription Agreement, a copy of which is incorporated by reference as Exhibit 10.1, and is incorporated
herein by reference.
Registration Rights and Lock-Up Agreement
At the Closing,
AMPSA, Sponsor, certain persons associated with the Sponsor (together with the Sponsor, the “Gores Holders”)
and AGSA will enter into a Registration Rights and Lock-Up Agreement which provides customary demand and piggyback registration
rights. Pursuant to the Registration Rights and Lock-Up Agreement, AMPSA agreed that, as soon as practicable, and in any event
within 30 days after the Closing, it will file with the SEC (at AMPSA’s sole cost and expense) a registration statement registering
the resale of any outstanding AMPSA Shares or any other equity security held by a party to the Registration Rights and Lock-Up
Agreement and any other equity security of AMPSA issued or issuable with respect to any such AMPSA Share by way of a dividend or
stock split in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise,
and AMPSA will use its reasonable efforts to have the registration statement declared effective as soon as practicable after the
filing thereof, but no later than the 60th day (or the 90th day if the registration statement is reviewed by, and received comments
from, the SEC) following the filing deadline.
Subject to certain
exceptions, including in connection with certain exchanges involving AGSA shareholders, AGSA may not transfer any AMPSA Shares
beneficially owned or owned of record by it during the period ending 180 days following the date of the Registration Rights and
Lock-Up Agreement (the “Share Lock-Up Period”). During the Share Lock-Up Period, no Gores Holder may transfer
AMPSA Shares beneficially owned or owned of record by such Gores Holder. During the period ending 30 days after the date of the
Registration Rights and Lock-Up Agreement, no Gores Holder may transfer any GHV warrants or any of the AMPSA Shares issued or issuable
upon the exercise or conversion of such GHV warrants beneficially owned or owned of record by such Gores Holder. The lock-up provisions
are subject to a number of exceptions.
The foregoing
description of the Registration Rights and Lock-Up Agreement and the rights and restrictions contemplated thereby does not purport
to be complete and is qualified in its entirety by the terms and conditions of the Registration Rights and Lock-Up Agreement, a
copy of which is incorporated by reference as Exhibit 10.2 and is incorporated herein by reference.
Warrant Assignment, Assumption and Amendment Agreement
In connection with the Closing, AMPSA will
enter into a Warrant Assignment, Assumption and Amendment Agreement with GHV and Continental Stock Transfer & Trust Company,
a New York corporation, as warrant agent, to assume GHV’s obligations under the existing Warrant Agreement, dated August
11, 2020, with respect to GHV’s public and private warrants.
The foregoing description of the Warrant
Assignment, Assumption and Amendment Agreement does not purport to be complete and is qualified in its entirety by the terms and
conditions of the Warrant Assignment, Assumption and Amendment Agreement, a copy of which is incorporated by reference as Exhibit 10.3
and is incorporated herein by reference.
Press Release Announcing Execution of
Business Combination Agreement and Investor Presentation
On February
23, 2021, the Company issued a press release announcing the execution of the Business Combination Agreement. The press
release is incorporated by reference as Exhibit 99.1 and incorporated by reference herein. Notwithstanding the foregoing,
information contained on the Company’s or GHV’s website and the websites of any of their affiliates referenced in
Exhibit 99.1 or linked therein or otherwise connected thereto does not constitute part of nor is it incorporated by reference
into this Form 6-K. Such exhibit and the information set forth therein shall not be deemed to be filed for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to
the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities
Act, or the Exchange Act.
Attached as Exhibit
99.2 and incorporated by reference herein is the investor presentation dated February 23, 2021 that will be used by the
Company and GHV with respect to the transactions contemplated by the Business Combination Agreement. Such exhibit and the information
set forth therein shall not be deemed to be filed for purposes of Section 18 of the Exchange Act, or otherwise be subject to the
liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act, or
the Exchange Act.
Additional Information about the
Transactions and Where to Find It
In connection with
the proposed transactions contemplated by the Business Combination Agreement, (i) AMPSA is expected to file a registration statement
on Form F-4 with the SEC that will constitute a prospectus of AMPSA and include a proxy statement of GHV (the “Registration
Statement”) and (ii) GHV intends to file with the SEC a definitive proxy statement (the “Definitive Proxy Statement”)
in connection with the proposed business combination contemplated by the Business Combination Agreement and will mail the proxy
statement/prospectus and other relevant documents to its stockholders. The proxy statement/prospectus will contain important information
about the proposed business combination and the other matters to be voted upon at a meeting of GHV’s stockholders to be held
to approve the proposed business combination contemplated by the Business Combination Agreement and other matters. Before making
any voting or other investment decision, investors and security holders of GHV are urged to read the proxy statement/prospectus
and all other relevant documents filed or that will be filed with the SEC in connection with the proposed Business Combination
as they become available because they will contain important information about GHV, AMPSA and the proposed Business Combination.
Investors
and security holders will be able to obtain free copies of the Registration Statement and the Definitive Proxy Statement and all
other relevant documents filed or that will be filed with the SEC by GHV or AMPSA through the website maintained by the SEC at
www.sec.gov, or by directing a request to Gores Holdings V, Inc., 9800 Wilshire Boulevard, Beverly Hills, CA 90212, attention: Jennifer Kwon Chou or by contacting Morrow Sodali LLC, GHV’s proxy solicitor, for help, toll-free at (800) 662-5200 (banks
and brokers can call collect at (203) 658-9400).
Participants in Solicitation
This Form 6-K is not
a solicitation of a proxy from any investor or securityholder. The Company, GHV and AMPSA and certain of their respective directors
and executive officers may be deemed to be participants in the solicitation of proxies from GHV’s stockholders in connection
with the proposed Business Combination. Information about GHV’s directors and executive officers and their ownership of GHV’s
securities is set forth in GHV’s filings with the SEC, and information about AGSA’s and AMPSA’s directors and
executive officers is or will be set forth in their respective filings with the SEC. Additional information regarding the interests
of those persons and other persons who may be deemed participants in the proposed Business Combination may be obtained by reading
the proxy statement/prospectus regarding the proposed Business Combination when it becomes available. You may obtain free copies
of these documents as described in the preceding paragraph.
Forward Looking Statements
This Form 6-K
contains certain forward-looking statements within the meaning of the federal securities laws with respect to the proposed
Business Combination, including statements regarding the benefits of the proposed Business Combination, the anticipated
timing of the proposed Business Combination, the services or products offered by AGSA or AMPSA and the markets in which AGSA
or AMPSA operates, business strategies, debt levels, industry environment, potential growth opportunities, the effects of
regulations and GHV’s, AGSA’s or AMPSA’s projected future results. These forward-looking statements
generally are identified by the words “believe,” “project,” “expect,”
“anticipate,” “estimate,” “intend,” “strategy,” “future,”
“forecast,” “opportunity,” “plan,” “may,” “should,”
“will,” “would,” “will be,” “will continue,” “will likely
result,” and similar expressions (including the negative versions of such words or expressions).
Forward-looking statements
are predictions, projections and other statements about future events that are based on current expectations and assumptions and,
as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the
forward-looking statements in this Form 6-K, including, but not limited to: (i) the risk that the proposed Business Combination
may not be completed in a timely manner or at all, which may adversely affect the price of the Company’s or GHV’s securities;
(ii) the risk that the proposed Business Combination may not be completed by GHV’s business combination deadline and
the potential failure to obtain an extension of the business combination deadline if sought by GHV; (iii) the failure to satisfy
the conditions to the consummation of the proposed Business Combination, including the approval of the proposed Business Combination
by GHV’s stockholders, and the satisfaction of the minimum trust account amount following redemptions by GHV’s
public stockholders; (iv) the effect of the announcement or pendency of the proposed Business Combination on AGSA’s or AMPSA’s
business relationships, performance, and business generally; (v) risks that the proposed Business Combination disrupts current
plans of AGSA or AMPSA and potential difficulties in AGSA or AMPSA employee retention as a result of the proposed Business Combination;
(vi) the outcome of any legal proceedings that may be instituted against the Company or GHV related to the proposed Business Combination;
(vii) the ability to maintain, prior to the closing of the proposed Business Combination, the listing of GHV’s securities
on the NASDAQ Stock Market, and, following the closing of the proposed Business Combination, AMPSA’s shares on the NYSE;
(viii) the price of GHV’s securities prior to the closing of the proposed Business Combination, and AMPSA’s shares
after the closing of the proposed Business Combination, including as a result of volatility resulting from changes in the competitive
and highly regulated industries in which AMPSA plans to operate, variations in performance across competitors, changes in laws
and regulations affecting AMPSA’s business and changes in the combined capital structure; and (ix) AMPSA’s ability
to implement business plans, forecasts, and other expectations after the closing of the proposed Business Combination, and identify
and realize additional opportunities. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing
factors and the other risks and uncertainties that will be described in the Definitive Proxy Statement, including those under “Risk
Factors” therein, and other documents filed by the Company, GHV or AMPSA from time to time with the SEC. These filings identify
and address (or will identify and address) other important risks and uncertainties that could cause actual events and results to
differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date
they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and the Company, GHV and AMPSA assume
no obligation and, except as required by law, do not intend to update or revise these forward-looking statements, whether as a
result of new information, future events, or otherwise. None of the Company, GHV or AMPSA gives any assurance that either GHV or
AMPSA will achieve its expectations.
No Offer or Solicitation
This Form 6-K relates
to the proposed Business Combination. This document does not constitute an offer to sell or exchange, or the solicitation of an
offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, sale
or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
PRIIPs/Prospectus Regulation/IMPORTANT
– EEA AND UK RETAIL INVESTORS
The AMPSA Shares to be issued by AMPSA
in the Business Combination (the “AMP Shares”) 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 in the UK. For these
purposes, a retail investor means 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; or (iii) not a qualified investor as defined in
Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 (this regulation together with any
implementing measures in any member state, the “Prospectus Regulation”). Consequently, no offer of securities to
which this communication relates, is made to any person in any Member State of the EEA which applies the Prospectus
Regulation who are not qualified investors for the purposes of the Prospectus Regulation, is made in the EEA and no key
information document required by Regulation (EU) No. 1286/2014 (as amended the “PRIIPs Regulation”) for offering
or selling the AMPSA Shares or otherwise making them available to retail investors in the EEA or in the United Kingdom will
be prepared and therefore offering or selling the AMPSA Shares or otherwise making them available to any retail investor in
the EEA or in the United Kingdom may be unlawful under the PRIIPs Regulation.
EXHIBIT INDEX
The following exhibits are filed as part of this Form 6-K:
Exhibit
No.
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Exhibit
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2.1
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Business Combination Agreement, dated as of February 22, 2021, by and among Gores Holdings V, Inc., Ardagh Metal Packaging S.A., Ardagh Group S.A. and Ardagh MP MergeCo Inc. (incorporated by reference to Exhibit 2.1 to Gores Holdings V, Inc.’s Form 8-K, File No. 001-39429, filed with the SEC on February 23, 2021).
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10.1
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Form of Subscription Agreement, dated as of February 22, 2021, by and among Ardagh Metal Packaging S.A., Gores Holdings V and certain investors (incorporated by reference to Exhibit 10.1 to Gores Holdings V, Inc.’s Form 8-K, File No. 001-39429, filed with the SEC on February 23, 2021).
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10.2
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Form of Registration Rights and Lock-Up Agreement to be entered into by and among Ardagh Group S.A., Ardagh Metal Packaging S.A., Gores Holdings V Sponsor LLC and certain persons associated with Gores Holdings V Sponsor LLC (incorporated by reference to Exhibit 10.2 to Gores Holdings V, Inc.’s Form 8-K, File No. 001-39429, filed with the SEC on February 23, 2021).
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10.3
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Form of Warrant Assignment, Assumption and Amendment Agreement to be entered into by and among Ardagh Metal Packaging S.A., Gores Holdings V, Inc. and Continental Stock Transfer & Trust Company, a New York corporation (incorporated by reference to Exhibit 10.3 to Gores Holdings V, Inc.’s Form 8-K, File No. 001-39429, filed with the SEC on February 23, 2021).
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99.1
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Press Release issued by the Company on February 23, 2021 (incorporated by reference to Exhibit 99.1 to Gores Holdings V, Inc.’s Form 8-K, File No. 001-39429, filed with the SEC on February 23, 2021).
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99.2
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Investor
Presentation of the Company dated February 23, 2021 (incorporated by reference to Exhibit 99.2 to Gores Holdings V,
Inc.’s Form 8-K, File No. 001-39429, filed with the SEC on February 23, 2021).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, Ardagh Group S.A. has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: February 23, 2021
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Ardagh Group S.A.
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By:
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/s/ David Matthews
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Name: David Matthews
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Title: Chief Financial Officer
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Gores Holdings V (NASDAQ:GRSV)
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Gores Holdings V (NASDAQ:GRSV)
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