UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 6-K

 

 

Report of Foreign Private Issuer Pursuant to Section 13(a) -16 or 15(d) - 16 of the Securities Exchange Act of 1934

 

For the month of January 2020

 

000-23697

(Commission file number)

 

EROS INTERNATIONAL PLC

(Exact name of registrant as specified in its charter)

________________________________________

 

550 County Avenue

Secaucus, New Jersey 07094

Tel: (201) 558-9001

(Address of principal executive office)

_______________________________________________

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F ☑   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): ☐

 

Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders.

 

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): ☐

 

Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.

 

Incorporation by Reference

 

This Report on Form 6-K shall be incorporated by reference into the Registrant's Form F-3 Registration Statement (File No. 333-219708), as filed with the Securities and Exchange Commission, to the extent not superseded by documents or reports subsequently filed or furnished by the Registrant under the Securities Act of 1933 or the Securities Act of 1934, in each case as amended.

 

 

 

 

The Offering and Subscription Agreement

 

On January 27, 2020, Eros International Plc (the “Company”) announced a registered direct offering (the “Offering”) of up to 13,888,889 of the Company’s A ordinary shares, par value GBP 0.30 per share (the “Shares”). The Offering is being effected pursuant to a prospectus supplement (the “Prospectus Supplement”) under the Company’s Registration Statement on Form F-3 (Registration No. 333-219708), as amended (the “Registration Statement”). The Registration Statement was declared effective on October 2, 2017. The exhibits filed herewith in connection with the Offering are hereby incorporated by reference into the Registration Statement.

 

The Shares will be issued and sold from time to time pursuant to a Subscription Agreement, the form of which is attached as Exhibit 10.1 hereto. Subject to certain limitations set forth in the subscription agreement, each time the Company wishes to sell A ordinary shares under the agreement, it will notify an investor of the number of shares to be sold and the minimum price below which the sale will not be made. The per share purchase price for sales will be an amount equal to 95% of the lowest daily volume weighted average price, or VWAP, of the A ordinary shares on the New York Stock Exchange for each of the five successive trading days beginning on the first trading day following the date of the Company’s notice to the investor. However, if the VWAP on any trading day during this five-day period is lower than any minimum price specified in the notice to the investor, then for each such trading day, the number of A ordinary shares to be sold under such notice will automatically be reduced by an amount equal to 20% and that trading day will not be included in the final determination of the per share purchase price. No sales will be made prior to February 29, 2020 at a per share price less than $3.60.

 

The Company makes certain customary representations and warranties in the agreement, including with respect to certain capitalization and securities law matters. The agreement also obligates the parties to indemnify each other for certain losses suffered or incurred by reason of the other party’s breach of the agreement.

 

The closing of any sale of Shares will generally occur on the second business day following the date on which any sales are made.

 

The Company may receive net proceeds of up to $50,000,000 from the Offering, before deducting estimated Offering expenses, which the Company intends to use to fund investment in new content, with a focus on digital, and the remainder for general corporate purposes. However, because there is no minimum Offering amount, the actual net proceeds to the Company, if any, is not determinable at this time. There can be no assurance that the Company will sell any of the Shares.

 

A copy of the opinion of Cains Advocates Limited relating to the Shares is filed as Exhibit 5.1 hereto.

 

Exhibits

 

The foregoing summary of the terms of the subscription agreement is not complete and is qualified in its entirety by reference to the full text of the agreement, a copy of which is attached as exhibit 10.1 to this Report of Foreign Issuer on Form 6-K and is incorporated herein by reference.

 

Exhibit No.   Description
     
5.1   Opinion of Cains Advocates Limited
10.1   Form of Subscription Agreement
23.1   Consent of Cains Advocates Limited (included in Exhibit 5.1 hereto)

 

 

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Date: January 27, 2020   Eros International Plc
       
       
    By: /s/   Mark Carbeck  
      Name: Mark Carbeck
      Title: Chief Corporate and Strategy Officer
       

 

 

Exhibit 5.1

 

Your Ref:

Our Ref:  26411.0041/62274754.1

Tel No:    +44 1624 638300

Please Respond To:

Direct Dial:

Email:

Mike Edwards

+44 1624 638375

mike.edwards@cains.com

 

 

Eros International PLC
Fort Anne
Douglas
Isle of Man
IM1 5PD
British Isles 		27 January 2020
 

 

Dear Sirs

 

The offer (the “Offer”) by Eros International PLC (the “Company”) of A Ordinary Shares of £0.30 each (the “Shares”)

 

Preliminary

 

1. We are a firm of advocates practising the laws of the Isle of Man and are qualified to give you this legal opinion under Isle of Man law.

 

Documents Examined

 

2. For the purposes of this legal opinion, we have examined and relied upon copies of the following documents:

 

2.1 the registration statement on Form F-3 (File No. 333-219708), issued by the Company in respect of the Offer including the prospectus supplement dated 27 January 2020 related thereto (together, the “Registration Statement”);

 

2.2 the Memorandum and Articles of Association of the Company appearing on the file of the Company maintained by the Registrar of Companies (the “Registrar”) appointed pursuant to the Companies Act 2006 (the “Act”) on 27 January 2020 (the “Search Date”);

 

2.3 certified extracts of the directors’ resolutions passed on 11 January 2020 (the “Board Resolutions”);

 

2.4 minutes of a meeting of a committee of the directors of the Company held on 20 January 2020 (the “Committee Minutes”); and

 

2.5 a subscription agreement dated 20 January 2020 made between the Company and the Purchaser (as defined therein) (the “Subscription Agreement”).

 

In this legal opinion, “non-assessable” means that the subscription price for which the Company agreed to issue the Share, has been paid in full to the Company so that no further sum is payable to the Company by any holder of that Share in respect of the subscription price and the holder of that Share is not liable, solely because of its holder status, for additional assessments or calls on the Share by the Company or its creditors.

 

Isle of Man Law

 

3. We have not investigated the laws of any jurisdiction other than the Isle of Man and this opinion is given only with respect to the currently applicable laws of the Isle of Man and is given on the basis that it will be governed by and construed in accordance with such laws.
 
 

 

Assumptions

 

4.       For the purposes of giving this legal opinion, we have assumed:

 

4.1 the genuineness of all signatures; the capacity of all signatories; the authenticity and completeness of all documents submitted to us as originals; the conformity with original documents and completeness of all documents submitted to us as copies; and the correctness of all facts stated in the Registration Statement and the Subscription Agreement;

 

4.2 that no provisions of the laws of any jurisdiction outside the Isle of Man would be contravened by the entry into the Subscription Agreement, the issue of the Registration Statement or the Shares or the performance by the Company of its obligations;

 

4.3 that, insofar as any obligation under the Registration Statement or the Subscription Agreement falls to be performed in any jurisdiction outside the Isle of Man, its performance would not be unlawful by virtue of the laws of that jurisdiction;

 

4.4 that no laws (other than of the Isle of Man) which may apply with respect to the Registration Statement, the Subscription Agreement, the Shares or the transactions and matters contemplated thereby would be such as to affect any of the opinions stated herein;

 

4.5 that all filings, recordals, publications, notifications and registrations as are necessary to permit entry into the Subscription Agreement and the issue of the Registration Statement and the Shares or for the purposes of protecting or preserving any rights, duties, obligations or interests or as may be required to permit the performance thereof by any person have been or will be made or obtained within the time permitted, or will have been made or obtained within the time permitted, in all jurisdictions other than the Isle of Man;

 

4.6 that all necessary consents or approvals of, and all necessary registrations, filings, submissions or other action by or with, any regulatory authority or any other person or entity outside the Isle of Man have been or will be obtained, performed or taken in relation to the entry into the Subscription Agreement and the issue of the Registration Statement and the Shares;

 

4.7 that, as at the Search Date, the file maintained by the Registrar in relation to the Company accurately and completely recorded and reflected all resolutions passed and other actions or events in relation to the Company which give rise to an obligation on the part of the Company or any other party to deliver forms or documents to the Registrar;

 

4.8 that the resolutions set out in the Board Resolutions were duly passed by all of the duly appointed directors of the Company in which all such directors declared their interests in the transaction or transactions under consideration as required by law and/or by the Company’s Articles of Association and that such resolutions have not been varied, amended or revoked and remain in full force and effect at the date of this legal opinion;

 

4.9 that the resolutions set out in the Committee Minutes were duly passed at a properly convened and held meeting of duly appointed members of the committee at which all such members declared their interests in the transaction or transactions under consideration as required by law and/or by the Company’s Articles of Association and that such resolutions have not been varied, amended or revoked and remain in full force and effect at the date of this legal opinion;

 

4.10 that, if any Shares are to be issued, the total number of A Ordinary Shares which would result therefrom will not exceed the existing share capital available for issue as described in paragraph 5.1; and
 
 

 

4.11 that the directors of the Company have ensured that the Registration Statement complies in all respects with section 45(1) of the Act.

 

Opinions

 

5. On the basis of the foregoing, we are of the opinion that:

 

5.1 As at the date of this legal opinion, the share capital of the Company available for issue is £60,000,000 divided into 200,000,000 shares designated as either A Ordinary Shares or B Ordinary Shares.

 

5.2 The Shares will have been duly created and their issue and allotment will have been duly authorised.

 

5.3 Once issued in accordance with the relevant terms of the Registration Statement and the Subscription Agreement, the Shares will be legally issued, fully paid and non-assessable.

 

5.4 The statements contained in the section of the Registration Statement entitled “Description of Securities”, insofar as these statements relate to the laws of the Isle of Man or matters governed by Isle of Man law (and to no other matters whatsoever) at the date of the Registration Statement and at the time and date of delivery of this legal opinion, are accurate in all material respects.

 

Consent

 

6.1 This opinion is addressed to the Company in connection with the registration of the Shares under the Securities Act.

 

6.2 We consent to the filing of a copy of this legal opinion as an exhibit to the Registration Statement and to reference to us being made in the paragraph of the Registration Statement headed Legal Matters. In giving this consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated by the US Securities and Exchange Commission under the Securities Act.

 

Yours faithfully,

 

 

 

 

Cains Advocates Limited

 

 

 

 

 

Exhibit 10.1

 

SUBSCRIPTION AGREEMENT

 

January 20, 2020

BETWEEN

 

Eros International Plc, a public company limited by shares incorporated in the Isle of Man (the “Company”);

 

AND

 

______________________________ (the “Purchaser”).

 

WHEREAS on the basis of the representations and warranties contained herein and subject to the terms and conditions set forth herein, the Company and the Purchaser have contemplated the issuance and sale by the Company, and the purchase by the Purchaser, of up to US$50 million worth of A Ordinary Shares (the “A Shares”), par value £0.30 per share, of the Company (the “Shares”).

 

1. Purchase and Sale of the Shares; Registration; Listing

 

1.1 The Purchaser agrees to purchase from the Company, and the Company agrees to issue and sell to the Purchaser, such number of the Shares from time to time to be determined by the Company in its sole discretion over the period from the date hereof until the first anniversary of the date hereof (the “Commitment Period”), at the Purchase Price (as defined below).

 

1.2 The Purchaser acknowledges and agrees that it shall be bound to purchase the Shares aforementioned in 1.1 above from the Company subject to a valid Purchase Notice (as defined below).

 

1.3 At any time during the Commitment Period, but in no event sooner than 10 trading days following the last purchase of Shares by the Purchaser pursuant to this subscription agreement (the “Agreement”), the Company may, in its sole discretion send a written notice (a “Purchase Notice”) to the Purchaser specifying the number of Shares that the Company wishes to sell to the Purchaser, along with a minimum purchase price (the “Minimum Purchase Price”).

 

1.4 Unless otherwise mutually agreed by the Company and the Purchaser, the maximum number of Shares that the Company may include in any such Purchase Notice shall be a number of Shares equal to 400% of the average daily trading volume of the A Shares on the New York Stock Exchange (the “Exchange”) for the 10 trading days prior to, but not including, the date of the Purchase Notice; provided, however, that in no event shall such number of shares cause the aggregate number of Shares beneficially owned by the Purchaser to exceed 4.99% of the issued and outstanding A Shares on the date of the Purchase Notice assuming the full purchase of Shares under such Purchase Notice.

 

1.5 The “Purchase Price” for any purchase of Shares by the Purchaser shall be an amount equal to 95.0% of the lowest daily volume weighted average price (“VWAP”) of the A Shares on the Exchange for each of the five (5) successive trading days beginning on the first trading day following the date of each Purchase Notice (the “Pricing Period”), in each case in US dollars per Share; provided, however, that if the VWAP on any trading day during the Pricing Period is lower than the Minimum Purchase Price, then for each such trading day;

 

 

 
(a) the number of Shares subject to the Purchase Notice shall automatically be reduced by an amount equal to 20% of the original number of Shares in the applicable Purchase Notice; and
(b) such trading day shall not be included in the final determination of the Purchase Price.

 

Notwithstanding anything contained in this clause 1.5 to the contrary, if for any issuance prior to February 29, 2020, the Purchase Price as calculated in this clause 1.5 is less than US$3.60 per share, then the Purchase Price shall be deemed to be US$3.60 per share.

 

1.6 The closing of the purchase of the Shares (the “Closing”) shall occur at 10:00 a.m., New York Time, two trading days following the final determination of the Purchase Price, or such later date on which all of the conditions to Closing specified herein have been satisfied or waived (the “Closing Date”). At the Closing and upon receipt of the purchase consideration for the Shares, the Company shall deliver the Shares to the securities account previously designated by the Purchaser in writing.

 

1.7 All of the Shares to be issued to the Purchaser hereunder shall be registered pursuant to the Company’s effective shelf registration statement on Form F-3 (the “Registration Statement”), and the Company shall continuously maintain the effectiveness of the Registration Statement until the end of the Commitment Period. Each Closing shall be conditional upon the continued effectiveness of the Registration Statement and the availability of the applicable prospectus supplement thereto, each as filed with the US Securities and Exchange Commission prior to the date hereof.

 

1.8 Not later than 15 days following each Closing, the Company shall secure and ensure the listing of the Shares on the Exchange.

 

1.9 The Company shall pay all expenses in connection with the registration and listing of the Shares.

 

1.10 Neither the Purchaser nor its affiliates will, engage in any short sales with respect to the securities of the Company.

 

2. Representations, Warranties and Undertakings

 

The Company represents, warrants and undertakes to the Purchaser, and agrees with the Purchaser, as follows:

 

2.1 The Company has been duly organized and is validly existing and in good standing under the laws of the Isle of Man and has corporate power and authority to enter into and perform its obligations under this Agreement; this Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid, binding and enforceable obligation of the Company; the Shares have been duly authorized and, when issued and delivered in accordance with this Agreement, will be legally issued, fully paid and non-assessable and not subject to any call by the Company; and the issuance of the Shares is not subject to pre-emptive or other similar rights.

 

2.2 The execution and delivery by the Company of, and the performance by the Company of this Agreement will not contravene (i) any provision of applicable law or the memorandum and articles of association of the Company, (ii) any agreement or other instrument binding upon the Company or any of its subsidiaries, or (iii) any judgement, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, except, in the case of clauses (ii) and (iii), as would not reasonably be expected to impair the power or ability of the Company to perform its obligations under this Agreement or consummate the transactions contemplated hereby.

 

 

 
2.3 The Company is in compliance with its reporting obligations under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company shall timely file with the SEC all reports and other documents required to be filed under the Exchange Act and make and keep available adequate current public information, as those terms are contemplated by Rule 144 under the U.S. Securities Act of 1933, as amended from time to time (the “Securities Act”).

 

2.4 The authorized capital of the Company consists, as of January 14, 2020, of (i) 113,691,141 A Shares and (ii) 15,256,925 B Ordinary Shares, par value £0.30 per share of the Company (“B Ordinary Shares” and together with the A Shares, the “Ordinary Shares”). The rights, privileges and preferences of the Ordinary Shares are as stated in the Articles of Association of the Company as amended on December 20, 2019. The Company has reserved (x) 15,256,925 A Shares for issuance upon the conversion of all B Ordinary Shares issued and outstanding and (y) 10,744,985 A Shares for issuance from time to time upon the conversion of all convertible notes issued by the Company and the exercise of all warrants, options and other stock purchase rights, if any, granted by the Company.

 

The Purchaser represents and warrants to the Company as follows:

 

2.5 The Purchaser has made its own independent due diligence investigation, review, and analysis regarding the Company and an investment in the Shares. The Purchaser has been provided an opportunity to ask questions of, and the Purchaser has received answers thereto satisfactory to the Purchaser from, the Company and its representatives regarding this investment, and the Purchaser has obtained all additional information requested by the Purchaser from the Company and its representatives. The Purchaser has such knowledge and experience in financial affairs that the Purchaser is capable of evaluating the merits and risks of an investment in the Shares. The Purchaser has not relied in connection with this investment upon any representations, warranties or agreements other than those set forth in this Agreement. The Purchaser’s financial situation is such that the Purchaser can afford to bear the economic risk of holding the Shares for an indefinite period of time, and the Purchaser can afford to suffer the complete loss of the Purchaser’s investment in the Shares. The Purchaser qualifies as an “accredited investor” (as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act).

 

2.6 The Purchaser has been duly organized and is validly existing and in good standing under the laws of The Republic of Mauritius and has corporate power and authority to enter into and perform its obligations under this Agreement; this Agreement has been duly authorized, executed and delivered by the Purchaser and constitutes a valid, binding and enforceable obligation of the Purchaser.

 

2.7 The execution and delivery by the Purchaser of, and the performance by the Purchaser of this Agreement will not contravene (i) any provision of applicable law, the certificate of incorporation or memorandum and articles of association of the Purchaser, (ii) any agreement or other instrument binding upon the Purchaser or any of its subsidiaries, or (iii) any judgement, order or decree of any governmental body, agency or court having jurisdiction over the Purchaser or any subsidiary, except, in the case of clauses (ii) and (iii), as would not reasonably be expected to impair the power or ability of Purchaser to perform its obligations under this Agreement or consummate the transactions contemplated hereby.

 

 

 
3. Indemnity

 

Each party hereto hereby undertakes to indemnify the other party hereto against any losses, liabilities, damages, reasonable costs, charges, expenses (including reasonable legal fees) that are suffered or incurred by such other party by reason of or in connection with any breach of the representations, warranties or obligations of such party under this Agreement.

 

4. Miscellaneous

 

4.1 This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. Each party to this Agreement irrevocably submits to the jurisdiction of the federal and state courts in the Borough of Manhattan in The City of New York in any legal actions or proceedings arising out of or in connection with this Agreement or the transactions contemplated hereby (“Proceedings”) and waives any objection to Proceedings in such courts whether on the ground of venue or the ground that Proceedings have been brought in an inconvenient forum.

 

4.2 The Company shall not make any announcement or other public statement with respect to this Agreement or the arrangements contemplated by it or make any reference to the investment by the Purchaser without the Purchaser’s prior written consent, except for any announcement by the Company which may be required under applicable laws and regulations or the rules of the Securities and Exchange Commission or the Exchange, in which case the Company shall not make such announcement without prior consultation with the Purchaser.

 

4.3 Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party hereto. Notwithstanding the foregoing, the Purchaser may assign its rights under this Agreement to any affiliate of the Purchaser, provided that any such affiliate expressly makes the representations and warranties of the Purchaser to the Company and expressly agrees to perform all obligations of the Purchaser hereunder prior to any such assignment. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

 

4.4 This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. This Agreement may be executed by facsimile or .pdf signature and a facsimile or .pdf signature will constitute an original for all purposes.

 

4.5 Each of the parties hereto will bear its own costs in connection with the transactions contemplated hereby.

 

 

 

 

 

IN WITNESS WHEREOF THIS AGREEMENT HAS BEEN SIGNED BY THE DULY AUTHORISED REPRESENTATIVES OF THE PARTIES THE DAY AND YEAR FIRST BEFORE WRITTEN

 

 

On behalf of the Purchaser

 

On behalf of Eros International Plc

 

 

 

 

 

Name:

Title:

 

Telephone:

Fax :

 

 

 

 

Name:

Title:

 

Telephone :

Fax :