UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO §240.13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO §240.13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box o.
Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. |
E90215109 |
13D/A | Page | 2 |
of | 10 |
Pages |
1 | NAME OF REPORTING PERSONS Abengoa, S.A. |
||||||||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
||||||||||
(a) o | |||||||||||
(b) o | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS) | ||||||||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Kingdom of Spain | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 0 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 13,637,664 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 0 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
13,637,664 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
13,637,664 | |||||||||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
40.00% | |||||||||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) | ||||||||||
HC, CO |
CUSIP No. |
E90215109 |
13D/A | Page | 3 |
of | 10 |
Pages |
1 | NAME OF REPORTING PERSONS Telvent Corporation S.L. |
||||||||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
||||||||||
(a) o | |||||||||||
(b) o | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS) | ||||||||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Kingdom of Spain | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 0 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 11,403,064 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 0 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
11,403,064 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
11,403,064 | |||||||||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
33.45% | |||||||||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) | ||||||||||
CO |
CUSIP No. |
E90215109 |
13D/A | Page | 4 |
of | 10 |
Pages |
1 | NAME OF REPORTING PERSONS Siema AG |
||||||||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
||||||||||
(a) o | |||||||||||
(b) o | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS) | ||||||||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Switzerland | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 0 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 2,234,600 | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 0 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
2,234,600 | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
2,234,600 | |||||||||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
6.55% | |||||||||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) | ||||||||||
HC, CO |
CUSIP No. |
E90215109 |
13D/A | Page | 5 |
of | 10 |
Pages |
CUSIP No. |
E90215109 |
13D/A | Page | 6 |
of | 10 |
Pages |
(i) | Sole power to vote or to direct the vote: | ||
Abengoa, Telvent Corporation, and Siema have no power individually to vote or direct the vote of Shares. | |||
(ii) | Shared power to vote or to direct the vote: | ||
Abengoa and Telvent Corporation share voting power for 11,403,064 Shares. Abengoa and Siema Share voting power for 2,234,600 Shares. | |||
(iii) | Sole power to dispose or to direct the disposition of Shares: | ||
Abengoa, Telvent Corporation, and Siema have no power individually to dispose of or to direct the disposition of Shares. | |||
(iv) | Shared power to dispose or to direct the disposition of Shares: | ||
Abengoa and Telvent Corporation share dispositive power for 11,403,064 Shares. Abengoa and Siema share dispositive power for 2,234,600 Shares. |
CUSIP No. |
E90215109 |
13D/A | Page | 7 |
of | 10 |
Pages |
Exhibit | Description | |
4.1
|
Irrevocable Undertaking Agreement, dated May 31, 2011, between Schneider Electric, SA and Schneider Electric España, S.A.U., as bidders, and Abengoa, S.A., Telvent Corporation S.L. and Siema AG, as sellers. | |
99.1
|
Joint Filing Agreement, dated June 1, 2011, Abengoa, S.A., Telvent Corporation S.L. and Siema AG, pursuant to Rule 13d-1(k)(1). |
CUSIP No. |
E90215109 |
13D/A | Page | 8 |
of | 10 |
Pages |
ABENGOA, S.A. |
||||
Dated: June 1, 2011 | By: | /s/ Miguel Angel Jiménez- Velasco Mazarío | ||
Name: | Miguel Angel Jiménez- Velasco Mazarío | |||
Title: | Attorney | |||
TELVENT CORPORATION S.L. |
||||
Dated: June 1, 2011 | By: | /s/ Miguel Angel Jiménez- Velasco Mazarío | ||
Name: | Miguel Angel Jiménez- Velasco Mazarío | |||
Title: | Chairman | |||
Dated: June 1, 2011 | By: | /s/ José Marcos | ||
Name: | José Marcos | |||
Title: | Director | |||
Dated: June 1, 2011 | By: | /s/ Juan Carlos Jiménez | ||
Name: | Juan Carlos Jiménez | |||
Title: | Director | |||
SIEMA AG |
||||
Dated: June 1, 2011 | By: | /s/ Miguel Angel Jiménez- Velasco Mazarío | ||
Name: | Miguel Angel Jiménez- Velasco Mazarío | |||
Title: | Chairman | |||
Dated: June 1, 2011 | By: | /s/ Juan Carlos Jiménez | ||
Name: | Juan Carlos Jiménez | |||
Title: | Director | |||
CUSIP No. |
E90215109 |
13D/A | Page | 9 |
of | 10 |
Pages |
Present Principal | ||
Name | Occupation or Employment | |
Felipe Benjumea Llorente
|
Director (Chairman of the Board) and Chief Executive Officer of Abengoa; Chairman of the Board of Directors of Inversion Corporativa IC, S.A. (holding company) and Director (Chairman, as Abengoa S.A., of the Foundation Focus-Abengoa). | |
Javier Benjumea Llorente
|
Director of Abengoa, S.A.; Director of Inversion Corporativa IC, S.A. (holding company), and Director of the Foundation Focus-Abengoa. | |
José Joaquín Abaurre Llorente
|
Director of Abengoa; Director of Inversion Corporativa IC, S.A. (holding company). | |
José Luis Aya Abaurre
|
Director of Abengoa; Director (Vice Chairman) of Inversion Corporativa IC, S.A. (holding company). | |
Aplicaciones Digitales, S.L.
|
Director of Abengoa. Aplicaciones is a Spanish limited liability company. José B. Terceiro Lombas, Aplicaciones sole manager, serves as its nominee. Mr. Lombas is the Deputy Vice Chairman of Abengoa; a Director of Telvent, as well as a Professor at the Complutense University (Madrid, Spain). | |
Manuel Sánchez Ortega
|
Chief Executive Officer and Director of Abengoa. | |
Alicia Velarde Valiente
|
Director of Abengoa. | |
Carlos Sebastián Gascón
|
Director of Abengoa. | |
Carlos Sundheim Losada
|
Director of Abengoa. | |
Daniel Villalba Vila
|
Director of Abengoa. | |
Fernando Solís Martínez-Campos
|
Director of Abengoa. | |
Ignacio Solís Guardiola
|
Director of Abengoa. | |
Maria Teresa Benjumea Llorente
|
Director of Abengoa. | |
Mercedes Gracia Díez
|
Director of Abengoa. | |
José Borrell Fontelles
|
Director of Abengoa. |
Present Principal | ||
Name | Occupation or Employment | |
Amando Sánchez Falcón
|
Chief Financial Officer of Abengoa. | |
Javier Salgado Leirado
|
Chief Executive Officer of Abengoa Bioenergy Corp. (a bioenergy company), a subsidiary of Abengoa. | |
Ignacio Gonzalez Dominguez
|
Director, Chairman and Chief Executive Officer of Telvent. | |
Santiago Seage Medela
|
Chairman of Abengoa Solar, S.A. a subsidiary (solar energy solutions provider) of Abengoa. |
CUSIP No. |
E90215109 |
13D/A | Page | 10 |
of | 10 |
Pages |
Present Principal | ||
Name | Occupation or Employment | |
Alfonso González Domínguez
|
President of Instalaciones Inabensa, S.A. (an electrical, communications and mechanical installations company), a subsidiary of Abengoa, and of Abener Energía, S.A. (an engineering and construction company in the industrial field), a subsidiary of Abengoa. | |
Javier Molina Montes
|
President of Befesa Agua, S.A.U. (engineering and construction services provider), a subsidiary of Abengoa; President of Befesa Medio Ambiente, S.A. (an industrial waste service provider). |
Present Principal | ||||||
Occupation or | ||||||
Name | Employment | Business Address | Citizenship | |||
Miguel Angel
Jiménez- Velasco
Mazarío
|
Chairman | Valgrande, 6, Alcobendas, Madrid, Spain | Spain | |||
Juan Carlos Jiménez
|
Director | Valgrande, 6, Alcobendas, Madrid, Spain | Spain | |||
Suzanne Wettenschwiler
|
Director | Baarerstrasse 12, 6300 Zug. Switzerland | Switzerland | |||
Roman Giger
|
Director | Baarerstrasse 12, 6300 Zug. Switzerland | Switzerland | |||
Raoul Bussmann
|
Director | Baarerstrasse 12, 6300 Zug. Switzerland | Switzerland |
Present Principal | ||
Name | Occupation or Employment | |
Miguel A. Jiménez-Velasco Mazarío
|
Chairman | |
Juan Carlos Jimenez Lora
|
Director | |
José Marcos Romero
|
Director |
I. PARTIES |
1 | |||
II. RECITALS |
2 | |||
III. CLAUSES |
4 | |||
1. Agreement to Tender |
4 | |||
2. Agreement to Vote |
4 | |||
3. Undertakings of the Selling Stockholders |
6 | |||
4. Undertakings of the Bidder Parties |
9 | |||
5. Representations and Warranties of the Bidder Parties |
10 | |||
6. Representations and Warranties of the Selling Stockholders |
11 | |||
7. Indemnity undertaking |
14 | |||
8. No Managing Interest |
15 | |||
9. Term |
15 | |||
10. Termination of the Agreement |
15 | |||
11. Confidentiality; Public Announcements |
16 | |||
12. Specific Performance |
17 | |||
13. Assignment; Third-Party Beneficiaries |
17 | |||
14. Costs and taxes |
18 | |||
15. Interpretation Standards |
18 | |||
16. Notices |
19 | |||
17. Governing law |
22 | |||
18. Arbitration |
22 | |||
SCHEDULE |
25 |
Page 1
I. | Whereas TELVENT GIT, S.A. is a company organized under the laws of the Kingdom of Spain, with corporate domicile in Alcobendas (Madrid), Valgrande 6, registered with the Commercial Registry of Madrid, under Tomo 15.370, Folio 164, Hoja M-257879, and having C.I.F. A-82631623 (hereinafter, TELVENT or the Company). | |
II. | Whereas the share capital of TELVENT currently amounts to 102,454,652.50, represented by 34,094,159 ordinary shares with a nominal value of 3.00505 per share, which are listed on and traded through the Nasdaq Global Select Market in the United States (hereinafter, the TELVENT Shares). | |
III. | Whereas the Bidder Parties intend to launch a tender offer (hereinafter, the Offer) for the TELVENT Shares promptly following the execution hereof, pursuant to a transaction agreement (the Transaction Agreement) that the Bidder and TELVENT have entered into on the date hereof, such Offer to be made at a price of US $40 per share (such amount or, if the Offer is amended in accordance with the terms of the Transaction Agreement and a higher amount per TELVENT Share is paid pursuant to the Offer, such higher amount, the Acquisition Price), subject to the terms and conditions set forth in the Transaction Agreement and the related Offer materials (the Tender Offer Materials), otherwise in accordance with the Exchange Act), including Regulation 14D promulgated thereunder (hereinafter the US tender offer rules). | |
IV. | Whereas on the date of execution of this Agreement ABENGOA is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of an aggregate number of 13,637,664 TELVENT Shares, of which 11,403,064 |
Page 2
shares are held by TELVENT Corporation and 2,234,600 shares are held by SIEMA (all such beneficially owned TELVENT Shares which are outstanding as of the date hereof and which may hereafter be issued to or otherwise acquired or owned by ABENGOA prior to the termination of this Agreement (including pursuant to any exercise of acquisition by purchase, or stock dividend, distribution, split-up, recapitalization, combination or similar transaction), being referred to herein as the Subject Shares). | ||
V. | Whereas as a condition to their willingness to enter into the Transaction Agreement, the Bidder Parties have requested that the Selling Shareholders, and in order to induce the Bidder Parties to enter into the Transaction Agreement, the Selling Shareholders have (and for ABENGOA only in its capacity as a shareholder of TELVENT) agreed to, enter into this Agreement. | |
VI. | Whereas pursuant to the Transaction Agreement, (a) TELVENT shall, using its available cash balances that the management of the Company reasonably determines are not necessary or useful to maintain for purposes of the Companys working capital needs and using funds to be provided by the Bidder Parties, repay in full all indebtedness for borrowed money existing as of immediately prior to the Offer Closing, between TELVENT or any of its Subsidiaries, on the one hand, and ABENGOA or its Affiliates (other than TELVENT) or any of its Subsidiaries, on the other hand and TELVENT and the Bidder Parties shall cause ABENGOA or its Affiliates (other than TELVENT) to be released from guarantees and other credit support provided to TELVENT and its Subsidiaries, which indebtedness, guaranties and credit support are set forth on Schedule VI, and (b) ABENGOA shall repay in full any indebtedness for borrowed money, if any, owed to TELVENT existing as of immediately prior to the Offer Closing. | |
VII. | Whereas in light of the above, the Selling Shareholders desire to sell the Subject Shares to the Bidder Parties at the Acquisition Price and the Bidder Parties desire to acquire the Subject Shares at such price subject to the terms and conditions set forth in this Agreement. | |
VIII. | Whereas capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Transaction Agreement, and the other definitional and interpretative provisions set |
Page 3
forth in Section 6.13 of the Transaction Agreement shall apply hereto as if such provisions were set forth herein. | ||
IX. | Whereas, in light of the above and the respective representations, warranties, covenants and agreements set forth below, the Parties hereto agree as follows. |
Page 4
Page 5
(i) | (x) to maintain record and/or beneficial ownership (as beneficial owner is defined in Rule 13d-3 under the Exchange Act), as the case may be, of the Subject Shares until their transfer to BIDCO, except as such beneficial ownership may be deemed transferred to the Bidder Parties pursuant to this Agreement; (y) not to, directly or indirectly, (i) transfer (which term shall include any sale, offer for sale, transfer, tender, assignment, gift, pledge, hypothecation or other disposition), or consent to or permit any such transfer of, any or all of the Subject Shares or any interest therein, or create or permit to exist any Lien on any Subject Shares, other than any restrictions imposed by Applicable Law or pursuant to this Agreement, (ii) enter into any Contract with respect to any transfer of such Subject Shares or any interest therein, (iii) grant or permit the grant of any proxy, power of attorney or other authorization in or with respect to such Subject Shares, (iv) deposit or permit the deposit of such Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to such Subject Shares, or (v) take or permit any other action that would in any way restrict, limit or interfere with the performance of its obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of each Shareholder herein untrue or incorrect; and (z) use its reasonable commercial efforts, in its capacity and consistent with its role as a stockholder, to take all actions reasonably required as a stockholder to (A) cause TELVENT to perform its obligations |
Page 6
under the Transaction Agreement in all material respects and (B) not to cause TELVENT to take any action that would be in violation of the Transaction Agreement in any material respect; and | |||
(ii) | to tender all the Subject Shares in the Offer as promptly as practicable after commencement of the Offer, but in any event no later than ten Business Days following commencement of the Offer. |
Page 7
Page 8
Page 9
(i) | To launch the Offer as promptly as practicable following the date hereof in accordance with the Transaction Agreement. | ||
(ii) | Subject to the satisfaction or waiver of all conditions to the Offer set forth in the Transaction Agreement, to acquire the Subject Shares tendered into the Offer and to pay to the Selling Stockholders the Acquisition Price for each Subject Share pursuant to and in accordance with the terms of the Offer promptly following the expiration of the Offer in accordance with the Exchange Act. | ||
(iii) | To provide the Selling Stockholders with all such information as it shall reasonably request in relation to the conduct of the Offer. | ||
(iv) | To perform in full, and to cause the Company and its Subsidiaries to perform in full, all their obligations under or pursuant to Section 4.9 of the Transaction Agreement. |
(i) | Valid/Binding agreement. Assuming the due authorization, execution and delivery of this Agreement by the Selling Stockholders, this Agreement, when duly executed, will constitute valid and binding agreement of the Bidder Parties, enforceable against each Bidder Party in accordance with its terms, subject only to the Bankruptcy and Equity Exception. | ||
(ii) | Valid existence. Each Bidder Party is a duly incorporated company, validly existing and in good standing under the laws of the jurisdiction in which such party is organized, and each Bidder |
Page 10
Party has full corporate power and authority to enter into this Agreement and to perform its obligations hereunder. | |||
(iii) | Authorization / enforceability. The execution, delivery and performance by the Bidder Parties of this Agreement and all of the documents and instruments required hereby from the Bidder Parties and the consummation of the Offer and other transactions contemplated hereby and thereby are within the corporate power of each Bidder Party and have been duly authorized by all necessary corporate action of such Bidder Party. Therefore, this Agreement and any other documents or instruments entered into pursuant to this Agreement shall be enforceable against each Bidder Party in accordance with their terms, subject only to the Bankruptcy and Equity Exception. | ||
(iv) | Non contravention. The execution, delivery and performance by the Bidder Parties of this Agreement and all of the documents and instruments required hereby from the Bidder Parties and the consummation of the Offer and other transactions contemplated hereby and thereby do not and will not (i) violate any certificate of incorporation, bylaws or other organizational documents of either Bidder Party, (ii) violate any applicable Law or order applicable to the Bidder Parties, or (iii) result in the imposition of any encumbrance on any asset of either Bidder Party. No governmental authorization is required in connection with the execution and delivery of this Agreement by the Bidder Parties or the consummation by the Bidder Parties of the transactions contemplated hereby, except for applicable requirements, if any, under the Exchange Act and any other applicable U.S. state or federal securities laws. |
Page 11
6.1 | The Selling Stockholders, jointly and severally, state that the representations and
warranties set forth in clause 6.2 (hereinafter, Representations and Warranties of the
Selling Stockholders and, along with the Representations and Warranties of the Bidder,
the Representations and Warranties) are true, accurate and complete, and do not omit any
fact or circumstance that might alter, limit or condition their content and scope. |
||
6.2 | The Selling Stockholders hereby, jointly and severally, represent and warrant to the Bidder Parties that: |
(i) | Valid/Binding agreement. Assuming the due authorization, execution and delivery of this Agreement by the Bidder Parties, this Agreement, when duly executed, will constitute valid and binding agreement of each Selling Stockholder enforceable against such Selling Stockholder in accordance with its terms, subject only to the Bankruptcy and Equity Exception. | ||
(ii) | Valid existence. Each Selling Stockholder is a duly incorporated company, validly existing and in good standing under the laws of the jurisdiction under which such Selling Stockholder is organized, and has full corporate power and authority to enter into this Agreement and to perform its obligations hereunder. | ||
(iii) | Authorization / enforceability. The execution, delivery and performance by each Selling Stockholder of this Agreement, and all of the documents and instruments required hereby from each Selling Stockholder and the consummation of the transactions contemplated hereby and thereby are within the corporate power of such Selling Stockholder and have been duly authorized by all necessary corporate action of such Selling Stockholder. Therefore, this Agreement and any other documents or instruments entered into pursuant to this Agreement shall be enforceable against each Selling Stockholder in accordance with their terms, subject only to the Bankruptcy and Equity Exception. | ||
(iv) | Non contravention. Except as otherwise disclosed in the Transaction Agreement and the Company SEC Documents, the execution, delivery and performance by each Selling Stockholder of this Agreement and the consummation of the transactions |
Page 12
contemplated hereby and thereby do not and will not (i) violate the memorandum and articles of association (Estatutos) or other organizational documents of such Selling Stockholder, (ii) violate any applicable law or order applicable to such Selling Stockholder, or (iii) result in the imposition of any encumbrance on any asset of such Selling Stockholder. No governmental authorization is required in connection with the execution and delivery of this Agreement by each Selling Stockholder or the consummation by such Selling Stockholder of the transactions contemplated hereby, except for applicable requirements, if any, under the Exchange Act and any other applicable U.S. state or federal securities laws. |
(v) | Legal title to and beneficial ownership of the Subject Shares. Each Company Stockholder is the record or beneficial owner of the Subject Shares, free and clear of any encumbrance and any other limitation or restriction (including any restriction on the right to vote or otherwise transfer such Subject Shares), except as provided hereunder, or any applicable restrictions on transfer under the Securities Act. As of the date hereof, no Selling Stockholder owns, beneficially or otherwise, any TELVENT Shares other than the Subject Shares. |
Page 13
(vi) | Absence of Charges or Encumbrances on the Subject Shares. The Subject Shares are, and shall remain until their transfer to BIDCO, free from any type of Charges or Encumbrances. For these purposes, Charges and Encumbrances shall encompass any restriction, obligation or defect having a real or personal nature which encumbers: (i) the title to the Subject Shares, their peaceful enjoyment and full possession; (ii) the capacity of the Selling Stockholders to freely dispose of the Subject Shares; or (iii) any other right inherent to their ownership or title. Such term includes without limitation pledges, usufructs, retention rights, pre-emptive entries in any public registries, and other charges, restrictions and encumbrances of a real nature, as well as preferential acquisition rights, rights of first refusal, obligations to offer, buy-back rights, option rights, limitations on use, disposition or enjoyment, or any other limitations of rights inherent in the title to the Subject Shares, whether of a voluntary, legal or contractual nature, or other charges, restrictions or encumbrances of a personal nature. | ||
(vii) | No Knowledge. To the knowledge of the Selling Shareholders, except as disclosed in the electronic data room made available to the Bidder, none of the Company SEC Documents, as of their respective filing dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. | ||
(viii) | Finders Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission in connection with the transactions contemplated by this Agreement based upon any arrangement or agreement made by or on behalf of the Selling Stockholders other than as disclosed in the Transaction Agreement. |
6.3 | For the purposes of evidencing its record ownership of the Subject Shares, the Selling
Stockholders shall provide the Bidder, no later than ten Business Days from the date of this
Agreement, with a certificate of the Transfer Agent setting forth the number of TELVENT
Shares held of |
Page 14
record by each Company Stockholder as reflected on the shareholder registered
maintained by the Transfer Agent. |
|||
6.4 | The Representations and Warranties of the Selling Stockholders will remain in force and
will be deemed as true, complete and accurate at the time of transfer of the Subject Shares
to BIDCO and at the time of settlement of the Offer. For avoidance of doubt,
notwithstanding anything in this Agreement to the contrary, the Representations and
Warranties of the Selling Stockholders shall not survive the Offer Closing. |
7.1 | The Bidder Parties and the Selling Stockholders shall indemnify each other for any
damages (as defined in clause 7.2) caused to the other Party as a consequence of any
inaccuracy, omission or falsity in the Representations and Warranties above. |
||
7.2 | For the purposes of this Agreement, damages will mean any direct and demonstrable:
loss, damage (expressly excluding consequential damage and loss of probable profit),
detriment, charge, liability, capital loss, fine, surcharge, interest or expense (including
expenses and fees for attorneys, solicitors, notaries public, auditors, accountants, experts
or other professionals). |
||
7.3 | Indemnity for damages will be calculated on a dollar-for-dollar basis. |
8.1 | Until such time as the Bidder Parties shall have acquired the Subject Shares pursuant to
the offer, all rights, ownership and economic benefits of and relating to the Subject Shares
shall remain vested in and belong to the Selling Stockholders, and the Bidder Parties shall
not have any authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of TELVENT. |
9.1 | This Agreement shall enter into force on the date of its execution and shall remain in force up to the earliest of: |
Page 15
(i) | the mutual written consent of the Parties; | ||
(ii) | the date of settlement of the Offer (if the Subject Shares are acquired in the Offer as contemplated herein); or | ||
(iii) | the termination or expiration of the Offer, without any TELVENT Shares being accepted for payment thereunder due to the failure of the Offer Conditions to be satisfied. |
(i) | Expiry of the term of the Agreement as set out in clause 9. | ||
(ii) | At the choice of the non-defaulting Party where any Party gives the other Parties written notice of termination of this Agreement due to a serious or repeated breach of any material obligation or covenant assumed under this agreement (hereinafter, a Material Breach), if such Material Breach remains uncured or unsolved after thirty (30) calendar days from the date of delivery of written notice to the breaching Party. |
Page 16
disclose such information in compliance with their legal or regulatory obligations and subject to clause 11.3 below. |
Page 17
are not available at law. Therefore, the Parties shall be entitled to an injunction, restraining order or such other equitable relief (without the requirement to post bond) as a court of competent jurisdiction may deem necessary or appropriate to restrain the breaching party from committing any violation of such covenants, obligations or agreements and to specifically enforce the terms of this Agreement. These injunctive remedies are cumulative and in addition to any other rights and remedies the Parties may have under applicable law. Notwithstanding the above, and in application of the relevant provisions of Spanish law it is expressly agreed by the Parties that: (i) specific performance can only take place when, at the time it is to be granted, such specific performance is feasible and is being requested in good faith by the Parties seeking to enforce it (buena fe de exigir); (ii) specific performance will not be granted when it entails an imposition of a sanction against individual freedom (hacer personal); and (iii) specific performance will not be granted when its application implies the breach of an obligation of a third party (e.g. an obligation imposed by the Sellers on the directors nominated by them to vote in a given sense at a Board meeting which would go against the duties of directors under the Spanish Corporation Act). |
13.1 | No Party shall have the right to assign the rights and obligations arising under this
Agreement without the prior written consent of the other Parties. |
||
13.2 | No provision of this Agreement is intended to confer any rights, benefits, remedies,
obligations or liabilities hereunder upon any Person, other than the Company with respect to
the provisions of clause 3.4. |
14.1 | The Parties will bear the costs and taxes derived from negotiating, formalizing and
executing this Agreement, as follows: |
(i) | All the expenses and costs incurred and directly related to the Offer shall be borne by the Bidder Parties. |
Page 18
(ii) | Other fees for advisors, auditors and other professionals will be borne by the Party that contracted the services in each case. | ||
(iii) | Taxes resulting from formalizing and executing this Agreement, if any, will be borne, in each case, in accordance with applicable Law. |
15.1 | Headings. The headings and index used in this Agreement are for reference
purposes only, and will not be deemed to affect its interpretation. |
||
15.2 | Prevalence. If conflict arises between the clauses of this Agreement and the
content of its Schedules or a supplementary document, the content of the clauses of this
Agreement will prevail. |
||
15.3 | Severability. The illegality, invalidity or nullity of any clause in this
Agreement will not affect the validity of its other clauses, provided the rights and
obligations of the Parties are not affected in an essential manner. Essential is
understood as any situation that seriously prejudices the interests of any of the Parties,
or affects the object of this Agreement as provided in clause 1. Such clauses are to be
replaced or integrated into others that, in accordance with law, correspond to the
objectives of the substituted clause(s). |
||
15.4 | Entire Agreement. This Agreement constitutes the entire agreement of the Parties
on the date it is entered into, regarding the matters set out in it, and it substitutes and
derogates all other previous agreements relating to its object. All the schedules form an
integral part of this Agreement and have the same validity and effect as if they were
incorporated into the text of this Agreement. Changes to this Agreement are to be made in
writing and signed by the Parties. |
||
15.5 | Waiver. No waiver by the Parties of any of the rights under this Agreement or
derived from its breach will be deemed to exist, unless the waiver is made expressly in
writing. If any Party waives any of its rights under this Agreement or any breach of this
Agreement by the other Party pursuant to the previous paragraph, this waiver will not be
understood as a waiver of any other right under this Agreement or any |
Page 19
other breach by the other Party, even though it may be similar to the waived event. |
15.6 | Amendment of Transaction Agreement. The Bidder Parties agree that they shall not
amend or modify the Transaction Agreement, nor any of the terms thereof, without the prior
written consent of ABENGOA. |
16.1 | Form. All communications and notices made by the Parties pursuant to or relating
to this Agreement must be in writing, using any of the following methods: |
(i) | personal delivery with written confirmation of receipt by the other Party; | ||
(ii) | notarial service; | ||
(iii) | registered fax (bureau fax); or | ||
(iv) | mail, commercial delivery service, or electronic mail, or by any other means, as long as, at all times, there is evidence of receipt by the addressee(s). |
16.2 | Designated Addresses for Notices. Communications and notices between the Parties
are to be delivered to the following addresses or fax numbers and to the attention of the
persons indicated: |
Page 20
Page 21
16.3 | Changes. Under this clause, any changes to the addresses or contact persons
indicated to receive notices under this Agreement are to be notified immediately to the
other Parties. If a Party has not received notice of changes, any notice this Party makes in
accordance with these rules to the addresses and persons indicated in this Agreement will be
deemed valid. |
17.1 | This Agreement will be governed by the laws of Spain. |
18.1 | All disputes arising out of or in connection with this Agreement between the Bidder
Parties, on the one hand, and the Selling Stockholders, on the other hand, shall be finally
settled under the Rules of Arbitration of the International Chamber of Commerce by three (3)
arbitrators appointed in accordance with the said Rules. For purposes of appointing
arbitrators in accordance with the said Rules, the Bidder Parties shall be considered one
party and the Selling Stockholders shall be considered the other party. The seat of the
arbitration shall be Madrid (Spain), the language of the arbitration shall be English and in
Spanish the arbitration shall be arbitration in law. For the avoidance of doubt, the
arbitrators shall have authority to grant specific performance in accordance with clause 12
of this Agreement, subject to the limitations therein. The parties submit to jurisdiction in
the Courts of Madrid for the limited purpose of enforcing this agreement to arbitrate. |
Page 22
18.2 | Judgment upon the award may be entered by any court having jurisdiction thereof or having
jurisdiction over the relevant party or its assets. |
Page 23
SCHNEIDER ELECTRIC, S.A. |
||||
By: | ||||
Name: | ||||
Title: | ||||
SCHNEIDER ELECTRIC ESPAÑA, S.A.U. |
||||
By: | ||||
Name: | ||||
Title: | ||||
ABENGOA, S.A. |
||||
By: | ||||
Name: | ||||
Title: | ||||
SIEMA, A.G. |
||||
By: | ||||
Name: | ||||
Title: | ||||
TELVENT CORPORATION, S.L. |
||||
By: | ||||
Name: | ||||
Title: |
Page 24
- Schedule VI
|
Certain Indebtedness. |
Page 25
ABENGOA, S.A. |
||||
Dated: June 1, 2011 | By: | /s/ Miguel Angel Jiménez-Velasco Mazarío | ||
Name: | Miguel Angel Jiménez-Velasco Mazarío | |||
Title: | Attorney | |||
TELVENT CORPORATION S.L. |
||||
Dated: June 1, 2011 | By: | /s/ Miguel Angel Jiménez-Velasco Mazarío | ||
Name: | Miguel Angel Jiménez-Velasco Mazarío | |||
Title: | Chairman | |||
Dated: June 1, 2011 | By: | /s/ José Marcos | ||
Name: | José Marcos | |||
Title: | Director | |||
Dated: June 1, 2011 | By: | /s/ Juan Carlos Jiménez | ||
Name: | Juan Carlos Jiménez | |||
Title: | Director | |||
SIEMA AG |
||||
Dated: June 1, 2011 | By: | /s/ Miguel Angel Jiménez-Velasco Mazarío | ||
Name: | Miguel Angel Jiménez-Velasco Mazarío | |||
Title: | Chairman | |||
Dated: June 1, 2011 | By: | /s/ Juan Carlos Jiménez | ||
Name: | Juan Carlos Jiménez | |||
Title: | Director | |||