0001140361-18-012728.txt : 20180309 0001140361-18-012728.hdr.sgml : 20180309 20180309092914 ACCESSION NUMBER: 0001140361-18-012728 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20180309 DATE AS OF CHANGE: 20180309 GROUP MEMBERS: AAGES (AY HOLDINGS) B.V. GROUP MEMBERS: ALGONQUIN (AY HOLDCO) B.V. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Atlantica Yield plc CENTRAL INDEX KEY: 0001601072 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 000000000 STATE OF INCORPORATION: X0 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-88595 FILM NUMBER: 18678652 BUSINESS ADDRESS: STREET 1: GREAT WEST HOUSE, GW1, 17TH FLOOR STREET 2: GREAT WEST ROAD CITY: BRENTFORD STATE: X0 ZIP: TW8 9DF BUSINESS PHONE: 44 20 7098 4384 MAIL ADDRESS: STREET 1: GREAT WEST HOUSE, GW1, 17TH FLOOR STREET 2: GREAT WEST ROAD CITY: BRENTFORD STATE: X0 ZIP: TW8 9DF FORMER COMPANY: FORMER CONFORMED NAME: Abengoa Yield plc DATE OF NAME CHANGE: 20140326 FORMER COMPANY: FORMER CONFORMED NAME: Abengoa Yield Ltd DATE OF NAME CHANGE: 20140226 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ALGONQUIN POWER & UTILITIES CORP. CENTRAL INDEX KEY: 0001174169 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 354 DAVIS ROAD CITY: OAKVILLE STATE: A6 ZIP: L6J2X1 BUSINESS PHONE: 0000000000 MAIL ADDRESS: STREET 1: 354 DAVIS ROAD CITY: OAKVILLE STATE: A6 ZIP: L6J2X1 FORMER COMPANY: FORMER CONFORMED NAME: ALGONQUIN POWER INCOME FUND DATE OF NAME CHANGE: 20020523 SC 13D 1 formsc13d.htm SC 13D

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549



SCHEDULE 13D
 
Under the Securities Exchange Act of 1934
 
Atlantica Yield plc

(Name of Issuer)
 
Ordinary Shares, nominal value $0.10 per share
(Title of Class of Securities)
 
G0751N103

(CUSIP Number)

Chauncey M. Lane
Husch Blackwell LLP
2001 Ross Avenue
Suite 2000
Dallas, Texas 75201
(214) 999-6129

(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications)
 
March 9, 2018

(Date of Event Which Requires Filing of This Statement)
 
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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. ☐
 
*
The remainder of this cover page shall be filled out for a reporting person’s 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 this cover page shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “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).
 


1
NAMES OF REPORTING PERSONS:
 
 
 
 
Algonquin Power & Utilities Corp.
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a)
 
(b)
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS:
 
 
BK WC
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E):
 
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION:
 
 
Canada
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
16,503,348 (1)
 
 
 
 
8
SHARED VOTING POWER
 
 
25,054,315
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
16,503,348 (1)
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
25,054,315
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
41,557,663
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
 
 
41.47%
 
 
 
 
14
TYPE OF REPORTING PERSON:
 
 
CO, HC
 
 
 
 
 
(1) Represents ordinary shares of the Issuer underlying options granted under the Option and Right of First Refusal Agreement, which options have not been exercised as of the filing date.
 

1
NAMES OF REPORTING PERSONS:
 
 
 
 
Algonquin (AY Holdco) B.V.
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a)
 
(b)
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS:
 
 
AF
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E):
 
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION:
 
 
Netherlands
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
0
 
 
 
 
8
SHARED VOTING POWER
 
 
25,054,315
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
0
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
25,054,315
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
25,054,315
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
 
 
25%
 
 
 
 
14
TYPE OF REPORTING PERSON:
 
 
CO, HC
 
 
 
 
 

1
NAMES OF REPORTING PERSONS:
 
 
 
 
AAGES (AY Holdings) B.V.
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a)
 
(b)
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS:
 
 
AF
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E):
 
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION:
 
 
Netherlands
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
0
 
 
 
 
8
SHARED VOTING POWER
 
 
25,054,315
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
0
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
25,054,315
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
25,054,315
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
 
 
25%
 
 
 
 
14
TYPE OF REPORTING PERSON:
 
 
CO
 
 
 
 
 

Item 1. Security and Issuer

This statement on Schedule 13D (the “Schedule 13D”) relates to the ordinary shares, nominal value of $0.10 per share, of Atlantica Yield plc (the “Issuer”), a public limited company incorporated under the laws of England and Wales. The Issuer’s principal executive offices are located at Great West House, GW1, 17th Floor, Great West Road, Brentford, United Kingdom TW8 9DF.

As of March 9, 2018, AY Holdco and AY Holdings beneficially owned an aggregate of 25,054,315, representing 25% of the issued and outstanding ordinary shares of the Issuer. Algonquin beneficially owned an aggregate of 41,557,663 ordinary shares of the Issuer (which includes the 25,054,315 also beneficially owned by AY Holdco and AY Holdings plus the 16,503,348 ordinary shares of the Issuer underlying call options), representing approximately 41.47% of the issued and outstanding ordinary shares of the Issuer (collectively, the “Ordinary Shares”).

Item 2. Identity and Background

 
(a), (f)
This statement is being filed by:

 
(i)
Algonquin Power & Utilities Corp., a Canadian corporation (“Algonquin”);

 
(ii)
Algonquin (AY Holdco) B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (“AY Holdco”); and

 
(iv)
AAGES (AY Holdings) B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (“AY Holdings,” and together with Algonquin and AY Holdco, the “Reporting Persons”).

Set forth on Schedule A to this Schedule 13D and incorporated by reference herein are the names, business addresses, principal occupations or employments, and citizenship of each executive officer and director of the Reporting Persons.

The Reporting Persons have entered into a joint filing agreement, dated as of March 9, 2018, a copy of which is attached hereto as Exhibit 99.1.

 
(b)
The address of the principal business and principal office of Algonquin is 354 Davis Road, Suite 100, Oakville, Ontario, Canada L6J 2X1.
 
The address of the principal business and principal office of AY Holdco is Atrium Building, 8th Floor, Strawinskylaan 3127, 1077 ZX Amsterdam, The Netherlands.

The address of the principal business and principal office of AY Holdings is Atrium Building, 8th Floor, Strawinskylaan 3127, 1077 ZX Amsterdam, The Netherlands.

(c)
The principal business of Algonquin is to own and operate a diversified portfolio of regulated and non-regulated generation, distribution, and transmission utility assets.
 
The principal business of AY Holdco is to hold shares of AY Holdings and Abengoa–Algonquin Global Energy Solutions B.V., a private company with limited liability (besloten ennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (“AAGES”).
 
The principal business of AY Holdings is to hold shares of the Issuer.

(d), (e)    During the last five years, none of the Reporting Persons and none of the persons set forth on Schedule A, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws.
 

Item 3. Source and Amount of Funds and other Considerations

The Reporting Persons obtained funds for the acquisition of the Ordinary Shares from cash on hand and a Term Facility.  The Term Facility was established pursuant to a Term Credit Agreement dated December 21, 2017 between Algonquin as borrower and the Bank of Nova Scotia and Canadian Imperial Bank of Commerce as Joint Lead Arrangers and Joint Bookrunners in the principal amount of $600 million for a term of one year.  The facility is conditional upon the fulfillment of certain conditions precedent under the Share Purchase Agreement (as defined below) and can be drawn in a single advance in part or in full.

Item 4.  Purpose of Transaction

The Reporting Persons purchased the Ordinary Shares for investment purposes pursuant to a sale and purchase agreement dated November 1, 2017 (the “Share Purchase Agreement”), as amended pursuant to Deed of Amendment No. 1, dated January 31, 2018, Deed of Amendment No. 2, dated February 15, 2018, and Deed of Amendment No. 3, dated February 27, 2018, between ACIL Luxco 1, S.A., a société anonyme incorporated under the laws of Luxembourg (“ACIL Luxco 1”), Algonquin, and Abengoa, S.A. (“Abengoa”), as guarantor of ACIL Luxco 1.  Pursuant to a sale and purchase agreement dated March 8, 2018 (the “On-Sale SPA”), between Algonquin and AY Holdings, Algonquin transferred the Ordinary Shares it acquired under the Share Purchase Agreement to AY Holdings, which now holds the Ordinary Shares of the Issuer.

On November 1, 2017, Algonquin and Abengoa also entered into an option and right of first refusal agreement with respect to additional Ordinary Shares of the Issuer (the “Option Agreement”).  Under the Option Agreement, Algonquin (directly or through an assignee) has the right to acquire from ACIL Luxco 1 additional Ordinary Shares representing a 16.47% aggregate equity interest in the Issuer.

Also on November 1, 2017, Algonquin and Abengoa entered into a memorandum of understanding (the “AAGES MOU”), pursuant to which Algonquin and Abengoa established AAGES, which is a joint venture company owned 50% by Algonquin through AY Holdco and 50% by Abengoa through a subsidiary.  The business of AAGES is developing global utility infrastructure projects.  In addition, AAGES has formed a subsidiary, AY Holdings, to hold the initial 25% Ordinary Shares of the Issuer.  Pursuant to the terms of the articles of association and joint venture agreements of AAGES and AY Holdings, Abengoa and its affiliates have no power to vote or direct the vote of or to dispose or direct the disposal of those Ordinary Shares held by AY Holdings, such power resides with AY Holdco as the holder of preferred shares of AY Holdings. The terms of the AAGES MOU were superseded by the documents governing AAGES and AY Holdings.

The Reporting Persons intend to review their investment in the Issuer on a continuing basis. Depending on various factors and subject to the obligations described herein, including, without limitation, the Issuer’s financial position and strategic direction, actions taken by the board, price levels of Ordinary Shares, other investment opportunities available to the Reporting Persons, concentration of positions in the portfolios managed by the Reporting Persons, market conditions and general economic and industry conditions, the Reporting Persons may take such actions with respect to their investments in the Issuer as they deem appropriate, including, without limitation, purchasing additional Ordinary Shares or other financial instruments related to the Issuer or selling some or all of their beneficial or economic holdings, engaging in hedging or similar transactions with respect to the securities relating to the Issuer and/or otherwise changing their intention with respect to any and all matters referred to in Item 4 of Schedule 13D.

Except as otherwise described in this Schedule 13D, none of the Reporting Persons nor, to the best knowledge of the Reporting Persons, any of the persons listed on Schedule A to this Schedule 13D, currently has any plans or proposals that would result in or relate to any of the transactions or changes listed in paragraphs (a) through (j) of Item 4 of Schedule 13D. However, as part of their ongoing evaluation of this investment and investment alternatives, the Reporting Persons may consider such matters and, subject to applicable law, may formulate a plan with respect to such matters, and, from time to time, may hold discussions with or make formal proposals to management or the board of directors of the Issuer, other shareholders of the Issuer or other third parties regarding such matters.

The disclosures in Item 6 are herein incorporated by reference.

Item 5.  Interest in Securities of the Issuer

(a) , (b) As of March 9, 2018, AY Holdings is the direct beneficial owner of 25,054,315 Ordinary Shares, which represents 25%,  and Algonquin beneficially owns 41,557,663 Ordinary Shares, representing 41.47% (which includes 16,503,348 Ordinary Shares underlying the Option Agreement) based on the shares outstanding as of March 9, 2018.  Algonquin and AY Holdco, through their ownership of AY Holdings, may be deemed to share voting and dispositive power over the Ordinary Shares beneficially owned by AY Holdings.
 

(c)  Except as disclosed in this Schedule 13D, no Reporting Person has affected any transactions in the Ordinary Shares during the past sixty days.

(d)  Other than the Reporting Persons, no person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Ordinary Shares beneficially owned by the Reporting Persons.

(e)  Not applicable.

Item 6.  Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Share Purchase Agreement

On November 1, 2017, ACIL Luxco 1, Algonquin, and Abengoa, as guarantor of ACIL Luxco 1, entered into the Share Purchase Agreement. Under the Share Purchase Agreement, ACIL Luxco 1 agreed to transfer to Algonquin or its assignee that number of Ordinary Shares of the Issuer (rounded up to the nearest whole number) representing as of the date of completion 25.0%, and not less than 25.0%, of the Issuer’s issued share capital. Such transfer was conditional upon, inter alia, a waiver from the Department of Energy in respect of minimum ownership provisions for certain electricity infrastructure projects located in the United States, the consent of the Federal Energy Regulatory Commission in respect of the same projects, the release of any encumbrances over the shares subject to the transfer, any required consents from any financing parties, and certain other conditions.  Pursuant to the On-Sale SPA, Algonquin agreed to transfer the Ordinary Shares it acquired under the Share Purchase Agreement to AY Holdings.  The conditions under the Share Purchase Agreement having been satisfied or waived, the Reporting Persons’ 25.0% shareholding in the Issuer was transferred to AY Holdings on March 9, 2018 for a total consideration of $607,567,139, with additional consideration payable upon the satisfaction of certain events as described in the Share Purchase Agreement and On-Sale SPA.

AAGES MOU

On November 1, 2017, Algonquin and Abengoa entered into the AAGES MOU. The purpose of the AAGES MOU was to establish AAGES, a joint venture company owned 50% by Algonquin through a subsidiary and 50% by Abengoa through a subsidiary for the purpose of developing global utility infrastructure projects. AAGES was incorporated in the Netherlands on January 31, 2018.  The terms of the AAGES MOU were superseded by the governing documents of AAGES and AY Holdings.

Algonquin financed the acquisition of the Ordinary Shares under the Share Purchase Agreement. Pursuant to the governing documents of AAGES and AY Holdings, Algonquin as the provider of funding for such purchase has the sole and exclusive right to exercise any and all rights, assert any and all claims, and exercise and enforce any and all remedies of AY Holdings as the owner of such shares, including the nomination or appointment of any director of the Issuer or the vote on any matter for which AY Holdings is entitled to vote as the holder of such Issuer’s securities, and to enter into any agreement on behalf of AY Holdings in relation to the foregoing.

Certain restrictions are in place under the AAGES governing documents relating to the transfer of AAGES shares. A transfer in violation of these restrictions, or insolvency of Algonquin or Abengoa, vests the other with the right to purchase the entirety of the other’s ownership interests in AAGES.

Option Agreement

On November 1, 2017, ACIL Luxco 1, Algonquin, and Abengoa entered into the Option Agreement. Under the Option Agreement, Algonquin (directly or through an assignee) has a right to acquire ACIL Luxco 1’s remaining 16.47% aggregate equity interest in the Issuer, subject to the condition that the option be exercised within 60 days after the date of the initial 25.0% transfer.

Atlantica Yield Shareholders Agreement
 
Algonquin and AAGES have entered into a Shareholders Agreement with the Issuer (the “AY Shareholders Agreement”), effective March 9, 2018. The AY Shareholders Agreement will terminate when either Algonquin and its affiliates or AAGES and its affiliates (individually, an “Investor”, collectively, the “Investors”), holds less than 10% the total voting rights attached to the then outstanding Ordinary Shares of the Issuer.  Additionally, Investors may, but are not required to, terminate the agreement if the Issuer’s board confirms a dividend policy of less than 80% of cash available for distribution.
 

Pursuant to the AY Shareholders Agreement and in accordance with the articles of association, upon delivery to the Issuer of the resignation of a Resigning Director, as defined in the AY Shareholders Agreement, Algonquin shall appoint a new director nominee. In addition thereafter, if and to the extent provided in the Issuer’s Articles of Association, such Investor shall have the right to appoint to the Issuer’s board the maximum number of directors that corresponds to such Investor’s percentage interest of total voting securities, provided, however, that the maximum number of directors that Investors collectively may appoint is limited to the lesser of (i) such number of directors as corresponds to 41.5% of Ordinary Shares or  (ii) no more than 50% less one of the board.  In addition, for so long as an Investor and its affiliates hold in aggregate 25% or more of the Ordinary Shares, at least one board member elected by the Investor shall be given the opportunity, and if accepted, shall be elected to a committee of directors.

Under the AY Shareholders Agreement, the Issuer may raise funding by way of issue and allotment of equity securities, loan notes or other borrowing arrangements. Subject to the standstill provision in the Agreement, each Investor has a preemptive right to purchase up to 100% of any proposed allotment or issue of equity securities of the Issuer if certain conditions are met. Pursuant to the standstill provision of the AY Shareholders Agreement, the Investors, in the aggregate cannot hold, greater than 41.5% of Issuer, subject to limited exceptions.

Item 7. Materials to Be Filed as Exhibits.
 
Exhibit No.
 
Description
 
Joint Filing Agreement, dated March 9, 2018, among Algonquin Power & Utilities Corp., Algonquin
 (AY Holdco) B.V. and AAGES (AY Holdings) B.V.
  Sale and Purchase Agreement, dated November 1, 2017, between ACIL Luxco 1 S.A., Algonquin Power & Utilities Corp., and Abengoa, S.A., as amended pursuant to Deed of Amendment No. 1, dated January 31, 2018, Deed of Amendment No. 2, dated February 15, 2018, and Deed of Amendment No. 3, dated February 27, 2018.
  On-Sale Purchase Agreement, between Algonquin Power & Utilities Corp. and AAGES (AY Holdings) BV, dated March 8, 2018.
  Option and Right of First Refusal Agreement, dated  November 1, 2017, between ACIL Luxco 1 S.A., Algonquin Power & Utilities Corp., and Abengoa, S.A.
 
Shareholders Agreement by and among Algonquin Power & Utilities Corp., Abengoa-Algonquin Global Energy Solutions B.V. and Atlantica Yield PLC, dated March 5, 2018.
 
Term Credit Agreement among Algonquin Power & Utilities Corp., The Bank of Nova Scotia, and Canadian Imperial Bank of Commerce dated December 21, 2017.
 

SIGNATURES
 
After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: March 9th, 2018
 
ALGONQUIN POWER & UTILITIES CORP.
   
 
By:
/s/ Ian Robertson
   
Name: Ian Robertson
   
Title:   Chief Executive Officer
 
 
By:
/s/ Chris Jarratt
   
Name:Chris Jarratt
   
Title:  Vice Chair
 
 
ALGONQUIN (AY HOLDCO) B.V.
   
 
By:
/s/ Ian Robertson
   
Name: Ian Robertson
   
Title:   Managing Director A
 
 
By:
/s/ Bart van Dijk
   
Name: Bart van Dijk
   
Title:   Managing Director B
 
 
AAGES (AY HOLDINGS) B.V.
   
 
By:
/s/ Ian Robertson
   
Name: Ian Robertson
   
Title:   Managing Director A
 
 
By:
/s/ Bart van Dijk
   
Name: Bart van Dijk
   
Title:   Managing Director B
 

Schedule A
DIRECTORS AND EXECUTIVE OFFICERS
 
The following tables set forth the name, business address, present principal occupation or employment and material occupations, positions, offices or employment of each of the directors and executive officers of the Reporting Persons.

ALGONQUIN POWER & UTILITIES CORP.
DIRECTORS
Name
Business Address
Principal Occupation or Employment
Country of
Citizenship
Christopher J. Ball
229 Niagara Street
Toronto, Ontario
M6J 2L5
Executive Vice President,
Corpfinance International Limited;
President, CFI Capital Inc.
Canada
       
Christopher K. Jarratt
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Vice Chair,
Algonquin Power & Utilities Corp.
Canada
       
D. Randy Laney
 
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Director,
Algonquin Power & Utilities Corp.
USA
       
Kenneth Moore
70 University Ave #1400,
Toronto, Ontario M5J 2M4
Managing Partner,
NewPoint Capital Partners Inc.
Canada
       
Ian E. Robertson
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Chief Executive Officer,
Algonquin Power & Utilities Corp.
Canada
       
Masheed Saidi
354 Davis Road, Suite 100
Oakville, Ontario, L6J 2X1
Director
Algonquin Power & Utilities Corp.
USA
       
Dilek Samil
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Director,
Algonquin Power &Utilities Corp.
USA
       
Melissa Stapleton Barnes
Lilly Corporate Center
Indianapolis, Indiana 46285
Senior Vice President, Enterprise Risk Management and Chief Ethics and Compliance Officer, Eli Lilly and Company
USA
       
George L. Steeves
30 Catherine Avenue
Aurora, Ontario, L4G 1K5
Senior Project Manager,
True North Energy
Canada
       
 

ALGONQUIN POWER & UTILITIES CORP.
EXECUTIVE OFFICERS
Name
Business Address
Principal Occupation or Employment
Country of
Citizenship
       
David Bronicheski
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Chief Financial Officer,
Algonquin Power &Utilities Corp.
Canada
       
David Pasieka
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Chief Operating Officer,
APUC’s Liberty Utilities Group
Canada
       
Ian E. Robertson
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Chief Executive Officer,
Algonquin Power &Utilities Corp.
Canada
       
Christopher K. Jarratt
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Vice Chair,
Algonquin Power & Utilities Corp.
Canada
       
Mike Snow
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Chief Operating Officer,
APUC’s Liberty Power Group
Canada
       
 

ALGONQUIN (AY HOLDCO) B.V.
DIRECTORS
Name
Business Address
Principal Occupation or Employment
Country of
Citizenship
       
Ian E. Robertson
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Chief Executive Officer,
Algonquin Power & Utilities Corp.
Canada
       
Bart van Dijk
Strawinskylaan 3127,
Atrium Building 8th Floor
1077 ZX Amsterdam,
The Netherlands
Business Unit Manager Legal,
Vistra Netherlands
Netherlands
       
Laurentius Ireneus Winfridus Klein
Strawinskylaan 3127,
Atrium Building 8th Floor
1077 ZX Amsterdam,
The Netherlands
Business Unit Manager Finance,
Vistra Netherlands
Netherlands
       
 
AAGES (AY HOLDINGS) B.V.
DIRECTORS
Name
Business Address
Principal Occupation or Employment
Country of
Citizenship
       
Ian E. Robertson
Suite 100, 354 Davis Road,
Oakville, Ontario, L6J 2X1
Chief Executive Officer,
Algonquin Power & Utilities Corp.
Canada
       
Bart van Dijk
Strawinskylaan 3127,
Atrium Building 8th Floor
1077 ZX Amsterdam,
The Netherlands
Business Unit Manager Legal,
Vistra Netherlands
Netherlands
       
 
Laurentius Ireneus Winfridus Klein
Strawinskylaan 3127,
Atrium Building 8th Floor
1077 ZX Amsterdam,
The Netherlands
Business Unit Manager Finance,
Vistra Netherlands
 
Netherlands
       
 
 

EX-99.1 2 ex99_1.htm EXHIBIT 99.1

Exhibit 99.1
 
JOINT FILING AGREEMENT
 
In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Ordinary Shares, $0.10, of Atlantica Yield plc, and further agree that this Joint Filing Agreement shall be included as an Exhibit to such joint filings.
 
The undersigned further agree that each party hereto is responsible for the timely filing of such Statement on Schedule 13D and any amendments thereto, and for the accuracy and completeness of the information concerning such party contained therein; provided, however, that no party is responsible for the accuracy or completeness of the information concerning any other party, unless such party knows or has reason to believe that such information is inaccurate.
 
This Joint Filing Agreement may be signed in one or more counterparts with the same effect as if the signature on each counterpart were upon the same instrument.
 
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of March 9, 2018.
 
 
ALGONQUIN POWER & UTILITIES CORP.
   
 
By:
/s/ Ian Robertson
   
Name: Ian Robertson
   
Title:   Chief Executive Officer
 
 
By:
/s/ Chris Jarratt
   
Name: Chris Jarratt
   
Title:   Vice Chair
   
 
ALGONQUIN (AY HOLDCO) B.V.
   
 
By:
/s/ Ian Robertson
   
Name: Ian Robertson
   
Title:   Managing Director A
   
 
By:
/s/ Bart van Dijk
   
Name: Bart van Dijk
   
Title:   Managing Director B
   
 
AAGES (AY HOLDINGS) B.V.
   
 
By:
/s/ Ian Robertson
   
Name: Ian Robertson
   
Title:   Managing Director A
   
 
By:
/s/ Bart van Dijk
   
Name: Bart van Dijk
   
Title:   Managing Director B
 
 

EX-99.2 3 ex99_2.htm EXHIBIT 99.2

Exhibit 99.2
 
 
1 November 2017

ACIL LUXCO 1, S.A.

ALGONQUIN POWER & UTILITIES CORP.

and

ABENGOA, S.A.

SALE AND PURCHASE AGREEMENT
ATLANTICA YIELD PLC

Herbert Smith Freehills LLP
 

TABLE OF CONTENTS
 
Clause
Headings
Page
     
1.
INTERPRETATION
1
2.
SALE AND PURCHASE
1
3.
CONSIDERATION
2
4.
CONDITIONS
3
5.
INTERIM PERIOD OBLIGATIONS
7
6.
TAXATION
7
7.
COMPLETION
8
8.
SELLER WARRANTIES AND UNDERTAKINGS
8
9.
SELLER LIMITATIONS ON LIABILITY
8
10.
PURCHASER WARRANTIES AND UNDERTAKINGS
10
11.
COVENANT REGARDING SOLICITATION AND HIRING OF EMPLOYEES
10
12.
TERMINATION
11
13.
GUARANTEE
11
14.
MISCELLANEOUS
11
15.
NOTICES
14
16.
GOVERNING LAW
15
17.
DISPUTE RESOLUTION
16
SCHEDULE 1 DETAILS OF THE COMPANY
17
SCHEDULE 2 COMPLETION OBLIGATIONS
18
SCHEDULE 3 SELLER WARRANTIES
20
SCHEDULE 4 PURCHASER WARRANTIES
23
SCHEDULE 5 SELLER’S GUARANTOR WARRANTIES
25
SCHEDULE 6 DEFINITIONS AND INTERPRETATION
28
 

THIS AGREEMENT is made on 1 November 2017

BETWEEN:

(1)
ACIL Luxco 1, S.A., a company incorporated in Luxembourg (registered number B212453) and whose registered office is at 48 Boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg (the “Seller”);

(2)
Algonquin Power & Utilities Corp., a company incorporated under the federal laws of Canada (corporation number 236237-6) and whose registered office is at 354 Davis Road, Suite 100, Oakville, Ontario, Canada L6J 2X1 (the “Purchaser”);

(3)
Abengoa, S.A., a public company with limited liability (sociedad anónima), duly incorporated and existing under the laws of Spain, with registered address at Campus Palmas Altas, Calle Energía Solar, 1, Sevilla (Spain), registered with the Mercantile Registry of Sevilla in Volume 5683, Sheet 62, Page SE-1507 and bearer of Spanish tax identification number A 41002288 (the “Seller’s Guarantor” or “Abengoa”).

RECITALS:
 
(A)
The Seller holds 41,557,663 of the issued ordinary shares of US$0.10 each in the share capital of the Company, representing as of the date hereof approximately 41.47% of its issued share capital.

(B)
The Seller has agreed to sell and transfer to the Purchaser that number of issued ordinary shares of US$0.10 of the Company (rounded up to the nearest whole number) representing as of the date of Completion 25%, and not less than 25%, of the Company’s issued share capital (the “Shares”), upon the terms and subject to the conditions set out in this Agreement.

(C)
The Seller has agreed to grant to Purchaser an option and right of first refusal with respect to the remaining shares in the issued share capital of the Company held by Seller as of the date hereof, upon the terms and subject to the conditions set out in that certain Option and Right of First Refusal Agreement, dated as of the date hereof, among Seller, Purchaser, and Seller’s Guarantor (the “Option Agreement”).

(D)
Abengoa has agreed to guarantee the performance of the obligations of the Seller hereunder in accordance with the terms set out in Clause 13.1.

(E)
In addition to the above, Purchaser and Abengoa have agreed, pursuant to the provisions of the memorandum of understanding attached as Attachment 1 (the “MOU”), and subject to the Completion of the transaction contemplated hereby, to jointly incorporate a global utility infrastructure company  (“AAGES”) with the purpose of identifying, developing, constructing, owning and operating a portfolio of global utility infrastructure projects, and intend that AAGES or a subsidiary thereof (“Purchaser Assignee”) become the acquiring entity of the Company’s shares pursuant to this Agreement.

IT IS AGREED as follows:

1.
INTERPRETATION

1.1
The definitions and other interpretative provisions set out in Schedule 6 shall apply throughout this Agreement, unless the contrary intention appears.

1.2
In this Agreement, except where the context otherwise requires, any reference to this Agreement includes a reference to the Schedules, each of which forms part of this Agreement for all purposes.

2.
SALE AND PURCHASE

Sale and Purchase

2.1
The Seller is the legal and beneficial owner of and shall sell and the Purchaser shall purchase the Shares on the basis that they are sold at Completion with Full Title Guarantee and free from any Encumbrance and together with all rights attached to them at Completion or subsequently becoming attached to them.
 
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3.
CONSIDERATION

  3.1
The consideration for the sale of the Shares shall be the payment at Completion to the Seller of an amount in cash (the “Consideration”) equal to the product of (a) the number of Shares purchased hereunder, times (b) US$24.25 per Share, as such per-Share price may be adjusted from time to time in accordance with Clause 3.2.

3.2
In the event of any change in the Company’s capital stock by reason of any split-up, reclassification, recapitalization, combination, exchange or similar occurrence, (a) the term “shares” (whether or not capitalized) shall be deemed to refer to and include such shares as well any shares into which or for which any or all of such shares may be changed or exchanged, and (b) any price expressed herein as a per-share amount shall be adjusted so that the amount for a share, and any shares into which or for which such share may be changed or exchanged shall, in the aggregate, equal such per-share amount as existing prior to such split-up, reclassification, recapitalization, combination, exchange or similar occurrence.

Payment of Consideration

3.3
The Consideration shall be paid to the Seller by way of cash payments as follows, provided that if requested by Purchaser or Seller, payment of the Consideration shall be effected through a payment agent reasonably satisfactory to Purchaser and Seller:

3.3.1
US$77,500,000 to the DOE, on behalf of the Seller;

3.3.2
US$5,000,000 to AAGES, at direction of the Seller on behalf of the Seller’s Guarantor, as the Seller’s Guarantor’s equity contribution to the capital thereof; and

3.3.3
the outstanding balance of the Consideration (after deducting the amounts set out in Clause 3.3.1 and Clause 3.3.2 above), by electronic transfer to the account of the Seller’s Solicitors (it being understood that the Seller may instruct the Purchaser to pay all or part of such amount to financing parties or other persons in connection with the matters noted in Clause 4.1.3).

Reduction of Consideration

3.4
The Consideration payable to the Seller pursuant to Clause 3.3.3 shall be deemed to be reduced by an amount equal to the aggregate amount (if any) paid by the Seller to the Purchaser pursuant to a Claim or alleged Claim.

Earn-Out Amount

3.5
In addition to the amount specified in Clause 3.1, subject to satisfaction of the conditions  specified in Clauses 3.6 and 3.7 below on or prior to the date that is the 24-month anniversary of the Completion Date, the Consideration shall be increased by up to an amount (the “Baseline Earn-Out Amount”) equal to the number of Shares purchased under this Agreement, multiplied by the lesser of (a) US$0.60 per Share and (b) thirty percent (30%) of the amount, if any, by which the average closing market price for a Share over the twenty (20) Business Days prior to (and excluding) the 12-month anniversary of the Completion Date exceeds US$24.25.

3.6
Fifty percent (50%) of the Baseline Earn-Out Amount will be due and payable by Purchaser to Seller five (5) Business Days following the later of (a) the twelve-month anniversary of the Completion Date, and (b) the date, on or prior to the 24-month anniversary of the Completion Date, on which the following conditions have been satisfied:
 
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(i) A3T shall have been sold to and purchased by the Company or a Subsidiary thereof, AAGES or a Subsidiary thereof, or Purchaser or a Subsidiary thereof; or

(ii) (A) Abengoa or an Affiliate thereof shall have solicited from AAGES or the Company an offer to purchase A3T, (B) AAGES or the Company (as applicable) shall have had at least sixty (60) days during which to consider making such an offer, and (C) either (x) AAGES or the Company, as applicable, shall have failed to make such an offer during such sixty-day period, or (y) AAGES or the Company, as applicable, shall have made such an offer and either A3T is not sold or it is sold to a third party for a price in excess of the price offered for A3T by AAGES or the Company, as applicable.

3.7
Fifty percent (50%) of the Baseline Earn-Out Amount will be due and payable by Purchaser to Seller five (5) Business Days following the later of (a) the twelve-month anniversary of the Completion Date, and (b) the date, on or prior to the 24-month anniversary of the Completion Date, on which the following conditions have been satisfied: an independent engineer shall have certified to the Company that the Solana Project and the Kaxu Project (i) are then operating in accordance with their respective original expected design output as set out in the Applicable EPC Contract and (ii) subject to normal maintenance and repair, are then reasonably expected to be capable of operating over their respective expected useful lives at the output originally expected based on the original design thereof.

3.8
The Purchaser’s obligations with respect to either portion of the Baseline Earn-Out Amount shall terminate and expire on the 24-month anniversary of the Completion Date to the extent that any conditions to the payment thereof have not been satisfied on or prior to such date.

4.
CONDITIONS

Conditions to Completion

4.1
Completion is conditional on the following Conditions being, except to the extent waived by Purchaser:

4.1.1
The Seller or the relevant Group Company obtaining, in respect of the Solana Project, a waiver from the DOE in respect of the change of control provisions set out in the Solana Note Purchase Agreement and the Solana Loan Guaranty Agreement, and all conditions to the effectiveness of the waiver shall have been satisfied;

4.1.2
The Seller or the relevant Group Company obtaining, in respect of the Mojave Project, a waiver from the DOE in respect of the change of control provisions set out in the Mojave Note Purchase Agreement and the Mojave Loan Guaranty Agreement, and all conditions to the effectiveness of the waiver shall have been satisfied;

4.1.3
The Seller and Abengoa receiving the consents from any financing parties or other Persons required to implement the transaction set out in this Agreement including, without limitation, to release any and all Encumbrances over the Shares granted in favour of such financing parties or other Persons.

4.1.4
The relevant Group Companies obtaining, in respect of the Mojave Project and the Solana Project, approval of FERC for the disposition of jurisdictional facilities effected by the sale of the Shares, and the Purchaser and Purchaser Assignee obtaining, in respect of the Mojave Project and the Solana Project, approval of FERC for the acquisition of the Shares.
 
3

4.1.5
Any and all Group Companies having been fully and unconditionally released from any and all guarantees, sureties, and other liability, contingent or otherwise, for any liabilities or obligations of Abengoa or any of its Affiliates.

4.1.6
The Group Companies receiving a waiver of any asserted breach, default, acceleration, right to suspend performance, or other material consequence under any financing agreement or other contract material to any facility in which any Group Company holds a significant financial interest, arising as a result of any act, omission, breach or default by Abengoa or any of its Affiliates.

4.1.7
The Intercompany Accounts having been settled, discharged, offset, paid, terminated and/or extinguished in full, except for those Intercompany Accounts that (a) are acceptable to Purchaser in its sole discretion, acting reasonably, or (b) to the extent representing obligations of Seller or any of its Affiliates to any Group Company, secured by an irrevocable letter of credit, cash, or other liquid security, in each case acceptable to Purchaser in its sole discretion, acting reasonably.

4.1.8
The Option Agreement shall be in full force and effect, and there shall not exist any event or circumstance then outstanding that constitutes, or with the passage of time or giving of notice or both would constitute, a breach or default by Seller thereunder.

4.1.9
Purchaser and Abengoa shall have entered into an agreement pursuant to which Abengoa shall pay to Purchaser the amount by which dividends paid by the Company on shares of the Company acquired by Purchaser or Purchaser Assignee from Seller (whether pursuant to this Agreement or the Option Agreement) are less than the amount that such dividends would have been had the Solana Project and the Kaxu Project performed in accordance with their respective original expected design output as set out in the Applicable EPC Contract; provided, that (i) the amount payable by Abengoa pursuant to such agreement shall not exceed an amount equal to US$0.30 per share multiplied by the number of shares of the Company acquired by Purchaser or Purchaser Assignee from Seller (whether pursuant to this Agreement or the Option Agreement); and (ii) any portion of the Baseline Earn-Out Amount that is not paid due to the failure of any conditions thereto set forth in Clause 3.7 above shall be credited against such payment obligation.

For the purposes above, in the event of any change in the Company’s capital stock by reason of any split-up, reclassification, recapitalization, combination, exchange or similar occurrence, the above amount of US$0.30 per share shall be adjusted so that the amount for a share, and any shares into which or for which such share may be changed or exchanged shall, in the aggregate, equal such per-share amount as existing prior to such split-up, reclassification, recapitalization, combination, exchange or similar occurrence.

4.1.10
Purchaser and Abengoa shall have caused Purchaser Assignee to have been formed, each in a jurisdiction acceptable to Purchaser, acting reasonably, and shall have executed and delivered, and otherwise taken such action as necessary to render effective (a) the governing documents thereof, containing the terms and conditions specified therefor in the MOU, and otherwise acceptable to Purchaser and Abengoa, acting reasonably, and (b) any and all corporate or other entity authorizations required for Purchaser Assignee to execute, deliver, perform their respective obligations under, and be legally bound by any agreement required to be entered into by Purchaser Assignee as a condition to the Completion hereunder.

4.1.11
AAGES and the Company shall have entered into a Shareholders’ Agreement and a Right of First Offer Agreement containing the terms set forth in the term sheet therefor attached as Attachment 2 to this Agreement, and otherwise acceptable to Purchaser, acting reasonably.
 
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4.1.12
Abengoa and the Company shall have entered into a Construction Projects Transfer Agreement containing the terms set forth in the term sheet therefor attached as Attachment 3 to this Agreement, and otherwise acceptable to Purchaser, acting reasonably.

Waiver

4.2
The Purchaser may, by written notice to the Seller, waive any of the Conditions of Clauses 4.1.1, 4.1.2 and from 4.1.4 to 4.1.12 in whole or in part at any time prior to the termination of this Agreement, whether following, on or before the Longstop Date (or, if applicable, in relation to Clauses 4.1.1, 4.1.2 and 4.1.4  the Extended Longstop Date).

Satisfaction of Conditions

4.3
The Purchaser, the Seller and Abengoa, as applicable, shall use reasonable endeavours to satisfy or procure the satisfaction of each of Conditions 4.1.1 to 4.1.12  not already satisfied or (with the exception of Condition 4.1.3 which cannot be waived) waived as soon as possible and in any event on or before the Longstop Date (or, if applicable, in relation to Clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4  the Extended Longstop Date).

Notification of satisfaction of Conditions

4.4
The Seller shall notify the Purchaser of the satisfaction of Conditions 4.1.1 to 4.1.7, as soon as possible after any such Condition has been satisfied and in any event within five Business Days of such satisfaction.

Additional Conditions to Completion – Purchaser

4.5
Completion is further conditional on the following, except to the extent waived in writing by Purchaser:

4.5.1
(a) All Fundamental Warranties, and all warranties of Seller’s Guarantor set out in Schedule 5, shall be true and accurate in all material respects (unless such representation or warranty is already qualified by materiality or material adverse effect, in which case it shall be true and correct in all respects) as of the Completion Date, as if made on such date; and (b) all other Seller Warranties shall be true and accurate as of the Completion Date except as would not reasonably be expected to have a material adverse effect on the business, assets, liabilities, results of operations or financial condition of the Group.

4.5.2
Seller and Abengoa shall have complied with the interim period restrictions set out in Clause 5.1 and with its obligations under Clause 5.3.

4.5.3
Seller shall have delivered to Purchaser a certificate executed on behalf of Seller by an authorized officer or representative of Seller, dated as of the Completion Date, representing and certifying the matters set forth in Clause 4.5.1 and Clause 4.5.2.

4.5.4
There shall not have occurred, from the date hereof until the Completion Date, any event or circumstance that has had or would be reasonably likely to have a material adverse effect on (a) the business, assets, liabilities, results of operations or financial condition of the Group, or (d) the ability of Seller or Abengoa to timely perform any of its obligations under this Agreement or any other agreement required to be entered into by Seller or Abengoa as a condition to Completion hereunder.
 
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4.5.5
There shall not exist any material breach or material default by any Group Company under, and no facts or circumstances shall exist that give rise to, or with the passage of time and/or delivery of notice would give rise to, a right of termination, cancellation or acceleration of any material obligation under, or the loss of a material benefit under, or any material restriction under, any instrument or material agreement to which any Group Company is a party or by which any Group Company is bound, except (a) as do not restrict the ability of the Company to declare or pay any dividend or distribution and (b) as would not reasonably be expected to have a material adverse effect on the business, assets, liabilities, results of operations or financial condition of the Group.

4.5.6
No governmental authority shall have asserted, in writing or otherwise, that the execution and delivery of this Agreement, or the purchase, sale or transfer of the Shares to Purchaser (or its assignee) hereunder impose on Purchaser, any assignee thereof, the Company or any other Person any obligations, restrictions or requirements under any fair price, moratorium, control-share acquisition, affiliated transaction, mandatory purchase offer, or other takeover or antitakeover statute or regulation, including the City Code on Takeovers and Mergers, or any takeover, antitakeover or similar provision of the constitutional documents of any Group Company.

Additional Conditions to Completion – Seller

4.6
Completion is further conditional on the following, except to the extent waived in writing by Seller:

4.6.1
All Purchaser Warranties shall be true and accurate in all material respects (unless such representation or warranty is already qualified by materiality or material adverse effect, in which case it shall be true and correct in all respects) as of the Completion Date, as if made on such date.

4.6.2
Purchaser shall have delivered to Seller a certificate executed on behalf of Purchaser by an authorized officer or representative of Purchaser, dated as of the Completion Date, representing and certifying the matters set forth in Clause 4.6.1.

Failure to Satisfy Conditions

4.7
If one or more of the Conditions:

4.7.1
in relation to Clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4, remains un-satisfied on the date which is six (6) months following the date hereof, (the “Extended Longstop Date”), or in relation to any other Condition in Clause 4.1 remains un-satisfied on 1 February 2018 (or such later date as the Parties may agree) (the “Longstop Date”), and in either case has not been waived (other than the Condition stated in Clause 4.1.3, which cannot be waived) by the specified Party; or

4.7.2
in relation to Clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4, becomes impossible to satisfy (or, in the case of clause 4.1.3 the required consents are either refused or not given on terms to the Seller’s reasonable satisfaction), on or before the Extended Longstop Date or, in relation to any other Condition in Clause 4.1 becomes impossible to satisfy on or before the Longstop Date, and in either case, if it is a Condition which can be waived by a Party, has not been waived by such Party within ten Business Days of written notice form the other Party of such Condition becoming impossible to satisfy;

the Seller or the Purchaser may terminate this Agreement by written notice to the other Party; provided, however, that a Party shall not have the right to terminate this Agreement pursuant to the foregoing to the extent that the failure of such Condition to be satisfied, or the impossibility of satisfying such Condition, was a result of such Party’s wilful misconduct or such Party’s breach of or failure to perform any of its covenants, agreements, or obligations under this Agreement.
 
6

5.
INTERIM PERIOD OBLIGATIONS

Interim Period restrictions

5.1
During the Interim Period, without the prior written consent of the Purchaser:

5.1.1
The Seller shall not give or agree to give any option, right to acquire or call, or in any way dispose of the shares of the Company being transferred under this Agreement, other than as required pursuant to an Encumbrance contained in the finance documents entered into by the Seller in the context of the restructuring of the Abengoa group, up until the consent set out in Clause 4.1.3 is obtained;

5.1.2
The Seller shall not create any additional Encumbrance over the shares being transferred under this Agreement;

5.1.3
The Seller shall not enter into, and shall not permit any director, officer, employee or other representative of Seller to enter into, any contract or transaction with any Group Company, other than with the prior written consent of Purchaser.

5.1.4
Abengoa shall not enter into, and shall not permit any of its Affiliates, any director, officer, employee or other representative of Abengoa to enter into, any contract or transaction with any Group Company, other than with the prior written consent of Purchaser.
 
MOU and Term Sheets

5.2
From the date of execution of this Agreement and until Completion, Purchaser and Abengoa agree to use reasonable endeavours to finalize agreement upon and, to the extent a contemplated party thereto, enter into or cause its respective Affiliates to enter into legally binding agreements containing detailed provisions reflecting the terms contemplated in the MOU and any term sheet attached hereto, and into any ancillary documentation which may be required in order to implement the terms contained in the MOU or such legally binding agreements.

Intercompany Accounts

5.3
Seller and the Seller’s Guarantor shall cause all Intercompany Accounts to be settled, discharged, offset, paid, terminated and/or extinguished in full prior to Completion, except as otherwise permitted by Clause 4.1.7.

6.
TAXATION

Taxation

6.1
Any payments made by or due by the Purchaser pursuant to Clause 3 above shall be paid free and clear of all Taxation whatsoever save only for any deductions or withholdings required by law.  To the extent that any amounts are so deducted or withheld, the amounts deducted or withheld shall be treated for all purposes of this Agreement as having been paid to Seller.

In the event that any amount that is paid to or as directed by Seller was required by applicable law to have been deducted or withheld and paid to any taxing authority, Seller shall, immediately upon notice thereof from Purchaser or otherwise, remit such amount (together with penalty and interest, if applicable) to the appropriate taxing authority and provide Purchaser prompt notice and evidence of payment, or return such amount (together with penalty and interest, if applicable) to Purchaser to be remitted to such taxing authority by Purchaser.
 
7

7.
COMPLETION

Completion Date

7.1
Completion shall take place on the Completion Date at the offices of the Seller’s Solicitors or at such other place as the Seller and Purchaser shall agree.

Seller’s and Seller’s Guarantor Obligations

7.2
At Completion, the Seller and the Seller’s Guarantor shall observe and perform all of the provisions of Part 1 of Schedule 2.

Purchaser’s Obligations

7.3
At Completion, the Purchaser shall observe and perform all of the provisions of Part 2 of Schedule 2.

8.
SELLER WARRANTIES AND UNDERTAKINGS

Seller Warranties

8.1
Subject to the limitations in Clause 9, the Seller warrants to the Purchaser, as at the date of this Agreement and as at the Completion Date, in the terms of the Seller Warranties.

9.
SELLER LIMITATIONS ON LIABILITY

Time limits

9.1
Following Completion, Purchaser shall give written notice to the Seller of any matter or event which may give rise to a Claim as soon as reasonably practicable after the Purchaser becomes aware of such matter or event together with reasonable details of such matter or event then known to the Purchaser; provided, however, that a delay in giving such notice shall not relieve Seller of any liability for such Claim except for the monetary amount by which Seller is prejudiced as a result of such delay.

9.2
The Seller shall not be liable for any Claim unless the Purchaser gives written notice containing in reasonable detail of the legal and factual basis of the Claim, including the Purchaser’s estimate of the amount of the Claim, to the Seller on or before the date being (a) in the case of any Fundamental Claim, three (3) years from Completion, and (b) in the case of any other Claim, one year from Completion.

9.3
To the extent that a Claim arises out of a liability which at the time that it is notified to the Seller is contingent only, the Seller shall not be under any obligation to make any payment to the Purchaser until the liability ceases to be contingent.

9.4
A Claim shall not be enforceable against the Seller and shall be deemed to have been withdrawn, and no new Claim may be made in respect of the facts giving rise to such Claim, unless (a) Seller has confirmed in writing its liability for such Claim, or (b) legal proceedings in respect of such Claim are commenced (by being issued and served):

9.4.1
within twelve months of such Claim ceasing to be contingent, if the Claim is based upon what, at the time of service of notice of the Claim on the Seller, was a contingent liability; and

9.4.2
within twelve months of service of notice of the Claim on the Seller with regard to any Claim other than those Claims described in Clause 9.4.1.

Monetary limits

9.5
The aggregate amount of the liability of the Seller in respect of the aggregate of all Claims shall not exceed in the aggregate, an amount equal to the Consideration; provided, however, that the aggregate amount of the liability of the Seller in respect of the aggregate of all Claims other than Fundamental Claims shall not exceed, in the aggregate, an amount equal to ten percent (10%) of the Consideration.
 
8

Provision of information to the Seller

9.6
Upon the Purchaser notifying the Seller of a Claim or a matter or event which may lead to a Claim being made, the Purchaser shall give the Seller and its advisers such access as the Seller reasonably requests to the personnel, records and information in the possession of the Purchaser together with the right to examine and copy or photograph such assets, documents, records and information as the Seller reasonably requires.

Information provided by the Seller

9.7
The Seller expressly disclaims all liability and responsibility for any conclusion, opinion, forecast or evaluation contained within or derived or capable of being derived from (a) any investigation carried out or made by or on behalf of the Purchaser in the course of any due diligence or other enquiry prior to the Parties entering into this Agreement or (b) any other data, document, record or information disclosed by the Seller or any Group Company or any employee, agent or adviser of any of them, to the Purchaser or to any person on behalf of the Purchaser. The Purchaser acknowledges that all information disclosed to it (or any person on behalf of the Purchaser) in the course of due diligence, other than the Due Diligence Reports, was provided by the Company and not by the Seller or by Abengoa and that the Due Diligence Reports were prepared by Abengoa’s advisors on the basis of information provided by the Company.

Mitigation

9.8
Nothing in this Clause 9 restricts or limits the general obligation at law of each of the Purchaser and the Group Companies to mitigate any loss or damage which it may suffer or incur as a consequence of any breach of any Seller Warranty or any other provision of this Agreement or in relation to any other matter, event or circumstance which gives rise to a Claim.

No liability to third parties

9.9
No person other than the Purchaser is entitled to make any Claim against the Seller. For the avoidance of doubt the Parties hereby acknowledge and accept that the Seller shall only be liable vis à vis the Purchaser for Claims Against the Seller and not in case for Claims Against the Seller’s Guarantor.

No double recovery

9.10
The Purchaser agrees that it shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity, from Seller, to the extent that any amount thereof would be duplicative of amounts recovered or obtained by Purchaser in respect of any one shortfall, damage, deficiency, breach or other set of circumstances which give rise to one or more Claims. For this purpose, recovery by the relevant Group Company shall be deemed to be recovery by the Purchaser, in the amount by which such recovery by such Group Company reduces or eliminates the loss suffered by Purchaser.

General

9.11
This Clause 9 applies notwithstanding any other provision of this Agreement to the contrary and shall not cease to have effect as a consequence of any rescission or termination of any other provisions of this Agreement.

9.12
The limitations on the liability of the Seller set out in this Clause 9 shall not apply to the extent that the Claim is in respect of the fraud of the Seller.
 
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10.
PURCHASER WARRANTIES AND UNDERTAKINGS

Purchaser Warranties

10.1
The Purchaser warrants and represents to the Seller in the terms of the warranties set out in Schedule 4.

Purchaser’s knowledge and information

10.2
The Purchaser acknowledges that it has been given an opportunity to carry out an investigation into the affairs of each Group Company and warrants to the Seller and the Seller’s Guarantor that none of the officers of the Purchaser has actual knowledge of any matter or thing which, at the date of this Agreement is known by such officer to constitute a breach of any representation or warranty given by the Seller pursuant to this Agreement.

Preservation of information

10.3
The Purchaser undertakes to the Seller that it shall, and shall procure that its group undertakings shall preserve for a period of at least seven years from Completion all books, records and documents of or relating to the Group existing at Completion.  The Purchaser shall permit and allow and shall procure that its group undertakings shall permit and allow, upon reasonable notice (and in any event on 7 days’ written notice) and during normal business hours, the employees, agents and professional advisers of the Seller access to such books, records and documents and to inspect and make copies of them.

Provision of information to insurers

10.4
Subject to the following provisions of this Clause, if at any time after the date of this Agreement, the Seller and/or the Seller’s Guarantor wishes to insure against its liabilities in respect of any Claims the Purchaser shall and shall procure that each Group Company shall provide such information in relation to this Agreement and the Group Companies as a prospective insurer or insurance broker may require before effecting the insurance. The Seller and/or the Seller’s Guarantor, as the case may be, shall bear the reasonable costs of the provision of such information. The Purchaser and each Group Company is under no obligation to provide such information if the insurer or insurance broker has failed to undertake to keep such information confidential or the disclosure of such information is prohibited by law or regulation.

11.
COVENANT REGARDING SOLICITATION AND HIRING OF EMPLOYEES

Solicitation and hiring of employees

11.1
Until the date that is five (5) years following Completion, Seller and Abengoa will not, and Abengoa will cause its Affiliates not to, either directly or indirectly (a) solicit, or induce any employee of any Group Company to terminate his or her employment relationship therewith (provided that nothing in this provision shall prohibit Seller or any of its Affiliates from utilizing general solicitations or help-wanted advertising not targeted or directed at employees of any Group Company), or (b) except following the termination of employment of any such person by a Group Company, hire any person that is, or at any time within the prior twelve (12) months was, an employee of any Group Company. Seller and Abengoa acknowledge and agree that breach of the provisions of this Clause 8.2 may cause irreparable injury to Purchaser for which monetary damages are inadequate, difficult to compute, or both and, accordingly, agrees that Purchaser shall be entitled to seek and obtain enforcement of the provisions of this Clause 8.2 by an order of specific performance or injunction, without limiting any other rights or remedies available to Purchaser hereunder or under applicable law.
 
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12.
TERMINATION

Effect of termination

12.1
The termination of this Agreement shall not affect:

12.1.1
any rights or obligations which have accrued or become due prior to the date of termination; and

12.1.2
the continued existence and validity of the rights and obligations of the Parties under any provision which is expressly or by implication intended to continue in force after termination (together with those Clauses necessary for their interpretation) including this Clause and Clauses 13, 15, 16 and 17.

13.
GUARANTEE

Seller’s Guarantor

13.1
The Seller’s Guarantor unconditionally and irrevocably guarantees to the Purchaser the punctual discharge by the Seller of its obligations under this Agreement (including its liabilities to pay damages, agreed or otherwise under this Agreement).

13.2
The Seller’s Guarantor warrants to the Purchaser in the terms of the warranties set out in Schedule 5. The provisions of Clause 9 shall apply in respect of all the warranties given by the Seller’s Guarantor under this Clause and for these purposes, references to “Seller” shall be substituted by “Seller’s Guarantor” and “Claim” shall include a claim by the Purchaser against the Seller’s Guarantor in respect of these warranties.

14.
MISCELLANEOUS

Announcements

14.1
Subject to the remaining provisions of this Clause 14.1, no Party shall release any announcement or despatch any announcement or circular, relating to this Agreement or the transactions contemplated hereby, unless the other Party has been given a reasonable opportunity to comment on the content to be included in such announcement or circular.  Nothing in this Clause 14.1 shall prohibit any Party from making any announcement or despatching any circular as required by law or regulation or any regulatory body or the rules of any stock exchange.

14.2
The Purchaser shall at the Seller’s request use commercially reasonable efforts to obtain and supply such information and reports concerning any Group Company as may be required by the Seller to comply with any applicable law or regulation or the rules of the Spanish National Securities Market Commission (Comisión Nacional del Mercado de Valores), Madrid Stock Exchange (Bolsa De Madrid), US Securities and Exchange Commission or NASDAQ as to any continuing obligations or circular to be published by the Seller or any announcement required to be made in relation to this Agreement or any matter contemplated by it.

Confidentiality

14.3
Each Party undertakes to the other that, subject to Clause 14.4, unless the prior written consent of the other Party shall first have been obtained it shall, and shall procure that its officers, employees, advisers and agents shall keep confidential and shall not by failure to exercise due care or otherwise by any act or omission disclose to any person whatever, or use or exploit commercially for its or their own purposes, any of the confidential information of the other Party.  For the purposes of this Clause 14.3, “Confidential Information” is the contents of this Agreement and any other agreement or arrangement contemplated by this Agreement and:
 
11

14.3.1
information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, know-how, customers, suppliers, processes or affairs of the other Party, or any of its group undertakings from time to time; and

14.3.2
any information which is expressly indicated to be confidential in relation to the Party disclosing it (or in relation to any of its group undertakings from time to time),

which any party may from time to time receive or obtain (verbally or in writing or in disk or electronic form) from any other Party as a result of negotiating, entering into, or performing its obligations pursuant to this Agreement and provided that such information concerning the Group in relation to the period before Completion shall not be Confidential Information of the Seller following Completion and such information concerning the Group in relation to the period after Completion shall be Confidential Information of the Purchaser.

14.4
The consent referred to in Clause 14.3 shall not be required for disclosure by a Party of any Confidential Information:

14.4.1
to its officers, employees, advisers and agents, in each case, as may be contemplated by this Agreement or, to the extent required to enable such Party to carry out its obligations under this Agreement and who shall in each case be made aware by such Party of its obligations under this Clause and shall be required by such Party to observe the same restrictions on the use of the relevant information as are contained in Clause 14.3, provided that such Party shall be responsible for any violation of Clause 14.3 by any such officer, employee, adviser or agent;

14.4.2
subject to Clause 14.5, to the extent required by applicable law or by the regulations of any stock exchange or regulatory authority to which such Party is or may become subject or pursuant to any order of court or other competent authority or tribunal;

14.4.3
to the extent that the relevant Confidential Information is in the public domain otherwise than by breach of this Agreement by any Party;

14.4.4
which is disclosed to such Party by a third party who is not in breach of any undertaking or duty as to confidentiality whether express or implied;

14.4.5
which that Party lawfully possessed prior to obtaining it from another, provided that this exception shall not apply to information concerning the Group in relation to the period before Completion;

14.4.6
to any professional advisers to the disclosing party who are bound to the disclosing party by a duty of confidence which applies to any information disclosed; or

14.4.7
to the other Party to this Agreement or pursuant to its terms.

14.5
If a Party becomes required, in circumstances contemplated by Clause 14.4.2, to disclose any information such Party shall (save to the extent prohibited by law) give to the other Party such notice as is practical in the circumstances of such disclosure and shall co-operate with the other Party, having due regard to the other Party’s views, and take such steps as the other Party may reasonably require in order to enable it to mitigate the effects of, or avoid the requirements for, any such disclosure.

No partnership

14.6
Nothing in the Agreement or in any document referred to in it shall constitute the Parties a partner of any other, nor shall the execution, completion and implementation of this Agreement confer on either Party any power to bind or impose any obligations to any third parties on the other Party or to pledge the credit of the other Party.
 
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Assignment

14.7
Subject to Clauses 14.8 and 14.9, no Party may assign its rights under this Agreement.

14.8
The benefit of this Agreement may be assigned by any Party to its wholly owned subsidiaries provided that:

(A)
the assignor shall remain liable for its obligations under this Agreement; and

(B)
if at any time such assignee ceases to be a wholly owned subsidiary of the relevant original contracting party then before it ceases to be so, the original contracting Party and the assignee shall each be under a duty to procure an assignment of the benefit of this Agreement back to the original contracting party.

14.9
The rights of the Purchaser under this Agreement can be assigned by the Purchaser to AAGES or any direct or indirect subsidiary thereof prior to Completion (without prejudice to the obligation of Purchaser to acquire the shares being transferred under this Agreement from the Seller) provided, however, that no such assignment shall relieve the Purchaser of any of its obligations under this Agreement.

Third party rights

14.10
No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a Party to this Agreement.

Entire agreement

14.11
Each of the Parties to this Agreement confirms on behalf of itself and its Affiliates that this Agreement, together with the MOU and each term sheet attached hereto, represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter and supersedes any previous agreement between the Parties with respect thereto and, without prejudice to the generality of the foregoing, excludes any warranty, condition or other undertaking implied at law or by custom, usage or course of dealing.

14.12
Each Party confirms on behalf of itself and its group undertakings that:

  14.12.1
in entering into this Agreement it has not relied on any representation, warranty, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out or referred to in this Agreement; and

  14.12.2
in any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with this Agreement are those pursuant to this Agreement and no Party has any other right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence) or for misrepresentation (whether negligent or otherwise, and whether made prior to, or in, this Agreement).

Unenforceable provisions

14.13
If any provision or part of this Agreement is void or unenforceable due to any applicable law, it shall be deemed to be deleted and the remaining provisions of this Agreement shall continue in full force and effect.
 
13

Effect of Completion

14.14
So far as it remains to be performed this Agreement shall continue in full force and effect after Completion.  The rights and remedies of the Parties shall not be affected by Completion.

Waiver

14.15
The rights and remedies of the Parties shall not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by any other Party or by anything whatsoever except a specific waiver or release in writing and any such waiver or release shall not prejudice or affect any other rights or remedies of the Parties.  No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.

Variation

14.16
No variation of this Agreement (or any of the documents referred to in it) shall be valid unless it is in writing (which, for this purpose, does not include email) and signed by or on behalf of each of the Parties.  The expression “variation” includes any variation, supplement, deletion or replacement however effected.

Counterparts

14.17
This Agreement may be executed in any number of counterparts and by the Parties to it on separate counterparts, each of which when executed and delivered shall be an original but all the counterparts together constitute one instrument.

No set-off, deduction or counterclaim

14.18
Every payment payable by the Purchaser under this Agreement shall be made in full without any set-off or counterclaim howsoever arising and shall be free and clear of, and without deduction of, or withholding for or on account of, any amount which is due and payable by the Seller under this Agreement.

Costs

14.19
The Parties shall pay their own costs in connection with the preparation and negotiation of this Agreement and any matter contemplated by it.

Language

14.20
This Agreement was negotiated in English and, to be valid, all certificates, notices, communications and other documents made in connection with it shall be in English.  If all or any part of this Agreement or any such certificate, notice, communication or other document is for any reason translated into any language other than English the English text shall prevail.  Each of the Parties understands English and is content for all communications relating to this Agreement to be served on it in English.

15.
NOTICES

15.1
A notice (including any approval, consent or other communication) in connection with this Agreement and the documents referred to in it:

15.1.1
must be in writing;

15.1.2
must be left at or delivered by courier to the address of the addressee or sent by pre-paid recorded delivery (airmail if posted to or from a place outside the country of delivery) to the address of the addressee or sent by facsimile to the facsimile number of the addressee in each case which is specified in this Clause in relation to the Party to whom the notice is addressed, and marked for the attention of the person so specified, or to such other address or facsimile number or marked for the attention of such other person, as the relevant Party may from time to time specify by notice given in accordance with this Clause.
 
14

The relevant details of each Party at the date of this Agreement are:
 
Seller
 
   
Address:
48 Boulevard Grande-Duchesse Charlotte
 
L-1330, Luxembourg
   
Facsimile:
+352 26 34 36 66
   
Attention:
Mr. Christian Anders Digemose
 
With copy to:
 
   
Address:
Manuel Pombo Angulo 20
 
28050 Madrid
Facsimile:
 
   
Attention:
Mr. Daniel Alaminos Echarri and Ms. Mercedes Domecq
 
Purchaser
 
   
Address:
354 Davis Road, Suite 100
 
Oakville, Ontario
 
L6J 2X1, Canada
   
Facsimile:
(905) 465-4540
   
Attention:
Chief Executive Officer
 
15.1.3
must not be sent by electronic mail.
 
15.2
In the absence of evidence of earlier receipt, any notice shall take effect from the time that it is deemed to be received in accordance with Clause 15.3.

15.3
Subject to Clause 15.4, a notice is deemed to be received:

15.3.1
in the case of a notice left at the address of the addressee, upon delivery at that address;

15.3.2
in the case of a posted letter, on the third day after posting or, if posted to or from a place outside the United Kingdom, the seventh day after posting; and

15.3.3
in the case of a facsimile, on production of a transmission report from the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient.

15.4
A notice received or deemed to be received in accordance with Clause 15.1 above on a day which is not a Business Day, or after 5pm on any Business Day, shall be deemed to be received on the next following Business Day.

16.
GOVERNING LAW

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
 
15

17.
DISPUTE RESOLUTION

17.1
Each Party irrevocably agrees that the Courts of England shall have exclusive jurisdiction in relation to any dispute or claim arising out of or in connection with this Agreement or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims).

17.2
Each Party irrevocably waives any right that it may have to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum, or to claim that those courts do not have jurisdiction.

17.3
Regardless of whether the courts of any country other than England have jurisdiction to consider a dispute falling within Clause 17 each Party irrevocably undertakes that it will neither issue nor cause to be issued originating or other process in respect to such a dispute in any jurisdiction other than England.

17.4
In the event that any Party commences an action in the courts of any country other than England (a “foreign action”), the Party which commenced the foreign action shall indemnify the other Party in respect of any and all costs and liabilities which it has incurred in connection with the foreign action, whether or not those costs and liabilities would be recoverable apart from the provisions of this Clause.

17.5
Each Party agrees that without preventing any other mode of service, any document in an action (including, a claim form or any other document to be served under the Civil Procedure Rules may be served on any Party by being delivered to or left for that Party at its address for service of notices under Clause 15 and each Party undertakes to maintain such an address at all times in the United Kingdom and to notify the other Parties in advance of any change from time to time of the details of such address in accordance with the manner prescribed for service of notices under Clause 15.

IN WITNESS of which the Parties have executed this Agreement on the date first mentioned above.
 
16

SCHEDULE 1
DETAILS OF THE COMPANY
 
Registered number:
08818211
   
Company status:
public limited company
   
Registered office:
Great West House (GW1)
 
Great West Road
 
Brentford
 
Middlesex, Greater London
 
United Kingdom
 
TW8 9DF
   
Issued share capital:
US$10,021,726 divided into 100,217,260 shares each with a nominal value of US$0.10
   
Directors:
Mr Daniel Villalba Vila
 
Mr Santiago Seage
 
Mr Joaquin Fernandez de Pierola
 
Mr María J. Esteruelas
 
Mr Jack Robinson
 
Mr Robert Dove
 
Mr Andrea Brentan
Mr Francisco J. Martínez
   
Secretary (if any):
Ms Irene M. Hernandez
   
Auditors:
Deloitte LLP
   
Outstanding charges:
17
 
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SCHEDULE 2

COMPLETION OBLIGATIONS

PART 1

SELLER’S AND SELLER’S GUARANTOR OBLIGATIONS

At Completion, the Seller and/or the Seller’s Guarantor, as applicable, shall deliver or cause to be delivered to the Purchaser or the Company (as applicable):

1.
The Seller shall deliver a copy of or extracts from the minutes of a meeting of the directors of the Seller authorising the Seller to enter into and perform its obligations under this Agreement, certified to be a true and complete copy or extract by a director or the secretary of the Seller.

2.
The Seller shall procure that the Shares are credited through the facilities and in accordance with the procedures of DTC to an account or accounts designated by the Purchaser.

3.
The Seller’s Guarantor shall deliver a counterpart, duly executed by Abengoa, S.A., of each agreement, instrument or document required by the Agreement to be entered into or otherwise executed and delivered by Abengoa, S.A. as a condition to Completion.

4.
The Seller’s Guarantor shall deliver a counterpart, duly executed by Abengoa, S.A. or a representative thereof, of each agreement, instrument or document required by the Agreement to be entered into or otherwise executed and delivered by AAGES or any subsidiary thereof as a condition to Completion, to the extent that execution of the foregoing by Abengoa, S.A. or a representative thereof is required for the effectiveness thereof.

5.
The Seller or the Seller’s Guarantor, as the case may be, shall deliver all other documents, instruments and security expressly required by the Agreement to be delivered by Seller or Abengoa, S.A. to Purchaser as a condition to Completion.

6.
The Seller shall deliver written evidence, acceptable to Purchaser, of the release of the Shares from any and all Encumbrances, prior to or upon payment of the Consideration by Purchaser in the manner provided in the Agreement.

7.
The Seller or the Seller’s Guarantor shall deliver the written voluntary resignation of two of the directors of the Company appointed by the Seller’s Guarantor, effective at Completion.

8.
The Seller shall deliver executed power(s) of attorney in favour of the Purchaser or as it directs in the agreed form, and such duly executed waivers or consents as may be required to give a good title to the Shares to the Purchaser or as it directs and to enable the Purchaser or other such person to be registered as the holder of the Shares and, pending registration, to exercise all voting and other rights attaching to the Shares.  For avoidance of doubt, such power of attorney shall not be effective until all Encumbrances on the Shares are released and the Completion has occurred.
 
18

PART 2

PURCHASER’S OBLIGATIONS

At Completion, the Purchaser shall:

1.
Deliver to the Seller a copy of or extracts from the minutes of a meeting of the directors of the Purchaser authorising the Purchaser to enter into and perform its obligations under this Agreement, certified to be a true and complete copy or extract by a director or the secretary of the Purchaser as appropriate.

2.
Deliver to the Seller a counterpart, duly executed by Purchaser, of each agreement, instrument or document required by the Agreement to be entered into or otherwise executed and delivered by Purchaser as a condition to Completion.

3.
Deliver to the Seller a counterpart, duly executed by Purchaser or a representative thereof, of each agreement, instrument or document required by the Agreement to be entered into or otherwise executed and delivered by AAGES or any subsidiary thereof as a condition to Completion, to the extent that execution of the foregoing by Purchaser or a representative thereof is required for the effectiveness thereof.

4.
Deliver to the Seller all other documents and instruments expressly required by the Agreement to be delivered by Purchaser to Seller as a condition to Completion.

5.
Pay by electronic transfer to the account of the Persons entitled thereto under Clause 3.3 the Consideration before 4:00 p.m. on the date of Completion or such later time as the Seller may agree, which shall constitute a valid discharge of the Purchaser’s obligations under Clause 3.3.

6.
Deliver to the Company a statement from any individual who, on completion, will become a registrable person in relation to the Company within the meaning of section 790c of the 2006 Act confirming that person’s required particulars in accordance with section 790m(9) of the 2006 Act.
 
19

SCHEDULE 3

SELLER WARRANTIES

1.
Title to Shares

The Seller is the legal and beneficial owner of, and will at Completion be entitled to transfer the legal and beneficial title to, the Shares, free from any Encumbrances. None of the Shares are subject to any trust, instrument, agreement or understanding with respect to any purchase, sale, transfer, repurchase, redemption or voting of any of the Shares other than as required pursuant to an Encumbrance pursuant to the finance documents entered into by the Seller in the context of the restructuring of the Abengoa group up until the waiver set out in Clause 4.1.3 is obtained.

2.
Incorporation

The Seller is duly incorporated, duly organised and validly existing under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of this Agreement.

3.
Corporate power and authority

The Seller has corporate power and authority to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement and the provisions of this Agreement and any agreement entered into pursuant to the terms of this Agreement, constitute valid and binding obligations on the Seller and are enforceable against the Seller, in accordance with their respective terms.

4.
Due authorisation, execution and delivery

The Seller has duly authorised, executed and delivered this Agreement and will, at Completion, have authorised, executed and delivered any agreements to be entered into by Seller pursuant to the terms of this Agreement.

5.
No breach

The execution and delivery by the Seller of, and the performance by the Seller of its obligations under, this Agreement and any agreement entered into pursuant to the terms of this Agreement, and the consummation of the transactions contemplated hereby and thereby, will not, at Completion, once the waiver referred to in Clause 4.1.3 is obtained:

5.1
result in a breach of or conflict with any provision of the constitutional documents of the Seller or any Group Company;

5.2
result in a material breach of, constitute a material default under, or give rise to a right of termination, cancellation or acceleration of any material obligation, the loss of a material benefit, or any material restriction (including on the ability of any Group Company to declare or pay any dividend or distribution) under, any instrument or material agreement to which Seller or, to the Knowledge of Seller, any Group Company is a party or by which Seller or, to the Knowledge of Seller, any Group Company is bound; or

5.3
result in a breach of any applicable laws or regulations or of any order, decree or judgment of any court or any governmental or regulatory authority in any jurisdiction.

6.
Consents

All consents, permissions, authorisations, approvals and agreements of third parties and all authorisations, registrations, declarations, filings with any governmental department, commission, agency or other organisation having jurisdiction over the Seller which are necessary or desirable for the Seller to obtain in order to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement in accordance with its terms, will be unconditionally obtained in writing at Completion and have been disclosed in writing to the Purchaser.
 
20

7.
Proceedings

There are no:

7.1
outstanding judgments, orders, injunctions or decrees of any governmental or regulatory body or arbitration tribunal against or affecting the Seller;

7.2
lawsuits, actions or proceedings pending or, to the Knowledge of the Seller, threatened against or affecting the Seller ; or

7.3
investigations by any governmental or regulatory body which are pending or threatened against the Seller or any of its group undertakings, so far as the Seller is aware,

which, in each case, relates in any manner to any Group Company or has or could have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement or any other agreements entered into pursuant to the terms of this Agreement.

8.
Solvency

No order has been made, petition presented or meeting convened for the winding up of the Seller, nor any other action taken in relation to the appointment of an administrator, liquidator, receiver, administrative receiver, compulsory manager or any provisional liquidator (or equivalent in any other jurisdiction) (or other process whereby the business is terminated and the assets of the company concerned are distributed amongst the creditors or shareholders or any other contributors), and there are no proceedings under any applicable insolvency, reorganisation or similar laws in any relevant jurisdiction, and no events have occurred which, under applicable laws, would justify any such proceedings.

9.
No Stamp Duty

The Shares are held by Seller through Depository Trust Company (“DTC”), DTC has not made an election under section 97A of the Finance Act 1986 that transfers within its clearance service be subject to UK stamp duty or stamp duty reserve tax, and the transfer of the Shares to Purchaser will not be subject to UK stamp duty or stamp duty reserve tax.

10.
Contracts and transactions with any Group Company

Other than the Shares and the additional shares held by the Seller mentioned in Recital (A), the Seller does not hold any securities of or other ownership interest in any Group Company, or rights (contingent or non-contingent) to acquire any securities of or other ownership interest in any Group Company.

Neither Seller nor any director, officer, employee, or other representative of Seller is a party to any contract or transaction with any Group Company, except for such contracts and transactions entered into following the date of this Agreement with the prior written consent of Purchaser.

11.
Liabilities of Seller and its Affiliates

No Group Company has guaranteed, undertaken to assume (contingently or non-contingently), or provided any security for any obligation or liability of Seller or any of its Affiliates, other than will be irrevocably terminated and released prior to Completion Date.
 
21

12.
Ethical business practices

The Seller has not violated, nor knowingly permitted any of its representatives to violate, any anti-corruption laws of any applicable jurisdiction in connection with the development or construction of any assets now owned by any Group Company, or otherwise in connection with any Group Company or the business thereof.   Without limiting the foregoing, the Seller has not made or gave, nor knowingly permitted any of its representatives to make or give, any payment or anything of value, directly or indirectly, to any government official to influence his, her, or its decision, or to gain any other advantage, in connection with any assets now owned by any Group Company, or otherwise in connection with any Group Company or the business thereof.
 
13.
Brokers’ fees

The Seller has not engaged any finder, broker or other intermediary in connection with the transactions contemplated by this Agreement, to which Purchaser, any of its Affiliates, or any Group Company could be liable.

14.
Intercompany Accounts

Seller or the Seller’s Guarantor will deliver to the Purchaser within ten (10) days after the date of this Agreement a complete and accurate list and of all Intercompany Accounts as of the date thereof.  As of the Completion Date, Seller or the Seller’s Guarantor has caused all Intercompany Accounts to be settled, discharged, offset, paid, terminated and/or extinguished in full, except as otherwise permitted by Clause 4.1.7.
 
22

SCHEDULE 4

PURCHASER WARRANTIES

1.
Incorporation

The Purchaser is duly incorporated, duly organised and validly existing under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of this Agreement.

2.
Corporate power and authority

The Purchaser has corporate power and authority to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement and the provisions of this Agreement and any agreement entered into pursuant to the terms of this Agreement, constitute valid and binding obligations on the Purchaser and are enforceable against the Purchaser, in accordance with their respective terms.

3.
Due authorisation, execution and delivery

The Purchaser has duly authorised, executed and delivered this Agreement and will, at Completion, have authorised, executed and delivered any agreements to be entered into by Purchaser pursuant to the terms of this Agreement.

4.
No breach

The execution and delivery by the Purchaser of, and the performance by the Purchaser of its obligations under, this Agreement and any agreement entered into pursuant to the terms of this Agreement will not:

4.1
result in a breach of or conflict with any provision of its constitutional documents;

4.2
result in a material breach of, or constitute a material default under, any instrument to which it is a party or by which it is bound; or

4.3
result in a breach of any applicable laws or regulations or of any order, decree or judgment of any court or any governmental or regulatory authority in any jurisdiction, in each case as applicable to and binding on Purchaser.

5.
Consents

All consents, permissions, authorisations, approvals and agreements of third parties and all authorisations, registrations, declarations, filings with any governmental department, commission, agency or other organisation having jurisdiction over the Purchaser which are necessary or desirable for the Purchaser to obtain in order to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement in accordance with its terms, have been unconditionally obtained in writing and have been disclosed in writing to the Seller.

6.
Proceedings

There are no:

6.1
outstanding judgments, orders, injunctions or decrees of any governmental or regulatory body or arbitration tribunal against or affecting the Purchaser or any of its Affiliates;

6.2
lawsuits, actions or proceedings pending or, to the knowledge of the Purchaser, threatened against or affecting the Purchaser or any of its Affiliates; or
 
23

6.3
investigations by any governmental or regulatory body which are pending or threatened against the Purchaser or any of its group undertakings, so far as the Purchaser is aware, which, in each case, has or could have a material adverse effect on the ability of the Purchaser to perform its obligations under this Agreement or any other agreements entered into pursuant to the terms of this Agreement.

7.
Solvency

No order has been made, petition presented or meeting convened for the winding up of the Purchaser or any of its group undertakings, nor any other action taken in relation to the appointment of an administrator, liquidator, receiver, administrative receiver, compulsory manager or any provisional liquidator (or equivalent in any other jurisdiction) (or other process whereby the business is terminated and the assets of the company concerned are distributed amongst the creditors or shareholders or any other contributors), and there are no proceedings under any applicable insolvency, reorganisation or similar laws in any relevant jurisdiction, and no events have occurred which, under applicable laws, would justify any such proceedings.
 
24

SCHEDULE 5

SELLER’S GUARANTOR WARRANTIES

1.
Incorporation

The Seller’s Guarantor is duly incorporated, duly organised and validly existing under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of this Agreement.

2.
Corporate power and authority

The Seller’s Guarantor has corporate power and authority to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement and the provisions of this Agreement and any agreement entered into pursuant to the terms of this Agreement, constitute valid and binding obligations on the Seller’s Guarantor and are enforceable against the Seller’s Guarantor, in accordance with their respective terms.

3.
Due authorisation, execution and delivery

The Seller’s Guarantor has duly authorised, executed and delivered this Agreement and will, at Completion, have authorised, executed and delivered any agreements to be entered into by Seller’s Guarantor pursuant to the terms of this Agreement.

4.
No breach

The execution and delivery by the Seller’s Guarantor of, and the performance by the Seller’s Guarantor of its obligations under, this Agreement and any agreement entered into pursuant to the terms of this Agreement will not:

4.1
result in a breach of or conflict with any provision of its constitutional documents;

4.2
result in a material breach of, or constitute a material default under, any instrument to which it is a party or by which it is bound; or

4.3
result in a breach of any applicable laws or regulations or of any order, decree or judgment of any court or any governmental or regulatory authority in any jurisdiction, in each case as applicable to and binding on the Seller’s Guarantor.

5.
Consents

All consents, permissions, authorisations, approvals and agreements of third parties and all authorisations, registrations, declarations, filings with any governmental department, commission, agency or other organisation having jurisdiction over the Seller’s Guarantor which are necessary or desirable for the Seller’s Guarantor to obtain in order to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement in accordance with its terms, have been unconditionally obtained in writing and have been disclosed in writing to the Purchaser.

6.
Proceedings

There are no:

6.1
outstanding judgments, orders, injunctions or decrees of any governmental or regulatory body or arbitration tribunal against or affecting the Seller’s Guarantor or any of its Affiliates;

6.2
lawsuits, actions or proceedings pending or, to the Knowledge of the Seller’s Guarantor, threatened against or affecting the Seller’s Guarantor or any of its Affiliates; or
 
25

6.3
investigations by any governmental or regulatory body which are pending or threatened against the Seller’s Guarantor or any of its group undertakings, so far as the Seller’s Guarantor is aware,

which, in each case, has or could have a material adverse effect on the ability of the Seller’s Guarantor to perform its obligations under this Agreement or any other agreements entered into pursuant to the terms of this Agreement.

7.
Solvency

No order has been made, petition presented or meeting convened for the winding up of the Seller’s Guarantor or any of its group undertakings, nor any other action taken in relation to the appointment of an administrator, liquidator, receiver, administrative receiver, compulsory manager or any provisional liquidator (or equivalent in any other jurisdiction) (or other process whereby the business is terminated and the assets of the company concerned are distributed amongst the creditors or shareholders or any other contributors), and there are no proceedings under any applicable insolvency, reorganisation or similar laws in any relevant jurisdiction, and no events have occurred which, under applicable laws, would justify any such proceedings.

8.
Contracts and transactions with any Group Company

Other than the Shares and the additional shares held by the Seller mentioned in Recital (A), neither Seller’s Guarantor nor any of their Affiliates holds any securities of or other ownership interest in any Group Company, or rights (contingent or non-contingent) to acquire any securities of or other ownership interest in any Group Company.

Neither Seller’s Guarantor nor any of its Affiliates nor any director, officer, employee, or other representative of Seller’s Guarantor or any of its Affiliates is a party to any contract or transaction with any Group Company (each, an “Interested Party Contract”), except for (a) such contracts and transactions specifically disclosed in writing by the Seller’s Guarantor to the Purchaser within ten (10) days after the date of this Agreement, and (b) such contracts and transactions entered into following the date of this Agreement with the prior written consent of Purchaser.

Each Interested Party Contract is in full force and effect and is valid, binding, and enforceable in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles. None of the Seller’s Guarantor or its Affiliates or, to the Knowledge of the Seller’s Guarantor, any Group Company is in breach of or default under any Interested Party Contract. The consummation of the transactions contemplated by this Agreement will not constitute a breach of, or give rise to any right to terminate, accelerate or modify any rights or obligations under, any Interested Party Contract.

9.
Ethical business practices

Neither Seller’s Guarantor nor any of its Affiliates violated, nor knowingly permitted any of its representatives to violate, any anti-corruption laws of any applicable jurisdiction in connection with the development or construction of any assets now owned by any Group Company, or otherwise in connection with any Group Company or the business thereof.   Without limiting the foregoing, neither Seller’s Guarantor nor any of its Affiliates made or gave, nor knowingly permitted any of its representatives to make or give, any payment or anything of value, directly or indirectly, to any government official to influence his, her, or its decision, or to gain any other advantage, in connection with any assets now owned by any Group Company, or otherwise in connection with any Group Company or the business thereof.
 
26

10.
Brokers’ fees

Neither Seller’s Guarantor nor any of its Affiliates nor any Group Company has engaged any finder, broker or other intermediary in connection with the transactions contemplated by this Agreement, to which Purchaser, any of its Affiliates, or any Group Company could be liable.
 
11.
Defaults by any Group Company

To the Knowledge of Seller’s Guarantor, no Group Company is in material breach of or material default under, and no facts or circumstances exist that presently give rise to, or with the passage of time and/or delivery of notice would give rise to, a right of termination, cancellation or acceleration of any material obligation under, or the loss of a material benefit under, or any material restriction (including on the ability of any Group Company to declare or pay any dividend or distribution) under, any instrument or material agreement to which any Group Company is a party or by which any Group Company is bound, except (a) as of the date hereof, as disclosed in writing by Seller’s Guarantor to Purchaser within ten (10) days after the date of this Agreement, and (b) as of the Completion Date, as disclosed in writing by Seller’s Guarantor to Purchaser prior to the Completion Date.
 
27

SCHEDULE 6

DEFINITIONS AND INTERPRETATION

1.
In this Agreement each of the following words and expressions shall have the following meanings:

“the 2006 Act” means the Companies Act 2006 to the extent in force at the relevant time;

AAGES” has the meaning given to that term in Recital (E);

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with that Person, with the term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”) meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or partnership interests, by contract or otherwise; provided, however, that, for all purposes of this Agreement: (a) Seller shall be deemed to be an Affiliate of Seller’s Guarantor and all of its Affiliates, and vice versa; and (b) no Group Company shall be deemed to be an Affiliate of Seller or of any of its other Affiliates;

“Applicable EPC Contract” means (a) with respect to the Kaxu Project, that certain EPC Contract for the Kaxu Solar One Parabolic Trough Power Project among Kaxu Solar One (PTY) Ltd (RF) and Abeinsa EPC Kaxu (PTY) LTD dated on November 4, 2012, and (b) with respect to the Solana Project, Second Amended and Restated Turnkey Engineering, Procurement and Construction Contract among Arizona Sola One LLC, Teyma USA, Inc., Abener Engineering and Construction Services, LLC and Teyma USA & Abener Engineering and Construction Services General Partnership dated on September 30, 2013 and on 30 June 2015.

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London;

“Claim” (without prejudice to Clauses 14.11 and 14.12) means a Claim Against the Seller or a Claim against the Seller’s Guarantor, as the case may be;

Claim Against the Seller” means a claim against the Seller whether in contract or otherwise in respect of any of the Seller Warranties or due to a breach of the Seller’s obligations under or in connection with this Agreement;

Claim Against the Seller’s Guarantor” means a claim  against the Seller’s Guarantor whether in contract or otherwise in respect of any of the Seller’s Guarantor Warranties or due to a breach of the obligations of the Seller’s Guarantor under or in connection with this Agreement;

“Company” means Atlantica Yield plc, a company incorporated in England under the 2006 Act with registered number 08818211 further details of which are set out in Schedule 1;

“Completion” means completion of the sale and purchase of the Shares in accordance with Clause 7;

“Completion Date” means (a) the later of (i) January 3, 2018; and (ii) the tenth (10th) Business Day following satisfaction, or (if capable of waiver) waiver, of all the Conditions (other than Conditions that are capable of being satisfied only at the Completion including those referred to in Clauses 4.1.11 to  4.1.12, provided that such Conditions are satisfied at the Completion), or (b) such other date as the Seller and Purchaser may agree;

Conditions” means the conditions precedent listed in Clause 4.1, Clause 4.5, and Clause 4.6;

“Confidential Information” has the meaning given to that term in Clause 14.3;
 
28

“Consideration” has the meaning given to that term in 3;

“Disclosure Letter” means the letter dated the same date as this Agreement from the Seller to the Purchaser in relation to the Seller Warranties;

DOE” means the U.S. Department of Energy;

Due Diligence Reports” means the following (i) the legal due diligence report issued by Herbert Smith Freehills in conjunction with Bourabiat Associes; Hughes & Hughes; Larraín, Rencoret Urzúa; Loyens Loeff; Santamarina Steta; Santivañez Abogados; Manatt, Phels and Phillips, LLP; and Fennemore Craig P.C. dated 21 June 2017; (ii) the technical due diligence report issued by Sargent & Lundy and Altermia dated 13 June 2017; (iii) the tax due diligence report issued by Ernst & Young dated 3 June 2017; and (iv) the financial due diligence report issued by Ernst & Young dated 19 June 2017.

“Encumbrance” means any claim, option, charge (fixed or floating), mortgage, lien, pledge, equity, encumbrance, right to acquire, right of pre-emption, right of first refusal, title retention or any other third party right, or other security interest or any agreement or arrangement having a similar effect or any agreement to create any of the foregoing;

Extended Longstop Date” has the meaning given to this term in Clause 4.4;

“FERC” means the United States Federal Energy Regulatory Commission;

FFB” means the Federal Financing Bank, a U.S. government corporation by that name;

“Full Title Guarantee” means with the benefit of the implied covenants set out in Part 1 of the Law of Property (Miscellaneous Provisions) Act 1994 when a disposition is expressed to be made with full title guarantee, provided that section 6(2) of the Law of Property (Miscellaneous Provisions) Act 1994 shall not apply for the purpose of this Agreement;

“Fundamental Claim” means a claim against the Seller in respect of any of the Fundamental Warranties;

“Fundamental Warranty” means any of the warranties given by Seller in Clauses 1 through 9 of Schedule 3;

“Group” means the Company and the Subsidiaries;

“Group Company” means any one of the Company and the Subsidiaries;

Intercompany Accounts” means all accounts receivable or payable, whether or not due, and any other liabilities, whether liquidated, unliquidated, fixed, contingent, matured, or unmatured, in any case between (a) any Group Company, on the one hand, and (b) Seller or any of its Affiliates, or any of the officers or directors of Seller or any of its Affiliates, on the other hand.

Interim Period” means the period of time from the date of execution of this Agreement to the Completion Date;

“Kaxu Project” means the 100 MW gross solar electric generation facility located in Paulputs, Northern Cape Province, South Africa;

“Knowledge of Seller” means the actual knowledge of the officers of Seller (with no imputation of the knowledge of any other person) who shall be deemed to have knowledge of such matters as they would have discovered, had they made due and careful inquiry of the matter in question.

“Knowledge of the Seller’s Guarantor” means the actual knowledge of the officers of Seller’s Guarantor (with no imputation of the knowledge of any other person) who shall be deemed to have knowledge of such matters as they would have discovered, had they made due and careful inquiry of the matter in question.

Mojave Loan Guaranty Agreement” means the loan guaranty agreement dated 12 September 2011 (as amended) between Mojave Solar, LLC (USA) and DOE (as guarantor and loan servicer);
 
29

Mojave Note Purchase Agreement” means the note purchase agreement between Mojave Solar, LLC (USA) and FFB dated 12 September 2011;

Mojave Project” means the 280 MW gross solar electric generation facility located in San Bernardino County, California, U.S.;

MOU” has the meaning given to that term in Recital (E);

“Party” or “Parties” means the Seller or/and the Purchaser;

“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, organization, entity, unincorporated organization, or governmental authority;

“Seller Warranties” means the warranties given by the Seller in Schedule 3;

“Shares” has the meaning given to that term in Recital (B);

Solana Loan Guaranty Agreement” means the loan guaranty agreement dated 20 December 2010 (as amended) between Arizona Solar One, LLC (USA) and DOE (as guarantor and loan servicer);

Solana Note Purchase Agreement” means the note purchase agreement between FFB and Arizona Solar One, LLC (USA) dated 20 December 2010;

Solana Project” means the 280 MW gross solar electric generation facility located in Maricopa County, Arizona, U.S.;

“Subsidiaries” means the subsidiary companies of the Company (with “subsidiary” having the meaning given to that term in section 1159 of the 2006 Act);

“Taxation” or “Tax” " means all forms of taxation, duty, rate, levy or charge or other imposition or withholding in the nature of tax arising whether in the United Kingdom or elsewhere and shall include all fines, interest, surcharges and penalties relating to any tax, duty, rate, charge or other imposition or withholding or levy as hereinbefore mentioned; and

2.
In this Agreement, words and expressions defined in the 2006 Act shall bear the same meaning as in that act unless expressly stated otherwise.

3.
In this Agreement, except where the context otherwise requires:

3.1
any reference to this Agreement includes the Schedules to it each of which forms part of this Agreement for all purposes;

3.2
a reference to an enactment, EU instrument or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment, EU instrument or statutory provision and is a reference to that enactment, EU instrument, statutory provision or subordinate legislation as from time to time amended or modified and to any enactment, EU instrument, statutory provision or subordinate legislation that from time to time (with or without modifications) re-enacts, replaces, consolidates, incorporates or reproduces it;

3.3
words in the singular shall include the plural and vice versa;

3.4
references to one gender include other genders;

3.5
a reference to a person shall include a reference to a firm, a body corporate, an unincorporated association, a partnership or to an individual's executors or administrators;

3.6
a reference to a Clause, paragraph, Schedule (other than to a schedule to a statutory provision) shall be a reference to a Clause, paragraph, Schedule (as the case may be) of or to this Agreement;

3.7
if a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day;
 
30

3.8
references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates the English legal term in that jurisdiction and references to any English statute or enactment shall be deemed to include any equivalent or analogous laws or rules in any other jurisdiction.

3.9
a person shall be deemed to be connected with another if that person is connected with another within the meaning of section 1122 of the Corporation Tax Act 2010;

3.10
references to writing shall include any modes of reproducing words in any legible form and shall include email except where expressly stated otherwise;

3.11
a reference to a balance sheet or profit and loss account shall include a reference to any note forming part of it;

3.12
a reference to "includes" or "including" shall mean "includes without limitation" or "including without limitation";

3.13
references to documents "in the agreed terms" or any similar expression shall be to documents agreed between the Parties, annexed to this Agreement and initialled for identification by the Sellers and the Purchaser;

3.14
the headings in this Agreement are for convenience only and shall not affect its interpretation; and

3.15
references to this Agreement include this Agreement as amended or supplemented in accordance with its terms.
 
31

SIGNED for and on behalf of
/s/ Christian Anders Digemose
ACIL LUXCO 1, S.A.
(Signature of authorised person)
a company incorporated in Luxembourg,
acting by Christian Anders Digemose,
who, in accordance with the laws of that
territory, is acting under the authority of
the Seller
 
SIGNED BY Ian Robertson and Chris Jarratt
/s/ Ian Robertson
for and on behalf of
(Signature of authorised person)
ALGONQUIN POWER & UTILITIES CORP.
 
/s/ Chris Jarratt
 
(Signature of authorised person)

SIGNED BY Gonzalo Urquijo and Joaquín Fernández de Piérola
/s/ Gonzalo Urquijo
for and on behalf of
(Signature of authorised person)
ABENGOA, S.A.
 
/s/ Joaquín Fernández de Piérola
 
(Signature of authorised person)
 
32

DEED OF AMENDMENT NO. 1 TO SALE AND PURCHASE AGREEMENT

This Deed of Amendment No. 1 (the “Amendment”) to Sale and Purchase Agreement is made on 31 January 2018 (the “Effective Date”) between

1)
ACIL Luxco 1, S.A., a company incorporated in Luxembourg (registered number B212453) and whose registered office is at 48 Boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg (the "Seller");

2)
Algonquin Power & Utilities Corp., a company incorporated under the federal laws of Canada (corporation number 236237-6) and whose registered office is at 354 Davis Road, Suite 100, Oakville, Ontario, Canada L6J 2X1 (the "Purchaser”); and

3)
Abengoa, S.A., a public company with limited liability (sociedad anónima), duly incorporated and existing under the laws of Spain, with registered address at Campus Palmas Altas, Calle Energía Solar, 1, Sevilla (Spain), registered with the Mercantile Registry of Sevilla in Volume 5683, Sheet 62, Page SE-1507 and bearer of Spanish tax identification number A 41002288 ("Abengoa").

WHEREAS, the Parties and Abengoa entered into a Sale and Purchase Agreement dated 1 November 2017 (the “Existing Agreement”) for the sale and purchase of certain shares of Atlantica Yield plc; and

WHEREAS, the Parties and Abengoa desire to amend the Existing Agreement to extend the Longstop Date and modify the definition of “Completion Date”, on the terms and subject to the conditions set forth herein; and

WHEREAS, pursuant to Clause 14.16, amendments to the Existing Agreement must be contained in a written agreement.

THIS DEED WITNESSES as follows:

1.          Definitions.  Capitalized terms used and not defined in this Amendment have the respective meanings assigned to them in the Existing Agreement.

2.          Amendments to the Existing Agreement.  As of the Effective Date, the Existing Agreement is hereby amended or modified as follows:
 
(a)          Clause 4.7.1 of the Existing Agreement is hereby amended by deleting the words “1 February 2018” and substituting in lieu thereof the words “15 February 2018”.

(b)          The definition of “Completion Date” now appearing in Schedule 6 of the Existing Agreement is hereby amended in its entirety to read as follows:

"Completion Date" means (a) the seventh (7th) Business Day (or such earlier Business Day as Purchaser may elect by providing at least two (2) Business Days written notice to Seller) following satisfaction, or (if capable of waiver) waiver, of all the Conditions (other than Conditions that are capable of being satisfied only at the Completion including those referred to in Clauses 4.1.11 to 4.1.12, provided that such Conditions are satisfied at the Completion), or (b) such other date as the Seller and Purchaser may agree;

3.          Date of Effectiveness; Limited Effect.  This Amendment will be deemed effective on the Effective Date.  Except as expressly provided in this Amendment, all of the terms and provisions of the Existing Agreement are and will remain in full force and effect and are hereby ratified and confirmed by the Parties and Abengoa.  On and after the Effective Date, each reference in the Existing Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference to the Existing Agreement in any other agreements, documents, or instruments executed and delivered pursuant to, or in connection with, the Existing Agreement, will mean and be a reference to the Existing Agreement as amended by this Amendment.
 
33

4.          Representations and Warranties. Each Party and Abengoa hereby represents and warrants to the others that:

(a)          It has the full right, power, and authority to enter into this Amendment and to perform its obligations hereunder and under the Existing Agreement as amended by this Amendment.

(b)          The execution of this Amendment by any individual whose signature is set forth at the end of this Amendment on its behalf, and the delivery of this Amendment by it, have been duly authorized by all necessary action by it.

5.          CounterpartsThis Amendment may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which when executed and delivered shall be an original but all the counterparts together constitute one instrument.

6.          Governing Law.  This Amendment and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

7.          Costs.  The Parties and Abengoa shall pay their own costs in connection with the preparation and negotiation of this Amendment and any matter contemplated by it.

[Signature Pages Follow]
 
34

IN WITNESS WHEREOF, this Deed has been executed by each of the Parties and Abengoa and is intended to be and is hereby delivered on the date first written above.
 
EXECUTED AS A DEED by
ACIL LUXCO 1, S.A.
a company incorporated in Luxembourg,
acting by Christian Anders Digemose and Joost Mees,
who, in accordance with the laws of that
territory, are acting under the authority of
the Seller
 
 
/s/ Christian Anders Digemose
 
(Signature of authorised person)

 
/s/ Joost Mees
 
(Signature of authorised person)
 

EXECUTED AS A DEED by
ALGONQUIN POWER & UTILITIES CORP.
a company incorporated in Canada
acting by Ian Robertson and Chris Jarratt
who, in accordance with the laws of that territory,
are acting under the authority of the Purchaser
 
 
/s/ Ian Robertson
 
(Signature of authorised person)

 
/s/ Chris Jarratt
 
(Signature of authorised person)
 
36

EXECUTED AS A DEED by
ABENGOA, S.A.
a company incorporated in Spain
acting by Gonzalo Urquijo and Joaquín Fernández de Piérola
who, in accordance with the laws of that territory,
are acting under the authority of Abengoa, S.A.
 
 
 /s/ Gonzalo Urquijo
 
(Signature of authorised person)

 
/s/ Joaquín Fernández de Piérola
 
(Signature of authorised person)
 
37

DEED OF AMENDMENT NO. 2 TO SALE AND PURCHASE AGREEMENT

This Deed of Amendment No. 2 (the “Amendment”) to Sale and Purchase Agreement is made on 15 February 2018 (the “Effective Date”) between

4)
ACIL Luxco 1, S.A., a company incorporated in Luxembourg (registered number B212453) and whose registered office is at 48 Boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg (the "Seller");

5)
Algonquin Power & Utilities Corp., a company incorporated under the federal laws of Canada (corporation number 236237-6) and whose registered office is at 354 Davis Road, Suite 100, Oakville, Ontario, Canada L6J 2X1 (the "Purchaser”); and

6)
Abengoa, S.A., a public company with limited liability (sociedad anónima), duly incorporated and existing under the laws of Spain, with registered address at Campus Palmas Altas, Calle Energía Solar, 1, Sevilla (Spain), registered with the Mercantile Registry of Sevilla in Volume 5683, Sheet 62, Page SE-1507 and bearer of Spanish tax identification number A 41002288 ("Abengoa").

WHEREAS, the Parties and Abengoa entered into a Sale and Purchase Agreement dated 1 November 2017 (the “Original Agreement”) for the sale and purchase of certain shares of Atlantica Yield plc, which was then amended by a Deed of Amendment No. 1 to Sale and Purchase Agreement dated 31 January 2018 (the Original Agreement, as amended, is referred to as the “Existing Agreement”); and

WHEREAS, the Parties and Abengoa desire to amend the Existing Agreement to extend the Longstop Date and modify certain other provisions, on the terms and subject to the conditions set forth herein; and

WHEREAS, pursuant to Clause 14.16, amendments to the Existing Agreement must be contained in a written agreement.

THIS DEED WITNESSES as follows:

8.          Definitions.  Capitalized terms used and not defined in this Amendment have the respective meanings assigned to them in the Existing Agreement.

9.          Amendments to the Existing Agreement.  As of the Effective Date, the Existing Agreement is hereby amended or modified as follows:

(a)          Clause 4.7.1 of the Existing Agreement is hereby amended by deleting the words “15 February 2018” and substituting in lieu thereof the words “23 February 2018”.

(b)          New Clause 14.21 is hereby added to the Existing Agreement, as follows:

Purchaser’s Additional Termination Right

In the event Completion has not occurred prior to the ex-dividend date with respect to the first calendar 2018 record date established by the Company for determining entitlement to a dividend on the Shares, the Purchaser may terminate this Agreement by written notice to the Seller and Abengoa.

(c)          Schedule 2, Part 2, Paragraph 6 of the Existing Agreement (pertaining to registrable person statements) is hereby deleted.
 
38

10.        Date of Effectiveness; Limited Effect.  This Amendment will be deemed effective on the Effective Date.  Except as expressly provided in this Amendment, all of the terms and provisions of the Existing Agreement are and will remain in full force and effect and are hereby ratified and confirmed by the Parties and Abengoa.  On and after the Effective Date, each reference in the Existing Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference to the Existing Agreement in any other agreements, documents, or instruments executed and delivered pursuant to, or in connection with, the Existing Agreement, will mean and be a reference to the Existing Agreement as amended by this Amendment.

11.        Representations and Warranties. Each Party and Abengoa hereby represents and warrants to the others that:

(a)          It has the full right, power, and authority to enter into this Amendment and to perform its obligations hereunder and under the Existing Agreement as amended by this Amendment.

(b)          The execution of this Amendment by any individual whose signature is set forth at the end of this Amendment on its behalf, and the delivery of this Amendment by it, have been duly authorized by all necessary action by it.

12.        Counterparts.  This Amendment may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which when executed and delivered shall be an original but all the counterparts together constitute one instrument.

13.        Governing Law.  This Amendment and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

14.        Costs.  The Parties and Abengoa shall pay their own costs in connection with the preparation and negotiation of this Amendment and any matter contemplated by it.

[Signature Pages Follow]
 
39

IN WITNESS WHEREOF, this Deed has been executed by each of the Parties and Abengoa and is intended to be and is hereby delivered on the date first written above.

EXECUTED AS A DEED by
ACIL LUXCO 1, S.A.
a company incorporated in Luxembourg,
acting by Christian Anders Digemose and Joost Mees,
who, in accordance with the laws of that
territory, are acting under the authority of
the Seller
 
 
/s/ Christian Anders Digemose
 
(Signature of authorised person)

 
/s/ Joost Mees
 
(Signature of authorised person)
 

EXECUTED AS A DEED by
ALGONQUIN POWER & UTILITIES CORP.
a company incorporated in Canada
acting by Ian Robertson and Chris Jarratt
who, in accordance with the laws of that territory,
are acting under the authority of the Purchaser
 
 
/s/ Ian Robertson
 
(Signature of authorised person)

 
/s/ Chris Jarratt
 
(Signature of authorised person)
 
2

EXECUTED AS A DEED by
ABENGOA, S.A.
a company incorporated in Spain
acting by Gonzalo Urquijo and Joaquín Fernández de Piérola
who, in accordance with the laws of that territory,
are acting under the authority of Abengoa, S.A.
 
 
 /s/ Gonzalo Urquijo
 
(Signature of authorised person)

 
/s/ Joaquín Fernández de Piérola
 
(Signature of authorised person)
 
3

DEED OF AMENDMENT NO. 3 TO SALE AND PURCHASE AGREEMENT

This Deed of Amendment No. 3 (the “Amendment”) to Sale and Purchase Agreement is made on 27 February 2018 (the “Effective Date”) between

7)
ACIL Luxco 1, S.A., a company incorporated in Luxembourg (registered number B212453) and whose registered office is at 48 Boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg (the "Seller");

8)
Algonquin Power & Utilities Corp., a company incorporated under the federal laws of Canada (corporation number 236237-6) and whose registered office is at 354 Davis Road, Suite 100, Oakville, Ontario, Canada L6J 2X1 (the "Purchaser”); and

9)
Abengoa, S.A., a public company with limited liability (sociedad anónima), duly incorporated and existing under the laws of Spain, with registered address at Campus Palmas Altas, Calle Energía Solar, 1, Sevilla (Spain), registered with the Mercantile Registry of Sevilla in Volume 5683, Sheet 62, Page SE-1507 and bearer of Spanish tax identification number A 41002288 ("Abengoa").

WHEREAS, the Parties and Abengoa entered into a Sale and Purchase Agreement dated 1 November 2017 (the “Original Agreement”) for the sale and purchase of certain shares of Atlantica Yield plc, which was then amended by (i) a Deed of Amendment No. 1 to Sale and Purchase Agreement dated 31 January 2018, and (ii) a Deed of Amendment No. 2 to Sale and Purchase Agreement dated 15 February 2018 (the Original Agreement, as amended, is referred to as the “Existing Agreement”); and

WHEREAS, the Parties and Abengoa desire to amend the Existing Agreement to extend the Longstop Date; and

WHEREAS, pursuant to Clause 14.16, amendments to the Existing Agreement must be contained in a written agreement.

THIS DEED WITNESSES as follows:

15.        Definitions.  Capitalized terms used and not defined in this Amendment have the respective meanings assigned to them in the Existing Agreement.

16.        Amendments to the Existing Agreement.  As of the Effective Date, the Existing Agreement is hereby amended or modified as follows:

(a)          Clause 4.7.1 of the Existing Agreement is hereby amended by deleting the words “23 February 2018” and substituting in lieu thereof the words “7 March 2018”.

17.        Date of Effectiveness; Limited Effect.  This Amendment will be deemed effective on the Effective Date.  Except as expressly provided in this Amendment, all of the terms and provisions of the Existing Agreement are and will remain in full force and effect and are hereby ratified and confirmed by the Parties and Abengoa.  On and after the Effective Date, each reference in the Existing Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference to the Existing Agreement in any other agreements, documents, or instruments executed and delivered pursuant to, or in connection with, the Existing Agreement, will mean and be a reference to the Existing Agreement as amended by this Amendment.

18.        Representations and Warranties. Each Party and Abengoa hereby represents and warrants to the others that:
 
4

(a)          It has the full right, power, and authority to enter into this Amendment and to perform its obligations hereunder and under the Existing Agreement as amended by this Amendment.

(b)          The execution of this Amendment by any individual whose signature is set forth at the end of this Amendment on its behalf, and the delivery of this Amendment by it, have been duly authorized by all necessary action by it.

19.        Counterparts.  This Amendment may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which when executed and delivered shall be an original but all the counterparts together constitute one instrument.

20.        Governing Law.  This Amendment and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

21.        Costs.  The Parties and Abengoa shall pay their own costs in connection with the preparation and negotiation of this Amendment and any matter contemplated by it.

[Signature Pages Follow]
 
5

IN WITNESS WHEREOF, this Deed has been executed by each of the Parties and Abengoa and is intended to be and is hereby delivered on the date first written above.

EXECUTED AS A DEED by
ACIL LUXCO 1, S.A.
a company incorporated in Luxembourg,
acting by Christian Anders Digemose and Joost Mees,
who, in accordance with the laws of that
territory, are acting under the authority of
the Seller
 
 
/s/ Christian Anders Digemose
 
(Signature of authorised person)

 
/s/ Josst Mees
 
(Signature of authorised person)
 
1

EXECUTED AS A DEED by
ALGONQUIN POWER & UTILITIES CORP.
a company incorporated in Canada
acting by Ian Robertson and Chris Jarratt
who, in accordance with the laws of that territory,
are acting under the authority of the Purchaser
 
 
/s/ Ian Robertson
 
(Signature of authorised person)

 
/s/ Chris Jarratt
 
(Signature of authorised person)
 
2

EXECUTED AS A DEED by
ABENGOA, S.A.
a company incorporated in Spain
acting by Gonzalo Urquijo and Joaquín Fernández de Piérola
who, in accordance with the laws of that territory,
are acting under the authority of Abengoa, S.A.
 
 
/s/ Gonzalo Urquijo
 
(Signature of authorised person)

 
/s/ Joaquín Fernández de Piérola
 
(Signature of authorised person)
 
 
3

EX-99.3 4 ex99_3.htm EXHIBIT 99.3

Exhibit 99.3

ALGONQUIN POWER & UTILITIES CORP.

AND

AAGES (AY HOLDINGS) B.V.


SALE AND PURCHASE AGREEMENT

ATLANTICA YIELD PLC
 

 

CONTENTS
 
Clause
Page
 
1.
Interpretation
2
     
2.
Sale and Purchase
4
     
3.
Consideration
4
     
4.
Completion
4
     
5.
Assignment of Certain Rights under ACIL Luxco SPA
4
     
6.
Termination
5
     
7.
Miscellaneous
5
     
8.
Notices
8
     
9.
Governing Law
9
     
10.
Dispute Resolution
9
 
- 1-

THIS AGREEMENT is made on 8 March 2018
 
BETWEEN:
 
(1)
Algonquin Power & Utilities Corp., a company incorporated under the federal laws of Canada (corporation number 236237-6) and whose registered office is at 354 David Road, Suite 100, Oakville, Ontario, Canada L6J 2X1 (the “Seller”); and
 
(2)
AAGES (AY Holdings) B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid), having its seat (zetel) in Amsterdam, its address at Strawinskylaan 3127, 8th floor, 1077 ZX Amsterdam and registered in the trade register under number 70787255 (the “Purchaser”).
 
RECITALS:
 
(A)
Pursuant to a sale and purchase agreement (the “ACIL Luxco SPA”) dated 1 November 2017, as amended, between ACIL Luxco 1, S.A. as seller (“ACIL Luxco”), the Seller as purchaser and Abengoa, S.A. as seller’s guarantor, ACIL Luxco agreed to sell and transfer to the Seller that number of issued ordinary shares of US$0.10 each in the share capital of the Company (rounded up to the nearest whole number) representing as of the date of ACIL Luxco SPA Completion 25 per cent. of the Company’s issued share capital (the “Shares”).
 
(B)
The Seller has agreed to sell the Shares to the Purchaser, conditional on ACIL Luxco SPA Completion occurring.
 
THE PARTIES AGREE as follows:
 
1.
INTERPRETATION
 
1.1
In this Agreement:
 
ACIL Luxco” has the meaning given to that term in Recital (A);
 
ACIL Luxco SPA” has the meaning given to that term in Recital (A);
 
ACIL Luxco SPA Completion” means “Completion” as defined in Schedule 6 to the ACIL Luxco SPA;
 
ACIL Luxco SPA Consideration” means “Consideration” as defined in clause 3.1 of the ACIL Luxco SPA as increased by the “Baseline Earn-Out Amount” (as defined in clause 3.5 of the ACIL Luxco SPA) in accordance with clauses 3.5 to 3.8 of the ACIL Luxco SPA;
 
Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with that Person, with the term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”) meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or partnership interests, by contract or otherwise;
 
- 2-

Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London;
 
Company” means Atlantica Yield plc, a company incorporated under the laws of England and Wales (registered number 08818211) and whose registered office is at Great West House (GW1), Great West Road, Brentford, Middlesex, Greater London, TW8 9DF, United Kingdom;
 
Completion” means completion of the sale and purchase of the Shares in accordance with this Agreement;
 
Confidential Information” has the meaning given to that term in Clause 7.2 (Confidentiality);
 
Consideration” has the meaning given to that term in Clause 3 (Consideration);
 
Encumbrance” has the meaning given to that term in Schedule 6 to the ACIL Luxco SPA;
 
Full Title Guarantee” has the meaning given to that term in Schedule 6 to the ACIL Luxco SPA;
 
Group” has the meaning given to that term in Schedule 6 to the ACIL Luxco SPA;
 
Party” or “Parties” means the Seller and/or the Purchaser, as the context requires;
 
Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, organization, entity, unincorporated organization, or governmental authority; and
 
Shares” has the meaning given to that term in Recital (A).
 
1.2
In this Agreement, except where the context otherwise requires:
 
1.2.1
a reference to an enactment, EU instrument or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment, EU instrument or statutory provision and is a reference to that enactment, EU instrument, statutory provision or subordinate legislation as from time to time amended or modified and to any enactment, EU instrument, statutory provision or subordinate legislation that from time to time (with or without modifications) re-enacts, replaces, consolidates, incorporates or reproduces it;
 
1.2.2
words in the singular shall include the plural and vice versa;
 
1.2.3
references to one gender include other genders;
 
1.2.4
a reference to a person shall include a reference to a firm, a body corporate, an unincorporated association, a partnership or to an individual’s executors or administrators;
 
1.2.5
a reference to a Clause shall be a reference to a Clause of this Agreement;
 
- 3-

1.2.6
if a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day;
 
1.2.7
references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates the English legal term in that jurisdiction and references to any English statute or enactment shall be deemed to include any equivalent or analogous laws or rules in any other jurisdiction;
 
1.2.8
references to writing shall include any modes of reproducing words in any legible form and shall include email except where expressly stated otherwise;
 
1.2.9
a reference to “includes” or “including” shall mean “includes without limitation” or “including without limitation”;
 
1.2.10
the headings in this Agreement are for convenience only and shall not affect its interpretation; and
 
1.2.11
references to this Agreement include this Agreement as amended or supplemented in accordance with its terms.
 
2.
SALE AND PURCHASE
 
2.1
Conditional on ACIL Luxco SPA Completion occurring, the Seller shall sell and the Purchaser shall purchase the Shares.
 
3.
CONSIDERATION
 
3.1
The consideration for the sale of the Shares shall be the payment by the Purchaser to the Seller of an amount in cash equal to the ACIL Luxco SPA Consideration (the “Consideration”).
 
4.
COMPLETION
 
4.1
Completion shall take place immediately following ACIL Luxco SPA Completion.
 
4.2
At Completion the Seller shall direct ACIL Luxco to transfer the Shares to the Purchaser by way of crediting the Shares through the facilities and in accordance with the procedures of Depository Trust Company to an account or accounts designated by the Purchaser.
 
4.3
At Completion or such later time as the Seller may agree, the Purchaser shall pay the Consideration to the Seller or as the Seller directs in writing.
 
5.
ASSIGNMENT OF CERTAIN RIGHTS UNDER ACIL LUXCO SPA
 
5.1
The Seller hereby assigns to the Purchaser all rights (but not, for the avoidance of doubt, its obligations), other than the right to acquire the Shares from ACIL Luxco, of the Seller under the ACIL Luxco SPA as permitted by clause 14.9 of the ACIL Luxco SPA, and the Seller agrees to notify ACIL Luxco of such assignment.
 
- 4-

6.
TERMINATION
 
6.1
The termination of this Agreement shall not affect:
 
6.1.1
any rights or obligations which have accrued or become due prior to the date of termination; and
 
6.1.2
the continued existence and validity of the rights and obligations of the Parties under any provision which is expressly or by implication intended to continue in force after termination (together with those Clauses necessary for their interpretation) including this Clause and Clauses 8 (Notices), 9 (Governing Law) and 10 (Dispute Resolution).
 
7.
MISCELLANEOUS
 
Announcements
 
7.1
Subject to the remaining provisions of this Clause 7.1, no Party shall release any announcement or despatch any announcement or circular relating to this Agreement or the transactions contemplated hereby, unless the other Party has been given a reasonable opportunity to comment on the content to be included in such announcement or circular. Nothing in this Clause 7.1 shall prohibit any Party from making any announcement or despatching any circular as required by law or regulation or any regulatory body or the rules of any stock exchange.
 
Confidentiality
 
7.2
Each Party undertakes to the other that, subject to Clause 7.3, unless the prior written consent of the other Party shall first have been obtained it shall, and shall procure that its officers, employees, advisers and agents shall keep confidential and shall not by failure to exercise due care or otherwise by any act or omission disclose to any person whatever, or use or exploit commercially for its or their own purposes, any of the confidential information of the other Party. For the purposes of this Clause 7.2, “Confidential Information” is the contents of this Agreement, the ACIL Luxco SPA and any other agreement or arrangement contemplated by this Agreement and:
 
7.2.1
information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, know-how, customers, suppliers, processes or affairs of the other Party, or any of its group undertakings from time to time; and
 
7.2.2
any information which is expressly indicated to be confidential in relation to the Party disclosing it (or in relation to any of its group undertakings from time to time),
 
which any party may from time to time receive or obtain (verbally or in writing or in disk or electronic form) from any other Party as a result of negotiating, entering into, or performing its obligations pursuant to this Agreement and provided that such information concerning the Group in relation to the period before Completion shall not be Confidential Information of the Seller following Completion and such information concerning the Group in relation to the period after Completion shall be Confidential Information of the Purchaser.
 
- 5-

7.3
The consent referred to in Clause 7.2 shall not be required for disclosure by a Party of any Confidential Information:
 
7.3.1
to its officers, employees, advisers and agents, in each case, as may be contemplated by this Agreement or, to the extent required to enable such Party to carry out its obligations under this Agreement and who shall in each case be made aware by such Party of its obligations under this Clause and shall be required by such Party to observe the same restrictions on the use of the relevant information as are contained in Clause 7.2, provided that such Party shall be responsible for any violation of Clause 7.2 by any such officer, employee, adviser or agent;
 
7.3.2
subject to Clause 7.4, to the extent required by applicable law or by the regulations of any stock exchange or regulatory authority to which such Party is or may become subject or pursuant to any order of court or other competent authority or tribunal;
 
7.3.3
to the extent that the relevant Confidential Information is in the public domain otherwise than by breach of this Agreement by any Party;
 
7.3.4
which is disclosed to such Party by a third party who is not in breach of any undertaking or duty as to confidentiality whether express or implied;
 
7.3.5
which that Party lawfully possessed prior to obtaining it from another, provided that this exception shall not apply to information concerning the Group in relation to the period before Completion;
 
7.3.6
to any professional advisers to the disclosing party who are bound to the disclosing party by a duty of confidence which applies to any information disclosed; or
 
7.3.7
to the other Party to this Agreement or pursuant to its terms.
 
7.4
If a Party becomes required, in circumstances contemplated by Clause 7.3.2, to disclose any information such Party shall (save to the extent prohibited by law) give to the other Party such notice as is practical in the circumstances of such disclosure and shall co-operate with the other Party, having due regard to the other Party’s views, and take such steps as the other Party may reasonably require in order to enable it to mitigate the effects of, or avoid the requirements for, any such disclosure.
 
No partnership
 
7.5
Nothing in the Agreement or in any document referred to in it shall constitute the Parties a partner of any other, nor shall the execution, completion and implementation of this Agreement confer on either Party any power to bind or impose any obligations to any third parties on the other Party or to pledge the credit of the other Party.
 
Assignment
 
7.6
No Party may assign its rights under this Agreement.
 
- 6-

Third party rights
 
7.7
No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a Party to this Agreement.
 
Entire agreement
 
7.8
Each of the Parties to this Agreement confirms on behalf of itself and its Affiliates that this Agreement represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter and supersedes any previous agreement between the Parties with respect thereto and, without prejudice to the generality of the foregoing, excludes any warranty, condition or other undertaking implied at law or by custom, usage or course of dealing.
 
7.9
Each Party confirms on behalf of itself and its group undertakings that:
 
7.9.1
in entering into this Agreement it has not relied on any representation, warranty, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out or referred to in this Agreement; and
 
7.9.2
in any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with this Agreement are those pursuant to this Agreement and no Party has any other right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence) or for misrepresentation (whether negligent or otherwise, and whether made prior to, or in, this Agreement).
 
Unenforceable provisions
 
7.10
If any provision or part of this Agreement is void or unenforceable due to any applicable law, it shall be deemed to be deleted and the remaining provisions of this Agreement shall continue in full force and effect.
 
Effect of Completion
 
7.11
So far as it remains to be performed this Agreement shall continue in full force and effect after Completion. The rights and remedies of the Parties shall not be affected by Completion.
 
Waiver
 
7.12
The rights and remedies of the Parties shall not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by any other Party or by anything whatsoever except a specific waiver or release in writing and any such waiver or release shall not prejudice or affect any other rights or remedies of the Parties. No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
 
- 7-

Variation
 
7.13
No variation of this Agreement (or any of the documents referred to in it) shall be valid unless it is in writing (which, for this purpose, does not include email) and signed by or on behalf of each of the Parties. The expression “variation” includes any variation, supplement, deletion or replacement however effected.
 
Counterparts
 
7.14
This Agreement may be executed in any number of counterparts and by the Parties to it on separate counterparts, each of which when executed and delivered shall be an original but all the counterparts together constitute one instrument.
 
Costs
 
7.15
The Parties shall pay their own costs in connection with the preparation and negotiation of this Agreement and any matter contemplated by it.
 
Language
 
7.16
This Agreement was negotiated in English and, to be valid, all certificates, notices, communications and other documents made in connection with it shall be in English. If all or any part of this Agreement or any such certificate, notice, communication or other document is for any reason translated into any language other than English the English text shall prevail. Each of the Parties understands English and is content for all communications relating to this Agreement to be served on it in English.
 
8.
NOTICES
 
8.1
A notice (including any approval, consent or other communication) in connection with this Agreement and the documents referred to in it:
 
8.1.1
must be in writing;
 
8.1.2
must be left at or delivered by courier to the address of the addressee or sent by pre-paid recorded delivery (airmail if posted to or from a place outside the country of delivery) to the address of the addressee or sent by facsimile to the facsimile number of the addressee in each case which is specified in this Clause in relation to the Party to whom the notice is addressed, and marked for the attention of the person so specified, or to such other address or facsimile number or marked for the attention of such other person, as the relevant Party may from time to time specify by notice given in accordance with this Clause.
 
8.1.3
The relevant details of each Party at the date of this Agreement are:
 
Seller
 
Address:
354 Davis Road, Suite 100
  Oakville, Ontario
  L6J 2X1, Canada
   
Facsimile: (905) 465-4540
   
Attention: Chief Executive Officer
 
- 8-

Purchaser
 
Address: Atrium Building, 8th Floor
 
Strawinskylaan 3127
 
1077 ZX Amsterdam
  The Netherlands
   
Facsimile: 0031 88 560 9960
   
Attention:  Bart van Dijk
 
8.1.4
must not be sent by electronic mail.
 
8.2
In the absence of evidence of earlier receipt, any notice shall take effect from the time that it is deemed to be received in accordance with Clause 8.3.
 
8.3
Subject to Clause 8.4, a notice is deemed to be received:
 
8.3.1
in the case of a notice left at the address of the addressee, upon delivery at that address;
 
8.3.2
in the case of a posted letter, on the third day after posting or, if posted to or from a place outside the United Kingdom, the seventh day after posting; and
 
8.3.3
in the case of a facsimile, on production of a transmission report from the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient.
 
8.4
A notice received or deemed to be received in accordance with Clause 8.1 above on a day which is not a Business Day, or after 5pm on any Business Day, shall be deemed to be received on the next following Business Day.
 
9.
GOVERNING LAW
 
9.1
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
 
10.
DISPUTE RESOLUTION
 
10.1
Each Party irrevocably agrees that the Courts of England shall have exclusive jurisdiction in relation to any dispute or claim arising out of or in connection with this Agreement or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims).
 
10.2
Each Party irrevocably waives any right that it may have to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum, or to claim that those courts do not have jurisdiction.
 
- 9-

10.3
Regardless of whether the courts of any country other than England have jurisdiction to consider a dispute falling within this Clause 10 each Party irrevocably undertakes that it will neither issue nor cause to be issued originating or other process in respect to such a dispute in any jurisdiction other than England.
 
10.4
In the event that any Party commences an action in the courts of any country other than England (a “foreign action”), the Party which commenced the foreign action shall indemnify the other Party in respect of any and all costs and liabilities which it has incurred in connection with the foreign action, whether or not those costs and liabilities would be recoverable apart from the provisions of this Clause.
 
10.5
Each Party agrees that without preventing any other mode of service, any document in an action (including, a claim form or any other document to be served under the Civil Procedure Rules may be served on any Party by being delivered to or left for that Party at its address for service of notices under Clause 8 (Notices) and each Party undertakes to maintain such an address at all times in the United Kingdom and to notify the other Parties in advance of any change from time to time of the details of such address in accordance with the manner prescribed for service of notices under Clause 8 (Notices).
 
[Signature page follows]
 
- 10-

IN WITNESS of which the Parties have executed this Agreement on the date first mentioned above.

EXECUTED by the parties:
 
Signed by
)
a duly authorised
)
representative of
)
Algonquin Power &
)
Utilities Corp.
) /s/ I. E. Robertson
 
Name: I. E. Robertson
 
Title: Chief Executive Officer

Signed by
)
duly authorised
)
representatives of
)
AAGES (AY
)
Holdings) B.V.
) /s/ I. E. Robertson
 
Name: I. E. Robertson
 
Title: Managing Director A
 
)
 
)
 
)
 
)
 
) /s/ B. van Dijk
 
Name: B. van Dijk
 
Title: Managin Director B
 
 
[Signature page to Sub-Sale SPA]


EX-99.4 5 ex99_4.htm EXHIBIT 99.4

Exhibit 99.4
 
1 November 2017

ACIL LUXCO 1, S.A.

ALGONQUIN POWER & UTILITIES CORP.

and

ABENGOA, S.A.
 

OPTION AND RIGHT OF FIRST REFUSAL
AGREEMENT
ATLANTICA YIELD PLC

 

TABLE OF CONTENTS

CLAUSE
HEADINGS
PAGE
1.
INTERPRETATION
1
2.
SALE AND PURCHASE
2
3.
CONSIDERATION
3
4.
CONDITIONS
5
5.
Interim Period obligations
7
6.
TAXATION
7
7.
COMPLETION
8
8.
SELLER WARRANTIES AND UNDERTAKINGS
8
9.
SELLER LIMITATIONS ON LIABILITY
8
10.
PURCHASER WARRANTIES AND UNDERTAKINGS
10
11.
TERMINATION
10
12.
Guarantees
10
13.
MISCELLANEOUS
11
14.
NOTICES
14
15.
GOVERNING LAW
15
16.
DISPUTE RESOLUTION
15
Schedule 1
DETAILS OF THE COMPANY
17
Schedule 2
COMPLETION OBLIGATIONS
18
Schedule 3
SELLER WARRANTIES
20
Schedule 4
PURCHASER WARRANTIES
23
Schedule 5
seller’s Guarantor WARRANTIES
25
Schedule 6
DEFINITIONS AND INTERPRETATION
28
 

THIS AGREEMENT is made on 1 November 2017

BETWEEN:

(1)
ACIL Luxco 1, S.A., a company incorporated in Luxembourg (registered number R.C.S. Luxembourg B212453) and whose registered office is at 48 Boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg (the “Seller”);

(2)
Algonquin Power & Utilities Corp., a company incorporated under the federal laws of Canada (corporation number 236237-6) and whose registered office is at 354 Davis Road, Suite 100, Oakville, Ontario, Canada, L6J 2X1 (the “Purchaser”)

(3)
Abengoa, S.A., a public company with limited liability (sociedad anónima), duly incorporated and existing under the laws of Spain, with registered address at Campus Palmas Altas, Calle Energía Solar, 1, Sevilla (Spain), registered with the Mercantile Registry of Sevilla in Volume 5683, Sheet 62, Page SE-1507 and bearer of Spanish tax identification number A 41002288 (the “Seller’s Guarantor” or “Abengoa”).

RECITALS:

(A)
The Seller holds 41,557,663 of the issued ordinary shares of US$0.10 each in the share capital of the Company, representing approximately 41.47% of its issued share capital.

(B)
The Seller has agreed to sell and transfer to the Purchaser that number of issued ordinary shares of US$0.10 of the Company (rounded up to the nearest whole number) representing as of the date of Completion 25%, and not less than 25%, of the Company’s issued share capital (the “SPA Shares”), upon the terms and subject to the conditions set out in that certain Sale and Purchase Agreement, dated as of the date hereof, among Seller, Purchaser, and Seller’s Guarantor (the “SPA”).

(C)
The Seller has agreed to grant to the Purchaser an option and right of first refusal with respect to all of the remaining shares of the Company held by the Seller (consisting of 41,557,663 of the issued ordinary shares of US$0.10 each, minus the number of SPA Shares) (the “Shares”) and, subject to the exercise thereof and the satisfaction of the Conditions specified herein, to sell and transfer to the Purchaser up to all of the Shares (representing approximately 16.47% of the issued share capital of the Company), upon the terms and subject to the conditions set out in this Agreement.

(D)
Abengoa has agreed to guarantee the performance of the obligations of the Seller hereunder in accordance with the terms set out in Clause 12.1.

(E)
In addition to the above, Purchaser and Abengoa have agreed, pursuant to the provisions of the memorandum of understanding attached as Attachment 1 (the “MOU”), and subject to the Completion of the transaction contemplated by the SPA, to jointly incorporate a global utility infrastructure company (“AAGES”) with the purpose of identifying, developing, constructing, owning and operating a portfolio of global utility infrastructure projects, and intend that AAGES or a subsidiary thereof (“Purchaser Assignee”) become the acquiring entity of the Company’s shares pursuant to this Agreement.

 IT IS AGREED as follows:

1.
INTERPRETATION

1.1
The definitions and other interpretative provisions set out in Schedule 6 shall apply throughout this Agreement, unless the contrary intention appears.

1.2
In this Agreement, except where the context otherwise requires, any reference to this Agreement includes a reference to the Schedules, each of which forms part of this Agreement for all purposes.
 
1

2.
OPTION AND ROFR; SALE AND PURCHASE
 
Option
 
2.1
Pursuant to the terms and subject to the conditions of this Agreement, Seller hereby grants to Purchaser an irrevocable option to purchase all or part of the Shares, at a price per Share equal to the Option Exercise Price, on the terms and conditions set forth herein (the “Option”).

2.2
The term of the Option (the “Option Term”) shall mean the period commencing on the date of this Agreement and continuing until (and including) the date which falls sixty calendar days after the SPA Completion Date.

2.3
The Option may be exercised in part or in full, at once or from time to time, for all or any portion of the Shares, at the discretion of the Purchaser at any date during the Option Term by providing written notice of exercise (an “Exercise Notice”) to Seller specifying the number of Shares for which the Option is then being exercised (the “Applicable Option Shares”); provided, however, that the aggregate number of Shares subjected to exercise in part shall on the date of each such exercise in part represent either (a) not in excess of that percentage of the Company’s issued share capital that would reduce Seller’s holdings to less than twelve and one-half percent (12.5%) of the Company’s issued share capital, or (b) twelve and one-half percent (12.5%) or a greater percentage of the Company’s issued share capital up to the percentage represented by the total number of Shares.

2.4
The purchase price payable upon Completion following and as a result of the full or partial exercise of the Option shall be equal to US$24.25 per Share (as may be adjusted from time to time pursuant to Clause 2.5) (the “Option Exercise Price”).

2.5
In the event of any change in the Company’s capital stock by reason of any split-up, reclassification, recapitalization, combination, exchange or similar occurrence, (a) the term “shares” (whether or not capitalized) shall be deemed to refer to and include such shares as well any shares into which or for which any or all of such shares may be changed or exchanged, and (b) any price expressed herein as a per-share amount shall be adjusted so that the amount for a share, and any shares into which or for which such share may be changed or exchanged shall, in the aggregate, equal such per-share amount as existing prior to such split-up, reclassification, recapitalization, combination, exchange or similar occurrence.

Right of First Refusal

2.6
As used herein, “Transfer” means any sale, assignment, transfer or other disposition of any of the Shares, other than to Purchaser (or its assignee) hereunder.

2.7
Prior to the expiration of the Option Term, Seller shall not (a) Transfer any of the Shares, (b) enter into any agreement with respect to any Transfer or proposed Transfer of any of the Shares, or (c) publicly announce or disclose any intention to do any of the foregoing, other than as required pursuant to an Encumbrance contained in the finance documents entered into by the Seller in the context of the restructuring of the Abengoa group, up until the waiver set out in Clause 4.1.3 is obtained.

2.8
In addition to and without limiting Clause 2.7, in the event that the Option Term expires prior to March 31, 2018, then until the earlier of the thirtieth (30th) day following the expiration of the Option Term or March 31, 2018, Seller shall not (a) Transfer any of the Shares, (b) enter into any agreement, letter of intent, or other binding or non-binding commitment for any Transfer or proposed Transfer of any of the Shares, or (c) publicly announce or disclose any intention to do any of the foregoing, unless each of the following has occurred with respect to such Shares, other than as required pursuant to an Encumbrance contained in the finance documents entered into by the Seller in the context of the restructuring of the Abengoa group, up until the waiver set out in Clause 4.1.3 is obtained:
 
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2.8.1
Seller has received a bona fide written offer to purchase all or any portion of such Shares (the “Applicable ROFR Shares”), for an all-cash purchase price (the “Applicable ROFR Price”);

2.8.2
Seller has delivered written notice and a copy of such written offer to Purchaser, specifically setting forth the Applicable ROFR Price (a “ROFR Notice”); and

2.8.3
Purchaser has not delivered to Seller a ROFR Exercise Notice with respect to all, and not less than all, of such Applicable ROFR Shares, within thirty (30) days following the later of (a) the expiration of the Option Term, and (b) delivery to Purchaser of the ROFR Notice (but in no event later than the tenth (10th) Business Day after March 31, 2018).

2.9
Any delivery of a ROFR Notice by Seller to Purchaser shall constitute the irrevocable grant by Seller to Purchaser of an option to purchase all, and not less than all, of the Applicable ROFR Shares for a price equal to the Applicable ROFR Price (each, a “ROFR Option”), exercisable by Purchaser by delivery of written notice of exercise of such ROFR Option by Purchaser to Seller (a “ROFR Exercise Notice”).  Such ROFR Option shall expire and be deemed waived if Purchaser fails to deliver to Seller a ROFR Exercise Notice within thirty (30) days following the later of (a) the expiration of the Option Term, and (b) delivery to Purchaser of the ROFR Notice (but in no event later than the tenth (10th) Business Day after March 31, 2018).

Sale and Purchase

2.10
The Seller is the legal and beneficial owner of the Shares and, in the event of the valid exercise by Purchaser of the Option or any applicable ROFR, shall sell and the Purchaser shall purchase the Applicable Option Shares or Applicable ROFR Shares on the basis that they are sold at Completion with Full Title Guarantee and free from any Encumbrance and together with all rights attached to them at Completion or subsequently becoming attached to them.

3.
CONSIDERATION

Consideration

The consideration for the sale of the Applicable Option Shares or the Applicable ROFR Shares, as applicable, shall be the payment at Completion to the Seller of an amount in cash (the “Consideration”) equal to:

(a)
In the case of and upon Completion following and as a result of the full or partial exercise of the Option, the product of (i) the number of the Applicable Option Shares, times (ii) the Option Exercise Price; or

(b)
In the case of and upon Completion following and as a result of the exercise of the ROFR, the product of (i) the number of the Applicable ROFR Shares, times (ii) the Applicable ROFR Price.

Payment of Consideration

3.1
The Consideration shall be paid to the Seller by way of cash payments as follows, provided that if requested by Purchaser or Seller, payment of the Consideration shall be effected through a payment agent reasonably satisfactory to Purchaser and Seller:

3.1.1
to the DOE, on behalf of the Seller, any and all amounts required to be paid to the DOE as agreed to the Seller’s reasonable satisfaction in connection with the consents referenced in clause 4.1.1 and 4.1.2, below;
 
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3.1.2
the outstanding balance of the Consideration (after deducting the amounts set out in clause 3.1.1 above), by electronic transfer to the account of the Seller’s Solicitors (it being understood that the Seller may instruct the Purchaser to pay all or part of such amount to financing parties or other persons in connection with the matters noted in Clause 4.1.3).

Reduction of Consideration

3.2
The Consideration payable to the Seller pursuant to Clause 3.1. shall be deemed to be reduced by an amount equal to the aggregate amount (if any) paid or by the Seller to the Purchaser pursuant to a Claim or alleged Claim.

Earn-Out Amount

3.3
 In addition to the per Share amount specified in Clause 3.1, subject to satisfaction of the conditions specified in Clauses 3.4 and 3.5 below on or prior to the date that is the 24-month anniversary of the SPA Completion Date, the Consideration shall be increased by up to an amount (the “Baseline Earn-Out Amount”) equal to the number of Applicable Option Shares or Applicable ROFR Shares purchased under this Agreement, multiplied by the lesser of (a) US$0.60 per Share and (b) thirty percent (30%) of the amount, if any, by which the average closing market price for a Share over the twenty (20) Business Days prior to (and excluding) the 12-month anniversary of the SPA Completion Date exceeds US$24.25.

3.4
Fifty percent (50%) of the Baseline Earn-Out Amount will be due and payable by Purchaser to Seller five (5) Business Days following the later of (a) the twelve-month anniversary of the SPA Completion Date, and (b) the date, on or prior to the 24-month anniversary of the SPA Completion Date, on which the following conditions have been satisfied:

(i) A3T shall have been sold to and purchased by the Company or a Subsidiary thereof, AAGES or a Subsidiary thereof, or Purchaser or a Subsidiary thereof; or

(ii) (A) Abengoa or an Affiliate thereof shall have solicited from AAGES or the Company an offer to purchase A3T, (B) AAGES or the Company (as applicable) shall have had at least sixty (60) days during which to consider making such an offer, and (C) either (x) AAGES or the Company, as applicable, shall have failed to make such an offer during such sixty-day period, or (y) AAGES or the Company, as applicable, shall have made such an offer and either A3T is not sold or it is sold to a third party for a price in excess of the price offered for A3T by AAGES or the Company, as applicable.

3.5
Fifty percent (50%) of the Baseline Earn-Out Amount will be due and payable by Purchaser to Seller five (5) Business Days following the later of (a) the twelve-month anniversary of the SPA Completion Date, and (b) the date, on or prior to the 24-month anniversary of the SPA Completion Date, on which the following conditions have been satisfied: an independent engineer shall have certified to the Company that the Solana Project and the Kaxu Project (i) are then operating in accordance with their respective original expected design output as set out in the Applicable EPC Contract and (ii) subject to normal maintenance and repair, are then reasonably expected to be capable of operating over their respective expected useful lives at the output originally expected based on the original design thereof.

3.6
Purchaser’s obligations with respect to either portion of the Baseline Earn-Out Amount shall terminate and expire on the 24-month anniversary of the SPA Completion Date to the extent that any conditions to the payment thereof have not been satisfied on or prior to such date.
 
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4.
CONDITIONS

Conditions to Completion

4.1
Completion is conditional on the following Conditions being, except to the extent waived by Purchaser:

4.1.1
The Seller or the relevant Group Company obtaining, in respect of the Solana Project, a waiver from the DOE (on such terms which are agreed to the Seller’s reasonable satisfaction) in respect of the change of control provisions set out in the Solana Note Purchase Agreement and the Solana Loan Guaranty Agreement, and all conditions to the effectiveness of the waiver shall have been satisfied;

4.1.2
The Seller or the relevant Group Company obtaining, in respect of the Mojave Project, a waiver from the DOE (on such terms which are agreed to the Seller’s reasonable satisfaction) in respect of the change of control provisions set out in the Mojave Note Purchase Agreement and the Mojave Loan Guaranty Agreement, and all conditions to the effectiveness of the waiver shall have been satisfied;

4.1.3
The Seller and Abengoa receiving the consents from any financing parties or other Persons required to implement the transaction set out in this Agreement including, without limitation, to release any and all Encumbrances over the Applicable Option Shares or Applicable ROFR Shares granted in favour of such financing parties or other Persons.

4.1.4
The relevant Group Companies obtaining, in respect of the Mojave Project and the Solana Project, approval of FERC for the disposition of jurisdictional facilities effected by the sale of the Applicable Option Shares or Applicable ROFR Shares, and the Purchaser and Purchaser Assignee obtaining, in respect of the Mojave Project and the Solana Project, approval of FERC for the acquisition of the Applicable Option Shares or Applicable ROFR Shares.

4.1.5
The occurrence of the SPA Completion.

Waiver

4.2
The Purchaser may, by written notice to the Seller, waive any of the Conditions of Clauses 4.1.1, 4.1.2 and 4.1.4 in whole or in part at any time prior to the termination of this Agreement, whether following, on or before the Longstop Date.

Satisfaction of Conditions

4.3
The Purchaser, the Seller and Abengoa, as applicable, shall use reasonable endeavours to satisfy or procure the satisfaction of each of Conditions 4.1.1 to 4.1.5 not already satisfied or waived (with the exception of Condition 4.1.3 which cannot be waived) as soon as possible and in any event on or before the Longstop Date.

Notification of satisfaction of Conditions

4.4
The Seller shall notify the Purchaser of the satisfaction of Conditions 4.1.1 to 4.1.4, as soon as possible after any such Condition has been satisfied and in any event within five (5) Business Days of such satisfaction.

Additional Conditions to Completion – Purchaser

4.5
Completion is further conditional on the following, except to the extent waived in writing by Purchaser:

4.5.1
(a) All Fundamental Warranties, and all warranties of Seller’s Guarantor set out in Schedule 5, shall be true and accurate in all material respects (unless such representation or warranty is already qualified by materiality or material adverse effect, in which case it shall be true and correct in all respects) as of the Completion Date, as if made on such date; and (b) all other Seller Warranties shall be true and accurate as of the Completion Date except as would not reasonably be expected to have a material adverse effect on the business, assets, liabilities, results of operations or financial condition of the Group.
 
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4.5.2
Seller and Abengoa shall have complied with the restrictions set out in Clause 5.1 and with its obligations under Clause 5.3.

4.5.3
Seller shall have delivered to Purchaser a certificate executed on behalf of Seller by an authorized officer or representative of Seller, dated as of the Completion Date, representing and certifying the matters set forth in Clause 4.5.1 and Clause 4.5.2.

4.5.4
There shall not have occurred, from the date hereof until the Completion Date, any event or circumstance that has had or would be reasonably likely to have a material adverse effect on (a) the business, assets, liabilities, results of operations or financial condition of the Group, or (b) the ability of Seller or Abengoa to timely perform any of its obligations under this Agreement.

4.5.5
There shall not exist any material breach or material default by any Group Company under, and no facts or circumstances shall exist that give rise to, or with the passage of time and/or delivery of notice would give rise to, a right of termination, cancellation or acceleration of any material obligation under, or the loss of a material benefit under, or any material restriction under, any instrument or material agreement to which any Group Company is a party or by which any Group Company is bound, except (a) as do not restrict the ability of the Company to declare or pay any dividend or distribution and (b) as would not reasonably be expected to have a material adverse effect on the business, assets, liabilities, results of operations or financial condition of the Group.

4.5.6
No governmental authority shall have asserted, in writing or otherwise, that the execution and delivery of this Agreement, or the purchase, sale or transfer of the Applicable Option Shares or Applicable ROFR Shares to Purchaser (or its assignee) hereunder impose on Purchaser, any assignee thereof, the Company or any other Person any obligations, restrictions or requirements under any fair price, moratorium, control-share acquisition, affiliated transaction, mandatory purchase offer, or other takeover or antitakeover statute or regulation, including the City Code on Takeovers and Mergers, or any takeover, antitakeover or similar provision of the constitutional documents of any Group Company.

 Additional Conditions to Completion – Seller

4.6
Completion is further conditional on the following, except to the extent waived in writing by Seller:

4.6.1
All Purchaser Warranties shall be true and accurate in all material respects (unless such representation or warranty is already qualified by materiality or material adverse effect, in which case it shall be true and correct in all respects) as of the Completion Date, as if made on such date.

4.6.2
Purchaser shall have delivered to Seller a certificate executed on behalf of Purchaser by an authorized officer or representative of Purchaser, dated as of the Completion Date, representing and certifying the matters set forth in Clause 4.6.1.
 
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Failure to Satisfy Conditions

4.7
If one or more of the Conditions:

4.7.1
in relation to Clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4, remains un-satisfied on the date which is six (6) months following delivery of the Exercise Notice or a ROFR Exercise Notice (the “Longstop Date”), and in either case has not been waived (other than the Condition stated in Clause 4.1.3, which cannot be waived) by the specified Party; or

4.7.2
in relation to Clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4, becomes impossible to satisfy (or, in the case of clause 4.1.3 the required consents are either refused or not given on terms to the Seller’s reasonable satisfaction) on or before the Longstop Date, and in either case, if it is a Condition which can be waived by a Party, has not been waived by such Party within ten (10) Business Days of written notice form the other Party of such Condition becoming impossible to satisfy;

the Seller or the Purchaser may terminate this Agreement by written notice to the other Party; provided, however, that a Party shall not have the right to terminate this Agreement pursuant to the foregoing to the extent that the failure of such Condition to be satisfied, or the impossibility of satisfying such Condition, was a result of such Party’s wilful misconduct or such Party’s breach of or failure to perform any of its covenants, agreements, or obligations under this Agreement.

5.
RESTRICTED PERIOD AND INTERIM PERIOD OBLIGATIONS

Restricted Period and Interim Period restrictions

5.1
During the Restricted Period and any Interim Period, without the prior written consent of the Purchaser:

5.1.1
The Seller shall not give or agree to give any option, right to acquire or call, or in any way dispose of the shares of the Company subject to being transferred under this Agreement, other than as required pursuant to an Encumbrance contained in the finance documents entered into by the Seller in the context of the restructuring of the Abengoa group, up until the consent set out in Clause 4.1.3 is obtained; or

5.1.2
The Seller shall not create any additional Encumbrance over the shares subject to being transferred under this Agreement.

6.
TAXATION

Taxation

6.1
Any payments made by or due by the Purchaser pursuant to Clause 3 above shall be paid free and clear of all Taxation whatsoever save only for any deductions or withholdings required by law.  To the extent that any amounts are so deducted or withheld, the amounts deducted or withheld shall be treated for all purposes of this Agreement as having been paid to Seller.

In the event that any amount that is paid to or as directed by Seller was required by applicable law to have been deducted or withheld and paid to any taxing authority, Seller shall, immediately upon notice thereof from Purchaser or otherwise, remit such amount (together with penalty and interest, if applicable) to the appropriate taxing authority and provide Purchaser prompt written notice and evidence of payment, or return such amount (together with penalty and interest, if applicable) to Purchaser to be remitted to such taxing authority by Purchaser.
 
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7.
COMPLETION

Completion Date

7.1
Completion shall take place on the Completion Date at the offices of the Seller’s Solicitors or at such other place as the Seller and Purchaser shall agree.

Seller’s and Seller’s Guarantor Obligations

7.2
At Completion, the Seller and the Seller’s Guarantor shall observe and perform all of the provisions of Part 1 of Schedule 2.

Purchaser’s Obligations

7.3
At Completion, the Purchaser shall observe and perform all of the provisions of Part 2 of Schedule 2.

8.
SELLER WARRANTIES AND UNDERTAKINGS

Seller Warranties

8.1
Subject to the limitations in Clause 9, the Seller warrants to the Purchaser, as at the date of this Agreement and as at the Completion Date, in the terms of the Seller Warranties.

9.
SELLER LIMITATIONS ON LIABILITY

Time limits

9.1
Following Completion, Purchaser shall give written notice to the Seller of any matter or event which may give rise to a Claim as soon as reasonably practicable after the Purchaser becomes aware of such matter or event together with reasonable details of such matter or event then known to the Purchaser; provided, however, that a delay in giving such notice shall not relieve Seller of any liability for such Claim except for the monetary amount by which Seller is prejudiced as a result of such delay.

9.2
The Seller shall not be liable for any Claim unless the Purchaser gives written notice containing in reasonable detail of the legal and factual basis of the Claim, including the Purchaser’s estimate of the amount of the Claim, to the Seller on or before the date being (a) in the case of any Fundamental Claim, three (3) years from Completion, and (b) in the case of any other Claim, one year from Completion.

9.3
To the extent that a Claim arises out of a liability which at the time that it is notified to the Seller is contingent only, the Seller shall not be under any obligation to make any payment to the Purchaser until the liability ceases to be contingent.

9.4
A Claim shall not be enforceable against the Seller and shall be deemed to have been withdrawn, and no new Claim may be made in respect of the facts giving rise to such Claim, unless (a) Seller has confirmed in writing its liability for such Claim, or (b) legal proceedings in respect of such Claim are commenced (by being issued and served):

9.4.1
within twelve months of such Claim ceasing to be contingent, if the Claim is based upon what, at the time of service of notice of the Claim on the Seller, was a contingent liability; and

9.4.2
within twelve months of service of notice of the Claim on the Seller with regard to any Claim other than those Claims described in Clause 9.4.1.

Monetary limits

9.5
The aggregate amount of the liability of the Seller in respect of the aggregate of all Claims shall not exceed in the aggregate, an amount equal to the Consideration; provided, however, that the aggregate amount of the liability of the Seller in respect of the aggregate of all Claims other than Fundamental Claims shall not exceed, in the aggregate, an amount equal to ten percent (10%) of the Consideration.
 
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Provision of information to the Seller

9.6
Upon the Purchaser notifying the Seller of a Claim or a matter or event which may lead to a Claim being made, the Purchaser shall give the Seller and its advisers such access as the Seller reasonably requests to the personnel, records and information in the possession of the Purchaser together with the right to examine and copy or photograph such assets, documents, records and information as the Seller reasonably requires.

Information provided by the Seller

9.7
The Seller expressly disclaims all liability and responsibility for any conclusion, opinion, forecast or evaluation contained within or derived or capable of being derived from (a) any investigation carried out or made by or on behalf of the Purchaser in the course of any due diligence or other enquiry prior to the Parties entering into this Agreement or (b) any other data, document, record or information disclosed by the Seller or any Group Company or any employee, agent or adviser of any of them, to the Purchaser or to any person on behalf of the Purchaser. The Purchaser acknowledges that all information disclosed to it (or any person on behalf of the Purchaser) in the course of due diligence, other than the Due Diligence Reports, was provided by the Company and not by the Seller or by Abengoa and that the Due Diligence Reports were prepared by Abengoa’s advisors on the basis of information provided by the Company.

Mitigation

9.8
Nothing in this Clause 9 restricts or limits the general obligation at law of each of the Purchaser and the Group Companies to mitigate any loss or damage which it may suffer or incur as a consequence of any breach of any Seller Warranty or any other provision of this Agreement or in relation to any other matter, event or circumstance which gives rise to a Claim.

No liability to third parties

9.9
No person other than the Purchaser is entitled to make any Claim against the Seller. For the avoidance of doubt the Parties hereby acknowledge and accept that the Seller shall only be liable vis à vis the Purchaser for Claims Against the Seller and not in case for Claims Against the Seller’s Guarantor.

No double recovery

9.10
The Purchaser agrees that it shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity, from Seller, to the extent that any amount thereof would be duplicative of amounts recovered or obtained by Purchaser in respect of any one shortfall, damage, deficiency, breach or other set of circumstances which give rise to one or more Claims. For this purpose, recovery by the relevant Group Company shall be deemed to be recovery by the Purchaser, in the amount by which such recovery by such Group Company reduces or eliminates the loss suffered by Purchaser.

General

9.11
This Clause 9 applies notwithstanding any other provision of this Agreement to the contrary and shall not cease to have effect as a consequence of any rescission or termination of any other provisions of this Agreement.

9.12
The limitations on the liability of the Seller set out in this Clause 9 shall not apply to the extent that the Claim is in respect of the fraud of the Seller.
 
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10.
PURCHASER WARRANTIES AND UNDERTAKINGS

Purchaser Warranties

10.1
The Purchaser warrants and represents to the Seller in the terms of the warranties set out in Schedule 4.

Purchaser’s knowledge and information

10.2
The Purchaser acknowledges that it has been given an opportunity to carry out an investigation into the affairs of each Group Company and warrants to the Seller and the Seller’s Guarantor that none of the officers of the Purchaser has actual knowledge of any matter or thing which, at the date of this Agreement is known by such officer to constitute a breach of any representation or warranty given by the Seller pursuant to this Agreement.

Preservation of information

10.3
The Purchaser undertakes to the Seller that it shall, and shall procure that its group undertakings shall preserve for a period of at least seven years from Completion all books, records and documents of or relating to the Group existing at Completion.  The Purchaser shall permit and allow and shall procure that its group undertakings shall permit and allow, upon reasonable notice (and in any event on 7 days’ written notice) and during normal business hours, the employees, agents and professional advisers of the Seller access to such books, records and documents and to inspect and make copies of them.

Provision of information to insurers

10.4
Subject to the following provisions of this Clause, if at any time after the date of this Agreement, the Seller and/or the Seller’s Guarantor wishes to insure against its liabilities in respect of any Claims the Purchaser shall and shall procure that each Group Company shall provide such information in relation to this Agreement and the Group Companies as a prospective insurer or insurance broker may require before effecting the insurance. The Seller and/or the Seller’s Guarantor, as the case may be, shall bear the reasonable costs of the provision of such information. The Purchaser and each Group Company is under no obligation to provide such information if the insurer or insurance broker has failed to undertake to keep such information confidential or the disclosure of such information is prohibited by law or regulation.

11.
TERMINATION

Effect of termination

11.1
The termination of this Agreement shall not affect:

  11.1.1
any rights or obligations which have accrued or become due prior to the date of termination; and

11.1.2
the continued existence and validity of the rights and obligations of the Parties under any provision which is expressly or by implication intended to continue in force after termination (together with those Clauses necessary for their interpretation) including this Clause and Clauses 12, 14, 15 and 16.

12.
GUARANTEE

Seller’s Guarantor

12.1
The Seller’s Guarantor unconditionally and irrevocably guarantees to the Purchaser the punctual discharge by the Seller of its obligations under this Agreement (including its liabilities to pay damages, agreed or otherwise under this Agreement).

12.2
The Seller’s Guarantor warrants to the Purchaser in the terms of the warranties set out in Schedule 5. The provisions of Clause 9 shall apply in respect of all the warranties given by the Seller’s Guarantor under this Clause and for these purposes, references made to “Seller” shall be substituted by “Seller’s Guarantor” and “Claim” shall include a claim by the Purchaser against the Seller’s Guarantor in respect of these warranties.
 
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13.
MISCELLANEOUS

Announcements

13.1
Subject to the remaining provisions of this Clause 13.1, no Party shall release any announcement or despatch any announcement or circular, relating to this Agreement or the transactions contemplated hereby, unless the other Party has been given a reasonable opportunity to comment on the content to be included in such announcement or circular.  Nothing in this Clause 13.1 shall prohibit any Party from making any announcement or despatching any circular as required by law or regulation or any regulatory body or the rules of any stock exchange.

13.2
The Purchaser shall at the Seller’s request use commercially reasonable efforts to obtain and supply such information and reports concerning any Group Company as may be required by the Seller to comply with any applicable law or regulation or the rules of the Spanish National Securities Market Commission (Comisión Nacional del Mercado de Valores), Madrid Stock Exchange (Bolsa De Madrid), US Securities and Exchange Commission or NASDAQ as to any continuing obligations or circular to be published by the Seller or any announcement required to be made in relation to this Agreement or any matter contemplated by it.

Confidentiality

13.3
Each Party undertakes to the other that, subject to Clause 13.4, unless the prior written consent of the other Party shall first have been obtained it shall, and shall procure that its officers, employees, advisers and agents shall keep confidential and shall not by failure to exercise due care or otherwise by any act or omission disclose to any person whatever, or use or exploit commercially for its or their own purposes, any of the confidential information of the other Party.  For the purposes of this Clause 13.3, “Confidential Information” is the contents of this Agreement and any other agreement or arrangement contemplated by this Agreement and:

13.3.1
information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, know-how, customers, suppliers, processes or affairs of the other Party, or any of its group undertakings from time to time; and

13.3.2
any information which is expressly indicated to be confidential in relation to the Party disclosing it (or in relation to any of its group undertakings from time to time),

which any party may from time to time receive or obtain (verbally or in writing or in disk or electronic form) from any other Party as a result of negotiating, entering into, or performing its obligations pursuant to this Agreement and provided that such information concerning the Group in relation to the period before Completion shall not be Confidential Information of the Seller following Completion and such information concerning the Group in relation to the period after Completion shall be Confidential Information of the Purchaser.

13.4
The consent referred to in Clause 13.3 shall not be required for disclosure by a Party of any Confidential Information:

13.4.1
to its officers, employees, advisers and agents, in each case, as may be contemplated by this Agreement or, to the extent required to enable such Party to carry out its obligations under this Agreement and who shall in each case be made aware by such Party of its obligations under this Clause and shall be required by such Party to observe the same restrictions on the use of the relevant information as are contained in Clause 13.3, provided that such Party shall be responsible for any violation of Clause 13.3 by any such officer, employee, adviser or agent;
 
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13.4.2
subject to Clause 13.5, to the extent required by applicable law or by the regulations of any stock exchange or regulatory authority to which such Party is or may become subject or pursuant to any order of court or other competent authority or tribunal;

13.4.3
to the extent that the relevant Confidential Information is in the public domain otherwise than by breach of this Agreement by any Party;

13.4.4
which is disclosed to such Party by a third party who is not in breach of any undertaking or duty as to confidentiality whether express or implied;

13.4.5
which that Party lawfully possessed prior to obtaining it from another, provided that this exception shall not apply to information concerning the Group in relation to the period before Completion;

13.4.6
to any professional advisers to the disclosing party who are bound to the disclosing party by a duty of confidence which applies to any information disclosed; or

13.4.7
to the other Party to this Agreement or pursuant to its terms.

13.5
If a Party becomes required, in circumstances contemplated by Clause 13.4.2, to disclose any information such Party shall (save to the extent prohibited by law) give to the other Party such notice as is practical in the circumstances of such disclosure and shall co-operate with the other Party, having due regard to the other Party’s views, and take such steps as the other Party may reasonably require in order to enable it to mitigate the effects of, or avoid the requirements for, any such disclosure.

No partnership

13.6
Nothing in the Agreement or in any document referred to in it shall constitute the Parties a partner of any other, nor shall the execution, completion and implementation of this Agreement confer on either Party any power to bind or impose any obligations to any third parties on the other Party or to pledge the credit of the other Party.

Assignment

13.7
Subject to Clauses 13.8 and 13.9, no Party may assign its rights under this Agreement.

13.8
The benefit of this Agreement may be assigned by any Party to its wholly owned subsidiaries provided that:

(A)
the assignor shall remain liable for its obligations under this Agreement; and

(B)
if at any time such assignee ceases to be a wholly owned subsidiary of the relevant original contracting party then before it ceases to be so, the original contracting Party and the assignee shall each be under a duty to procure an assignment of the benefit of this Agreement back to the original contracting party.
 
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13.9
The rights of the Purchaser under this Agreement can be assigned by the Purchaser to AAGES or any direct or indirect subsidiary thereof prior to Completion (without prejudice to the obligation of Purchaser to acquire the shares being transferred under this Agreement from the Seller) provided, however, that no such assignment shall relieve the Purchaser of any of its obligations under this Agreement.

Third party rights

13.10
No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a Party to this Agreement.

Entire agreement

13.11
Each of the Parties to this Agreement confirms on behalf of itself and its Affiliates that this Agreement, together with the SPA and the agreements referenced therein, represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter and supersedes any previous agreement between the Parties with respect thereto and, without prejudice to the generality of the foregoing, excludes any warranty, condition or other undertaking implied at law or by custom, usage or course of dealing.

13.12
Each Party confirms on behalf of itself and its group undertakings that:

13.12.1
in entering into this Agreement it has not relied on any representation, warranty, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out or referred to in this Agreement; and

13.12.2
in any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with this Agreement are those pursuant to this Agreement and no Party has any other right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence) or for misrepresentation (whether negligent or otherwise, and whether made prior to, or in, this Agreement).

Unenforceable provisions

13.13
If any provision or part of this Agreement is void or unenforceable due to any applicable law, it shall be deemed to be deleted and the remaining provisions of this Agreement shall continue in full force and effect.

Effect of Completion

13.14
So far as it remains to be performed this Agreement shall continue in full force and effect after Completion.  The rights and remedies of the Parties shall not be affected by Completion.

Waiver

13.15
The rights and remedies of the Parties shall not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by any other Party or by anything whatsoever except a specific waiver or release in writing and any such waiver or release shall not prejudice or affect any other rights or remedies of the Parties.  No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.

Variation

13.16
No variation of this Agreement (or any of the documents referred to in it) shall be valid unless it is in writing (which, for this purpose, does not include email) and signed by or on behalf of each of the Parties.  The expression “variation” includes any variation, supplement, deletion or replacement however effected.
 
13

Counterparts

13.17
This Agreement may be executed in any number of counterparts and by the Parties to it on separate counterparts, each of which when executed and delivered shall be an original but all the counterparts together constitute one instrument.

No set-off, deduction or counterclaim

13.18
Every payment payable by the Purchaser under this Agreement shall be made in full without any set-off or counterclaim howsoever arising and shall be free and clear of, and without deduction of, or withholding for or on account of, any amount which is due and payable by the Seller under this Agreement.

Costs

13.19
The Parties shall pay their own costs in connection with the preparation and negotiation of this Agreement and any matter contemplated by it.

Language

13.20
This Agreement was negotiated in English and, to be valid, all certificates, notices, communications and other documents made in connection with it shall be in English.  If all or any part of this Agreement or any such certificate, notice, communication or other document is for any reason translated into any language other than English the English text shall prevail.  Each of the Parties understands English and is content for all communications relating to this Agreement to be served on it in English.

14.
NOTICES

14.1
A notice (including any approval, consent or other communication) in connection with this Agreement and the documents referred to in it:

14.1.1
must be in writing;

14.1.2
must be left at or delivered by courier to the address of the addressee or sent by pre-paid recorded delivery (airmail if posted to or from a place outside the country of delivery) to the address of the addressee or sent by facsimile to the facsimile number of the addressee in each case which is specified in this Clause in relation to the Party to whom the notice is addressed, and marked for the attention of the person so specified, or to such other address or facsimile number or marked for the attention of such other person, as the relevant Party may from time to time specify by notice given in accordance with this Clause.

The relevant details of each Party at the date of this Agreement are:

Seller
 
ADDRESS:
48 BOULEVARD GRANDE-DUCHESSE CHARLOTTE
L-1330, LUXEMBOURG
   
FACSIMILE:
+352 26 34 36 66
   
ATTENTION:
MR. CHRISTIAN ANDERS DIGEMOSE
 
With a copy to:
 
ADDRESS:
MANUEL POMBO ANGULO 20
28050 MADRID
   
FACSIMILE:
 
   
ATTENTION:
MR. DANIEL ALAMINOS ECHARRI AND MS. MERCEDES DOMECQ
 
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Purchaser
 
ATTENTION:
354 DAVIS ROAD, SUITE 100
OAKVILLE, ONTARIO
L6J 2X1, CANADA
   
FACSIMILE:
(905) 465-4540
   
ATTENTION:
CHIEF EXECUTIVE OFFICER
 
  14.1.3
must not be sent by electronic mail.

14.2
In the absence of evidence of earlier receipt, any notice shall take effect from the time that it is deemed to be received in accordance with Clause 14.3.

14.3
Subject to Clause 14.4, a notice is deemed to be received:

14.3.1
in the case of a notice left at the address of the addressee, upon delivery at that address;

14.3.2
in the case of a posted letter, on the third day after posting or, if posted to or from a place outside the United Kingdom, the seventh day after posting; and

14.3.3
in the case of a facsimile, on production of a transmission report from the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient.

14.4
A notice received or deemed to be received in accordance with Clause 14.1 above on a day which is not a Business Day, or after 5pm on any Business Day, shall be deemed to be received on the next following Business Day.

15.
GOVERNING LAW

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

16.
DISPUTE RESOLUTION

16.1
Each Party irrevocably agrees that the Courts of England shall have exclusive jurisdiction in relation to any dispute or claim arising out of or in connection with this Agreement or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims).

16.2
Each Party irrevocably waives any right that it may have to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum, or to claim that those courts do not have jurisdiction.

16.3
Regardless of whether the courts of any country other than England have jurisdiction to consider a dispute falling within Clause 16 each Party irrevocably undertakes that it will neither issue nor cause to be issued originating or other process in respect to such a dispute in any jurisdiction other than England.
 
16.4
In the event that any Party commences an action in the courts of any country other than England (a “foreign action”), the Party which commenced the foreign action shall indemnify the other Party in respect of any and all costs and liabilities which it has incurred in connection with the foreign action, whether or not those costs and liabilities would be recoverable apart from the provisions of this Clause.
 
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16.5
Each Party agrees that without preventing any other mode of service, any document in an action (including, a claim form or any other document to be served under the Civil Procedure Rules may be served on any Party by being delivered to or left for that Party at its address for service of notices under Clause 14 and each Party undertakes to maintain such an address at all times in the United Kingdom and to notify the other Parties in advance of any change from time to time of the details of such address in accordance with the manner prescribed for service of notices under Clause 14.

IN WITNESS of which the Parties have executed this Agreement on the date first mentioned above.
 
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SCHEDULE 1
 
DETAILS OF THE COMPANY
 
Registered number:
08818211
   
Company status:
public limited company
   
Registered office:
Great West House (GW1)
Great West Road
Brentford
Middlesex, Greater London
United Kingdom
TW8 9DF
   
Issued share capital:
US$10,021,726 divided into 100,217,260 shares each with a nominal value of US$0.10
   
Directors:
Mr Daniel Villalba Vila
 
Mr Santiago Seage
Mr Joaquin Fernandez de Pierola
Mr María J. Esteruelas
Mr Jack Robinson
Mr Robert Dove
Mr Andrea Brentan
Mr Francisco J. Martínez
   
Secretary (if any):
Ms Irene M. Hernandez
   
Auditors:
Deloitte LLP
   
Outstanding charges:
17
 
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SCHEDULE 2

COMPLETION OBLIGATIONS

PART 1

SELLER’S OBLIGATIONS
 
At Completion, the Seller and/or the Seller’s Guarantor, as applicable, shall deliver or cause to be delivered to the Purchaser or the Company (as applicable):

1.
The Seller shall deliver a copy of or extracts from the minutes of a meeting of the directors of the Seller authorising the Seller to enter into and perform its obligations under this Agreement, certified to be a true and complete copy or extract by a director or the secretary of the Seller.

2.
The Seller shall procure that the Applicable Option Shares or Applicable ROFR Shares are credited through the facilities and in accordance with the procedures of DTC to an account or accounts designated by the Purchaser.

3.
The Seller shall deliver written evidence, acceptable to Purchaser, of the release of the Applicable Option Shares or Applicable ROFR Shares from any and all Encumbrances, prior to or upon payment of the Consideration by Purchaser in the manner provided in the Agreement.

4.
If the aggregate number shares purchased under this Agreement represents at least twelve and one-half percent (12.5%) of the Company’s issued share capital, the Seller or the Seller’s Guarantor shall deliver the written voluntary resignation of the appointee from the board of directors of the Company appointed by the Seller’s Guarantor, effective at Completion.

5.
The Seller shall deliver executed power(s) of attorney in favour of the Purchaser or as it directs in the agreed form, and such duly executed waivers or consents as may be required to give a good title to the Applicable Option Shares or Applicable ROFR Shares to the Purchaser or as it directs and to enable the Purchaser or other such person to be registered as the holder of the Applicable Option Shares or Applicable ROFR Shares and, pending registration, to exercise all voting and other rights attaching to the Applicable Option Shares or Applicable ROFR Shares.  For avoidance of doubt, such power of attorney shall not be effective until all Encumbrances on the Applicable Option Shares or Applicable ROFR Shares are released and the Completion has occurred.

PART 2

PURCHASER’S OBLIGATIONS

At Completion, the Purchaser shall:

1.
Deliver to the Seller a copy of or extracts from the minutes of a meeting of the directors of the Purchaser authorising the Purchaser to enter into and perform its obligations under this Agreement, certified to be a true and complete copy or extract by a director or the secretary of the Purchaser as appropriate.
 
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2.
Pay by electronic transfer to the account of the Persons entitled thereto under clause 3.1 the Consideration before 4:00 p.m. on the date of Completion or such later time as the Seller may agree, which shall constitute a valid discharge of the Purchaser’s obligations under Clause 3.1.

3.
Deliver to the Company a statement from any individual who, on completion, will become a registrable person in relation to the Company within the meaning of section 790c of the 2006 Act confirming that person’s required particulars in accordance with section 790M(9) of the 2006 Act.
 
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SCHEDULE 3

SELLER WARRANTIES

1.
Title to Shares

The Seller is the legal and beneficial owner of, and will at Completion be entitled to transfer the legal and beneficial title to, the Shares, free from any Encumbrances. None of the Shares are subject to any trust, instrument, agreement or understanding with respect to any purchase, sale, transfer, repurchase, redemption or voting of any of the Shares, other than as required pursuant to an Encumbrance contained in the finance documents entered into by the Seller in the context of the restructuring of the Abengoa group, up until the waiver set out in Clause 4.1.3 is obtained.

2.
Incorporation

The Seller is duly incorporated, duly organised and validly existing under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of this Agreement.

3.
Corporate power and authority

The Seller has corporate power and authority to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement and the provisions of this Agreement and any agreement entered into pursuant to the terms of this Agreement, constitute valid and binding obligations on the Seller and are enforceable against the Seller, in accordance with their respective terms.

4.
Due authorisation, execution and delivery

The Seller has duly authorised, executed and delivered this Agreement and will, at Completion, have authorised, executed and delivered any agreements to be entered into by Seller pursuant to the terms of this Agreement.

5.
No breach

The execution and delivery by the Seller of, and the performance by the Seller of its obligations under, this Agreement and any agreement entered into pursuant to the terms of this Agreement, and the consummation of the transactions contemplated hereby and thereby, will not, at Completion, once the waiver referred to in Clause 4.1.3 is obtained:

5.1
result in a breach of or conflict with any provision of the constitutional documents of the Seller or any Group Company;

5.2
result in a material breach of, constitute a material default under, or give rise to a right of termination, cancellation or acceleration of any material obligation, the loss of a material benefit, or any material restriction (including on the ability of any Group Company to declare or pay any dividend or distribution) under, any instrument or material agreement to which Seller or, to the Knowledge of Seller, any Group Company is a party or by which Seller or, to the Knowledge of Seller, any Group Company is bound; or

5.3
result in a breach of any applicable laws or regulations or of any order, decree or judgment of any court or any governmental or regulatory authority in any jurisdiction.

6.
Consents

All consents, permissions, authorisations, approvals and agreements of third parties and all authorisations, registrations, declarations, filings with any governmental department, commission, agency or other organisation having jurisdiction over the Seller which are necessary or desirable for the Seller to obtain in order to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement in accordance with its terms, will be unconditionally obtained in writing at Completion and have been disclosed in writing to the Purchaser.
 
20

7.
Proceedings

There are no:

7.1
outstanding judgments, orders, injunctions or decrees of any governmental or regulatory body or arbitration tribunal against or affecting the Seller;

7.2
lawsuits, actions or proceedings pending or, to the Knowledge of the Seller, threatened against or affecting the Seller; or

7.3
investigations by any governmental or regulatory body which are pending or threatened against the Seller or any of its group undertakings, so far as the Seller is aware,

which, in each case, relates in any manner to any Group Company or has or could have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement or any other agreements entered into pursuant to the terms of this Agreement.

8.
Solvency

No order has been made, petition presented or meeting convened for the winding up of the Seller, nor any other action taken in relation to the appointment of an administrator, liquidator, receiver, administrative receiver, compulsory manager or any provisional liquidator (or equivalent in any other jurisdiction) (or other process whereby the business is terminated and the assets of the company concerned are distributed amongst the creditors or shareholders or any other contributors), and there are no proceedings under any applicable insolvency, reorganisation or similar laws in any relevant jurisdiction, and no events have occurred which, under applicable laws, would justify any such proceedings.

9.
No Stamp Duty

The Shares are held by Seller through Depository Trust Company (“DTC”), DTC has not made an election under section 97A of the Finance Act 1986 that transfers within its clearance service be subject to UK stamp duty or stamp duty reserve tax, and the transfer of the Shares to Purchaser will not be subject to UK stamp duty or stamp duty reserve tax.

10.
Contracts and transactions with any Group Company

Other than the Shares and, prior to the SPA Completion, the additional shares held by the Seller mentioned in Recital (A), the Seller does not hold any securities of or other ownership interest in any Group Company, or rights (contingent or non-contingent) to acquire any securities of or other ownership interest in any Group Company.

Neither Seller nor any director, officer, employee, or other representative of Seller is a party to any contract or transaction with any Group Company, except for  such contracts and transactions entered into following the date of this Agreement with the prior written consent of Purchaser.

11.
Liabilities of Seller and its Affiliates

No Group Company has guaranteed, undertaken to assume (contingently or non-contingently), or provided any security for any obligation or liability of Seller or any of its Affiliates, other than will be irrevocably terminated and released prior to Completion Date.

12.
Ethical business practices

The Seller has not violated, nor knowingly permitted any of its representatives to violate, any anti-corruption laws of any applicable jurisdiction in connection with the development or construction of any assets now owned by any Group Company, or otherwise in connection with any Group Company or the business thereof.   Without limiting the foregoing, the Seller has not  made or gave, nor knowingly permitted any of its representatives to make or give, any payment or anything of value, directly or indirectly, to any government official to influence his, her, or its decision, or to gain any other advantage, in connection with any assets now owned by any Group Company, or otherwise in connection with any Group Company or the business thereof.
 
21

13.
Brokers’ fees

The Seller has not engaged any finder, broker or other intermediary in connection with the transactions contemplated by this Agreement, to which Purchaser, any of its Affiliates, or any Group Company could be liable.

14.
Intercompany Accounts

Seller or the Seller’s Guarantor will deliver to the Purchaser within ten (10) days after the date of this Agreement a complete and accurate list and of all Intercompany Accounts as of the date thereof.  As of the Completion Date, Seller or the Seller’s Guarantor has caused all Intercompany Accounts to be settled, discharged, offset, paid, terminated and/or extinguished in full, except as otherwise permitted by Clause 4.1.7.
 
22

SCHEDULE 4

PURCHASER WARRANTIES

1.
Incorporation

The Purchaser is duly incorporated, duly organised and validly existing under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of this Agreement.

2.
Corporate power and authority

The Purchaser has corporate power and authority to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement and the provisions of this Agreement and any agreement entered into pursuant to the terms of this Agreement, constitute valid and binding obligations on the Purchaser and are enforceable against the Purchaser, in accordance with their respective terms.

3.
Due authorisation, execution and delivery

The Purchaser has duly authorised, executed and delivered this Agreement and will, at Completion, have authorised, executed and delivered any agreements to be entered into by Purchaser pursuant to the terms of this Agreement.

4.
No breach

The execution and delivery by the Purchaser of, and the performance by the Purchaser of its obligations under, this Agreement and any agreement entered into pursuant to the terms of this Agreement will not:

4.1
result in a breach of or conflict with any provision of its constitutional documents;

4.2
result in a material breach of, or constitute a material default under, any instrument to which it is a party or by which it is bound; or

4.3
result in a breach of any applicable laws or regulations or of any order, decree or judgment of any court or any governmental or regulatory authority in any jurisdiction, in each case as applicable to and binding on Purchaser.

5.
Consents

All consents, permissions, authorisations, approvals and agreements of third parties and all authorisations, registrations, declarations, filings with any governmental department, commission, agency or other organisation having jurisdiction over the Purchaser which are necessary or desirable for the Purchaser to obtain in order to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement in accordance with its terms, have been unconditionally obtained in writing and have been disclosed in writing to the Seller.

6.
Proceedings

There are no:

6.1
outstanding judgments, orders, injunctions or decrees of any governmental or regulatory body or arbitration tribunal against or affecting the Purchaser or any of its Affiliates;

6.2
lawsuits, actions or proceedings pending or, to the knowledge of the Purchaser, threatened against or affecting the Purchaser or any of its Affiliates; or

6.3
investigations by any governmental or regulatory body which are pending or threatened against the Purchaser or any of its group undertakings, so far as the Purchaser is aware, which, in each case, has or could have a material adverse effect on the ability of the Purchaser to perform its obligations under this Agreement or any other agreements entered into pursuant to the terms of this Agreement.
23

7.
Solvency

No order has been made, petition presented or meeting convened for the winding up of the Purchaser or any of its group undertakings, nor any other action taken in relation to the appointment of an administrator, liquidator, receiver, administrative receiver, compulsory manager or any provisional liquidator (or equivalent in any other jurisdiction) (or other process whereby the business is terminated and the assets of the company concerned are distributed amongst the creditors or shareholders or any other contributors), and there are no proceedings under any applicable insolvency, reorganisation or similar laws in any relevant jurisdiction, and no events have occurred which, under applicable laws, would justify any such proceedings.
 
24

SCHEDULE 5

SELLER’S GUARANTOR WARRANTIES
 
1.
Incorporation

The Seller’s Guarantor is duly incorporated, duly organised and validly existing under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of this Agreement.

2.
Corporate power and authority

The Seller’s Guarantor has corporate power and authority to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement and the provisions of this Agreement and any agreement entered into pursuant to the terms of this Agreement, constitute valid and binding obligations on the Seller’s Guarantor and are enforceable against the Seller’s Guarantor, in accordance with their respective terms.

3.
Due authorisation, execution and delivery

The Seller’s Guarantor has duly authorised, executed and delivered this Agreement and will, at Completion, have authorised, executed and delivered any agreements to be entered into by Seller’s Guarantor pursuant to the terms of this Agreement.

4.
No breach

The execution and delivery by the Seller’s Guarantor of, and the performance by the Seller’s Guarantor of its obligations under, this Agreement and any agreement entered into pursuant to the terms of this Agreement will not:

4.1
result in a breach of or conflict with any provision of its constitutional documents;

4.2
result in a material breach of, or constitute a material default under, any instrument to which it is a party or by which it is bound; or

4.3
result in a breach of any applicable laws or regulations or of any order, decree or judgment of any court or any governmental or regulatory authority in any jurisdiction, in each case as applicable to and binding on the Seller’s Guarantor.

5.
Consents

All consents, permissions, authorisations, approvals and agreements of third parties and all authorisations, registrations, declarations, filings with any governmental department, commission, agency or other organisation having jurisdiction over the Seller’s Guarantor which are necessary or desirable for the Seller’s Guarantor to obtain in order to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement in accordance with its terms, have been unconditionally obtained in writing and have been disclosed in writing to the Purchaser.

6.
Proceedings

There are no:

6.1
outstanding judgments, orders, injunctions or decrees of any governmental or regulatory body or arbitration tribunal against or affecting the Seller’s Guarantor or any of its Affiliates;

6.2
lawsuits, actions or proceedings pending or, to the Knowledge of the Seller’s Guarantor, threatened against or affecting the Seller’s Guarantor or any of its Affiliates; or

6.3
investigations by any governmental or regulatory body which are pending or threatened against the Seller’s Guarantor or any of its group undertakings, so far as the Seller’s Guarantor is aware, which, in each case, has or could have a material adverse effect on the ability of the Seller’s Guarantor to perform its obligations under this Agreement or any other agreements entered into pursuant to the terms of this Agreement.
 
25

7.
Solvency

No order has been made, petition presented or meeting convened for the winding up of the Seller’s Guarantor or any of its group undertakings, nor any other action taken in relation to the appointment of an administrator, liquidator, receiver, administrative receiver, compulsory manager or any provisional liquidator (or equivalent in any other jurisdiction) (or other process whereby the business is terminated and the assets of the company concerned are distributed amongst the creditors or shareholders or any other contributors), and there are no proceedings under any applicable insolvency, reorganisation or similar laws in any relevant jurisdiction, and no events have occurred which, under applicable laws, would justify any such proceedings.

8.
Contracts and transactions with any Group Company

Other than the Shares and, prior to the SPA Completion, the additional shares held by the Seller mentioned in Recital (A), neither Seller’s Guarantor nor any of their Affiliates holds any securities of or other ownership interest in any Group Company, or rights (contingent or non-contingent) to acquire any securities of or other ownership interest in any Group Company.

Neither Seller’s Guarantor nor any of its Affiliates nor any director, officer, employee, or other representative of Seller’s Guarantor or any of its Affiliates is a party to any contract or transaction with any Group Company (each, an “Interested Party Contract”), except for (a) such contracts and transactions specifically disclosed in writing by the Seller’s Guarantor to the Purchaser within ten (10) days after the date of this Agreement, and (b) such contracts and transactions entered into following the date of this Agreement with the prior written consent of Purchaser.

Each Interested Party Contract is in full force and effect and is valid, binding, and enforceable in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles. None of the Seller’s Guarantor or its Affiliates or, to the Knowledge of the Seller’s Guarantor, any Group Company is in breach of or default under any Interested Party Contract. The consummation of the transactions contemplated by this Agreement will not constitute a breach of, or give rise to any right to terminate, accelerate or modify any rights or obligations under, any Interested Party Contract.

9.
Ethical business practices

Neither Seller’s Guarantor nor any of its Affiliates violated, nor knowingly permitted any of its representatives to violate, any anti-corruption laws of any applicable jurisdiction in connection with the development or construction of any assets now owned by any Group Company, or otherwise in connection with any Group Company or the business thereof.   Without limiting the foregoing, neither Seller’s Guarantor nor any of its Affiliates made or gave, nor knowingly permitted any of its representatives to make or give, any payment or anything of value, directly or indirectly, to any government official to influence his, her, or its decision, or to gain any other advantage, in connection with any assets now owned by any Group Company, or otherwise in connection with any Group Company or the business thereof.

10.
Brokers’ fees

Neither Seller’s Guarantor nor any of its Affiliates nor any Group Company has engaged any finder, broker or other intermediary in connection with the transactions contemplated by this Agreement, to which Purchaser, any of its Affiliates, or any Group Company could be liable.
 
26

11.
Defaults by any Group Company

To the Knowledge of Seller’s Guarantor, no Group Company is in material breach of or material default under, and no facts or circumstances exist that presently give rise to, or with the passage of time and/or delivery of notice would give rise to, a right of termination, cancellation or acceleration of any material obligation under, or the loss of a material benefit under, or any material restriction (including on the ability of any Group Company to declare or pay any dividend or distribution) under, any instrument or material agreement to which any Group Company is a party or by which any Group Company is bound, except (a) as of the date hereof, as disclosed in writing by Seller’s Guarantor to Purchaser within ten (10) days after the date of this Agreement, and (b) as of the Completion Date, as disclosed in writing by Seller’s Guarantor to Purchaser prior to the Completion Date.
 
27

SCHEDULE 6

DEFINITIONS AND INTERPRETATION


1.
In this Agreement each of the following words and expressions shall have the following meanings:

“the 2006 Act” means the Companies Act 2006 to the extent in force at the relevant time;

AAGES” has the meaning given to that term in Recital (E);

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with that Person, with the term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”) meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or partnership interests, by contract or otherwise; provided, however, that, for all purposes of this Agreement: (a) Seller shall be deemed to be an Affiliate of Seller’s Guarantor and all of its Affiliates, and vice versa; and (b) no Group Company shall be deemed to be an Affiliate of Seller or of any of its other Affiliates;

“Applicable EPC Contract” means (a) with respect to the Kaxu Project, that certain EPC Contract for the Kaxu Solar One Parabolic Trough Power Project among Kaxu Solar One (PTY) Ltd (RF) and Abeinsa EPC Kaxu (PTY) LTD dated on November 4, 2012, and (b) with respect to the Solana Project, Second Amended and Restated Turnkey Engineering, Procurement and Construction Contract among Arizona Sola One LLC, Teyma USA, Inc., Abener Engineering and Construction Services, LLC and Teyma USA & Abener Engineering and Construction Services General Partnership dated on September 30, 2013 and on 30 June 2015.

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London;

“Claim” (without prejudice to Clauses 13.11 and 13.12) means a claim against the Seller or a claim against the Seller’s Guarantor, as the case may be:

Claim Against the Seller” means a claim against the Seller whether in contract or otherwise in respect of any of the Seller Warranties or due to a breach of the Seller’s obligations under or in connection with this Agreement;

Claim Against the Seller’s Guarantor” means a claim against the Seller’s Guarantor whether in contract or otherwise in respect of any of the Seller’s Guarantor Warranties or due to a breach of the obligations of the Seller’s Guarantor under or in connection with this Agreement;

“Company” means Atlantica Yield plc, a company incorporated in England under the 2006 Act with registered number 08818211 further details of which are set out in Schedule 1;

“Completion” means completion of the sale and purchase of the Applicable Option Shares or Applicable ROFR Shares in accordance with Clause 7;

“Completion Date” means (a) the tenth (10th) Business Day following satisfaction, or (if capable of waiver) waiver, of all the Conditions (other than Conditions that are capable of being satisfied only at the Completion, provided that such Conditions are satisfied at the Completion), or (b) such other date as the Seller and Purchaser may agree;

Conditions” means the conditions precedent listed in Clause 4.1, Clause 4.5, and Clause 4.6;

“Confidential Information” has the meaning given to that term in Clause 13.3;

“Consideration” has the meaning given to that term in Clause 3;
 
28

DOE” means the U.S. Department of Energy;

Due Diligence Reports” means the following (i) the legal due diligence report issued by Herbert Smith Freehills in conjunction with Bourabiat Associes; Hughes & Hughes; Larraín, Rencoret Urzúa; Loyens Loeff; Santamarina Steta; Santivañez Abogados; Manatt, Phels and Phillips, LLP; and Fennemore Craig P.C. dated 21 June 2017; (ii) the technical due diligence report issued by Sargent & Lundy and Altermia dated 13 June 2017; (iii) the tax due diligence report issued by Ernst & Young dated 3 June 2017; and (iv) the financial due diligence report issued by Ernst & Young dated 19 June 2017.

“Encumbrance” means any claim, option, charge (fixed or floating), mortgage, lien, pledge, equity, encumbrance, right to acquire, right of pre-emption, right of first refusal, title retention or any other third party right, or other security interest or any agreement or arrangement having a similar effect or any agreement to create any of the foregoing;

“FERC” means the United States Federal Energy Regulatory Commission;

FFB” means the Federal Financing Bank, a U.S. government corporation by that name;

“Full Title Guarantee” means with the benefit of the implied covenants set out in Part 1 of the Law of Property (Miscellaneous Provisions) Act 1994 when a disposition is expressed to be made with full title guarantee, provided that section 6(2) of the Law of Property (Miscellaneous Provisions) Act 1994 shall not apply for the purpose of this Agreement;

“Fundamental Claim” means a claim against the Seller in respect of any of the Fundamental Warranties;

“Fundamental Warranty” means any of the warranties given by Seller in Clauses 1 through 9 of Schedule 3;

“Group” means the Company and the Subsidiaries;

“Group Company” means any one of the Company and the Subsidiaries;

Intercompany Accounts” means all accounts receivable or payable, whether or not due, and any other liabilities, whether liquidated, unliquidated, fixed, contingent, matured, or unmatured, in any case between (a) any Group Company, on the one hand, and (b) Seller or any of its Affiliates, or any of the officers or directors of Seller or any of its Affiliates, on the other hand.

Interim Period” means the period of time from delivery of an Exercise Notice or a ROFR Exercise Notice to the Completion Date;

“Knowledge of Seller” means the actual knowledge of the officers of Seller (with no imputation of the knowledge of any other person) who shall be deemed to have knowledge of such matters as they would have discovered, had they made due and careful inquiry of the matter in question.

“Knowledge of the Seller’s Guarantor” means the actual knowledge of the officers of Seller’s Guarantor (with no imputation of the knowledge of any other person) who shall be deemed to have knowledge of such matters as they would have discovered, had they made due and careful inquiry of the matter in question.

Mojave Loan Guaranty Agreement” means the loan guaranty agreement dated 12 September 2011 (as amended) between Mojave Solar, LLC (USA) and DOE (as guarantor and loan servicer);

Mojave Note Purchase Agreement” means the note purchase agreement between Mojave Solar, LLC (USA) and FFB dated 12 September 2011;

Mojave Project” means the 280 MW gross solar electric generation facility located in San Bernardino County, California, U.S.;

MOU” has the meaning given to that term in Recital (E);

“Party” or “Parties” means the Seller or/and the Purchaser;
 
29

“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, organization, entity, unincorporated organization, or governmental authority;

“Restricted Period” means the period of time from the date of this Agreement to and including March 31, 2018.

“Seller Warranties” means the warranties given by the Seller in Schedule 3;

“Shares” has the meaning given to that term in Recital (C);

Solana Loan Guaranty Agreement” means the loan guaranty agreement dated 20 December 2010 (as amended) between Arizona Solar One, LLC (USA) and DOE (as guarantor and loan servicer);

Solana Note Purchase Agreement” means the note purchase agreement between FFB and Arizona Solar One, LLC (USA) dated 20 December 2010;

Solana Project” means the 280 MW gross solar electric generation facility located in Maricopa County, Arizona, U.S.;

“SPA Completion” means the “Completion” under, and as defined in, the SPA;

“SPA Completion Date” means the “Completion Date” under, and as defined in, the SPA;

“SPA Shares” has the meaning given to that term in Recital (B);

“Subsidiaries” means the subsidiary companies of the Company (with “subsidiary” having the meaning given to that term in section 1159 of the 2006 Act); and

“Taxation” or “Tax” " means all forms of taxation, duty, rate, levy or charge or other imposition or withholding in the nature of tax arising whether in the United Kingdom or elsewhere and shall include all fines, interest, surcharges and penalties relating to any tax, duty, rate, charge or other imposition or withholding or levy as hereinbefore mentioned.

2.
In this Agreement, words and expressions defined in the 2006 Act shall bear the same meaning as in that act unless expressly stated otherwise.

3.
In this Agreement, except where the context otherwise requires:

3.1
any reference to this Agreement includes the Schedules to it each of which forms part of this Agreement for all purposes;

3.2
a reference to an enactment, EU instrument or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment, EU instrument or statutory provision and is a reference to that enactment, EU instrument, statutory provision or subordinate legislation as from time to time amended or modified and to any enactment, EU instrument, statutory provision or subordinate legislation that from time to time (with or without modifications) re-enacts, replaces, consolidates, incorporates or reproduces it;

3.3
words in the singular shall include the plural and vice versa;

3.4
references to one gender include other genders;

3.5
a reference to a person shall include a reference to a firm, a body corporate, an unincorporated association, a partnership or to an individual's executors or administrators;

3.6
a reference to a Clause, paragraph, Schedule (other than to a schedule to a statutory provision) shall be a reference to a Clause, paragraph, Schedule (as the case may be) of or to this Agreement;

3.7
if a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day;
 
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3.8
references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates the English legal term in that jurisdiction and references to any English statute or enactment shall be deemed to include any equivalent or analogous laws or rules in any other jurisdiction.

3.9
a person shall be deemed to be connected with another if that person is connected with another within the meaning of section 1122 of the Corporation Tax Act 2010;

3.10
references to writing shall include any modes of reproducing words in any legible form and shall include email except where expressly stated otherwise;

3.11
a reference to a balance sheet or profit and loss account shall include a reference to any note forming part of it;

3.12
a reference to "includes" or "including" shall mean "includes without limitation" or "including without limitation";

3.13
references to documents "in the agreed terms" or any similar expression shall be to documents agreed between the Parties, annexed to this Agreement and initialled for identification by the Sellers and the Purchaser;

3.14
the headings in this Agreement are for convenience only and shall not affect its interpretation; and

3.15
references to this Agreement include this Agreement as amended or supplemented in accordance with its terms.
 
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SIGNED for and on behalf of
ACIL LUXCO 1, S.A.
a company incorporated in Luxembourg,
acting by Christian Anders Digemose,
who, in accordance with the laws of that
territory, is acting under the authority of
the Seller
/s/ Christian Anders Digemose
(Signature of authorised person)

SIGNED BY Ian Robertson and Chris Jarratt 
for and on behalf of
ALGONQUIN POWER & UTILITIES CORP.
/s/ Ian Robertson
(Signature of authorised person)

 
/s/ Chris Jarratt
 
(Signature of authorised person)

SIGNED BY Gonzalo Urquijo and
Joaquín Fernández de Piérola  
for and on behalf of
ABENGOA, S.A.
/s/ Gonzalo Urquijo
(Signature of authorised person)

 
/s/ Joaquín Fernández de Piérola
 
(Signature of authorised person)
 
 
32


EX-99.5 6 ex99_5.htm EXHIBIT 99.5

Exhibit 99.5
 
SHAREHOLDERS AGREEMENT
 
– by and among –
 
ALGONQUIN POWER & UTILITIES CORP.
 
ABENGOA-ALGONQUIN GLOBAL ENERGY SOLUTIONS B.V.
 
– and –
 
ATLANTICA YIELD PLC
 
dated as of 5 March 2018
 

TABLE OF CONTENTS
 
 
Page
   
ARTICLE 1 INTERPRETATION
1
   
ARTICLE 2 GOVERNANCE; DIVIDENDS
6
   
ARTICLE 3 CERTAIN ACQUISITIONS OF COMPANY SECURITIES
8
   
ARTICLE 4 STANDSTILL
11
   
ARTICLE 5 SUPPORTING COMMITMENTS
13
   
ARTICLE 6 INFORMATION RIGHTS
14
   
ARTICLE 7 INVESTOR PARTY REPRESENTATIVE
14
   
ARTICLE 8 TERM AND TERMINATION
15
   
ARTICLE 9 CONFIDENTIALITY
17
   
ARTICLE 10 MISCELLANEOUS
17
 
i

SHAREHOLDERS AGREEMENT
 
This SHAREHOLDERS AGREEMENT (this “Agreement”) is made on 5 March 2018 by and among ALGONQUIN POWER & UTILITIES CORP. (“AQN”), a company incorporated under the federal laws of Canada, ABENGOA-ALGONQUIN GLOBAL ENERGY SOLUTIONS B.V. (“AAGES”), a private company with limited liability incorporated under the laws of the Netherlands, and ATLANTICA YIELD PLC (the “Company” or “AY”), a public limited company incorporated and registered in England and Wales.  Each of AQN, AAGES and the Company are referred to herein as a “Party,” and together as the “Parties”.
 
RECITALS
 
A.
AAGES is a global utility infrastructure company jointly owned by a Subsidiary of AQN and a Subsidiary of Abengoa, S.A. (“ABG”).
 
B.
As of the Effective Date, a Subsidiary of AAGES shall acquire from ACIL Luxco 1, S.A., a company incorporated in Luxembourg (“ABG Seller”), and shall own that number of issued ordinary shares of US$0.10 each in the capital of the Company representing twenty-five per cent (25%) of the Company’s issued share capital (collectively, the “Initial Shares”).
 
C.
AQN holds an option and right of first refusal pursuant to which it (or its assignee) may acquire from ABG Seller any or all additional issued ordinary shares of US$0.10 each in the capital of the Company owned by ABG Seller as of the date hereof, which as of the date hereof represent approximately sixteen point forty seven per cent (16.47%) of the Company’s issued share capital, together with any shares into which or for which any or all of such shares may be changed or exchanged in connection with any change in the Company’s capital stock by reason of any split-up, reclassification, recapitalization, combination, exchange or similar occurrence (collectively, the “Option Shares”).
 
D.
Upon the date hereof an effective upon the Effective Date, each of AQN and AAGES is entering into a separate right of first offer agreement with the Company, pursuant to which AQN and AAGES are granting to the Company certain rights with respect to certain infrastructure assets constructed from time to time by AQN or its Subsidiaries (other than AAGES and its Subsidiaries) or AAGES or its Subsidiaries, respectively, and in connection with the foregoing, the Parties desire to set forth certain additional agreements as to the relationship between AQN, AAGES, and their respective Subsidiaries, on the one hand, and the Company, on the other hand.
 
E.
In connection with the foregoing, the Parties desire to set forth certain rights and obligations of the Parties. The Parties acknowledge and agree that it is not the purpose of this Agreement or the rights contemplated hereby to grant, nor the intent of the Investor Parties to acquire (individually or collectively) pursuant to such rights, directly or indirectly, Control over the Company.
 
NOW THEREFORE in consideration of the mutual covenants and agreements herein contained, the Parties agree as follows:
 
ARTICLE 1
INTERPRETATION
 
1.1          Definitions.  For purposes of this Agreement, the following terms used herein will have the following meanings when used with initial capitalization, whether singular or plural:
 
80% Pay-Out Ratio” has the meaning set forth in Clause 2.2(a).
 
1

AAGES” has the meaning assigned in the preamble, and includes a permitted successor and assignee thereof under Clause 10.8.
 
AAGES ROFO Agreement” means that certain Right of First Offer Agreement dated as of the date hereof and effective upon the Effective Date, pursuant to which AAGES has granted to the Company certain rights with respect to the direct or indirect acquisition of certain assets and/or interests in certain assets of AAGES and its Subsidiaries, as such agreement may be amended, supplemented, amended and restated, or replaced from time to time.
 
AAGES ROFO Interest” means any asset and/or direct or indirect interest in any asset that may be acquired by the Company or any Subsidiary thereof under the AAGES ROFO Agreement.
 
ABG” has the meaning assigned in the recitals.
 
ABG ROFO Agreement” means that certain Right of First Offer Agreement dated December 9, 2014, as amended, pursuant to which ABG has granted to the Company certain rights with respect to the direct or indirect acquisition of certain assets and/or interests in certain assets of ABG and its Subsidiaries, as such agreement may be further amended, supplemented, amended and restated, or replaced from time to time.
 
ABG ROFO Interest” means any asset and/or direct or indirect interest in any asset that may be acquired by the Company or any Subsidiary thereof under the ABG ROFO Agreement.
 
ABG Seller” has the meaning assigned in the recitals.
 
Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by such Person, or is under common Control of a third Person, provided that (a) neither the Company nor any of its Subsidiaries shall be deemed to be an Affiliate of any Investor Party, nor vice versa, and (b) AQN and each of its Affiliates shall be deemed to be Affiliates of AAGES and each of its Subsidiaries, and vice versa, so long as AQN and its Affiliates in the aggregate (i) own or have the right to exercise at least fifty per cent (50%) of the total voting rights attached to Equity Securities of AAGES, or (ii) hold rights to appoint at least fifty per cent (50%) of the positions then authorized to constitute the board or similar governing body of AAGES (in each case whether pursuant to relevant constitutional documents, contract or otherwise).
 
Agreement” has the meaning assigned in the preamble.
 
Applicable Exchange” means NASDAQ or any other stock exchange on which the Shares are then listed and traded; provided, however, that in the event that the Shares are then listed and traded on more than one such stock exchange, the Applicable Exchange shall mean the stock exchange having the highest average trading volume for the Shares over the Trading Period.
 
Appointing Party” has the meaning set forth in Clause 7.1.
 
AQN” has the meaning assigned in the preamble.
 
AQN ROFO Agreement” means that certain Right of First Offer Agreement dated as of the date hereof and effective upon the Effective Date, pursuant to which AQN has granted to the Company certain rights with respect to the direct or indirect acquisition of certain assets and/or interests in certain assets of AQN and its Subsidiaries (other than AAGES and its Subsidiaries), as such agreement may be amended, supplemented, amended and restated, or replaced from time to time.
 
AQN ROFO Interest” means any asset and/or direct or indirect interest in any asset that may be acquired by the Company or any Subsidiary thereof under the AQN ROFO Agreement.
 
2

AY” has the meaning assigned in the preamble.
 
AY Articles” means the articles of association of the Company, as amended and in effect from time to time.
 
AY Board” means the board of directors of the Company.
 
AY Voting Securities” means (a) the Shares and (b) any other Equity Securities of the Company that at such time give the holder thereof a non-contingent right to vote at general meetings of the Company with respect to all, or substantially all, matters, including the election of Directors.
 
Business Day” means any day other than any Saturday, any Sunday or any legal holiday during which banks in London, United Kingdom are obligated or permitted to close for business.
 
Cash Available for Distribution” or “CAFD” means, for any period, (a) all cash distributions received by the Company from its Subsidiaries during such period, minus (b) all cash expenses of the Company, including debt service and general and administrative expenses, due and/or payable by the Company during such period.
 
Change of Control” means a transaction, event or series of transactions or events by which any Person (or Persons Acting In Concert) who did not previously exercise Control over AQN acquires or otherwise becomes able to exercise such Control.
 
Closing Price” means, with respect to any Equity Security that is then listed and traded on any stock exchange, the U.S. dollar price of the last transaction of such Equity Security completed during regular trading hours on the day to which such price relates, as derived from the website of such stock exchange on which such Equity Securities are listed and traded or, if not available on such website, from Bloomberg.
 
Confidential Information” means information relating to (i) this Agreement and (ii) a Party or any Affiliate thereof of a confidential nature that is obtained in connection with this Agreement or any transaction contemplated hereby, or that is otherwise expressly designated in writing by such party as confidential; provided, however, that Confidential Information shall not include: (a) any information that is contained in public records, public filings or is otherwise publicly disclosed or available other than as the result of a breach of this Agreement; or (b) any information disclosed to the applicable Party on a non-confidential basis from a source independent of the other Party, its Affiliates, and their respective representatives, who such Party reasonably believes obtained and disclosed such information without breach of any obligation of confidentiality.
 
Control” or “control” means, with respect to a Person, where another Person (or Persons Acting In Concert), possesses, directly or indirectly, whether pursuant to relevant constitutional documents, contract or otherwise, (a) the power to exercise at least a majority of the ordinary voting rights in such Person, or (b) the power to appoint a majority of the members of the board of directors or other governing body of such Person.
 
Director” means a director of the Company.
 
Effective Date” means the date on which the sale and purchase of the Initial Shares is completed.
 
Equity Securities” means “equity securities” as defined in the Companies Act 2006 (as amended from time to time).
 
Initial Funding Commitment” has the meaning set forth in Clause 3.6.
 
3

Initial Funding Commitment Amount” means US$100,000,000.
 
Initial Shares” has the meaning assigned in the recitals.
 
Investor” means any of: (a) AQN, so long as AQN and its Affiliates in the aggregate hold at least ten per cent (10%) of the total voting rights attached to all AY Voting Securities; and (b) AAGES, so long as AAGES and its Affiliates in the aggregate hold at least ten per cent (10%) of the total voting rights attached to all AY Voting Securities, and “Investors” means both of them.
 
Investor Nominee” means, with respect to any Investor, a Director appointed by such Investor or by any Affiliate of such Investor.
 
Investor Party” means an Investor and each of its Affiliates (which, for the avoidance of doubt, shall not include the Company or any of its Subsidiaries), and “Investor Parties” means each Investor and each of their Affiliates taken together.
 
Investor Party Designees” means the individuals so named on Schedule 2.1.
 
Investor Party Representative” has the meaning set forth in Clause 7.1.
 
Investor Shareholder” means an Investor or its Affiliate which holds AY Voting Securities.
 
Option Shares” has the meaning assigned in the recitals.
 
Party” has the meaning assigned in the recitals.
 
Percentage Interest” means, with respect to any class or classes of AY Voting Securities, and as to any Investor Party as of any date of determination, the quotient (represented as a percentage) obtained by dividing (a) the number of voting rights attached to the AY Voting Securities then held by such Investor Party and its Affiliates by (b) the number of total voting rights attached to all AY Voting Securities then outstanding.
 
Person” means any natural person, firm, trust, partnership, limited partnership, company or corporation (with or without share capital), joint venture, sole proprietorship, governmental authority or other legal entity of any kind.
 
Persons Acting In Concert” means, in relation to a Person, the Persons which actively cooperate through the acquisition by them of shares in that Person or a holding company of that Person, pursuant to an agreement or understanding (whether formal or informal), with a view to obtaining or consolidating Control of that Person.
 
Relevant Portion” means the individuals so named on Clause 4.2(b).
 
Required Funding Amount” has the meaning set forth in Clause 3.6.
 
Resigning Directors” means the individuals so named on Schedule 2.1.
 
Shares” means ordinary shares in the share capital of the Company.
 
Standstill Percentage” means:
 
(a)           if and so long as AAGES is an Affiliate of AQN or the Agreement terminates with respect to either AQN or AAGES, forty-one and a half per cent (41.5%); or
 
4

(b)           if and so long as AAGES is not an Affiliate of AQN and each of them remains an Investor hereunder (by virtue of each, together with its respective Affiliates, then holding in aggregate at least ten per cent (10%) of the total voting rights attached to then outstanding AY Voting Securities):
 
(i)            unless the notice referred to in paragraph (ii) below of this definition is delivered to the Company, such fraction of forty-one and a half per cent (41.5%) which is (A) the result of forty-one and a half per cent (41.5%) being divided up between AQN and AAGES in the proportion that the number of voting rights attached to the AY Voting Securities held by an Investor Party and its Affiliates immediately following the time AAGES ceased to be an Affiliate of AQN bears to the total number of voting rights attached to the AY Voting Securities held by all Investor Parties at such time and (B) applicable to AQN or AAGES respectively; or
 
(ii)           such fraction of forty-one and a half per cent (41.5%) which is (A) the result of forty-one and a half per cent (41.5%) being divided up between AQN and AAGES as may be agreed in writing at any time, on one or more occasions, between AQN and AAGES, with written notice of the foregoing delivered promptly by the Investors to the Company and (B) applicable to AQN or AAGES respectively,
 
and for the avoidance of doubt, in no case shall the aggregate Standstill Percentage of the Investors exceed forty-one and a half per cent (41.5%) except by prior written agreement of the Company.
 
Standstill Period” means, with respect to any Investor and its Affiliates, the period commencing on the Effective Date and ending the earliest of (a) delivery of a notice by such Investor under Clause 2.1(d), 2.2(b), or 3.5(a), (b) termination of this Agreement pursuant to Clause 8.2(a), and (c) termination of the rights and obligations under this Agreement as between the Company and such Investor and its Affiliates pursuant to Clause 8.2(b).
 
Subsidiary” means, with respect to any Person, an Affiliate thereof that is Controlled by such Person.
 
Trading Period” has the meaning set forth in Clause 3.4(a).
 
1.2          Gender and Number.  Words importing the singular number only shall include the plural and vice versa, words importing the masculine gender shall include the feminine gender and words importing individuals shall include all Persons and vice versa.
 
1.3          Subdivisions and Headings.  The division of this Agreement into Articles, Clauses, Schedules and other subdivisions and the inclusion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.  The headings in this Agreement are not intended to be full or precise descriptions of the text to which they refer.  Unless something in the subject matter or context is inconsistent therewith, references herein to an Article, Clause or Schedule are to the applicable article, clause or schedule of this Agreement.
 
1.4          Words of Inclusion.  Wherever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes” or “including” shall not be considered to set forth an exhaustive list.
 
1.5          Joint and Several Liability.  Any provision of this Agreement which is expressed to bind an Investor or any Affiliate thereof shall bind such Investor and all of its Affiliates jointly and each of them severally.
 
1.6          Documents. References to any document (including this Agreement) or to a provision in a document, shall be construed as a reference to such document or provision as amended, supplemented, modified, restated or novated from time to time.
 
5

1.7          Legal Terms. References to any English legal term shall, in respect of any jurisdiction other than England, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction.
 
1.8          Affiliates. Where any provision of this Agreement is expressed to or purports to impose any obligation on any Affiliate of any Investor, then such provision shall be construed as requiring such Investor to procure that its Affiliate complies with the relevant obligation. Where any provision of this Agreement is expressed to or purports to confer any right on any Affiliate of any Investor, then such right shall be enforceable by such Investor on the same basis as if such right were expressed to be conferred on such Investor.
 
1.9          Effectiveness of Agreement.  This Agreement shall be valid and binding on the Parties upon execution and delivery of this Agreement by each Party; provided, however, that the provisions of this Agreement shall be effective only upon the Effective Date.  In the event that the Effective Date has not occurred on or prior to 16 March 2018 (or such later date as may be agreed in writing by the Parties), this Agreement shall be terminated automatically without action by any Party and shall be void and of no effect, without liability to any Party.
 
ARTICLE 2
GOVERNANCE; DIVIDENDS
 
2.1          Appointment of Directors.
 
(a)           Upon delivery to the Company of the resignation of a Resigning Director or the effectiveness of any removal of such Resigning Director from the AY Board, the Investor Shareholder that then holds at least twenty-five per cent (25%) of the Shares shall appoint the Investor Party Designee set forth opposite such Resigning Director’s name on Schedule 2.1 to fill the vacancy created by the resignation of such Resigning Director.
 
(b)           From and after the Effective Date, if and to the extent provided in the AY Articles in effect from time to time, each Investor Shareholder that then holds AY Voting Securities shall have the right to appoint to the AY Board the maximum number of Directors that corresponds to such Investor Shareholder’s Percentage Interest of the total voting rights attached to the then outstanding AY Voting Securities; provided, however, that the maximum number of Directors that any and all Investor Parties, in the aggregate, shall have the right to appoint to the AY Board pursuant to the AY Articles shall be limited in any event to the lesser of (i) such number of Directors as corresponds to forty-one and a half per cent (41.5%) of AY Voting Securities and (ii) no more than fifty per cent (50%) of the AY Board less one, provided, however, that in each case where fifty per cent (50%) of the AY Board is not a whole number, such number shall be rounded up to the next nearest whole number.
 
(c)           Subject to applicable law, the AY Articles and such conflict of interest policies and rules as may be adopted by the AY Board with respect to matters in which a conflict of interest reasonably may be determined to exist:
 
(i)            all information provided to any Director by or on behalf of the Company shall be disseminated among all Directors in a non-discriminatory manner, without prejudice to the Investor Nominees, and each Investor Nominee shall be entitled to receive all information regarding the Company and its Subsidiaries that is otherwise available to other Directors;
 
(ii)           at all times during which an Investor and/or its Affiliates hold in aggregate twenty-five per cent (25%) or more of the AY Voting Securities and such Investor or its Affiliate has appointed (and continues to have the right to appoint) one or more Directors, at least one Investor Nominee of such Investor shall be given an opportunity to be, and, if he/she accepts such opportunity, shall be, elected to any committee of Directors (except for the audit committee and related party transaction committee); provided that ownership of less than twenty-five per cent (25%) of the AY Voting Securities shall not preclude any Investor Nominee from serving on any committee of Directors, and any such Investor Nominees shall be given the same consideration in relation to serving on any such committee as is given to Directors generally;
 
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(iii)          no action of the AY Board shall be taken by Directors’ written resolution unless all of the Investor Nominees who would have been entitled to vote on such resolution if it had been proposed at a meeting of the Directors have: (A) signed one or more copies of it; or (B) otherwise indicated their agreement to it in writing; and
 
(iv)          if, for any reason, and so long as an Investor or its Affiliate has the right to appoint one or more Directors but no such Director is then serving on the AY Board, such Investor shall be entitled to designate one individual to attend all meetings of the AY Board which a Director would have been entitled to vote at if he/she had been appointed by such Investor and of any committee thereof (except for the audit committee and related party transaction committee) as an observer and receive copies of all materials provided to Directors with respect to any such meeting or any written consent or resolution in lieu of such a meeting, further provided that such observer signs customary confidentiality undertakings and complies with the Company’s policies and procedures as and in the manner the Company may request acting reasonably.
 
(d)           Subject to Clause 2.1(e), any Investor shall have the right to terminate the obligations and restrictions applicable to such Investor and its Affiliates under this Agreement, without liability to any Party, immediately upon written notice to other Parties, if at any time:
 
(i)            the AY Articles are amended in a manner that adversely affects the rights of such Investor (or any Affiliate thereof) to appoint Directors, as such rights exist under the AY Articles as of the Effective Date, unless such Investor or any Affiliate thereof voted in favor of such amendment; or
 
(ii)           except to the extent necessary to comply with applicable law or any order, decree, decision or judgment of any court, tribunal, arbitrator, governmental agency or regulatory body, or where the AY Articles are amended upon a valid proposal made by a shareholder of the Company, the Company or the AY Board takes any action in violation or contravention of the rights of such Investor (or any Affiliate thereof) specified in Clause 2.1(c), provided that such Investor gives notice to the Company reasonably requiring it to remedy such violation or contravention and the Company or AY Board fails to remedy such violation or contravention within twenty (20) Business Days of the Company receiving such notice.
 
(e)           Termination of the obligations and restrictions applicable to an Investor and its Affiliates in accordance with Clause 2.1(d) shall not release such Investor and its Affiliates from any liability which at the time of termination has already accrued to another Party or which thereafter may accrue in respect of any act or omission prior to such termination.
 
2.2          Dividends.
 
(a)           The AY Board by resolution adopted in January 2018 confirmed that it is the objective of the Company to pay dividends on the Shares in an amount equal to eighty per cent (80%) of CAFD (the “80% Pay-Out Ratio”), and prior to the Effective Date has not rescinded, replaced or otherwise modified such resolution.
 
(b)          Subject to Clause 2.2(c), any Investor shall have the right to terminate the obligations and restrictions applicable to such Investor and its Affiliates under this Agreement, without liability to any Party, immediately upon written notice to the Company, if at any time:
 
(i)            the AY Board confirms by resolution, public announcement or otherwise, a pay-out ratio objective that is lower than the 80% Pay-Out Ratio; or
 
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(ii)           the AY Board does not confirm any pay-out ratio objective, as a percentage of CAFD, by resolution at least once during any period of more than fourteen (14) consecutive months; or
 
(iii)          the Company or the AY Board, other than reasonably in accordance with its ordinary course practices with respect to stated dividends or reasonably in accordance with principles of prudent management with respect to the Company’s existing business, takes or omits to take any action that is reasonably within its control, and such action or omission prevents the Company from lawfully declaring dividends substantially in accordance with the 80% Pay-Out Ratio, and the Company or the AY Board, as applicable, fails to remedy such occurrence within sixty (60) days following receipt by the Company of written notice thereof from an Investor.
 
(c)           Termination of the obligations and restrictions applicable to an Investor and its Affiliates in accordance with Clause 2.2(b) shall not release such Investor Parties from any liability which at the time of termination has already accrued to another Party or which thereafter may accrue in respect of any act or omission prior to such termination.
 
ARTICLE 3
CERTAIN ACQUISITIONS OF COMPANY SECURITIES
 
3.1          Acknowledgement of Company Funding Rights.
 
(a)           The Parties acknowledge that the Company may from time to time raise funding by way of issue and allotment of Equity Securities or loan notes, commercial borrowing arrangements or other borrowing or financing arrangements, as, and on such terms and conditions as, the Company may determine at its sole discretion, subject to applicable law, the AY Articles, and this Agreement.
 
(b)           For the avoidance of doubt, the foregoing does not constitute consent to any matter by any Party (or of any of its Affiliates) as a shareholder of the Company or otherwise.
 
3.2          Preemptive Rights.
 
(a)           Subject to applicable law and the AY Articles, and subject to Clause 3.2(b) and Article 4, if the Company proposes allotment and issue of Equity Securities:
 
(i)            AQN and/or any Affiliate thereof designated in writing by AQN (collectively, in such proportions as determined by AQN) shall have and are hereby granted the right (but not the obligation) to subscribe in cash, in each case at the per Equity Security subscription price determined pursuant to Clause 3.4 (subject to the conditions set out at Clause 3.4), for Equity Securities of the Company in the amount of up to one hundred per cent (100%) of any proposed allotment or issue of Equity Securities of the Company (or applicable portion thereof), if the purpose of such allotment or issue (or any portion thereof) is to fund the acquisition of an AQN ROFO Interest (in accordance with the terms and conditions of the AQN ROFO Agreement) by the Company or any of its Subsidiaries;
 
(ii)           AAGES and/or any Affiliate thereof designated in writing by AAGES (collectively, in such proportions as determined by AAGES) shall have and are hereby granted the right (but not the obligation) to subscribe in cash, in each case at the per Equity Security subscription price determined pursuant to Clause 3.4 (subject to the conditions set out at Clause 3.4), for:
 
(A)           Equity Securities of the Company in the amount of up to one hundred per cent (100%) of any proposed allotment or issue of Equity Securities of the Company (or applicable portion thereof), if the purpose of such allotment or issue (or any portion thereof) is to fund the acquisition of an AAGES ROFO Interest by the Company or any of its Subsidiaries; and/or
 
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(B)           Equity Securities of the Company in the amount of up to sixty‑six per cent (66%) of any proposed allotment or issue of Equity Securities of the Company (or applicable portion thereof) if the purpose of such allotment or issue (or any portion thereof) is to fund the acquisition of an ABG ROFO Interest by the Company or any of its Subsidiaries; and
 
(iii)          in relation to any proposed allotment or issue of Equity Securities of the Company or portion thereof not described in Clause 3.2(a)(i) or Clause 3.2(a)(ii), any Investor Shareholder and/or any Affiliate thereof designated in writing by the Investor whose Affiliate such Investor Shareholder is (collectively, in such proportions or other matter as determined by such Investor) shall have and are hereby granted the right (but not the obligation) to subscribe in cash, in each case at the per Equity Security subscription price determined pursuant to Clause 3.4(b), for Equity Securities of the Company in the amount equal to the total amount of such allotment or issue multiplied by such Investor Party’s Percentage Interest.
 
(b)           Clause 3.2(a) shall not apply to:
 
(i)            any allotment or issue of Equity Securities proposed to be made by the Company to directors, an employee or proposed employee;
 
(ii)           any allotment or issue of Equity Securities proposed to be made by the Company to direct payment of a dividend in whole or in part (“distribution in specie”); or,
 
(iii)          any allotment or issue of Equity Securities which are to be issued and allotted in connection with any merger, consolidation or amalgamation of the Company which has been approved by the shareholders of the Company.
 
(c)            The rights of the Investors and their Affiliates to subscribe for and purchase Equity Securities of the Company pursuant to Clause 3.2(a), and the limitations on such rights specified in Clause 3.2(a), apply to such Investors and their Affiliates collectively, such that:
 
(i)            if and for so long as AAGES is an Affiliate of AQN, any one or more of such Investors may exercise the collective rights of the Investor Parties in full, but the total Equity Securities of the Company to be subscribed and purchased by all of the Investor Parties pursuant to the exercise of such rights shall not in the aggregate exceed the limitations specified in Clause 3.2(a); or
 
(ii)           if and for so long as AAGES is not an Affiliate of AQN, the relevant Investor may exercise the rights of such Investor and its Affiliates, but the total Equity Securities of the Company to be subscribed and purchased by such Investor and its Affiliates pursuant to the exercise of such rights shall not in the aggregate exceed the limitations specified in Clause 3.2(a) with respect to such Investor.
 
(d)           For the avoidance of doubt, but subject always to the Investor Parties’ rights under Clause 3.2(a), in connection with each proposed allotment or issue of Equity Securities by the Company, the AY Board may decide, in its sole discretion, whether to offer the Investor Parties or any of them the ability to subscribe for and purchase more than (i) their collective Percentage Interest of the proposed allotment, if AAGES is an Affiliate of AQN or (ii) AQN’s or AAGES’s Percentage Interest of the proposed allotment, if AAGES is not an Affiliate of AQN.
 
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3.3          Notice Requirements.
 
(a)           To the extent permitted by applicable law, the Company shall give the applicable Investors specified in Clause 3.2(a) written notice of any proposed offering of Equity Securities by the Company no less than twenty (20) calendar days prior to the earlier of the funding thereof and the execution of any subscription agreement with respect thereto, which notice shall include, to the extent available and applicable:
 
(i)            in the case of a registered public offering, a draft copy of the prospectus included in the registration statement or similar offering documents to be filed in respect of such offering or, in the case of an offering exempt from registration, the draft private placement memorandum or similar offering documents in respect of such offering;
 
(ii)           a description of the anticipated amount of Equity Securities, the price thereof, and all other material terms upon which the Company offers to sell such Equity Securities; and
 
(iii)          the number of Equity Securities that such Investor is entitled to purchase pursuant to Clause 3.2(a).
 
(b)           An Investor (or its Affiliate designee) shall give the Company written notice of its election to subscribe for any such Equity Securities, and the amount thereof, within ten (10) calendar days after the date of the Investor’s receipt of written notice of such proposed offering, including the price thereof, pursuant to Clause 3.3(a).
 
3.4          Subscription Price.
 
(a)           If any Investor or its Affiliate designee notifies the Company that such Investor and/or any of its Affiliates in the aggregate intend to subscribe pursuant to Clause 3.2(a)(i) or Clause 3.2(a)(ii) (as applicable) for fifty per cent (50%) or more of an offering of Equity Securities that are then listed and traded on a stock exchange, the price per Equity Security for all Persons that participate in such offering (including such Investor and its Affiliates) will be equal to ninety-seven per cent (97%) of the U.S. dollar volume-weighted average Closing Price per Equity Security on the Applicable Exchange over the twenty (20) Applicable Exchange trading days immediately preceding the date of such Investor’s receipt of notice of such proposed offering (the “Trading Period”). If a Closing Price, as derived from the website of the Applicable Exchange or Bloomberg (as applicable) is not in U.S. dollars, the Closing Price shall be converted into U.S. dollars at the exchange rate displayed on the website of the Applicable Exchange (or, if not available on such website, from Bloomberg) as at close of business on the last day of the Trading Period (or if such rate is not displayed on such day, on the immediately preceding day on which such rate is displayed).
 
(b)           Other than as set out at Clause 3.4(a), the price per Equity Security for all Persons that participate in such offering, including such Investor and its Affiliates, will be determined by the Company at its absolute discretion and will be the same for all such Persons.
 
3.5          Authorizing Action.
 
(a)           The Parties acknowledge that the currently effective disapplication to the Company of pre-emption rights under Section 561(1) of the Companies Act 2006 is limited in amount and time and that, under the AY Articles and applicable law, the rights of the Investors under Clauses 3.2(a)(i) and 3.2(a)(ii) are subject to such limitations.  Notwithstanding the foregoing, and subject to Article 4, if at any time the Company allots or issues Equity Securities and, as a result of limitations imposed by applicable law or the AY Articles (including as a result of any failure to have disapplied pre-emption rights during such time period and sufficient in amount), any Investor or Affiliate thereof is unable to fully exercise the rights under Clauses 3.2(a)(i) and 3.2(a)(ii) that such Investor or Affiliate thereof would be entitled to exercise in the absence of such limitations, such Investor shall have the right to terminate the obligations and restrictions applicable to such Investor and its Affiliates under this Agreement, without liability to any Party, immediately upon written notice to the Company.
 
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(b)           Termination pursuant to Clause 3.5(a) of the obligations and restrictions applicable to an Investor and its Affiliates shall not release such Investor Parties from any liability which at the time of termination has already accrued to another Party or which thereafter may accrue in respect of any act or omission prior to such termination.
 
3.6          Initial Funding Commitment.
 
Subject to Clause 4.2(b), if:
 
(a)           AAGES is an Affiliate of AQN, then, subject to the approval of the board of directors of AQN to provide such funding to AAGES, AAGES hereby undertakes to provide (itself or through a Subsidiary), or
 
(b)           AAGES is not an Affiliate of AQN, then, subject to the approval of the board of directors of AQN to provide such funding to the Company, AQN hereby undertakes to provide (itself or through a Subsidiary),
 
and the Company undertakes to accept, funding required by the Company for the acquisition of assets and/or interests therein by the Company or its Subsidiaries in one or more transactions during 2018 and 2019 (the “Required Funding Amount”) up to the Initial Funding Commitment Amount (the “Initial Funding Commitment”) by way of subscription for Shares (or other Equity Securities agreed by AAGES or AQN, as applicable) of the Company in accordance with the provisions of Clause 3.2(a), including the obligation to subscribe for any portion of the offered Shares or other agreed Equity Securities that have not been accepted by any other shareholder of the Company and participation in each round of offering of Shares or other agreed Equity Securities until the amount funded by AAGES or AQN, as applicable (or their Subsidiaries) reaches the lesser of (A) the Required Funding Amount and (B) the Initial Funding Commitment Amount.
 
ARTICLE 4
STANDSTILL
 
4.1          Standstill.
 
(a)           During the Standstill Period, except as provided in Clause 4.2, no Investor shall, and each Investor shall procure that no Affiliate of such Investor shall, directly or indirectly and either alone or together, by any manner acquire or seek to acquire (or agree to, offer to, accept an option or offer to, or enter into any discussions or agreements to, acquire), whether by purchase, contract or otherwise, any ownership interests or voting rights (or rights or options to acquire such interests or rights) in any AY Voting Securities if the acquisition of the number of the voting rights attached to such AY Voting Securities by such Investor and/or any of its Affiliates, directly or indirectly, when added to the number of the voting rights attached to all AY Voting Securities then held by such Investor and/or its Affiliates, in the aggregate, would result in such Investor and/or its Affiliates holding, directly or indirectly, in the aggregate more than the Standstill Percentage of the total voting rights attached to all then outstanding AY Voting Securities.
 
(b)           Notwithstanding the foregoing, any Investor Party may at any time acquire (and agree to, offer to, accept an option or offer to, or enter into any discussions or agreements to, acquire), whether by purchase, contract or otherwise, from any other Investor Party any ownership interests or voting rights (or rights or options to acquire such interests or rights) in any AY Voting Securities, so long as (i) the aggregate Percentage Interest of all Investor Parties, collectively, does not exceed forty-one and a half per cent (41.5%), except as provided in Clause 4.2, and (ii) promptly following such acquisition, the Investors deliver to the Company written notice of any reallocation between them of the aggregate Standstill Percentage of forty-one and a half per cent (41.5%)  as may be required such that no Investor Party is in violation of Clause 4.1(a) as a result of such acquisition.
 
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(c)           In no case shall the existence of any option or agreement to acquire all or any portion of the Option Shares, or any discussion of any of the foregoing, constitute a violation of this Agreement.