SALE AND PURCHASE AGREEMENT ATLANTICA YIELD PLC
Exhibit 99.2
ALGONQUIN (AY HOLDCO) B.V.
AND
AAGES (AY HOLDINGS) B.V.
ATLANTICA YIELD PLC
CONTENTS
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Clause
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Page
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1.
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Interpretation
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2
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2.
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Sale and Purchase
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4
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3.
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Consideration
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4
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4.
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Completion
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5 |
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5.
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Assignment of Certain Rights under ACIL Luxco Option
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5
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6.
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Termination
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5
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7.
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Miscellaneous
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6
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8.
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Notices
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9
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9.
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Governing Law
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10
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10.
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Dispute Resolution
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10
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-1-
THIS AGREEMENT is made on 26 November 2018
BETWEEN:
| (1) |
Algonquin (AY Holdco) 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 70715092 (the “Seller”); and
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| (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”).
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RECITALS:
| (A) |
Pursuant to that certain Amended and Restated Option Agreement (the “ACIL Luxco Option”)
dated 19 November 2018, between ACIL Luxco 1, S.A. as seller (“ACIL Luxco”), Algonquin Power & Utilities Corp. as purchaser (“Algonquin”), and Abengoa, S.A. as seller’s guarantor, ACIL Luxco agreed to sell and transfer to Algonquin all of the remaining shares of the Company
held by ACIL Luxco (being 16,503,348 shares and representing approximately 16.47% of the issued share capital of the Company) (the “Shares”).
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| (B) |
Pursuant to that certain Sale and Purchase Agreement (the “AQN On-Sale SPA”)
dated 26 November 2018, between Algonquin and Seller, Algonquin sold and transferred the Shares to Seller, and Algonquin assigned all rights (but not, for the avoidance of doubt, its obligations) of Algonquin under the ACIL Luxco
Option (other than the right to acquire the Shares from ACIL Luxco) to AY Holdco.
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| (C) |
The Seller has agreed to sell the Shares to the Purchaser, conditional on ACIL Luxco Option Completion occurring.
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THE PARTIES AGREE as follows:
| 1. |
INTERPRETATION
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| 1.1 |
In this Agreement:
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“ACIL Luxco” has the meaning given to that
term in Recital (A);
“ACIL Luxco Option” has the meaning given to
that term in Recital (A);
“ACIL Luxco Option Completion” means
“Completion” as defined in Schedule 6 to the ACIL Luxco Option;
“ACIL Luxco Option Base Consideration” means
USD $344,919,973.20;
“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, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
“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” means “Encumbrance” as defined
in Schedule 6 to the ACIL Luxco Option;
“Full Title Guarantee” means “Full Title
Guarantee” as defined in Schedule 6 to the ACIL Luxco Option;
“Group” has the meaning given to that term in
Schedule 6 to the ACIL Luxco Option;
“Ordinary Shares Issue Price” has the meaning
given to that term in Clause 3.1;
“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;
“Share P1 Issue Price” has the meaning given
to that term in Clause 3.1; andd
“Shares” has the meaning given to that term
in Recital (A).
| 1.2 |
In this Agreement, except where the context otherwise requires:
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| 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;
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| 1.2.2 |
words in the singular shall include the plural and vice versa;
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-3-
| 1.2.3 |
references to one gender include other genders;
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| 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;
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| 1.2.5 |
a reference to a Clause shall be a reference to a Clause of this Agreement, unless otherwise specified;
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| 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;
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| 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;
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| 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;
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| 1.2.9 |
a reference to “includes” or “including” shall mean “includes without limitation” or “including without limitation”;
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| 1.2.10 |
the headings in this Agreement are for convenience only and shall not affect its interpretation; and
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| 1.2.11 |
references to this Agreement include this Agreement as amended or supplemented in accordance with its terms.
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| 2. |
SALE AND PURCHASE
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| 2.1 |
Conditional on ACIL Luxco Option Completion occurring, the Seller shall sell and the Purchaser shall purchase the Shares.
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| 3. |
CONSIDERATION
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| 3.1 |
The consideration for the Seller’s sale of the Shares to Purchaser shall be (a) ten thousand (10,000) ordinary shares in Purchaser, to be issued at USD $1 par value each,
for a combined value of USD $10,000 (“Ordinary Shares Issue Price”), and (b) one (1) P1 series preferred share in Purchaser, to be issued at USD
$1 par value (“Share P1 Issue Price”), with an amount equal to ACIL Luxco Option Base Consideration less the Ordinary Shares Issue Price and less the Share P1 Issue Price credited toward the
share P1 share premium in Purchaser (the “Consideration”).
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-4-
| 3.2 |
The Consideration is intended to be fair market value for the Shares, and the determination has been made using valuation principles applied consistently and in good
faith. If, however, (a) any governmental or regulatory authority of competent authority (i) alleges that such determination of the fair market value does not represent the fair market value of the Shares as of Completion, (ii)
proposes to make an assessment of tax on the basis that any gift, benefit or advantage is or has been conferred on any person by reason of such determination of the fair market value, or (iii) takes any other steps or makes any other
rulings of general application or specific to one of the parties which may be prejudicial to any of the parties or (b) if the parties determine, acting in good faith, within thirty (30) days of the date hereof, that there has been a
material miscalculation in their original determination of such determination of the fair market value, then in such event, the parties may, after consultation with such governmental or regulatory authority or by themselves, acting in
good faith, agree to adjust such determination of the fair market value to such other amount as may be determined by the parties acting in good faith so that such determination of the fair market value shall represent fair market
value. To the extent permissible, such adjustment shall have been deemed to have been made as of the Completion; otherwise any such adjustments shall be made in the then-current fiscal period. To the extent any adjustment is made
to the determination of such fair market value as at the Completion, the “Share Premium” attributable to shares P1 in the Purchaser shall also be adjusted accordingly, and the “Share Premium” of the share P1 of the Purchaser issued to
the Seller shall also be adjusted accordingly.
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| 4. |
COMPLETION
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| 4.1 |
Completion shall take place immediately following ACIL Luxco Option Completion.
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| 4.2 |
At Completion the Seller shall direct, or procure Algonquin to 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.
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| 4.3 |
At Completion or such later time as the Seller may agree, the Purchaser shall pay or deliver the Consideration to the Seller or as the Seller directs in writing.
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| 5. |
ASSIGNMENT OF CERTAIN RIGHTS UNDER ACIL LUXCO OPTION
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| 5.1 |
The Seller hereby assigns to the Purchaser all rights of the Seller under the ACIL Luxco Option and the AQN On-Sale SPA, and the Seller agrees to notify ACIL Luxco and
Algonquin of such assignment.
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| 6. |
TERMINATION
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| 6.1 |
The termination of this Agreement shall not affect:
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| 6.1.1 |
any rights or obligations which have accrued or become due prior to the date of termination; and
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| 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).
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-5-
| 7. |
MISCELLANEOUS
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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.
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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 Option and any other agreement or arrangement contemplated by this Agreement and:
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| 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
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| 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),
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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.
| 7.3 |
The consent referred to in Clause 7.2 shall not be required for disclosure by a Party of any Confidential Information:
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| 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;
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| 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;
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| 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;
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| 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;
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| 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;
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| 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
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| 7.3.7 |
to the other Party to this Agreement or pursuant to its terms.
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| 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.
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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.
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Assignment
| 7.6 |
No Party may assign its rights under this Agreement.
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Third party rights
| 7.7 |
No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ by a person who is not a Party to this Agreement.
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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.
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| 7.9 |
Each Party confirms on behalf of itself and its group undertakings that:
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-7-
| 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
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| 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).
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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.
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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.
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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.
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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.
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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.
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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.
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-8-
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.
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| 8. |
NOTICES
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| 8.1 |
A notice (including any approval, consent or other communication) in connection with this Agreement and the documents referred to in it:
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| 8.1.1 |
must be in writing;
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| 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.
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| 8.1.3 |
The relevant details of each Party at the date of this Agreement are:
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Seller
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Address:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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1077 ZX Amsterdam
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The Netherlands
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Facsimile:
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0031 88 560 9960
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Attention:
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Bart van Dijk
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Purchaser
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Address:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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1077 ZX Amsterdam
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The Netherlands
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Facsimile:
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0031 88 560 9960
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Attention:
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Bart van Dijk
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| 8.1.4 |
must not be sent by electronic mail.
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-9-
| 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.
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| 8.3 |
Subject to Clause 8.4, a notice is deemed to be received:
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| 8.3.1 |
in the case of a notice left at the address of the addressee, upon delivery at that address;
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| 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
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| 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.
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| 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.
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| 9. |
GOVERNING LAW
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| 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.
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| 10. |
DISPUTE RESOLUTION
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| 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).
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| 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.
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| 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.
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| 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.
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| 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 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).
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[Signature page follows]
-10-
IN WITNESS of which the Parties have executed this Agreement on the date first mentioned above.
EXECUTED by the parties:
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Signed by a
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)
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duly authorised
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)
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representative of
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)
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Algonquin (AY
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)
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Holdco) B.V.
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) /s/ ▇.▇.▇. ▇▇▇▇▇
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Name: ▇.▇.▇. ▇▇▇▇▇
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Title: Attorney-in fact
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Signed by a
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)
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duly authorised
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)
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representative of
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)
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AAGES (AY
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)
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Holdings) B.V.
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) /s/ B. van Dijk
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Name: B. van Dijk
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Title: Attorney-in-fact
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[Signature page to On-Sale SPA – Plan B (AY Holdco to AY Holdings)]