* |
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
|
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
0
|
|
8
|
SHARED VOTING POWER
41,557,663
|
||
9
|
SOLE DISPOSITIVE POWER
0
|
||
10
|
SHARED DISPOSITIVE POWER
41,557,663
|
||
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
|
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
41,557,663
|
||
9
|
SOLE DISPOSITIVE POWER
0
|
||
10
|
SHARED DISPOSITIVE POWER
41,557,663
|
||
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
|
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
41,557,663
|
||
9
|
SOLE DISPOSITIVE POWER
0
|
||
10
|
SHARED DISPOSITIVE POWER
41,557,663
|
||
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
|
Exhibit No.
|
Description
|
Amended and Restated Option Agreement amending the 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.
|
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/ Ryan Robert Farquhar
|
|
Name: Ryan Robert Farquhar
|
||
Title: Managing Director A
|
||
By:
|
/s/ Laurens Klein
|
|
Name: Laurens Klein
|
||
Title: Managing Director B
|
||
AAGES (AY HOLDINGS) B.V.
|
||
By:
|
/s/ Ryan Robert Farquhar
|
|
Name: Ryan Robert Farquhar
|
||
Title: Managing Director A
|
||
By:
|
/s/ Laurens Klein
|
|
Name: Laurens Klein
|
||
Title: Managing Director B
|
AMENDED AND RESTATED OPTION
AGREEMENT
ATLANTICA YIELD PLC
|
Clause
|
Headings
|
Page
|
1.
|
INTERPRETATION
|
1
|
2.
|
OPTION; SALE AND PURCHASE
|
2
|
3.
|
CONSIDERATION
|
3
|
4.
|
CONDITIONS
|
3
|
5.
|
OPTION TERM AND INTERIM PERIOD COVENANTS
|
6
|
6.
|
TAXATION
|
7
|
7.
|
COMPLETION
|
7
|
8.
|
SELLER WARRANTIES AND UNDERTAKINGS
|
8
|
9.
|
SELLER LIMITATIONS ON LIABILITY
|
8
|
10.
|
PURCHASER WARRANTIES AND UNDERTAKINGS
|
10
|
11.
|
TERMINATION
|
10
|
12.
|
GUARANTEE
|
11
|
13.
|
MISCELLANEOUS
|
11
|
14.
|
NOTICES
|
15
|
15.
|
GOVERNING LAW
|
16
|
16.
|
DISPUTE RESOLUTION
|
16
|
(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”).
|
(A) |
The Seller, the Purchaser and the Seller’s Guarantor are parties to that certain Sale and Purchase Agreement dated as of 1 November 2017, as amended (the “SPA”), pursuant to which the Seller on the SPA Completion Date sold and transferred to the Purchaser 25,054,315 of the issued ordinary shares
of US$0.10 of the Company, representing 25% of the Company’s issued share capital.
|
(B) |
The Seller granted 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 (being
16,503,348 shares and representing approximately 16.47% of the issued share capital of the Company) (the “Remaining Shares”), upon the
terms and subject to the conditions set out in that certain Option and Right of First Refusal Agreement dated as of 1 November 2017, among Seller, Purchaser, and Seller’s Guarantor (the “Original Option Agreement”).
|
(C) |
The Seller, Seller’s Guarantor and Purchaser have agreed to amend and restate the Original Option Agreement in its entirety, effective as of the Effective Date,
as set forth herein.
|
(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.
|
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. |
OPTION; SALE AND PURCHASE
|
2.1 |
Pursuant to the terms and subject to the conditions of this Agreement, Seller hereby grants to Purchaser an irrevocable option (the “Option”) to purchase, at a price per Additional Share equal to the Option
Exercise Price and on the terms and conditions set forth herein, the following number of Remaining Shares, as specified by Purchaser in the Exercise Notice (the number of shares so elected by Purchaser, the “Additional Shares”):
|
2.1.1 |
all of the Remaining Shares; or
|
2.1.2 |
that number of the Remaining Shares (rounded up to the nearest whole number) representing as of the Completion Date 12.5%, and not less than 12.5%, of the issued
and outstanding ordinary shares of US$0.10 of the Company.
|
2.2 |
The term of the Option (the “Option Term”) shall be the period
commencing on 1 November 2017 and continuing until (and including) 15 September 2018.
|
2.3 |
The Option may be exercised by Purchaser at any date during the Option Term by providing written notice of exercise (an “Exercise Notice”) that specifies the Additional Shares.
|
2.4 |
Subject to Clause 2.5, the purchase price per Additional Share (the “Option
Exercise Price”) payable upon Completion following and as a result of the exercise of the Option shall be equal to one hundred percent (100%) of the volume weighted trading price for Company shares on the NASDAQ exchange for
the ten (10) trading day period (the “VWAP Period”) ending three (3) trading days before (and excluding) the Exercise Date (the “AY Market Price”); provided, however, that:
|
2.4.1 |
If the Exercise Date is on or before 30 April 2018, the maximum price to be paid by Purchaser for each Additional Share shall be US$22.00 and the minimum price to
be paid by Purchaser for each Additional Share shall be US$20.90; and
|
2.4.2 |
If the Exercise Date is 1 May 2018 or later, the maximum price to be paid by Purchaser for each Additional Share shall be US$23.00 and the minimum price to be
paid by Purchaser for each Additional Share shall be US$22.00.
|
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.
|
2.6 |
The Purchaser, the Seller and Abengoa acknowledge and agree that Purchaser validly exercised the Option with respect to all Remaining Shares by delivery of an
Exercise Notice on 17 April 2018 (the “Exercise Date”) with respect to all of the Remaining Shares, and that the Option Exercise Price is
US$20.90 per Additional Share, as may be adjusted pursuant to Clause 2.5.
|
2.7 |
The Seller is the legal and beneficial owner of the Remaining Shares and, in the event of the valid exercise by Purchaser of the Option, shall sell and the
Purchaser shall purchase the Additional 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
|
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 |
First, on behalf of the Seller, to the DOE (or any such other company indicated by the DOE as agreed between the Seller and the DOE), any and all amounts required
to be paid to the DOE and such Persons as agreed to the Seller’s reasonable satisfaction, in connection with obtaining the consents referenced in Clauses
4.1.1 and 4.1.2;
|
3.1.2 |
Second, the Holdback Amount shall be retained by Purchaser in accordance with Clause 4.9; and
|
3.1.3 |
Lastly, the outstanding balance of the Consideration (after deducting the amounts set out in Clause 3.1.1 and Clause 3.1.2 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).
|
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 owed by
the Seller to the Purchaser pursuant to a Claim or alleged Claim.
|
4. |
CONDITIONS
|
4.1 |
Completion is conditional on the following Conditions being satisfied, 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 enter into this Agreement or to implement the transaction
set out in this Agreement including, without limitation, to release any and all Encumbrances over the Additional Shares granted in favour of such financing parties or other Persons.
|
4.1.4 |
The Seller, Abengoa and any Group Company receiving any and all other consents, approvals or waivers of any governmental authority or other third party that are
required to be obtained by Seller, Abengoa or any Group Company in connection with the transaction, which shall be in full force and effect, and all conditions thereto shall have been satisfied.
|
4.1.5 |
The Purchaser arranging and causing to be obtained financing from one or more third parties for the purchase of the Additional Shares of a nature, in an amount,
and upon terms satisfactory to Purchaser in its sole and absolute discretion (the “Purchaser Financing”).
|
4.2 |
The Purchaser may, by written notice to the Seller, waive any of the Conditions in Clause 4.1 (except Condition 4.1.3, which cannot be waived and 4.1.4, which to
the extent that any such consents, approvals or waivers are required – cannot be waived) in whole or in part at any time prior to the termination of this Agreement, whether following, on or before the Longstop Date.
|
4.3 |
The Purchaser, the Seller and Abengoa, as applicable, shall use reasonable endeavours to satisfy or procure the satisfaction of each of the Conditions in Clause
4.1 as soon as possible and in any event on or before the Longstop Date. Abengoa forthwith after execution of this Agreement shall commence soliciting the approvals and releases contemplated in Clause 4.1.1 through 4.1.4.
|
4.4 |
The Seller shall notify the Purchaser of the satisfaction of Conditions in Clauses 4.1.1 through 4.1.4 as soon as possible after any such Condition has been
satisfied and in any event within two (2) Business Days of such satisfaction.
|
4.5 |
The Purchaser shall notify the Seller of the satisfaction of Condition 4.1.5 as soon as possible after such Condition has been satisfied and in any event within
two (2) Business Days of such satisfaction.
|
4.6 |
Completion is further conditional on the following, except to the extent waived in writing by Purchaser:
|
4.6.1 |
(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.
|
4.6.2 |
Seller and Abengoa shall have complied with the restrictions set out in Clause 5.1.
|
4.6.3 |
Each of the Seller and the Seller’s Guarantor shall have delivered to Purchaser their respective certificate executed on behalf of Seller or Seller’s Guarantor by
an authorized officer or representative of Seller or Seller’s Guarantor, as the case may be, dated as of the Completion Date, representing and certifying the matters set forth in Clause 4.6.1 and 4.6.2.
|
4.6.4 |
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.
|
4.6.5 |
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 Additional 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.
|
4.7 |
Completion is further conditional on the following, except to the extent waived in writing by Seller:
|
4.7.1 |
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.
|
4.7.2 |
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 4.7.1.
|
4.8 |
If one or more of the Conditions has not been satisfied and has not been waived (other than the Condition which cannot be waived included in Clause 4.1.3 and
Clause 4.1.4, in this latter case to the extent that any such consents, approvals or waivers are required) by the specified Party on or prior to 27 November 2018 (the “Longstop Date”), then 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 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.
|
4.9 |
The amount of US$40 million (the “Holdback Amount”) shall be
retained by Purchaser out of the Consideration as provided in Clause 3.1 and shall not accrue interest. Upon and following Completion:
|
4.9.1 |
The Mexican Obligations Management Fee shall be due and owing by Purchaser to Seller upon Completion, without further condition or set-off of any kind. Such
amount shall be paid by Purchaser to Seller not more than 45 days following Completion.
|
4.9.2 |
In the event that a bona fide written demand for payment related to the Mexican Obligations is made to any Group Company and, by no later than ten (10) Business
Days following written notice to Abengoa of such demand, Abengoa fails to either (a) pay the full amount thereof to the party making such demand, or (b) deliver to the applicable Group Company a Qualified Letter of Credit in favor of
such Group Company in an amount at least equal to the amount of such demand, then the amount of such demand shall immediately and irrevocably be deducted from the balance of the Holdback Amount and shall be permanently retained by the
Purchaser.
|
4.9.3 |
Subject to Clause 4.9.2 and Clause 4.9.4, the remaining balance of the Holdback Amount will be paid by the Purchaser to the Seller or to such financing parties or
other persons as Seller may specify by written notice to Purchaser within ten (10) days after the later to occur of (a) the unconditional release of all Group Companies from all liabilities and obligations with respect to the Mexican
Obligations, or (b) January 1, 2019.
|
4.9.4 |
If any amounts of the Holdback Amount are released to Seller or otherwise deducted from the Holdback Amount prior to the Mexican Reconciliation Date pursuant to
Clause 4.9.3 or Clause 4.9.2, Seller or Seller’s Guarantor, on behalf of Seller, shall pay the Mexican Obligations Release Fee to Purchaser on the earlier of (a) the release of funds to (or as directed by) Seller pursuant to Clause
4.9.3 or (b) the Mexican Reconciliation Date; provided, that in lieu of such payment, Purchaser shall have the right to set-off the Mexican Obligations Release Fee or any portion thereof against the Holdback Amount.
|
4.9.5 |
Until the earlier of the date on which the balance of the Holdback Amount (a) is paid to Seller, or (b) ceases pursuant to this Clause 4.9 to be payable to
Seller, but in no event later than the date one (1) year after Completion, the Purchaser agrees to maintain sufficient liquidity and access to capital at all times (being an amount not less than USD 40,000,000 minus any amounts deducted
from the Holdback Amount pursuant to Clause 4.9.2) to permit the Purchaser to promptly pay to the Seller the balance of the Holdback Amount as and when due pursuant to Clause 4.9.3.
|
5. |
OPTION TERM AND INTERIM PERIOD COVENANTS
|
5.1 |
During the Option Term and any Interim Period, without the prior written consent
of the Purchaser:
|
5.1.1 |
Except pursuant to this Agreement, the Seller shall not give or agree to give any option, right to acquire or call, or in any way dispose of any of the Remaining
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; and
|
5.1.2 |
The Seller shall not create any additional Encumbrance over the Remaining Shares.
|
5.2 |
The Purchaser undertakes to use reasonable commercial efforts to solicit the Purchaser Financing. Notwithstanding the foregoing or any other provision of this
Agreement, (a) the Purchaser Financing shall not be of a nature such that it is required to be consolidated on the financial statements of Seller or of Abengoa, and shall be without recourse to each of Seller and Abengoa; and (b) unless
otherwise agreed by Purchaser in its sole and absolute discretion, the Purchaser Financing shall not be of a nature such that it is required to be consolidated on the financial statements of Algonquin Power & Utilities Corp., and
recourse thereon shall be limited to the direct or indirect interests of Purchaser in shares of the Company.
|
5.3 |
The Purchaser and the Seller’s Guarantor will work in good faith to finalize the structure to effect the purchase of the Additional Shares and the Purchaser
Financing in a manner which complies with Clause 5.2.
|
6. |
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.
|
7. |
COMPLETION
|
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.
|
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.
|
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
|
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
|
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.
|
9.5 |
The aggregate amount of the liability of the Seller in respect of the aggregate of all Claims under this Agreement shall not exceed in the aggregate, an amount
equal to the Consideration; provided, however, that (a) the
aggregate amount of the liability of the Seller in respect of the aggregate of all Claims under this Agreement other than Fundamental Claims shall not exceed, in the aggregate, an amount equal to ten percent (10%) of the Consideration,
and (b) the aggregate amount of the liability of the Seller in respect of the Mexican Obligations shall not exceed the Holdback Amount. The foregoing shall
not limit any claim against Seller under the SPA and shall not be limited by any claim against Seller under the SPA or by any monetary limitations thereon.
|
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.
|
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.
|
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.
|
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.
|
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.
|
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.
|
10. |
PURCHASER WARRANTIES AND UNDERTAKINGS
|
10.1 |
The Purchaser warrants and represents to the Seller in the terms of the warranties set out in Schedule 4.
|
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.
|
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.
|
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
|
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
|
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.
|
13. |
MISCELLANEOUS
|
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.
|
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),
|
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;
|
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;
|
13.4.7 |
to any financing party or other body or authority for the purposes of obtaining the third party consents contemplated in this Agreement; or
|
13.4.8 |
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.
|
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.
|
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.
|
13.9 |
The rights of the Purchaser under this Agreement can be assigned prior to Completion by the Purchaser to:
|
(A) |
a direct or indirect wholly owned subsidiary of Purchaser,
|
(B) |
any direct or indirect subsidiary of AAGES, or
|
(C) |
or any entity jointly held by any of the foregoing,
|
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.
|
13.11 |
Each of the Parties to this Agreement confirms on behalf of itself 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).
|
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.
|
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.
|
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.
|
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.
|
13.17 |
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.
|
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.
|
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.
|
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.
|
Address: |
48 Boulevard Grande-Duchesse Charlotte
|
Facsimile:
|
+352 26 34 36 66
|
Attention: |
Mr. Christian Anders Digemose
|
Address: |
Manuel Pombo Angulo 20
|
Facsimile:
|
None
|
Attention: |
Mr. Daniel Alaminos Echarri and Ms. Mercedes Domecq
|
Address: |
Manuel Pombo Angulo 20
|
Facsimile:
|
None
|
Attention: |
Mr. Daniel Alaminos Echarri and Ms. Mercedes Domecq
|
Address: |
354 Davis Road, Suite 100
|
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
|
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.
|
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.
|
SIGNED for and on behalf of
|
/s/ Christian Anders Digemose
|
ACIL LUXCO 1, S.A.
|
(Signature of authorised person)
|
SIGNED BY Ian Robertson and Chris
Jarratt
|
/s/ Ian Robertson
|
for and on behalf of
|
(Signature of authorised person)
|
/s/ Chris Jarratt
|
|
(Signature of authorised person)
|
Joaquín Fernández de Piérola
|
/s/ Gonzalo Urquijo
|
for and on behalf of
|
(Signature of authorised person)
|
/s/ Joaquín Fernández de Piérola
|
|
(Signature of authorised person)
|
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 Ian Robertson
Mr Christopher Jarratt
Mr Gonzalo Urquijo Fernández de Araoz
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
|
1. |
The Seller shall deliver (a) 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, and (b) a copy of or extracts from the minutes of a meeting of the directors of Seller’s Guarantor
authorising Seller’s Guarantor 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’s Guarantor.
|
2. |
The Seller shall procure that the Additional 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 or the Seller’s Guarantor, as the case may be, shall
deliver all other documents, instruments and security expressly required by this Agreement to be delivered by Seller or Seller’s Guarantor to Purchaser as a condition to Completion.
|
4. |
The Seller shall deliver written evidence, acceptable to Purchaser, of the release of the Additional Shares from any and all Encumbrances, prior to or upon
payment of the Consideration by Purchaser in the manner provided in the Agreement.
|
5. |
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.
|
6. |
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 Additional 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 Additional Shares and, pending registration, to
exercise all voting and other rights attaching to the Additional Shares. For avoidance of doubt, such power of attorney shall not be effective until all Encumbrances on the Additional Shares are released and the Completion has occurred.
|
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. |
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. |
If necessary under applicable law, 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.
|
1. |
Title to Remaining Shares
|
2. |
Incorporation
|
3. |
Corporate power and authority
|
4. |
Due authorisation, execution and delivery
|
5. |
No breach
|
5.1 |
result in a breach of or conflict with any provision of the constitutional documents of the Seller;
|
5.2 |
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
|
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
|
7. |
Proceedings
|
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,
|
8. |
Solvency
|
9. |
No Stamp Duty
|
10. |
Interests in any Group Company
|
11. |
Liabilities of Seller and its Affiliates
|
12. |
Ethical business practices
|
13. |
Brokers’ fees
|
1. |
Incorporation
|
2. |
Corporate power and authority
|
3. |
Due authorisation, execution and delivery
|
4. |
No breach
|
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
|
6. |
Proceedings
|
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,
|
7. |
Solvency
|
1. |
Incorporation
|
2. |
Corporate power and authority
|
3. |
Due authorisation, execution and delivery
|
4. |
No breach
|
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
|
6. |
Proceedings
|
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,
|
7. |
Solvency
|
8. |
Interests in any Group Company
|
9. |
Liabilities of Seller’s Guarantor and its Affiliates
|
10. |
Ethical business practices
|
11. |
Brokers’ fees
|
1.
|
In this Agreement each of the following words and expressions shall have the following meanings:
|
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;
|
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.
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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;
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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;
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3.11 |
a reference to a balance sheet or profit and loss account shall include a reference to any note forming part of it;
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3.12 |
a reference to "includes" or "including" shall mean "includes without limitation" or "including without limitation";
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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;
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3.14 |
the headings in this Agreement are for convenience only and shall not affect its interpretation; and
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3.15 |
references to this Agreement include this Agreement as amended or supplemented in accordance with its terms.
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