England and Wales
|
Great West House, GW1, 17th floor
|
Not Applicable
|
(State or other jurisdiction of incorporation or organization)
|
Great West Road
Brentford, United Kingdom TW8 9DF
Tel.: +44 203 499 0465
(Address and telephone number of Registrant’s principal executive offices)
|
(I.R.S. Employer Identification Number)
|
Alejandro Gonzalez Lazzeri
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001-8602
Tel: (212) 735-3000
Fax: (212) 735-2000/1
|
Lorenzo Corte
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
40 Bank Street, Canary Wharf
London, E14 5DS
Tel: (20) 7519-7000
Fax: (20) 7519-7070
|
Title of each class of securities to be registered
|
Amount to be
Registered(1)
|
Proposed
Maximum
Aggregate Price
per Unit(1)
|
Proposed
Maximum
Aggregate Offering
Price(1)
|
Amount of
Registration
Fee(1)
|
Ordinary Shares, nominal value $0.10 per share (2)
|
||||
Senior debt securities(2)
|
||||
Subordinated debt securities(2)
|
||||
Warrants(2)
|
(1) |
These offered securities may be sold separately or together as units with other offered securities. An indeterminate aggregate initial offering price or number of securities of each identified class is being registered as may from time to
time be issued at indeterminate prices. In accordance with Rules 456(b) and 457(r), the registrant is deferring payment of all of the registration fee.
|
(2) |
Also includes such indeterminate number of ordinary shares of the registrant as may be issued upon exercise, conversion or exchange of these securities. Separate consideration may or may not be received for securities that are issuable
upon exercise, conversion or exchange of other securities.
|
Page
|
|
1
|
|
2
|
|
3
|
|
5
|
|
7
|
|
8
|
|
9
|
|
10
|
|
18
|
|
21
|
|
22
|
|
24
|
|
25
|
|
28
|
|
29
|
|
30
|
|
33
|
|
34
|
|
35
|
• |
our Annual Report on Form 20-F for the fiscal year ended December 31, 2020, as filed with the SEC on
March 1, 2021 (File No. 001-36487);
|
• |
our Reports on Form 6-K, as filed with the SEC (File No. 001-36487) on March 18, 2021 (relating to the
notice of the Company's Annual General Meeting, March 30, 2021 (relating to the sixth amendment to the Revolving Credit Facility) and May 14, 2021 (relating to the final report of the Inspector of Election at the Annual General Meeting of Shareholders of the Company held
on May 4, 2021); and
|
• |
the description of our share capital contained in Exhibit 2.1 on Form 20-F for the fiscal year ended
December 31, 2020, as filed with the SEC on March 1, 2021 (File No. 001-36487) and any amendment or reports filed for the purpose of updating such description
|
• |
the condition of the debt and equity capital markets and our ability to borrow additional funds and access capital markets, as well as our substantial indebtedness and the possibility that we may incur
additional indebtedness going forward;
|
• |
the ability of our counterparties, including Pemex, to satisfy their financial commitments or business obligations and our ability to seek new counterparties in a competitive market;
|
• |
government regulation, including compliance with regulatory and permit requirements and changes in tax laws, market rules, rates, tariffs, environmental laws and policies affecting renewable energy;
|
• |
changes in tax laws and regulations;
|
• |
risks relating to our activities in areas subject to economic, social and political uncertainties;
|
• |
our ability to finance and make new investments and acquisitions on favorable terms or to close outstanding acquisitions;
|
• |
risks relating to new assets and businesses which have a higher risk profile and our ability to transition these successfully;
|
• |
potential environmental liabilities and the cost and conditions of compliance with applicable environmental laws and regulations;
|
• |
risks related to our reliance on third-party contractors or suppliers;
|
• |
risks related to our ability to maintain appropriate insurance over our assets;
|
• |
risks related to our exposure in the labor market;
|
• |
potential issues arising with our operators’ employees including disagreement with employees’ unions and subcontractors;
|
• |
risks related to extreme weather events related to climate change could damage our assets or result in significant liabilities and cause an increase in our operation and maintenance costs;
|
• |
the effects of litigation and other legal proceedings (including bankruptcy) against us and our subsidiaries;
|
• |
price fluctuations, revocation and termination provisions in our off-take agreements and power purchase agreements;
|
• |
our electricity generation, our projections thereof and factors affecting production, including those related to the COVID-19 outbreak;
|
• |
our targets or expectations with respect to Adjusted EBITDA derived from low-carbon footprint assets;
|
• |
risks related to our relationship with Abengoa, our former largest shareholder and currently one of our operation and maintenance suppliers, including bankruptcy and particularly the potential impact of Abengoa
S.A.’s insolvency filing and Abenewco1, S.A.’s potential insolvency filing;
|
• |
risks related to our relationship with our shareholders, including Algonquin, our major shareholder;
|
• |
potential impact of the COVID-19 outbreak on our business, financial condition, results of operations and cash flows;
|
• |
reputational and financial damage caused by our off-taker PG&E and Pemex;
|
• |
sale of electricity to the Mexican market;
|
• |
guidance related to amount of Adjusted EBITDA from low carbon footprint assets; and
|
• |
Various other factors, including those discussed in “Risk Factors” beginning on page 8 of this prospectus and under “Item 3.D—Risk Factors” and “Item 5.A—Operating Results” in our most recent Annual Report on
Form 20-F.
|
• |
the information contained or incorporated by reference into this prospectus;
|
• |
the information contained or incorporated by reference into any prospectus supplement relating to specific offerings of securities;
|
• |
the risks described in our most recent Annual Report on Form 20-F for our most recent fiscal year, which is incorporated by reference into this prospectus; and
|
• |
other risks and other information that may be contained in, or incorporated by reference from, other filings that we make with the SEC.
|
December 31,
|
||||||||||||
2020
|
2019
|
2018
|
||||||||||
Shares
|
106,670,862
|
101,601,662
|
100,217,260
|
• |
in which he or she has an interest of which he or she is not aware or which cannot reasonably be regarded as likely to give rise to a conflict of interest;
|
• |
in which he has an interest only by virtue of interests in the Company’s shares, debentures or other securities or otherwise in or through the Company;
|
• |
which involves the giving of any security, guarantee or indemnity to the director or any other person in respect of obligations incurred by him or her or any other person for the benefit of the Company or a
debt or other obligation of the Company for which the director has assumed responsibility under a guarantee or indemnity or by the giving of security;
|
• |
concerning an offer of securities by the Company or any of its subsidiary undertakings in which he or she is or may be entitled to participate as a holder of securities or as an underwriter or sub-underwriter;
|
• |
concerning any other body corporate, provided that he or she and any connected persons do not own or have a beneficial interest in one percent or more of any class of share capital of such body corporate, or of
the voting rights available to the members of such body corporate;
|
• |
relating to an arrangement for the benefit of employees or former employees which does not award him or her any privilege or benefit not generally awarded to the employees or former employees to whom such
arrangement relates;
|
• |
concerning the purchase or maintenance of insurance for any liability for the benefit of directors;
|
(i) |
subject to the provisions of the Companies Act, the shareholder who appointed the relevant director of the Company elects to terminate the office of such director;
|
(ii) |
the director of the Company becomes prohibited by law or (if applicable) the NASDAQ Rules from acting as a director or ceases to be a director by virtue of any provision of the Companies Act;
|
(iii) |
the Company has received notice of the director’s resignation or retirement from office and such resignation or retirement from office has taken effect in accordance with its terms;
|
(iv) |
the director has retired at an annual general meeting in accordance with the Articles;
|
(v) |
the director has a bankruptcy order made against him/her, compounds with his or her creditors generally or applies to the court for an interim order under the UK Insolvency Act 1986 in connection with a
voluntary arrangement under that Act or any analogous event occurs in relation to the director in another country;
|
(vi) |
an order is made by any court claiming jurisdiction in that behalf on the ground (however formulated) of mental disorder for the director’s detention or for the appointment of another person (by whatever name
called) to exercise powers with respect to the director’s property or affairs;
|
(vii) |
the director is absent from meetings of the directors for three months without permission and the directors have resolved that the director’s office be vacated;
|
(viii) |
notice of termination is served or deemed served on the director and that notice is given by a majority of directors for the time being; or
|
(ix) |
in the case of a director other than the chairman and any director holding an executive office, if the directors resolve to require the director to resign and the director fails to do so within 30 days of
notification of such resolution being served or deemed served on the director.
|
• |
ensure that all members and proxies for members wishing to attend the meeting can do so;
|
• |
ensure that all persons attending the meeting are able to participate in the business of the meeting and to see and hear anyone else addressing the meeting;
|
• |
ensure the safety of persons attending the meeting and the orderly conduct of the meeting; and
|
• |
restrict the numbers of members and proxies at any one location to such number as can safely and conveniently be accommodated there.
|
• |
the title, initial offering price and principal aggregate amount of the debt securities;
|
• |
whether the debt securities will be senior, subordinated or junior subordinated;
|
• |
whether the debt securities will be secured or unsecured;
|
• |
whether the debt securities are convertible or exchangeable into other securities;
|
• |
the percentage or percentages of principal amount at which such debt securities will be issued;
|
• |
authorized denominations;
|
• |
the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the
debt securities will bear interest and the right, if any, to extend the maturity of the debt securities, the date or dates from which interest will accrue or the method for determining dates on which interest will accrue, the date or dates on
which interest will commence and any regular record date for the interest payable on any interest payment date;
|
• |
the person to whom any interest on the debt securities will be payable;
|
• |
the date or dates on which we will pay the principal on the debt securities;
|
• |
redemption or early repayment provisions;
|
• |
the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
|
• |
whether a temporary security is to be issued with respect to such series and whether any interest payable prior to the issuance of definitive securities of the series will be credited to the account of the
persons entitled thereto;
|
• |
the terms upon which the beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial interests in a definitive global security or for individual definitive
securities;
|
• |
any material covenants applicable to the particular debt securities being issued;
|
• |
any defaults and events of default applicable to the particular debt securities being issued;
|
• |
the guarantors of each series, if any, and the extent of the guarantees (including provisions relating to seniority, subordination, security and release of the guarantees), if any;
|
• |
any applicable subordination provisions for any subordinated debt securities;
|
• |
the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities will be made;
|
• |
if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner
in which the exchange rate with respect to these payments will be determined;
|
• |
the manner in which the amounts of payment of principal of, premium or interest on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or
currencies other than that in which the debt securities are denominated or designated to be payable or by reference to a commodity, commodity index, stock exchange index or financial index;
|
• |
any provisions relating to any security provided for the debt securities;
|
• |
any material United Kingdom and United States federal income tax consequences;
|
• |
the time period within which, the manner in which and the terms and conditions upon which we or the purchaser of the debt securities can select the payment currency;
|
• |
the securities exchange(s) on which the securities will be listed, if any;
|
• |
whether any underwriter(s) will act as market maker(s) for the securities;
|
• |
the extent to which a secondary market for the securities is expected to develop;
|
• |
our obligations or right to redeem, purchase or repay debt securities under a sinking fund, amortization or analogous provision;
|
• |
provisions relating to covenant defeasance and legal defeasance;
|
• |
provisions relating to satisfaction and discharge of the indenture;
|
• |
provisions relating to the modification of the indenture both with and without consent of holders of debt securities issued under the indenture; and
|
• |
the law that will govern the indenture and debt securities.
|
• |
the title of such warrants;
|
• |
the aggregate number of such warrants;
|
• |
the price or prices at which such warrants will be issued and exercised; the currency or currencies in which the price of such warrants will be payable;
|
• |
the designation and terms of the securities purchasable upon exercise of such warrants;
|
• |
the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
|
• |
the number or principal amount of securities that may be purchased upon exercise of warrants (including, if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time) and
the price at which such securities may be purchased upon exercise;
|
• |
if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;
|
• |
if applicable, the date on and after which such warrants and the related securities will be separately transferable; information with respect to book-entry procedures, if any;
|
• |
any material United Kingdom and United States federal income tax consequences;
|
• |
the anti-dilution provisions of the warrants, if any;
|
• |
if applicable, redemption or call provisions;
|
• |
terms, procedures and limitations relating to the exchange and exercise of such warrants; and
|
• |
any other material terms of the warrants.
|
• |
through one or more underwriters or dealers on a firm commitment or agency basis;
|
• |
through put or call option transactions relating to the securities;
|
• |
through other broker-dealers (acting as agent or principal);
|
• |
directly to purchasers, through a specific bidding or auction process, on a negotiated basis or otherwise;
|
• |
in “at-the-market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise;
|
• |
through agents; or
|
• |
through a combination of any such methods of sale; or.
|
• |
through any other method permitted pursuant to applicable law;
|
• |
the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions, concessions and other items constituting compensation from us;
|
• |
the aggregate amount of securities covered by this prospectus being offered and the purchase price thereof, including the proceeds to be received by us, if any; and
|
• |
additional information as required to be included therein.
|
ITEM 8. |
INDEMNIFICATION OF DIRECTORS AND OFFICERS
|
ITEM 9. |
EXHIBITS
|
ITEM 10. |
UNDERTAKINGS
|
(a) |
The undersigned registrant hereby undertakes:
|
(1) |
To file, during any period in which offers or sales of the registered securities are being made, a post-effective amendment to this Registration Statement;
|
(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act;
|
(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the “Commission”) pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
|
(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
|
(A) |
Paragraphs (a)(1)(i), (ii) and (iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the Registration Statement or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is a part of the Registration Statement;
|
(2) |
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
|
(3) |
To remove from the registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
|
(4) |
To file a post-effective amendment to the Registration Statement to include any financial statements required by “Item 8.A. of Form 20-F (249.220f of this chapter)” at the start of any delayed offering or
throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act (15 U.S.C. 77j(a)(3)) need not be furnished, provided that the registrant includes in the prospectus, by means of a
post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration statements on Form F-3 (§239.33 of this chapter), a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act
or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Form F-3;
|
(5) |
That, for the purpose of determining liability under the Securities Act to any purchaser:
|
(i) |
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed prospectus was deemed part of and included in the
Registration Statement; and
|
(ii) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a Registration Statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii)
or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act, shall be deemed to be part of and included in the Registration Statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuers and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the Registration Statement relating to the securities in the Registration Statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the Registration Statement or made in a document incorporated or deemed incorporated by reference into the
Registration Statement or prospectus that is part of the Registration Statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the Registration
Statement or prospectus that was part of the Registration Statement or made in any such document immediately prior to such effective date;
|
(6) |
That, for the purpose of determining liability of a registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned undertakes that in a primary offering of
securities of an undersigned registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of
the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
|
(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned registrant or used or referred to by the undersigned registrant;
|
(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about an undersigned registrant or its securities provided by or on behalf of the undersigned
registrant; and
|
(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
(b) |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
(c) |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant, of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted against the
registrant by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
|
(d) |
The undersigned registrant hereby undertakes that:
|
(1) |
for purposes of determining any liability under the Securities Act, the information omitted from the prospectus filed as part of this Registration Statement in reliance on Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to a Rule 424(b)(1) or (4) or Rule 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective;
|
(2) |
for purposes of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
|
(3) |
the undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
|
(e) |
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules
and regulations prescribed by the Commission under section 305(b)(2) of the Act.
|
Exhibit
Number
|
Description
|
|
1.1*
|
Form of Underwriting Agreement
|
|
Articles of Association (incorporated by reference from Exhibit 3.1 to Atlantica Sustainable Infrastructure plc’s Form 6-K filed with the SEC on May 21, 2018 – SEC File No. 001-36487)
|
||
4.1*
|
Form of Senior Indenture.
|
|
4.2*
|
Form of Subordinated Indenture.
|
|
4.3*
|
Form of Senior Note.
|
|
4.4*
|
Form of Subordinated Note.
|
|
4.5*
|
Form of Warrant Agreement.
|
|
Opinion of Skadden, Arps, Slate, Meagher & Flom (UK) LLP as to certain matters of English law.
|
||
Opinion of Skadden, Arps, Slate, Meagher & Flom (UK) LLP as to certain matters of New York law.
|
||
Consent of Ernst & Young S.L.
|
||
Consent of Deloitte, S.L.
|
||
Consent of Skadden, Arps, Slate, Meagher & Flom (UK) LLP (included in Exhibit 5.1 herein).
|
||
Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2 herein).
|
||
Powers of attorney (included as part of the signature pages hereof).
|
||
25.1*
|
Statement of eligibility of Trustee on Form T-1 with respect to Atlantica Sustainable Infrastructure plc under the Senior Indenture.
|
|
25.2*
|
Statement of eligibility of Trustee on Form T-1 with respect to Atlantica Sustainable Infrastructure plc under the Subordinated Indenture.
|
* |
To be filed, if necessary, by amendment or on a Form 6-K prior to or concurrently with the issuance of the applicable securities.
|
ATLANTICA SUSTAINABLE INFRASTRUCTURE PLC
|
|||
By:
|
/s/ Santiago Seage
|
Name:
|
Santiago Seage
|
||
Title:
|
Chief Executive Officer
|
Name
|
Title
|
Date
|
||
/s/ Michael Woollcombe
|
Independent Director and Chairman of
|
August 3, 2021
|
||
Michael Woollcombe
|
the Board of Directors
|
|||
/s/ Santiago Seage
|
Chief Executive Officer
|
August 3, 2021
|
||
Santiago Seage
|
(Principal executive officer)
|
|||
/s/ Francisco Martinez-Davis
|
Chief Financial Officer
|
August 3, 2021
|
||
Francisco Martinez-Davis
|
(Principal financial officer and Principal accounting officer)
|
|||
/s/ Arun Banskota
|
Director
|
August 3, 2021
|
||
Arun Banskota
|
||||
/s/ George Trisic
|
Director
|
August 3, 2021
|
||
George Trisic
|
||||
/s/ William Aziz
|
Independent Director
|
August 3, 2021
|
||
William Aziz
|
||||
/s/ Debora Del Favero
|
Independent Director
|
August 3, 2021
|
||
Debora Del Favero
|
||||
/s/ Brenda Eprile
|
Independent Director
|
August 3, 2021
|
||
Brenda Eprile
|
||||
/s/ Michael Forsayeth
|
Independent Director
|
August 3, 2021
|
||
Michael Forsayeth
|
||||
/s/ Emiliano García Sanz
|
Authorized Representative in the
|
August 3, 2021
|
||
Emiliano García Sanz
|
United States
|
1. |
We have acted as special English legal advisers for Atlantica Sustainable Infrastructure plc, a public company with limited liability incorporated under the laws of England and Wales (the “Company”), in connection with the registration statement on Form F-3 (the “Registration Statement”), to be filed by the Company on the date of this opinion with the
U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement
relates to the issuance and sale by the Company from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Securities Act, of (i) ordinary shares in the capital of the Company with
nominal value of US$0.10 per share (the “Ordinary Shares”); (ii) debt securities (the “Debt Securities”) of the Company, which may be issued pursuant to one or
more indentures proposed to be entered into by the Company and such trustee relating to the Debt Securities as shall be named therein (each, an “Indenture”), (iii) warrants to purchase Ordinary
Shares, Debt Securities or other securities of the Company, which may be issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”) proposed to be entered into by the Company and
one or more warrant agents to be named therein (the “Warrants”), and (iv) such indeterminate number of Ordinary Shares or amount of Debt Securities as may be issued upon conversion, exchange or
exercise, as applicable, of any Debt Securities or Warrants, including such Ordinary Shares as may be issued pursuant to anti-dilution adjustments determined at the time of the offering (collectively, “Indeterminate
Securities” and, together with the Ordinary Shares, the Debt Securities and the Warrants, the “Securities”).
|
2. |
Following the date of this letter and prior to or concurrently with the issuance of the relevant Securities, the Company will approve and enter into (i) an underwriting agreement, (ii) an Indenture, (iii) a
note certificate, and/or (iv) a Warrant Agreement as applicable to the Securities being issued (each, a “Transaction Document” and, together, the “Transaction
Documents”), on the terms and conditions of the form of the relevant Transaction Document to be exhibited to an amendment to the Registration Statement or filed on a Form 6-K prior to or concurrently with the issuance of the
relevant Securities. The governing law of the Transaction Documents is expected to be the laws of the State of New York.
|
3. |
This opinion is delivered to you in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
|
4. |
For the purposes of giving this opinion, we have examined the following documents:
|
(a) |
a copy of the Registration Statement;
|
(b) |
an executed copy of a certificate signed by the Secretary of the Company dated the date of this opinion and the documents attached thereto (the “Certificate”);
|
(c) |
a copy of the original certificate of incorporation, certificate of incorporation on change of name and the certificate of re-registration as a public company of the Company, in the form attached to the
Certificate;
|
(d) |
a copy of the memorandum and articles of association of the Company adopted on 13 June 2014 as amended on 8 May 2015, 11 May 2016 and 11 May 2018, in the form attached to the Certificate (the “Articles”);
|
(e) |
a copy of the minutes of a meeting of the Board of Directors of the Company held on 30 July 2021, in the form attached to the Certificate; and
|
(f) |
a copy of the resolutions of the shareholders of the Company dated 4 May 2021, in the form attached to the Certificate,
|
5. |
This opinion is limited to English law as currently applied by the English courts and is given on the basis that it will be governed by and construed in accordance with English law in force on the date of
this opinion. Accordingly, we express no opinion with regard to any other system of law. In particular, we express no opinion as to whether English law is consistent with the laws of the European Union, to the extent relevant on the date of
this opinion. To the extent that the laws of any other jurisdiction (or the laws of the European Union) may be relevant, we express no opinion as to such laws, we have made no investigation thereof, and our opinion is subject to the effect
of such laws. It should be understood that we have not been responsible for investigating or verifying the accuracy of any facts or the reasonableness of any statement of opinion or intention contained in or relevant to any Document.
|
6. |
In considering the Documents and for the purpose of rendering this opinion we have with your consent assumed without investigation or verification:
|
(a) |
the genuineness of all signatures (including electronic signatures) on, and the authenticity and completeness of, all documents submitted to us, the conformity to original documents of all documents submitted
to us as certified, electronic, photostatic or facsimile copies and the authenticity of the originals of such latter documents;
|
(b) |
that there is no agreement or arrangement which modifies, supersedes or is inconsistent with any Document;
|
(c) |
that each of the statements contained in the Certificate is true and correct as at the date of this opinion;
|
(d) |
the minutes and resolutions referred to in paragraphs 4(e) and 4(f) were validly passed and remain in full force and effect without modification;
|
(e) |
that, at the time of the issuance and delivery of any Securities (the “Issue Date”):
|
(i) |
the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Securities Act;
|
(ii) |
the Company is duly incorporated and validly existing and will have all corporate and other power and capacity to enter into and perform all of its obligations under, and will have taken all requisite action
to execute and deliver, the relevant Transaction Documents and to issue and deliver the relevant Securities;
|
(iii) |
the Company has not been deemed unable to and will not become, as a result of issuing the relevant Securities or entering into and performing its obligations under the relevant Transaction Documents, unable
to pay its debts within the meaning of Section 123 of the Insolvency Act 1986;
|
(iv) |
the Company has complied with all applicable laws to execute and deliver the relevant Transaction Documents and allot and issue the relevant Securities and has duly authorised the allotment and issue of the
relevant Securities and entry into and delivery of the relevant Transaction Documents;
|
(v) |
the performance of the provisions of the relevant Transaction Documents that either fall to be performed outside England or that are impacted by applicable local law, is not contrary to applicable local law
and there is no local legal requirement that the performance of such obligations needs to be governed by local law;
|
(vi) |
the directors of the Company will be duly authorised pursuant to the Articles as in force on the Issue Date, the Companies Act 2006 and any relevant authority given by the members of the Company in a general
meeting to allot and issue the relevant Security to be issued pursuant to the relevant Transaction Documents;
|
(vii) |
all consents, approvals, notices, filings, recordations, licences, orders, authorisations, publications and registrations and other similar formalities which are necessary under any applicable laws or
regulations in order to permit the execution and delivery of the relevant Transaction Documents and the issue and offering of the relevant Securities will have been duly made or obtained (or will be duly made or obtained within the period
permitted by such laws or regulations);
|
(viii) |
the terms of the relevant Securities and Transaction Documents have been duly established in conformity with the Registration Statement (as amended or supplemented as applicable in respect of the relevant
Security to be issued), so as not to violate the Companies Act 2006, the Articles, any applicable law, or result in a default under or breach of any agreement or instrument binding upon the Company, and so as to comply with any requirement
or restriction imposed by any court or regulatory body having jurisdiction over the Company;
|
(ix) |
that any limit on borrowings (or similar limits) to which the Company is subject has not been exceeded, and that the execution and delivery of the relevant Transaction Documents and the issue of the relevant
Securities will not cause any such limit on borrowings (or similar limits) to be exceeded;
|
(x) |
the Securities will be issued and the Transaction Documents will be entered into for bona fide commercial reasons and on arm’s length terms by each of the parties thereto; that the Transaction Documents will
not be entered into and the Securities will not be issued or delivered as a result of misrepresentation, mistake, duress or unlawful activity; and that there has been no fraud nor will there be any fraud inducing any party to enter into the
Transaction Documents on the terms set out therein or to issue or deliver the relevant Securities;
|
(xi) |
the relevant Transaction Documents will be validly authorised by, and will be validly executed and delivered by, each of the respective parties thereto, and will constitute valid and binding obligations of
each of the parties thereto under all applicable laws;
|
(xii) |
the relevant Securities will be validly executed, authenticated (if applicable) and delivered in accordance with the relevant Transaction Documents;
|
(xiii) |
the Company will receive such amounts as are necessary to fully pay the nominal or principal value of the relevant Securities and any applicable premium; and
|
(xiv) |
valid entries in the books and registers of the Company will be made of the relevant Securities in accordance with the Companies Act 2006, any applicable law, the Articles, and the relevant Transaction
Documents;
|
(f) |
that the information revealed by our search and enquiries of the public documents kept at Companies House in Cardiff, including an online search in respect of the Company on the Companies House Service, and
our oral enquiry of the Central Registry of Winding up Petitions referred to in paragraph 7(a) below was accurate in all respects and has not since the time of such search or enquiry been altered; and
|
(g) |
the words used in the Registration Statement bear their ordinary English meaning and there is no basis on which they could be interpreted otherwise than in accordance with the ordinary rules of English
grammar and syntax.
|
(a) |
the Company has been incorporated and registered in England and Wales and:
|
(i) |
our enquiry today of the public documents relating to the Company kept at Companies House in Cardiff, including an online search in respect of the Company on the Companies House Service, revealed no order or
resolution for the winding up of the Company and no notice of appointment in respect of the Company of a liquidator, receiver, administrative receiver or administrator; and
|
(ii) |
the Central Registry of Winding up Petitions has confirmed in response to our oral enquiry made today that no petition for the winding up of the Company has been presented within the period of six months
covered by such enquiry; and
|
(b) |
insofar as English law is concerned and provided that all future actions, authorisations and approvals as described in paragraph 6(e) above have been taken, obtained and/or complied with, then:
|
(i) |
the Company will have the requisite legal authority and will have taken all necessary corporate action to authorise the issue of the relevant Securities and the execution, delivery and performance of the
relevant Transaction Documents and Securities; and
|
(ii) |
in the case of Ordinary Shares to be offered pursuant to the Registration Statement, such Ordinary Shares will be validly issued, fully paid and non-assessable (it being understood that the term
“non-assessable” has no recognised meaning under English law, and for the purposes of this opinion means that, under the Companies Act 2006 (as amended), the Articles and any resolution taken under the Articles approving the issuance of the
Ordinary Shares, no holder of such Ordinary Shares is liable, solely because of such holder’s status as a holder of such Ordinary Shares, for additional assessments or calls for further funds by the Company or any other person).
|
8. |
The opinions set forth above are subject to the following qualifications:
|
(a) |
the searches and enquiries of the public documents relating to the Company kept at Companies House in Cardiff, including an online search in respect of the Company on the Companies House Service, and our oral
enquiry of the Central Registry of Winding up Petitions referred to in paragraph 7(a) above are not conclusively capable of revealing whether or not:
|
(i) |
a winding up petition has been received or a winding up order has been made or a resolution passed for the winding up of the Company; or
|
(ii) |
an administration order has been made in relation to the Company; or
|
(iii) |
a receiver, administrative receiver, administrator or liquidator has been appointed in relation to the Company,
|
(b) |
if any agreement is entered into for a purpose prohibited by sections 678 and 679 of the Companies Act 2006, it will be void;
|
(c) |
this opinion is subject to and may be limited by all applicable laws relating to bankruptcy, insolvency, administration, liquidation, reorganisation, moratorium or any analogous procedure and other laws of
general application relating to or affecting the rights of creditors;
|
(d) |
we express no opinion as to taxation matters; and
|
(e) |
we express no opinion as to whether the Registration Statement contains all the information required by applicable law and/or regulation.
|
9. |
We hereby consent to the reference to our firm under the heading “Legal Matters” in the prospectus forming part of the Registration Statement. We also hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
of the Commission thereunder. This opinion is expressed as of the date of this opinion unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of
any subsequent changes in applicable laws.
|
Yours faithfully,
|
|
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
|
|
DT
|
Re: |
Atlantica Sustainable Infrastructure plc
|
Very truly yours,
|
|
/s/ Skadden, Arps, Slate, Meagher & Flom (UK) LLP
|
|
LC
|