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Between:
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(1)
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Atlantica Yield plc, a public limited company organized and existing under the laws of England and Wales, United Kingdom;
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hereinafter referred to as the “Issuer”;
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And:
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(2)
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Algonquin Power & Utilities Corp.;
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hereinafter referred to as the “Investor”;
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The parties sub (1) and (2) above are hereinafter referred to as the “Parties” and each individually as a “Party”.
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| (A) |
The Issuer and Investor have agreed to enter into an enhanced cooperation agreement (the “Cooperation Agreement”).
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| (B) |
As part of the collaboration between the Issuer and the Investor, the latter wishes to invest an aggregate amount of USD 29,999,991 (the “Subscription Amount”) in the equity of the Issuer
through a private placement.
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| (C) |
The Investor has agreed that AAGES (AY Holdings) B.V., one of its majority-owned subsidiaries (the “Investor’s Subsidiary”) will indirectly subscribe for Ordinary Shares (as defined below) on
the terms and subject to the conditions set forth in this Agreement.
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| 1 |
Definitions and Interpretation
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| 1.1 |
Definitions
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| 1.2 |
Interpretation
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| 1.2.1 |
The titles and headings included in this Agreement are for convenience only and shall not be taken into account in the interpretation of the provisions of this Agreement.
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| 1.2.2 |
The words “herein”, “hereof”, “hereunder”, “hereby”, “hereto”, “herewith” and words of similar import shall refer to this Agreement as a whole and not to any particular Article, paragraph or other subdivision.
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| 1.2.3 |
All periods of time set out in this Agreement shall be calculated from midnight to midnight. They shall start on the day following the day on which the event triggering the relevant period of time has occurred. The expiration date
shall be included in the period of time. If the expiration date is not a Business Day, it shall be postponed until the next Business Day. Unless otherwise provided herein, all periods of time shall be calculated in calendar days. All
periods of time consisting of a number of months (or years) shall be calculated from the day in the month (or year) when the triggering event has occurred until the eve of the same day in the following month(s) (or year(s)).
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| 2 |
Share Subscription
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| 2.1 |
The Investor hereby applies for the issue to a nominee (the “Computershare Nominee”) of the Issuer’s depositary Computershare Trustee (Jersey) Limited (the “Depositary”)
at Closing of 1,384,402 Ordinary Shares (the “Subscription Shares”), to be credited as fully paid, in consideration of the payment by the Investor to the Issuer of the Subscription Amount, and the
Issuer agrees to allot and issue the Subscription Shares in accordance with the terms of this Agreement.
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| 2.2 |
Rights attaching to the shares
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| 2.3 |
Closing
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| 2.3.1 |
The Closing shall occur on the Closing Date.
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| 2.3.2 |
On the Closing Date:
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| (i) |
the Investor shall pay the full Subscription Amount in U.S. dollars to the U.S. dollar- denominated account in the Issuer’s name with the bank account to be communicated by the Issuer to the Investor in writing at least three (3)
Business Days prior to Closing (the “Account”). Any bank charges, costs and expenses relating to this payment shall be borne by the Investor; and
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| (ii) |
promptly following receipt of the Subscription Amount:
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| (a) |
the Issuer will allot and issue the Subscription Shares to the Computershare Nominee, credited as fully paid;
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| (b) |
the Issuer will instruct, and the Investor will cause the Broker(s) to instruct, the Depositary to issue the Depositary Receipts to the Broker(s) in their capacity as custodian(s) for the Investor’s Subsidiary; and
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| (c) |
the Investor shall cause the Brokers to accept the Depositary Receipts.
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| 3 |
Representations and Warranties
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| 3.1 |
Validity of the Agreement. This Agreement has been duly authorized and executed by the it and constitutes a valid and legally binding obligation of it.
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| 3.2 |
Consents. All necessary consents, authorisations, notifications, actions or other things required to be taken, fulfilled or done by it in accordance with applicable law (including without
limitation the obtaining of any consent or license or the making of any filing or registration or the obtaining of any shareholder approval) for the subscription of the Subscription Shares pursuant to this Agreement, the carrying out of
the other transactions contemplated by this Agreement or the compliance by it with the terms of this Agreement have been obtained or made and are, or will on Closing be, in full force and effect.
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| 4 |
Costs – Expenses
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| 5 |
No Assignment
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| 6 |
Specific Performance
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| 7 |
Severability
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| 7.1 |
If any provision in this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any applicable law, then such provision or part of it shall be deemed not to form part of this Agreement, and the
legality, validity or enforceability of the remainder of this Agreement shall not be affected.
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| 7.2 |
In such case, each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision that is as close as possible to the original intention of the Parties and has the same or as similar as possible
economic effect.
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| 8 |
Communications
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| 9 |
Governing Law and Jurisdiction
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| 9.1 |
Governing Law
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| 9.2 |
Jurisdiction
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| 9.3 |
Process Agent
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| 9.3.1 |
The Investor shall appoint an agent in England for service of process and any other documents in proceedings in connection with this Agreement (the “Agent”), whether the proceedings are in
England or elsewhere, within ten (10) Business Days following the date of this Agreement.
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| 9.3.2 |
The Investor hall notify the Company in writing as soon as reasonably practicable once the Agent is appointed as well as any change thereof.
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| 9.3.3 |
Any claim form, judgment or other notice of legal process shall be sufficiently served on the Investor if delivered to the Agent at the address notified to the Company pursuant to clause 9.3.2 above.
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| 9.3.4 |
If for any reason the Agent appointed by the Investor at any time ceases to act as such, the Investor shall promptly appoint another such Agent and promptly notify the Issuer of the appointment and the new Agent’s name and address.
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| 9.3.5 |
If the Investor does not appoint an Agent within ten (10) Business Days following the date of this Agreement or does not appoint a replacement Agent pursuant to clause 9.3.4 above within seven (7) Business Days of such cessation,
then the Issuer can make such appointment on behalf of, and at the expense of, the Investor and if it does so, it shall promptly notify the Investor of the new Agent’s name and address.
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Atlantica Yield plc
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| /s/ Santiago Seage | |
| Name: Santiago Seage | |
| Title: Director |
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Algonquin Power & Utilities Corp.
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| /s/ Ian Robertson | /s/ Chris Jarratt | |
| Name: Ian Robertson | Name: Chris Jarratt | |
| Title: Chief Executive Officer |
Title: Vice Chair |