0001047469-14-005415.txt : 20140624 0001047469-14-005415.hdr.sgml : 20140624 20140606164756 ACCESSION NUMBER: 0001047469-14-005415 CONFORMED SUBMISSION TYPE: 20-F/A PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20131231 FILED AS OF DATE: 20140606 DATE AS OF CHANGE: 20140606 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ABENGOA, S.A. CENTRAL INDEX KEY: 0001161785 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ENGINEERING SERVICES [8711] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 20-F/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-36125 FILM NUMBER: 14897204 BUSINESS ADDRESS: STREET 1: CAMPUS PALMAS ALTAS STREET 2: C/ ENERGIA SOLAR 1 CITY: SEVILLE STATE: U3 ZIP: 41014 BUSINESS PHONE: 34 954 93 71 11 MAIL ADDRESS: STREET 1: CAMPUS PALMAS ALTAS STREET 2: C/ ENERGIA SOLAR 1 CITY: SEVILLE STATE: U3 ZIP: 41014 FORMER COMPANY: FORMER CONFORMED NAME: ABENGOA SA DATE OF NAME CHANGE: 20011102 20-F/A 1 a2220402z20-fa.htm 20-F/A

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ABENGOA, S.A. TABLE OF CONTENTS

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

FORM 20-F/A
(Amendment No. 1)


(Mark One)
o		REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
ý		ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
		For the fiscal year ended December 31, 2013
OR
o		TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
o		SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
		Date of event requiring this shell company report
		For the transition period from to .

Commission file number: 001-34609

ABENGOA, S.A.
(Exact name of Registrant as specified in its charter)

Not applicable
(Translation of Registrant's name into English)
Kingdom of Spain
(Jurisdiction of incorporation or organization)
Campus Palmas Altas
C/ Energía Solar 1
41014, Seville, Spain
Tel: + 34 954 93 71 11
(Address of principal executive offices)

Securities registered or to be registered pursuant to Section 12(b) of the Act.

Title of each class		Name of each exchange on which registered

Class B Shares, par value €0.01 per share		NASDAQ Global Select Market
American Depositary Shares, each representing Five Class B Shares		NASDAQ Global Select Market

Securities registered or to be registered pursuant to Section 12(g) of the Act.

None

Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.

None

Indicate the number of outstanding shares of each of the issuer's classes of capital or common stock as of the close of the period covered by the annual report: 741,116,971 Class B shares.

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. o Yes ý No

If this report is an annual or transaction report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. o Yes ý No

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. ý Yes o No

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). o Yes o No

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer.


Large accelerated filer o		Accelerated filer ý		Non-accelerated filer o

Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:

U.S. GAAP o International Financial Reporting Standards as issued by the International Accounting Standards Board ý Other o

If "Other" has been checked in response to the previous question indicate by check mark which financial statement item the registrant has elected to follow. o Item 17 o Item 18

If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). o Yes ý No

Table of Contents

Explanatory Note

Abengoa, S.A. (the "Company," "Abengoa," "we," "us" or "our") is filing this Amendment No. 1 on Form 20-F/A (this "Amendment") to amend our Annual Report on Form 20-F for the year ended December 31, 2013, originally filed with the Securities and Exchange Commission (the "SEC") on March 19, 2014 (the "Original Filing"), to amend the table listing our Audit Committee members included in Item 6.C and to supplement the disclosure related to our home country corporate governance practices included in Item 16G.

In accordance with Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), Items 6.C and 16G of the Original Filing are hereby amended and restated in their entirety. This Amendment does not amend or otherwise update any other information in the Original Filing other than the updating of: (i) the Exhibits to include updated Certifications of the Chief Executive Officer and Chief Financial Officer, and (ii) the Exhibit Index to disclose that certain exhibits that were filed with the Original Filing are incorporated by reference into this Amendment. This Amendment speaks as of the date of the Original Filing as amended by this Amendment and has not been updated to reflect events occurring after the filing of the Original Filing. Accordingly, this Amendment should be read in conjunction with the Original Filing and with our filings with the SEC subsequent to the Original Filing.

Table of Contents

ABENGOA, S.A.
TABLE OF CONTENTS


PART I
Item 6 Directors, Senior Management and Employees
C. Board Practices		2
PART II
Item 16G. Corporate Governance		4
PART III
Item 19. Exhibits		6

PART I.

ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES

C. Board Practices

Under Spanish Law, the board of directors of a Spanish corporation is responsible for management, administration and representation in all matters concerning our business, subject to the provisions of our bylaws and resolutions adopted at general shareholders' meetings by a majority vote of the shareholders. Four of our fifteen current directors (Messrs. Borrell Fontellés and Martínez Rico, and Mmes. Gracia Díez and Velarde Valiente) are independent under applicable NASDAQ listing standards.

Directors are elected by our shareholders to serve four-year terms. A director may be re-elected to serve for one or more four-year terms. If a director does not serve out his or her entire term, the board of directors may fill the vacancy by appointing a shareholder as a replacement director to serve until the next general shareholders' meeting, when the appointment may be ratified or a new director to fill the vacancy is elected or replaced. A director may resign or be removed (with or without cause) from office by a majority vote of the shareholders at a general shareholders' meeting. As a result of these four-year terms, not all of our directors will be elected each year. Information about when our directors were appointed is set forth in Section 6.A. above.

Under Spanish law, the board of directors may delegate its powers to an executive committee or other delegated committee or to one or more executive officers, unless the shareholders, through a meeting, have specifically delegated certain powers belonging to the shareholders' meeting to the board and have not approved the possibility for the board's sub-delegation to others. Since they were appointed, the independent directors on our board of directors have held meetings in conjunction with the regular meetings of the board of directors. Spanish corporate law provides that resolutions appointing an executive committee or any executive officer or authorizing the permanent delegation of all, or part of, the board's power require a two-thirds majority of the members of the board of directors. Certain powers provided in Spanish corporate law may not be delegated, including the drafting of the financial statements and the proposal for its approval by the shareholders at their annual meeting, disapproval of which would prohibit the filing of the Company's annual accounts in the Mercantile Registry of Madrid.

Audit Committee

The Audit Committee of Abengoa comprises the following five members plus the Secretary to the Audit Committee:

Name		Position

Mercedes Gracia Díez⁽¹⁾		Chairman
José Joaquín Abaurre Llorente⁽²⁾		Member
José Borrell Fontellés⁽¹⁾		Member
Ricardo Martínez Rico⁽³⁾		Member
Alicia Velarde Valiente⁽¹⁾		Member
Miguel Ángel Jiménez-Velasco Mazarío		Secretary to the Audit Committee

(1): Independent member of the Audit Committee.
(2): Appointed by Inversión Corporativa IC, S.A.
(3): Non-executive director.

The duties and functions of our Audit Committee include, among others, to report information on the annual financial statements, as well as on our quarterly and semi-annual financial statements that must be presented to the regulatory or supervisory bodies of the securities markets on which the Company is listed. In addition, our Audit Committee proposes the appointment of the external financial auditors to the Board of

Directors, and oversees our internal audit services, our financial information reporting process and our internal control systems. The Audit Committee meets as often as necessary in order to discharge its functions, and at least once every quarter.

Mr. Jiménez-Velasco, the Secretary to the Board of Directors of the Company, serves as Secretary to the Audit Committee in accordance with the Audit Committee Charter.

Appointments and Remuneration Committee

The Appointments and Remuneration Committee of Abengoa comprises of the following six members:

Name		Position

José Borrell Fontellés⁽¹⁾		Chairman
Mercedes Gracia Díez⁽¹⁾		Member
José Luis Aya Abaurre⁽²⁾		Member
José B. Terceiro Lomba⁽³⁾		Member
Alicia Velarde Valiente⁽¹⁾		Member
José Marcos Romero		Secretary

(1): Independent member of the Appointments and Remuneration Committee.
(2): Non-executive director.
(3): Representative of Aplidig, S.L. (formerly Aplicaciones Digitales, S.L.)

The duties and functions of our Appointments and Remuneration Committee include, among others, the duty to inform our Board of Directors of appointments, re-elections, terminations and remuneration of the Board and its members, as well as upon general remuneration and incentives policy for the Board and senior management. The Appointments and Remuneration Committee meets as often as necessary in order to perform its functions, and at least once every six months.

Benefits upon Termination of Employment

Neither we nor our subsidiaries maintain any directors' service contracts providing for benefits upon termination of service.

PART II.

ITEM 16G. CORPORATE GOVERNANCE.

We are a Spanish corporation and qualify as a foreign private issuer listed on the NASDAQ Global Select Market. Under NASDAQ's applicable corporate governance rules, foreign private issuers are permitted to follow home country corporate governance practices in certain circumstances in lieu of NASDAQ's corporate governance rules. We base our corporate governance procedures on the Conthe Code, published in May 2006. Publicly-listed Spanish companies are required by law to publish an Annual Report on Corporate Governance, which provides a detailed explanation of our corporate governance procedures and explains the role and duties of our Board of Directors and Board Committees. Our Annual Report on Corporate Governance and other corporate governance information is available on our website at www.abengoa.com. None of the information contained on our website is incorporated in this annual report. Set forth below is a summary of the significant differences between the corporate governance practices we follow under Spanish law and those followed by NASDAQ-listed U.S. domestic issuers.

Under NASDAQ's corporate governance rules, the board of directors of a U.S. domestic issuer must have a majority of independent members. As a foreign private issuer, we are permitted to follow Spanish corporate governance requirements for the number of independent directors on our Board of Directors. As of the date of this annual report, we had 15 directors, out of which four have been deemed independent by our Board of Directors. We assess the independence of our directors by evaluating, among other things, (i) the contractual, employment and commercial relations between directors, our shareholders and us, (ii) other board of directors positions held by our directors, and (iii) the presence of material business dealings with us or any other company in our Group. The classification of our directors as independent is reviewed annually by our Board of Directors and is reported in our annual corporate governance report filed in accordance with Spanish corporate law.

Under NASDAQ's corporate governance rules, only independent directors may be members of the compensation committees of the boards of directors of U.S. domestic issuers. We have an Appointments and Remuneration Committee, which is our equivalent to a compensation committee. Under Spanish corporate governance codes, all of the members of a compensation committee of a publicly-listed Spanish company must be external directors and a majority of those directors must be independent. Our Appointments and Remuneration Committee bases its corporate governance procedures and functions on these published codes and is currently in compliance with their requirements, including those related to committee membership, executive compensation, and director nominations.

Under NASDAQ's corporate governance rules, U.S. domestic issuers are required to provide a quorum as specified in its bylaws for any meeting of the holders of common stock, provided, however, that such quorum is not permitted to be less than 33¹/3% of the outstanding shares of common voting stock. Our articles of association provide that, on the first call of our general shareholders' meeting, a duly constituted meeting requires a quorum of at least 25% of our subscribed share capital, and, if a quorum was not obtained on the first call, a meeting is validly convened on the second call regardless of the share capital in attendance. However, certain major corporate actions (such as issuing additional ordinary shares, increasing or decreasing our share capital, issuing debt securities, amending our bylaws or approving merger transactions) require shareholder approval at a meeting at which at least 50% of our subscribed share capital is present or represented on the first call or at least 25% of the our share capital present or represented on the second call. However, when the number of shareholders attending a meeting represents less than 50% of our subscribed share capital, resolutions on any of these major corporate actions must be adopted by the affirmative vote of at least two-thirds of the share capital present or represented at such meeting.

Under NASDAQ's corporate governance rules, U.S. domestic issuers are required to solicit proxies, provide proxy statements for all shareholder meetings and provide copies of such proxy materials to NASDAQ. As a foreign private issuer, we are generally exempt from the SEC's rules governing the solicitation of shareholder proxies. However, under Spanish law we are required to publish a "calling of the meeting" one

month in advance of the meeting setting forth the matters to be voted upon with respect to a shareholder meeting in our corporate website, in the website of the CNMV (the Spanish securities markets regulator) and in either a Spanish widely-read newspaper or the BORME. We distribute a copy of the calling of the meeting and a form of proxy to our U.S. shareholders and also make these materials available through our website in advance of such meeting.

Under NASDAQ's corporate governance rules, shareholders of U.S. domestic issuers must be given the opportunity to vote on equity compensation plans and material revisions thereto, with limited exceptions set forth in the NASDAQ Marketplace Rules, including an exception for foreign private issuers who follow the laws of their home country. Under Spanish law, equity compensation plans involving the issuance of our securities require prior shareholder approval. Additionally, equity compensation plans in which our officers and employees participate can be approved by our board of directors without shareholder approval. However, the establishment of equity compensation plans in which members of our board of directors participate must be authorized in our articles of association. Our articles of association currently do not include this type of provision and would have to be amended by our shareholders before any such plan could be adopted.

Under NASDAQ's corporate governance rules, shareholders of U.S. domestic issuers must approve the issuance of our securities when such issuance would result in a change in control of such issuer. Under Spanish law, any issuance of our securities, regardless of whether such issuance would result in a change of control, requires prior shareholder approval.

PART III.

ITEM 19. EXHIBITS.

The following exhibits are filed as part of this report:

Exhibit No.			Description

	1.1*		Memorandum and Articles of Association of Abengoa, S.A. (English translation)⁽¹⁾
	2.1*		Specimen certificate evidencing American Depositary Receipt⁽¹⁾
	4.1*		Form of Agreement between executives and Abengoa, S.A. for acquisition of shares of Abengoa, S.A.⁽¹⁾
	4.2*		2011 Extraordinary Variable Compensation Plan of Abengoa, S.A.⁽¹⁾
	4.3*		2013 Extraordinary Variable Compensation Plan of Abengoa, S.A.
	4.4*		Registration Rights Agreement, dated as of November 4, 2011, between Abengoa, S.A. and FR Alfajor Holdings S.à. r.l.⁽¹⁾
	4.5*		Shareholders' Agreement between Abengoa, S.A. and Inversión Corporativa, I.C., S.A., dated as of August 27, 2012⁽¹⁾
	4.6*		Form of Deposit Agreement between Abengoa, S.A., the depositary, and all registered holders and beneficial owners of the American Depositary Shares⁽¹⁾
	4.7*		Form of Underwriting Agreement⁽²⁾
	8.1*		Subsidiaries of Abengoa, S.A. (incorporated by reference to Appendix I to the Consolidated Financial Statements included with this annual report)
	12.1**		Certification of Manuel Sánchez Ortega, Chief Executive Officer of Abengoa, S.A., pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
	12.2**		Certification of Jesús García-Quilez Gómez, Chief Financial Officer of Abengoa, S.A., pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
	13.1**		Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

*: Previously filed
**: Filed herewith
(1): Incorporated by reference to the registrant's Registration Statement on Form F-1 (File No. 333-191575) filed on October 4, 2013.
(2): Incorporated by reference to the registrant's Registration Statement on Form F-1/A (File No. 333-191575) filed on October 16, 2013

SIGNATURE

The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F/A and that it has duly caused and authorized the undersigned to sign this Amendment No. 1 to its Annual Report on Form 20-F on its behalf.

Date: June 6, 2014


		ABENGOA, S.A.
		By:		/s/ MANUEL SÁNCHEZ ORTEGA
		Name:		Manuel Sánchez Ortega
		Title:		Chief Executive Officer


		ABENGOA, S.A.
		By:		/s/ JESÚS GARCÍA-QUILEZ GÓMEZ
		Name:		Jesús García-Quilez Gómez
		Title:		Chief Financial Officer

EX-12.1 2 a2220402zex-12_1.htm EX-12.1

Exhibit 12.1

Certification by the Chief Executive Officer

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Manuel Sánchez Ortega, Chief Executive Officer of Abengoa S.A. (the “Company”), certify that:

1. I have reviewed this annual report on Form 20-F/A of the Company;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;

4. The Company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(c) Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by this report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and

5. The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of Company’s board of directors (or persons performing the equivalent function):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.

Date: June 6, 2014

By:	/s/ Manuel Sánchez Ortega
Name:	Manuel Sánchez Ortega
Title:	Chief Executive Officer

EX-12.2 3 a2220402zex-12_2.htm EX-12.2

Exhibit 12.2

Certification by the Chief Financial Officer

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Jesús García-Quilez Gómez, Chief Financial Officer of Abengoa, S.A. (the “Company”), certify that:

1. I have reviewed this annual report on Form 20-F/A of the Company;

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.

Date: June 6, 2014

By:	/s/ Jesús García-Quilez Gómez
Name:	Jesús García-Quilez Gómez
Title:	Chief Financial Officer

EX-13.1 4 a2220402zex-13_1.htm EX-13.1

Exhibit 13.1

Certification Pursuant to 18 U.S.C. Section 1350, As Adopted

Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

The certification set forth below is being submitted in connection with the Annual Report on Form 20-F/A for the year ended December 31, 2013 (the “Annual Report”) for the purpose of complying with Rule 13a-14(b) or Rule 15d-14(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Section 1350 of Chapter 63 of Title 18 of the United States Code.

Manuel Sánchez Ortega, Chief Executive Officer, and Jesús García-Quilez Gómez, Chief Financial Officer, each certifies that, to the best of his knowledge:

(1) The Annual Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Annual Report fairly presents, in all material respects, the financial condition and results of operations of the Abengoa, S.A.

Date: June 6, 2014

By:	/s/ Manuel Sánchez Ortega
Name:	Manuel Sánchez Ortega
Title:	Chief Executive Officer

By:	/s/ Jesús García-Quilez Gómez
Name:	Jesús García-Quilez Gómez
Title:	Chief Financial Officer