Delaware | 001-36542 | 46-4780940 |
(State or other jurisdiction of incorporation or organization) | (Commission File Number) | (I. R. S. Employer Identification No.) |
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Emerging growth company o |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o |
Exhibit No. | Description |
10.1 | Irrevocable Undertaking Agreement for the launch and acceptance of the takeover bid for the shares of Saeta Yield, S.A., dated as of February 6, 2018 between TERP Spanish HoldcCo, S.L., Cobra Concesiones, S.L. and GIP II Helios, S.à r.l. |
10.2 | Irrevocable Undertaking Agreement for the launch and acceptance of the takeover bid for the shares of Saeta Yield, S.A., dated as of February 6, 2018 between TERP Spanish HoldCo, S.L. and Mutuactivos, S.A.U., S.G.I.I.C. |
10.3 | Irrevocable Undertaking Agreement for the launch and acceptance of the takeover bid for the shares of Saeta Yield, S.A., dated as of February 6, 2018 between TERP Spanish HoldCo, S.L. and Sinergia Advisors 2006, A.V., S.A. |
10.4 | Support Agreement, dated as of February 6, 2018, between TerraForm Power, Inc. and Brookfield Asset Management Inc. |
99.1 | Press release, dated February 7, 2018, titled “TerraForm Power Announces Offer to Acquire 100% of Leading European Renewable Power Business, Saeta Yield.” |
99.2 | TerraForm Power, Inc. presentation materials titled “Saeta Yield Acquisition”, dated as of February 7, 2018. |
Exhibit No. | Description |
Irrevocable Undertaking Agreement for the launch and acceptance of the takeover bid for the shares of Saeta Yield, S.A., dated as of February 6, 2018 between TerraForm Power, Inc., Cobra Concesiones, S.L. and GIP II Helios, S.à r.l. | |
Irrevocable Undertaking Agreement for the launch and acceptance of the takeover bid for the shares of Saeta Yield, S.A., dated as of February 6, 2018 between TERP Spanish HoldCo, S.L. and Mutuactivos, S.A.U., S.G.I.I.C. | |
Irrevocable Undertaking Agreement for the launch and acceptance of the takeover bid for the shares of Saeta Yield, S.A., dated as of February 6, 2018 between TERP Spanish HoldCo, S.L. and Sinergia Advisors 2006, A.V., S.A. | |
Support Agreement, dated as of February 6, 2018, between TerraForm Power, Inc. and Brookfield Asset Management Inc. | |
Press release, dated February 7, 2018, titled “TerraForm Power Announces Offer to Acquire 100% of Leading European Renewable Power Business, Saeta Yield.” | |
TerraForm Power, Inc. presentation materials titled “Saeta Yield Acquisition”, dated as of February 7, 2018. |
TERRAFORM POWER, INC. | ||
Date: February 7, 2018 | By: | /s/ Andrea Rocheleau |
Name: | Andrea Rocheleau | |
Title: | General Counsel and Secretary |
Irrevocable Undertaking Agreement for the launch and acceptance of the takeover bid for the shares of Saeta Yield, S.A. |
BETWEEN |
TERP Spanish HoldCo, S.L. |
As the Bidder |
AND |
Cobra Concesiones, S.L. |
GIP II Helios, S.à r.l. |
As the Selling Shareholders |
In Madrid, on 6 February 2018 |
I. | “Saeta Yield, S.A.” is a Spanish corporation (sociedad anónima) with registered office at Avenida de Burgos, 16D, Madrid, 28036, holding Tax Identification Number (NIF) A-85699221, and registered with the Commercial Registry of Madrid at Volume (Tomo) 26,842, Page (Folio) 14 and Sheet (Hoja) M-483,710 (the “Target” or the “Company”), whose issued share capital amounts to EUR 81,576,928.00 and is represented by 81,576,928 ordinary shares, of EUR 1.00 par value each, fully subscribed and paid-up, all of which are |
II. | As of the date hereof, the Selling Shareholders jointly own 39,337,270 Shares in the Company, which represent 48.222% of the Company’s total share capital (the “Selling Shareholders’ Shares”). Each Selling Shareholder owns the Shares described as follows: |
Shareholder | Number of Shares (owned directly or indirectly) | % |
Cobra Concesiones, S.L. | 19,750,212 | 24.211% |
GIP II Helios, S.à r.l. | 19,587,058 | 24.011% |
III. | The Bidder has agreed to launch a voluntary takeover bid in relation with the total share capital of the Company (the “Offer”), through which the Bidder wishes to acquire the Selling Shareholders’ Shares from the Selling Shareholders, and the Selling Shareholders have agreed to irrevocably accept the Offer and tender the Selling Shareholders’ Shares under the Offer, all the preceding pursuant to the terms and conditions set out herein. |
IV. | In view of the foregoing, the Parties have agreed to enter into this irrevocable undertaking agreement for the launch and acceptance of the Offer (the “Agreement”) in accordance with the following |
1. | LAUNCHING OF THE OFFER |
1.1 | Commitment to launch the Offer |
1.2 | The terms of the Offer |
(i) | the Offer shall be launched at a price of EUR 12.20 per Share of the Company, to be paid fully in cash (the “Offer Price”); |
(ii) | the shareholders of the Company shall be granted a term of 15 calendar days to accept the Offer (the “Acceptance Period”); and |
(iii) | the Offer shall only be conditional upon: |
(a) | the Bidder obtaining merger control clearance from the European Commission (in so far as legally required); and |
(b) | the Selling Shareholders irrevocably accepting the Offer in respect of Shares representing no less than 48.222% of the Company’s voting share capital. |
(w) | if the settlement of the Offer takes place before 25 May 2018, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount of EUR 0.1967 per share; |
(x) | if the settlement of the Offer takes place on or after 25 May 2018 and before 24 August 2018, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount of EUR 0.3967 per share; |
(y) | if the settlement of the Offer takes place on or after 24 August 2018 and before 23 November 2018, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount a maximum of EUR 0.6017 per share; and |
(z) | if the settlement of the Offer takes place on or after 23 November 2018 and before 22 February 2019, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount of EUR 0.8067 per share, |
1.3 | Announcement and filing for authorisation |
1.4 | Withdrawal of the Offer |
1.5 | Amendments to the Offer Terms and Conditions |
1.6 | Information |
(i) | provide to the Selling Shareholders and its advisors the initial and subsequent versions of the Offer Document and the Request for Authorisation and, to the extent they contain references to the Selling Shareholders, excerpts of press releases, investor presentations or any other material Offer document, in each case with forty-eight (48) hours for review before they are filed with the CNMV or disclosed to the market (as applicable), and consider (but not be bound by) any reasonable comment they may provide; and |
(ii) | keep the Selling Shareholders timely informed of the Offer authorisation process and any material developments or requests received from the CNMV or any other regulatory authority. |
2. | THE SELLING SHAREHOLDERS’ COMMITMENTS |
2.1 | Acceptance of the Offer |
(i) | the Bidder decides to withdraw the Offer in accordance with Clause 1.4; or |
(ii) | the CNMV does not authorize the Offer by 31 July 2018. |
2.2 | Voting |
2.3 | Directors’ report on the Offer |
2.4 | Selling Shareholders’ proprietary directors’ resignation |
2.5 | Standstill |
2.6 | Related-party transactions |
2.7 | Termination of the ROFO Agreement |
3. | POST OFFER SETTLEMENT STANDSTILL |
(i) | neither it nor TerraForm Power Inc. nor any subsidiary of TerraForm Power Inc. shall transfer, acquire or agree to transfer or acquire any Share; and |
(ii) | it shall use all reasonable efforts to cause its affiliates (other than those mentioned in the preceding paragraph) not to transfer, acquire or agree to transfer or acquire any Share, |
4. | REPRESENTATIONS AND WARRANTIES |
4.1 | Representations and warranties from the Bidder |
(i) | The Bidder is validly incorporated, in existence and duly registered under the laws of its jurisdiction and has full corporate power to carry out its object (including the capacity to dispose of and encumber its assets) as conducted as at the date of this Agreement; and to be party to the contracts and perform the obligations deriving from them. |
(ii) | The Bidder has obtained all corporate authorisations and all other governmental, statutory, regulatory or other consents, licenses and authorizations required to enter into and perform its obligations under this Agreement. |
(iii) | This Agreement is not contrary to or entail a breach of any of the corporate documents of the Bidder, nor is it contrary to any laws or regulations in its jurisdiction or of any order, decree or judgment of any court or any governmental or regulatory authority. |
(iv) | The Bidder is neither insolvent or bankrupt under the laws of its jurisdiction of incorporation, nor unable to pay its debts as they fall due or is held liable due to its inability to pay any debt. The Bidder is not party to any proceeding against it in connection with arrangements with creditors, nor is it subject to any winding up, bankruptcy or insolvency proceeding or are there reasons to believe such proceedings may be initiated against the Bidder in the future. |
(v) | The Bidder has available funds and/or has obtained binding funding commitments which provide the necessary cash resources to settle the Offer and obtain the bank guarantee referred to in article 15.2 of the Takeover Regulations, in each case covering the Offer Price for 100% of the Shares. |
(vi) | Each of the above representations and warranties is true and accurate at the date hereof and shall remain true and accurate and not misleading on the settlement date of the Offer as if repeated immediately before the settlement of the Offer. |
4.2 | Representations and warranties from the Selling Shareholders |
(i) | It is validly incorporated, in existence and duly registered under the laws of its jurisdiction and has full corporate power to carry out its object (including the capacity to dispose of |
(ii) | It has obtained all internal corporate authorisations, and there are no governmental, statutory or regulatory consents or authorizations, in each case required to enter into and perform its obligations under this Agreement. |
(iii) | This Agreement is not contrary to or entails a breach of any of the corporate documents of the Selling Shareholder, nor is it contrary to any laws or regulations in its jurisdiction or of any order, decree or judgment of any court or any governmental or regulatory authority, in each case which are applicable to it. |
(iv) | It is the sole legal and beneficial owner of its relevant Selling Shareholders’ Shares as per Recital II. The Selling Shareholders’ Shares owned by it are free from all liens, encumbrances and third-party rights and include all the voting and other rights attached thereto, as evidenced by the ownership certificate(s) a copy of which is attached hereto (which certificate(s) remain in the Selling Shareholders’ possession). |
(v) | It is entitled to dispose, sell and transfer the Selling Shareholders’ Shares it owns on the terms and conditions herein described. |
(vi) | It is neither insolvent nor bankrupt under the laws of its jurisdiction of incorporation, nor unable to pay its debts as they fall due or were held liable due to their inability to pay any debt. It is not party to any proceeding in connection with arrangements with creditors nor is it subject to any winding up, bankruptcy or insolvency proceeding or has reasons to believe such proceedings may be initiated it in the future. |
(vii) | Each of the above representations and warranties is true and accurate at the date hereof and shall remain true and accurate and not misleading on the settlement date of the Offer as if repeated immediately before the settlement of the Offer. |
5. | SEVERAL LIABILITY OF THE SELLING SHAREHOLDERS |
6. | BREACH |
7. | DURATION |
8. | EARLY TERMINATION OF THE AGREEMENT |
(i) | by one Party giving notice to the other Parties if the CNMV rejects the Offer and the Bidder decides not to request again its authorization; or |
(ii) | by one Party giving notice to the other Parties if the CNMV does not authorize the Offer by 31 July 2018; or |
(iii) | by the Bidder upon withdrawing the Offer pursuant to Clause 1.4; or |
(iv) | by a non-breaching Party giving notice to the other Parties if this Agreement has been materially breached, pursuant to Clause 6. |
9. | ANNOUNCEMENTS |
10. | MISCELLANEOUS |
10.1 | No assignment |
10.2 | Amendments |
10.3 | Severability |
10.4 | Entire Agreement |
10.5 | Counterparts |
10.6 | Waiver |
10.7 | Costs |
10.8 | Notices |
Addressee: | Ms Emmanuelle Rouchel |
Address: | 99 Bishopsgate, London, EC2M 3XD |
E-mail: | x@brookfield.com |
Addressee: | Mr Ricardo Arias |
Address: | 21 calle Serrano, 2nd floor, 28001, Madrid, Spain |
E-mail: | x@brookfield.com |
Addressee: | Mr José María Castillo Lacabex |
Address: | Calle Cardenal Marcelo Spínola 10, 28016 Madrid (Spain) |
E-mail: | x@grupocobra.com |
Addressee: | Ms Aida Pérez Alonso |
Address: | Calle Cardenal Marcelo Spínola 10, 28016 Madrid (Spain) |
E-mail: | y@grupocobra.com |
Addressee: | Mr Alejandro Ortiz Vaamonde and Mr Esteban Arza Bombin |
Address: | Calle Almagro 40, 28010 Madrid (Spain) |
E-mail: |
Addressee: | GIP II Helios, S.à r.l. Board of managers |
Address: | 6, rue Eugène Ruppert, L-2453, Luxembourg |
Addressee: | Mr Antoine Kerrenneur |
Address: | The Peak, 5 Wilton Road, London SW1V 1AN, United Kingdom |
E-mail: |
Addressee: | Mr Joseph Blum Global Infrastructure Partners, General Counsel |
Address: | The Peak, 5 Wilton Road, London SW1V 1AN, United Kingdom |
E-mail: |
Addressee: | Mr Alejandro Ortiz Vaamonde and Mr Esteban Arza Bombin |
Address: | Calle Almagro 40, 28010 Madrid (Spain) |
E-mail: |
10.9 | Governing law |
10.10 | Jurisdiction |
TERP Spanish HoldCo, S.L. By: /s/ Alfredo Zamarriego Fernández Mr Alfredo Zamarriego Fernández | By: /s/ Ricardo Arias Sainz Mr Ricardo Arias Sainz |
Cobra Concesiones, S.L. By: /s/ José María Castillo Lacabex Mr José María Castillo Lacabex |
Irrevocable Undertaking Agreement for the launch and acceptance of the takeover bid for the shares of Saeta Yield, S.A. |
BETWEEN |
TERP Spanish HoldCo, S.L. |
As the Bidder |
AND |
MUTUACTIVOS, S.A.U., S.G.I.I.C. |
In Madrid, on 6 February 2018 |
I. | Saeta Yield, S.A. is a Spanish corporation (sociedad anónima) with registered office at Avenida de Burgos, 16D, Madrid, 28036, holding Tax Identification Number (NIF) A-85699221, and registered with the Commercial Registry of Madrid at Volume (Tomo) 26,842, Page (Folio) 14 and Sheet (Hoja) M-483,710 (the “Target” or the “Company”), whose issued share capital amounts to EUR 81,576,928.00 and is represented by 81,576,928 ordinary shares, of EUR 1.00 par value each, fully subscribed and paid-up, all of which are of the same class and pertain to the same series and are represented by book entries (the “Shares”). All the Shares are listed on the Madrid, Barcelona, Bilbao and Valencia Stock Exchanges and traded through the Automated Quotation System of such Stock Exchanges (Sistema de Interconexión Bursátil). |
II. | As of the date hereof, the Selling Shareholder represents funds, SICAVs and managed portfolios identified in Annex 1 hereto, which collectively own 1,430,726 Shares in the Company representing 1.754% of the Company’s total share capital (the “Selling Shareholder’s Shares”). Notwithstanding, should the Selling Shareholder acquire, receive by any means or be entitled to any other Shares during the course of the Offer, as defined in the following paragraph, the Selling Shareholder’s Shares will also encompass such other Shares. |
III. | The Bidder has agreed to launch a voluntary takeover bid in relation with the total share capital of the Company (the “Offer”), through which the Bidder wishes to acquire the Selling Shareholder’s Shares, and the Selling Shareholder has agreed to irrevocably accept the Offer and tender the Selling Shareholder’s Shares under the Offer pursuant to the terms and conditions set out herein. |
IV. | In view of the foregoing, the Parties have agreed to enter into this irrevocable undertaking agreement for the launch and acceptance of the Offer (the “Agreement”) in accordance with the following |
1. | LAUNCHING OF THE OFFER |
1.1 | Commitment to launch the Offer |
1.2 | The terms of the Offer |
(i) | the Offer shall be launched at a price of EUR 12.20 per Share, to be paid fully in cash (the “Offer Price”); |
(ii) | the shareholders of the Company shall be granted a term of 15 calendar days to accept the Offer (the “Acceptance Period”); and |
(iii) | the Offer shall only be conditional upon: |
(a) | the Bidder obtaining merger control clearance from the European Commission (in so far as legally required); and |
(b) | the Offer being irrevocably accepted by shareholders of the Target representing no less than 48.222% of the Company’s voting share capital. |
(w) | if the settlement of the Offer takes place before 25 May 2018, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount of EUR 0.1967 per share; |
(x) | if the settlement of the Offer takes place on or after 25 May 2018 and before 24 August 2018, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount of EUR 0.3967 per share; |
(y) | if the settlement of the Offer takes place on or after 24 August 2018 and before 23 November 2018, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount a maximum of EUR 0.6017 per share; and |
(z) | if the settlement of the Offer takes place on or after 23 November 2018 and before 22 February 2019, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount of EUR 0.8067 per share, |
1.3 | Announcement and filing for authorisation |
1.4 | Withdrawal of the Offer |
1.5 | Amendments to the Offer Terms and Conditions |
2. | THE SELLING SHAREHOLDER’S COMMITMENTS |
2.1 | Acceptance of the Offer |
(i) | the Bidder decides to withdraw the Offer, in accordance with Clause 1.4; or |
(ii) | the CNMV does not authorise the Offer. |
2.2 | Voting |
2.3 | Standstill |
2.4 | Related-party transactions |
3. | REPRESENTATIONS AND WARRANTIES |
3.1 | Representations and warranties from the Bidder |
(i) | The Bidder is validly incorporated, in existence and duly registered under the laws of its jurisdiction and has full corporate power to carry out its object (including the capacity to dispose of and encumber its assets) as conducted as at the date of this Agreement; and to be party to the contracts and perform the obligations deriving from them. |
(ii) | The Bidder has obtained all corporate authorisations and all other governmental, statutory, regulatory or other consents, licenses and authorizations required to enter into and perform its obligations under this Agreement. |
(iii) | This Agreement is not contrary to or does not entail a breach of any of the corporate documents of the Bidder, nor is it contrary to any laws or regulations in its jurisdiction or of any order, decree or judgment of any court or any governmental or regulatory authority. |
(iv) | The Bidder is neither insolvent or bankrupt under the laws of its jurisdiction of incorporation, nor unable to pay its debts as they fall due or is held liable due to its inability to pay any debt. The Bidder is not party to any proceeding against it in connection with arrangements with creditors, nor is it subject to any winding up, bankruptcy or insolvency proceeding or are there reasons to believe such proceedings may be initiated against the Bidder in the future. |
(v) | Each of the above representations and warranties is true and accurate at the date hereof and shall remain true and accurate and not misleading on the settlement date of the Offer as if repeated immediately before the settlement of the Offer |
3.2 | Representations and warranties from the Selling Shareholder |
(i) | It is validly incorporated, in existence and duly registered under the laws of its jurisdiction and has full corporate power to carry out its object (including the capacity to dispose of and encumber its assets) as conducted as at the date of this Agreement; and to be party to the contracts and perform the obligations deriving from them. |
(ii) | It has obtained all internal corporate authorisations, and there are no governmental, statutory or regulatory consents or authorizations, in each case, required to enter into and perform its obligations under this Agreement. |
(iii) | This Agreement is not contrary to or does not entail a breach of any of the corporate documents of the Selling Shareholder, nor is it contrary to any laws or regulations in its jurisdiction or of any order, decree or judgment of any court or any governmental or regulatory authority, in each case which are applicable to it. |
(iv) | It is the legal representative of the sole legal and beneficial owners of each of the Selling Shareholder’s Shares. The Selling Shareholder’s Shares are free from all liens, encumbrances and third party rights and include all the voting and other rights attached thereto, as evidenced by the ownership certificate(s) attached hereto. |
(v) | It is entitled to dispose, sell and transfer the Selling Shareholder’s Shares on the terms and conditions herein described. |
(vi) | It is neither insolvent nor bankrupt under the laws of its jurisdiction of incorporation, nor unable to pay its debts as they fall due or were held liable due to their inability to pay any debt. It is not party to any proceeding in connection with arrangements with creditors nor is it subject to any winding up, bankruptcy or insolvency proceeding or has reasons to believe such proceedings may be initiated it in the future. |
(vii) | Each of the above representations and warranties is true and accurate at the date hereof and shall remain true and accurate and not misleading on the settlement date of the Offer as if repeated immediately before the settlement of the Offer. |
4. | BREACH |
5. | DURATION |
6. | EARLY TERMINATION OF THE AGREEMENT |
(i) | by one Party giving notice to the other Party if the CNMV does not authorise the Offer and the Bidder decides not to request again such authorisation; |
(ii) | by the Bidder upon withdrawing the Offer pursuant to Clause 1.4, without prejudice to any of its rights under Clause 4; or |
(iii) | by the non-breaching Party giving notice to the other Party if this Agreement has been materially breached, pursuant to Clause 4 |
7. | ANNOUNCEMENTS |
8. | MISCELLANEOUS |
8.1 | No assignment |
8.2 | Amendments |
8.3 | Severability |
8.4 | Entire Agreement |
8.5 | Counterparts |
8.6 | Waiver |
8.7 | Costs |
8.8 | Notices |
Addressee: | Ms Emmanuelle Rouchel |
Address: | 99 Bishopsgate, London, EC2M 3XD |
E-mail: | ###@brookfield.com |
Addressee: | Mr Ricardo Arias |
Address: | 21 calle Serrano, 2nd floor, 28001, Madrid, Spain |
E-mail: | ####@brookfield.com |
Addressees: | Mr. Angel Fresnillo Salcedo |
Address: | Paseo de la Castellana, 33, Edificio Fortuny, 28010, Madrid, Spain |
E-mail: |
Addressee: | Mr. José Ángel Fuentes Berna |
Address: | Paseo de la Castellana, 33, Edificio Fortuny, 28010, Madrid, Spain |
E-mail: |
8.9 | Governing law |
8.10 | Jurisdiction |
TERP Spanish HoldCo S.L. By: /s/ Alfredo Zamarriego Fernández Mr Alfredo Zamarriego Fernández | By: /s/ Ricardo Arias Sainz Mr Ricardo Arias Sainz |
MUTUACTIVOS, S.A.U., S.G.I.I.C. By: /s/ Angel Fresnillo Salcedo Mr Angel Fresnillo Salcedo | MUTUACTIVOS, S.A.U., S.G.I.I.C. By: /s/ Pedro Pablo García García Mr Pedro Pablo García García |
Portfolio | ISIN | Spanish tax identification number | Target Company’s Shares |
Mutuafondo Unnefar F.I. | ES0165184005 | V-87426110 | 2,553 |
Mutuafondo Crecimiento F.I. | ES0175808007 | V-86995288 | 62,155 |
Mutuafondo Fortaleza F.I. | ES0165145006 | V-86995503 | 8,257 |
Mutuafondo España F.I. | ES0165144009 | V-58644128 | 375,768 |
Mutuafondo Estrategia Global F.I.L. | ES0165112006 | V-85852523 | 125,838 |
Mutuafondo Dividendo F.I. | ES0175809005 | V-87256251 | 567,084 |
Mutuafondo Valores F.I. | ES0165241037 | V-82112533 | 209,328 |
Arizcun, Sicav, S.A. | ES0110226034 | A-78935509 | 4,335 |
Portfolio | Reg. no. with Pension Fund Regulator (DGSFP) | Spanish tax identification number | Target Company’s Shares |
Fondomutua F.P. | F0984 | V-83477349 | 18,037 |
Fondauto F.P. | F0232 | V-79513032 | 46,518 |
Fondomutua Empleo Moderado F.P. | F1370 | V-84671833 | 7,261 |
Fondomutua Empleo Dinámico F.P. | F1373 | V-84671908 | 3,592 |
Irrevocable Undertaking Agreement for the launch and acceptance of the takeover bid for the shares of Saeta Yield, S.A. |
BETWEEN |
TERP Spanish HoldCo, S.L. |
As the Bidder |
AND |
Sinergia Advisors 2006, A.V., S.A. |
In Madrid, on 6 February 2018 |
I. | “TERP Spanish HoldCo, S.L.”, a company incorporated and validly existing under the laws of Spain, with registered office at 21 calle Serrano, Madrid, 28001, registered at the Commercial Registry of Madrid at book 35,995, volume 9, section 8, sheet M-646,732, entry 1 and provided with tax identification number B87827648 (the “Bidder”), duly represented by Mr Alfredo Zamarriego Fernández and Mr Ricardo Arias Sainz, in their capacity as Joint and Several Directors of the Bidder, pursuant to the notarial deed executed on 30 January 2018 before the notary public of Madrid Mr Francisco Miras Ortiz, with number 301 of his protocol; |
II. | “Sinergia Advisors 2006, A.V., S.A.”, a company incorporated and validly existing under the laws of Spain, with registered office at calle Velázquez 47, 28001 Madrid, registered with the Commercial Registry of Madrid and with the Registry of Investment Agencies at the Spanish National Securities Market Commission (number 217), and provided with tax identification number A84582279 (the “Selling Shareholder”), duly represented by Mr José Brañas Garza, in his capacity as Chief Executive Officer, pursuant to the notarial deed executed on 2 June 2016 before notary public of Madrid Mr Luis Rueda Esteban, with number 1,128 of his protocol. |
I. | Saeta Yield, S.A. is a Spanish corporation (sociedad anónima) with registered office at Avenida de Burgos, 16D, Madrid, 28036, holding Tax Identification Number (NIF) A-85699221, and registered with the Commercial Registry of Madrid at Volume (Tomo) 26,842, Page (Folio) 14 and Sheet (Hoja) M-483,710 (the “Target” or the “Company”), whose issued share capital amounts to EUR 81,576,928.00 and is represented by 81,576,928 ordinary shares, of EUR 1.00 par value each, fully subscribed and paid-up, all of which are of the same class and pertain to the same series and are represented by book entries (the “Shares”). All the Shares are listed on the Madrid, Barcelona, Bilbao and Valencia Stock Exchanges and traded through the Automated Quotation System of such Stock Exchanges (Sistema de Interconexión Bursátil). |
II. | As of the date hereof, the Selling Shareholder represents Patrimonio Global, F.I., allocated ISIN ES0175807009 and holder tax identification number V-86445277, which holds 296,480 Shares in the Company representing 0.363% of the Company’s total share capital (the “Selling Shareholder’s Shares”). Notwithstanding, should the Selling Shareholder acquire, receive by any means or be entitled to any other Shares during the course of the |
III. | The Bidder has agreed to launch a voluntary takeover bid in relation with the total share capital of the Company (the “Offer”), through which the Bidder wishes to acquire the Selling Shareholder’s Shares, and the Selling Shareholder has agreed to irrevocably accept the Offer and tender the Selling Shareholder’s Shares under the Offer pursuant to the terms and conditions set out herein. |
IV. | In view of the foregoing, the Parties have agreed to enter into this irrevocable undertaking agreement for the launch and acceptance of the Offer (the “Agreement”) in accordance with the following |
1. | LAUNCHING OF THE OFFER |
1.1 | Commitment to launch the Offer |
1.2 | The terms of the Offer |
(i) | the Offer shall be launched at a price of EUR 12.20 per Share, to be paid fully in cash (the “Offer Price”); |
(ii) | the shareholders of the Company shall be granted a term of 15 calendar days to accept the Offer (the “Acceptance Period”); and |
(iii) | the Offer shall only be conditional upon: |
(a) | the Bidder obtaining merger control clearance from the European Commission (in so far as legally required); and |
(b) | the Offer being irrevocably accepted by shareholders of the Target representing no less than 48.222% of the Company’s voting share capital. |
(w) | if the settlement of the Offer takes place before 25 May 2018, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount of EUR 0.1967 per share; |
(x) | if the settlement of the Offer takes place on or after 25 May 2018 and before 24 August 2018, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount of EUR 0.3967 per share; |
(y) | if the settlement of the Offer takes place on or after 24 August 2018 and before 23 November 2018, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount a maximum of EUR 0.6017 per share; and |
(z) | if the settlement of the Offer takes place on or after 23 November 2018 and before 22 February 2019, one or more dividends can be paid, as from the date hereof, up to a maximum aggregated amount of EUR 0.8067 per share, |
1.3 | Announcement and filing for authorisation |
1.4 | Withdrawal of the Offer |
1.5 | Amendments to the Offer Terms and Conditions |
2. | THE SELLING SHAREHOLDER’S COMMITMENTS |
2.1 | Acceptance of the Offer |
(i) | the Bidder decides to withdraw the Offer, in accordance with Clause 1.4; or |
(ii) | the CNMV does not authorise the Offer. |
2.2 | Voting |
2.3 | Standstill |
2.4 | Related-party transactions |
3. | REPRESENTATIONS AND WARRANTIES |
3.1 | Representations and warranties from the Bidder |
(i) | The Bidder is validly incorporated, in existence and duly registered under the laws of its jurisdiction and has full corporate power to carry out its object (including the capacity to dispose of and encumber its assets) as conducted as at the date of this Agreement; and to be party to the contracts and perform the obligations deriving from them. |
(ii) | The Bidder has obtained all corporate authorisations and all other governmental, statutory, regulatory or other consents, licenses and authorizations required to enter into and perform its obligations under this Agreement. |
(iii) | This Agreement is not contrary to or does not entail a breach of any of the corporate documents of the Bidder, nor is it contrary to any laws or regulations in its jurisdiction or of any order, decree or judgment of any court or any governmental or regulatory authority. |
(iv) | The Bidder is neither insolvent or bankrupt under the laws of its jurisdiction of incorporation, nor unable to pay its debts as they fall due or is held liable due to its |
(v) | Each of the above representations and warranties is true and accurate at the date hereof and shall remain true and accurate and not misleading on the settlement date of the Offer as if repeated immediately before the settlement of the Offer. |
3.2 | Representations and warranties from the Selling Shareholder |
(i) | It is validly incorporated, in existence and duly registered under the laws of its jurisdiction and has full corporate power to carry out its object (including the capacity to dispose of and encumber its assets) as conducted as at the date of this Agreement; and to be party to the contracts and perform the obligations deriving from them. |
(ii) | It has obtained all internal corporate authorisations, and there are no governmental, statutory or regulatory consents or authorizations, in each case, required to enter into and perform its obligations under this Agreement. |
(iii) | This Agreement is not contrary to or does not entail a breach of any of the corporate documents of the Selling Shareholder, nor is it contrary to any laws or regulations in its jurisdiction or of any order, decree or judgment of any court or any governmental or regulatory authority, in each case which are applicable to it. |
(iv) | It is the legal representative of the sole legal and beneficial owners of each of the Selling Shareholder’s Shares. The Selling Shareholder’s Shares are free from all liens, encumbrances and third party rights and include all the voting and other rights attached thereto, as evidenced by the ownership certificate(s) attached hereto. |
(v) | It is entitled to dispose, sell and transfer the Selling Shareholder’s Shares on the terms and conditions herein described. |
(vi) | It is neither insolvent nor bankrupt under the laws of its jurisdiction of incorporation, nor unable to pay its debts as they fall due or were held liable due to their inability to pay any debt. It is not party to any proceeding in connection with arrangements with creditors nor is it subject to any winding up, bankruptcy or insolvency proceeding or has reasons to believe such proceedings may be initiated it in the future. |
(vii) | Each of the above representations and warranties is true and accurate at the date hereof and shall remain true and accurate and not misleading on the settlement date of the Offer as if repeated immediately before the settlement of the Offer. |
4. | BREACH |
5. | DURATION |
6. | EARLY TERMINATION OF THE AGREEMENT |
(i) | by one Party giving notice to the other Party if the CNMV does not authorise the Offer and the Bidder decides not to request again such authorisation; |
(ii) | by the Bidder upon withdrawing the Offer pursuant to Clause 1.4, without prejudice to any of its rights under Clause 4; or |
(iii) | by the non-breaching Party giving notice to the other Party if this Agreement has been materially breached, pursuant to Clause 4 |
7. | ANNOUNCEMENTS |
8. | MISCELLANEOUS |
8.1 | No assignment |
8.2 | Amendments |
8.3 | Severability |
8.4 | Entire Agreement |
8.5 | Counterparts |
8.6 | Waiver |
8.7 | Costs |
8.8 | Notices |
Addressee: | Ms Emmanuelle Rouchel |
Address: | 99 Bishopsgate, London, EC2M 3XD |
E-mail: | ###@brookfield.com |
Addressee: | Mr Ricardo Arias |
Address: | 21 calle Serrano, 2nd floor, 28001, Madrid, Spain |
E-mail: |
Addressee: | Mr Rafael Núñez-Lagos / Mr Alfonso Ventoso |
Address: | C/ Príncipe de Vergara, 187, 28002, Madrid, Spain |
E-mail: |
Addressee: | Mr José Brañas Garza |
Address: | C/ Velázquez 47 – 5º Izquierda CP. 28007 Madrid |
E-mail: |
8.9 | Governing law |
8.10 | Jurisdiction |
TERP Spanish HoldCo S.L. By: /s/ Alfredo Zamarriego Fernández Mr Alfredo Zamarriego Fernández | By: /s/ Ricardo Arias Sainz Mr Ricardo Arias Sainz |
Sinergia Advisors 2006, AV, S.A. By: /s/ José Brañas Garza Mr José Brañas Garza |
1. | Provision of the Back-Stop |
3. | Further Assurances |
4. | Governing Law |
5. | Counterparts |
BROOKFIELD ASSET MANAGEMENT INC. | |
by: | /s/ Sachin Shah |
Name: Sachin Shah | |
Title: Senior Managing Partner | |
TERRAFORM POWER, INC. | |
by: | /s/ Andrea Rocheleau |
Name: Andrea Rocheleau | |
Title: General Counsel and Secretary | |
• | TerraForm Power has launched a tender offer to acquire 100% of Saeta’s outstanding shares |
• | The tender offer is irrevocably supported by Saeta shareholders who together own more than a 50% interest and have committed to sell into the offer |
• | Saeta owns and operates 1,028 megawatts of rate-regulated and contracted solar and wind assets, located primarily in Spain |
• | Acquisition of Saeta significantly increases TerraForm Power’s overall portfolio and establishes a scale presence in its target Western European market |
• | Transaction is highly accretive to TerraForm Power and improves its balance sheet and credit profile |
• | TerraForm Power intends to finance the transaction with a $400 million equity offering, fully backstopped by Brookfield 1, with the balance funded from available liquidity |
• | Highly accretive transaction. The acquisition is highly accretive to TerraForm Power, with CAFD accretion of 24% on a pro forma basis and returns on equity in excess of TerraForm Power’s target. |
• | High quality asset base in attractive target market. Saeta’s portfolio is comprised of 100% owned, recently constructed assets primarily in Western Europe, including 778 megawatts of onshore wind and 250 megawatts of concentrated solar, with an average age of six years and a remaining useful life in excess of 25 years. |
• | Assets with stable and predictable cash flows. 100% of Saeta’s revenues are generated under stable frameworks with investment grade counterparties. Over 80% of Saeta’s revenues are regulated under the Spanish renewable power regime with limited resource and market price risk. The remaining 20% |
• | Multiple value levers. TerraForm Power will have the opportunity to implement multiple value enhancing initiatives that can improve the overall cost profile of the business along with optimizing its capital structure. |
• | Accelerates deleveraging of TerraForm Power’s balance sheet. The acquisition furthers TerraForm Power’s long-term plan to establish an investment grade balance sheet and accelerates deleveraging of its corporate debt to cash flow ratio towards its 4.0x to 5.0x target. |
• | A $400 million equity offering, which Brookfield has agreed to backstop in order to provide a minimum issuance price equal to TerraForm Power’s 5-day VWAP immediately prior to announcement of the transaction1; |
• | The remaining $800 million will be financed with available liquidity, which TerraForm Power intends to refinance with a combination of project financings of its unencumbered assets and cash to be released from Saeta’s assets. |
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