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Ferrovial SE – ‘20FR12B’ on 1/5/24 – ‘EX-4.2’

On:  Friday, 1/5/24, at 5:04pm ET   ·   Accession #:  1104659-24-1882   ·   File #:  1-41912

Previous ‘20FR12B’:  None   ·   Next:  ‘20FR12B/A’ on 4/16/24   ·   Latest:  ‘20FR12B/A’ on 4/29/24   ·   2 References:   By:  Ferrovial SE – Latest ‘20FR12B/A’ on 4/29/24 By:  Ferrovial SE – Next ‘20FR12B/A’ on 4/16/24 

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  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 1/05/24  Ferrovial SE                      20FR12B                6:61M                                    Toppan Merrill/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 20FR12B     Registration Statement by a Foreign Non-Canadian    HTML  10.91M 
                Issuer                                                           
 2: EX-1.1      Underwriting Agreement or Conflict Minerals Report  HTML    158K 
 3: EX-4.1      Instrument Defining the Rights of Security Holders  HTML    104K 
 4: EX-4.2      Instrument Defining the Rights of Security Holders  HTML    293K 
 5: EX-8.1      Opinion of Counsel re: Tax Matters                  HTML     60K 
 6: EX-15.1     Letter re: Unaudited Interim Financial Info         HTML      5K 

Exhibit 4.2  

EXECUTION VERSION

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.

THE SELLER

THE BUYERS

AGREEMENT FOR THE SALE AND PURCHASE OF

A 25% INTEREST IN FGP TOPCO LIMITED

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Contents

Agreed form documents:

Deed of Adherence to the Shareholders’ Agreement

Indemnity in lieu of share certificates

Investor Director resignation letters

[***]

Shareholders’ Agreement

Articles of Association

Voting power of attorney

THIS AGREEMENT is made on ________________________

BETWEEN:

Ardian and PIF are together the "Buyers" and each a "Buyer", acting severally.

THE PARTIES AGREE as follows:

"Act" means the Companies Act 2006;

"[***]" means [***];

"Affiliate" means, in relation to a person, any group undertaking (as defined in Clause 1.2.1) of such person and when used in relation to a Buyer, the term "Affiliate" means:

provided that, notwithstanding the above:

"AML Laws" means all applicable anti-money laundering laws related to the prevention of money laundering and terrorist financing, including but not limited to the Bank Secrecy Act and the USA PATRIOT Act and United Kingdom Proceeds of Crime Act 2002, to the extent applicable;

"Anti-Corruption Laws" means any applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act and the United Kingdom Bribery Act 2010;

"Applicable Law" means any applicable federal, state, local, foreign, international or multinational treaty, constitution, statute or other law, ordinance, code, decree, rule, regulation, communiqué, circular, standard, municipal by-law, judicial or arbitral or administrative or ministerial or departmental or regulatory judgment, order, injunction, decision, ruling or award, policy or other requirement of any Governmental Entity;

"Ardian Funds" means, together, the Ardian V Funds and the Ardian VI Funds;

"Ardian V Funds" means ARDIAN Infrastructure Fund V S.C.A, SICAR and ARDIAN Infrastructure Fund V B.S.C.S., SICAV RAIF;

"Ardian VI Funds" means ARDIAN Infrastructure Fund VI S.C. S., SICAV RAIF and ARDIAN Infrastructure Fund VI B.S.C.S., SICAV RAIF;

"Ardian Initial Consideration Amount" means Ardian's Relevant Proportion of the Initial Consideration being the amount attributable to the acquisition of the Ardian Relevant Shares;

"Ardian Relevant Shares" means (i) 818,982,832 ordinary shares of £0.0024 each in the capital of the Company; and (ii) 199 deferred ordinary shares of £0.10 each in the capital of the Company;

"Articles Amendment" has the meaning given in [***];

"Articles of Association" means the articles of association of the Company in the agreed form;

"Authority" means any government, quasi government, regulatory or administrative authority;

"Base Consideration" means £2,165,000,000.00;

"Business Day" means a day other than a Saturday or Sunday or public holiday in England and Wales;

"Buyer's Completion Documents" means each Transaction Document which is to be entered into by each Buyer;

"Buyer Confidential Information" means any information contained in any forms, applications, notifications, filings, submissions and other communication submitted or sent to the Relevant Authority, which either Buyer reasonably considers to be competitive and/or commercially sensitive;

"Buyer Fund" means a Fund whose general partner, trustee, nominee, manager or adviser is a group undertaking of Ardian;

"Buyer's Group" means in respect of a Buyer, such Buyer and any Affiliate of that Buyer;

"Buyers' Solicitors" means:

"CAA" means the Civil Aviation Authority;

"CMA" means the Competition and Markets Authority or any successor body which has the powers to determine appeals in respect of airport licences in the United Kingdom;

"[***]" means [***];

"Company" means FGP Topco Limited, a company incorporated in England and Wales (registered no. 05723961), whose registered office is at The Compass Centre, Nelson Road, Hounslow, Middlesex, TW6 2GW;

"Company Relevant Proportion" means the Sale Shares divided by the total number of shares issued by the Company, expressed as a percentage, as at Completion;

"Completion" means completion of the sale and purchase of the Sale Shares in accordance with this Agreement;

"Completion Date" means the date which is twenty-one (21) Business Days after the date on which the Conditions are satisfied or waived in accordance with Clause ‎5 (provided that if such date would occur on a day which is a public holiday in Madrid, Spain, then the Completion Date shall be the next occurring day which is (i) a Business Day and (ii) not a public holiday in Madrid, Spain), or such other date as is agreed in writing between the Seller and the Buyers;

"Conditions" means the conditions listed in Clause 5.1;

"Confidential Information" means all information which is used in or otherwise relates to any Group Company's business, customers or financial or other affairs, but does not include information that is publicly available as at the date of this Agreement or which is made public other than by the Seller in breach of this Agreement;

"Consideration" has the meaning given in Clause 3.1;

"Contingent Funding Amount" means an amount equal to [***];

"Continuing Shareholders" means holders of shares in the Company as at the date of this Agreement other than the Seller;

"Dispute" means any dispute arising from or connected with this Agreement;

"Encumbrance" means a claim, charge, mortgage, lien, option, equitable right, power of sale, pledge, hypothecation, retention of title, right of pre-emption, right of first refusal or other third party right or security interest of any kind or other encumbrance or right to create the foregoing, whether registered or unregistered;

"Equity Commitment Letters" means the equity commitment letters (i) dated 10 August 2023 from some or all of the Ardian Funds to Ardian; (ii) dated 10 August 2023 from the Public Investment Fund to PIF [***];

"Equity Proportion" has the meaning given in the Articles of Association and the Shareholders’ Agreement;

"Establishment" means any relevant governmental body carrying out legislative, judicial or administrative functions (including independent authorities, such as any antitrust authority, any foreign direct investment authorities (pursuant to Applicable Law on foreign direct investment), executive or arbitral functions), whether English or international, state, regional, provincial, municipal or local, as well as any officer, member, apparatus, office or body of the same acting in their capacity as an officer, member, office or body of the governmental body;

"[***]" means [***];

"FSMA" means the Financial Services and Markets Act 2000;

"Fund" means any unit trust, investment trust, investment company, limited partnership, general partnership, collective investment scheme, pension fund, insurance company, authorised person under FSMA or any body corporate or other entity, in each case the assets of which are managed professionally for investment purposes;

"GBP" or "£" means pounds sterling, being the lawful currency of the United Kingdom;

"Governance Documents" means, together, the Articles of Association and the Shareholders' Agreement;

"Governmental Entity" means any federal, national, supranational, state, provincial or local government or any governmental, regulatory or administrative authority, agency, ministry, instrumentality or commission, or the authorities of any stock exchange or other entity lawfully exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government;

"Government Official" means any (i) executive, official, employee or person acting in an official capacity for or on behalf of an Authority; (ii) political party or official thereof; or (iii) candidate for political office;

"Gross-Up Amount" means the aggregate of any amounts payable by the Buyers upon (or with respect to) Completion pursuant to Clause [***];

"Group" means the Company and its subsidiary undertakings and "Group Company" shall be construed accordingly;

"Initial Consideration" has the meaning in Clause 3.2;

"Interest Amount" means an amount equal to the aggregate of the daily interest on the Base Consideration in the period from (and excluding) the Locked Box Date to (and including) the Completion Date, calculated at the annual rate of [***] per cent., which interest shall accrue from day to day and be compounded annually, assuming three hundred sixty-five (365) days in a year;

"Investor Director" means a director that sits on the board of any Group Company and has been appointed by the Seller or an Affiliate of the Seller pursuant to the Articles of Association and/or the Shareholders’ Agreement;

"Leakage" means any of the matters set out in Schedule 5 to this Agreement, but excluding any Permitted Leakage;

"Locked Box Date" means [***];

"Longstop Date" means the date falling [***] after the date of this Agreement;

"Midco Transferee" has the meaning given in [***];

"Notice" means a notice or other communication under or in connection with this Agreement;

"NSIA" means the National Security and Investment Act 2021;

"NSI Condition" means the condition listed in Clause 5.1.1;

"PIF Initial Consideration Amount" means PIF's Relevant Proportion of the Initial Consideration, being the amount attributable to the acquisition of the PIF Relevant Shares;

"PIF Relevant Shares" means (i) 545,988,554 ordinary shares of £0.0024 each in the capital of the Company; and (ii) 133 deferred ordinary shares of £0.10 each in the capital of the Company;

"Permitted Encumbrance" means an Encumbrance set out or provided for in articles 67 to 78 (inclusive) (Right of First Offer) of the Articles of Association and/or Clause 14 of the Shareholders’ Agreement, or other similar Encumbrances arising automatically in respect of shares in the Company as a result of the express terms of the Governance Documents;

"Permitted Leakage" means any of the matters set out in Schedule 4 to this Agreement;

"[***]" means [***];

"[***]" means [***];

"Pre-Completion Leakage" has the meaning given in Clause 6.4;

"Pre-Completion Leakage Amount" means the aggregate amount of Leakage (other than Permitted Leakage) which occurred or will occur prior to Completion, as notified by the Seller to the Buyers pursuant to Clause 6.4;

"Pre-Emption Condition" means the Condition listed in Clause 5.1.2;

"[***]" means [***];

"Relevant Authority" means the Cabinet Office of the United Kingdom and any persons or entities empowered to administer the NSIA, including, but not limited to, the United Kingdom's Investment Security Unit;

"Relevant Connected Person" means in respect of the Seller, any Affiliate of the Seller;

"[***]" means [***];

"Relevant Proportions" means:

"Relief" means any allowance, credit, deduction, exemption or set off in respect of any Tax or relevant to the computation of any income, profits or gains for the purposes of any Tax, or any right to repayment of or saving of Tax;

"[***]" means [***];

"RPI" means retail price index;

"Sale Shares" means 1,364,971,386 ordinary shares of £0.0024 each and 332 deferred ordinary shares of £0.10 each, in the capital of the Company owned by the Seller;

"Sanctions" means any economic or financial sanctions or trade embargoes imposed, administered or enforced by the U.S. Department of the Treasury's Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, or Her Majesty's Treasury of the United Kingdom or other relevant sanctions authority;

"[***]" means [***];

"Seller's Account" means [***];

"Seller's Completion Document" means, in respect of the Seller, each Transaction Document which is to be entered into by it;

"Seller's Solicitors" means Allen & Overy LLP of One Bishops Square, London E1 6AD;

"[***]" has the meaning given in [***];

"Shareholders' Agreement" means the shareholders' agreement between the Continuing Shareholders, the Seller and the Company, dated 10 July 2006 (as amended and restated on 20 December 2012) in the agreed form (subject to any amendments that may be agreed in accordance with Schedule 8);

"SONIA" means in respect of any day, the level of the sterling overnight index average provided by the Bank of England as administrator of the benchmark (or a successor administrator) in respect of that day, if that day is a London Business Day, or in respect of the London Business Day immediately preceding that day, if that day is not a London Business Day;

"Surviving Provisions" means Clauses 1 (Interpretation), 13 (Confidential Information), 14 (Announcements), 17 (Costs), 18 (General), 20(Entire Agreement), 21 (Assignment), 22 (Notices), 23 (Governing Law and Jurisdiction);

"Tag Along Notice" means the notice (as defined under article 82 of the Articles of Association) in the form set out in Schedule 7;

"[***]" means [***];

"Tax or Taxation" means any form of taxation, levy, duty, charge, contribution, withholding or impost of whatever nature (including any employment taxes and/or social security, any joint or secondary tax liabilities, related fine, penalty, surcharge or interest) imposed, collected or assessed by, or payable to, a Tax Authority;

"Tax Authority" means any government, state or municipality or any local, state, federal or other authority, body or official anywhere in the world exercising a fiscal, revenue, customs or excise function (including, without limitation, HM Revenue and Customs);

"Third Parties Act" means the Contracts (Rights of Third Parties) Act 1999;

"Transaction" means the acquisition of the Sale Shares by the Buyers from the Seller pursuant to this Agreement;

"Transaction Documents" means this Agreement and each document required to be entered into by any or all of the parties on or before Completion pursuant to the terms of this Agreement;

"Transaction Transfer Notice" means the notice (as defined under article 68 of the Articles of Association and Clause 14.2 of the Shareholders’ Agreement) in the form set out in Schedule 6;

“Transfer Notice” has the meaning given in article 68 of the Articles of Association and Clause 14.2 of the Shareholders’ Agreement;

"Warranty" means a statement contained in Schedule [***] and "Warranties" means all those statements; and

“Warranty Claim” means a claim by a Buyer, the basis of which is that a Warranty is, or is alleged to be, untrue or inaccurate.

free of any Encumbrance (other than Permitted Encumbrances).

(together, the "Initial Consideration"), which (subject to Clause 4.7) shall be payable in cash by the Buyers to the Seller at Completion in accordance with Clause 7.

being the "NSI Condition";

to be paid at Completion.

provided that the Buyers shall not be entitled to make any such election under this Clause 7.9 where such non-compliance relates solely to a failure by the Seller to procure any of those approvals contemplated by paragraphs 3.1, 3.2 and 3.3 of Schedule 3 (excluding circumstances where the Seller has failed to comply with its obligations under paragraph 4 of Schedule 3).

Steering Committee

in each case, the “Claim Notice Date”.

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

For a period of up to 5 years following Completion, each Buyer shall procure (to the extent within its individual power as a shareholder of the Company, and not acting in concert or on a joint basis with the other Buyer) that the Company shall provide such information and access to such information as the Seller may require in order to comply with its legal and regulatory obligations (including in respect of the preparation of its financial statements and the submission of any information to any Tax Authority). Each Buyer shall procure (to the extent reasonably within its and its Affiliates' power as a shareholder of the Company holding the relevant Equity Proportion which it holds at the relevant time, and not acting in concert or on a joint basis with the other Buyer) that the Company makes such information available to the Seller for inspection (during normal working hours on a Business Day) and, where reasonably required for the purpose of dealing with such affairs, copying, in each case at the Seller's expense and following reasonable advance notice by the Seller.

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Delay in exercising or non-exercise of any such right is not waiver of that right.

On or after Completion, the Seller shall execute and do (or use reasonable endeavours to procure to be executed and done by any other necessary party) all such deeds, documents, acts and things as may be required by applicable law or regulation in order to effect the transfer of title to those Sale Shares in the Buyer in accordance with this Agreement.

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

with a copy (which shall not constitute notice) to:

Ardian France (registered no. 403 201 882 R.C.S. Paris), 20 place Vendôme, 75001 Paris, France, marked for the attention of [***] ([***])

and with a copy (which shall not constitute notice) to:

Clifford Chance LLP, 10 Upper Bank Street, London, E14 5JJ, marked for the attention of [***] ([***]) and [***] ([***]);

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

and with a copy (which shall not constitute notice) to:

Latham & Watkins (London) LLP, 99 Bishopsgate, London EC2M 3XF, marked for the attention of [***] ([***]);

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

This Agreement may be executed in any number of counterparts, each of which when executed and delivered is an original and all of which together evidence the same agreement.

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Schedule 1
[***]

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Schedule 2
[***]

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Schedule 3
Completion Requirements

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Schedule 4
Permitted Leakage

[***]

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Schedule 5
Leakage

[***]

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Schedule 6
Form of Transaction Transfer Notice

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Schedule 7
Form of Tag Along Notice

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Schedule 8
Pre-Completion Undertakings

[***]

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

Schedule 9
Form Of Announcement

Fernando, indirect holder of c.25% of Helena Airport Holdings Ltd. has reached an agreement with Armando and Pedro for the sale of its entire stake in FGP Topco, parent company of Helena Airport Holdings Ltd. for ….. million pounds. The current book value of Fernando’s stake in Helena Airport Holdings Ltd as per Fernando’s consolidated accounts is zero. The agreement contemplates that Armando and Pedro would acquire Fernando’s shareholding in c.15% and c.10% stakes respectively through separate vehicles.

The transaction is subject to complying with ROFO and full tag-along rights which may be exercised by the other FGP Topco shareholders pursuant to the Shareholders’ Agreement and the Articles of Association of the company. In addition, completion of the acquisition under the agreement is subject to satisfaction of applicable regulatory conditions.

[Signature pages to follow]

***

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

EXECUTED BY THE PARTIES on the date written at the start of this Agreement:

For and on behalf of HUBCO NETHERLANDS B.V.

Title:

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

INFRAEUROPA SCA, represented by its managing general partner (actionnaire gérant commandité) INFRAEUROPA MANAGEMENT S.A.R.L., itself represented by:

Title: Manager and Authorised

Signatory Date:      

*** Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit because such information is both (i) non-material and (ii) the type of information that the registrant treats as private or confidential.  

For and on behalf of ALRAHALA FIRST INVESTMENT COMPANY

Title: Manager

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 4/29/24  Ferrovial SE                      20FR12B/A              3:8.8M                                   Toppan Merrill/FA
 4/16/24  Ferrovial SE                      20FR12B/A   4/15/24    3:8.8M                                   Toppan Merrill/FA