Current Report No.: 20/2022
Current Report No.: 20/2022
Date of Preparation: 8 April 2022
Issuer's Abbreviated Name: ENEA S.A.
Legal Basis: Article 17(1) of the Market Abuse Regulation - confidential information
Subject: Execution of the placement agreement and commencement of the bookbuilding process in the offering of Series D Shares by way of a private subscription
Body of the report:
The Management Board of ENEA S.A. ("Issuer" or "Company") hereby reports that on 8 April 2022, the Company signed a share placement agreement ("Placement Agreement") with Pekao Investment Banking Spółka Akcyjna ("Global Coordinator" or "Pekao IB") and Bank Polska Kasa Opieki Spółka Akcyjna ("BM Pekao") (together the "Joint Bookrunners") and that the private subscription bookbuilding process has been launched for up to 88,288,515 Series D ordinary bearer shares ("Series D Shares", "New Issue Shares") issued by the Company ("Offering").
The Offering of the New Issue Shares is conducted on the terms and conditions set forth in Resolution No. 5 adopted by the Company's Extraordinary General Meeting on 8 April 2022 to increase the Company's share capital by issuing Series D ordinary bearer shares, depriving existing shareholders of the entire preemptive right to subscribe for any Series D Shares, amending the Company's Articles of Association, applying for admission and introduction to trading of Series D Shares and/or rights to Series D Shares on the regulated market operated by the Warsaw Stock Exchange and dematerialization of Series D Shares and/or rights to Series D Shares ("Issue Resolution") and on the terms and conditions set forth in Management Board resolution of 8 April 2022 on setting the rules of offering, the rules of conducting the bookbuilding process and the subscription for and allotment of Series D Shares ("Management Board Resolution").
The bookbuilding process for the New Issue Shares will begin immediately after this current report is published and will be carried out by way of an accelerated bookbuilding process on the terms and conditions specified below.
The New Issue Shares will be offered in the territory of the Republic of Poland through a public offering exempt from the obligation to publish a prospectus within the meaning of the applicable provisions of law or another information document or offering document for such an offering, addressed solely to the investors who receive an invitation to participate in the Offering from the Joint Bookrunner: (a) qualified investors referred to in Article 1(4)(a) of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC ("Prospectus Regulation"); or (b) investors who acquire securities for a total consideration of at least EUR 100,000 per investor, as referred to in Article 1(4)(d) of the Prospectus Regulation, including the Eligible Investors (as defined below) within the meaning of the Issue Resolution. Under the Offering, the New Issue Shares may be offered outside of the territory of the Republic of Poland solely outside of the territory of the United States of America - in transactions that do not constitute a public offering executed outside of the United States of America (offshore transactions) in accordance with the definitions and provisions of Regulation S issued on the basis of the US Securities Act of 1933, as amended.
The Offering may be conducted and the New Issue Shares may be admitted to trading on the regulated market operated by the Warsaw Stock Exchange ("WSE") along with rights to the New Issue Shares, if the regulatory requirements for such admission and introduction are satisfied, without a requirement for the Company to provide public access to any prospectus or any other information or offering document within the meaning of the applicable law. The New Issue Shares will be the subject matter of an application for admission to trading on a regulated market operated by the WSE in accordance with Article 1(5)(a) of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC.
The shareholders of the Company who meet the criteria specified in the Issue Resolution ("Eligible Investors") will have the priority in obtaining an allotment of New Issue Shares based on the principles set forth in the Issue Resolution. According to the Issue Resolution, having satisfied the requirements specified therein, the Eligible Investors who, at the end of 22 February 2022, i.e. on the date of registration of participation in the Extraordinary General Meeting of the Company convened for 10 March 2022 ("Extraordinary General Meeting") ("Reference Date"), hold Company shares, whose total par value represents more than 0.1% of the Company's share capital, will have the right, before other Eligible Investors, to obtain such an allotment of Series D Shares that will allow such investors, after the issue of Series D Shares, to maintain their percentage stake in the Company's share capital at a level that is no lower than the stake held by them at the end of the Reference Date.
In order to take advantage of the priority subscription for New Issue Shares based on the principles defined in the Issue Resolution and in the Management Board Resolution, the Eligible Investors should (i) confirm their shareholding as at the Reference Date in the bookbuilding process, by: (a) submitting a certificate or certificates confirming their shareholding issued by an investment firm keeping the securities account for the investor, or (b) registering the required number of shares at the Extraordinary General Meeting, (ii) express their intention to subscribe to Series D Shares for a price no lower than the issue price of Series D Shares set by the Management Board, or (iii) enter into and perform the New Issue Shares Subscription Agreement with the Company, which includes making the payment for New Issue Shares.
The issue price of New Issue Shares will be agreed upon by the Company's Management Board after consultation with the Global Coordinator, taking into account the outcome of the bookbuilding process and assuming the maximization of proceeds from the issue of Series D Shares.
After the Company publishes, in a current report, information on the set issue price of New Issue Shares and the final number of New Issue Shares offered to investors for subscription, the Company will immediately proceed to enter into New Issue Share Subscription Agreements with the investors in the initial allotment list and the investors will be required to pay the issue price of the New Issue Shares subscribed by them.
The subscription agreements for Series D Shares are expected to be executed by the investors (except for the State Treasury) and paid for into the account kept by the Joint Bookrunner on or about 21 April 2022. Moreover, the Subscription Agreement for Series D Shares with the State Treasury is expected to be executed and paid for on or about 27 April 2022. The proceeds from the issue will be released to the Company upon registration of the increase of the Company's share capital through the issue of Series D Shares by the competent court of registration.
The Company reserves the right to change any of the dates specified above.
Under the Placement Agreement, Joint Bookrunners were obliged to provide the Company with services necessary for the placement of New Issue Shares based on the principles set forth in that agreement, in particular to provide the Issuer with the services required to organize and carry out the Offering. The Placement Agreement does not constitute an obligation of any of the Joint Bookrunners to purchase or sell any financial instruments and is not a guarantee of preparation or implementation of the process of admitting the Company's financial instruments into an organized trading system, carrying out the Offering or placing New Issue Shares or any other financial instruments of the Company.
The Placement Agreement contains standard conditions precedent for Joint Bookrunners's obligations under the Offering included in agreements of this type executed in transactions similar to the offering of New Issue Shares, including the conditions related to a material adverse change in the Company's standing, and it sets forth the prerequisites for its termination that are standard for agreements of this type. Under the Placement Agreement, the Joint Bookrunners may terminate it in situations specified therein, in particular in a situation where any of the Company's representations or warranties made in the Placement Agreement turns out to be inconsistent with the facts or legal status or if the situation in the financial markets changes materially with an adverse impact on the capacity to carry out the Offering. The Placement Agreement also contains representations and warranties concerning the Issuer and its operations, with the standard scope provided by securities issuers in agreements of this type concluded in transactions similar to the offering of New Issue Shares.
On the terms and conditions set forth in the Placement Agreement, the Joint Bookrunners and others named in the Placement Agreement will be indemnified against liability and performance obligation on account of specific claims, liabilities and costs which may be pursued or which will be incurred by the Joint Bookrunner or other specified persons in connection with the Placement Agreement (indemnification clause).
The Issuer undertook that, without consent from the Global coordinator, it will not issue, sell or offer shares in the Company for 360 days of the date of first listing of New Issue Shares, except for standard exclusions.
This current report and the information contained herein are subject to restrictions and are not intended for publication, announcement, distribution or transmission, directly or indirectly, in whole or in any part, in the United States of America, Australia, Canada, Japan or other countries where it would be unlawful for it to be published, announced, distributed or transmitted.
This current report is for information only and satisfies the disclosure obligations resting on ENEA S.A. as a public company whose shares have been admitted and introduced to trading on the regulated market operated by the Warsaw Stock Exchange, and (i) it is not published in order to promote, directly or indirectly, the purchase of or subscription for securities of ENEA S.A. with registered seat in Poznań, or to solicit, directly or indirectly, their purchase or subscription; and (ii) does not constitute advertising or promotion prepared or published by the Company for the purpose of promoting securities of ENEA S.A., their subscription, purchase or offering, or in order to encourage investors, directly or indirectly, to purchase or subscribe for such securities.
This current report in particular does not constitute advertising within the meaning of Article 22 of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC.
This current report and any information contained therein is not intended for publication, announcement or distribution, directly or indirectly, in or into the United States of America or any other jurisdiction where such public distribution of information included in this material may be restricted or prohibited by law. The securities referred to in this material have not and will not be registered under the U.S. Securities Act of 1933, as amended, and may be offered and sold in the territory of the United States of America, except for transactions that are not subject to the registration obligation under the U.S. Securities Act or under an exemption from such registration obligation.