AMENDMENT NO. 2 TO WARRANT AGREEMENT
EXHIBIT 4.7
AMENDMENT NO. 2 TO WARRANT AGREEMENT
This Amendment No. 2 to the Warrant Agreement (this “Amendment”), is made as of
November 29, 2006, by and between Freedom Acquisition Holdings, Inc., a Delaware corporation, with
offices at 1114 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
“Company”) and Continental Stock Transfer & Trust Company, a New York corporation, with
offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Warrant Agent”). Capitalized
terms used but not defined herein shall have the meanings set forth in the Warrant Agreement, dated
as of July 20, 2006 and amended on November 9, 2006, between the Company and the Warrant Agent (the
“Warrant Agreement”).
WHEREAS, the Company and the Warrant Agent entered into the Warrant Agreement, whereby the
Warrant Agent agreed to act on behalf of the Company in connection with the issuance, registration,
transfer, exchange, redemption and exercise of the Warrants and the Company provided for the form
and provisions of the Warrants, the terms upon which the Warrants shall be issued and exercised,
and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent,
and the holders of the Warrants; and
WHEREAS, on the date hereof, the Company effected a four-fifths split of its Common Stock and
in connection therewith, only the Warrant Price, but not the Floor Price (as defined herein),
otherwise adjusts pursuant to the adjustment provisions in Section 4 of the Warrant Agreement; and
WHEREAS, the Company and the Warrant Agent desire to amend the Warrant Agreement to change the
Floor Price and to provide that the Floor Price be subject to the adjustment provisions contained
in Section 4 of the Warrant Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
1. Recitals. The recitations set forth above are true and correct and are
incorporated herein by this reference.
2. Amendments. Section 2.5 of the Warrant Agreement is hereby deleted in its entirety
and the following is hereby inserted in lieu thereof:
“2.5 Public Warrants and Private Warrants. The Private Warrants shall have the
same terms and be in the same form as the Public Warrants, except that (i) the Founders’
Warrants will become exercisable after consummation of a Business Combination if and when
the last sales price of the Common Stock exceeds $14.25 per share (the “Floor
Price”) for any 20 trading days within a 30 trading day period beginning 90 days after
such Business Combination and (ii) (A) the Founders’ Warrants will be non-redeemable so long
as they are held by the Founders or their Permitted Transferees (as defined below) and (B)
the Sponsors’ Warrants will be non-redeemable so long as they are held by the Sponsors or
their Permitted Transferees. “Permitted Transferees” shall mean any of the
Company’s officers, directors or employees, or other persons or entities associated with
such Founder or Sponsor (as the case may be) who agree to become subject to the same
transfer restrictions as such Founder or Sponsor upon receiving such Private Warrants.”
Section 3.2 of the Warrant Agreement is hereby deleted in its entirety and the following is
hereby inserted in lieu thereof:
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“3.2 Duration of Warrants. A Warrant may be exercised only during the period
(the “Exercise Period”) commencing on the later of the consummation by the Company
of a Business Combination or the first anniversary of the Initial Public Offering
consummation date, and terminating at 5:00 p.m., New York City time on the earlier to occur
of (i) the fifth anniversary of the Initial Public Offering consummation date; or (ii) the
date fixed for redemption of the Warrants as provided in Section 6 of this Agreement
(“Expiration Date”); provided, however, that, (i) the Warrants shall not be
exercisable and the Company shall not be obligated to issue Common Stock unless, at the time
a holder seeks to exercise the Warrants, a prospectus relating to Common Stock issuable upon
exercise of the Warrants is current and the Common Stock has been registered or qualified or
deemed to be exempt under the securities laws of the state of residence of the holder of the
Warrants and (ii) in addition to the exercise conditions set forth in this Section
3.2, the Founders’ Warrants may only become exercisable following the Company’s
completion of a Business Combination if and when the last sales price of the Common Stock
exceeds the Floor Price for any 20 trading days within a 30 trading day period beginning 90
days after such Business Combination. Except with respect to the right to receive the
Redemption Price (as set forth in Section 6 hereunder), each Warrant not exercised
on or before the Expiration Date shall become void, and all rights thereunder and all rights
in respect thereof under this Agreement shall cease at the close of business on the
Expiration Date.”
Section 4.3 of the Warrant Agreement is hereby deleted in its entirety and the following is
hereby inserted in lieu thereof:
“Section 4.3 Adjustments in Warrant Price. Whenever the number of shares of
Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in
Sections 4.1 and 4.2 above, each of the Warrant Price and the Floor Price
shall be adjusted (to the nearest cent) by multiplying such Warrant Price and Floor Price,
as the case may be, immediately prior to such adjustment by a fraction (x) the numerator of
which shall be the number of shares of Common Stock purchasable upon the exercise of the
Warrants immediately prior to such adjustment and (y) the denominator of which shall be the
number of shares of Common Stock so purchasable immediately thereafter.”
Section 6.1 of the Warrant Agreement is hereby deleted in its entirety and the following is
hereby inserted in lieu thereof:
“6.1 Redemption. Subject to Section 6.4 hereof, not less than all of
the outstanding Warrants may be redeemed, at the option of the Company, at any time after
they become exercisable and prior to their expiration, at the office of the Warrant Agent,
upon the notice referred to in Section 6.2, at the price of $.01 per Warrant (the
“Redemption Price”), provided, however, that the last sales price of the Common
Stock has been equal to or greater than the Floor Price, on each of twenty (20) trading days
within any thirty (30) trading day period ending on the third business day prior to the date
on which notice of redemption is given; and provided further, however, that with respect to
the Founders’ Warrants and the Sponsors’ Warrants, such redemption right shall not be
applicable so long as the Warrants are held by any of the Founders or their Permitted
Transferees.”
3. Successors and Assigns. This Agreement shall endure to the benefit of and shall be
binding upon the parties hereto and their respective successors and assigns.
4. Enforceability. Except as modified hereby, the Warrant Agreement shall remain in
full force and effect with the terms and provisions thereof.
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5. Counterparts. This Agreement may be executed in any number of counterparts and
each of such counterpart shall for all purposes be deemed to be an original and all such
counterparts shall together constitute but one and the same instrument.
6. Effect of Headings. The Section headings herein are for convenience only and are
not part of this Amendment and shall not affect the interpretation thereof.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, this Amendment No. 2 has been duly executed by the parties hereto
as of the date first above written.
Attest: | FREEDOM ACQUISITION HOLDINGS, INC. | |||||||
/s/
XXXXX XXXXXX |
By: | /s/ XXXXXXX XXXXXXXXX | ||||||
Name: | Xxxxxxx Xxxxxxxxx | |||||||
Title: | President | |||||||
Attest: | CONTINENTAL STOCK TRANSFER & TRUST COMPANY | |||||||
/s/
XXXXXXX X. XXXXXXXX |
By: | /s/ XXXXX XXXXXXXX | ||||||
Name: | Xxxxx Xxxxxxxx | |||||||
Title: | Vice President |
[Signature Page to Amendment No. 2 to Warrant Agreement]
Each of the Warrant holders, by their signatures below, acknowledge, agree and consent to
the changes set forth in this Amendment and acknowledge and agree that the applicable provisions of
their Warrants shall be amended accordingly.
BERGGRUEN HOLDINGS NORTH AMERICA LTD. | ||||||||||||||||||||
By: | /s/ XXXXXXX XXXXXXXXX | |||||||||||||||||||
Name: | Xxxxxxx Xxxxxxxxx | |||||||||||||||||||
Title: | President | |||||||||||||||||||
XXXXXX EQUITIES II, LLC | ||||||||||||||||||||
By: | /s/ XXX XXXXXX | |||||||||||||||||||
Name: | Xxx Xxxxxx | |||||||||||||||||||
Title: | Authorized Signatory | |||||||||||||||||||
/s/ XXXXXXX X. XXXXX | ||||||||||||||||||||
Xxxxxxx X. Xxxxx | ||||||||||||||||||||
/s/ XXXXXXX X. XXXXXX | ||||||||||||||||||||
Xxxxxxx X. Xxxxxx | ||||||||||||||||||||
/s/ XXXXX X. XXXXXXXX | ||||||||||||||||||||
Xxxxx X. Xxxxxxxx |
[Signature Page to Amendment No. 2 to Warrant Agreement]