AMENDMENT NO. 3 TO BUSINESS COMBINATION AGREEMENT
Exhibit 2.1
AMENDMENT
NO. 3 TO BUSINESS COMBINATION AGREEMENT
This Amendment No. 3 to Business Combination Agreement
(this “Amendment”) is dated as of May 7,
2010 and amends that certain Business Combination Agreement,
dated as of March 5, 2010, as amended, by and between
Promotora de Informaciones, S.A., a Spanish sociedad
anónima (“Prisa”), and Liberty
Acquisition Holdings Corp., a Delaware corporation
(“Liberty”) (as amended, the “Business
Combination Agreement”). Capitalized terms not
otherwise defined in this Amendment have the meanings given such
terms in the Business Combination Agreement.
WHEREAS, Prisa and Liberty wish to amend certain
provisions of the Business Combination Agreement; and
WHEREAS, pursuant to Section 11.3 of the Business
Combination Agreement, Prisa and Liberty may amend the Business
Combination Agreement by action taken or authorized by their
respective Boards of Directors in a writing signed on behalf of
each of Prisa and Liberty; and
WHEREAS, Liberty Acquisition Holdings Virginia, Inc., a
Virginia corporation and a wholly owned subsidiary of Liberty
(“Liberty Virginia”), wishes to join and become
a party to the Business Combination Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements contained herein, and intending to be legally
bound hereby, the parties agree as follows:
1. Amendments.
(a) Form of Warrant Amendment
Agreement. The Business Combination Agreement is
hereby amended by replacing Exhibit A attached thereto in
its entirety with Exhibit A attached hereto.
(b) Plan of Share Exchange. The Business
Combination Agreement is hereby amended by replacing
Exhibit E attached thereto in its entirety with
Exhibit E attached hereto.
(c) PRISA Bylaw Amendments. The Business
Combination Agreement is hereby amended by replacing
Exhibit G attached thereto in its entirety with
Exhibit G attached hereto.
(d) Transaction Cash. The definition of
“Transaction Cash” in Section 1.1 is hereby
amended by deleting clause (z) thereof in its entirety and
replacing it with the following: “(z) $80,000,000 in
respect of the Warrant Exchange, as such amount may be adjusted
as occasioned by Section 3.5(a) of this Agreement,
without duplication”.
(e) Per Share
Consideration. Section 3.5(a) of the
Business Combination Agreement is hereby deleted in its entirety
and replaced with the following:
“(a) Subject to Section 4.2(e) and the last
paragraph of this Section 3.5(a), each share of
Liberty Virginia Common Stock (other than the Liberty Virginia
Redemption Shares) shall be exchanged for (i) 1.173388
PRISA Class A Ordinary Shares and (ii) 0.563056 PRISA
Convertible Non-Voting Shares, in each case free and clear of
any Encumbrances (together, the “Per Share
Consideration”). The PRISA Shares shall then be
registered and the ADRs delivered pursuant to
Section 3.4(b).
Notwithstanding the foregoing provisions of this Section
3.5(a), in no event shall PRISA be required to issue any
portion of the aggregate Per Share Consideration and aggregate
Warrant Consideration the issuance of which would cause the
PRISA Control Group to hold, directly or indirectly, less than
30% of the PRISA Class A Ordinary Shares, after giving pro
forma effect to the transactions contemplated by this Agreement,
including the Warrant Exchange pursuant to Section 6.2.1 of
the Warrant Amendment Agreement, the full conversion at the
election of the holder thereof of the PRISA Convertible
Non-Voting Shares to PRISA Class A Ordinary Shares, the
PRISA Rights Offer, the sale of shares pursuant to the
Securities Surrender Agreement and any required redemptions of
Liberty Virginia Redemption Shares pursuant to
Section 2.5 of this Agreement (the “30%
Threshold Condition”). Not later than the tenth
Business Day prior to the record date for the
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Liberty Stockholder Meeting, Liberty and PRISA shall agree upon
a mechanism to ensure that the 30% Threshold Condition will be
satisfied, applying the principle that any such mechanism shall
not reduce the value of the Per Share Consideration below $11.26
per share of Liberty Virginia Common Stock or the per Liberty
Warrant consideration below $2.15 (in each case, assuming a
value per PRISA Convertible Non-Voting Share of €7.331378,
a value per PRISA Ordinary Share of €3.518 and a
U.S. dollar to Euro exchange rate of 1.364).
(f) Conduct of the Business. The
introduction to Section 8.2 of the Business Combination
Agreement is hereby amended by inserting the following after the
phrase “Liberty Disclosure Schedule”:
“, pursuant to that certain securities surrender
agreement, dated May 7, 2010, among Liberty and the
Sponsors (the “Securities Surrender Agreement”)
(with respect to the restrictions in Sections 8.2(e) and
8.2(n)) and pursuant to that certain deferred discount
reduction letter, dated May 7, 2010, among Liberty,
Citigroup Global Markets Inc. and Barclays Capital Inc. (with
respect to the restrictions in Section 8.2(l))”
(g) PRISA Shareholder
Meeting. Section 9.3(d) of the Business
Combination Agreement is hereby amended as follows:
(i) by replacing the numbers “1.547154” and
“0.35759” with “1.173388” and
“0.563056”, respectively, and replacing the number
“137,102,273” with the number “133,912,267”
each time it appears therein; and
(ii) by inserting the following at the end thereof:
“At the PRISA Shareholder Meeting, PRISA shall include the
following agreement in the resolutions of PRISA’s issuance
of the PRISA Convertible Non-Voting Shares:
For the purposes of enabling the distribution of the minimum
annual dividend in favor of the holders of the PRISA Convertible
Non-Voting Shares, PRISA will exercise its voting rights in
respect of all of its subsidiaries, to the extent legally and
contractually possible, to cause the delivery of available
distributable profits of such subsidiaries to their respective
shareholders and, as the case may be, then to PRISA.”
(h) PRISA Rights Offer. Section 9.18
of the Business Combination Agreement is hereby amended by
replacing the number “3.08” with “2.99.”
(i) Acquisition of Sponsor Shares. The
Business Combination Agreement is hereby amended by adding a new
Section 9.19 to read as follows:
“9.19 Securities Purchase From
Sponsors. Immediately prior to the
Reincorporation Effective Time (and in all events after the vote
on this Agreement at the Liberty Stockholder Meeting), Liberty
shall purchase from the Sponsors an aggregate of three million
shares of Liberty Common Stock for an aggregate purchase price
of $300. Upon such purchase such shares will be cancelled, and
shall cease to exist or be outstanding, for all purposes
hereunder.”
(j) Spanish Language Version. The
Business Combination Agreement is hereby amended by adding a new
Section 9.20 to read as follows:
“9.20 Spanish Language Version. Not
later than 10 Business Days after the initial filing of the F-4
with the SEC, the parties will produce a Spanish version of this
Agreement, along with the amendments thereof.”
(k) Number of Prisa
Shares. Section 10.2(e) of the Business
Combination Agreement is hereby deleted in its entirety and
replaced with the following:
“(e) Provided that Liberty’s representations set forth
in Section 6.2 is true and correct at Closing and
before taking into account the effect of any change occasioned
by the last sentence of Section 3.5(a) of this
Agreement, the total number of PRISA Shares to be delivered
pursuant to the Share Exchange and the Warrant Exchange, before
giving effect to any cash in lieu of fractional shares, shall be
equal
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to the number of PRISA Shares constituting the Per Share
Consideration multiplied by the sum of (x) the number of
shares of Library Virginia Common Stock outstanding at the
Exchange Effective Time and (y) 7,537,267.”
(l) Transaction Cash Closing
Condition. Section 10.3(e) of the Business
Combination Agreement is hereby deleted in its entirety and
replaced with the following:
“(e) Transaction Cash; Expenses; Deferred Underwriting
Discounts. The amount of (x) Transaction
Cash shall be no less than $903,000,000 and (y) Transaction
Expenses, including Deferred Underwriting Discounts, shall not
exceed $47,000,000.”
(m) Minimum Share
Holding. Section 10.3(f) of the Business
Combination Agreement is hereby deleted in its entirety and
replaced with the following:
“(f) Minimum Holding of Prisa Control
Group. After giving pro forma effect to the
transactions contemplated by this Agreement, including the
Warrant Exchange pursuant to Section 6.2.1 of the Warrant
Amendment Agreement, the full conversion at the election of the
holder thereof of the PRISA Convertible Non-Voting Shares to
PRISA Class A Ordinary Shares, the Prisa Rights Offer, the
sale of shares pursuant to the Securities Surrender Agreement
and any required redemptions of Liberty Virginia Redemption
Shares pursuant to Section 2.5 of this Agreement,
the PRISA Control Group shall hold, directly or indirectly, at
least 30% of the PRISA Class A Ordinary Shares.”
(n) New Condition
Precedent. Section 10.3 of the Business
Combination Agreement is hereby amended by adding the following
sentence as new Section 10.3(g):
“(g) Liberty Share Purchase. Liberty
shall have purchased from the Sponsors an aggregate of three
million shares of Liberty Common Stock for an aggregate purchase
price of $300 pursuant to the Securities Surrender
Agreement.”
(o) Termination. Section 11.1 of the
Business Combination Agreement is hereby amended by replacing
the “; or” at the end of clause (f) thereof with
a “.” and deleting clause (g) thereof in its
entirety.
(p) Governing Law. Section 12.7 of
the Business Combination Agreement amending by inserting the
following at the end thereof:
“The respective obligations of the parties to this
Agreement, whether arising by operation of law or otherwise,
shall be performed to the fullest extent in compliance with the
principle of good faith. In particular, PRISA, by performing the
obligations undertaken under this Agreement, will submit to its
shareholders those corporate resolutions necessary to comply
with this Agreement. Without limiting the foregoing obligations
in any manner whatsoever, PRISA, in connection with such
submission, shall take into account the interests of its
shareholders and the corporate interests of the company.”
2. No Other Amendment. Except as
expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or
agreements contained in the Business Combination Agreement, all
of which are ratified and affirmed in all respects and shall
continue in full force and effect.
3. Joinder by Liberty Virginia. Liberty
Virginia hereby assumes, and hereby agrees to perform and
observe, each and every one of the covenants, rights, promises,
agreements, terms, conditions, obligations, appointments, duties
and liabilities applicable to it under the Business Combination
Agreement. By execution of this Amendment, Liberty Virginia
shall become a party to the Business Combination Agreement and
be bound by all of the terms and conditions set forth in the
Business Combination Agreement.
4. Miscellaneous. The provisions of
Sections 12.4 (Interpretation), 12.5 (Counterparts), 12.6
(Entire Agreement; Severability), 12.7 (Governing Law) and 12.10
(Submission to Jurisdiction; Waivers; Consent to Service of
Process) of the Business Combination Agreement are incorporated
herein by reference and shall apply to the terms and provisions
of this Amendment and the parties hereto mutatis mutandis.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto
duly authorized as of the date first written above.
PROMOTORA DE INFORMACIONES, S.A.
| By: |
/s/ Xxxx
Xxxx Xxxxxxx
|
Name: Xxxx Xxxx Xxxxxxx
| Title: | Chief Executive Officer |
| By: |
/s/ Xxxxx
Xxxxxxxxx
|
Name: Xxxxx Xxxxxxxxx
| Title: | Secretary |
LIBERTY ACQUISITION HOLDINGS
VIRGINIA, INC.
VIRGINIA, INC.
| By: |
/s/ Xxxxx
Xxxxxxxxx
|
Name: Xxxxx Xxxxxxxxx
| Title: | Secretary |
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