AMENDMENT TO NOTE CONVERSION AND SECURITIES PURCHASE AGREEMENT
Exhibit
1.3
EXECUTION COPY
AMENDMENT TO
AMENDMENT to Note Conversion And Securities Purchase Agreement, dated November 10, 2008 (the
“Note Conversion and Securities Purchase Agreement”), is entered into by and between Las
Vegas Sands Corp. (the “Company”) and Xx. Xxxxxxx (the “Purchaser”). Except as
hereby amended, the Note Conversion and Securities Purchase Agreement remains in full force and
effect. Capitalized terms used but not defined herein have the meanings ascribed to them in the
Note Conversion and Securities Purchase Agreement.
WHEREAS, on November 10, 2008, the Company entered into the Note Conversion and Securities
Purchase Agreement providing for the issuance and sale by the Company of shares of its 10% Series A
Cumulative Perpetual Preferred Stock (the “Preferred Stock”) and warrants to purchase
shares of its common stock, par value $0.001 per share (the “Common Stock”) to the
Purchaser.
WHEREAS, on November 10, 2008, the Company entered into an Underwriting Agreement with Xxxxxxx
Sachs & Co. (the “Underwriting Agreement”) relating to a public offering by the Company of
shares of its Common Stock and units consisting of shares of Preferred Stock and warrants to
purchase additional shares of Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree to amend the terms of the Note Conversion and Securities Purchase Agreement as
follows:
ARTICLE 1
1.1 Amendment of Section 1.1. Section 1.1, Definitions, is hereby amended as
follows:
(a) The following sentences shall be added immediately preceding the definition of
“Information Statement”:
“Indemnified Party” has the meaning set forth in Section 5.12 of this Agreement.
“Indemnified Loss” has the meaning set forth in Section 5.12 of this Agreement.
(b) The following sentences shall be added immediately preceding the definition of
“Prospectus”:
“Proceeding” has the meaning set forth in Section 5.12 of this Agreement.
Amendment to Note Conversion and Securities Purchase Agreement
1.2 Amendment of Section 5.1. The text of Section 5.1, Conversion of Notes,
is hereby amended and restated in its entirety as follows:
Notwithstanding any provision to the contrary contained in the Indenture, the Purchaser hereby
covenants and agrees to convert $475,000,000 aggregate principal amount of the Notes on the Closing
Date, and on the Closing Date the Purchaser shall (i) deliver to the Company a Notice of Conversion
(as defined in the Indenture) dated the Closing Date, and (ii) surrender $475,000,000 aggregate
principal amount of the Notes to the Company for cancellation, it being understood and agreed by
the parties hereto that no further action of the Purchaser shall be required in order to effect the
conversion contemplated hereby. For avoidance of doubt, the parties hereby acknowledge, that on
the Closing Date, as a result of the offerings contemplated by the Underwriting Agreement, the
Conversion Rate (as such term is defined in the Indenture) shall be 181.8182 and the Conversion
Price (as such term is defined in the Indenture) shall be $5.50, and that on the Closing Date, upon
receipt of the Notice of Conversion and $475,000,000 aggregate principal amount of the Notes,
notwithstanding any provision to the contrary contained in the Indenture, the Company shall issue
to the Purchaser 86,363,636 shares of Common Stock, the issuance of which shares shall not be
subject to the prior receipt of any of the approvals set forth in the definition of “Approvals” in
the Convertible Note Purchase Agreement, except for such approvals which have already been
obtained. Furthermore, the Company agrees to pay the Purchaser, on the Closing Date, accrued and
unpaid interest on the Notes to, but not including, the Closing Date. Prior to the Closing Date,
the Purchaser agrees that it will not sell, assign or transfer the Notes, unless the purchaser,
assignee or transferee thereof agrees in writing, for the benefit of the Company, to comply with
the terms of this Section 5.1 as if such purchaser, assignee or transferee was the
Purchaser; provided, however, that a transfer from the Purchaser to any Adelson Holder (as such
term is defined in the Second Amended and Restated Registration Rights Agreement) (or a transfer
from an Adelson Holder to another Adelson Holder) shall not require execution of such a writing if
such a writing has already been provided by such Adelson Holder. The Purchaser and the Company
agree that upon the conversion of the Notes, Section 5.7 of the Convertible Note Purchase Agreement
shall cease to be of force and effect, effective as of the Closing Date.
1.3 Amendment of Section 5.3. The text of Section 5.3, Information
Statement, is hereby amended and restated as follows:
Promptly following the date of this Agreement, the Company shall prepare and, in no event more
than 40 days after the Closing Date, file with the Commission an information statement describing
the Stockholder Consent and containing the information required by Schedule 14C in accordance with
all applicable rules and regulations of the Commission (the “Information Statement”). The
Company shall use its reasonable best efforts to cause the Commission to clear the Information
Statement for mailing to stockholders. As soon as reasonably practicable after the Commission has
cleared the Information Statement, the Company shall mail the Information Statement to the holders
of its Common Stock. The Company shall provide the Purchaser with a copy of the Information
Statement and all modifications thereto prior to filing or delivery to the Commission (and the
Purchaser shall have a reasonable period to review and comment on such Information Statement), and
the Company shall consult with the Purchaser in connection
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therewith. The Company shall not mail any Information Statement, or any amendment or supplement
thereto, to which the Purchaser reasonably and timely objects. The Purchaser hereby waives the
obligation of the Company set forth in Section 5.2 of the Convertible Note Purchase Agreement.
1.4 Addition of Section 5.12. The following text is added after Section 5.11, as a
new Section 5.12.
5.12 HSR Indemnification.
(a) The Company shall indemnify and hold harmless the Purchaser, the Principal Stockholder,
each Related Party and each of their respective affiliates, agents and employees, and the estates,
beneficiaries and heirs and assigns of each, as applicable (each, an “Indemnified Party”),
from and against any and all liabilities, losses and reasonable and documented expenses (including,
without limitation, investigation expenses and expert witnesses’ and attorneys’ fees and expenses,
regulatory fees, filing fees, judgments, penalties, fines, and amounts paid or to be paid in
settlement) actually incurred by such Indemnified Party (collectively, such items being referred to
as an “Indemnified Loss”, but being net of any related insurance proceeds or other amounts
actually received by such Indemnified Party or paid by or on behalf of the Company on such
Indemnified Party’s behalf), in connection with any action, suit or proceeding (or any inquiry or
investigation, whether brought by or in the right of any Governmental Authority, the Company, any
Subsidiary or affiliate of the Company, or otherwise, that any Indemnified Party in good faith
believes might lead to the institution of any such action, suit or proceeding), whether civil,
administrative, regulatory or investigative, and any and all appeals therefrom, in which any
Indemnified Party is a party, is threatened to be made a party, is a witness or is participating (a
“Proceeding”) arising from, or based upon, directly or indirectly, the failure of any
Indemnified Party (whether or not such Indemnified Party is a direct participant in the
transactions contemplated by this Agreement) to make any filing or to obtain any approval or
clearance from the Federal Trade Commission or the Department of Justice required under 15 U.S.C.
sec. 18a, or any regulation thereunder, in respect of the transactions contemplated by this
Agreement.
(b) If an Indemnified Party is entitled under this Agreement to indemnification by the Company
for some or a portion of any Indemnified Loss but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify the Indemnified Party for the portion thereof to
which the Indemnified Party is entitled.
(c) The Company shall pay to each Indemnified Party, as and when incurred and in advance of
the final disposition of a Proceeding, the amount of any and all reasonable and documented expenses
incurred by the Indemnified Party in connection with such Proceeding, including, without
limitation, investigation expenses, expert witnesses’ and attorney’s fees and expenses.
[Remainder of page left blank. This agreement continues on page 4.]
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1.5 Effectiveness. This Amendment shall be effective as of November 10, 2008.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their respective officers hereunto duly authorized as of the date first above written.
| /s/ Xxxxxx Xxxxxxx | ||||
| Xx. Xxxxxx Xxxxxxx | ||||
| LAS VEGAS SANDS CORP. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | President and Chief Operating Officer | |||
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