AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED WARRANT AGREEMENT
Exhibit 4.1
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED WARRANT AGREEMENT
SECOND AMENDED AND RESTATED WARRANT AGREEMENT
This Amendment (this “Amendment”) is made as of
November 29,
2010 by and among Liberty Acquisition Holdings Corp., a Delaware
corporation (the “Company”), Liberty
Acquisition Holdings Virginia, Inc., a Virginia corporation
(“Liberty Virginia”), Continental Stock
Transfer & Trust Company, a New York corporation
(the “Warrant Agent”), and Promotora de
Informaciones, S.A., a sociedad anónima organized under the
laws of Spain (“PRISA”).
WHEREAS, the Company and the Warrant Agent are parties to that
certain Second Amended and Restated Warrant Agreement, dated as
of December 6, 2007 and filed with the United States
Securities and Exchange Commission on December 12, 2007
(the “Existing Warrant Agreement”), pursuant to
which the Company has issued Warrants to purchase
76,687,500 shares of Common Stock (collectively, the
“Warrants”);
WHEREAS, the terms of the Warrants are governed by the Existing
Warrant Agreement and capitalized terms used herein, but not
otherwise defined, shall have the meanings given to such terms
in the Existing Warrant Agreement;
WHEREAS, on August 4, 2010, the Company, Liberty Virginia
and PRISA entered into an Amended and Restated Business
Combination Agreement (as amended from time to time, the
“Business Combination Agreement”), pursuant to
which, upon the consummation of the transactions contemplated by
the Business Combination Agreement, the stockholders of the
Company will come to own newly issued American Depositary
Receipts representing newly issued (i) Class A
Ordinary Shares of PRISA and (ii) convertible non-voting
shares (acción sin voto convertible) of PRISA;
WHEREAS, the Business Combination Agreement provides for the
merger of the Company with and into Liberty Virginia, its wholly
owned subsidiary, upon consummation of which, as provided in
Section 4.4 of the Existing Warrant Agreement, the Warrants
will no longer be exercisable for shares of Common Stock but
instead will be exercisable (subject to the terms and conditions
of the Existing Warrant Agreement as amended hereby) for shares
of common stock, par value $0.0001 per share, of Liberty
Virginia;
WHEREAS, the Board of Directors of the Company has determined
that the consummation of the transactions contemplated by the
Business Combination Agreement will constitute a Business
Combination between the Company and PRISA;
WHEREAS, pursuant to the Business Combination Agreement, the
Company agreed to seek the approval of this Amendment by the
Registered Holders of a majority of the outstanding Warrants
(the “Warrant Proposal”) such that, in
connection with the transactions contemplated by the Business
Combination Agreement, PRISA will be required to purchase, and
the holders of Warrants will be required to exchange, all of the
outstanding Warrants for the Consideration (as defined below)
and on such other terms and subject to such conditions as are
set forth herein;
WHEREAS, Section 9.8 of the Existing Warrant Agreement
provides that the Company and the Warrant Agent may amend the
Existing Warrant Agreement with the written consent of the
Registered Holders of a majority of the outstanding Warrants;
WHEREAS, the Registered Holders of a majority of the outstanding
Warrants have approved the Warrant Proposal; and
WHEREAS, the representative of the underwriters has waived any
and all rights to consent to any modification or amendment of
the Existing Warrant Agreement contemplated by Section 9.8
of the Existing Warrant Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree
to amend the Existing Warrant Agreement as set forth herein.
1. Amendment of Existing Warrant Agreement.
1.1 Mandatory Exchange of
Securities. Section 6 of the Existing
Warrant Agreement is hereby amended and restated in its entirety
so that it now reads in full as follows:
“6 Mandatory Exchange of Securities.
6.1 Definitions.
Capitalized terms used in this Section 6, but not
otherwise defined in this Agreement, shall have the meanings
given to such terms in the Amended and Restated Business
Combination Agreement, dated as of August 4, 2010,
among Promotora de Informaciones, S.A., a sociedad
anónima organized under the laws of Spain
(“PRISA”), Liberty Acquisition Holdings Corp.
and Liberty Acquisition Holdings Virginia, Inc., a Virginia
corporation (“Liberty Virginia”) (the
“Business Combination Agreement”), a copy of
which is included in the PRISA prospectus dated
October 25,
2010 and previously delivered to Registered Holders in
connection with soliciting consents for Amendment No. 1 to
this Agreement.
6.2 Exchange.
6.2.1 Notwithstanding anything contained in this Agreement
to the contrary, at the Exchange Effective Time, and subject to
the Share Exchange being consummated, except as provided in
Section 6.3 herein or as such consideration may be
changed as occasioned by the last paragraph of
Section 3.5(a) of the Business Combination Agreement, each
Warrant issued and outstanding immediately prior to the Exchange
Effective Time shall, automatically and without any action by
the Registered Holder thereof, be exchanged by PRISA and
transferred by such Registered Holder to PRISA (the
“Warrant Exchange”), in consideration for:
(i) a payment by Liberty Virginia in cash in the amount of
US$0.90 (the “Cash Consideration”) to be
delivered by or at the direction of Liberty Virginia; and
(ii) the exchange by PRISA of 0.450 newly issued PRISA
Class A Ordinary Shares (the “Ordinary Share
Consideration,” and together with the Cash
Consideration, the “Consideration”) to be
delivered by PRISA to the Depositary as provided for herein.
6.2.2 Notwithstanding anything contained in this Agreement
to the contrary, upon consummation of the Share Exchange, and
without any action by the Registered Holder thereof, each
Registered Holder of Warrants (other than Prisa) shall cease to
have any rights with respect to the Warrants other than the
right to receive the Consideration.
6.3 Delivery of Consideration.
6.3.1 Each PRISA Share issued as part of the Consideration
shall be registered in the name of the Depositary by Iberclear
and then delivered in the form of PRISA ADSs evidenced by ADRs,
with each PRISA ADS-A representing
four
PRISA Class A Ordinary Shares. Each PRISA ADS shall be
issued in accordance with the Deposit Agreement.
6.3.2 The aggregate Cash Consideration payable to each
former Registered Holder shall be rounded down to the nearest
whole cent after multiplying the aggregate number of outstanding
Warrants held by such former Registered Holder by the Cash
Consideration.
6.3.3 If, between the date of this Agreement and the
Exchange Effective Time, PRISA, Liberty or Liberty Virginia
undergoes a change in capitalization affecting the Warrants, an
appropriate and proportionate adjustment shall be made to the
Ordinary Share Consideration in order to preserve the economic
benefits of the Warrant Exchange to the parties.
6.3.4 In so far as the provisions of Article IV of the
Business Combination Agreement relate to the obligations and
rights of the parties to this Agreement regarding the Warrant
Exchange, such provisions are hereby incorporated herein by
reference; provided, however, that nothing in this
Section 6.3.4 or this Agreement, whether expressed
or implied, is intended to confer upon any Person, including any
beneficial owner or Registered Holder of Warrants, any rights or
remedies under or by reason of the Business Combination
Agreement enforceable against the parties thereto or their
successors or assigns.
2
6.3.5 Notwithstanding anything herein to the contrary, the
Company shall not be required to provide any prior notice of the
Warrant Exchange to any Registered Holder.
6.4 Each of the parties hereto acknowledges and agrees that
the obligations under this Section 6 to deliver the
Ordinary Share Consideration shall be satisfied by PRISA.
6.5 Each of the parties hereto acknowledges and agrees that
the obligations under this Section 6 to deliver the
Cash Consideration shall be satisfied by or at the direction of
Liberty Virginia.”
1.2 Appointment of Warrant
Agent. Existing Warrant Agreement is hereby
amended to add a new Section 1.2, which shall read in full
as follows:
“1.2 Appointment of Warrant Agent at Exchange
Time. Notwithstanding anything contained in
this Agreement to contrary (including that the Warrant Agent be
a New York Corporation), at the Exchange Effective Time, PRISA
shall act as agent for the Company, its successors and assigns
for the Warrants, and PRISA agrees to perform in accordance with
the terms and conditions set forth in this Agreement. At such
time as PRISA is appointed, Continental Stock
Transfer & Trust Company shall have no further
rights or obligations under the Agreement, and the term
“Warrant Agent,” as used in this Agreement,
shall refer exclusively to PRISA.”
2. Miscellaneous Provisions.
2.1 PRISA Obligation. Each of the
parties hereto acknowledges and agrees that the obligations
under Section 6.2 of the Existing Warrant Agreement (as
amended by this Amendment) to deliver the Ordinary Share
Consideration and Convertible Non-Voting Share Consideration
shall be satisfied by PRISA
2.2 Liberty Virginia
Obligation. Each of the parties hereto
acknowledges and agrees that the obligations under
Section 6.2 of the Existing Warrant Agreement (as amended
by this Amendment) to deliver the Cash Consideration shall be
satisfied by or at the direction of Liberty Virginia.
2.3 Effectiveness of Warrant. Each
of the parties hereto acknowledges and agrees that the
effectiveness of this Amendment shall be expressly subject to
the occurrence of the Share Exchange (as defined in the Business
Combination Agreement) and shall automatically be terminated and
shall be null and void if the Business Combination Agreement
shall be terminated.
2.4 Successors. All the covenants
and provisions of this Amendment by or for the benefit of the
Company or the Warrant Agent shall bind and inure to the benefit
of their permitted respective successors and assigns.
2.5 Severability. This Amendment
shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Amendment or of
any other term or provision hereof. Furthermore, in lieu of any
such invalid or unenforceable term or provision, the parties
hereto intend that there shall be added as a part of this
Amendment a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
2.6 Applicable Law. The validity,
interpretation and performance of this Amendment shall be
governed in all respects by the laws of the State of New York,
without giving effect to conflict of laws. The parties hereby
agree that any action, proceeding or claim against it arising
out of or relating in any way to this Amendment shall be brought
and enforced in the courts of the State of New York or the
United States District Court for the Southern District of New
York, and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. Each of the parties hereby
waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenient forum.
2.7 Counterparts. This Amendment
may be executed in any number of counterparts, and by facsimile
or portable document format (pdf) transmission, and each of such
counterparts shall for all purposes be deemed to be an original
and all such counterparts shall together constitute but one and
the same instrument.
2.8 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.
3
2.9 Entire Agreement. The Existing
Warrant Agreement, as modified by this Amendment, constitutes
the entire understanding of the parties and supersedes all prior
agreements, understandings, arrangements, promises and
commitments, whether written or oral, express or implied,
relating to the subject matter hereof, and all such prior
agreements, understandings, arrangements, promises and
commitments are hereby canceled and terminated.
[Signatures
Appear on Following Page]
4
IN WITNESS WHEREOF, each of the parties has caused this
Amendment to be duly executed as of the date first above written.
LIBERTY ACQUISITION HOLDINGS CORP.
| By: | /s/ Xxxxx Xxxxxxxxx |
Name: Xxxxx Xxxxxxxxx
Title: Secretary
| By: | /s/ Xxxxx Xxxxxxxxx
|
Name: Xxxxx Xxxxxxxxx
Title: Secretary
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
| By: | /s/ Xxxxxxxxx Xxxxxxxx
|
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
PROMOTORA DE INFORMACIONES, S.A.
| By: | /s/ Iñigo Xxxx Xxxxxx
|
Name: Iñigo Xxxx Xxxxxx
Title: Chief Legal Officer and Secretary
of the Board of Directors
of the Board of Directors
[Signature
Page to Warrant Agreement Amendment]
