FORM OF AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED WARRANT AGREEMENT
Exhibit 4.1
FORM OF
AMENDMENT NO. 1 TO
SECOND
AMENDED AND RESTATED WARRANT AGREEMENT
This Amendment (this “Amendment”) is made as of
[ ],
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 March 5, 2010, the Company entered into
a Business Combination Agreement (as amended from time to time,
the “Business Combination Agreement”) with
PRISA (and subsequently joined by Liberty Virginia), 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.
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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 Business Combination Agreement, dated as of
March 5, 2010, by and between Promotora de Informaciones,
S.A., a sociedad anónima organized under the laws of
Spain (“PRISA”) and Liberty Acquisition
Holdings Corp. (the “Business Combination
Agreement”), a copy of which is included in the PRISA
prospectus dated
[ ],
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$1.043195 (the “Cash Consideration”) to be
delivered by or at the direction of Liberty Virginia;
(ii) the exchange by PRISA of 0.115327 newly issued PRISA
Class A Ordinary Shares (the “Ordinary Share
Consideration”) to be delivered by PRISA to the
Depositary as provided for herein; and
(iii) the exchange by PRISA of 0.05534 newly issued PRISA
Convertible Non-Voting Shares (the “Convertible
Non-Voting Share Consideration”, and together with the
Cash Consideration and the Ordinary Share 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
[ ]
PRISA Class A Ordinary Shares and each PRISA ADS-NV
representing
[ ]
PRISA Convertible Non-Voting 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. By way of example, a Registered Holder of 10,500
outstanding warrants would receive aggregate Cash Consideration
of $10,953.54.
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 and the Convertible Non-Voting
Share Consideration in order to preserve the economic benefits
of the Warrant Exchange to the parties.
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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.
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 and Convertible Non-Voting 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 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.
2.4 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.
2.5 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.
2.6 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.
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2.7 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.
2.8 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]
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IN WITNESS WHEREOF, each of the parties has caused this
Amendment to be duly executed as of the date first above written.
By:
Name:
Title:
LIBERTY ACQUISITION HOLDINGS VIRGINIA, INC.
By:
Name:
Title:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By:
Name:
Title:
PROMOTORA DE INFORMACIONES, S.A.
By:
Name:
Title:
[Signature Page to Warrant Agreement Amendment]
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