Attached files
file | filename |
---|---|
EX-4.1 - EX-4.1 - Liberty Acquisition Holdings Corp. | g22409exv4w1.htm |
EX-10.2 - EX-10.2 - Liberty Acquisition Holdings Corp. | g22409exv10w2.htm |
EX-2.1 - EX-2.1 - Liberty Acquisition Holdings Corp. | g22409exv2w1.htm |
EX-99.1 - EX-99.1 - Liberty Acquisition Holdings Corp. | g22409exv99w1.htm |
EX-10.1 - EX-10.1 - Liberty Acquisition Holdings Corp. | g22409exv10w1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 10, 2010 (March 5, 2010)
LIBERTY ACQUISITION HOLDINGS CORP.
(Exact name of registrant as specified in its charter)
Delaware | ||
(State or other jurisdiction of incorporation) | ||
001-33862 | 26-0490500 | |
(Commission File Number) | (IRS Employer Identification Number) |
1114 Avenue of the Americas, 41st Floor
New York, New York 10036
(Address of principal executive offices)
New York, New York 10036
(Address of principal executive offices)
Registrants telephone number, including area code: (212) 380-2230
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
þ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
ADDITIONAL INFORMATION AND FORWARD-LOOKING STATEMENTS
IN CONNECTION WITH THE PROPOSED BUSINESS COMBINATION DESCRIBED IN THIS REPORT (THE
BUSINESS COMBINATION), PROMOTORA DE INFORMACIONES, S.A. (PRISA) INTENDS TO FILE
WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE SEC) A REGISTRATION STATEMENT ON
FORM F-4 THAT WILL INCLUDE A PROXY STATEMENT OF LIBERTY ACQUISITION HOLDINGS CORP.
(LIBERTY) THAT ALSO WILL CONSTITUTE A PROSPECTUS OF PRISA. LIBERTY WILL MAIL THE PROXY
STATEMENT/PROSPECTUS TO ITS STOCKHOLDERS AND WARRANTHOLDERS. LIBERTY STOCKHOLDERS AND
WARRANTHOLDERS ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS REGARDING THE PROPOSED BUSINESS
COMBINATION AND WARRANT AMENDMENT WHEN IT BECOMES AVAILABLE BECAUSE IT WILL CONTAIN IMPORTANT
INFORMATION REGARDING LIBERTY, PRISA, THE PROPOSED BUSINESS COMBINATION, THE PROPOSED WARRANT
AMENDMENT AND RELATED MATTERS. WHEN AVAILABLE, YOU WILL BE ABLE TO OBTAIN COPIES OF ALL DOCUMENTS
REGARDING THE BUSINESS COMBINATION, THE WARRANT AMENDMENT AND OTHER DOCUMENTS FILED BY LIBERTY OR
PRISA WITH THE SEC, FREE OF CHARGE, AT THE SECS WEBSITE (WWW.SEC.GOV) OR BY SENDING A REQUEST TO
LIBERTY, 1114 AVENUE OF THE AMERICAS, 41ST FLOOR, NEW YORK, NEW YORK 10036, OR BY CALLING LIBERTY
AT (212) 380-2230. PRISA WILL ALSO FILE CERTAIN DOCUMENTS WITH THE SPANISH COMISIÓN NACIONAL DEL
MERCADO DE VALORES (THE CNMV) IN CONNECTION WITH ITS SHAREHOLDERS MEETING TO BE HELD IN
CONNECTION WITH THE PROPOSED BUSINESS COMBINATION, WHICH WILL BE AVAILABLE ON THE CNMVS WEBSITE AT
WWW.CNMV.ES.
LIBERTY AND ITS DIRECTORS AND OFFICERS MAY BE DEEMED TO BE PARTICIPANTS IN THE SOLICITATION OF
PROXIES FROM LIBERTYS STOCKHOLDERS IN RESPECT OF THE PROPOSED BUSINESS COMBINATION AND FROM THE
WARRANTHOLDERS OF LIBERTY IN CONNECTION WITH THE PROPOSED WARRANT AMENDMENT. INFORMATION REGARDING
THE OFFICERS AND DIRECTORS OF LIBERTY IS AVAILABLE IN LIBERTYS ANNUAL REPORT ON FORM 10-K FOR THE
YEAR ENDED DECEMBER 31, 2009, WHICH HAS BEEN FILED WITH THE SEC. ADDITIONAL INFORMATION REGARDING
THE INTERESTS OF SUCH POTENTIAL PARTICIPANTS WILL ALSO BE INCLUDED IN THE REGISTRATION STATEMENT ON
FORM F-4 (AND WILL BE INCLUDED IN THE DEFINITIVE PROXY STATEMENT/PROSPECTUS FOR THE PROPOSED
BUSINESS COMBINATION AND PROPOSED WARRANT AMENDMENT) AND THE OTHER RELEVANT DOCUMENTS FILED WITH
THE SEC.
PRISA AND ITS DIRECTORS AND EXECUTIVE OFFICERS MAY BE DEEMED TO BE PARTICIPANTS IN THE
SOLICITATION OF PROXIES FROM THE STOCKHOLDERS OF LIBERTY IN CONNECTION WITH THE PROPOSED BUSINESS
COMBINATION AND FROM THE WARRANTHOLDERS OF LIBERTY IN CONNECTION WITH THE PROPOSED WARRANT
AMENDMENT. INFORMATION REGARDING THE INTERESTS OF THESE DIRECTORS AND EXECUTIVE OFFICERS IN THE
BUSINESS COMBINATION WILL BE INCLUDED IN THE REGISTRATION STATEMENT ON FORM F-4 (AND WILL BE
INCLUDED IN THE DEFINITIVE PROXY STATEMENT/PROSPECTUS FOR THE PROPOSED BUSINESS COMBINATION).
THIS REPORT MAY INCLUDE FORWARD LOOKING STATEMENTS WITHIN THE MEANING OF THE SAFE HARBOR
PROVISIONS OF THE UNITED STATES PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. FORWARD-LOOKING
STATEMENTS MAY BE IDENTIFIED BY THE USE OF WORDS SUCH AS ANTICIPATE, BELIEVE, EXPECT,
ESTIMATE, PLAN, OUTLOOK, AND PROJECT AND OTHER SIMILAR EXPRESSIONS THAT PREDICT OR INDICATE
FUTURE EVENTS OR TRENDS OR THAT ARE NOT
1
STATEMENTS OF HISTORICAL MATTERS. READERS ARE CAUTIONED THAT SUCH FORWARD LOOKING STATEMENTS
WITH RESPECT TO REVENUES, EARNINGS, PERFORMANCE, STRATEGIES, PROSPECTS AND OTHER ASPECTS OF THE
BUSINESSES OF PRISA, LIBERTY AND THE COMBINED GROUP AFTER COMPLETION OF THE PROPOSED BUSINESS
COMBINATION ARE BASED ON CURRENT EXPECTATIONS THAT ARE SUBJECT TO RISKS AND UNCERTAINTIES. A
NUMBER OF FACTORS COULD CAUSE ACTUAL RESULTS OR OUTCOMES TO DIFFER MATERIALLY FROM THOSE INDICATED
BY SUCH FORWARD LOOKING STATEMENTS. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO: (1) THE
OCCURRENCE OF ANY EVENT, CHANGE OR OTHER CIRCUMSTANCES THAT COULD GIVE RISE TO THE TERMINATION OF
THE BUSINESS COMBINATION AGREEMENT BETWEEN PRISA AND LIBERTY, INCLUDING, BUT NOT LIMITED TO, THE
INABILITY OF PRISA TO ENTER INTO DEFINITIVE DOCUMENTS WITH ITS LENDERS REGARDING A RESTRUCTURING OF
PRISAS INDEBTEDNESS; (2) THE OUTCOME OF ANY LEGAL PROCEEDINGS THAT MAY BE INSTITUTED AGAINST PRISA
AND OTHERS FOLLOWING ANNOUNCEMENT OF THE BUSINESS COMBINATION AGREEMENT AND TRANSACTIONS
CONTEMPLATED THEREIN; (3) THE INABILITY TO COMPLETE THE TRANSACTIONS CONTEMPLATED BY THE BUSINESS
COMBINATION AGREEMENT DUE TO THE FAILURE TO OBTAIN LIBERTY STOCKHOLDER APPROVAL, LIBERTY
WARRANTHOLDER APPROVAL OR PRISA STOCKHOLDER APPROVAL, (4) DELAYS IN OBTAINING, ADVERSE CONDITIONS
CONTAINED IN, OR THE INABILITY TO OBTAIN NECESSARY REGULATORY APPROVALS REQUIRED TO COMPLETE THE
TRANSACTIONS CONTEMPLATED BY THE BUSINESS COMBINATION AGREEMENT; (5) THE RISK THAT THE PROPOSED
TRANSACTION DISRUPTS CURRENT PLANS AND OPERATIONS AS A RESULT OF THE ANNOUNCEMENT AND CONSUMMATION
OF THE TRANSACTIONS DESCRIBED HEREIN; (6) THE ABILITY TO RECOGNIZE THE ANTICIPATED BENEFITS OF THE
COMBINATION OF PRISA AND LIBERTY; (7) COSTS RELATED TO THE PROPOSED COMBINATION; (8) THE LIMITED
LIQUIDITY AND TRADING OF LIBERTYS SECURITIES; (9) CHANGES IN APPLICABLE LAWS OR REGULATIONS; (10)
THE POSSIBILITY THAT PRISA MAY BE ADVERSELY AFFECTED BY OTHER ECONOMIC, BUSINESS, AND/OR
COMPETITIVE FACTORS; AND (11) OTHER RISKS AND UNCERTAINTIES INDICATED FROM TIME TO TIME IN PRISAS
OR LIBERTYS FILINGS WITH THE SEC.
READERS ARE REFERRED TO LIBERTYS MOST RECENT REPORTS FILED WITH THE SEC, INCLUDING ITS ANNUAL
REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2009. READERS ARE CAUTIONED NOT TO PLACE UNDUE
RELIANCE UPON ANY FORWARD-LOOKING STATEMENTS, WHICH SPEAK ONLY AS OF THE DATE MADE, AND LIBERTY
UNDERTAKES NO OBLIGATION TO UPDATE OR REVISE THE FORWARD-LOOKING STATEMENTS, WHETHER AS A RESULT OF
NEW INFORMATION, FUTURE EVENTS OR OTHERWISE.
Item 1.01. Entry into a Material Definitive Agreement.
General
On March 5, 2010, Liberty Acquisition Holdings Corp. (Liberty) and Promotora de
Informaciones, S.A. (Prisa) entered into a business combination agreement (the
Business Combination Agreement) regarding a proposed business combination (the
Business Combination), pursuant to which Liberty would become a wholly-owned subsidiary
of Prisa and the stockholders and warrantholders of Liberty would become the holders of
approximately 57% of the outstanding shares of capital stock of Prisa
on a fully-diluted basis, assuming (i) no redemptions of Liberty shares, (ii) no shares of Prisa Class A ordinary
shares are sold in the Rights Offering (as defined below) and (iii) no adjustment to the mix of
stock and cash consideration is made as a result of the Rights Offering, as described below. At the
closing of the Business Combination, Libertys stockholders and warrantholders would own
approximately 49% of the outstanding ordinary shares of Prisa, without giving effect to the
2
potential
conversion of the convertible non-voting shares of Prisa, subject to
the same assumptions described in the previous sentence. The shares of capital stock of Prisa to be
issued to Libertys stockholders and warrantholders will be represented by American Depositary
Shares and listed for trading on either the New York Stock Exchange or the Nasdaq Market, as
determined by Prisa after consultation with Liberty.
Prisa
Prisa is Spains largest media conglomerate, best known for El País (Spains leading
newspaper) but also encompassing over 400 radio stations in Spain and Latin America, along with
magazine and book publishing, rights management, television broadcasting/production and music
recording interests. The ordinary shares of Prisa are currently publicly traded on the Spanish
Continuous Market Exchange (Sistema de Interconexión Bursátil-Mercado Español).
The Business Combination Agreement
The following is a summary of the material terms of the Business Combination Agreement, a copy
of which is attached as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by
reference.
The Business Combination Agreement provides that Liberty will form a new, wholly-owned
Virginia corporation (Liberty Virginia). At the closing of the Business Combination,
Liberty will merge with and into Liberty Virginia, with Liberty Virginia surviving the merger and
the stockholders and warrantholders of Liberty becoming stockholders and warrantholders of Liberty
Virginia. Immediately following such merger, Liberty Virginia will effect a statutory share
exchange with Prisa under the Virginia Stock Corporation Act and the Spanish Corporation Law of
1989, as amended, pursuant to which Liberty Virginia will become a wholly-owned subsidiary of Prisa
and the stockholders and warrantholders of Liberty Virginia will receive the consideration
described below.
The Reincorporation Merger of Liberty into Liberty Virginia
The first step of the transaction will be the merger of Liberty with and into Liberty
Virginia, with Liberty Virginia as the surviving entity (the Reincorporation Merger). In
the Reincorporation Merger, each share of Liberty common stock issued and outstanding, other than
any shares held in the treasury of Liberty, will convert automatically into one share of Liberty
Virginia common stock. Each then-outstanding warrant to purchase shares of Liberty common stock
will automatically become exercisable for the same number of shares of Liberty Virginia common
stock. The Reincorporation Merger will be followed immediately by the share exchange described
below.
Shares of Liberty common stock outstanding immediately prior to the effective time of the
Reincorporation Merger with respect to which a stockholder of Liberty shall have validly exercised
its redemption rights pursuant to the Liberty restated certificate of incorporation and otherwise
have complied with the requirements for such valid exercise will also be converted into shares of
Liberty Virginia. However, such shares will automatically be deemed to have exercised redemption
rights pursuant to the Liberty Virginia articles of incorporation and, therefore, will represent
only the right to be redeemed for cash, in an amount per share calculated in accordance with the
Liberty restated certificate of incorporation and corresponding provisions to be contained in
Liberty Virginias articles of incorporation. Following the consummation of the Reincorporation
Merger and immediately prior to the statutory share exchange with Prisa, Liberty Virginia will
redeem such shares in accordance with the provisions of the Liberty restated certificate of
incorporation and corresponding provisions to be contained in Liberty Virginias articles of
incorporation. As a result, such shares will not participate in the share exchange. As of the
consummation of the Business Combination, all such redeemed Liberty Virginia shares will no
3
longer be outstanding and each holder of any such redeemed Liberty Virginia share will cease
to have any rights with respect thereto, except the right to receive the relevant redemption cash
payments.
The Share Exchange
Immediately following the Reincorporation Merger, Liberty Virginia and Prisa will effect a
statutory share exchange pursuant to which each share of Liberty Virginia common stock will be
acquired by Prisa and exchanged for the right to receive the consideration described below under
Consideration to Be Received in the Transaction; provided that stockholders of Liberty who have
validly exercised their redemption rights will have their shares redeemed instead and will receive
the redemption cash payments as described above. Upon the effectiveness of the share exchange,
Liberty Virginia will be a wholly-owned subsidiary of Prisa.
Consideration to Be Received in the Transaction
As a result of the Business Combination, Prisa will become the owner of 100% of the
outstanding shares of Liberty Virginia common stock and each share of Liberty Virginia common stock
(other than shares held by stockholders of Liberty who have validly exercised their redemption
rights) will be exchanged for the right to receive 1.547154 newly created Prisa Class A ordinary
shares and 0.35759 newly created Prisa convertible non-voting shares (collectively, the Share
Consideration). The Share Consideration will be issued in the form of separate Prisa American
Depositary Shares (ADSs) representing the Class A ordinary shares and the convertible
non-voting shares.
The
Class A ordinary shares will have the same rights as the ordinary shares of Prisa.
The convertible non-voting shares issued in the Business Combination to Liberty stockholders
and warrantholders will have an aggregate face value of approximately
360 million (approximately
$490 million, based on the average exchange rate during the 30 days ending March 5, 2010 of 1.364
U.S. dollars per euro), assuming no redemptions of Liberty shares and no adjustment to the mix of
stock and cash consideration is made as a result of the Prisa Rights Offering, as described below,
with each convertible non-voting share having a face value of 7.331 (approximately $10.00, based
on the exchange rate described above). The convertible non-voting shares will be non-voting, will
receive cash dividends in the amount of 7% per annum and will be convertible (i) at the option of
the holder into Prisa ordinary shares after the second anniversary of closing of the Business
Combination and (ii) at the option of Prisa after the fifth anniversary of closing of the Business
Combination. The conversion price of the convertible non-voting
shares is 4.50 per Class A ordinary share, so that
upon conversion each convertible non-voting share will be converted
into 1.629195 Class A ordinary
shares. The convertible non-voting shares will have a liquidation preference of 7.331 per share.
The rights of the Class A ordinary shares and convertible non-voting shares of Prisa are contained
in the proposed amended by-laws of Prisa to be adopted in connection with the consummation of the
Business Combination, an unofficial English translation of which is attached as Exhibit 99.1 to this Current
Report on Form 8-K and incorporated herein by reference.
No fractional shares of Prisa will be allotted to any holder of Liberty Virginia common stock
in the share exchange. In lieu of the issuance of any such fractional shares, each Liberty
Virginia stockholder who otherwise would be entitled to receive such fractional share will receive
cash.
At the effective time of the share exchange, each outstanding warrant to purchase shares of
Liberty Virginia common stock will be automatically exchanged for a combination of cash and Prisa
ADSs, in accordance with the terms of the warrant amendment agreement described in more detail
below.
4
Representations and Warranties
The Business Combination Agreement contains customary representations and warranties of Prisa
and Liberty relating to their respective businesses and public filings.
Pre-Closing Covenants
The Business Combination Agreement provides for customary pre-closing covenants, including the
obligation of the parties to conduct their respective businesses in all material respects in the
ordinary course, provide reasonable access to the others books and records, and use reasonable
best efforts to cause the Business Combination to occur and not take any action that would cause
the Reincorporation Merger to cease to be considered a tax-free reorganization.
Securityholder Meetings
Pursuant to the terms of the Business Combination Agreement, Liberty is required to promptly
call (i) a meeting of its stockholders for the purpose of voting upon the Business Combination
Agreement and the transactions contemplated thereby and (ii) a meeting of its warrantholders for
the purpose of seeking the written consent of the warrantholders to the warrant amendment agreement
described below. Prisa is required to call a meeting of its shareholders, to be held no later than
one business day following the Liberty stockholders meeting, for the purpose of approving
amendments to the charter and by-laws of Prisa to, among other things, (i) create the Class A
ordinary shares and convertible non-voting shares, (ii) provide for the necessary increase in
Prisas authorized capital to consummate the Business Combination and the Rights Offering described
below and (iii) require the approval of holders of 75% of Prisas voting shares for certain
fundamental matters. Pursuant to the Prisa Support Agreement described below, Rucandio, S.A. (Rucandio), the
controlling shareholder of Prisa, has agreed to vote the Prisa shares it controls, directly or
indirectly, in favor of any matter necessary to the consummation of the Business Combination and
considered and voted upon by Prisas shareholders.
Registration Statement
The Business Combination Agreement provides that Prisa and Liberty will promptly prepare, and
Prisa will file with the Securities Exchange Commission (the SEC), a registration
statement on Form F-4, which registration statement will include a proxy statement of Liberty with
respect to the Liberty stockholder and warrantholder meetings. Prisa and Liberty are required to
use their reasonable best efforts to have such registration statement declared effective as
promptly as practicable thereafter. In addition, Prisa is required to file a prospectus with the
Spanish Comisión Nacional del Mercado de Valores (the
CNMV) relating to an increase in Prisas
capital in connection with the Business Combination.
Directors and Officers Insurance
The Business Combination Agreement provides that, prior to the closing of the Business
Combination, Liberty will purchase a tail on its directors and officers liability insurance
policy with respect to acts or omissions occurring prior to the effective time of the share
exchange, with coverage in amount and scope at least as favorable as Libertys existing policies
and reasonably satisfactory to Prisa.
Prisa Rights Offering
Subject to the approval of the Prisa shareholders of the necessary increase in capital, prior
to the closing of the Business Combination Prisa will conduct a rights offer to its existing
shareholders to subscribe for newly issued Prisa Class A ordinary shares at a price of 3.08 per
share, up to a maximum subscription amount of 150 million in the aggregate (the Rights
Offering). Certain controlling shareholders of Rucandio have separately agreed to cause Rucandio and its subsidiaries not
to participate in the Rights Offering. Therefore, the maximum number of Class A ordinary shares
which are expected to be sold by Prisa in the Rights Offering is approximately 14.6 million, for
proceeds of approximately 45 million.
5
Asset Dispositions
Prisa is required to use its reasonable best efforts to carry out certain previously-announced
asset and equity dispositions as promptly as
practicable following the execution of the Business Combination Agreement.
Conditions to Complete the Transaction
The respective obligations of Prisa and Liberty to complete the Business Combination are
subject to the fulfillment or waiver of mutual conditions, including:
| receipt of the approval by the Prisa shareholders of the amendment to Prisas charter and the capital increase of Prisa necessary for effecting the Business Combination, the approval and adoption of the Business Combination Agreement by Liberty stockholders and the approval of the warrant amendment agreement by Liberty warrantholders; | ||
| the effectiveness of the registration statement with respect to the Prisa ADSs to be issued in the Business Combination under the Securities Act of 1933, as amended (the Securities Act) and certain related registration statements, and the absence of any stop order or proceedings initiated or threatened by the SEC for that purpose; | ||
| the absence of any order, injunction or decree having been issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Business Combination, and the absence of any statute, rule, regulation, order, injunction or decree having been enacted, entered, promulgated or enforced by any governmental entity that prohibits or makes illegal the consummation of the Business Combination; | ||
| a prospectus relating to the issuance of the new Prisa shares having been verified by and registered with the CNMV; | ||
| the restructuring by Prisa of its outstanding indebtedness (the Debt Restructuring) substantially in accordance with the terms described in an exhibit to the Business Combination Agreement occurring substantially simultaneously with the closing, and Prisa not being in default under any of the definitive documents relating to the Debt Restructuring; | ||
| the amendment to Prisas charter to, among other things, provide for the Class A ordinary shares and convertible non-voting shares having been completed; | ||
| the approval of the listing of Prisa ADSs to be issued in the Business Combination on the NYSE or Nasdaq Market, as determined by Prisa in consultation with Liberty, subject to official notice of issuance; and | ||
| Prisa having entered into a deposit agreement with a U.S. financial institution authorized to act as depositary for the Prisa ADSs, to be selected by Prisa after consultation with Liberty. |
Each of Prisas and Libertys obligations to complete the Business Combination is also
separately subject to the satisfaction or waiver of other conditions, including:
6
| the other partys representations and warranties in the Business Combination Agreement being true and correct, except (in the case of most of the representations and warranties) where the failure to be true and correct would not have a material adverse effect on such other party; | ||
| the other partys performance in all material respects of its obligations under the Business Combination Agreement; and | ||
| there not having occurred, since the date of the Business Combination Agreement, a material adverse effect on the other party. |
Libertys obligation to complete the Business Combination is also subject to the satisfaction
or waiver of the following conditions:
| Prisa having entered into an employment agreement with Juan Luis Cebrián providing for an employment term of at least three years and such other terms as are mutually acceptable to Prisa and Mr. Cebrián; and | ||
| Prisa issuing in the transaction the requisite number of Prisa shares as required by the share exchange and the warrant amendment agreement described below. |
Prisas obligation to complete the Business Combination is also subject to the satisfaction or
waiver of the following conditions:
| Liberty having not less than $900 million in cash at the closing of the Business Combination, after taking into account the deferred underwriting discounts payable to the underwriters of Libertys initial public offering, Libertys transaction expenses and other liabilities, and the $80 million in cash payable as part of the Warrant Consideration (as defined below), such $900 million being subject to reduction if the amount of cash payable as part of the Warrant Consideration increases pursuant to the terms of the warrant amendment agreement described below; |
| Libertys transaction expenses, including deferred underwriting discounts, not exceeding $50 million; and | ||
| Prisas controlling shareholders continuing to control not less than 30% of Prisas outstanding ordinary shares (after giving effect to both the transactions contemplated by the Business Combination Agreement and the Rights Offering) on a fully-diluted basis. |
Termination of the Business Combination Agreement
The Business Combination Agreement may be terminated at any time prior to the completion of
the Business Combination by the mutual written consent of Prisa and Liberty, or by either Prisa or
Liberty if:
| any order, injunction or decree is issued by any court or agency of competent jurisdiction or other legal restraint or prohibition making the Business Combination illegal or preventing the consummation of the Business Combination, or any statute, rule, regulation, order, injunction or decree has been enacted, entered, promulgated or enforced by any governmental entity that prohibits or makes illegal the consummation of the transaction, and such action has become final and non-appealable; |
7
| the requisite approval of Prisas shareholders or of Libertys stockholders is not obtained, or Libertys warrantholders fail to approve the warrant amendment agreement (except that a party may not terminate the Business Combination Agreement for this reason if it has not fulfilled its obligations under the Business Combination Agreement to call and conduct its meeting or meetings); | ||
| the transaction is not completed by December 6, 2010 (other than because of a breach of the Business Combination Agreement caused by the party seeking termination); or | ||
| the other party breaches the Business Combination Agreement in a way that would entitle the party seeking to terminate the agreement not to consummate the transaction, subject to the right of the breaching party to cure the breach within 15 days following written notice (unless it is not possible due to the nature or timing for the breach for the breaching party to cure the breach). |
In addition, the Business Combination Agreement may be terminated by Liberty if Prisa does not
receive, by March 15, 2010, from the agent for Prisas syndicated senior lenders, a notice to the
effect that each of the lenders under such credit facility has consented to the terms for the
restructuring of such facility agreed to between Prisa and such agent.
In the event the Business Combination Agreement is terminated, the Business Combination
agreement will become void and neither Prisa nor Liberty will have any liability under the Business
Combination Agreement, except that:
| both Prisa and Liberty will remain liable for any breach of the Business Combination Agreement; and | ||
| designated provisions of the Business Combination Agreement, including those regarding the payment of fees and expenses, governing law and jurisdiction, will survive the termination. |
The Warrant Amendment Agreement
In connection with, and as a condition to the consummation of, the proposed Business
Combination, Liberty is proposing to amend (the Warrant Amendment) the terms of the
Second Amended and Restated Warrant Agreement, dated as of December 6, 2007, between Liberty and
Continental Stock Transfer & Trust Company (as Warrant Agent). The proposed Warrant Amendment
provides that, in connection with the consummation of the transactions contemplated by the Business
Combination Agreement, each Liberty warrant outstanding immediately prior to the effective time of
the share exchange described above will, automatically and without any action by the warrantholder,
at the effective time of the share exchange, be exchanged by Prisa and transferred by such holder
to Prisa for consideration (collectively, the Warrant Consideration) consisting of:
| cash in the amount of $1.0431948 per outstanding warrant to be delivered by Liberty Virginia, for a total of $80 million in cash for all warrants; and | ||
| Prisa ADSs representing 0.1558961 newly issued Prisa Class A ordinary shares per outstanding warrant and 0.0360319 newly issued Prisa convertible non-voting shares per outstanding warrant. |
If Prisa sells any shares in the Rights Offering and the sale of such shares would cause
Prisas controlling shareholders to control less than 30.05% of Prisas outstanding ordinary shares
(after giving effect to the Rights Offering and any redemptions of Liberty shares) on a
fully-diluted basis, then for each Prisa Class A ordinary
share sold by Prisa pursuant to the Rights
8
Offering
which causes Rucandio to control less than such threshold percentage, the
Warrant Consideration will be adjusted as follows: for every 100,000 Warrants, the amount of cash consideration will be
increased by $0.0067385, the number of Prisa Class A ordinary shares will be decreased by 0.0009478
of a share and the number of Prisa convertible non-voting shares will be decreased by 0.0002191 of
a share, in each case proportionately adjusted for holdings of less than 100,000 warrants.
As a result of the Warrant Amendment, each registered holder of warrants will cease to have
any rights with respect to the warrants, other than the right to the Warrant Consideration.
The foregoing is a summary of the material terms of the form of Warrant Amendment Agreement, a
copy of which is attached as Exhibit 4.1 to this Current Report on Form 8-K and incorporated herein
by reference.
Prisa Transaction Support Agreement
Concurrently with the execution of, and in order to induce Liberty to enter into, the Business
Combination Agreement, Rucandio, which currently controls, directly and indirectly, approximately
70% of the outstanding ordinary shares of Prisa, entered into a transaction support agreement with
Liberty (the Prisa Support Agreement). Pursuant to the Prisa Support Agreement, Rucandio
agreed to perform all necessary acts to ensure the convening of the Prisa shareholders meeting
during the first half of 2010 and to attend such meeting. At such Prisa shareholders meeting,
Rucandio has agreed to vote or exercise its right to consent with respect to all ordinary shares of
Prisa that it beneficially owns in favor of (i) a capital increase to complete the share exchange,
(ii) a capital increase to complete the exchange of Prisa shares for Liberty warrants, (iii)
approval of the issuance of convertible non-voting ordinary shares and the necessary amendments to
Prisas organizational documents, and (iv) the appointment of a director designated by Liberty.
Rucandio also agreed to vote the shares it controls, directly or indirectly, in favor of any other
matter necessary to the consummation of the Business Combination and considered and voted upon by
Prisas shareholders.
The Prisa Support Agreement will terminate on the earliest to occur of (i) Rucandio exercising
its right to vote pursuant to the Prisa Support Agreement, (ii) the mutual consent of Prisa and
Liberty and (iii) the termination of the Business Combination Agreement pursuant to its terms.
The foregoing is a summary of the material terms of the Prisa Support Agreement, a copy of
which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by
reference.
Sponsor Support Agreement
Concurrently with the execution of, and in order to induce Prisa to enter into, the Business
Combination Agreement, Libertys sponsors, Berggruen Acquisition Holdings Ltd and Marlin Equities
II, LLC, entered into a sponsor support agreement with Prisa (the Sponsor Support
Agreement) pursuant to which they agreed to be counted as present at the special meeting of
Liberty warrantholders to consider the Warrant Amendment and to vote or exercise their right to
consent with respect to all of the warrants held by each of them in favor of the Warrant Amendment.
The Sponsor Support Agreement will terminate on the earliest to occur of (i) the consummation
of the Business Combination, (ii) the mutual consent of Prisa and Liberty and (iii) the termination
of the Business Combination Agreement pursuant to its terms.
The foregoing is a summary of the material terms of the Sponsor Support Agreement, a copy of
which is attached as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by
reference.
9
Termination of Co-Investment and Lock-Up Obligations
At the request of Prisa, subject to the Business Combination being consummated, Liberty has
waived the co-investment obligations of Libertys sponsors so as to reduce dilution to the
shareholders of Prisa following consummation of the Business Combination. In addition, the
underwriters of Libertys initial public offering have agreed, effective upon the consummation of
the Business Combination, to release Libertys founders from the transfer restrictions that were
agreed to by the founders in connection with Libertys initial public offering.
Item 5.01. Change in Control of Registrant.
The information in Item 1.01 is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit | ||
Number | Description | |
2.1
|
Business Combination Agreement, dated as of March 5, 2010, by and between Prisa and Liberty.* | |
4.1
|
Form of Warrant Amendment Agreement. | |
10.1
|
Transaction Support Agreement, dated as of March 5, 2010, between Liberty and Rucandio (English translation). | |
10.2
|
Sponsor Support Agreement, dated as of March 5, 2010, by and among Prisa, Berggruen Acquisition Holdings Ltd and Marlin Equities II, LLC. | |
99.1
|
Form of Prisa by-laws (unofficial English translation). |
* | The Business Combination Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about Liberty or Prisa. The representations, warranties and covenants contained in the Business Combination Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Business Combination Agreement. The representations and warranties may have been made for the purposes of allocating contractual risk between the parties to the agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Business Combination Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of Liberty, Prisa or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Business Combination Agreement, and this subsequent information may or may not be fully reflected in Libertys or Prisas respective public disclosures. |
10
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
LIBERTY ACQUISITION HOLDINGS CORP. |
||||
Date: March 10, 2010 | By: | /s/ Jared Bluestein | ||
Name: | Jared Bluestein | |||
Title: | Secretary | |||
EXHIBIT INDEX
Exhibit | ||
Number | Description | |
2.1
|
Business Combination Agreement, dated as of March 5, 2010, by and between Prisa and Liberty.* | |
4.1
|
Form of Warrant Amendment Agreement. | |
10.1
|
Transaction Support Agreement, dated as of March 5, 2010, between Liberty and Rucandio (English translation). | |
10.2
|
Sponsor Support Agreement, dated as of March 5, 2010, by and among Prisa, Berggruen Acquisition Holdings Ltd and Marlin Equities II, LLC. | |
99.1
|
Form of Prisa by-laws (unofficial English translation). |
* | The Business Combination Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about Liberty or Prisa. The representations, warranties and covenants contained in the Business Combination Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Business Combination Agreement. The representations and warranties may have been made for the purposes of allocating contractual risk between the parties to the agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Business Combination Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of Liberty, Prisa or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Business Combination Agreement, and this subsequent information may or may not be fully reflected in Libertys or Prisas respective public disclosures. |