EX-10.22 Martin E. Franklin Amended and Restated L



 





Exhibit 10.22




December 6, 2007




Liberty Acquisition Holdings Corp.

1114 Avenue of the Americas, 41stFloor

New York, New York 10036




Citigroup Global Markets Inc.

388 Greenwich Street 
New York,
New York 10013




          Re:     Initial Public Offering




Ladies and Gentlemen:




          This Amended Letter Agreement amends and supersedes in its entirety the Letter Agreement,
dated August 9, 2007, by and among the above referenced parties and the undersigned.




          Citigroup Global Markets Inc. (“Citigroup”) is acting as sole bookrunning manager of the
initial public offering (the “IPO”) of units (the “Units”) consisting of one share of
Common Stock of Liberty Acquisition Holdings Corp. (the “Company”), and one-half (1/2) of
one warrant (a “Warrant”), each whole Warrant entitling the holder thereof to purchase one
share of Common Stock of the Company and representative (the “Representative”) of Lehman
Brothers Inc. and any other underwriters named in the final prospectus (the “Prospectus”)
relating to the IPO (Citigroup, Lehman Brothers Inc. and any other underwriters, collectively, the
“Underwriters”). The undersigned stockholder, officer and/or director of the Company, in
consideration of the Underwriters underwriting the IPO, hereby agrees as set forth below. Certain
capitalized terms used herein are defined in Section 1 hereof.




     1. As used herein, (i) a “Business Combination” shall mean an acquisition by merger,
capital stock exchange, asset or stock acquisition, reorganization or otherwise, of an operating
business selected by the Company; (ii) “Founders” shall mean all stockholders, officers and
directors who are stockholders of the Company immediately prior to the IPO; (iii) “Common
Stock” shall mean the Company’s common stock, par value $0.0001 per share, (iv) “Founders’
Shares” shall mean all of the shares of Common Stock of the Company owned by a Founder prior to
the IPO, (v) “IPO Shares” shall mean the shares of Common Stock issued in the Company’s
IPO, (vi) “Founders’ Warrants” shall mean all Warrants to purchase shares of Common Stock
of the Company owned by a Founder prior to the IPO, other than the Sponsors’ Warrants; (vii)
“Founders’ Units” shall mean the 25,875,000 Units issued by the Company to the Founders
prior to the IPO, of which the Founders’ Shares and the Founders’ Warrants are a part; (viii)
“Sponsors’ Warrants” shall mean the 12,000,000 Warrants to purchase shares of Common Stock
to be issued to the Sponsors in a private placement immediately prior to the IPO; (ix)
“Co-Investment Units” shall mean the 6,000,000 Units of the Company to be issued to the
Sponsors in a private placement that will occur immediately prior to the consummation of a Business
Combination by the Company; (x) “Co-Investment Shares” shall mean the Common Stock
underlying the Co-Investment Units; (xi) “Co-Investment Warrants” shall mean the Warrants
to



 









 





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Citigroup Global Markets Inc.

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purchase shares of Common Stock underlying the Co-Investment Units; (xii) “Locked-Up
Securities” shall mean all issued and outstanding Founders’ Units, Founders’ Shares and
Founders’ Warrants (including the shares of Common Stock to be issued upon exercise of the
Founders’ Warrants) and all Sponsors’ Warrants (including the shares of Common Stock to be issued
upon exercise of the Sponsors’ Warrants), Co-Investment Units, Co-Investment Shares and
Co-Investment Warrants (including the shares of Common Stock to be issued upon exercise of the
Co-Investment Warrants) to be issued after the date hereof in accordance with the terms and
conditions set forth in the Prospectus; (xiii) persons or entities “Associated With” the
undersigned shall mean (a) relatives of such person, (b) any corporation or organization of which
such person is an officer or partner or directly or indirectly the beneficial owner of 10% or more
of any class of equity securities and (c) any trust or estate in which such person has a
substantial beneficial interest or as to which such person serves as a trustee, executor or in a
similar fiduciary capacity and (xiv) a “Portfolio Company” of the referenced entity shall
mean a company in which the entity controls a majority of the voting stock or a majority of the
board of directors of such company.




     2. If the Company solicits approval of its stockholders of a Business Combination,
the undersigned will vote (i) all Founders’ Shares owned by him or it in accordance with the
majority of the votes cast by the holders of the IPO Shares and (ii) all other shares of the
Company’s Common Stock that may be acquired by him or it in any private placement, the IPO
or in the aftermarket for such Business Combination.



     3. In the event that the Company fails to consummate a Business Combination by
the later of (i) 30 months after the consummation of the IPO (the “Consummation Date”) or (ii)
36 months after the Consummation Date in the event that either a letter of intent, an agreement in
principle or a definitive agreement to consummate a Business Combination was executed but no
Business Combination was consummated within such 30 month period (such later date being
referred to herein as the “Termination Date”), the undersigned shall, to the fullest extent
permitted by the Delaware General Corporation Law (the “DGCL”), (i) take all action necessary
to dissolve the Corporation and liquidate the trust account established under the Investment
Management Trust Agreement to be entered into between the Company and Continental Stock
Transfer & Trust Company (the “Trust Account”) to holders of IPO Shares as promptly as
practicable after approval by the Company’s stockholders (subject to the requirements of the
DGCL) and (ii) vote all Founders’ Shares and all of the shares of the Company’s Common Stock
that may be acquired by him or it in any private placement, the IPO or in the aftermarket in favor
of any dissolution and plan of distribution recommended by the Company’s Board of Directors,
and promptly cause the Company to prepare and file a proxy statement with the Securities and
Exchange Commission setting out the plan of dissolution and distribution. If no proxy statement
seeking the approval of the stockholders for a Business Combination has been filed within 60
days prior to the Termination Date, and the Board of Directors convenes, adopts and
recommends to the stockholders the liquidation and dissolution of the Company, and the
Company files a proxy statement with the Securities and Exchange Commission seeking
stockholder approval for such plan, the undersigned agrees to vote all Founders’ Shares and all
of the shares that may be acquired by him or it in any private placement, the IPO or in the
aftermarket in favor of any such dissolution and plan of distribution recommended by the



 









 





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Company’s Board of Directors. The undersigned hereby waives any and all right, title, interest or
claim of any kind (“Claim”) to participate in any liquidating distribution of the Trust
Account as part of the Company’s plan of distribution with respect to the Founders’ Shares if the
Company fails to consummate a Business Combination and the Trust Account is consequently
liquidated and hereby waives any Claim the undersigned may have in the future as a result of, or
arising out of, any contracts or agreements with the Company and will not seek recourse against
the Trust Account for any reason whatsoever. The undersigned agrees that the undersigned will,
jointly and severally, with Nicolas Berggruen indemnify and hold harmless the Company against any
and all losses, liabilities, claims, damages and expenses whatsoever (including, but not limited
to, any and all legal or other expenses reasonably incurred in investigating, preparing or
defending against any litigation, whether pending or threatened, or any claim whatsoever) which
the Company and/or the Trust Account may suffer or to which the Company and/or the Trust Account
may become subject to as a result of any claim by any vendor (including, but not limited to,
accountants, lawyers and investment bankers), prospective target business (or any affiliate of any
such prospective target business) or other entity that is owed money by the Company for services
rendered, products sold or financing provided, but in each case to the extent that such losses,
liabilities, claims, damages or expenses reduce the aggregate amount of funds in, or distributable
(or distributed) to the stockholders of the Company from, the Trust Account. To the extent such
losses, liabilities, claims, damages or expenses reduce the aggregate amount of funds in, or
distributable (or distributed) to the stockholders of the Company from, the Trust Account, the
undersigned will pay any amounts owed under this indemnification directly to the Trust Account.
The undersigned acknowledges that the Company shall use its best efforts to enforce the
undersigned’s indemnification obligations hereunder. The undersigned acknowledges and agrees that
there will be no distribution from the Trust Account with respect to any Warrants, all rights of
which will terminate on the Company’s liquidation.




     4. Subject to Sections 5 and 6 below, in order to minimize potential conflicts of
interest which may arise from multiple affiliations, the undersigned agrees to present to the
Company for its consideration, and not to any other person or entity unless the opportunity is
rejected by the Company, those opportunities to acquire an operating business the undersigned
reasonably believes are suitable opportunities for the Company, until the earlier of (i) the
consummation by the Company of a Business Combination, (ii) the dissolution and liquidation of the
Company or (iii) until such time as the undersigned ceases to be an officer or director of the
Company, subject to any fiduciary obligations the undersigned might have. The undersigned
acknowledges that the Company has restricted its geographic focus to North America because the
Founders have formed, and may form in the future, other special purpose acquisition companies (each
a “Related Party SPAC”) that are targeting investments outside of North America.
Accordingly, the Company will be prohibited from consummating a Business Combination with a target
business whose principal operations are outside North America unless such opportunity was first
presented to each Related Party SPAC and each Related Party SPAC chose not to pursue such
opportunity. If such Related Party SPACs are no longer searching for target businesses or they
decide for any reason not to pursue a specific opportunity while the Company is still seeking a
target business, the Company may expand its focus geography to pursue such target business if it
identifies an attractive opportunity.



 









 





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     5. Martin Franklin is also an executive officer of Jarden Corporation (“Jarden”) and
has committed to Jarden’s Board of Directors that the Company generally does not intend to seek
transactions that fit within Jarden’s publicly announced acquisition criteria and that the Company
will not interfere with Mr. Franklin’s obligations to Jarden. However, in order to avoid the
potential for a conflict of interest, Mr. Franklin further committed to Jarden that he will review
any potential target company to determine whether such company fits within Jarden’s publicly
announced acquisition criteria. If Mr. Franklin determines that such company fits within such
criteria, Mr. Franklin will first confirm with an independent committee of Jarden’s Board of
Directors that Jarden is not interested in pursuing the potential business combination opportunity
with such company (whether such a transaction was sourced by Mr. Franklin, Nicolas
Berggruen, another Berggruen Holdings Ltd investment professional or any other person). If the
independent committee concludes that Jarden was interested in the opportunity, then the
Company will not continue with that transaction.



     6. The undersigned is a director of GLG Partners, Inc. (f/k/a Freedom Acquisition
Holdings, Inc.) (“GLG”). The Company will compete with GLG Partners for acquisition
opportunities. The Company hereby acknowledges that it will not interfere with the
undersigned’s obligations to GLG. GLG operates in the alternative asset management sector. If
the undersigned determines that a target company fits within the acquisition criteria of GLG, he
will first present such potential target to GLG. The undersigned will not present the potential
business combination opportunity to the Company or the board of directors of the Company
unless GLG confirms that it is not interested in pursuing a business combination with such
company. Therefore, all potential business combination opportunities with target companies in
the alternative asset management sector that are identified by the undersigned will be required to
be presented first to GLG before they can be presented to the Company.



     7. The undersigned acknowledges and agrees that the Company will not
consummate any Business Combination which involves a company which is affiliated with any
of the Founders, directors and/or officers of the Company or with any Company that the
undersigned has had any discussions, formal or otherwise, with respect to a Business
Combination with another company, prior to the consummation of the IPO.



     8. Neither the undersigned, any member of the family of the undersigned, nor any
affiliate of the undersigned will be entitled to receive and will not accept any compensation for
services rendered to the Company prior to the consummation of the Business Combination;
provided, however, that commencing upon the Consummation Date, Berggruen Holdings, Inc.
shall be allowed to charge the Company an allocable share of its overhead, $10,000 per month,
to compensate it for office space, administrative services and secretarial support until the earlier
of the Company’s consummation of a Business Combination or its liquidation. Berggruen
Acquisition Holdings Ltd, Marlin Equities II, LLC, the undersigned and the officers and
directors of the Company shall also be entitled to reimbursement from the Company for their
out-of-pocket expenses, such as travel expenses, incurred in connection with seeking and
consummating a Business Combination.



 









 





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     9. Neither the undersigned, any member of the family of the undersigned, or any
affiliate of the undersigned will be entitled to receive or accept a finder’s fee or any other
compensation in the event the undersigned, any member of the family of the undersigned or any
affiliate of the undersigned originates a Business Combination. In addition, the undersigned will
not take retaining his positions with the Company into consideration in determining which
acquisition to pursue.



     10. In order to induce you and the other Underwriters to enter into the proposed
Underwriting Agreement in connection with the IPO, the undersigned will not, without the prior
written consent of Citigroup, offer, sell, contract to sell, assign, transfer, pledge or otherwise
dispose of (or enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective economic disposition due
to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any
person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly,
including the filing (or participation in the filing) of a registration statement with the Securities
and Exchange Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, (the “Exchange Act”) and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any shares of
capital stock (including the Locked-Up Securities) of the Company or any securities convertible
into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to
effect any such transaction during the Restricted Period (as defined below); provided, however,
that the foregoing sentence shall not apply to (A) the Locked-Up Securities disposed of as bona
fide gifts approved in writing by Citigroup, (B) any transfer for estate planning purposes of the
Locked-Up Securities to persons immediately related to such transferor by blood, marriage or
adoption, (C) any trust solely for the benefit of such transferor and/or the persons described in
the preceding clause, or (D) the transfer by Marlin to the Company’s officers, directors and
employees and other persons or entities Associated With the undersigned; provided, however,
that with respect to each of the transfers described in clauses (A), (B), (C) and (D) of this
sentence, (i) prior to such transfer, the transferee of such transfer, or the trustee or legal guardian
on behalf of any transferee, agrees in writing to be bound by the terms of this letter and (ii) no
filing by any party under the Exchange Act shall be required or shall be voluntarily made in
connection with such disposition or transfer. The term “Restricted Period” means the period
commencing on the date hereof and ending one year from the consummation of a Business
Combination, except that if (a) during the last 17 days of the Restricted Period the Company
issues an earnings release or material news or a material event relating to the Company occurs or
(b) prior to the expiration of the Restricted Period the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the Restricted Period, then
the Restricted Period shall end on and include the 18th day following the date of
the issuance of the earnings release or the occurrence of the material news or material event. Any of the
foregoing transfers will be made in accordance with applicable securities laws.



 









 





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     11. The undersigned agrees to be the Chairman of the Board of Directors of the
Company until the earlier of the consummation by the Company of a Business Combination or
the dissolution and liquidation of the Company. The undersigned’s biographical information
furnished to the Company and the Representative and attached hereto as Exhibit A is true and
accurate in all respects, does not omit any material information with respect to the undersigned’s
background and contains all of the information required to be disclosed pursuant to Section 401 of
Regulation S-K, promulgated under the Securities Act of 1933, as amended. The undersigned
represents and warrants that:




     (a) he is not subject to or a respondent in any legal action for, any injunction,
cease-and-desist order or order or stipulation to desist or refrain from any act or
practice relating to the offering of securities in any jurisdiction;




     (b) he has never been convicted of or pleaded guilty to any crime (i) involving
any fraud or (ii) relating to any financial transaction or handling of funds of another
person, or (iii) pertaining to any dealings in any securities and he is not currently a
defendant in any such criminal proceeding; and




     (c) he has never been suspended or expelled from membership in any
securities or commodities exchange or association or had a securities or commodities
license or registration denied, suspended or revoked.



     12. The undersigned has full right and power, without violating any agreement by
which he is bound, to enter into this Agreement and to serve as the Chairman of the Board of
Directors of the Company.



     13. The undersigned authorizes any employer, financial institution, or consumer
credit reporting agency to release to the Representative and its legal representatives or agents
(including any investigative search firm retained by the Representative) any information they
may have about the undersigned’s background and finances (“Information”), purely for the
purposes of the Company’s IPO (and shall thereafter hold such information confidential).
Neither the Representative nor its agents shall be violating the undersigned’s right of privacy in
any manner in requesting and obtaining the Information and the undersigned hereby releases
them from liability for any damage whatsoever in that connection.



     14. The undersigned hereby waives his or its right to exercise redemption rights with
respect to any Founders’ Shares owned by the undersigned, directly or indirectly, and agrees that
he will not seek redemption for cash with respect to such Founders’ Shares in connection with
any vote to approve a Business Combination (as is more fully defined in the Prospectus).



     15. The undersigned hereby agrees that any action, proceeding or claim against the
undersigned arising out of or relating in any way to this Agreement 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. The undersigned hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenience forum.



[Signature Page to Follow]





 









 






Liberty Acquisition Holdings Corp.

Citigroup Global Markets Inc.

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	 	By:  	/s/ Martin Franklin
 	 
	 	 	Name:  	Martin Franklin 	 
	 	 	 	 
	 




 









 








Exhibit A





     Martin E. Franklin has been the chairman of our board of directors since our inception in June
2007. Mr. Franklin has served as chairman and chief executive officer of Jarden Corporation, a
broad based consumer products company, since 2001. Prior to joining Jarden Corporation, Mr.
Franklin served as chairman and a director of Bolle, Inc. from 1997 to 2000, chairman of Lumen
Technologies from 1996 to 1998, and as chairman and chief executive officer of its predecessor,
Benson Eyecare Corporation from 1992 to 1996. Mr. Franklin also serves on the board of directors of
GLG Partners, Inc. and Kenneth Cole Productions, Inc. Mr. Franklin also serves as a director and
trustee of a number of private companies and charitable institutions.