Ex-10.22 Form of Amended and Restated Letter Agree



 





Exhibit 10.22




, 2007




Liberty Acquisition Holdings Corp.

1114 Avenue of the Americas, 41st Floor

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 21,562,500 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 5,000,000 Units of the Company to be issued to the
Sponsors



 









 





Liberty Acquisition Holdings Corp.

Citigroup Global Markets Inc.

Page 2



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 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



 









 





Liberty Acquisition Holdings Corp.

Citigroup Global Markets Inc.

Page 3



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
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 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 Section 5 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.



     5. [The undersigned (“Berggruen Holdings”) agrees that in the event it becomes aware
of, or involved with any Business Combination opportunities with an enterprise value of $750
million or more, it will first offer such business opportunities to the Company and further agrees
that neither it nor any of its affiliates will pursue such opportunities unless and until the
Company’s Board of Directors determines that it will not pursue such opportunities (the
“Company’s Right of First Review”) unless such Business Combination opportunity is
competitive (as defined below) with one of the Portfolio Companies of Berggruen Holdings Ltd in
which case they would first be offered to such Portfolio Company. A Business Combination
opportunity will be considered “competitive” with a Berggruen Holdings Ltd Portfolio Company if the
target company is engaged in the design, development, manufacture, distribution or sale of any
products, or the provision of any services, which are the same as, or competitive with, the
products or services which a Berggruen Holdings Ltd Portfolio Company designs, develops,
manufactures, distributes or sells. The Company’s Right of First Review will begin upon the



 









 





Liberty Acquisition Holdings Corp.

Citigroup Global Markets Inc.

Page 4



consummation of the IPO and terminate on the earlier of (i) the consummation by the Company of a
Business Combination or (ii) the dissolution and liquidation of the Company.][Martin Franklin, the
majority owner and managing member of the undersigned, 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 (“Berggruen Holdings”)
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 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.



     7. Upon consummation of the IPO, each of [Berggruen Holdings and Marlin Equities II, LLC
(“Marlin” and together with Berggruen Holdings, “Sponsors”)][Marlin and Berggruen
Acquisition Holdings Ltd (“Berggruen Holdings” and together with Marlin,
“Sponsors”)] shall provide the Company’s audit committee, on a quarterly basis, with
evidence that such Sponsor has sufficient net liquid assets available to consummate the
Co-Investment (as described in the Prospectus). In the event that either Sponsor is unable to
consummate the Co-Investment when required to do so, such Sponsor shall surrender and forfeit its
Founders’ Units (including any Warrants included in such Units) to the Company.



     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. The undersigned, [Marlin][Berggruen Holdings] 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.



 









 





Liberty Acquisition Holdings Corp.

Citigroup Global Markets Inc.

Page 5




     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.



     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 the undersigned 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.



     11. 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 or it
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).



 









 





Liberty Acquisition Holdings Corp.

Citigroup Global Markets Inc.

Page 6




     12. In order to induce you and the other Underwriters to enter into the proposed Underwriting
Agreement in connection with the IPO, the undersigned hereby agrees to execute an escrow agreement
among the Founders, the Company and Continental Stock Transfer & Trust Company simultaneously with
the execution of the proposed Underwriting Agreement, whereby a portion of the undersigned’s
Founder’s Units will be held in escrow until the earlier of the time that the Underwriters’
over-allotment option is exercised or expires. The undersigned understands that (i) if the
Underwriters exercise their over-allotment option in full, all of the undersigned’s escrowed
Founders’ Units will be released to the undersigned upon the closing of the Underwriters’
over-allotment option exercise and (ii) if the Underwriters exercise their over-allotment option in
part, a pro rata amount of the undersigned’s escrowed Founders’ Units will
be released to the undersigned upon the closing of the Underwriters’ over-allotment option
exercise such that the aggregate number of Founders’ Units held by the Founders will be equal to
20% of the total number of Units outstanding after the Initial Public Offering, and the remainder
of the undersigned’s Founders’ Units will be forfeited by and returned to the Company.



     13. 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.



     14. The undersigned hereby undertakes that it will not, prior to the consummation of the
Business Combination, propose or vote in favor of a proposal to amend any provision of the amended
and restated certificate of incorporation which requires a vote of 80% in voting power of the then
outstanding shares of the capital stock of the Company to amend.



[Signature Page to Follow]





 









 








Liberty Acquisition Holdings Corp.

Citigroup Global Markets Inc.

Page 7




	 	 	 	 	 
	 	[NAME OF SPONSOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: