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:
Exhibit 10.19
December 6, 2007
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 Xxxxxx Brothers Inc. and any other underwriters named in the final
prospectus (the “Prospectus”) relating to the IPO (Citigroup, Xxxxxx 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
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
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
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.
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 Xxxxxx Equities
II, LLC (“Xxxxxx” and together with Berggruen Holdings, “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,
Xxxxxx 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.
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).
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]
| BERGGRUEN ACQUISITION HOLDINGS LTD |
||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Secretary | |||
