EX-10.11 LETTER AGREEMENT



 







Exhibit 10.11





     July 20, 2006



Freedom Acquisition Holdings, Inc.

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:




          Citigroup Global Markets Inc. (“Citigroup”) is acting as sole bookrunning manager of
the initial public offering (the “IPO”) of Units consisting of one share of Common Stock of
Freedom Acquisition Holdings, Inc. (the “Company”), and one warrant to purchase one share
of Common Stock of the Company and representative (the “Representative”) of Ladenburg
Thalmann & Co. Inc. and any other underwriters named in the final prospectus (the
“Prospectus”) relating to the IPO (Citigroup, Ladenburg, Thalmann & Co. 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 Company’s
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 9,375,000 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 4,500,000 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 6,250,000 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; and (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



 









 





Freedom Acquisition Holdings, Inc.

Citigroup Global Markets Inc.

Page 2




      


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.




     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) 18 months after the consummation of the IPO (the “Consummation Date”) or (ii) 24 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 18 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.



 









 





Freedom Acquisition Holdings, Inc.

Citigroup Global Markets Inc.

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     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.



     5. 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 he will not consider, on behalf of the Company, transactions that fit within
Jarden’s publicly announced acquisition criteria unless Jarden has determined not to pursue the
transaction. In the event there is any uncertainty regarding a specific transaction, an
independent committee of Jarden’s Board of Directors will determine whether Jarden intends to
pursue the 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 unless the
Company obtains an opinion from an independent investment banking firm reasonably acceptable to the
Representative that the Business Combination is fair to the Company’s stockholders from a financial
perspective.



     7. Upon consummation of the IPO, each of Berggruen Holdings North America Ltd. (“Berggruen
Holdings”) and the undersigned (“Marlin” 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. Berggruen Holdings, 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 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



 









 





Freedom Acquisition Holdings, Inc.

Citigroup Global Markets Inc.

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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. For the period commencing on the date hereof and ending one year from the consummation of
a Business Combination (the “Lock-Up Period”), (i) the undersigned shall retain all of his
or its rights as stockholders of the Company during the Lock-Up Period, including, without
limitation, the right to vote such shares; (ii) all dividends payable in cash with respect to the
Founders’ Shares (including any Non-Cash Dividends (as defined below) distributed thereon) shall be
paid to the undersigned, but all dividends payable in stock or other non-cash property (the
“Non-Cash Dividends”) shall be delivered to a mutually acceptable escrow agent to hold in
accordance with the terms hereof until the expiration of the Lock-Up Period; and (iii) the
undersigned will not, without the prior written consent of Citigroup, offer, sell, contract to
sell, 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, the Locked-Up Securities, or publicly announce an intention to effect any such transaction
except (A) if the undersigned is an individual, (1) by bona fide gift to a member of the
undersigned’s immediate family or to a trust or other entity, the beneficiary of which is the
undersigned or a member of the undersigned’s immediate family, (2) by virtue of the laws of descent
and distribution upon death of the undersigned or (3) pursuant to a qualified domestic relations
order; provided, however, that with respect to each of the transfers described in clauses (1), (2)
and (3) 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 Sections 2, 3, 9, 10, 11 and 12 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 and (B) each of the Sponsors may
transfer its Locked-Up Securities to the officers, directors and employees of the Company or to any
of its affiliates or employees of its affiliates; provided, however, that with respect to each such
transfer, (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 Sections
2, 3, 9, 10, 11 and 12 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.



     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 she
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).



[Signature Page to Follow]




 









 








Freedom Acquisition Holdings, Inc.

Citigroup Global Markets Inc.

Page 5




      



     12. 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.



	 	 	 	 	 
	 	MARLIN EQUITIES II, LLC

 	 
	 	By:  	/S/ IAN ASHKEN
 	 
	 	Name:	 	Ian Ashken	 
	 	Title:	 	Authorized Signatory