EX-10.9 FORM OF INVESTMENT MANAGEMENT TRUST AGREEM



 







Exhibit 10.9




FORM OF




INVESTMENT MANAGEMENT TRUST AGREEMENT




     This Agreement is made as of July ___, 2006 by and between FREEDOM ACQUISITION HOLDINGS, INC.
(the “Company”) and Continental Stock Transfer & Trust Company (“Trustee”).



     WHEREAS, the Company’s Registration Statement on Form S-1, No. 333-                     (the
“Registration Statement”), for its initial public offering of securities (“IPO”)
has been declared effective as of the date hereof by the Securities and Exchange Commission (the
“Effective Date”); and



     WHEREAS, Citigroup Global Markets Inc. (“Citigroup”) is acting as the representative
of the underwriters in the IPO; and



     WHEREAS, as described in the Company’s Registration Statement, and in accordance with the
Company’s Amended and Restated Certificate of Incorporation, $288,750,000 of the net proceeds of
the IPO ($310,650,000 if the underwriters’ over-allotment option is exercised in full) will be
delivered to the Trustee to be deposited and held in a trust account for the benefit of the Company
and the holders of the Company’s common stock, par value $0.0001, issued in the IPO. The amount to
be delivered to the Trustee will be referred to herein as the “Property,” the stockholders
for whose benefit the Trustee shall hold the Property will be referred to as the “Public
Stockholders,” and the Public Stockholders and the Company will be referred to together as the
“Beneficiaries”); and



     WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the
terms and conditions pursuant to which the Trustee shall hold the Property;



     IT IS AGREED:



     1. Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:



          (a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this
Agreement in a segregated trust account (the “Trust Account”) established by the Trustee at
a branch of J.P. Morgan Chase N.Y. selected by the Trustee;




          (b) Manage, supervise and administer the Trust Account subject to the terms and conditions set
forth herein;




          (c) In a timely manner, upon the instruction of the Company, to invest and reinvest the
Property in any “Government Security” or one or more money market funds, selected by the Company
meeting the conditions specified in Rule 2a-7 promulgated under the Investment Company Act of 1940,
as amended, as determined by the Company. As used herein, “Government Security” means any Treasury Bill issued by the United States, having a
maturity of one hundred and eighty days or less;







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          (d) Collect and receive, when due, all principal and income arising from the Property, which
shall become part of the “Property,” as such term is used herein;




          (e) Notify the Company and Citigroup of all communications received by it with respect to any
Property requiring action by the Company;




          (f) Supply any necessary information or documents as may be requested by the Company in
connection with the Company’s preparation of the tax returns for the Trust Account;




          (g) Participate in any plan or proceeding for protecting or enforcing any right or interest
arising from the Property if, as and when instructed by the Company and/or Citigroup to do so;




          (h) Render to the Company and to Citigroup, and to such other person as the Company may
instruct, monthly written statements of the activities of and amounts in the Trust Account
reflecting all receipts and disbursements of the Trust Account; and




          (i) Commence liquidation of the Trust Account only after receipt of and only in accordance
with the terms of a letter (the “Termination Letter”), in a form substantially similar to
that attached hereto as either Exhibit A or Exhibit B, signed on behalf of the
Company by its Chief Executive Officer or other authorized officer, and complete the liquidation of
the Trust Account and distribute the Property in the Trust Account only as directed in the
Termination Letter and the other documents referred to therein.




     2. Agreements and Covenants of the Company. The Company hereby agrees and covenants to:



          (a) Give all instructions to the Trustee hereunder in writing, signed by the Company’s Chief
Executive Officer or other authorized officer. In addition, except with respect to its duties
under paragraph 1(i) above, the Trustee shall be entitled to rely on, and shall be protected in
relying on, any verbal or telephonic advice or instruction which it in good faith believes to be
given by any one of the persons authorized above to give written instructions, provided that the
Company shall promptly confirm such instructions in writing;




          (b) Hold the Trustee harmless and indemnify the Trustee from and against any and all expenses,
including reasonable counsel fees and disbursements, or loss suffered by the Trustee in connection
with any action, suit or other proceeding brought against the Trustee involving any claim, or in
connection with any claim or demand which in any way arises out of or relates to this Agreement,
the services of the Trustee hereunder, or the Property or any income earned from investment of the
Property, except for expenses and losses resulting from the Trustee’s gross negligence or willful
misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the
commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek
indemnification under this paragraph, it shall notify the Company in writing of such claim
(hereinafter referred to as the “Indemnified Claim”). The
Trustee shall have the right to conduct and manage the defense against such Indemnified Claim,
provided, that the Trustee shall obtain the consent of the Company with respect to the selection of
counsel, which consent shall not be unreasonably withheld. The Company may participate in such
action with its own counsel; and







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          (c) Pay the Trustee an initial acceptance fee of $1,000 and an annual fee of $3,000 (it being
expressly understood that the Property shall not be used to pay such fee). The Company shall pay
the Trustee the initial acceptance fee and first year’s fee at the consummation of the IPO and
thereafter shall pay the annual fee on each anniversary of the Effective Date. The Trustee shall
refund to the Company the fee (on a pro rata basis) with respect to any period after the
liquidation of the Trust Fund. The Company shall not be responsible for any other fees or charges
of the Trustee except as may be provided in paragraph 2(b) hereof (it being expressly understood
that the Property shall not be used to make any payments to the Trustee under such paragraph).




     3. Limitations of Liability. The Trustee shall have no responsibility or liability to:



          (a) Take any action with respect to the Property, other than as directed in paragraph 1 hereof
and the Trustee shall have no liability to any party except for liability arising out of its own
gross negligence or willful misconduct;




          (b) Institute any proceeding for the collection of any principal and income arising from, or
institute, appear in or defend any proceeding of any kind with respect to, any of the Property
unless and until it shall have received instructions from the Company given as provided herein to
do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses
incident thereto;




          (c) Change the investment of any Property, other than in compliance with paragraph 1(c);




          (d) Refund any depreciation in principal of any Property;




          (e) Assume that the authority of any person designated by the Company to give instructions
hereunder shall not be continuing unless provided otherwise in such designation, or unless the
Company shall have delivered a written revocation of such authority to the Trustee;




          (f) The other parties hereto or to anyone else for any action taken or omitted by it, or any
action suffered by it to be taken or omitted, in good faith and in the exercise of its own best
judgment, except for its gross negligence or willful misconduct. The Trustee may rely conclusively
and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of
counsel (including counsel chosen by the Trustee), statement, instrument, report or other paper or
document (not only as to its due execution and the validity and effectiveness of its provisions,
but also as to the truth and acceptability of any information therein contained) which is believed
by the Trustee, in good faith, to be genuine and to be signed or presented by the proper person or
persons. The Trustee shall not be bound by any notice or demand, or any waiver, modification,
termination or rescission of this agreement or any of the terms hereof,
unless evidenced by a written instrument delivered to the Trustee signed by the proper party
or parties and, if the duties or rights of the Trustee are affected, unless it shall give its prior
written consent thereto;




          (g) Verify the correctness of the information set forth in the Registration Statement or to
confirm or assure that any acquisition made by the Company or any other action taken by it is as
contemplated by the Registration Statement; and






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          (h) Pay any taxes on behalf of the Trust Account (it being expressly understood that the
Property shall not be used to pay any such taxes and that such taxes, if any, shall be paid by the
Company from funds not held in the Trust Account).




     4. Termination. This Agreement shall terminate as follows:



          (a) If the Trustee gives written notice to the Company that it desires to resign under this
Agreement, the Company shall use its reasonable efforts to locate a successor trustee. At such
time that the Company notifies the Trustee that a successor trustee has been appointed by the
Company and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer
the management of the Trust Account to the successor trustee, including but not limited to the
transfer of copies of the reports and statements relating to the Trust Account, whereupon this
Agreement shall terminate; provided, however, that, in the event that the Company does not locate a
successor trustee within ninety days of receipt of the resignation notice from the Trustee, the
Trustee may submit an application to have the Property deposited with the United States District
Court for the Southern District of New York and upon such deposit, the Trustee shall be immune from
any liability whatsoever that arises due to any actions or omissions to act by any party after such
deposit;




          (b) At such time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of paragraph 1(i) hereof, and distributed the Property in accordance
with the provisions of the Termination Letter, this Agreement shall terminate except with respect
to paragraph 2(b); or




          (c) On such date after [                     ___, 2007], when the Trustee deposits the Property with the
United States District Court for the Southern District of New York in the event that, prior to such
date, the Trustee has not received a Termination Letter from the Company pursuant to paragraph
1(i).




     5. Miscellaneous.



          (a) The Company and the Trustee each acknowledge that the Trustee will follow the security
procedures set forth below with respect to funds transferred from the Trust Account. Upon receipt
of written instructions, the Trustee will confirm such instructions with an Authorized Individual
at an Authorized Telephone Number listed on the attached Exhibit C. The Company and the
Trustee will each restrict access to confidential information relating to such security procedures
to authorized persons. Each party must notify the other party immediately if it has reason to
believe unauthorized persons may have obtained access to such information, or of any change in its
authorized personnel. In executing funds transfers, the Trustee will rely
upon account numbers or other identifying numbers of a beneficiary, beneficiary’s bank or
intermediary bank, rather than names. The Trustee shall not be liable for any loss, liability or
expense resulting from any error in an account number or other identifying number, provided it has
accurately transmitted the numbers provided.




          (b) This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of New York, without giving effect to conflict of laws. It may be executed in several
counterparts, each one of which shall constitute an original, and together shall constitute but one
instrument.






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          (c) This Agreement contains the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof. This Agreement or any provision hereof may only be changed,
amended or modified by a writing signed by each of the parties hereto; provided, however, that no
such change, amendment or modification may be made without the prior written consent of Citigroup.
As to any claim, cross-claim or counterclaim in any way relating to this Agreement, each party
waives the right to trial by jury.




          (d) The parties hereto consent to the jurisdiction and venue of any state or federal court
located in the City of New York for purposes of resolving any disputes hereunder.




          (e) Any notice, consent or request to be given in connection with any of the terms or
provisions of this Agreement shall be in writing and shall be sent by express mail or similar
private courier service, by certified mail (return receipt requested), by hand delivery or by
facsimile transmission:




          if to the Trustee, to:



Continental Stock Transfer & Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven Nelson, President

Fax No.: (212) 509-5150




          if to the Company, to:



Freedom Acquisition Holdings, Inc.

1114 Avenue of the Americas, 41st Floor

New York, New York 10036

Attn: Nicolas Berggruen, President

Fax No.: (212) 382-0120




          in either case with a copy to:



Citigroup Global Markets Inc.

388 Greenwich Street

New York, NY 10013

Facsimile: (212) 723-8871

Attn: David Spivak



and



Greenberg Traurig, LLP

MetLife Building

200 Park Avenue

New York, New York 10166

Attn: Alan I. Annex, Esq.

Fax No.: (212) 801-6400







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          (f) This Agreement may not be assigned by the Trustee without the prior written consent of the
Company and Citigroup.




          (g) Each of the Trustee and the Company hereby represents that it has the full right and power
and has been duly authorized to enter into this Agreement and to perform its respective obligations
as contemplated hereunder. The Trustee acknowledges and agrees that it shall not make any claims
or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any
funds in the Trust Account under any circumstance.




[Signatures appear on following page]






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          IN WITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement
as of the date first written above.




	 	 	 	 	 	 	 
	 	 	CONTINENTAL STOCK TRANSFER &

TRUST COMPANY, as Trustee
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	FREEDOM ACQUISITION HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





 









 






EXHIBIT A




[Letterhead of Company]




[Insert date]




Continental Stock Transfer & Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven Nelson, President




          Re:  Trust Account No. [               ] Termination Letter



Gentlemen:




          Pursuant to paragraph 1(i) of the Investment Management Trust Agreement between Freedom
Acquisition Holdings, Inc. (the “Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of                     , 2006 (the “Trust Agreement”), this is to
advise you that the Company has entered into an agreement (the “Business Agreement”) with
                                         (the “Target Business”) to consummate a business combination with Target
Business (“Business Combination”) on or about [INSERT DATE]. The Company shall notify you
at least 48 hours in advance of the actual date of the consummation of the Business Combination
(the “Consummation Date”).




          In accordance with the terms of the Trust Agreement, we hereby authorize you to commence
liquidation of the Trust Account to the effect that, on the Consummation Date, all of funds held in
the Trust Account will be immediately available for transfer to the account or accounts that the
Company shall direct on the Consummation Date.




          On the Consummation Date (i) counsel for the Company shall deliver to you a written
notification that the Business Combination has been consummated (the “Counsel’s Letter”)
and (ii) the Company shall deliver to you written instructions with respect to the transfer of the
funds held in the Trust Account (the “Instruction Letter”). You are hereby directed and
authorized to transfer the funds held in the Trust Account immediately upon your receipt of the
Counsel’s Letter and the Instruction Letter, in accordance with the terms of the Instruction
Letter. In the event that certain deposits held in the Trust Account may not be liquidated by the
Consummation Date without penalty, you shall notify the Company of the same and the Company shall
direct you as to whether such funds should remain in the Trust Account and distributed after the
Consummation Date to the Company. Upon the distribution of all the funds in the Trust Account
pursuant to the terms hereof, the Trust Agreement shall be terminated and the Trust Account closed.




          In the event that the Business Combination is not consummated on the Consummation Date
described in the notice thereof and we have not notified you on or before the original Consummation
Date of a new Consummation Date, then the funds held in the Trust Account shall be reinvested as
provided in the Trust Agreement on the business day immediately following the Consummation Date as
set forth in the notice.




 









 








	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	FREEDOM ACQUISITION HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





 









 






EXHIBIT B




[Letterhead of Company]



[Insert date]




Continental Stock Transfer & Trust Company

17 Battery Place

New York, New York

Attn: Steven Nelson, President




          Re:  Trust Account No. [               ] Termination Letter



Gentlemen:




          Pursuant to paragraph 1(i) of the Investment Management Trust Agreement between Freedom
Acquisition Holdings, Inc. (the “Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of                     , 2006 (the “Trust Agreement”), this is to
advise you that the Board of Directors of the Company has voted to dissolve and liquidate the
Company. Attached hereto is a copy of the minutes of the meeting of the Board of Directors of the
Company relating thereto, certified by the Secretary of the Company as true and correct and in full
force and effect.




          In accordance with the terms of the Trust Agreement, we hereby authorize you to commence
liquidation of the Trust Account. You will notify the Company and [                    ] (the
“Designated Paying Agent”) in writing as to when all of the funds in the Trust Account will
be available for immediate transfer (the “Transfer Date”). The Designated Paying Agent
shall thereafter notify you as to the account or accounts of the Designated Paying Agent that the
funds in the Trust Account should be transferred to on the Transfer Date so that the Designated
Paying Agent may commence distribution of such funds in accordance with the Company’s instructions.
You shall have no obligation to oversee the Designated Paying Agent’s distribution of the funds.
Upon the payment to the Designated Paying Agent of all the funds in the Trust Account, the Trust
Agreement shall be terminated.




	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	FREEDOM ACQUISITION HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





 









 






EXHIBIT C




	 	 	 
	AUTHORIZED INDIVIDUAL(S)	 	AUTHORIZED
	FOR TELEPHONE CALL BACK	 	TELEPHONE NUMBER(S)
	 
	 	 
	Company:
	 	 
	 
	 	 
	Freedom Acquisition Holdings, Inc.
	 	 
	1114 Avenue of the Americas, 41st Floor
	 	 
	New York, New York 10036

	 	(212) 380-2230
	Attn: Nicolas Berggruen, President
	 	 
	 
	 	 
	Trustee:
	 	 
	 
	 	 
	Continental Stock Transfer & Trust Company
	 	 
	17 Battery Place
	 	 
	New York, New York 10004

	 	(212) 509-4000
	Attn: Steven Nelson, President