EX-10.32 Investment Management Trust Agreement



 





Exhibit
10.32




INVESTMENT MANAGEMENT TRUST AGREEMENT




     This Agreement is made as of December 28, 2006 by and between FREEDOM ACQUISITION HOLDINGS,
INC. (the “Company”) and Continental Stock Transfer & Trust Company (the
“Trustee”).



     WHEREAS, the Company’s Registration Statement on Form S-1, as amended, No. 333-136248
(together with any registration statement filed pursuant to Rule 462(b), the “Registration
Statement”), for its initial public offering of securities (the “IPO”) has been
declared effective as of December 21, 2006 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 Registration Statement, $466,320,000 ($535,728,000 if the
underwriters’ over-allotment option is exercised in full) consisting of (i) $461,820,000 of the net
proceeds of the IPO ($531,228,000 if the underwriters’ over-allotment option is exercised in full)
after adjusting for certain offering expenses and (ii) $4,500,000 of the proceeds from the sale of
the Sponsors’ Warrants, 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, a portion of the Property consists of $16,320,000 (or $18,768,000 if the
underwriters’ over-allotment option is exercised in full) attributable to the underwriters’
discount which Citigroup has agreed to deposit in the Trust Account (as defined below); 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 segregated trust accounts (the “Trust Account”) established by the Trustee at
branches of J.P. Morgan Chase N.Y. and Smith Barney, a division of Citigroup Global Markets, each
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 written instruction of the Company, to invest and reinvest
the Property in United States “government securities” and/or in any open ended money market fund(s)
selected by the Company meeting the conditions of Sections (c)(2), (c)(3) and (c)(4) of 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
income, net of taxes, shall become part of the “Property,” as such term is used herein; and the
remaining income arising from the Property, net of taxes, up to $3,900,000 may be released to the
Company periodically to fund its working capital requirements;




          (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 relating to income from the Property
in the Trust Account or otherwise;




          (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 in writing 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;




          (i) If there is any income or other tax obligation relating to the income from the Property in
the Trust Account as determined by the Company, then, from time to time, at the written instruction
of the Company, the Trustee shall promptly, to the extent there is not sufficient cash in the Trust
Account to pay such tax obligation, liquidate such assets held in the Trust Account as shall be
designated by the Company in writing, and disburse to the Company by wire transfer, out of the
Property in the Trust Account, the amount indicated by the Company as owing in respect of such
income tax obligation; and




          (j) Commence liquidation of the Trust Account only upon 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. Limited Distributions of Income From Trust Account.



          (a) If there is any income or other tax obligation relating to the income from the Property in
the Trust Account as determined by the Company, then, at the written instruction of the Company,
the Trustee shall disburse to the Company by wire transfer, out of the Property in the Trust
Account, the amount indicated by the Company as required to pay income taxes; and




          (b) Upon written request from the Company in a form substantially similar to that attached
hereto as Exhibit C, which may be given not more than once in any calendar quarter, the
Trustee shall distribute to the Company by wire transfer an amount equal to the income collected on
the Property through the last day of the calendar quarter immediately

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preceding the date of receipt of the Company’s request; provided, however, that the maximum
amount of distributions, net of taxes, that the Company may request and the Trustee shall
distribute pursuant to this Section 2(b) shall be $3,900,000. The first such distribution shall
include income through the first full calendar quarter following the effective date of the IPO,
with the Company’s request made after such date. It is understood that the Trustee’s only
responsibility under this section is to follow the instruction of the Company; and




          (c) Except as provided in Sections 2(a) and 2(b) above, no other distributions from the Trust
Account shall be permitted except in accordance with Sections 1(i) and 1(j) hereof.




     3. 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 Section 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 Section, 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. The Company may participate in such
action with its own counsel; and




          (c) Pay the Trustee an initial acceptance fee, an annual fee and a transaction processing fee
for each disbursement made pursuant to Sections 2(a) and 2(b) as set forth on Schedule A
hereto, which fees shall be subject to modification by the parties from time to time. It is
expressly understood that the Property shall not be used to pay such fees and further agreed that
said transaction processing fees shall be deducted by the Trustee from the disbursements made to
the Company pursuant to Section 2(b). The Company shall pay the Trustee the initial acceptance fee
and first year’s fee at the consummation of the IPO and thereafter on the anniversary of the
Effective Date. The Trustee shall refund to the Company the annual 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 set forth in this Section 3(c)
and as may be provided in Section 3(b) hereof (it being expressly understood that the Property
shall not be used to make any payments to the Trustee under such Sections).




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



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          (a) Take any action with respect to the Property, other than as directed in Section 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 written 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 Section 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, judgment, instruction, 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;




          (h) As and to the extent requested from time to time by the Company, prepare, execute and file
such tax reports, income or other tax returns and pay any taxes with respect to income and
activities relating to the Trust Account, regardless of whether such tax is payable by the Trust
Account or the Company (including but not limited to income tax obligations), it being expressly
understood that as set forth in Section 1(i), if there is any income or other tax obligation
relating to the Trust Account or the Property in the Trust Account, as determined from time to time
by the Company and regardless of whether such tax is payable by the Company or the Trust, at the
written instruction of the Company, the Trustee shall make funds available in cash from the
Property in the Trust Account an amount specified by the Company as owing to the applicable taxing
authority, which amount shall be paid directly to the Company by
electronic funds transfer, account debit or other method of payment, and the Company shall
forward such payment to the taxing authority; and




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          (i) Verify calculations, qualify or otherwise approve Company requests for distributions
pursuant to Sections 1(i), 2(a) or 2(b) above.




     5. 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; or




          (b) At such time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of Section 1(j) hereof, and distributed the Property in accordance
with the provisions of the Termination Letter, this Agreement shall terminate except with respect
to Section 3(b).




     6. 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. 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.




          (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.
Any other change, waiver, amendment or modification to this Agreement shall be subject to approval
by a majority of the Public Stockholders. As to any
claim, cross-claim or counterclaim in any way relating to this Agreement, each party waives
the right to trial by jury.




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          (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, 8th Floor

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




          (f) This Agreement may not be assigned by the Trustee without the prior written consent of the
Company and Citigroup. This Agreement may be assigned by the Company to a wholly-owned subsidiary
of the Company upon written notice to the Trustee.




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          (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
part of the Property under any circumstance.




          (h) The Trustee hereby consents to the inclusion of Continental Stock Transfer & Trust Company
in the Registration Statement and other materials relating to the IPO.



[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:  	/s/ Frank A. Di Paolo
 	 
	 	 	Name:  	Frank A. Di Paolo 	 
	 	 	Title:  	CFO 	 
	 
	 	FREEDOM ACQUISITION HOLDINGS, INC.

 	 
	 	By:  	/s/ Nicolas Berggruen
 	 
	 	 	Name:  	Nicolas Berggruen 	 
	 	 	Title:  	President 	 
	 



[Signature Page to Investment Management Trust Agreement]




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EXHIBIT A




[Letterhead of Company]




[Insert date]




Continental Stock Transfer & Trust Company

17 Battery Place, 8th Floor

New York, New York 10004

Attn: Steven Nelson, President





     Re:      Trust Account No. [      ] Termination Letter



Gentlemen:




     Pursuant to Section 1(i) of the Investment Management Trust Agreement between Freedom
Acquisition Holdings, Inc. (the “Company”) and Continental Stock Transfer & Trust Company
(the “Trustee”), dated as of December 28, 2006 (the “Trust Agreement”), this is to
advise you that the Company has entered into an agreement (“Business Agreement”) with
_________ (the “Target Business”) to consummate a business combination with Target
Business (a “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 in writing on the Consummation Date.



     On the Consummation Date (i) counsel for the Company shall deliver to you written notification
that the Business Combination has been consummated 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 the event that certain deposits held in the Trust Account may not be liquidated by the
Consummation Date without penalty, you will 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.



     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, 8th Floor

New York, New York

Attn: Steven Nelson, President





     Re:      Trust Account No. [      ] Termination Letter



Gentlemen:




     Pursuant to Section 1(i) of the Investment Management Trust Agreement between Freedom
Acquisition Holdings, Inc. (the “Company”) and Continental Stock Transfer & Trust Company
(the “Trustee”), dated as of December 28, 2006 (the “Trust Agreement”), this is to
advise you that Company has been dissolved due to the Company’s inability to effect a Business
Combination within the time frame specified in the Company’s prospectus relating to its IPO.
Attached hereto is a certified copy of the Certificate of Dissolution as filed with the Delaware
Secretary of State.



     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 terminate in accordance with the terms thereof.



	 	 	 	 	 
	 	Very truly yours,





FREEDOM ACQUISITION HOLDINGS, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT C




[Letterhead of Company]




[Insert date]




Continental Stock Transfer & Trust Company

17 Battery Place, 8th Floor

New York, New York

Attn: Steven Nelson





     Re:      Trust
Account No. [      ] -
Distribution of Income on Property



     Gentlemen:



     Pursuant to Section 2(b) of the Investment Management Trust Agreement between Freedom Acquisition
Holdings, Inc. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”),
dated as of December 28, 2006 (the “Trust Agreement”), we are requesting for our working capital
purposes that you deliver to us $___representing income earned on the Property from
___to ___. In accordance with the terms of the Trust Agreement, you are hereby
directed and authorized to transfer said amount, less any fees due the Trustee pursuant to Section
3(c) of the Trust Agreement, immediately upon your receipt of this letter to the Company’s
operating account at:



	 	 	 
	Bank:

	 	[_________]
	ABA #:

	 	[_________]
	Account Name:

	 	[_________]
	Account Number:

	 	[_________]
	Reference:

	 	Distribution of Income Earned on Trust Property






	 	 	 	 	 
	 	Very truly yours,



FREEDOM ACQUISITION HOLDINGS, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 





	 	 	 	 	 



	 	 	 	 	 
	 	 	AUTHORIZED	 
	AUTHORIZED INDIVIDUAL(S)	 	TELEPHONE	 
	FOR TELEPHONE CALL BACK	 	NUMBER(S)	 
	 
	 	 	 	 
	Company:
	 	 	 	 
	 
	 	 	 	 
	Freedom Acquisition Holdings, Inc.

1114 Avenue of the Americas, 41st Floor

New York, New York 10036

Attn: Nicolas Berggruen, President
	 	 	(212) 380-2230	 
	 
	 	 	 	 
	Trustee:
	 	 	 	 
	 
	 	 	 	 
	Continental Stock Transfer & Trust Company

17 Battery Place, 8th Floor

New York, New York 10004

Attn: Steven Nelson, President
	 	 	(212) 509-5150	 





 









 






SCHEDULE A




Schedule
of fees pursuant to Section 3(c) of Investment Management Trust
Agreement between
Freedom Acquisition Holdings, Inc. and

Continental Stock Transfer & Trust Company




	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Fee Item	 	 	Time and Method of Payment	 	 	Amount	 
	 	Initial acceptance fee

	 	 	Initial closing of IPO by
wire transfer
	 	 	$	1,000	 	 
	 	Annual fee

	 	 	First year, initial closing
of IPO by wire transfer;
thereafter on the anniversary
of the effective date of the
IPO by wire transfer or check
	 	 	$	3,000	 	 
	 	Transaction processing fee for

disbursements to Company under

Sections 2(a) and 2(b)

	 	 	Deduction by Trustee from
disbursement made to Company
under Section 2(b)
	 	 	$	250	 	 
	 





	 	 	 	 	 
	Dated: December 28, 2006 	Agreed:

 	 
	 	
 	 
	 	Authorized Officer 	 
	 	Continental Stock Transfer & Trust Co.