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;
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
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