Exhibit 4.4


 


INVESTMENT MANAGEMENT TRUST AGREEMENT


 


This Agreement is made as of
May   , 2006 by and between HD Partners Acquisition Corporation (the “Company”)
and American Stock Transfer & Trust Company (“Trustee”).


 


WHEREAS, the Company’s
Registration Statement on Form S-1, No. 333- 130531 (“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 (“Effective
Date”); and


 


WHEREAS, Morgan Joseph &
Co. Inc. (“Morgan Joseph”) 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, $139,575,000 of the net proceeds of
the IPO and sale of founding director warrants ($160,500,000 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 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 (“Trust Account”) established by the Trustee at a
branch of JPMorgan Chase NY Bank 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” within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940 with a maturity of 180 days or less, or in money market
funds meeting certain conditions under Rule 2a-7 promulgated under the
Investment Company Act of 1940, as amended;


 


(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 Morgan Joseph 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 Company
and 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 Morgan
Joseph to do so;


 

















 


(h) Render to the
Company and to Morgan Joseph, 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) Upon written
instructions from the Company, deliver to the Company, on a quarterly basis,
from the Property in the Trust Account, an amount equal to the taxes payable by
the Company, if any, relating to interest earned on the Property; and


 


(j) Commence
liquidation of the Trust Account promptly after receipt of and only in
accordance with the terms of a letter (“Termination Letter”), in a form
substantially similar to that attached hereto as either Exhibit A or
Exhibit B (subject in the case of Exhibit B, to the provisions below),
signed on behalf of the Company by its Chief Executive Officer or Chairman of
the Board and Secretary and affirmed by its entire Board of Directors, 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; provided, however, that in the
event that a Termination Letter has not been received by [DATE/18
MONTHS] (or the date that is the six month anniversary of such date,
in the event that a letter of intent, agreement in principle or definitive
agreement has been executed prior to such date in connection with a Business
Combination (as defined in the Termination Letter attached hereto as Exhibit A)
that has not been consummated by [DATE/24 MONTHS]),
the Trust Account shall be liquidated as part of the Company’s plan of
dissolution and distribution approved by the Company’s stockholders in
accordance with the procedures set forth in the Termination Letter attached as
Exhibit B to the stockholders of record on the record date; provided,
further, that the record date shall be within ten (10) days of [DATE/18 MONTHS] (or the date that is the six month
anniversary of such date, in the event that a letter of intent, agreement in
principle or definitive agreement has been executed prior to such date in
connection with a Business Combination that has not been consummated by [DATE/24 MONTHS]), or as soon thereafter as is practicable.


 


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 Chairman of the Board. In addition, except with respect to
its duties under paragraph 1(j) 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 Company shall have the
right to conduct and manage the defense against such Indemnified Claim,
provided, that the Company shall obtain the consent of the Trustee with respect
to the selection of counsel, which consent shall not be unreasonably withheld.
The Company may not agree to settle any Indemnified Claim without the prior
written consent of the Trustee. The Trustee may participate in such action with
its own counsel at its own expense;


 


(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 on the 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);


 


(d) Provide to the
Trustee any letter of intent, agreement in principle or definitive agreement
that is executed prior to [DATE/18 MONTHS] in
connection with a Business Combination; and


 


(e) In connection with
any vote of the Company’s stockholders regarding a Business Combination,
provide to the Trustee an affidavit or certificate of a firm regularly engaged
in the business of soliciting proxies and tabulating stockholder votes (which
firm may be the Trustee) verifying the vote of the Company’s stockholders
regarding such Business Combination.


 


(f) In connection with any
vote of the Company’s stockholders regarding a dissolution and liquidation,
provide to the Trustee an affidavit or certificate of a firm regularly engaged
in the business of tabulating stockholder votes (which firm may be the Trustee)
verifying the vote of the Company’s stockholders regarding such dissolution and
liquidation.


 


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


 


(h) Subject to the
requirements of Section 1(i) of the Trust Agreement, pay any taxes on behalf of
the Trust Account to any governmental entity or taxing authority.


 

















 


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; or


 


(b) At such time that
the Trustee has completed the liquidation of the Trust Account in accordance
with the provisions of paragraph 1(j) and 2(f) 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).


 


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 Delaware, 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 Morgan Joseph. 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:


 


American
Stock Transfer

& Trust Company

59 Maiden Lane


Plaza
Level

New York, New York 10038


 

















 


Attn:
Herb Lemmer, Vice President

Fax No.: (718) 331-1852


 


if
to the Company, to:


 


HD
Partners Acquisition Corporation

2601 Ocean Park Boulevard

Suite 320


Santa
Monica, California 90405

Attn: Bruce Lederman, Executive Vice President and Secretary

Fax No.: (310) 399-7303


 


in
either case with a copy to:


 


Ellenoff
Grossman & Schole LLP


370
Lexington Avenue, 19th Floor


New
York, New York 1017


Attn:
Douglas S. Ellenoff, Esq.


Fax
No.: (212) 370-7889


 


and


 


Morgan
Joseph & Co. Inc.

600 Fifth Avenue, 19th Floor

New York, New York 10020

Attn: Mary Lou Malanoski


Fax
No.: (212) 218-3718


 


and


 


DLA
Piper Rudnick Gray Cary US LLP

1251 Avenue of the Americas


New
York, New York 10020-1104

Attn: Jonathan Klein, Esq.

Fax No.: (212) 835-6001


 


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


 


(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.


 

















 


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


 


 


	
   

  	
  AMERICAN
  STOCK TRANSFER & TRUST

  COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HD
  PARTNERS ACQUISITION 

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


EXHIBIT A


 


[Letterhead of Company]


 


[Insert date]


American
Stock Transfer

  & Trust Company

59 Maiden Lane


Plaza
Level

New York, New York 10038

Attn:                      


 


Re:     Trust Account No.
[                    ]
Termination Letter


 


Gentlemen:


 


Pursuant to paragraph 1(j)
of the Investment Management Trust Agreement between HD Partners Acquisition
Corporation (“Company”) and American Stock Transfer & Trust Company (“Trustee”),
dated as of
                    ,
200   (“Trust Agreement”), this is to advise you that the Company has
entered into an agreement (“Business Agreement”) with                                         
(“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 (“Consummation Date”).


 


In accordance with paragraph
2 of Article 6 of the Amended and Restated Certificate of Incorporation of the
Company, the Business Combination has been approved by the stockholders of the
Company and by the Public Stockholders holding a majority of the IPO Shares,
and Public Stockholders holding less than 20% of the IPO Shares have voted
against the Business Combination and given notice of exercise of their
conversion rights described in paragraph 3 of Article 6 of the Amended and
Restated Certificate of Incorporation of the Company. Pursuant to Section 2(e)
of the Trust Agreement, we are providing you with [an affidavit] [a
certificate] of
                    ,
which verifies the vote of the Company’s stockholders in connection with the
Business Combination. 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 written notification that
the Business Combination has been consummated or will, concurrently with your
transfer of funds to the accounts as directed by the Company, be consummated, and (ii) the Company shall deliver to you written
instructions with respect to the transfer of the funds held in the Trust
Account (“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
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 be distributed after
the Consummation Date to the Company or be distributed immediately and the
penalty incurred. 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,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HD
  PARTNERS ACQUISITION

  CORPORATION

  



 

















 


	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [NAME,
  TITLE]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [NAME,
  TITLE]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  AFFIRMED:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Steven
  J. Cox, Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Eddy
  W. Hartenstein, Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Robert
  L. Meyers, Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Henry
  Goldberg, Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Martin
  E. Gottlieb, Director

  



 

















 


EXHIBIT B


 


[Letterhead of Company]


 


[Insert date]


 


American
Stock Transfer

  & Trust Company

59 Maiden Lane


Plaza
Level

New York, New York 10038

Attn: 


 


Re:      Trust Account No.
[                    ]
Termination Letter


 


Gentlemen:


 


Pursuant to paragraph 1(j)
and 2(f) of the Investment Management Trust Agreement between HD Partners
Acquisition Corporation (“Company”) and American Stock Transfer & Trust
Company dated as of May      , 2006 (“Trust Agreement”),
this is to advise you that the Board of Directors of the Company and the stockholders
of the Company have voted to dissolve and liquidate the Company. Attached
hereto is a copy of the minutes of the meeting of the Board of Directors and
the stockholders 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 as part of the Company’s plan of
dissolution and distribution. In connection with this liquidation, you are
hereby authorized to establish a record date for the purposes of determining
the stockholders of record entitled to receive their per share portion of the
Trust Account. The record date shall be within ten (10) days of the liquidation
date, or as soon thereafter as is practicable. You will notify the Company in
writing as to when all of the funds in the Trust Account will be available for
immediate transfer (“Transfer Date”) in accordance with the terms of the Trust
Agreement and the Amended and Restated Certificate of Incorporation of the
Company. You shall commence distribution of such funds in accordance with the
terms of the Trust Agreement and the Amended and Restated Certificate of
Incorporation of the Company and you shall oversee the distribution of the
funds. Upon the payment of all the funds in the Trust Account, the Trust
Agreement shall be terminated. 


 


	
   

  	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HD
  PARTNERS ACQUISITION

  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [NAME,
  TITLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [NAME,
  TITLE]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  AFFIRMED:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Steven
  J. Cox, Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Eddy
  W. Hartenstein, Director

  	
   

  
									



 

















 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Robert
  L. Meyers, Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Henry
  Goldberg, Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Martin
  E. Gottlieb, Director

  	
   

  



 

















 


EXHIBIT C 


 


	
  AUTHORIZED INDIVIDUAL(S)

  	
   

  	
  AUTHORIZED

  
	
  FOR TELEPHONE CALL BACK

  	
   

  	
  TELEPHONE
  NUMBER(S)

  
	
   

  	
   

  	
   

  
	
  Company:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HD
  Partners Acquisition Corporation

  	
   

  	
   

  
	
  2601
  Ocean Park Boulevard

  Suite 320

  Santa Monica, California 90405

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attn:
  Bruce Lederman, Executive Vice President and Secretary

  	
   

  	
  (310)
  452-8300

  
	
   

  	
   

  	
   

  
	
  Trustee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  American
  Stock Transfer & Trust Company

  	
   

  	
   

  
	
  59
  Maiden Lane

  Plaza Level

  	
   

  	
   

  
	
  New
  York, New York 10004

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attn:
  Herb Lemmer, Vice President

  	
   

  	
  (718)
  921-8209