Exhibit 4.5


 


WARRANT AGREEMENT


 


Agreement made as of                           ,
200   between HD Partners Acquisition Corporation, a Delaware
corporation, with offices at 2601 Ocean Park Boulevard, Suite 320, Santa
Monica, California 90405 (“Company”), and American Stock Transfer &
Trust Company, a New York corporation, with offices at 59 Maiden Lane, Plaza
Level, New York, New York 10038 (“Warrant Agent”).


 


WHEREAS, the Company is engaged in a public offering (“Public Offering”)
of Units (“Units”)  and, in connection
therewith, has determined to issue and deliver up to (i) 23,000,000
Warrants (“Public Warrants”) to the public investors, and (ii) 2,000,000
Warrants to Morgan Joseph & Co. Inc. (“the “Representative”) or its
designees (“Representative’s Warrants” and, together with the Public Warrants,
the “Warrants”), each of such Warrants evidencing the right of the holder
thereof to purchase one share of the Company’s common stock, par value $.001
per share (“Common Stock”).


 


WHEREAS, the Company has filed with the Securities and Exchange
Commission a Registration Statement on Form S-1, No. 333-                    
(“Registration Statement”), for the registration, under the Securities Act of
1933, as amended (“Act”), of, among other securities, the Warrants and the
Common Stock issuable upon exercise of the Warrants; and


 


WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants; and


 


WHEREAS, the Company desires to provide for the form and provisions of
the Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and


 


WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.


 


NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:


 


1.                                       Appointment
of Warrant Agent.  The Company hereby
appoints the Warrant Agent to act as agent


 





















 


for the Company for the Warrants, and the Warrant Agent hereby accepts
such appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.


 


2.                                       Warrants.


 


2.1.                              Form of
Warrant.  Each Warrant shall be
issued in registered form only, shall be in substantially the form of Exhibit A
hereto, the provisions of which are incorporated herein and shall be signed by,
or bear the facsimile signature of, the Chairman of the Board or President and
Treasurer, Secretary or Assistant Secretary of the Company and shall bear a
facsimile of the Company’s seal. In the event the person whose facsimile
signature has been placed upon any Warrant shall have ceased to serve in the
capacity in which such person signed the Warrant before such Warrant is issued,
it may be issued with the same effect as if he or she had not ceased to be such
at the date of issuance.


 


2.2.                              Effect
of Countersignature.  Unless and
until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant
shall be invalid and of no effect and may not be exercised by the holder
thereof.


 


2.3.                              Registration.


 


2.3.1.                     Warrant Register.  The Warrant Agent shall maintain books (“Warrant
Register”) for the registration of original issuance and the registration of
transfer of the Warrants.  Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register
the Warrants in the names of the respective holders thereof in such
denominations and otherwise in accordance with instructions delivered to the
Warrant Agent by the Company.


 


2.3.2.                     Registered Holder.  Prior to due presentment for registration of
transfer of any Warrant, the Company and the Warrant Agent may deem and treat
the person in whose name such Warrant shall be registered upon the Warrant
Register (“registered holder”), as the absolute owner of such Warrant and of
each Warrant represented thereby (notwithstanding any notation of ownership or
other writing on the Warrant Certificate made by anyone other than the Company
or the Warrant Agent), for the purpose of any exercise thereof, and for all
other purposes, and neither the Company nor the Warrant Agent shall be affected
by any notice to the contrary.


 


2.4.                              Detachability
of Warrants.  The securities
comprising the Units will not be separately transferable until 90 days after
the date hereof unless the Representative informs the Company of its decision
to allow earlier separate trading, but in no event will the Representative
allow separate trading of


 


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the securities comprising the Units until the Company files a Current
Report on Form 8-K which includes an audited balance sheet reflecting the
receipt by the Company of the gross proceeds of the Public Offering including
the proceeds received by the Company from the exercise of the Underwriter’s
over-allotment option, if the over-allotment option is exercised prior to the
filing of the Form 8-K, and the Underwriter’s over-allotment option has
either expired or been exercised in full. 
The Company shall file a separate Current Report on Form 8-K if the
over-allotment option is exercised in whole or in part after the consummation
of the offering and shall include in this Form 8-K, or amendment thereto,
or in a subsequent Form 8-K, information indicating if the representative
has allowed separate trading of common stock and warrants prior to the 90th
day after the date of this prospectus.


 


2.5                                 Warrants
and Representative’s Warrants.  The
Representative’s Warrants shall have the same terms and be in the same form as
the Public Warrants except with respect to the Warrant Price as set forth below
in Section 3.1.


 


3.                                       Terms and
Exercise of Warrants


 


3.1.                              Warrant
Price.  Each Warrant shall, when
countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Public Warrant and of this Warrant Agreement,
to purchase from the Company the number of shares of Common Stock stated
therein, at the price of $5.00 per whole share, subject to the adjustments
provided in Section 4 hereof and in the last sentence of this Section 3.1.  Each of the Representative’s Warrants shall,
when countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Representative’s Warrants and of this Warrant
Agreement, to purchase from the Company the number of shares of Common Stock
stated therein, at the price of $6.25 per whole share, subject to the
adjustments provided in Section 4 hereof.  The term “Warrant Price” as used
in this Warrant Agreement refers to the price per share at which Common Stock
may be purchased at the time a Warrant is exercised; provided that any such
reduction shall be identical in percentage terms among all of the Warrants,
except that any amendment to the terms of the Representative’s Warrants shall
be subject to any limitations and conditions that may be imposed by NASD
Corporate Financing Rule 2710.


 


3.2.                              Duration
of Warrants.  A Warrant may be
exercised only during the period (“Exercise Period”) commencing on the later of
(i) the consummation by the Company of a merger, capital stock exchange,
asset acquisition or other similar business combination (“Business Combination”)
(as described more fully in the Company’s Registration Statement) and (ii)                     ,
2007, and terminating at 5:00 p.m., New York City time on the earlier to
occur of (i)                       ,
2010 or (ii) the date fixed for redemption of the Warrants as provided in Section 6
of this Agreement (“Expiration Date”). 
Except with


 


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respect to the right to receive the Redemption Price (as set forth in Section 6
hereunder), each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect thereof under
this Agreement shall cease at the close of business on the Expiration Date;
provided that any such extension shall be identical in duration among all of
the Warrants, except that any amendment to the terms of the Representative’s
Warrants shall be subject to any limitations and conditions that may be imposed
by NASD Corporate Financing Rule 2710.


 


3.3.                              Exercise
of Warrants.


 


3.3.1.                     Payment.  Subject to the provisions of the Warrant and
this Warrant Agreement, a Warrant, when countersigned by the Warrant Agent, may
be exercised by the registered holder thereof by surrendering it, at the office
of the Warrant Agent, or at the office of its successor as Warrant Agent, in
the Borough of Manhattan, City and State of New York, with the subscription
form, as set forth in the Warrant, duly executed, and by paying in full, in
lawful money of the United States, in cash, good certified check or good bank
draft payable to the order of the Company (or as otherwise agreed to by the
Company), the Warrant Price for each full share of Common Stock as to which the
Warrant is exercised and any and all applicable taxes due in connection with the
exercise of the Warrant, the exchange of the Warrant for the Common Stock, and
the issuance of the Common Stock.


 


3.3.2.                     Issuance of Certificates.  As soon as practicable after the exercise of
any Warrant and the clearance of the funds in payment of the Warrant Price, the
Company shall issue to the registered holder of such Warrant a certificate or
certificates for the number of full shares of Common Stock to which he is
entitled, registered in such name or names as may be directed by him, her or
it, and if such Warrant shall not have been exercised in full, a new
countersigned Warrant for the number of shares as to which such Warrant shall
not have been exercised.  Notwithstanding
the foregoing, the Company shall not be obligated to deliver any securities pursuant
to the exercise of a Warrant unless a registration statement under the Act with
respect to the Common Stock is effective. 
Warrants may not be exercised by, or securities issued to, any
registered holder in any state in which such exercise would be unlawful.


 


3.3.3.                     Valid Issuance.  All shares of Common Stock issued upon the
proper exercise of a Warrant in conformity with this Agreement shall be validly
issued, fully paid and nonassessable.


 


3.3.4.                     Date of Issuance.  Each person in whose name any such
certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date on which
the Warrant was surrendered and payment of the Warrant Price was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment


 


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is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer books are
open.


 


3.3.5                        Intentionally
Omitted.


 


4.                                       Adjustments.


 


4.1.                              Stock
Dividends - Split-Ups.  If after the
date hereof, and subject to the provisions of Section 4.6 below, the
number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock, or by a split-up of shares of Common Stock,
or other similar event, then, on the effective date of such stock dividend, split-up
or similar event, the number of shares of Common Stock issuable on exercise of
each Warrant shall be increased in proportion to such increase in outstanding
shares of Common Stock.


 


4.2.                              Aggregation
of Shares.  If after the date hereof,
and subject to the provisions of Section 4.6, the number of outstanding
shares of Common Stock is decreased by a consolidation, combination, reverse
stock split or reclassification of shares of Common Stock or other similar
event, then, on the effective date of such consolidation, combination, reverse
stock split, reclassification or similar event, the number of shares of Common
Stock issuable on exercise of each Warrant shall be decreased in proportion to
such decrease in outstanding shares of Common Stock.


 


4.3                                 Adjustments
in Exercise Price.  Whenever the
number of shares of Common Stock purchasable upon the exercise of the Warrants
is adjusted, as provided in Section 4.1 and 4.2 above, the Warrant Price
shall be adjusted (to the nearest cent) by multiplying such Warrant Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Common Stock purchasable upon the exercise of
the Warrants immediately prior to such adjustment, and (y) the denominator of
which shall be the number of shares of Common Stock so purchasable immediately
thereafter.


 


4.4.                              Replacement of
Securities upon Reorganization, etc. 
In case of any reclassification or reorganization of the outstanding
shares of Common Stock (other than a change covered by Section 4.1 or 4.2
hereof or that solely affects the par value of such shares of Common Stock), or
in the case of any merger or consolidation of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification or
reorganization of the outstanding shares of Common Stock), or in the case of
any sale or conveyance to another corporation or entity of the assets or other
property of the Company as an


 


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entirety or substantially as an entirety in connection with which the
Company is dissolved, the Warrant holders shall thereafter have the right to
purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in shares of
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be
made pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4.  The provisions of this Section 4.4 shall
similarly apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.


 


4.5.                              Notices of Changes in
Warrant.  Upon every adjustment of
the Warrant Price or the number of shares issuable upon exercise of a Warrant,
the Company shall give written notice thereof to the Warrant Agent, which
notice shall state the Warrant Price resulting from such adjustment and the
increase or decrease, if any, in the number of shares purchasable at such price
upon the exercise of a Warrant, setting forth in reasonable detail the method
of calculation and the facts upon which such calculation is based.  Upon the occurrence of any event specified in
Sections 4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give
written notice to each Warrant holder, at the last address set forth for such
holder in the warrant register, of the record date or the effective date of the
event.  Failure to give such notice, or
any defect therein, shall not affect the legality or validity of such event.


 


4.6.                              No Fractional Shares.  Notwithstanding any provision contained in
this Warrant Agreement to the contrary, the Company shall not issue fractional
shares upon exercise of Warrants.  If, by
reason of any adjustment made pursuant to this Section 4, the holder of
any Warrant would be entitled, upon the exercise of such Warrant, to receive a
fractional interest in a share, the Company shall, upon such exercise, round up
to the nearest whole number the number of the shares of Common Stock to be
issued to the Warrant holder.


 


4.7.                              Form of Warrant.  The form of Warrant need not be changed
because of any adjustment pursuant to this Section 4, and Warrants issued
after such adjustment may state the same Warrant Price and the same number of
shares as is stated in the Warrants initially issued pursuant to this
Agreement.  However, the Company may at
any time in its sole discretion make any change in the form of Warrant that the
Company may deem appropriate and that does not affect the substance thereof,
and any Warrant thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant or otherwise, may be in the form as so
changed.


 


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5.                                       Transfer and
Exchange of Warrants.


 


5.1.                              Registration
of Transfer.  The Warrant Agent shall
register the transfer, from time to time, of any outstanding Warrant upon the
Warrant Register, upon surrender of such Warrant for transfer, properly
endorsed with signatures properly guaranteed and accompanied by appropriate
instructions for transfer.  Upon any such
transfer, a new Warrant representing an equal aggregate number of Warrants
shall be issued and the old Warrant shall be cancelled by the Warrant
Agent.  The Warrants so cancelled shall
be delivered by the Warrant Agent to the Company from time to time upon
request.


 


5.2.                              Procedure
for Surrender of Warrants.  Warrants
may be surrendered to the Warrant Agent, together with a written request for
exchange or transfer, and thereupon the Warrant Agent shall issue in exchange
therefor one or more new Warrants as requested by the registered holder of the
Warrants so surrendered, representing an equal aggregate number of Warrants;
provided, however, that in the event that a Warrant surrendered for transfer
bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and
issue new Warrants in exchange therefor until the Warrant Agent has received an
opinion of counsel for the Company stating that such transfer may be made and
indicating whether the new Warrants must also bear a restrictive legend.


 


5.3.                              Fractional
Warrants.  The Warrant Agent shall
not be required to effect any registration of transfer or exchange which will
result in the issuance of a warrant certificate for a fraction of a warrant.


 


5.4.                              Service
Charges.  No service charge shall be
made for any exchange or registration of transfer of Warrants.


 


5.5.                              Warrant
Execution and Countersignature.  The
Warrant Agent is hereby authorized to countersign and to deliver, in accordance
with the terms of this Agreement, the Warrants required to be issued pursuant
to the provisions of this Section 5, and the Company, whenever required by
the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.


 


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6.                                       Redemption.


 


6.1.                              Redemption.  Subject to Section 6.4 hereof, not less
than all of the outstanding Warrants may be redeemed, at the option of the
Company, at any time after they become exercisable and prior to their
expiration, at the office of the Warrant Agent, upon the notice referred to in Section 6.2,
at the price of $.01 per Warrant (“Redemption Price”), provided that the last
sales price of the Common Stock has been at least $8.50 per share, on each of
twenty (20) trading days within any thirty (30) trading day period ending on
the third business day prior to the date on which notice of redemption is
given.  The provisions of this Section 6.1
may not be modified, amended or deleted without the prior written consent of
the Representative.


 


6.2.                              Date
Fixed for, and Notice of, Redemption. 
In the event the Company shall elect to redeem all of the Warrants, the
Company shall fix a date for the redemption. 
Notice of redemption shall be mailed by first class mail, postage
prepaid, by the Company not less than 30 days prior to the date fixed for
redemption to the registered holders of the Warrants to be redeemed at their
last addresses as they shall appear on the registration books.  Any notice mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the registered holder received such notice.


 


6.3.                              Exercise
After Notice of Redemption.  The
Warrants may be exercised, for cash at any time after notice of redemption
shall have been given by the Company pursuant to Section 6.2 hereof and
prior to the time and date fixed for redemption.  On and after the redemption date, the record
holder of the Warrants shall have no further rights except to receive, upon
surrender of the Warrants, the Redemption Price.


 


6.4                                 Outstanding
Warrants Only. The Company understands that the redemption rights provided
for by this Section 6 apply only to outstanding Warrants. To the extent a
person holds rights to purchase Warrants, such purchase rights shall not be
extinguished by redemption. However, once such purchase rights are exercised,
the Company may redeem the Warrants issued upon such exercise provided that the
criteria for redemption is met. The provisions of this Section 6.4 may not
be modified, amended or deleted without the prior written consent of the
Representative.


 


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7.                                       Other
Provisions Relating to Rights of Holders of Warrants.


 


7.1.                              No
Rights as Stockholder.  A Warrant
does not entitle the registered holder thereof to any of the rights of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other matter.


 


7.2.                              Lost,
Stolen, Mutilated, or Destroyed Warrants. 
If any Warrant is lost, stolen, mutilated, or destroyed, the Company and
the Warrant Agent may on such terms as to indemnity or otherwise as they may in
their discretion impose (which shall, in the case of a mutilated Warrant,
include the surrender thereof), issue a new Warrant of like denomination,
tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed.  Any such new Warrant shall constitute a
substitute contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable
by anyone.


 


7.3.                              Reservation
of Common Stock.  The Company shall
at all times reserve and keep available a number of its authorized but unissued
shares of Common Stock that will be sufficient to permit the exercise in full
of all outstanding Warrants issued pursuant to this Agreement.


 


7.4.                              Registration
of Common Stock.  The Company agrees
that prior to the commencement of the Exercise Period, it shall file with the
Securities and Exchange Commission a post-effective amendment to the
Registration Statement, or a new registration statement, for the registration,
under the Act, of, and it shall take such action as is necessary to qualify for
sale, in those states in which the Warrants were initially offered by the
Company, the Common Stock issuable upon exercise of the Warrants.  In either case, the Company will use its best
efforts to cause the same to become effective and to maintain the effectiveness
of such registration statement until the expiration of the Warrants in
accordance with the provisions of this Agreement.  The provisions of this Section 7.4 may
not be modified, amended or deleted without the prior written consent of the
Representative.


 


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8.                                       Concerning
the Warrant Agent and Other Matters.


 


8.1.                              Payment
of Taxes.  The Company will from time
to time promptly pay all taxes and charges that may be imposed upon the Company
or the Warrant Agent in respect of the issuance or delivery of shares of Common
Stock upon the exercise of Warrants, but the Company shall not be obligated to
pay any transfer taxes in respect of the Warrants or such shares.


 


8.2.                              Resignation,
Consolidation, or Merger of Warrant Agent.


 


8.2.1.                     Appointment of Successor Warrant
Agent.  The Warrant Agent, or any
successor to it hereafter appointed, may resign its duties and be discharged
from all further duties and liabilities hereunder after giving sixty (60) days’
notice in writing to the Company.  If the
office of the Warrant Agent becomes vacant by resignation or incapacity to act
or otherwise, the Company shall appoint in writing a successor Warrant Agent in
place of the Warrant Agent.  If the
Company shall fail to make such appointment within a period of 30 days after it
has been notified in writing of such resignation or incapacity by the Warrant
Agent or by the holder of the Warrant (who shall, with such notice, submit his
Warrant for inspection by the Company), then the holder of any Warrant may
apply to the Supreme Court of the State of New York for the County of New York
for the appointment of a successor Warrant Agent at the Company’s cost.  Any successor Warrant Agent, whether
appointed by the Company or by such court, shall be a corporation organized and
existing under the laws of the State of New York, in good standing and having
its principal office in the Borough of Manhattan, City and State of New York,
and authorized under such laws to exercise corporate trust powers and subject
to supervision or examination by federal or state authority.  After appointment, any successor Warrant
Agent shall be vested with all the authority, powers, rights, immunities,
duties, and obligations of its predecessor Warrant Agent with like effect as if
originally named as Warrant Agent hereunder, without any further act or deed;
but if for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the expense of the Company, an
instrument transferring to such successor Warrant Agent all the authority,
powers, and rights of such predecessor Warrant Agent hereunder; and upon
request of any successor Warrant Agent the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties, and obligations.


 


8.2.2.                     Notice of Successor Warrant
Agent.  In the event a successor
Warrant Agent shall be appointed, the Company shall give notice thereof to the
predecessor Warrant Agent and the transfer agent for the Common Stock not later
than the effective date of any such appointment.


 


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8.2.3.                     Merger or Consolidation of
Warrant Agent.  Any corporation into
which the Warrant Agent may be merged or with which it may be consolidated or
any corporation resulting from any merger or consolidation to which the Warrant
Agent shall be a party shall be the successor Warrant Agent under this
Agreement without any further act.


 


8.3.                              Fees
and Expenses of Warrant Agent.


 


8.3.1.                     Remuneration.  The Company agrees to pay the Warrant Agent
reasonable remuneration for its services as such Warrant Agent hereunder and
will reimburse the Warrant Agent upon demand for all expenditures that the
Warrant Agent may reasonably incur in the execution of its duties hereunder.


 


8.3.2.                     Further Assurances.  The Company agrees to perform, execute,
acknowledge, and deliver or cause to be performed, executed, acknowledged, and
delivered all such further and other acts, instruments, and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
of the provisions of this Agreement.


 


8.4.                              Liability
of Warrant Agent.


 


8.4.1.                     Reliance on Company Statement.  Whenever in the performance of its duties
under this Warrant Agreement, the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed to
be conclusively proved and established by a statement signed by the President
or Chairman of the Board of the Company and delivered to the Warrant
Agent.  The Warrant Agent may rely upon
such statement for any action taken or suffered in good faith by it pursuant to
the provisions of this Agreement.


 


8.4.2.                     Indemnity.  The Warrant Agent shall be liable hereunder
only for its own negligence, willful misconduct or bad faith.  The Company agrees to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including
judgments, costs and reasonable counsel fees, for anything done or omitted by
the Warrant Agent in the execution of this Agreement except as a result of the
Warrant Agent’s negligence, willful misconduct, or bad faith.


 


8.4.3.                     Exclusions.  The Warrant Agent shall have no
responsibility with respect to the validity of this Agreement or with respect
to the validity or execution of any Warrant (except its


 


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countersignature thereof); nor shall it be responsible for any breach
by the Company of any covenant or condition contained in this Agreement or in
any Warrant; nor shall it be responsible to make any adjustments required under
the provisions of Section 4 hereof or responsible for the manner, method,
or amount of any such adjustment or the ascertaining of the existence of facts
that would require any such adjustment; nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of Common Stock to be issued pursuant to this
Agreement or any Warrant or as to whether any shares of Common Stock will when
issued be valid and fully paid and nonassessable.


 


8.5.                              Acceptance
of Agency.  The Warrant Agent hereby
accepts the agency established by this Agreement and agrees to perform the same
upon the terms and conditions herein set forth and among other things, shall
account promptly to the Company with respect to Warrants exercised and
concurrently account for, and pay to the Company, all moneys received by the
Warrant Agent for the purchase of shares of Common Stock through the exercise
of Warrants.


 


9.                                       Miscellaneous
Provisions.


 


9.1.                              Successors.  All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns.


 


9.2.                              Notices.  Any notice, statement or demand authorized by
this Warrant Agreement to be given or made by the Warrant Agent or by the
holder of any Warrant to or on the Company shall be sufficiently given when so
delivered if by hand or overnight delivery or if sent by certified mail or
private courier service within five days after deposit of such notice, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Warrant Agent), as follows:


 


HD Partners
Acquisition Corporation


2601 Ocean Park Boulevard, Suite 320


Santa Monica, California 90405


Attn:                    Bruce
Lederman, Executive Vice President and Secretary


 


Any notice,
statement or demand authorized by this Agreement to be given or made by the
holder of any Warrant or by the Company to or on the Warrant Agent shall be
sufficiently given when so delivered if by hand or overnight delivery or if
sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Warrant Agent with the Company), as follows:


 


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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


 


with a copy in each case to:


 


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


 


and


 


Ellenoff Grossman & Schole LLP


370 Lexington Avenue


New York, New York 10017


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


 


9.3.                              Applicable
law.  The validity, interpretation,
and performance of this Agreement and of the Warrants shall be governed in all
respects by the laws of the State of New York, without giving effect to
conflicts of law principles that would result in the application of the
substantive laws of another jurisdiction. 
The Company hereby agrees that any action, proceeding or claim against
it 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 Company hereby waives any objection to
such exclusive jurisdiction and that such courts represent an inconvenience
forum.  Any such process or summons to be
served upon the Company may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 9.2 hereof.  Such mailing shall be deemed personal service
and shall be legal and binding upon the Company in any action, proceeding or
claim.


 


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9.4.                              Persons
Having Rights under this Agreement. 
Nothing in this Agreement expressed and nothing that may be implied from
any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the parties hereto and
the registered holders of the Warrants and, for the purposes of
Sections 6.1, 6.4, 7.4 and 9.2 hereof, the Representative, any right,
remedy, or claim under or by reason of this Warrant Agreement or of any
covenant, condition, stipulation, promise, or agreement hereof.  The Representative shall be deemed to be a
third-party beneficiary of this Agreement with respect to Sections 6.1, 6.4,
7.4 and 9.2 hereof.  All covenants,
conditions, stipulations, promises, and agreements contained in this Warrant
Agreement shall be for the sole and exclusive benefit of the parties hereto
(and the Representative with respect to the Sections 6.1, 6.4, 7.4 and 9.2
hereof) and their successors and assigns and of the registered holders of the
Warrants.


 


9.5.                              Examination
of the Warrant Agreement.  A copy of
this Agreement shall be available at all reasonable times at the office of the
Warrant Agent in the Borough of Manhattan, City and State of New York, for
inspection by the registered holder of any Warrant.  The Warrant Agent may require any such holder
to submit his Warrant for inspection by it.


 


9.6.                              Counterparts.  This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.


 


9.7.                              Effect
of Headings.  The Section headings
herein are for convenience only and are not part of this Warrant Agreement and
shall not affect the interpretation thereof.


 


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blank]


 


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IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by
the parties hereto as of the day and year first above written.


 


	
  Attest:

  	
  HD PARTNERS ACQUISITION CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


 


	
  Attest:

  	
  AMERICAN STOCK TRANSFER 

    & TRUST COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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