Exhibit 10.1


 


INVESTMENT
MANAGEMENT TRUST AGREEMENT


 


This Agreement is made as of
                  
    , 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-               
(“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 Certificate of Incorporation,
$54,400,000 of the net proceeds of the IPO ($62,770,000 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 and in the event the
units are registered in Colorado, pursuant to Section 11-51-302(6) of
the Colorado Revised Statutes. 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, including the
terms of Section 11-51-302(6) of the Colorado Statute, 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 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, 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


 





















 


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 Trustee shall have the right to conduct and manage the defense
against such Indemnified Claim, provided, that the Trustee shall obtain the
consent of the Company with respect to the selection of counsel, which consent
shall not be unreasonably withheld. The Company may participate in such action
with its own counsel;


 


(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.


 


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) 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 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 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:

  	
  [NAME]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  [TITLE]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HD PARTNERS ACQUISITION

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [NAME]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  [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 provision A. of Article 6 of
the Certificate of Incorporation of the Company, the Business Combination has
been approved by the stockholders of the Company 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 provision B.
of Article 6 of the 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 (a) the Business
Combination has been consummated and (b) the provisions of Section 11-51-302(6) and
Rule 51-3.4 of the Colorado Statute have been met, 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 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,

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HD PARTNERS ACQUISITION CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [NAME, TITLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [NAME, TITLE]

  	
   

  
						



 





















 


	
   

  	
   

  	
  AFFIRMED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lawrence Chapman, Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Steven J. Cox, Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Eddy W. Hartenstein, Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bruce R. Lederman, Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Robert L. Meyers, 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)
of the Investment Management Trust Agreement between HD Partners Acquisition
Corporation (“Company”) and American Stock Transfer & Trust Company
dated as of
                                        ,
200   (“Trust Agreement”), this is to advise you that the Board of
Directors of the Company has voted to dissolve and liquidate the Company.
Attached hereto is a copy of the minutes of the meeting of the Board of
Directors of the Company relating thereto, certified by the Secretary of the
Company as true and correct and in full force and effect.


 


In accordance with the terms
of the Trust Agreement, we hereby (a) certify to you that the provisions
of Section 11-51-302(6) and Rule 51-3.4 of the Colorado Statute
have been met and (b) authorize you, to commence liquidation of the Trust
Account. 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 Certificate of Incorporation of the Company. You shall commence
distribution of such funds in accordance with the terms of the Trust Agreement
and the 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:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lawrence Chapman, Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Steven J. Cox, Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Eddy W. Hartenstein, Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bruce R. Lederman, Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Robert L. Meyers, 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