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
