AGREEMENT
Exhibit
10.1
AGREEMENT,
dated as of November 9, 2007, by and between HD Partners Acquisition
Corporation., a Delaware corporation with its address at 0000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 (the “Company”), and Xxxxxx
Xxxxxx & Co. Inc., a Delaware corporation (“MJ”).
RECITALS:
WHEREAS,
the Company is a special purpose acquisition company whose units (the “Units”),
each unit comprised of one share of Common Stock par value $0.0001 per share
(“Common Stock”) and one warrant to purchase one share of Common Stock, shares
of Common Stock and warrants to purchase Common Stock (the “Warrants”) (the
Company’s shares of Common Stock, Warrants, and the Units are herein referred to
as the “Securities”) are traded on the American Stock Exchange;
WHEREAS,
the Company has entered into Asset Purchase Agreement and Key Definitions
Agreement, each dated as of May 30, 2007, with the National Hot Rod Association
(the “Association”) , whereby the Company proposes to acquire substantially all
the professional drag racing assets of the Association, including but not
limited to, the NHRA POWERade Drag Racing Series, four (4) NHRA-owned
racetracks, a long term lease, including leasehold improvements, to a fifth
racetrack, the Association’s headquarters building, the Association’s video and
photo archives, and a broad set of commercialization rights related to the
NHRA
brand and NHRA media assets, and assume certain liabilities related to such
professional drag racing assets; the (“Acquisition”);
WHEREAS,
in connection with the Acquisition, the Company has filed a proxy statement
on
schedule 14A (the “Proxy Statement”) with the Securities and Exchange Commission
(the “SEC”);
WHEREAS,
MJ serves as the Company’s financial advisor with respect to the Acquisition;
WHEREAS,
the Company and MJ believe that (i) there are certain holders of the Common
Stock (“Potential Sellers”) of the Company who may not be interested in
remaining shareholders of the Company following the Acquisition and (ii) there
are certain investors (“Potential Buyers”) who may be interested in acquiring
shares of Common Stock prior to the consummation of the
Acquisition;
WHEREAS,
the Company desires MJ to assist in (i) identifying Potential Buyers and
Potential Sellers and (ii) facilitating the sale of the Company’s Securities by
Potential Sellers and the purchase of the shares of Company Securities by
Potential Buyers; and
WHEREAS,
as a condition to MJ providing such assistance (for which MJ may receive
customary brokerage commissions from buyers or sellers involved), the Company
has agreed to enter into this agreement.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein, and for
good and valuable consideration among and between them, the parties agree as
follows:
1. On
the
date hereof, the Company will file with the SEC a Current Report on Form 8-K
in
which it discloses the following information:
HD
Partners Acquisition Corporation. (the “Company”) previously entered into
an Asset Purchase Agreement and Key Definitions Agreement, each dated as of
May
30, 2007, with the National Hot Rod Association (the “Association”), whereby the
Company proposes to acquire (the “Acquisition”) substantially all the
professional drag racing assets of the Association, including but not limited
to, the NHRA POWERade Drag Racing Series, four (4) NHRA-owned racetracks, a
long
term lease, including leasehold improvements, to a fifth racetrack, the
Association’s headquarters building, the Association’s video and photo archives,
and a broad set of commercialization rights related to the NHRA brand and NHRA
media assets, and assume certain liabilities related to such professional drag
racing assets.
The
Company has filed its Proxy Statement with the SEC describing the terms of
the
Acquisition.
At
any
time prior to the consummation of the Acquisition, the Company, with the
assistance of its financial advisor, Xxxxxx Xxxxxx & Co. Inc. (“Xxxxxx
Xxxxxx”), may, from time to time, assist or seek to facilitate the sale of
shares of the Company’s common stock (the “Common Stock”) by current holders of
the Common Stock to third party purchasers. In connection with such transactions
the Company and Xxxxxx Xxxxxx may seek to identify current holders wishing
to
sell Common Stock and potential third party purchasers. Further, in connection
with such sales, Xxxxxx Xxxxxx may receive customary brokerage commissions
from
the parties to any such sale, but shall not receive any consideration in respect
thereof from the Company. In so assisting or seeking to facilitate the sale
or
purchase of shares of the Company’s Common Stock, potential third party
purchasers or potential sellers may also buy or sell Units or Warrants to
purchase Common Stock. In addition, Xxxxxx Xxxxxx has advised the Company that,
from time to time and subject to applicable regulations, it may purchase Common
Stock for its own account in the open market.
2. The
Company acknowledges that, from time to time, MJ may seek to (i) identify
Potential Sellers and Potential Buyers and (ii) facilitate the sale of
Securities from Potential Sellers to Potential Buyers, for which MJ may receive
customary commissions from the participants in the transaction, but agrees
that
it shall not receive any consideration in respect thereof from the
Company.
3. The
Company represents and warrants to MJ that, to the Company’s knowledge, the
Proxy Statement (as amended to date) does not contain an untrue statement of
a
material fact or omit to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they
were
made, not misleading. Further, the Company represents and warrants that the
NHRA
has approved the terms of the Acquisition, that the NHRA is the sole recipient
of the shares to be issued in connection with the Acquisition and to the
Company’s knowledge, there is no “distribution” or “restricted period” within
the meaning of Regulation M in connection with the Acquisition.
4. Until
the
HD Partners Acquisition Corporation’s stockholders meeting at which the vote is
taken on the Acquisition, the Company agrees that, at such time as it becomes
aware of any material information regarding the Company, NHRA, or any matters
relating thereto which has not been publicly disclosed by the Company in an
amendment to the Proxy Statement, on a Form 8-K or in another appropriate filing
with the SEC and which must be disclosed in order for previously disclosed
information not to be false or misleading, the Company shall (i) immediately
advise MJ and the Compliance Department of MJ of the existence of such material
non-public information, (ii) as promptly as reasonably practicable disclose
such
material non-public information in an amendment to the Proxy Statement on a
Form
8-K or in another appropriate report with the SEC and (iii) postpone any
scheduled meetings with Potential Seller or Potential Buyers arranged with
or
through MJ until the disclosure described in clause (ii) above is
made.
5. This
agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof. Nothing contained in this agreement shall be deemed
to amend or modify the engagement letter between the MJ and the Company dated
March 6, 2007, 2007, including, but not limited to, the indemnification
provisions thereof and the waiver of any claims against the Company’s trust fund
as described in such agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
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HD
PARTNERS ACQUISITION CORPORATION
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By:
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/s/
Xxxxx Xxxxxxxx
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Executive Vice President
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XXXXXX
XXXXXX & CO. INC.
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By:
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/s/
Xxxx Xxx Xxxxxxxxx
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Xxxx Xxx Xxxxxxxxx
Managing Director
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