Attached files
| file | filename |
|---|---|
| 8-K - SP Acquisition Holdings, Inc. | form8k06856_10132009.htm |
| EX-99.1 - SP Acquisition Holdings, Inc. | ex991to8k06856_10132009.htm |
Exhibit
2.1
PLAN
OF LIQUIDATION
OF
SP
ACQUISITION HOLDINGS, INC.
(A Dissolved Delaware
Corporation)
This
Plan of Liquidation (or “Plan”) of SP Acquisition Holdings, Inc., a Delaware
corporation (“SP Acquisition”), is dated this 13th day of October,
2009.
WHEREAS,
Article Fourth of SP Acquisition’s Amended and Restated Certificate of
Incorporation (the “Charter”) provides that SP Acquisition’s corporate existence
shall terminate on October 10, 2009 (the “Termination Date”) unless such
provision is amended in connection with a business combination and such
amendment is approved by its stockholders;
WHEREAS,
SP Acquisition did not consummate a business combination prior to the
Termination Date and its corporate existence therefore will terminate effective
upon the filing of a Certificate of Dissolution with the Secretary of State of
the State of Delaware;
WHEREAS,
SP Acquisition elects to adopt a plan of distribution pursuant to Section 281(b)
of the Delaware General Corporation Law (the “DGCL”);
WHEREAS,
SP Acquisition has paid or otherwise satisfied or made provision for all claims
and obligations of SP Acquisition known to it, including conditional, contingent
or unmatured contractual claims, other than the following:
1.
Any unknown liabilities or outstanding obligations prior to the date hereof and
liabilities and obligations incurred or to be incurred after such date,
including fees and expenses in connection with legal, accounting and other
professional services to be rendered in connection with the dissolution and
liquidation of SP Acquisition and the winding up of its business and affairs
(the “Vendor Obligations”);
2.
Liabilities for federal, state and Delaware franchise taxes (collectively, “Tax
Liabilities”); and
3.
SP Acquisition’s obligations to holders (the “Public Stockholders”) of its
shares of common stock, par value $0.001 (the “Common Stock”), issued in its
initial public offering (the “IPO”) to distribute the proceeds of the trust
account established in connection with the IPO (the “Trust Account”) in
connection with the dissolution and liquidation of SP Acquisition as provided in
the Charter and its IPO prospectus;
WHEREAS,
there are no pending actions, suits or proceedings to which SP Acquisition is a
party;
WHEREAS,
there are no facts known to SP Acquisition indicating that claims that have not
been made known to SP Acquisition or that have not arisen but that, based on
facts known to SP Acquisition, are likely to arise or become known to SP
Acquisition, within ten years after the date of dissolution;
WHEREAS,
on September 30, 2009, based on communications with federal regulatory agencies,
it was evident to SP Acquisition that as of September 30, 2009, that regulatory
approval of the terms of the proposed merger set forth in the merger agreement
between SP Acquisition and Frontier Financial Corporation (“Frontier”) would not
be obtained as of the Termination Date, and therefore SP Acquisition would be
unable to consummate a business combination prior to the Termination Date and SP
Acquisition would need to negotiate and enter into a termination letter with
Frontier; and
WHEREAS,
SP Acq LLC, a Delaware limited liability company (“SP Acq”), has agreed it will
be liable to SP Acquisition if and to the extent claims by a third party for
services rendered or products sold, or by a prospective business target, reduce
the amounts in the Trust Account available for distribution to SP Acquisition
stockholders, except (1) as to any claimed amounts owed to a third party who
executed a legally enforceable waiver, or (2) as to any claims under SP
Acquisition’s indemnity of the underwriters of the IPO against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended.
NOW
THEREFORE, SP Acquisition adopts the following Plan of Liquidation, which shall
constitute a plan of distribution in accordance with Section 281(b) of the
DGCL:
1.
PAYMENT OF LIABILITIES AND OBLIGATIONS. SP Acquisition shall, as soon as
practicable following the adoption of this Plan by the Board (a) pay or provide
for the payment in full, or in such other amount as shall be agreed upon by SP
Acquisition and the relevant creditor, the Vendor Obligations and (b) pay in
full the Tax Liabilities.
2.
CONTINGENCY RESERVE. If and to the extent required or permitted, SP Acquisition
shall obtain payments from SP Acq pursuant to its indemnification obligations
provided to SP Acquisition at the time of the IPO for the satisfaction of any
outstanding or unknown liabilities.
3.
AUTHORITY OF OFFICERS AND DIRECTORS. The Board, the officers and any authorized
persons, who shall include Warren G. Lichtenstein, Jack L. Howard and Sanford
Antignas (together, or individually, the “Authorized Persons”), of SP
Acquisition, shall continue in their positions for the purpose of winding up the
affairs of SP Acquisition as contemplated by Delaware law. The Board and any
Authorized Persons may appoint officers, hire employees and retain independent
contractors in connection with the winding up process and are authorized to pay
such persons compensation for their services; provided, however, that no current
officer or director of SP Acquisition shall receive any compensation for his or
her services as aforesaid and that any such compensation to such other persons
shall be fair and reasonable. The adoption of the Plan by the Board shall
constitute full and complete authority, in accordance with and subject to the
terms of the Charter, for the Board, the officers and any Authorized Persons of
SP Acquisition, without further stockholder action, to do and perform any and
all acts and to make, execute and deliver any and all agreements, conveyances,
assignments, transfers, certificates and other documents of any kind and
character that the Board or such officers or Authorized Persons deem necessary,
appropriate or advisable (i) to dissolve SP Acquisition in accordance with the
laws of the State of Delaware and cause its withdrawal from all jurisdictions in
which it is authorized to do business; (ii) to sell, dispose, convey, transfer
and deliver the assets of SP Acquisition; (iii) to satisfy or provide for the
satisfaction of SP Acquisition’s obligations in accordance with Section 281(b)
of the DGCL; and (iv) to distribute all of the remaining funds of SP Acquisition
to the holders of the Common Stock in complete cancellation or redemption of its
stock.
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4.
CONVERSION OF ASSETS INTO CASH OR OTHER DISTRIBUTABLE FORM. Subject to approval
by the Board, the officers, Authorized Persons and agents of SP Acquisition
shall, as promptly as feasible, proceed to collect all sums due or owing to SP
Acquisition, including recovery of any tax refunds owing to SP Acquisition, to
sell and convert into cash any and all corporate assets and, out of the assets
of SP Acquisition, attempt to pay, satisfy and discharge or make adequate
provision for the payment, satisfaction and discharge of all debts and
liabilities of SP Acquisition pursuant to Sections 1 and 2 above, including all
expenses of the sale of assets and of the dissolution and liquidation provided
for by this Plan.
5.
PROFESSIONAL FEES AND EXPENSES. It is specifically contemplated that the Board
or any Authorized Person may authorize the payment of a retainer fee to a law
firm or law firms selected by the Board or any Authorized Person for legal fees
and expenses of SP Acquisition, including, among other things, to cover any
costs related to any indemnification of SP Acquisition’s officers, directors or
Authorized Persons provided by SP Acquisition pursuant to the Charter, its
bylaws, the DGCL or otherwise, and may authorize the payment of fees to an
accounting firm or firms selected by the Board for services rendered to SP
Acquisition. In addition, in connection with and for the purpose of implementing
and assuring completion of this Plan, SP Acquisition may, in the sole and
absolute discretion of the Board or any Authorized Person, pay any brokerage,
agency and other fees and expenses of persons rendering services to SP
Acquisition in connection with the collection, sale, exchange or other
disposition of SP Acquisition’s property and assets and the implementation of
this Plan.
6.
INDEMNIFICATION. SP Acquisition can elect to continue to indemnify its officers,
directors, employees, Authorized Persons and agents in accordance with the
Charter, its bylaws and any contractual arrangements, for actions taken in
connection with this Plan and the winding up of the affairs of SP Acquisition.
The Board, in its sole and absolute discretion, is authorized to obtain and
maintain insurance as may be necessary, appropriate or advisable to cover SP
Acquisition’s obligations hereunder, including, without limitation, directors’
and officers’ liability coverage.
7.
LIQUIDATING TRUST. The Board and any Authorized Persons may, but are not
required to, establish and distribute assets of SP Acquisition to a liquidating
trust, which may be established by agreement in form and substance determined by
the Board or such Authorized Persons with one or more trustees selected by the
Board or such Authorized Persons. In the alternative, the Board or any
Authorized Persons may petition a Court of competent jurisdiction for the
appointment of one more trustees to conduct the liquidation of SP Acquisition,
subject to the supervision of the Court. Whether appointed by an agreement or by
the Court, the trustees shall in general be authorized to take charge of SP
Acquisition’s property, and to collect the debts and property due and belonging
to SP Acquisition, with power to prosecute and defend, in the name of SP
Acquisition or otherwise, all such suits as may be necessary or proper for the
foregoing purposes, and to appoint agents under them and to do all other acts
which might be done by SP Acquisition that may be necessary, appropriate or
advisable for the final settlement of the unfinished business of SP
Acquisition.
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8.
LIQUIDATING DISTRIBUTIONS. Liquidating distributions, in accordance with and
subject to the terms of the Charter, shall be made from time to time after the
adoption of this Plan to the holders of record, at the close of business on
October 14, 2009, of outstanding shares of Common Stock sold pursuant to the
IPO, pro rata in accordance with the respective number of shares then held of
record; provided that in the opinion of the Board adequate provision has been
made for the payment, satisfaction and discharge of all known, unascertained or
contingent debts, obligations and liabilities of SP Acquisition (including costs
and expenses incurred and anticipated to be incurred in connection with the
complete liquidation of SP Acquisition). All determinations as to the time for
and the amount of liquidating distributions shall be made in the exercise of the
absolute discretion of the Board and in accordance with Section 281 of the DGCL.
As provided in Section 11 below, distributions made pursuant to this Plan shall
be treated as made in complete liquidation of SP Acquisition within the meaning
of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and the
regulations promulgated thereunder.
9.
AMENDMENT OR MODIFICATION OF PLAN. If for any reason the Board determines that
such action would be in the best interests of SP Acquisition, it may amend or
modify this Plan and all actions contemplated hereunder, to the extent permitted
by the DGCL and in accordance with and subject to the terms of the Charter;
provided, however, that SP Acquisition will not amend or modify this Plan under
circumstances that would require stockholder approval under the DGCL and/or the
federal securities laws without complying with such laws.
10.
CANCELLATION OF STOCK AND STOCK CERTIFICATES. Following the dissolution of SP
Acquisition, it shall no longer permit or effect transfers of any of its stock,
except by will, intestate succession or operation of law.
11.
LIQUIDATION UNDER CODE SECTIONS 331 AND 336. It is intended that this Plan shall
be a plan of complete liquidation of SP Acquisition in accordance with the terms
of Sections 331 and 336 of the Code. This Plan shall be deemed to authorize the
taking of such action as may be necessary or appropriate by the officers or
Authorized Persons of SP Acquisition to conform with the provisions of said
Sections 331 and 336 of the Code and the regulations promulgated thereunder,
including, without limitation, the making of an election under Section 336(e) of
the Code, if applicable.
12.
FILING OF TAX FORMS. The officers and Authorized Persons of SP Acquisition are
authorized and directed, within 30 days after the effective date of this Plan,
to execute and file a U.S. Treasury Form 966 pursuant to Section 6043 of the
Code and such additional forms and reports with the Internal Revenue Service as
may be necessary or appropriate in connection with this Plan and the carrying
out thereof.
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