Attached files
| file | filename |
|---|---|
| 8-K - North Shore Acquisition Corp. | v168020_8k.htm |
PLAN
OF LIQUIDATION
OF
NORTH
SHORE ACQUISITION CORP.
(A
Dissolved Delaware Corporation)
This Plan
of Liquidation (or “Plan”) of North Shore Acquisition Corp. (“North Shore,” “we”
or “us”) is dated this 2nd day of December 2009.
WHEREAS,
Article Sixth of North Shore’s Amended and Restated Certificate of Incorporation
(the “Charter”) provides that North Shore’s corporate existence shall terminate
on November 30, 2009 (the “Termination Date”) unless such provision is amended
in connection with a business combination;
WHEREAS,
North Shore did not consummate a business combination prior to the Termination
Date;
WHEREAS,
North Shore will be dissolving as a result of the terms of its
Charter;
WHEREAS,
North Shore elects to adopt a plan of distribution pursuant to Section 281(b) of
the General Corporation Law of the State of Delaware (the “DGCL”);
WHEREAS,
North Shore has paid or made reasonable provision to pay all claims and
obligations of North Shore known to it, including all contingent, conditional or
unmatured contractual claims, other than the following:
1. The
fees and expenses in connection with legal, accounting and other services
rendered prior to the date hereof, all as shown on North Shore’s unaudited
interim financial statements at and for the period ended September 30, 2009, and
liabilities and obligations incurred or to be incurred after such date to
vendors or other persons for services rendered or goods sold, including fees and
expenses in connection with legal, accounting and other professional services to
be rendered in connection with the dissolution and liquidation of North Shore
and the winding up of its business and affairs (the “Vendor
Obligations”);
2. Liabilities
for taxes (the “Tax Liabilities”); and
3. North
Shore’s obligations to holders (the “Public Stockholders”) of its shares of
common stock, par value $0.0001 per share (the “Common Stock”), issued in its
initial public offering (the “IPO”) to distribute the proceeds of the trust
account (the “Trust Account”) established in connection with the IPO upon the
dissolution and liquidation of North Shore as provided in North Shore’s Charter
and its prospectus for the IPO;
WHEREAS,
to the best of North Shore’s knowledge there are no pending actions, suits or
proceedings to which North Shore is a party;
WHEREAS,
there are no facts known to North Shore indicating that claims that have not
been made known to North Shore or that have not arisen are likely to become
known to North Shore or to arise within ten years after the date of dissolution;
and
WHEREAS,
Sang-Chul Kim has reaffirmed his obligation to indemnify and hold harmless North
Shore against any and all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all legal or other expenses reasonably
incurred in investigating, preparing or defending against any litigation,
whether pending or threatened, or any claim whatsoever) to which North Shore may
become subject as a result of any claim by any vendor or other person who is
owed money by North Shore for services rendered or products sold or contracted
for, or by any target business, but only to the extent necessary to ensure that
such loss, liability, claim, damage or expense does not reduce the amount in the
Trust Account.
NOW
THEREFORE, North Shore adopts the following Plan, which shall constitute a plan
of distribution in accordance with Section 281(b) of the DGCL:
1. PAYMENT
OF LIABILITIES AND OBLIGATIONS. North Shore shall, as soon as practicable
following the adoption of this Plan by the Board of Directors of North Shore
(the “Board”) and North Shore’s dissolution on November 30, 2009, (a) pay or
provide for the payment in full or in such other amount as shall be agreed upon
by North Shore and the relevant creditor of the Vendor Obligations from assets
other than in the Trust Account and (b) pay in full the Tax Liabilities from the
assets in the Trust Account.
2. CONTINGENCY
RESERVE. There being no facts now known to North Shore suggesting that any
unknown claims or obligations of North Shore or claims that have not arisen
against North Shore exist or might arise, North Shore shall retain the
indemnification obligations owed by Sang-Chul Kim to North Shore referred to in
the eighth recital hereof as provision for any and all such claims and
obligations.
3. AUTHORITY
OF OFFICERS AND DIRECTORS. The Board of Directors and the officers of North
Shore shall continue in their positions for the purpose of winding up the
affairs of North Shore as contemplated by the laws of the State of Delaware. The
Board of Directors may appoint officers, hire employees and retain independent
contractors in connection with the winding up process and is authorized to pay
such persons compensation for their services; provided, however, that no current
officer or director of North Shore 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 of Directors shall
constitute full and complete authority, in accordance with and subject to the
terms of the Charter, for the Board of Directors and the officers of North
Shore, 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 of Directors or such officers deems necessary,
appropriate or advisable (i) to dissolve North Shore 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 North Shore; (iii) to satisfy or provide for the
satisfaction of North Shore’s obligations in accordance with Section 281(b) of
the DGCL; and (iv) to distribute all of the remaining funds of North Shore to
the Public Stockholders in complete cancellation or redemption of its
stock.
4. CONVERSION
OF ASSETS INTO CASH OR OTHER DISTRIBUTABLE FORM. Subject to approval by the
Board of Directors, the officers and agents of North Shore shall, as promptly as
feasible, proceed to collect all sums due or owing to North Shore to sell and
convert into cash any and all corporate assets and, out of the assets of North
Shore, attempt to pay, satisfy and discharge or make adequate provision for the
payment, satisfaction and discharge of all debts and liabilities of North Shore
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. RECOVERY
OF ASSETS. In the event that North Shore (or any trustee or receiver for North
Shore appointed pursuant to Section 279 of the DGCL) shall recover any assets or
funds belonging to North Shore, including any tax refunds, such funds shall
first be used to satisfy any claims against or obligations of North Shore, and
to the extent any assets or funds remain thereafter, shall be distributed to the
Public Stockholders in accordance with and subject to the terms of the Charter
and the DGCL and to such terms and conditions as the Board of Directors (or any
trustee or receiver for North Shore) may deem appropriate; provided, however,
that nothing herein shall be deemed to preclude North Shore (or any trustee or
receiver for North Shore) from petitioning any court of competent jurisdiction
for instructions as to the proper distribution and allocation of any such assets
or funds that may be recovered by or on behalf of North Shore.
6. PROFESSIONAL
FEES AND EXPENSES. In connection with and for the purpose of implementing and
assuring completion of this Plan, North Shore may, in the sole and absolute
discretion of the Board of Directors, pay any brokerage, agency and other fees
and expenses of persons rendering services to North Shore in connection with the
collection, sale, exchange or other disposition of North Shore’s property and
assets and the implementation of this Plan.
7. INDEMNIFICATION.
North Shore shall continue to indemnify its officers, directors, employees 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 North Shore. The Board of Directors, in its sole and absolute
discretion, is authorized to obtain and maintain insurance as may be necessary,
appropriate or advisable to cover North Shore’s obligations hereunder,
including, without limitation, directors’ and officers’ liability
coverage.
8. LIQUIDATING
TRUST. The Board of Directors may, but is not required to, establish and
distribute assets of North Shore to a liquidating trust, which may be
established by agreement in form and substance determined by the Board of
Directors with one or more trustees selected by the Board of Directors. In the
alternative, the Board of Directors may petition a court of competent
jurisdiction for the appointment of one or more trustees to conduct the
liquidation of North Shore, subject to the supervision of the Court. Whether
appointed by an agreement or by the court, any trustee or trustees shall in
general be authorized to take charge of North Shore’s property, and to collect
the debts and property due and belonging to North Shore, with power to prosecute
and defend, in the name of North Shore 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 North Shore that may be
necessary, appropriate or advisable for the final settlement of the unfinished
business of North Shore.
9. 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 December 9, 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 of Directors adequate provision has been made
for the payment, satisfaction and discharge of all known, unascertained or
contingent debts, obligations and liabilities of North Shore (including costs
and expenses incurred and anticipated to be incurred in connection with the
complete liquidation of North Shore). 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 of Directors and in accordance with Section
281(b) of the DGCL. As provided in Section 12 below, distributions made pursuant
to this Plan shall be treated as made in complete liquidation of North Shore
within the meaning of the Internal Revenue Code of 1986 (the
“Code”).
10. AMENDMENT
OR MODIFICATION OF PLAN. If for any reason the Board of Directors determines
that such action would be in the best interests of North Shore, 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 North Shore will not amend or modify this Plan under
circumstances that would require additional stockholder approval under the DGCL
and/or the federal securities laws without complying with such
laws.
11. CANCELLATION
OF STOCK AND STOCK CERTIFICATES. Following the dissolution of North Shore, it
shall no longer permit or effect transfers of any of its stock, except by will,
intestate succession or operation of law.
12. LIQUIDATION
UNDER CODE SECTIONS 331 AND 336. It is intended that this Plan shall be a plan
of complete liquidation of North Shore 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 determined to be appropriate by the
appropriate officers of North Shore to conform with the provisions of said
Sections 331 and 336.
13. FILING
OF TAX FORMS. The appropriate officers of North Shore are authorized and
directed to execute and file on a timely basis an Internal Revenue 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.