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ANNEX A
PLAN OF LIQUIDATION
OF
CHURCHILL VENTURES LTD.
(A Dissolved Delaware Corporation)
This plan of liquidation of Churchill Ventures Ltd. (Churchill Ventures) is dated this [ ] day of [ ], 2008.
WHEREAS, the dissolution of Churchill Ventures was duly authorized by its board of directors (the Board) and stockholders, and Churchill Ventures was dissolved on [ ], 2008 by the filing of a Certificate of Dissolution (the Certificate of Dissolution) with the Office of the Secretary of State of the State of Delaware;
WHEREAS, Churchill Ventures elects to adopt a plan of distribution pursuant to Section 281(b) of the Delaware General Corporation Law (the DGCL);
WHEREAS, Churchill Ventures has paid or otherwise satisfied or made provision for all claims and obligations of creditors known to Churchill Ventures who have not waived their claims against the trust account, including conditional, contingent, or unmatured contractual claims known to Churchill Ventures, other than the following:
1. The unpaid fees and expenses in connection with legal, accounting and other services rendered prior to the date hereof, all as shown on Churchill Ventures unaudited interim financial statements at and for the period ended September 30, 2008, 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 Churchill Ventures and the winding-up of its business and affairs, by creditors who have not waived
their claims against the IPO Trust Account (Vendor Obligations);
2. Liabilities for federal and state income taxes and Delaware franchise taxes (collectively, Tax Liabilities); and
3. Churchill Ventures obligations to holders (Public Stockholders) of its common shares (IPO Shares) issued in Churchill Ventures initial public offering (IPO) to distribute the proceeds of the trust account established in connection with the IPO (the IPO Trust Account) in connection with the dissolution and liquidation of Churchill Ventures as provided in Churchill Ventures certificate of incorporation and its IPO prospectus;
WHEREAS, there are no pending actions, suits, or proceedings to which Churchill Ventures is a party,
WHEREAS, there are no facts known to Churchill Ventures, indicating that claims that have not been made known to Churchill Ventures or that have not arisen are likely to become known to Churchill Ventures or to arise within ten years after the date of dissolution; and
WHEREAS, Itzhak Fisher, Christopher Bogart, Elizabeth OConnell, Nir Tarlovsky and Churchill Capital Partners LLC previously agreed to indemnify Churchill Ventures against claims by creditors to the extent necessary to ensure that such claims do not reduce the amount in the IPO Trust Account;
NOW THEREFORE, Churchill Ventures 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. Churchill Ventures shall, as soon as practicable following the adoption of this Plan by the Board after the filing of a Certificate of Dissolution of Churchill Ventures in accordance with Delaware law, (a) pay or provide for the payment in full or in such other amount as shall be agreed upon by Churchill Ventures and the relevant creditor of the Vendor Obligations from assets other than in the IPO Trust Account and (b) pay in full the Tax Liabilities from the assets in the IPO Trust Account.
2. CONTINGENCY RESERVE; PRO RATA DISTRIBUTION. There being no facts now known to Churchill Ventures suggesting that any unknown claims or obligations of Churchill Ventures or claims that
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have not arisen against Churchill Ventures exist or might arise, Churchill Ventures shall establish the indemnification obligations to Churchill Ventures referred to in the sixth recital hereof as provision for any and all such claims and obligations.
3. AUTHORITY OF OFFICERS AND DIRECTORS. The Board and the officers of Churchill Ventures shall continue in their positions for the purpose of winding up the affairs of Churchill Ventures as contemplated by Delaware law. The Board 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 that no current officer or director of Churchill Ventures shall receive any compensation for his services as aforesaid, and that any such compensation to such other persons shall be fair and reasonable and consistent with
disclosures made to Churchill Ventures stockholders in connection with the adoption of this Plan. Adoption of this Plan by holders of a majority of the voting power represented collectively by the outstanding shares of Churchill Ventures common stock shall constitute the approval of Churchill Ventures stockholders of the Boards authorization of the payment of any such compensation.
The adoption of the Plan by the holders of Churchill Ventures common stock shall constitute full and complete authority for the Board and the officers of Churchill Ventures, 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 deem necessary, appropriate or advisable (i) to dissolve Churchill Ventures 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 Churchill Ventures; (iii) to satisfy or provide for the satisfaction of Churchill Ventures obligations in accordance with Section 281(b) of the DGCL; and (iv) to distribute all of the remaining funds of Churchill Ventures to the holders of Churchill Ventures common stock issued in its IPO in complete cancellation or redemption of its stock.
4. CONVERSION OF ASSETS INTO CASH OR OTHER DISTRIBUTABLE FORM. Subject to approval by the Board, the officers, employees and agents of Churchill Ventures shall, as promptly as feasible, proceed to collect all sums due or owing to Churchill Ventures, to sell and convert into cash any and all corporate assets and, out of the assets of Churchill Ventures, to pay, satisfy and discharge or make adequate provision for the payment, satisfaction and discharge of all debts and liabilities of Churchill Ventures 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 Churchill Ventures (or any trustee or receiver for Churchill Ventures appointed pursuant to Section 279 of the DGCL) shall recover any assets or funds belonging to Churchill Ventures, such funds shall first be used to satisfy any claims against or obligations of Churchill Ventures, and to the extent any assets or funds remain thereafter, shall be distributed to the stockholders of Churchill Ventures in accordance with and subject to the terms of Churchill Ventures certificate of incorporation and the DGCL, and further subject to such terms and conditions as the board of directors of Churchill
Ventures (or any trustee or receiver for Churchill Ventures) may deem appropriate; provided, however, that nothing herein shall be deemed to preclude Churchill Ventures (or any trustee or receiver for Churchill Ventures) 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 Churchill Ventures.
6. PROFESSIONAL FEES AND EXPENSES. It is specifically contemplated that the Board may authorize the payment of a retainer fee to a law firm or law firms selected by the Board for legal fees and expenses of Churchill Ventures, and may authorize the payment of fees to an accounting firm or firms selected by the Board for services rendered to Churchill Ventures.
In addition, in connection with and for the purpose of implementing and assuring completion of this Plan, Churchill Ventures may, in the sole and absolute discretion of the Board, pay any brokerage, agency and other fees and expenses of persons rendering services to Churchill Ventures in connection with the collection, sale, exchange or other disposition of Churchill Ventures property and assets and the implementation of this Plan.
7. INDEMNIFICATION. Churchill Ventures shall continue to indemnify its officers, directors, employees and agents in accordance with its certificate of incorporation and bylaws and any contractual
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arrangements, for actions taken in connection with this Plan and the winding up of the affairs of Churchill Ventures. The Board, in its sole and absolute discretion, is authorized to obtain and maintain insurance as may be necessary, appropriate or advisable to cover Churchill Ventures obligations hereunder, including, without limitation, directors and officers liability coverage, provided that any related costs shall be paid from funds outside of the IPO Trust Account.
8. LIQUIDATING TRUST. The Board may, but is not required to, establish and distribute assets of Churchill Ventures to a liquidating trust, which may be established by agreement in form and substance determined by the Board with one or more trustees selected by the Board. In the alternative, the Board may petition a court of competent jurisdiction for the appointment of one more trustees to conduct the liquidation of Churchill Ventures, 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 Churchill Ventures property, and to collect the
debts and property due and belonging to Churchill Ventures, with power to prosecute and defend, in the name of Churchill Ventures 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 Churchill Ventures that may be necessary, appropriate or advisable for the final settlement of the unfinished business of Churchill Ventures.
9. LIQUIDATING DISTRIBUTIONS. Liquidating distributions shall be made from time to time after the adoption of this Plan to the holders of record, at the close of business on the date of the filing of the Certificate of Dissolution of Churchill Ventures, of outstanding shares of common stock of Churchill Ventures. All distributions made from assets in the IPO Trust shall be made exclusively to the Public Stockholders pro rata in accordance with the respective number of IPO Shares then held of record by the Public Stockholders, and any other distributions (if any) shall be made pro rata in accordance with the respective number of shares then
held of record by all of Churchill Ventures stockholders; provided that, in the case of all distributions of assets held in the IPO Trust or otherwise, 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 Churchill Ventures (including costs and expenses incurred and anticipated to be incurred in connection with the complete liquidation of Churchill Ventures). 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 12 below, distributions made pursuant to this Plan shall be treated as made in complete liquidation of Churchill Ventures within the meaning of the Code and the regulations promulgated thereunder.
10. AMENDMENT OR MODIFICATION OF PLAN. If for any reason the Board determines that such action would be in the best interests of Churchill Ventures, it may amend or modify this Plan and all action contemplated thereunder, notwithstanding stockholder approval of this Plan, to the extent permitted by the DGCL; provided, however, that Churchill Ventures 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 Churchill Ventures, Churchill Ventures 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 Churchill Ventures in accordance with the terms of Sections 331 and 336 of the Internal Revenue Code of 1986, as amended (the Code). This Plan shall be deemed to authorize the taking of such action as, in the opinion of counsel for Churchill Ventures, may be necessary to conform with the provisions of said Sections 331 and 336 and the regulations promulgated thereunder, including, without limitation, the making of an election under Code Section 336(e), if applicable.
13. FILING OF TAX FORMS. The appropriate officers of Churchill Ventures are authorized and directed, within 30 days after the effective date of this Plan, to execute and file a United States 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.