Exhibit 10.4
SP ACQUISITION HOLDINGS, INC.
FOUNDER'S UNITS
PURCHASE AGREEMENT
THIS FOUNDER'S UNITS PURCHASE AGREEMENT (this "Agreement"), dated as
of March 30, 2007, is entered into by and among SP Acquisition Holdings, Inc, a
Delaware corporation (the "Company"), SP Acq LLC, a Delaware limited liability
company (the "Seller") and Steel Partners II, L.P., a Delaware limited
partnership ("Purchaser").
WHEREAS, the Company intends to file a registration statement (the
"Registration Statement") for the initial public offering of units (the "Initial
Public Offering"), each unit consisting of one share of the Company's common
stock, par value $0.001 per share (a "Share"), and one warrant to purchase one
Share at an exercise price of $7.50 per Share.
WHEREAS, pursuant to the Founder's Securities Purchase Agreement,
dated as of March 22, 2007, by and between the Company and Seller (the
"Securities Purchase Agreement"), Seller purchased for an aggregate purchase
price of $25,000, 7,500,000 units (the "Founder's Units"), each consisting of
one share of the Company's common stock, par value $0.001 per share and one
warrant to purchase one Share at an exercise price of $7.50 per share.
WHEREAS, the Purchaser desires to purchase and the Seller desires to
sell as of the date of this Agreement, upon the terms and conditions set forth
in this Agreement, that certain number of Founder's Units to be determined in
accordance with Section 1(C)(vi)(a) based on the number of units to be sold at
the Initial Public Offering (the "Steel Founder's Units") at a price per Unit
equal to $.0033 (the "Steel Founder's Units Purchase Price"), each consisting of
one share of the Company's common stock, par value $0.001 per share (the "Steel
Founder's Shares") and one warrant to purchase one Share at an exercise price of
$7.50 per share (the "Steel Initial Founder's Warrants').
NOW THEREFORE, in consideration of the mutual promises contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
Section 1. AUTHORIZATION, PURCHASE AND SALE; TERMS OF THE STEEL FOUNDER'S UNITS.
A. Authority to Sell. The Seller represents that it is authorized to sell
the Steel Founder's Units to the Purchaser in accordance with the terms hereof.
B. Closing. On the closing date, which shall occur promptly after the
later of the consummation of the Initial Public Offering, or the exercise in
full or expiration of the underwriters over-allotment option in the Initial
Public Offering, the Seller shall transfer to the Purchaser the Steel Founder's
Units and the Purchaser shall remit to the Seller the Steel Founder's Units
Purchase Price. The Seller shall cause the Company to deliver certificates
evidencing the Steel Founder's Units, Steel Founder's Shares and Steel Initial
Founder's Warrants, to be purchased by Purchaser hereunder, registered in the
Purchaser's name, upon the payment by the Purchaser of the Steel Founder's Units
Purchase Price by check or wire transfer of immediately available funds to Steel
Partners, Ltd. for the benefit of Seller.
C. Terms of the Steel Founder's Units, Steel Founder's Shares and Steel
Initial Founder's Warrants.
(i) Steel Founder's Units: Each Unit of the Steel Founder's Units
shall consist of one Steel Founder's Share and one Steel Initial Founder's
Warrant and shall have the terms set forth in the Unit Certificate attached as
EXHIBIT A hereto.
(ii) Steel Founder's Shares: The Steel Founder's Shares shall have
the terms set forth in the Certificate of Incorporation of the Company and the
Founder's Share Certificate attached as EXHIBIT B hereto. Without limiting the
foregoing, Purchaser hereby expressly agrees that if the Company consummates the
Initial Public Offering, then (i) in connection with the stockholder vote
required to approve a merger, capital stock exchange, asset acquisition or other
similar business combination with one or more businesses or assets (a "Business
Combination"), Purchaser agrees to vote the Steel Founder's Shares in accordance
with a majority of the shares of common stock voted by holders of shares of
common stock issued in the Initial Public Offering and (ii) Purchaser agrees to
waive any right to participate in any liquidation distribution to the extent set
forth in Section 2.D of this Agreement.
(iii) Steel Initial Founder's Warrants: The Steel Initial Founder's
Warrants shall have the terms set forth in the Warrant Agreement set forth as
EXHIBIT C hereto.
(iv) Transfer Restrictions: In addition to the restrictions on
transfer set forth in Section 5 hereof, the Purchaser shall not sell or transfer
the Steel Founder's Units, Steel Founder's Shares, Steel Initial Founder's
Warrants and the Shares underlying the Steel Initial Founder's Warrants
(collectively, the "Securities") for a period of one year from the date the
Company completes its initial business combination except to a Permitted
Transferee (as defined in the Warrant Agreement) who agrees in writing with the
Company to be subject to such transfer restrictions; vote the Steel Founder's
Shares as provided in (ii) above; waive any right to participate in any
liquidation distribution as provided in (ii) above and agrees to the forfeiture
of the Steel Founder's Units, Steel Founder's Shares and Steel Initial Founder's
Warrants as provided in (vii) below. During this period, Purchaser and its
Permitted Transferees shall retain all other rights of holders of Shares,
including, without limitation, the right to vote their Shares (except as
described above with respect to a Business Combination) and the right to receive
cash dividends, if declared. If dividends are declared and payable in Shares,
such dividends will also be subject to the restrictions contained in this
Section 1.C.(iv).
(v) Registration Rights: In connection with the closing of the
Initial Public Offering, the Company and the Purchaser shall enter into an
agreement (the "Registration Rights Agreement") granting the Purchaser
registration rights with respect to the Securities.
(vi) Number of Steel Founder's Units to be sold and Alternate
Purchaser for Steel Founder's Units.
(a) Number of Steel Founder's Units to be Sold. The final number of
Steel Founder's Units that Purchaser is receiving pursuant to this Agreement
shall be determined if and when the over-allotment option has been exercised or
has expired and any adjustments to be received by the Company's directors has
been made using the following formula:
S
U = -------------- x (Y - F)
T + S
U = The number of Steel Founder's Units that Purchaser shall purchase
T = Total Proceeds of the Initial Public Offering (Including the
Over-Allotment, If Exercised)
Y = The number of Founder's Units issued to the Seller by the Company
(taking into account any adjustments made as a result of the
exercise of the over-allotment option)
F = Number of Founder's Units Issued to the Company's Directors
S = Total Amount of the Co-Investment
(b) Alternate Purchaser of Steel Founder's Units. In the event that
Purchaser is unable to make the Co-Investment (as defined herein), the Seller
shall return the Steel Founder's Units purchased under this Agreement to the
Seller for the Steel Founders Units Purchase Price.
(vii) Forfeiture of Steel Founder's Units, Steel Founder's Shares
and Steel Initial Founder's Warrants: In the event that the Purchaser or the
Seller fails to purchase an aggregate of 3,000,000 Units at a price of $10.00
per Unit ($30.0 million in the aggregate) in a private placement that will occur
immediately prior to the consummation of a Business Combination (the
"Co-Investment") by the Company pursuant to the terms of a Co-Investment
Agreement to be entered into among the Company and Steel Partners II, L.P.,
Purchaser agrees to surrender and forfeit all of its Steel Founders' Units,
Steel Founder's Shares and Steel Initial Founder's Warrants to the Company.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
As a material inducement to the Company and the Seller to enter into this
Agreement and for the Seller to sell the Steel Founder's Units, Purchaser hereby
represents and warrants to the Seller and the Company that:
A. Capacity and State Law Compliance. Such Purchaser has engaged in the
transactions contemplated by this Agreement within a state in which the offer
and sale of the Steel Founder's Units is permitted under applicable securities
laws.
B. Authorization. This Agreement constitutes a valid and binding
obligation of such Purchaser, enforceable in accordance with its terms.
C. Investment Representations.
(i) Such Purchaser is acquiring the Securities for its own account,
for investment only and not with a view towards, or for resale in connection
with, any public sale or distribution thereof.
(ii) Such Purchaser is an "accredited investor" as such term is
defined in Rule 501(a)(3) of Regulation D.
(iii) Such Purchaser understands that the Securities are being
offered and will be sold to it in reliance on specific exemptions from the
registration requirements of the United States federal and state securities laws
and that the Seller and the Company are relying upon the truth and accuracy of,
and such Purchaser's compliance with, the representations and warranties of such
Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of such Purchaser to acquire such Securities.
(iv) Such Purchaser did not decide to enter into this Agreement as a
result of any general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act of 1933, as amended (the "Securities Act").
(v) Such Purchaser has been furnished with all materials relating to
the business, finances and operations of the Company and materials relating to
the offer and sale of the Securities which have been requested by such
Purchaser. Such Purchaser has been afforded the opportunity to ask questions of
the executive officers and directors of the Company. Such Purchaser understands
that its investment in the Securities involves a high degree of risk. Such
Purchaser has sought such accounting, legal and tax advice as such Purchaser has
considered necessary to make an informed investment decision with respect to
such Purchaser's acquisition of the Securities.
(vi) Such Purchaser understands that no United States federal or
state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Securities or the fairness or
suitability of the investment in the Securities by such Purchaser nor have such
authorities passed upon or endorsed the merits of the offering of the
Securities.
(vii) Such Purchaser understands that: (a) the Securities have not
been and are not being registered under the Securities Act or any state
securities laws, and may not be offered for sale, sold, assigned or transferred
unless (A) subsequently registered thereunder or (B) sold in reliance on an
exemption therefrom; and (b) except as specifically set forth in the
Registration Rights Agreement, neither the Company nor any other person is under
any obligation to register the Securities under the Securities Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder. In this regard, such Purchaser understands that the Securities and
Exchange Commission has taken the position that promoters or affiliates of a
blank check company and their transferees, both before and after a Business
Combination, are deemed to be "underwriters" under the Securities Act when
reselling the securities of a blank check company. Based on that position, Rule
144 adopted pursuant to the Securities Act would not be available for resale
transactions of the Securities despite technical compliance with the
requirements of such Rule, and the Securities can be resold only through a
registered offering or in reliance upon another exemption from the registration
requirements of the Securities Act. Such Purchaser is able to bear the economic
risk of its investment in the Securities for an indefinite period of time.
(viii) Such Purchaser has such knowledge and expertise in financial
and business matters, knows of the high degree of risk associated with
investments generally and particularly investments in the securities of
companies in the development stage such as the Company, is capable of evaluating
the merits and risks of an investment in the Securities and is able to bear the
economic risk of an investment in the Securities in the amount contemplated
hereunder. Such Purchaser has adequate means of providing for its current
financial needs and contingencies and will have no current or anticipated future
needs for liquidity which would be jeopardized by the investment in the
Securities. Such Purchaser can afford a complete loss of its investment in the
Securities.
D. Waiver of Right to Amounts in the Trust Account and Indemnification.
(i) Such Purchaser hereby waives any and all right, title, interest
or claim of any kind in or to any distribution of the trust account established
by the Company for the deposit of proceeds from the Initial Public Offering and
the sale of the Additional Founder's Warrants (as defined in the Securities
Purchase Agreement), as a result of any liquidation of the trust account, with
respect to the Steel Founder's Shares ("Claim") and hereby waives any Claim it
may have in the future as a result of, or arising out of, any contracts or
agreements with the Company and will not seek recourse against the trust account
for any reason whatsoever except for any amounts to which it may be entitled
upon liquidation of the Company in respect of such Purchaser's ownership of
Shares other than the Steel Founder's Shares.
(ii) Such Purchaser acknowledges and agrees that the stockholders of
the Company, including those who purchase the units in the Initial Public
Offering, are and shall be third-party beneficiaries of the foregoing provisions
of Section 2.D. of this Agreement.
(iii) Such Purchaser agrees that to the extent any waiver of rights
under this Section 2.D. is ineffective as a matter of law, such Purchaser has
offered such waiver for the benefit of the Seller and the Company as an
equitable right that shall survive any statutory disqualification or bar that
applies to a legal right. Such Purchaser acknowledges the receipt and
sufficiency of consideration received from the Seller and the Company hereunder
in this regard.
Section 3. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All of the representations and warranties contained herein shall survive
the purchase of the Securities hereunder.
Section 4. DEFINITIONS.
Terms used but not otherwise defined in this Agreement shall have the
meaning assigned such terms in the Registration Statement.
Section 5. MISCELLANEOUS.
A. Legends.
(i) The certificates evidencing the Steel Founder's Units and the
Steel Founder's Shares will include the legend set forth on EXHIBITS A AND B
hereto, respectively, which Purchaser has read and understands. The Steel
Initial Founder's Warrants and Shares issued upon exercise of the Steel Initial
Founder's Warrants (as defined in the Warrant Agreement) will include the legend
set forth in EXHIBIT B to the Warrant Agreement in the case of the Warrants and
in the Warrant Agreement in the case of the Shares, which Purchaser has read and
understands.
(ii) By accepting the Securities, Purchaser agrees, prior to any
transfer of the Securities, to give written notice to the Company expressing its
desire to effect such transfer and describing briefly the proposed transfer.
Upon receiving such notice, the Company shall present copies thereof to its
counsel and Purchaser agrees not to make any disposition of all or any portion
of the Securities unless and until:
(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement, in which case the legends set
forth above with respect to the Securities sold pursuant to such registration
statement shall be removed; or
(b) if reasonably requested by the Company, (A) Purchaser shall have
furnished the Company with an opinion of counsel, reasonably satisfactory to the
Company, that such disposition will not require registration of such Securities
under the Securities Act, (B) the Company shall have received customary
representations and warranties regarding the transferee that are reasonably
satisfactory to the Company signed by the proposed transferee and (C) the
Company shall have received an agreement by such transferee to the restrictions
contained in the legends referred to in (i) hereof.
Notwithstanding the foregoing, Purchaser also understands and acknowledges
that the transfer of the Steel Founder's Units, Steel Founder's Shares and the
Steel Initial Founder's Warrants and exercise of the Steel Initial Founder's
Warrants are subject to the specific conditions to such transfer or exercise as
outlined herein and the Warrant Agreement as to which Purchaser specifically
assents by its execution hereof.
(iii) The Company may, from time to time, make stop transfer
notations in its records and deliver stop transfer instructions to its transfer
agent to the extent its counsel considers it necessary to ensure compliance with
federal and state securities laws and the transfer restrictions contained
elsewhere in this Agreement and the Warrant Agreement.
B. Successors and Assigns. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto shall bind and inure to the benefit of the respective
successors of the parties hereto whether so expressed or not. Notwithstanding
the foregoing or anything to the contrary herein, the parties may not assign
this Agreement.
C. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
D. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, none of which need contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same agreement.
E. Descriptive Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. The use of the word "including" in this Agreement shall
be by way of example rather than by limitation.
F. Governing Law. This Agreement shall be deemed to be a contract made
under the laws of the State of New York and for all purposes shall be construed
in accordance with the internal laws of said State. The parties agree that, all
actions and proceedings arising out of this Agreement or any of the transactions
contemplated hereby, shall be brought in the United States District Court for
the Southern District of New York or in a New York State Court in the County of
New York and that, in connection with any such action or proceeding, submit to
the jurisdiction of, and venue in, such court. Each of the parties hereto also
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of this Agreement or the transactions contemplated
hereby.
G. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent:
If to the Company: SP Acquisition Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Seller: SP Acq LLC
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: Steel Partners II, L.P.
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
H. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement on the date first written above.
SP ACQUISITION HOLDINGS, INC.
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Chairman of the Board of
Directors, President and Chief Executive Officer
SP ACQ LLC
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Managing Member
STEEL PARTNERS II, L.P.
By: Steel Partners L.L.C.
Its General Partner
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Managing Member
SPECIMEN OF UNIT CERTIFICATE
SP ACQUISITION HOLDINGS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
No.__________ _______ UNIT(S)
UNIT(S) EACH CONSISTING OF ONE SHARE OF COMMON STOCK AND ONE WARRANT TO
PURCHASE ONE SHARE OF COMMON STOCK
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT ____________________________________________IS THE OWNER
OF____________________________________________________________________________
UNIT(S). EACH UNIT ("UNIT") CONSISTS OF ONE (1) SHARE OF COMMON STOCK, PAR VALUE
$0.001 PER SHARE ("COMMON STOCK"), OF SP ACQUISITION HOLDINGS, INC., A DELAWARE
CORPORATION (THE "CORPORATION"), AND ONE WARRANT (EACH, A "WARRANT"). EACH
WARRANT ENTITLES THE HOLDER TO PURCHASE ONE (1) SHARE OF COMMON STOCK FOR $7.50
PER SHARE (SUBJECT TO ADJUSTMENT). THE COMMON STOCK AND WARRANT COMPRISING EACH
UNIT REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE SEPARATELY PRIOR TO
FIVE BUSINESS DAYS FOLLOWING THE EARLIER TO OCCUR OF THE EXPIRATION OF THE
OVER-ALLOTMENT OPTION OF THE UNDERWRITERS OF THE CORPORATION'S INITIAL PUBLIC
OFFERING (THE "IPO") AND THE EXERCISE IN FULL BY THE UNDERWRITERS OF SUCH
OPTION. THE TERMS OF THE WARRANTS ARE GOVERNED BY A WARRANT AGREEMENT (THE
"WARRANT AGREEMENT") BETWEEN THE CORPORATION AND ITS TRANSFER AGENT TO BE
ENTERED INTO UPON THE EFFECTIVENESS OF THE CORPORATION'S INITIAL PUBLIC
OFFERING, AS AMENDED, RESTATED OR SUPPLEMENTED FROM TIME TO TIME, AND ARE
SUBJECT TO THE TERMS AND PROVISIONS CONTAINED THEREIN, ALL OF WHICH TERMS AND
PROVISIONS THE HOLDER OF THIS CERTIFICATE CONSENTS TO BY ACCEPTANCE HEREOF.
COPIES OF THE WARRANT AGREEMENT WILL BE ON FILE AT THE OFFICE OF THE
CORPORATION, AND WILL BE AVAILABLE TO ANY WARRANT HOLDER ON WRITTEN REQUEST AND
WITHOUT COST.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO
SUBJECT TO FORFEITURE AND ADDITIONAL RESTRICTIONS ON TRANSFER OR SALE PURSUANT
TO AN INITIAL FOUNDER'S SECURITIES PURCHASE AGREEMENT DATED MARCH 22, 2007, A
COPY OF WHICH CAN BE OBTAINED FROM THE COMPANY AT ITS EXECUTIVE OFFICES.
SECURITIES EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS
UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE CORPORATION.
WITNESS THE SEAL OF THE CORPORATION AND THE FACSIMILE SIGNATURE OF ITS DULY
AUTHORIZED OFFICER.
DATED: , 2007
SP ACQUISITION HOLDINGS, INC.
CORPORATE SEAL
DELAWARE
-----------------------------
AUTHORIZED OFFICER
================================================================================
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM as tenants in common Unif Gift Min Act - ________ Custodian __________
TEN ENT tenants by the entireties (Cust) (Minor)
as joint tenants with Under Uniform Gifts to Minors Act:
right of survivorship and ____________________
JT TEN not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
SP ACQUISITION HOLDINGS, INC.
The Corporation will furnish without charge to each stockholder who
so requests the powers, designations, preferences and relative, participating,
option or other special rights of each class of stock or series thereof of the
Corporation and the qualifications, limitations, or restrictions of such
preferences and/or rights. This certificate and the Units represented hereby are
issued and shall be held subject to the terms and conditions applicable to the
securities underlying and comprising the Units.
FOR VALUE RECEIVED, HEREBY SELL, ASSIGN AND TRANSFER UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
UNITS REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY IRREVOCABLY
CONSTITUTE AND APPOINT _________________ ATTORNEY, TO TRANSFER THE SAID UNITS ON
THE BOOKS OF THE WITHIN NAMED CORPORATION WITH FULL POWER OF SUBSTITUTION IN THE
PREMISES.
DATED __________________ BY:
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
Exhibit B
[SPECIMEN INITIAL FOUNDER'S COMMON STOCK CERTIFICATE]
NUMBER SHARES
CUSIP
SP ACQUISITION HOLDINGS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.001
EACH OF THE COMMON STOCK OF
SP ACQUISITION HOLDINGS, INC.
TRANSFERABLE ON THE BOOKS OF THE CORPORATION IN PERSON OR BY DULY AUTHORIZED
ATTORNEY UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE
IS NOT VALID UNLESS COUNTERSIGNED BY THE TRANSFER AGENT AND REGISTERED BY THE
REGISTRAR. WITNESS THE SEAL OF THE CORPORATION AND THE FACSIMILE SIGNATURES OF
ITS DULY AUTHORIZED OFFICERS.
Dated:
SP Acquisition Holdings, Inc.
CORPORATE DELAWARE
SEAL
------------------ ------------------
PRESIDENT SECRETARY
DELAWARE
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The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM as tenants in common UNIF GIFT MIN ACT - ________ Custodian _________
TEN ENT as tenants by the entireties (Cust (Minor)
JT TEN as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as
tenants in common
--------------------------------------------------
(State)
Additional Abbreviations may also be used though not in the above list.
SP Acquisition Holdings, Inc.
The Corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative participating, optional or
other special rights of each class of stock or series thereof of the Corporation
and the qualifications, limitations, or restrictions of such preferences and/or
rights. This certificate and the shares represented hereby are issued and shall
be held subject to all the provisions of the Certificate of Incorporation and
all amendments thereto and resolutions of the Board of Directors providing for
the issue of shares of Preferred Stock (copies of which may be obtained from the
secretary of the Corporation), to all of which the holder of this certificate by
acceptance hereof assents.
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO
SUBJECT TO (i) FORFEITURE, (ii) ADDITIONAL RESTRICTIONS ON TRANSFER OR SALE AND
(iii) VOTING REQUIREMENTS AND HOLDERS OF THE SECURITIES WAIVE ANY RIGHT TO
PARTICIPATE IN A LIQUIDATION DISTRIBUTION IN CERTAIN CIRCUMSTANCES, IN EACH CASE
PURSUANT TO AN INITIAL PURCHASER'S SECURITIES PURCHASE AGREEMENT DATED MARCH 22,
2007, A COPY OF WHICH CAN BE OBTAINED FROM THE COMPANY AT ITS EXECUTIVE OFFICES.
SECURITIES EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS
UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE CORPORATION.
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For value received, _________________________________________ hereby sell,
assign and transfer unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER
IDENTIFYING
NUMBER OF ASSIGNEE
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(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASSIGNEE)
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SHARES
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of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
ATTORNEY
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TO TRANSFER THE SAID STOCK ON THE BOOKS OF THE WITHIN NAMED CORPORATION WILL
FULL POWER OF SUBSTITUTION IN THE PREMISES.
Dated
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NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the certificate in every
particular, without alteration or
enlargement or any change whatever.
Signature(s) Guaranteed:
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THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15).
Exhibit C
WARRANT AGREEMENT