UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities
Exchange Act of 1934
Filed by the Registrant
x
Filed by a Party other than the Registrant
¨
Check the appropriate box:
|
|
|
|
|
x
Preliminary Proxy
Statement
|
|
¨
|
|
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
|
¨
Definitive Proxy
Statement
|
|
|
¨
Definitive Additional Materials
|
|
|
|
|
¨
Soliciting Material Pursuant to
Rule 14a-12
|
|
|
|
|
Atlas Acquisition Holdings Corp.
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement if other than the Registrant)
Payment of Filing
Fee (Check the appropriate box):
¨
|
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
|
|
1.
|
Title of each class of securities to which transaction applies:
|
|
2.
|
Aggregate number of securities to which transaction applies:
|
|
3.
|
Per share price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and
state how it was determined):
|
|
4.
|
Proposed maximum aggregate value of transaction:
|
¨
|
Fee paid previously with preliminary materials:
|
¨
|
Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously.
Identify the previous filing by registration statement number, of the Form or Schedule and the date of its filing.
|
|
1.
|
Amount Previously Paid:
|
|
2.
|
Form, Schedule or Registration Statement No.:
|
SUBJECT TO COMPLETION,
DATED DECEMBER 18, 2009
ATLAS ACQUISITION
HOLDINGS CORP.
c/o Hauslein & Company, Inc.
11450 SE Dixie Highway, Suite 106
Hobe Sound,
Florida 33455
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
OF ATLAS ACQUISITION HOLDINGS CORP.
To Be Held On
January 20, 2010
To the Stockholders of Atlas Acquisition Holdings Corp.:
NOTICE IS HEREBY GIVEN that a special meeting of stockholders of Atlas Acquisition Holdings Corp., a Delaware corporation
(Atlas, we, us or our), will be held at 10:30 a.m., Eastern time, on January 20, 2010, at the offices of Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue, New York, New York 10166, for
the sole purpose of considering and voting upon the following proposals:
|
|
|
a proposal to amend our amended and restated certificate of incorporation to extend the date by which we must complete a business combination from
January 23, 2010 to February 16, 2010, before we are required to liquidate (this proposal is referred to as the Extension Proposal); and
|
|
|
|
a proposal to approve adjournment or postponement of the special meeting of stockholders to a later date or dates, if necessary, to permit further
solicitation and voting of proxies in the event that there are not sufficient votes to approve the Extension Proposal (this proposal is referred to as the Adjournment Proposal).
|
A stockholders approval of the Extension Proposal will also authorize us to amend the trust agreement entered into in connection with
our initial public offering to extend the date by which the trust account established in connection with our initial public offering must be liquidated to February 16, 2010.
On December 10, 2009, Atlas and Koosharem Corporation, a California corporation doing business as Select Staffing, entered
into an Agreement and Plan of Merger (referred to as the Merger Agreement), pursuant to which we will issue to Select Staffings shareholders an aggregate of 24,723,000 shares of our common stock, subject to certain adjustments, and Select
Staffing will become our wholly owned subsidiary. The purpose of the Extension Proposal is to allow us more time to complete the transactions contemplated by the Merger Agreement, which are referred to as the Merger.
You are not being asked to vote on the proposed Merger at this time. A definitive proxy statement will be mailed to stockholders relating
to a stockholders meeting for a vote on the proposed Merger. If the Extension Proposal is approved, we will seek stockholder approval of the Merger at that subsequent meeting.
Our amended and restated certificate of incorporation, referred to as our charter, currently provides that our corporate existence will
automatically terminate if we do not complete a business combination by January 23, 2010. The Merger is a business combination under our charter. We do not believe that we will be able to complete the Merger by that date, and we
believe that the proposed extension will afford us and Select Staffing additional time to satisfy the conditions to the parties obligations to close the Merger.
Our charter purports to prohibit amendments to certain of its provisions, including any amendment that would extend the January 23, 2010 termination date. Our initial public offering prospectus did
not suggest that this provision, or the charters other business combination procedures, were subject to change. We believe that these provisions were included to protect our stockholders from having to sustain their investments for an
unreasonably long period if we failed to find a suitable acquisition in the timeframe contemplated by our charter. However, our board of directors also believes that the proposed Merger with Select Staffing is advisable and fair to, and in the best
interests of, our stockholders, and that the extension of the date by which we must terminate to February 16, 2010 in order to complete the Merger is in the best interests of our stockholders.
1
Our board of directors has fixed the close of business on December 30, 2009 as the
record date for the determination of stockholders entitled to notice of and to vote at the special meeting of stockholders and at any adjournments or postponements thereof. A complete list of stockholders as of the record date entitled to vote at
the special meeting of stockholders will be open to the examination of any stockholder for any purpose germane to the special meeting during ordinary business hours for a period of ten calendar days before the special meeting at the offices of
Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue, New York, New York 10166, and at the time and place of the special meeting during the duration of the special meeting. A complete list of stockholders as of the record date entitled to vote
at the special meeting will be mailed to any stockholder who makes such request in writing, within five business days after receipt of such request.
Your vote is very important.
Approval of the Extension Proposal requires the affirmative vote of a majority of the issued and outstanding shares of our common stock. Approval of the Adjournment
Proposal requires the affirmative vote of the holders of a majority of the shares of our common stock represented in person or by proxy and entitled to vote thereon at the special meeting of stockholders.
Only our stockholders who held common stock as of the record date will be entitled to vote at the special meeting. Your vote is important
regardless of the number of shares you own.
Whether or not you plan to attend the special meeting, please read the enclosed proxy statement carefully and promptly submit your proxy by phone, over the Internet, or by completing, signing, dating
and returning the enclosed proxy card as soon as possible in the pre-addressed postage-paid envelope provided.
Voting via the Internet is a valid proxy voting method under the laws of the State of Delaware (Atlas state of incorporation).
If your shares are held in an account at a broker or bank, you must instruct your broker or bank on how to vote your shares, or if you wish to attend the special meeting and vote in person, you must obtain a Legal Proxy from your broker
or bank. If you do not submit your proxy or vote in person at the special meeting, or if you hold your shares through a broker or bank and you do not instruct your broker or bank how to vote your shares or obtain a proxy from your broker or bank to
vote in person at the special meeting, it will have the same effect as a vote AGAINST the Extension Proposal, as more fully described in the accompanying proxy statement.
IF YOU RETURN YOUR PROXY CARD WITHOUT AN INDICATION OF HOW YOU
WISH TO VOTE, YOUR SHARES WILL BE VOTED IN FAVOR OF EACH OF THE PROPOSALS.
Our board of directors has unanimously
approved and declared advisable the Extension Proposal and the Adjournment Proposal and unanimously recommends that our stockholders vote FOR approval of the Extension Proposal and FOR approval of the Adjournment Proposal.
Thank you for your participation. We look forward to your continued support.
|
Sincerely,
|
|
|
James N. Hauslein
|
Chairman and Chief Executive Officer
|
2
Important Notice Regarding the Availability of Proxy Materials for
Atlas Acquisition Holdings Corp.s Special Meeting of Stockholders on January 20, 2010
The Atlas Acquisition Holdings Corp. Proxy Statement is available online at
www.sec.gov.
Please do not return the enclosed
paper ballot if you are
voting over the Internet or by telephone.
|
|
|
VOTE BY INTERNET
|
|
VOTE BY TELEPHONE
|
|
|
www.proxyvote.com
|
|
(800) 454-8683
|
24 hours a day/7 days a week
|
|
24 hours a day/7 days a week
|
|
|
Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 p.m., Eastern time, on January 19, 2010. Have your proxy card in
hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
|
|
Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m., Eastern time, on January 19, 2010. Have your proxy card in hand when you call and then follow
the instructions.
|
Your cooperation is appreciated since a majority of the shares of common stock must
be represented, either in person or by proxy, to constitute a quorum for the conduct of business.
3
PROXY STATEMENT FOR SPECIAL MEETING OF
STOCKHOLDERS OF ATLAS ACQUISITION HOLDINGS CORP.
A special meeting of stockholders of Atlas Acquisition Holdings Corp., a Delaware corporation (Atlas, we, us or our), will be held at 10:30 a.m., Eastern
time, on January 20, 2010, at the offices of Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue, New York, New York 10166, for the sole purpose of considering and voting upon the following proposals:
|
|
|
a proposal to amend our amended and restated certificate of incorporation to extend the date by which we must complete a business combination from
January 23, 2010 to February 16, 2010, before we are required to liquidate (this proposal is referred to as the Extension Proposal); and
|
|
|
|
a proposal to approve adjournment or postponement of the special meeting of stockholders to a later date or dates, if necessary, to permit further
solicitation and voting of proxies in the event that there are not sufficient votes to approve the Extension Proposal (this proposal is referred to as the Adjournment Proposal).
|
On December 10, 2009, Atlas and Koosharem Corporation, a California corporation doing business as Select Staffing, entered
into an Agreement and Plan of Merger (referred to as the Merger Agreement), pursuant to which we will issue to Select Staffings shareholders an aggregate of 24,723,000 shares of our common stock, subject to certain adjustments, and Select
Staffing will become our wholly owned subsidiary.
In order to allow us more time to complete the transactions contemplated by
the Merger Agreement, which are referred to as the Merger, we are seeking the approval of the proposal to amend our amended and restated certificate of incorporation, referred to as our charter, to extend the date by which we must complete a
business combination from January 23, 2010 to February 16, 2010, before we are required to liquidate our trust account and distribute the proceeds to holders of shares of our common stock issued in our initial public offering, which are
referred to as our Public Shares. A stockholders approval of the Extension Proposal will also authorize us to amend the trust agreement entered into in connection with our initial public offering to extend the date by which the trust account
established in connection with our initial public offering must be liquidated to February 16, 2010.
After careful
consideration of the terms and conditions of the Extension Proposal and the Merger, our board of directors has determined that the Extension Proposal is in the best interests of our stockholders. If such proposal is not approved and the Merger is
not consummated by January 23, 2010, our corporate existence will cease except for the purposes of winding up our affairs and liquidating our trust account and distributing the proceeds to holders of our Public Shares.
You are not being asked to vote on the proposed Merger at this time. A definitive proxy statement will be mailed to stockholders relating
to a stockholders meeting for a vote on the proposed Merger. If the Extension Proposal is approved, we will seek stockholder approval of the Merger at that subsequent meeting.
The record date for the special meeting is December 30, 2009. Only our stockholders who held common stock as of the record date will be
entitled to vote at the special meeting. At the close of business on the record date there were 25,000,000 shares of our common stock outstanding. Our warrants do not have voting rights.
We are providing this proxy statement and the accompanying proxy card to our stockholders in connection with the solicitation of proxies to
be voted at the special meeting, and at any adjournments or postponements of the special meeting. Whether or not you plan to attend the special meeting, we urge you to read this material carefully.
This proxy statement is dated [ ] and is first being mailed to stockholders on or about [ ].
1
TABLE OF CONTENTS
ANNEXES
|
|
|
|
|
|
|
Annex A
|
|
|
|
Opinion of Greenberg Traurig, LLP
|
|
A-1
|
Annex B
|
|
|
|
Certificate of Amendment of Certificate of Incorporation
|
|
B-1
|
i
QUESTIONS AND ANSWERS ABOUT THE
SPECIAL MEETING
The following questions and answers briefly address some commonly asked questions about the proposals to
be presented at the special meeting of stockholders. The following questions and answers may not include all the information that is important to stockholders of our company. We urge stockholders to read carefully this entire proxy statement,
including the annexes and the other documents referred to herein.
Q.
|
Why am I receiving this proxy statement?
|
A.
We have entered into the Merger Agreement with Select Staffing, pursuant to which, among other things, a recently formed holding company for Select Staffing will merge
with and into our company, and Select Staffing will become our wholly owned subsidiary. A copy of the Merger Agreement is attached as an annex to our preliminary proxy statement filed with the U.S. Securities and Exchange Commission, or the SEC, on
December 11, 2009.
Upon the closing of the transactions contemplated by the Merger Agreement, we will issue to Select
Staffings shareholders an aggregate of 24,723,000 shares of our common stock, subject to certain adjustments. Depending on the level of Select Staffing debt immediately prior to the Merger, Select Staffings current shareholders are
expected to own between approximately 40% and 45% of our outstanding stock immediately after the Merger. In addition, Select Staffings current executive officers will become our executive officers. Select Staffings shareholders will also
be entitled to receive up to 6.0 million additional shares of our common stock based on the earnings before interest, taxes, depreciation and amortization (which we refer to as EBITDA) of our combined company during the fiscal year ending
December 26, 2010 (with 2.0 million of such shares being automatically issued if our stock price exceeds $15.00 during the period specified in the Merger Agreement).
The Merger is a business combination under our charter, which currently provides that if we do not consummate a business
combination by January 23, 2010, we will liquidate our trust account and distribute the proceeds to holders of our Public Shares. We do not believe that we will be able to complete the Merger by that date. Our board of directors believes that
our stockholders will benefit from the Merger and, therefore, is proposing an amendment to our charter to extend that date to February 16, 2010.
You are not being asked to vote on the proposed Merger at this time. A definitive proxy statement will be mailed to stockholders relating to a stockholders meeting for a vote on the proposed Merger. If
the Extension Proposal is approved, we will seek stockholder approval of the Merger at that subsequent meeting.
The
approval of the Extension Proposal is a precondition to the consummation of the Merger. If the Merger is not consummated and we do not consummate an alternative business combination by January 23, 2010 (February 16, 2010 if the Extension
Proposal is approved), we will be required to dissolve and liquidate our trust account and distribute the proceeds to holders of our Public Shares. While there can be no assurance, it is our belief that the extension of the deadline to consummate a
business combination to February 16, 2010 will afford us sufficient time to complete the proxy statement relating to a stockholders meeting for a vote on the proposed Merger and respond to all SEC staff comments on such proxy statement.
Your vote is important. You are encouraged to submit your proxy by phone, over the Internet, or mail as soon as possible
after carefully reviewing this proxy statement and its annexes.
1
Q.
|
What is being voted on?
|
A.
Stockholders are being asked to vote on the following proposals:
|
|
|
a proposal to approve an amendment to our charter to extend the date by which we must complete a business combination from January 23, 2010 to
February 16, 2010; and
|
|
|
|
a proposal to approve the adjournment or postponement of the special meeting of stockholders to a later date or dates, if necessary, to permit further
solicitation and voting of proxies in the event that there are not sufficient votes to approve the Extension Proposal.
|
A stockholders approval of the Extension Proposal will also authorize us to amend the trust agreement entered into in connection with our initial public offering to extend the date by which the
trust account established in connection with our initial public offering must be liquidated to February 16, 2010.
It is
important for you to note that, in the event the Extension Proposal does not receive the requisite vote for approval, then we will not consummate the Merger. If we do not consummate the Merger and fail to complete an alternative business combination
by January 23, 2010 (February 16, 2010 if the Extension Proposal is approved), we will be required to dissolve and liquidate our trust account and distribute the proceeds to holders of our Public Shares.
The Adjournment Proposal will only be presented at the special meeting of stockholders if there are not sufficient votes to approve the
Extension Proposal.
Q.
|
What vote is required to approve the proposals presented at the special meeting?
|
A.
Approval of the Extension Proposal requires the affirmative vote of a majority of the shares of our common
stock issued and outstanding as of the record date.
Approval of the Adjournment Proposal requires the affirmative vote of the
holders of a majority of the shares of our common stock represented in person or by proxy and entitled to vote thereon at the special meeting.
Abstentions will have the same effect as a vote AGAINST the Extension Proposal and the Adjournment Proposal. A broker non-vote will have the same effect as a vote AGAINST the
Extension Proposal but, while considered present for the purposes of establishing a quorum, broker non-votes will have no effect on the Adjournment Proposal.
Q.
|
How will Atlas directors and officers vote?
|
A.
All of our directors, officers and special advisors and their respective affiliates, referred to as our founders, have informed us that they intend to vote their shares of
our common stock acquired in a private placement prior to our initial public offering, which we refer to as their initial shares, in favor of the Extension Proposal and, if necessary, the Adjournment Proposal.
Q.
|
What happens if I vote against the Extension Proposal?
|
A.
The Extension Proposal is a precondition to the consummation of the Merger. If holders of 50% or more of our outstanding shares of common stock vote against the Extension
Proposal, then we will not consummate the Merger. If the Merger is not consummated and we do not consummate an alternative business combination by January 23, 2010 (February 16, 2010 if the Extension Proposal is approved), we will be required
to dissolve and liquidate our trust account and distribute the proceeds to holders of our Public Shares.
2
Q.
|
What do I need to do now?
|
A.
You are urged to read carefully and consider the information contained in this proxy statement, including the annexes, and to consider how the Extension Proposal will affect you as a stockholder. You should
then vote as soon as possible in accordance with the instructions provided in this proxy statement and on the enclosed proxy card or, if you hold your shares through a broker, bank or other nominee, on the voting instruction form provided by the
broker, bank or nominee.
A.
If you were a holder of record of our common stock on December 30, 2009, the record date for the special meeting, you may vote with respect to the applicable proposals in person at the special meeting,
or by submitting a proxy. You may submit your proxy by phone, over the Internet or by completing, signing, dating and returning the enclosed proxy card in the accompanying pre-addressed postage-paid envelope provided. If you hold your shares in
street name, which means your shares are held of record by a broker, bank or other nominee, you should contact your broker, bank or nominee to ensure that votes related to the shares that you beneficially own are properly counted. In
this regard, you must provide the record holder of your shares with instructions on how to vote your shares or, if you wish to attend the special meeting and vote in person, obtain a proxy from your broker, bank or nominee.
Q.
|
What will happen if I abstain from voting or fail to vote at the special meeting?
|
A.
We will count a properly executed proxy marked ABSTAIN with respect to a particular proposal as
present for purposes of determining whether a quorum is present. For purposes of approval, an abstention, or failure to vote, on each of the Extension Proposal and Adjournment Proposal will have the same effect as a vote AGAINST the
proposal.
Q.
|
What will happen if I sign and return my proxy card without indicating how I wish to vote?
|
A.
Signed and dated proxies received by us without an indication of how the stockholder intends to vote on a
proposal will be voted in favor of each proposal presented to the stockholders.
Q.
|
If I am not going to attend the special meeting, should I return my proxy card instead?
|
A.
Yes. Whether or not you plan to attend the special meeting of stockholders, after carefully reading and
considering the information contained in this proxy statement and the annexes hereto, please promptly submit your proxy by phone, over the Internet or by completing, signing, dating and returning your proxy card in the pre-addressed postage-paid
envelope provided herewith as soon as possible, so that your shares may be represented at the special meeting of stockholders.
Q.
|
If my shares are held in street name, will my broker, bank or nominee automatically vote my shares for me?
|
A.
No. Under the rules of various national and regional securities exchanges, your broker, bank or nominee
cannot vote your shares with respect to non-discretionary matters unless you provide instructions on how to vote in accordance with the information and procedures provided to you by your broker, bank or nominee. We believe the Extension Proposal
will be considered nondiscretionary and therefore your broker, bank or nominee cannot vote your shares without your instruction. If you do not provide instructions with your proxy, your bank, broker or other nominee may deliver a proxy card
expressly indicating that it is NOT voting your shares; this indication that a bank, broker or nominee is not voting your shares is referred to as a broker non-vote. Broker non-votes will be counted for the purpose of determining the
existence of a quorum, but will
3
not count for purposes of determining the number of votes cast at the special meeting. Your bank, broker or other nominee can vote your shares only if you provide instructions on how to vote. You
should instruct your broker to vote your shares in accordance with directions you provide. A broker non-vote will have the same effect as a vote AGAINST the Extension Proposal and will have no effect on the Adjournment Proposal.
Q.
|
May I change my vote after I have mailed my signed proxy card?
|
A.
Yes. You may change your vote by (i) sending a later-dated, signed proxy card to our proxy solicitor at the address listed in this proxy statement so that it is
received by us prior to the vote at the special meeting, or (ii) attending the special meeting and voting in person. You also may revoke your proxy by sending a notice of revocation to our proxy solicitor, which must be received by our proxy
solicitor prior to the vote at the special meeting.
Q.
|
What should I do if I receive more than one set of voting materials?
|
A.
You may receive more than one set of voting materials, including multiple copies of this proxy statement and multiple proxy cards or voting instruction cards. For example,
if you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a holder of record and your shares are registered in more than one name,
you will receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive (either by phone, Internet or mail) in order to cast your vote with respect to all of your shares.
Q.
|
Who can help answer my questions?
|
A.
If you have questions about the proposals or if you need additional copies of the proxy statement or the enclosed proxy card you should contact our proxy solicitor, at:
Karen Smith
Advantage Proxy
24925 13th Place South
Des Moines, Washington 98198
Toll Free Telephone: (877) 870-8565
To obtain timely delivery, stockholders must request the materials no later than [ ].
You may also obtain additional information about our company from documents filed with the SEC by following the instructions in the section
entitled
Where You Can Find More Information
.
4
SUMMARY OF THE PROXY STATEMENT
This summary highlights selected information from this proxy statement and may not contain all of the information that is
important to you. To better understand the proposals to be considered at the special meeting, you should read this entire proxy statement carefully, including the annexes. See also the section entitled
Where You Can Find More
Information
.
The Proposed Merger
The Parties
Atlas
We are a Delaware blank check company formed for the purpose of effecting a merger, capital stock exchange, asset
acquisition or other similar business combination with an operating business, which we refer to as our business combination.
We received gross proceeds of $200,000,000 from our initial public offering. Of those proceeds, (i) we deposited $194,200,000 into a trust account at Bank of America, maintained by American Stock Transfer & Trust Company, as
trustee, which included $8,955,000 of deferred underwriting discounts and commissions; (ii) the underwriters of our initial public offering, Lazard Capital Markets and Morgan Stanley, received $5,045,000 in underwriting discounts and
commissions (excluding the deferred underwriting discounts and commissions); and (iii) we retained $755,000 for offering expenses and to fund our initial working capital. In addition, we deposited into the trust account gross proceeds of
$5,800,000 received from the sale of 5,800,000 insider warrants to James N. Hauslein, Gaurav V. Burman, Sir Peter Burt, Michael T. Biddulph, Michael W. Burt and Promethean plc, which sale was consummated concurrently with the closing of our initial
public offering. Each insider warrant was purchased at a price of $1.00 per warrant and has an exercise price of $7.00.
If we
are unable to complete the Merger by January 23, 2010 (February 16, 2010 if the Extension Proposal is approved), our corporate existence will automatically terminate in accordance with our current charter, we will dissolve and liquidate and
promptly distribute to holders of our Public Shares funds held in our trust account. In the event of our liquidation, our warrants will expire worthless.
Our common stock, units and warrants are currently listed on the NYSE Amex under the symbols AXG, AXG.U and AXG.WT, respectively. We intend to seek to list our common stock on the New York Stock Exchange
effective upon the consummation of the Merger.
The mailing address of our principal executive office is c/o
Hauslein & Company, 11450 SE Dixie Highway, Suite 106, Hobe Sound, Florida 33455 and our telephone number is (772) 545-9042.
Select Staffing
Select Staffing is a leading national provider of
temporary staffing services in the United States. Through a network of company-owned and franchise agent offices (independent contractor franchisees and licensees of Select Staffing that recruit job applicants, solicit job orders, fill those orders,
and assist with collection matters upon request), Select Staffing offers a wide range of temporary staffing solutions for over 200 job classifications across a range of service categories including light industrial, clerical/administrative,
accounting, financial services, information technology, manufacturing, transportation, human resources and sales and marketing. Select Staffing provides its services in 45 states through 355 offices, of which 202 are company-owned and 153 are
franchise agent offices. During its fiscal year ended December 28, 2008, Select Staffing placed approximately 250,000 temporary employees and provided staffing services to over 20,000 customers, none of which accounted for more than 4% of
Select Staffings revenues.
5
Koosharem Corporation was incorporated in California in 1989.
In 2000, Koosharem purchased the stock of Select Temporaries Inc., founded in Santa Barbara, California in 1985, and began doing business as Select Staffing.
Select Staffings executive offices are located at 3820 State Street, Santa Barbara, CA 93105, and its telephone number is (800) 688-6162.
New Koosharem Corporation
Select Staffing recently formed New Koosharem Corporation, a California corporation, which, through a series of preliminary transactions that will take place prior to the consummation of the Merger, will
become the parent corporation of Select Staffing and the current shareholders of Select Staffing will become shareholders of New Koosharem Corporation. New Koosharem Corporation will be merged with and into Atlas pursuant to the Merger, the separate
existence of New Koosharem Corporation will terminate, and Select Staffing will become a limited liability company and a wholly owned subsidiary of our company.
Structure of the Merger
Pursuant to the terms of the Merger Agreement, New
Koosharem Corporation will be merged with and into our company, with our company surviving the Merger and Select Staffing becoming our wholly owned subsidiary. As a result of the preliminary transactions that will take place prior to the
consummation of the Merger, all of the outstanding stock of New Koosharem Corporation, including shares of stock issued upon exercise of Select Staffing options, will be automatically converted into the right to receive an aggregate of 24,723,000
shares of our common stock, subject to certain adjustments. Depending on the level of Select Staffing debt immediately prior to the Merger, Select Staffings current shareholders are expected to own between approximately 40% and 45% of our
outstanding stock immediately after the Merger. In addition, Select Staffings current executive officers will become our executive officers. Select Staffings shareholders will also be entitled to receive up to 6.0 million additional
shares of our common stock based on the EBITDA of our combined company during the fiscal year ending December 26, 2010 (with 2.0 million of such shares being automatically issued if our stock price exceeds $15.00 during the period
specified in the Merger Agreement).
The parties to the Merger Agreement intend to consummate the Merger as promptly as
practicable after approval of the Merger by Atlas stockholders (and assuming holders of less than 30% of our Public Shares vote against the Merger and demand conversion of their shares into cash) and the other conditions specified in the Merger
Agreement have been satisfied or waived, including a restructuring of Select Staffings indebtedness and the receipt of historical and pro forma financial statements that we will be required to file with the SEC following the Merger. We
currently expect that the conditions specified in the Merger Agreement will be satisfied in mid-February 2010.
For more
information, see the section entitled
The Proposed Merger
.
If the Merger is not completed by
January 23, 2010 (February 16, 2010 if the Extension Proposal is approved), our corporate existence will automatically terminate in accordance with our charter and we will thereafter dissolve and liquidate. In any liquidation of our company,
the funds deposited in our trust account, plus any interest earned thereon, less reserves for and claims requiring payment from our trust account by creditors who have not waived their rights against our trust account, if any, will be distributed
pro rata to the holders of our Public Shares.
You are not being asked to vote on the proposed Merger at this time. A
definitive proxy statement will be mailed to stockholders relating to a stockholders meeting for a vote on the proposed Merger. If the Extension Proposal is approved, we will seek stockholder approval of the Merger at that subsequent meeting.
6
Reasons for the Merger
Our board of directors carefully evaluated the agreements relating to the proposed Merger and reviewed industry and financial data in
considering whether the Merger was advisable and fair to, and in the best interests of, our stockholders. While we considered numerous companies and acquisition opportunities in various industries in our search for an attractive business combination
candidate, we did not believe that any of those candidates would be as attractive to public stockholders as the proposed Merger with Select Staffing. Based upon its assessment of the staffing services industry and its evaluation of Select
Staffings growth potential within that industry, our board of directors unanimously approved the Merger and determined that it is advisable and fair to, and in the best interests of, our company and our stockholders.
Our board of directors considered a wide variety of factors in connection with its evaluation of the Merger. In light of the complexity of
those factors, our board of directors, as a whole, did not consider it practicable to, nor did it attempt to, quantify or otherwise assign relative weights to the specific factors it considered in reaching its decision. Individual members of our
board of directors may have given different weight to different factors.
Our board of directors was cognizant of our
termination date of January 23, 2010, but ultimately evaluated the potential business combination with Select Staffing strictly on the quantitative and qualitative information regarding Select Staffing and its business that was available. Since
completion of our initial public offering, our board of directors has been regularly kept apprised of potential business combination targets and managements discussions with and evaluation of such targets. We engaged in an ongoing and
systematic search for potential business combination candidates, deciding on our own accord in various situations to terminate discussions with potential candidates when determined by our management that such candidates did not ultimately represent
the investment opportunity that we wanted to present to our stockholders.
The Extension Proposal
We were formed for the purpose of effecting a merger, capital stock exchange, asset acquisition or other similar business
combination with an operating business, referred to herein as our business combination.
The Merger is a business
combination under our charter and we do not believe that we will be able to complete the Merger by January 23, 2010. Our board of directors believes the Merger to be advisable and fair to, and in the best interests of, our stockholders,
and because we and Select Staffing may not be able to complete the Merger by January 23, 2010, we need to extend the time for closing the Merger to February 16, 2010.
The Extension Proposal, if approved, will provide for the amendment of our current charter to extend the date by which we must complete a
business combination from January 23, 2010 to February 16, 2010, before our corporate existence terminates and we are required to liquidate our trust account and distribute the proceeds to holders of our Public Shares. A stockholders
approval of the Extension Proposal will also authorize us to amend the trust agreement to extend the date by which the trust account must be liquidated to February 16, 2010.
Pursuant to the Merger Agreement, approval of the Extension Proposal is a precondition to the consummation of the Merger. If the Extension
Proposal is not approved, the Merger will not be presented to stockholders for a vote, and we will liquidate our trust account and distribute the proceeds to holders of our Public Shares. If the Extension Proposal is approved, we will hold a special
meeting of stockholders to approve the Merger and related proposals. Approval of the Merger would require the affirmative vote of a majority of our Public Shares. In addition, if holders of 30% or more of the Public Shares vote against the Merger
and demand that their Public Shares be converted into a pro rata portion of the trust account in which a substantial portion of the net proceeds of our initial public offering are held, we will not, pursuant to the terms of our charter, be permitted
to consummate the Merger.
7
Rescission Rights
You should be aware that because our initial public offering prospectus did not disclose that we may seek to amend our charter prior to the
consummation of a business combination, each holder of our common stock at the time of the Merger who purchased such shares of common stock in our initial public offering may have securities law claims against us for rescission or damages.
Certain Interests of Related Parties in the Extension Proposal
When you consider the recommendation of our board of directors in favor of approval of the Extension Proposal, you should keep in mind that
our directors and officers have interests in the Extension Proposal and the Merger that are different from, or in addition to, your interests as a stockholder. These interests are more fully discussed under the section entitled
Proposals to
be Considered at the Special Meeting The Extension Proposal Certain Interests of Related Parties in the Extension Proposal
.
See the section entitled
Proposals to be Considered at the Special Meeting The Extension Proposal
for additional information about the Extension Proposal.
The Adjournment Proposal
If, based on the tabulated vote, there are not sufficient votes at the time of the special meeting to approve the Extension Proposal, the Adjournment Proposal allows our board of directors to adjourn or
postpone the special meeting of stockholders to a later date or dates, if necessary, to permit further solicitation of proxies. See the section entitled
Proposals to be Considered at the Special Meeting The Adjournment
Proposal
for additional information.
The Special Meeting
Vote of Our Founders
As of
the record date for the special meeting, our founders owned approximately 20% of our outstanding shares of common stock, which includes 5,000,000 initial shares purchased prior to our initial public offering. Our founders have informed us that they
intend to vote in favor of the Extension Proposal and, if necessary, the Adjournment Proposal.
Date, Time and Place of Special Meeting
The special meeting of stockholders will be held at 10:30 a.m., Eastern time, on January 20, 2010, at the offices of
Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue, New York, New York 10166, or such other date, time and place to which such meeting may be adjourned or postponed, to consider and vote upon the proposals.
Voting Power; Record Date
You will be entitled to vote or direct votes to be cast at the special meeting if you owned shares of our common stock at the close of business on December 30, 2009, which is the record date for the special meeting. You are entitled to
one vote for each share of common stock that you owned at the close of business on the record date. If your shares are held in street name or are in a margin or similar account, you should contact your broker, bank or other nominee to
ensure that votes related to the shares you beneficially own are properly counted. On the record date, there were 25,000,000 shares of our common stock outstanding, 20,000,000 of which are Public Shares and 5,000,000 of which are initial shares.
8
Quorum and Required Vote for Stockholder Proposals
A quorum of our stockholders is necessary to hold a valid meeting. A quorum will be present at the special meeting if a majority of the
common stock outstanding and entitled to vote at the special meeting is represented in person or by proxy. Abstentions and broker non-votes will count as present for the purposes of establishing a quorum.
Approval of the Extension Proposal requires the affirmative vote of a majority of the shares of our common stock issued and outstanding as
of the record date.
Approval of the Adjournment Proposal requires the affirmative vote of the holders of a majority of the
shares of our common stock represented in person or by proxy and entitled to vote thereon at the special meeting.
Abstentions
are considered present for purposes of establishing a quorum but will have the same effect as a vote AGAINST the Extension Proposal and the Adjournment Proposal. Broker non-votes will have the same effect as a vote AGAINST
the Extension Proposal and will have no effect on the Adjournment Proposal.
Recommendation to Atlas Stockholders
Our board of directors unanimously recommends that our stockholders vote FOR each of the Extension Proposal and the Adjournment
Proposal.
Proxies
Proxies may be solicited by mail, telephone or in person. Our proxy solicitor is Advantage Proxy, 24925 13th Place South, Des Moines, Washington 98198. Their toll free telephone number is (877) 870-8565.
If you grant a proxy, you may still vote your shares in person if you revoke your proxy before the vote at the special meeting. You may also
change your vote by submitting a later-dated proxy as described in the section entitled
The Special Meeting Revoking Your Proxy.
9
THE SPECIAL MEETING
General
We are furnishing this proxy statement to our stockholders as part of the solicitation of proxies by our board of directors for use at our special meeting of stockholders to be held at 10:30 a.m., Eastern time, on January 20, 2010, and
at any adjournments or postponements thereof. This proxy statement is first being furnished to our stockholders on or about [ ]. This proxy statement provides you with information you need to know to be able to vote or
instruct your vote to be cast at the special meeting.
Date, Time and Place of Special Meeting
The special meeting will be held on January 20, 2010, at 10:30 a.m., Eastern time, at the offices of Greenberg Traurig, LLP, MetLife
Building, 200 Park Avenue, New York, New York 10166, or such other date, time and place to which such meeting may be adjourned or postponed.
Purpose of the Special Meeting
At the special meeting, we will ask holders of our
common stock to consider and vote upon the following proposals:
|
|
|
a proposal to amend our charter to extend the date by which we must complete a business combination from January 23, 2010 to February 16,
2010, before we are required to liquidate; and
|
|
|
|
a proposal to approve adjournment or postponement of the special meeting of stockholders to a later date or dates, if necessary, to permit further
solicitation and voting of proxies in the event that there are not sufficient votes to approve the Extension Proposal.
|
A stockholders approval of the Extension Proposal will also authorize us to amend the trust agreement entered into in connection with our initial public offering to extend the date by which the
trust account established in connection with our initial public offering must be liquidated to February 16, 2010.
You
are not being asked to vote on the proposed Merger at this time. A definitive proxy statement will be mailed to stockholders relating to a stockholders meeting for a vote on the proposed Merger. If the Extension Proposal is approved, we will seek
stockholder approval of the Merger at that subsequent meeting.
Recommendation of Atlas Board of Directors
Our board of directors unanimously recommends that our stockholders vote FOR each of the Extension Proposal
and the Adjournment Proposal.
Record Date; Who is Entitled to Vote
We have fixed the close of business on December 30, 2009, as the record date for determining the stockholders entitled to notice of and
to attend and vote at the special meeting of stockholders. As of the close of business on the record date, there were 25,000,000 shares of our common stock outstanding and entitled to vote, 20,000,000 of which are Public Shares. Each share of our
common stock is entitled to one vote per share at the special meeting.
Quorum and Vote Required for Stockholder
Proposals
A quorum of stockholders is necessary to hold a valid meeting. A quorum will be present at the special meeting
if a majority of our common stock outstanding and entitled to vote at the special meeting is represented in person or by proxy. Abstentions and broker non-votes, which are discussed further below, will count as present for the purposes of
establishing a quorum.
10
Approval of the Extension Proposal requires the affirmative vote of a majority of the shares
of our common stock issued and outstanding as of the record date.
Approval of the Adjournment Proposal requires the
affirmative vote of the holders of a majority of the shares of our common stock represented in person or by proxy and entitled to vote thereon at the special meeting.
As of the record date, our founders owned initial shares representing an aggregate of approximately 20% of the issued and outstanding shares of our common stock, which were acquired prior to the
consummation of our initial public offering. All of these stockholders have informed us that they intend to vote in favor of the Extension Proposal and, if necessary, the Adjournment Proposal.
Abstentions and Broker Non-Votes
Under the rules of various national and regional securities exchanges, your broker, bank or nominee cannot vote your shares with respect to non-discretionary matters unless you provide instructions on how
to vote in accordance with the information and procedures provided to you by your broker, bank or nominee. We believe the Extension Proposal will be considered non-discretionary and, therefore, your broker, bank or nominee cannot vote your shares
without your instruction. If you do not provide instructions with your proxy, your bank, broker or other nominee may deliver a proxy card expressly indicating that it is NOT voting your shares; this indication that a bank, broker or nominee is not
voting your shares is referred to as a broker non-vote.
Abstentions will have the same effect as a vote
AGAINST the Extension Proposal and the Adjournment Proposal. A broker non-vote will have the same effect as a vote AGAINST the Extension Proposal but, while considered present for the purposes of establishing a quorum, will
have no effect on the Adjournment Proposal.
Voting Your Shares
Each share of common stock that you own in your name entitles you to one vote, in each case, on the applicable proposals. Your one or more
proxy cards show the number of shares of our common stock that you own. There are two ways to vote your shares of common stock:
|
|
|
You can vote by phone, over the Internet or by completing, signing, dating and returning the enclosed proxy card. If you vote by proxy card, your
proxy, whose name is listed on the proxy card, will vote your shares as you instruct on the proxy card. If you sign and return a proxy card but do not give instructions on how to vote your shares, your shares of common stock will be
voted as recommended by our board of directors: FOR the Extension Proposal and, if necessary, FOR the Adjournment Proposal.
|
|
|
|
You can attend the special meeting of stockholders and vote in person. You will be given a ballot when you arrive. However, if your shares of common
stock are held in the name of your broker, bank or other nominee, you must get a Legal Proxy from the broker, bank or other nominee. That is the only way we can be sure that the broker, bank or nominee has not already voted your shares
of common stock.
|
Revoking Your Proxy
If you give a proxy, you may revoke it at any time before the vote at the special meeting, or before the vote at such meeting by doing any
one of the following:
|
|
|
you may send another proxy card with a later date;
|
|
|
|
you may notify Advantage Proxy, our proxy solicitor, at the address set forth herein in writing before the vote at the special meeting that you have
revoked your proxy; or
|
|
|
|
you may attend the special meeting, revoke your proxy, and vote in person, as indicated above.
|
11
No Additional Matters May Be Presented at the Special Meeting
The special meeting has been called only to consider the approval of the Extension Proposal and the Adjournment Proposal. Under our
bylaws, other than procedural matters incident to the conduct of the meeting, no other matters may be considered at the special meeting if they are not included in the notice of the special meeting.
Who Can Answer Your Questions About Voting Your Shares
If you have any questions about how to vote or direct a vote in respect of your shares of our common stock, you may call our proxy solicitor,
Advantage Proxy, toll free at (877) 870-8565.
Proxy Solicitation Costs
We are soliciting proxies on behalf of our board of directors. All solicitation costs will be paid by us. However, you will need to obtain
your own Internet access if you choose to access the proxy materials and/or vote over the Internet. This solicitation is being made by mail but also may be made by telephone or in person. We and our directors and officers may also solicit proxies in
person, by telephone or by other electronic means, including e-mail and facsimile.
We have hired Advantage Proxy to assist in
the proxy solicitation process. Advantage Proxy will be paid a fee of $5,000 plus disbursements. Such payments will be made from non-trust account funds. If the Merger is successfully closed, we will pay Advantage Proxy an additional contingent fee
of $7,500.
We will ask banks, brokers and other institutions, nominees and fiduciaries to forward our proxy materials to
their principals and to obtain their authority to execute proxies and voting instructions. We will reimburse them for their reasonable expenses.
Our company and our directors and executive officers will be participants in the solicitation of proxies. In addition, Lazard Capital Markets and Morgan Stanley may provide assistance to our company and
our directors and executive officers and, if so, will be participants in the solicitation of proxies. If the Merger is consummated, our underwriters will received deferred underwriting discounts and commissions. Our underwriters have agreed to
reduce their deferred underwriting discounts and commissions to 4.4775% of the amount of funds held in our trust account, reduced by the aggregate amounts payable to holders of Public Shares who elect to convert their shares into a pro rata portion
of our trust account, as well as all payments made by us to secure stockholder approval of the Merger. This agreement reflects a reduction from the original $8,955,000 of deferred underwriting discounts and commissions held in our trust account. If
the Merger is not consummated and we are required to be liquidated, the underwriters will not receive any of their deferred underwriting discounts and commissions. Stockholders are advised that the underwriters have a financial interest in the
successful outcome of the proxy solicitation.
Vote of Atlas Founders
As of December 30, 2009, the record date for the special meeting, our founders beneficially owned and were entitled to vote 5,000,000
initial shares, which collectively constitute 20% of our issued and outstanding common stock. Our founders have informed us that they intend to vote in favor of the Extension Proposal and, if necessary, the Adjournment Proposal.
Liquidation If No Business Combination
Our charter currently provides for our mandatory liquidation in the event that we do not consummate a business combination by January 23, 2010. If we do not complete a business combination by
January 23, 2010
12
(February 16, 2010 if the Extension Proposal is approved), we will dissolve pursuant to Section 275 of the Delaware General Corporation Law, or the DGCL. In connection with such dissolution,
we will distribute to all of our public stockholders, in proportion to their respective equity interests, an aggregate sum equal to the amount in our trust account, inclusive of any interest, plus any remaining net assets. Our founders have waived
their rights to participate in any liquidation distribution with respect to their initial shares. There will be no distribution from our trust account with respect to our warrants.
We anticipate that, if we are unable to complete the business combination with Select Staffing, the following will occur:
|
|
|
our board of directors will convene and adopt a resolution providing for our dissolution, which it will then vote to recommend to our stockholders; at
such time our board of directors will also cause to be prepared a preliminary proxy statement relating to our dissolution as well as our board of directors recommendation of such dissolution;
|
|
|
|
we will promptly file our preliminary proxy statement with the SEC;
|
|
|
|
if the SEC does not review the preliminary proxy statement, then, approximately 10 days following our filing of the preliminary proxy statement, we
will mail the definitive proxy statement to our stockholders, and 10-20 days thereafter we will convene a meeting of our stockholders, at which they will vote on our dissolution; and
|
|
|
|
if the SEC does review the preliminary proxy statement, we currently estimate that we will receive their comments 30 days after the filing of such
preliminary proxy statement. We would then mail the definitive proxy statement to our stockholders following the conclusion of the comment and review process (the length of which we cannot predict with any certainty, and which may be substantial)
and we will convene a meeting of our stockholders, at which they will vote on our dissolution.
|
We expect
that all costs associated with the implementation and completion of our dissolution will be funded by any remaining net assets not held in our trust account, although we cannot assure you that there will be sufficient funds for such purpose. If such
funds are insufficient, we anticipate that our management will advance us the funds necessary to complete such dissolution and liquidation (currently anticipated to be no more than approximately $15,000).
We will not liquidate our trust account unless and until our stockholders approve our plan of dissolution. Accordingly, the foregoing
procedures may result in substantial delays in our liquidation and the distribution to our public stockholders of the funds in our trust account and any remaining net assets as part of our dissolution and liquidation.
13
THE PROPOSED MERGER
The following is a brief summary of the terms of the Merger Agreement that we entered into with Select Staffing. You are not being
asked to vote on the proposed Merger at this time. A definitive proxy statement will be mailed to stockholders relating to a stockholders meeting for a vote on the proposed Merger, which will contain important information regarding the Merger. If
the Extension Proposal is approved, we will seek stockholder approval of the Merger at that subsequent meeting.
We
are a blank check company formed under the laws of the state of Delaware on September 6, 2007 for the purpose of effecting a merger, capital stock exchange, asset acquisition or other similar business combination with an operating business.
We received gross proceeds of $200,000,000 from our initial public offering. Of those proceeds, (i) we deposited
$194,200,000 into a trust account at Bank of America, maintained by American Stock Transfer & Trust Company, as trustee, which included $8,955,000 of deferred underwriting discounts and commissions; (ii) the underwriters of our initial
public offering, Lazard Capital Markets and Morgan Stanley, received $5,045,000 in underwriting discounts and commissions (excluding the deferred underwriting discounts and commissions); and (iii) we retained $755,000 for offering expenses and
to fund our initial working capital. In addition, we deposited into the trust account gross proceeds of $5,800,000 received from the sale of 5,800,000 insider warrants to James N. Hauslein, Gaurav V. Burman, Sir Peter Burt, Michael T. Biddulph,
Michael W. Burt and Promethean plc, which sale was consummated concurrently with the closing of our initial public offering. Each insider warrant was purchased at a price of $1.00 per warrant and has an exercise price of $7.00.
Structure of the Merger
Pursuant to the Merger Agreement, a recently formed holding company for Select Staffing will merge with and into our company, with our company being the surviving entity and Select Staffing becoming our
wholly owned subsidiary.
Merger Consideration
We will issue to Select Staffings shareholders an aggregate of 24,723,000 shares of our common stock, subject to certain adjustments.
The aggregate number of shares to be issued to Select Staffings shareholders will also be decreased by one share for each $10 of Select Staffing debt as of the closing date of the merger above $518.0 million and will be increased by one
additional share for each $10 of Select Staffing debt as of the closing of the Merger below $518.0 million, subject to a maximum increase of 1.3 million shares. In addition, Select Staffings shareholders will be entitled to receive up to
6.0 million additional shares as follows:
|
|
|
We will issue 2.0 million shares to Select Staffing shareholders if the last sales price of our common stock equals or exceeds $15.00 per share
(as adjusted for any stock splits) for any 20 trading days within any 30-trading-day period ending 45 days after we file our annual report on Form 10-K with respect to the fiscal year ending December 26, 2010.
|
|
|
|
If we issue the 2.0 million shares (because our stock price is at least $15.00 during the specified period), we will issue up to 4.0 million
additional shares if the fiscal 2010 EBITDA of our combined company (with add backs for expenses incurred in connection with the Merger) exceeds $98.0 million, at the rate of one additional share for each $3.75 of EBITDA over a $98.0 million
threshold.
|
|
|
|
If we do not issue the 2.0 million shares (because our stock price is not at least $15.00 during the specified period), we will issue up to
6.0 million shares if the fiscal 2010 EBITDA of our combined company (with add backs for expenses incurred in connection with the Merger) exceeds $98.0 million, at the rate of one additional share for each $2.50 of EBITDA over a $98.0 million
threshold.
|
Pursuant to Select Staffings 2006 Stock Incentive Plan, upon consummation of the Merger,
all vesting restrictions on shares of restricted stock will lapse in full. In addition, all outstanding options that are not exercised will terminate upon consummation of the Merger.
14
Closing
The closing of the Merger will take place no later than the second business day after the satisfaction or waiver of all conditions set forth
in the Merger Agreement, or such other date as we and Select Staffing may agree.
Our Board of Directors
Reasons for the Approval of the Merger
Our board of directors carefully evaluated the agreements relating to the proposed
Merger and reviewed industry and financial data in considering whether the terms of the Merger were advisable and fair to, and in the best interests of, our stockholders. Based upon our assessment of the staffing services industry, our evaluation of
Select Staffings growth potential within that industry, and our analysis of the other factors described below, our board of directors unanimously approved the Merger with Select Staffing and determined that it is advisable and fair to, and in
the best interests of, our stockholders.
In determining that the Merger is advisable and fair to, and in the best interests
of, our stockholders, our board of directors utilized objective standards generally accepted by the financial community, such as actual historical and projected future revenues and EBITDA, and comparable industry multiples. Our board of directors
and representatives also had discussions with members of Select Staffings management concerning Select Staffings financial condition, current and historical operating results, projected growth and business outlook generally.
In arriving at its decision to approve the Merger and its terms, our board relied on an analysis and/or review of a number of positive
factors, including, but not limited to:
|
|
|
Select Staffings potential for future growth
. Our board of directors believes that Select Staffing has the appropriate infrastructure in
place and is competitively positioned in the staffing services industry to achieve significant growth. Our boards belief in Select Staffings growth potential is based on Select Staffings established business operations, its
well-established presence in the light industrial and other service categories that are expected to achieve significant growth in 2010 and future periods, and its significant experience in completing acquisitions and integrating acquired operations.
In particular, our board considered Select Staffings strong acquisition record and Select Staffing managements belief that pursuing selective acquisitions at attractive valuations will help expand Select Staffings geographic
coverage, enhance its market competitiveness and increase profitability. Our board of directors also considered that Select Staffings current owners will only receive our common stock pursuant to the Merger, thereby leaving the combined
company with between approximately $125 million and $185 million to reduce outstanding Select Staffing indebtedness and for working capital and other general corporate purposes. Finally, our board of directors believes that the Merger and our status
as a publicly traded company will provide Select Staffing with greater access to capital to grow its business.
|
|
|
|
The experience, quality and depth of Select Staffings management team
. An important criterion to our board of directors in identifying
acquisition targets was that the target business has a seasoned management team. Select Staffings management team has significant operational, transactional and financial expertise in the staffing services industry. In particular, our board of
directors believes that Select Staffings Chairman and Chief Executive Officer, D. Stephen Sorensen, will continue the success he has had in building Select Staffing through both acquisitions and organic growth.
|
|
|
|
A compelling valuation
. Our board of directors believes that the Merger will provide our stockholders with a unique opportunity to invest in a
well-established business with significant growth potential at a very attractive valuation. The Merger will allow Select Staffing to substantially reduce its outstanding indebtedness, and our board believes that this deleveraging opportunity will
make our company attractive to the public markets. We also believe that, over time, our common stock will trade in-line with what we believe are Select Staffings principal comparable companies, resulting in further price appreciation of our
stock. Finally, our board believes that the temporary staffing market is at the beginning of a cyclical upturn and that favorable industry trends reflected in the recent results of Select Staffing and its competitors make the Merger particularly
attractive from a valuation standpoint.
|
15
|
|
|
Our managements belief that the acquisition of Select Staffing is preferable to any other available transaction to enhance stockholder
value
. While we considered and analyzed numerous companies and acquisition opportunities in various industries in our search for an attractive business combination candidate, we did not believe that any of those candidates would be as attractive
to public stockholders as Select Staffing, which is in an industry that we believe has attractive growth prospects.
|
Our board of directors believes that each of the above factors supported its determination and recommendation to approve the Merger. In addition, our board of directors reviewed a number of additional factors in evaluating the proposed
business combination with Select Staffing, including, but not limited to, the following:
|
|
|
The terms and conditions of the Merger and the Merger Agreement and related transaction documents.
|
|
|
|
The results of our legal, financial and accounting due diligence review of Select Staffing, including due diligence presentations from our executives
and our advisors on such aspects of Select Staffings operations as corporate structure, debt arrangements, workers compensation risk management efforts, employment and compensation matters, tax issues and related-party transactions.
|
Our board of directors also considered the following potentially negative factors, as well as various risks
and uncertainties, in its deliberations concerning the Merger:
|
|
|
Select Staffings significant leverage and working capital requirements.
|
|
|
|
The competitive nature of the staffing services industry, including the likelihood of increased competition and the impact of general economic
conditions on future results.
|
|
|
|
The possibility that the benefits anticipated from the Merger might not be achieved or might not occur as rapidly or to the extent currently
anticipated.
|
|
|
|
The risk that Select Staffing might not perform on a prospective basis as well as it has performed historically.
|
|
|
|
The risk that our current public stockholders would vote against the Merger and demand to convert their shares into a pro rata portion of our trust
account upon consummation of the Merger, thereby reducing the amount of cash available to reduce outstanding Select Staffing indebtedness.
|
|
|
|
The fact that certain of our officers and directors may have interests in the Merger that are different from, or are in addition to, the interests of
our stockholders generally, including the matters described under
Proposals to be Considered at the Special Meeting Certain Interests of Related Parties in the Extension Proposal
below.
|
|
|
|
The fact that the terms of the Merger do not include express indemnification provisions for breaches of representations or covenants, or any mechanism
to adjust the amount of Merger consideration payable to Select Staffings shareholders based on historical or future financial performance.
|
In the view of our board of directors, these potentially countervailing factors did not, individually or in the aggregate, outweigh the advantages of the Merger.
Our board of directors determined not to obtain a fairness opinion in connection with the approval of the Merger because of (i) its
internal ability to value the business as against public comparables and other market index measures, (ii) its general exercise of its business judgment, and (iii) its knowledge that the valuation of Select Staffing reflected in the
proposed Merger, as well as other factors that our stockholders deem relevant, would be tested by the market and that 30% of our public stockholders could effectively veto the proposed Merger if they did not deem such valuation to be fair.
Therefore, our board of directors did not undertake the kind of in-depth analysis that a financial advisor would have undertaken in the rendering of a fairness opinion. Tegris Advisors LLC, our financial advisor, made a presentation to our board of
directors that included an analysis of public company comparables, an overview of favorable economic trends and a discussion of various
16
other components of our investment thesis, and also reviewed potential risks for our company. Our board of directors did not receive any other report or appraisal materially related to the Merger
or Select Staffing.
Our board of directors was cognizant of our termination date of January 23, 2010, but ultimately
evaluated the potential business combination with Select Staffing strictly on the quantitative and qualitative information regarding Select Staffing and its business that was available. Since completion of our initial public offering, the board has
been regularly kept apprised of potential business combination targets and managements discussions with and evaluation of such targets. As discussed above, we engaged in an ongoing and systematic search for potential business combination
candidates, deciding on our own accord in various situations to terminate discussions with potential candidates when it was determined by management that such candidates did not ultimately represent the investment opportunity that we wanted to
present to our stockholders.
The foregoing discussion of the information and factors considered by our board of directors is
not intended to be exhaustive, but includes the material factors considered by our board of directors. In view of the variety of factors considered in connection with its evaluation of the Merger, our board of directors did not find it practicable
to, and did not, quantify or otherwise assign relative weights to the specific factors considered in reaching its determination and recommendation. In addition, individual directors may have given differing weights to different factors. After
weighing all of the different factors, our board of directors unanimously approved the Merger and deemed it advisable and fair to, and in the best interests of, our stockholders, and recommends that our stockholders approve the Merger.
17
PROPOSALS TO BE CONSIDERED AT THE SPECIAL MEETING
The Extension Proposal
The Extension Proposal, if approved, will provide for the amendment of our current charter to extend the date by which we must complete a
business combination from January 23, 2010 to February 16, 2010, before our corporate existence terminates and we are required to liquidate our trust account and distribute the proceeds to holders of our Public Shares. A stockholders
approval of the Extension Proposal will also authorize us to amend the trust agreement entered into in connection with our initial public offering to extend the date by which the trust account established in connection with our initial public
offering must be liquidated to February 16, 2010.
Reasons for the Amendment
Commencing promptly upon completion of our initial public offering, we began to search for an appropriate business combination target. During
this process, we relied on numerous business relationships and contacted investment bankers, private equity funds, hedge funds, and legal and accounting firms. As a result of our extensive efforts, we initiated contact with over 500 potential
targets. Although we signed non-disclosure agreements relating to a number of these potential business combination opportunities, negotiations with all potential business combination candidates terminated for a variety of reasons. The current market
environment has made it difficult for us to not only take appropriate actions to complete the business combination on a timely basis, but to find a business combination that we felt was appropriate to present to our stockholders for approval.
On December 10, 2009, we and Select Staffing entered into the Merger Agreement, pursuant to which we will issue to
Select Staffings shareholders an aggregate of 24,723,000 shares of our common stock, subject to certain adjustments, and Select Staffing will become our wholly owned subsidiary.
Our charter currently provides that our corporate existence will automatically terminate if we do not complete a business combination by
January 23, 2010. The Merger is a business combination under our charter. We do not believe that we will be able to complete the Merger by that date.
We believe that the proposed extension will afford us and Select Staffing additional time to satisfy the conditions to the parties obligations to close the Merger, particularly our closing condition
that we are reasonably satisfied that we will obtain, no later than three business days after the closing, all historical (audited and unaudited) and pro forma financial statements with respect to Select Staffing, its subsidiaries and its prior
acquisitions, if any, together with any required consent(s) of independent public accountants, that are required to be included in the Current Report on Form 8-K that we will be required to file within four days of consummation of the Merger. Select
Staffing and its accountants have advised us that they do not expect that all of such required financial statements will be available until early February 2010. There can be no assurance that Select Staffing will be able to provide such financial
statements and consents of independent public accountants by February 16, 2010.
Our charter purports to prohibit
amendments to certain of its provisions, including any amendment that would extend the January 23, 2010 termination date. Our initial public offering prospectus did not suggest that this provision, or the charters other business
combination procedures, were subject to change. We believe that these provisions were included to protect our stockholders from having to sustain their investments for an unreasonably long period if we failed to find a suitable acquisition in the
timeframe contemplated by the charter. However, our board of directors also believes that the proposed Merger with Select Staffing is advisable and fair to, and in the best interests of, our stockholders, and that the extension of the date by which
we must complete the Merger to February 16, 2010 is in the best interests of our stockholders.
In the judgment of our
board of directors, the Extension Proposal is desirable for the following reasons:
|
|
|
Our board of directors believes that the Merger is advisable and fair to, and in the best interests of, our stockholders.
|
18
|
|
|
Since we and Select Staffing may not be able to complete the Merger by January 23, 2010, we need to extend the time for closing the Merger to
February 16, 2010.
|
We have received an opinion from our special Delaware counsel, Greenberg Traurig,
LLP, concerning the validity of the proposed amendment to our charter. We did not request Greenberg Traurig to opine on whether the clause currently contained in our charter prohibiting amendment of Article Sixth prior to consummation of a business
combination was valid when adopted. Greenberg Traurig concluded in its opinion, based upon the analysis set forth therein and its examination of Delaware law, and subject to the assumptions, qualifications, exceptions, legal considerations and
reasoning set forth in its opinion, that the proposed charter amendment, if duly adopted by our board of directors and duly adopted by the holders of a majority of the shares of our outstanding stock entitled to vote thereon, all in accordance with
Section 242(b) of the DGCL, would be valid and effective when the amendment is duly filed with the Delaware Secretary of State in accordance with Sections 103 and 242 of the DGCL. A copy of Greenberg Traurigs opinion is attached as Annex
A to this proxy statement, and stockholders are urged to review it in its entirety.
Pursuant to the Merger Agreement, the
approval of the Extension Proposal is a precondition to the consummation of the Merger. If the Merger is not consummated and we do not consummate a business combination by January 23, 2010 (February 16, 2010 if the Extension Proposal is
approved), we will be required to dissolve and liquidate our trust account and distribute the proceeds to holders of shares of our Public Shares.
Effect of the Extension Proposal
If the Extension Proposal is approved, an amendment to our charter changing
the defined term Termination Date from January 23, 2010 to February 16, 2010 will be filed with the Delaware Secretary of State as soon as possible following the special meeting. A copy of the amendment to our charter changing
the Termination Date is attached as Annex B to this proxy statement.
If the Extension Proposal is approved, we would continue
our efforts to complete the proxy statement relating to the Merger, which will involve:
|
|
|
finalizing the proxy materials which were submitted to the SEC with respect to the Merger and mailing such materials to stockholders;
|
|
|
|
holding a special meeting of stockholders for the purpose of considering the Merger and related proposals; and
|
|
|
|
working with Select Staffing towards the satisfaction of the conditions precedent to the consummation of the Merger set forth in the Merger Agreement.
|
While this timetable is independent of the Extension Proposal, there is a substantial possibility that we
will not be able to complete all of these tasks prior to our termination date unless the Extension Proposal is approved.
Rescission Rights
If you are a stockholder at the time of the Merger and you purchased your shares in our initial public offering and have
not exercised your conversion rights, you may have securities law claims against us for rescission (under which a successful claimant has the right to receive the total amount paid for his or her securities pursuant to an allegedly deficient
prospectus, plus interest and less any income earned on the securities, in exchange for surrender of the securities) or damages (compensation for loss on an investment caused by alleged material misrepresentations or omissions in the sale of a
security) on the basis of, for example, our initial public offering prospectus not disclosing that we may seek to amend our charter to extend our existence beyond January 23, 2010.
You should be aware that our charter and initial public offering prospectus stated that specific provisions in our charter, including the
provisions of Article Sixth setting forth that our corporate existence would automatically terminate if we did not consummate a business combination by January 23, 2010, would not be amended prior to the
19
consummation of an initial business combination without the affirmative vote of 95% of the outstanding shares of our common stock. Our initial public offering prospectus further stated that while
the validity under Delaware law of a 95% supermajority provision restricting the ability to amend our charter has not been settled, we would not take any actions to waive or amend any of those provisions.
These rescission claims may entitle stockholders asserting them to up to $10.00 per share, based on the initial offering price of the units
sold in our initial public offering, each comprised of one share of common stock and one warrant to purchase an additional share of common stock, less any amount received from the sale or fair market value of the original warrants purchased as part
of the units, plus interest from the date of our initial public offering. In the case of holders of Public Shares, this amount may be more than the pro rata portion of our trust account to which they are entitled upon exercise of their conversion
rights or upon our liquidation.
In general, a person who contends that he or she purchased a security pursuant to a
prospectus that contained a material misstatement or omission must make a claim for rescission within the applicable statute of limitations period, which, for claims made under Section 12 of the Securities Act of 1933, as amended, and some
state statutes, is one year from the time the claimant discovered or reasonably should have discovered the facts giving rise to the claim, but not more than three years from the occurrence of the event giving rise to the claim. A successful claimant
for damages under federal or state law could be awarded an amount to compensate for the decrease in value of his or her shares caused by the alleged violation (and, possibly, punitive damages), together with interest, while retaining the shares.
Claims under the anti-fraud provisions of the federal securities laws must generally be brought within two years of discovery, but not more than five years after occurrence. Rescission and damages claims would not necessarily be finally adjudicated
by the time the Merger is completed, and such claims would not be extinguished by consummation of the Merger.
Even if you do
not pursue such claims, others, who may include all other holders of Public Shares, may do so and may seek to have their claims satisfied from funds in the trust account. We cannot predict whether stockholders will bring such claims or whether such
claims would be successful. If the Extension Proposal results in our company incurring material liability as a result of potential securities law claims, the trust account could be depleted to the extent of any judgments arising from such claims,
together with any expenses related to defending such claims.
Certain Interests of Related Parties in the Extension Proposal
When you consider the recommendation of our board of directors in favor of approval of the Extension Proposal, you should
keep in mind that our directors and officers, as well as the underwriters of our initial public offering, have interests in the Extension Proposal and the Merger that are different from, or in addition to, your interests as a stockholder. These
interests include the following:
|
|
|
If the Merger is not consummated by January 23, 2010 (February 16, 2010 if the Extension Proposal is approved), our charter provides that our
corporate existence will automatically terminate and we must be dissolved and liquidated. In such event, the 5,000,000 shares purchased by our founders that were acquired prior to our initial public offering for an aggregate purchase price of
$20,000 would become worthless, as our founders have waived any right to receive liquidation distributions with respect to those shares. Such shares had an aggregate market value of $[ ] based upon the closing price of
$[ ] on the NYSE Amex on December 30, 2009, the record date for the special meeting of stockholders.
|
|
|
|
If the Merger is not consummated by January 23, 2010 (February 16, 2010 if the Extension Proposal is approved), our corporate existence will
automatically terminate and we must be dissolved and liquidated. In such event, the 6,900,000 warrants held by our directors, officers and their respective affiliates will expire worthless. The purchase of 5,800,000 of such warrants for an aggregate
purchase price of $5.8 million took place on a private placement basis immediately prior to the consummation of our initial public offering. All of the proceeds we received from this purchase were placed in our trust account. In addition, James N.
Hauslein and Gaurav V. Burman, executive officers and members of our
|
20
|
board of directors, subsequently purchased an aggregate of 1,100,000 warrants in the public market for approximately $121,000. The warrants held by our directors, officers and their respective
affiliates had an aggregate market value of $[ ], based on the closing price of $[ ] on the NYSE Amex on December 30, 2009, the record date.
|
|
|
|
It is currently anticipated that each of James N. Hauslein, Chairman of our board of directors and Chief Executive Officer, and Gaurav V. Burman, our
President, will be a member of our board of directors following the Merger.
|
|
|
|
James N. Hauslein and Gaurav V. Burman have personally agreed that, if we liquidate prior to the consummation of a business combination, they will be
personally liable to pay debts and obligations to target businesses or vendors or other entities that are owed money by us for services rendered or contracted for or products sold to us in excess of the net proceeds of our initial public offering
not held in our trust account, but only if, and to the extent, the claims reduce the amount in our trust account and only if such entities did not execute a valid and enforceable waiver. Based on our estimated debts and obligations, it is not
currently expected that Messrs. Hauslein and Burman will have any exposure under this arrangement in the event of our liquidation. Furthermore, Messrs. Hauslein and Burman will not have any personal liability (1) as to any claimed amounts owed
to a third party who executed a waiver (including a prospective target business), even if such waiver is subsequently found to be invalid or unenforceable, and (2) as to any claims under our indemnity of the underwriters of our initial public
offering against certain liabilities, including liabilities under the Securities Act of 1933, as amended.
|
|
|
|
If we are required to be liquidated and there are no funds remaining to pay the costs associated with the implementation and completion of such
liquidation, Messrs. Hauslein and Burman have agreed to advance to us the funds necessary to pay such costs and complete such liquidation (currently anticipated to be no more than approximately $15,000) and not to seek repayment for such expenses.
|
|
|
|
If the Merger is not consummated, Lazard Capital Markets and Morgan Stanley will not receive their deferred underwriting discounts and commissions in
connection with our initial public offering.
|
Required Vote
Approval of the Extension Proposal requires the affirmative vote of a majority of the shares of our common stock issued and outstanding as of
the record date.
Recommendation
OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE FOR THE APPROVAL OF THE EXTENSION PROPOSAL.
The Adjournment Proposal
The Adjournment Proposal, if adopted, will allow our board of directors to adjourn or postpone the special meeting of stockholders to a later date or dates to permit further solicitation of proxies. The Adjournment Proposal will only be
presented to our stockholders in the event, based on the tabulated votes, there are not sufficient votes at the time of the special meeting of stockholders to approve the Extension Proposal. In no event will we adjourn or postpone the special
meeting of stockholders beyond the date by which we may properly do so under our charter and Delaware law.
Consequences if the Adjournment
Proposal is Not Approved
If the Adjournment Proposal is not approved by our stockholders, our board of directors may not
be able to adjourn or postpone the special meeting to a later date in the event, based on the tabulated votes, there are not sufficient votes at the time of the special meeting to approve the Extension Proposal.
21
Required Vote
Approval of the Adjournment Proposal requires the affirmative vote of a majority of the issued and outstanding shares of our common stock represented in person or by proxy at the special meeting of
stockholders and entitled to vote thereon. Approval of the Adjournment Proposal is not conditioned upon the approval of the Extension Proposal.
Recommendation
OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE FOR THE
APPROVAL OF THE ADJOURNMENT PROPOSAL.
22
BENEFICIAL OWNERSHIP OF SECURITIES
The following table sets forth information regarding the beneficial ownership of our common stock as of December 18, 2009 by:
|
|
|
each person known by us to be the beneficial owner of more than 5% of our outstanding shares of common stock;
|
|
|
|
each of our executive officers and directors; and
|
|
|
|
all of our executive officers and directors as a group.
|
|
|
|
|
|
|
Name and Address of Beneficial Owner
|
|
Number of Shares of
Common Stock
Beneficially Owned (1)
|
|
Percentage of
Outstanding
Common Stock
Beneficially
Owned (2)
|
|
Officers and Directors:
|
|
|
|
|
|
James N. Hauslein (3)
|
|
2,373,914
|
|
10.4
|
%
|
Gaurav V. Burman (4)
|
|
515,353
|
|
2.3
|
%
|
Rohit M. Desai (5)
|
|
25,000
|
|
*
|
|
Robert A. Knox
|
|
25,000
|
|
*
|
|
Raj Mishra
|
|
25,000
|
|
*
|
|
All officers and directors as a group (5 individuals)
|
|
2,964,267
|
|
13.0
|
%
|
|
|
|
5% Stockholders:
|
|
|
|
|
|
Integrated Core Strategies (US) LLC (6)
|
|
2,218,669
|
|
8.9
|
%
|
Federated Investors, Inc. (7)
|
|
5,001,200
|
|
20.0
|
%
|
Basso Funds (8)
|
|
728,900
|
|
2.9
|
%
|
Arrowgrass Capital Partners (US) LP (9)
|
|
1,445,100
|
|
5.8
|
%
|
(1)
|
Unless otherwise indicated, we believe that all persons named in the table have sole voting and investment power with respect to all shares of common stock beneficially
owned by them. Except as otherwise stated, the business address of each of the beneficial owners is c/o Hauslein & Company, Inc., 11450 SE Dixie Highway, Suite 106, Hobe Sound, Florida 33455.
|
(2)
|
The percentages shown are calculated based on 25,000,000 shares of common stock outstanding on December 18, 2009.
|
(3)
|
Includes 17,391 shares held by the Diane G. Hauslein Trust, of which Mr. Hauslein is the trustee. Excludes the 2,900,000 insider warrants held by
Mr. Hauslein, which are not exercisable until our consummation of a business combination. Diane G. Hauslein is Mr. Hausleins sister.
|
(4)
|
All such shares are held by Elephant North America Limited, a holding company beneficially owned by Mr. Burman. Excludes the 287,500 insider warrants held by
Elephant North America Limited, which are not exercisable until our consummation of a business combination.
|
(5)
|
All such shares are held by the Irrevocable Trust #1 for Descendants of Rohit Desai, of which Mr. Desais wife is the trustee. Mr. Desai disclaims
beneficial ownership of all of such shares.
|
(6)
|
Based on a Schedule 13G/A filed on November 3, 2008 with the SEC jointly by Integrated Core Strategies (US) LLC, Millennium Management LLC, and Israel A.
Englander. All such shares are held by Integrated Core Strategies (US) LLC. Millennium Management LLC is the manager of Integrated Core Strategies (US) LLC, and Israel A. Englander is the managing member of Millennium Management
LLC. Integrated Core Strategies (US) LLC, Millennium Management LLC, and Israel A. Englander each exercise shared voting and dispositive power over all such shares. The address of Integrated Core Strategies (US) LLC is 666 Fifth
Avenue, New York, New York 10103.
|
(7)
|
Based on a Schedule 13G filed on February 11, 2008 with the SEC jointly by Federated Investors, Inc., Voting Shares Irrevocable Trust, John
F. Donahue, Rhodora J. Donahue, and J. Christopher Donahue. All such shares are held by Federated Investors, Inc. Voting Shares Irrevocable Trust, John F. Donahue,
|
23
|
Rhodora J. Donahue, and J. Christopher Donahue are the holders of all the outstanding voting stock of Federated Investors, Inc. Federated Investors, Inc. and Voting Shares Irrevocable Trust
each exercise sole voting and dispositive power over all such shares. John F. Donahue, Rhodora J. Donahue, and J. Christopher Donahue each exercise shared voting and dispositive power over all such shares. The address of Federated Investors, Inc. is
Federated Investors Tower, Pittsburg, Pennsylvania 15222.
|
(8)
|
Based on a Schedule 13G filed on February 17, 2009 with the SEC jointly by Basso Fund Ltd., Basso Multi-Strategy Holding Fund Ltd., Basso Capital Management,
L.P., Basso GP, LLC, Howard Fischer, Philip Platek, John Lepose, and Dwight Nelson. All such shares are held by Basso Multi-Strategy Holding Fund Ltd. Basso Capital Management, L.P. is the investment manager of Basso Multi-Strategy Holding Fund Ltd.
and Basso GP, LLC is the general partner of Basso Capital Management, L.P. Howard Fischer, Philip Platek, John Lepose, and Dwight Nelson are controlling persons of Basso GP, LLC. Basso Multi-Strategy Holding Fund Ltd., Basso Capital Management,
L.P., Basso GP, LLC, Howard Fischer, Philip Platek, John Lepose, and Dwight Nelson each exercise shared voting and dispositive power over all such shares. The address of the Basso Multi-Strategy Holding Fund Ltd. is 1266 East Main Street, Fourth
Floor, Stamford Connecticut 06902.
|
(9)
|
Based on a Schedule 13G filed on November 12, 2009 with the SEC jointly by Arrowgrass Capital Partners (US) LP and Arrowgrass Capital Services (US) Inc. All such
shares are held by Arrowgrass Capital Partners (US) LP. Arrowgrass Capital Services (US) Inc. is the general partner of Arrowgrass Capital Partners (US) LP. Arrowgrass Capital Partners (US) LP and Arrowgrass Capital Services (US) Inc. each exercise
shared voting and dispositive power over all such shares. The address of Arrowgrass Capital Partners (US) LP is 245 Park Avenue, New York, New York 10167.
|
24
DELIVERY OF DOCUMENTS TO STOCKHOLDERS
Pursuant to the rules of the SEC, our company and services that we employ to deliver communications to our stockholders are permitted to
deliver to two or more stockholders sharing the same address a single copy of this proxy statement. Upon written or oral request, we will deliver promptly a separate copy of this proxy statement to any stockholder at a shared address to which a
single copy of the proxy statement was delivered and who wishes to receive separate copies in the future. Stockholders receiving multiple copies of this proxy statement may likewise request that we deliver single copies in the future. Stockholders
may notify us of their requests by calling or writing our proxy solicitation agent at the following address and telephone number:
Karen Smith
Advantage Proxy
24925 13th Place South
Des Moines, Washington 98198
Toll Free Telephone: (877) 870-8565
FUTURE STOCKHOLDER PROPOSALS
If the Merger is
not consummated prior to January 23, 2010 (February 16, 2010 if the Extension Proposal is approved), we will be required to dissolve and liquidate and will conduct no annual meetings thereafter. If the Merger is consummated, we expect to hold
our initial annual meeting of stockholders in January 2011 unless the date is changed by our then board of directors. Proposals to be included in the proxy statement for the 2011 annual meeting must be provided to us by no later than the later of
(i) a reasonable time before we begin to print and send our proxy materials for the meeting, which we expect to occur in November 2010, or (ii) the tenth day following the date on which we publicly announce the date of the 2011 annual
meeting. You should direct any proposals to our corporate secretary at our principal executive office.
WHERE YOU CAN FIND MORE INFORMATION
This proxy statement refers to certain of our contracts, agreements and other
documents that are attached as annexes to this proxy statement. Such references are not necessarily complete, and you should refer to the annexes for copies of the actual document. This proxy statement also refers to certain of our contracts,
agreements and other documents that are not attached as annexes to this proxy statement. Such references are not necessarily complete, and you should refer to the actual contract, agreement or other document, copies of which have been filed with our
SEC filings and are available as described below.
We file reports, proxy statements and other information with the SEC as
required by the Exchange Act of 1934, as amended. You can read our SEC filings, including our proxy statement, over the Internet at the SECs website at www.sec.gov. You may also read and copy any document we file with the SEC at the SEC public
reference room located at 100 F Street, N.E., Room 1580 Washington, D.C., 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. You may also obtain copies of the materials described
above at prescribed rates by writing to the SEC, Public Reference Section, 100 F Street, N.E., Washington, D.C. 20549.
If you
would like additional copies of this proxy statement or if you have questions about the Extension Proposal, you should contact our proxy solicitation agent at the following address and telephone number:
Karen Smith
Advantage Proxy
24925 13th Place South
Des Moines, Washington 98198
Toll Free Telephone: (877) 870-8565
25
If you are a stockholder of our company and would like to request documents, please do so by
[ ] to receive them before the special meeting. If you request any documents from us, we will mail them to you by first class mail, or another equally prompt means.
All information contained in this proxy statement relating to our company has been supplied by us, and all such information relating to
Select Staffing has been supplied by Select Staffing.
This document is a proxy statement of our company for the special
meeting of stockholders. We have not authorized anyone to give any information or make any representation about the Merger, Select Staffing or our company that is different from, or in addition to, that contained in this proxy statement. Therefore,
if anyone does give you information of this sort, you should not rely on it. The information contained in this document speaks only as of the date of this document unless the information specifically indicates that another date applies.
26
Annex A
December , 2009
Atlas Acquisition Holdings Corp.
c/o
Hauslein & Company, Inc.
11450 SE Dixie Highway, Suite 106
Hobe Sound, Florida 33455
Ladies and Gentlemen:
We have acted as special Delaware counsel for Atlas Acquisition Holdings Corp., a Delaware corporation (the
Corporation
),
solely with respect to the validity of the proposed amendments to the certificate of incorporation of the Corporation described herein under the General Corporation Law of the State of Delaware, 8
Del. C.
§§ 101
et seq.
(the
General Corporation Law
). At your request, this opinion is being furnished to you.
For purposes of
rendering our opinion as stated herein, we have been furnished with and have reviewed the following documents:
(a) The Amended and Restated Certificate of Incorporation of Atlas Acquisition Holdings Corp., as filed with the Secretary of State of the State of Delaware (the
Secretary of State
), on January 23, 2008 (the
Certificate of Incorporation
);
(b) The Bylaws of the Corporation as in effect on the date
hereof (the
Bylaws
);
(c) The Corporations registration statement on Form S-1 (Reg.
No. 333-146368) filed with the Securities and Exchange Commission (the
SEC
), on September 28, 2007 and effective January 23, 2008 (the
Registration Statement
), in connection with the
Corporations initial public offering;
(d) The proposed form of Certificate of Amendment of the Amended
and Restated Certificate of Incorporation of Atlas Acquisition Holdings Corp., as attached hereto and incorporated herein by reference as
Exhibit A
(the
Amendment
);
(e) The Agreement and Plan of Merger (the
Merger Agreement
), dated as of December 10, 2009, by and
among the Corporation, Koosharem Corporation, a California corporation, and New Koosharem Corporation, a California corporation (
Newco
);
(f) The preliminary proxy statement filed with the SEC on December 18, 2009 in connection with the Amendment; and
(g) An Officers Certificate for the Corporation, dated as of the date hereof, with respect to certain matters, together
with the documents or instruments attached thereto as exhibits.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (g) above, and we express no opinion with respect to any such other documents. In particular, we have not reviewed any document (other than the documents listed in
paragraphs (a) through (g) above) that is referred to or incorporated by reference into any document reviewed by us. We have conducted no independent factual investigation of our own but rather have relied as to factual matters solely upon
the foregoing documents, the statements and information set forth therein, and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) that all signatures on documents examined by us are genuine,
(ii) the legal capacity under all applicable laws and regulations of all natural persons signing each of said documents as or on behalf of the parties thereto, (iii) all documents submitted to us as originals are authentic, and
(iv) that all documents submitted to us as copies conform with the originals of those documents.
A-1
This opinion is limited to the General Corporation Law as in effect on the date hereof, and
we have not considered and express no opinion on any other laws, rules, or regulations of the State of Delaware, or the laws, rules, or regulations of any other state or jurisdiction, including federal laws (including federal bankruptcy laws), or
laws regulating securities or the rules and regulations of any stock exchange or other regulatory body.
BACKGROUND
We have been advised, and therefore assume for purposes hereof, that: (i) pursuant to the Merger Agreement, at
the Effective Time (as defined in the Merger Agreement), Newco will be merged with and into the Corporation, with the Corporation as the surviving corporation (the
Merger
); (ii) the Corporation has considered and analyzed
numerous acquisition opportunities in its search for a business combination, none of which were believed to be as attractive to the public stockholders as that contemplated by the Merger Agreement, including, without limitation, the Merger; and
(iii) the Merger constitutes a Business Combination as defined in Article SEVENTH of the Certificate of Incorporation.
1
Article SIXTH of the Certificate of Incorporation provides that the Corporations existence shall terminate on January 23, 2010 (the
Termination Date
). Article SIXTH also purports to limit the
ability of the Corporation to amend Article SIXTH to change the Termination Date. Article SIXTH provides as follows:
The
Corporations existence shall terminate on January 23, 2010 (the
Termination Date
). This provision may only be amended (a) in connection with, and become effective upon, the consummation of a Business Combination or
(b) with the affirmative vote of at least 95% of the outstanding shares of Common Stock
2
of the Corporation issued in the IPO
3
entitled to vote generally, voting together as a single class. A proposal to so amend this Article SIXTH shall be submitted to stockholders in connection with any proposed Business Combination pursuant
to paragraph A of Article SEVENTH below.
With respect to the submission of a Business Combination to the stockholders of the
Corporation, paragraph A of Article SEVENTH provides in relevant part as follows:
Prior to the consummation of any Business
Combination, the Corporation shall submit such Business Combination to its stockholders for approval in accordance with this paragraph A regardless of whether the Business Combination is of a type which normally would require such stockholder
approval under the [General Corporation Law] or other applicable law. In addition to any affirmative vote required by law and/or a Preferred Stock Designation, if any, the affirmative vote of at least a majority in voting power of the outstanding
shares of the Common Stock of the Corporation issued in the IPO entitled to vote generally, voting together as a single class, shall be required for the Corporation to consummate any Business Combination.
Article SIXTH of the Certificate of Incorporation therefore purports to (i) prohibit the Corporation from amending Article SIXTH of the
Certificate of Incorporation
other than
in connection with, and [ ] effective upon, the consummation of a Business Combination by the stockholder vote required by the General
1
|
Business Combination is defined in Article SEVENTH of the Certificate of Incorporation as the acquisition by the Corporation of are or more operating
businesses whose fair market value, individually or collectively, is equal to at least 80% of the Trust Fund (excluding deferred underwriting discounts and commissions) at the time of such business combination, although this may entail simultaneous
acquisitions of several operating businesses (each, a
Target Business
), through a merger, capital stock exchange, stock or asset acquisition, exchangeable share transaction, reorganization or similar business combination,
and is hereinafter referred to as a
Business Combination
.
|
2
|
Common Stock is defined in Article FOURTH of the Certificate of Incorporation as Common Stock of the par value of $0.001 per share
and is
hereinafter referred to as the
Common Stock
.
|
3
|
IPO is defined in the second paragraph of Paragraph B of Article FOURTH of the Certificate of Incorporation as the Corporations
initial public offering and is hereinafter referred to as the
IPO
.
|
A-2
Corporation Law (a majority of the outstanding stock of the Corporation entitled to vote thereon), and (ii) require the affirmative vote of at least 95% of the outstanding shares of
Common Stock of the Corporation issued in the IPO to amend Article SIXTH of the Certificate of Incorporation at any other time.
See also
Registration Statement at 10 & 52. We understand, and therefore assume for purposes of the
opinion set forth herein, that (i) the purpose and intent of the language in Article SIXTH(a) of the Certificate of Incorporation is in fact to prohibit amendments to Article SIXTH by the stockholder vote required by the General Corporation Law
(a majority of the outstanding stock of the Corporation entitled to vote thereon) other than in connection with, and [ ] effective upon, the consummation of a Business Combination, and (ii) requiring the
affirmative vote of 95% of the outstanding shares of Common Stock of the Corporation issued in the IPO to amend the Certificate of Incorporation as provided in Article SIXTH(b) of the Certificate of Incorporation effectively eliminates the
Corporations power to amend the Certificate of Incorporation. Thus, Article SIXTH of the Certificate of Incorporation purports to eliminate the Corporations (and consequently its Board of Directors and stockholders) power to
amend Article SIXTH prior to the consummation of a Business Combination.
You have asked us to consider (i) whether
Article SIXTH may
only
be amended by the stockholder vote required by the General Corporation Law (a majority of the outstanding stock of the Corporation entitled to vote thereon) in connection with, and [ ]
effective upon, the consummation of a Business Combination, and (ii) whether the affirmative vote of at least 95% of the outstanding shares of Common Stock of the Corporation issued in the IPO entitled to vote generally, voting together
as a single class, is required to amend Article SIXTH of the Certificate of Incorporation as contemplated by the Amendment at any other time. In that connection, you have asked our opinion as to the vote of stockholders of the Corporation required
to amend Article SIXTH of the Certificate of Incorporation as contemplated by the Amendment.
OPINION
Based upon the assumptions, qualifications, exceptions, legal considerations, and reasoning set forth herein, it is our opinion that the
Amendment, if duly adopted by the Board of Directors of the Corporation (by vote of a majority of the directors present at a duly called and noticed meeting at which a quorum is present or, alternatively, by unanimous written consent) and duly
adopted by a majority of the outstanding capital stock of the Corporation entitled to vote thereon, all in accordance with Section 242(b) of the General Corporation Law, would be valid and effective when the Amendment is duly filed with the
Secretary of State in accordance with Sections 103 and 242 of the General Corporation Law.
LEGAL ANALYSIS
Before the receipt of payment for its capital stock, a Delaware corporation may, by action of its incorporators or
board of directors, as applicable, amend its certificate of incorporation. 8
Del. C.
§ 241. After the corporation has received payment for any of its capital stock,
it may amend its certificate of incorporation, from time to time, in any and as many respects as may be desired, so long as its certificate
of incorporation as amended would contain only such provisions as it would be lawful and proper to insert in an original certificate of incorporation filed at the time of the filing of the amendment....
8
Del. C.
§ 242(a). Although Section 242(a) of the General Corporation Law sets forth examples of types of amendments that may be made to
the certificate of incorporation of a Delaware corporation, Section 102 of the General Corporation Law establishes what is lawful and proper to insert in an original certificate of incorporation.
See
8
Del. C.
§
102. In particular, Section 102(b)(4) of the General Corporation Law expressly allows the certificate of incorporation of a Delaware corporation to contain [p]rovisions requiring for any corporate action, the vote of a larger portion of
the stock or of any class or series thereof
than is required by this chapter
,
id.
at § 102(b)(4), and Section 102(b)(1) of the General Corporation Law permits the certificate of incorporation of a Delaware
corporation to contain [a]ny provision for the management of the business and
A-3
for the conduct of the affairs of the corporation, and any provision creating, defining, limiting and regulating the powers of the corporation, the directors, and the stockholders as long
as such provisions are not contrary to the laws of this State,
id.
at § 102(b)(1).
Any amendment to
the certificate of incorporation after the corporation has received payment for any of its capital stock must be authorized as provided in Section 242(b) of the General Corporation Law.
Id.
at § 242(b) ([e]very
amendment authorized by subsection (a) of this section
shall
be made and effected in the [ ] manner provided in Section 242(b)(1)) (emphasis added). Section 242(b) of the General Corporation Law
provides that the board of directors
shall
adopt a resolution setting forth the amendment proposed, declaring its advisability, and either calling a special meeting of the stockholders entitled to vote in respect thereof for the
consideration of such amendment or directing that the amendment proposed be considered at the next annual meeting of the stockholders.
Id.
at § 242(b)(1) (emphasis added). Further, any such amendment must be adopted by a
majority of the outstanding stock entitled to vote thereon, and a majority of the outstanding stock of each class entitled to vote thereon as a class
,
4
subject to any larger vote enumerated by the certificate of incorporation.
Id.
at § 242(b)(1);
id.
at § 102(b)(4);
see also Williams v. Geier
, 671 A.2d 1368, 1379 (Del. 1996) (The recommendation by a board of directors of the advisability of a charter amendment is merely the first step under the organic, statutory scheme of 8
Del. C.
§ 242, which authorizes amendments to certificates of incorporation. The second step the stockholder vote pursuant to which an amendment is approved [is also required].);
Lions Gate Entmt Corp. v.
Image Entmt Inc.
, C.A. No. 2011-N, 2006 WL 1668051, at *7 (Del. Ch. June 5, 2006) (concluding that to the extent that a certificate of incorporation provision purports to give the [ ] board the power
to amend the charter unilaterally without a shareholder vote, it contravenes Delaware law and is invalid). Finally, once an amendment to the certificate of incorporation has been so authorized by the board of directors and the stockholders,
a certificate setting forth the amendment
shall
be executed, acknowledged and filed and
shall
become effective in accordance with § 103 of this title. 8
Del. C.
§ 242(b)(1) (emphasis added).
Thus, Section 242(a) of the General Corporation Law grants a Delaware corporation broad statutory power to amend its
certificate of incorporation, to the extent authorized by the board of directors and stockholders in accordance with Section 242(b) of the General Corporation Law.
Id
. at § 242. Nothing in Section 242 (governing amendments) or
Section 102(b)(4) (permitting a certificate of incorporation to require a larger vote of stockholders than required by the General Corporation Law) of the General Corporation Law, however, suggests that a Delaware corporations power to
amend its certificate of incorporation may be entirely eliminated. Indeed, the use of the word shall in Section 242(b) of the General Corporation Law [e]very amendment authorized by section (a) of
[ ] section [242]
shall be made and effected
as provided therein suggests that the stockholder vote required by Section 242(b) may not be eliminated.
See id.
at § 242(b) (emphasis added);
Williams
, 671 A.2d at 1381 ([I]t is significant that two discrete corporate events must occur, in precise sequence, to amend the certificate of incorporation under 8
Del
.
C
. § 242: First, the board of directors must
adopt a resolution declaring the advisability of the amendment and calling for a stockholder vote. Second, a majority of the outstanding stock entitled to vote must vote in favor. The stockholders may not act without prior board action. Likewise,
the board may not act unilaterally without stockholder approval.).
The Court of Chancery of the State of Delaware, in
dicta
, indicated, moreover, that a Delaware corporations power to amend its certificate of incorporation is fundamental, also suggesting that a complete elimination of the stockholder vote required by Section 242(b) of
the General Corporation Law is impermissible.
See Jones Apparel Group, Inc. v. Maxwell Shoe Co., Inc.
, 883 A.2d 837, 852 (Del. Ch. May 27, 2004) (referring, in
dicta
, to the fundamental subject[ ] of
certificate amendments). That a Delaware corporations ability to amend its certificate of incorporation is fundamental is supported by other decisions of the Delaware courts.
Hartford Accident & Indemnity Co. v.
W.S. Dickey Clay Mfg. Co.
, 24 A.2d 315, 319-20 (Del. Ch. 1942) (except in extremely limited circumstances, a stockholder vote is
always
necessary to the adoption of a charter amendment);
see also Farahpour v. DCX, Inc.
, 635 A.2d
894, 898 (Del. 1994) (an amendment to a corporations certificate of incorporation by board resolution or director action alone is a course not permissible for a
4
|
As referenced above, we understand and assume for purposes hereof, that solely Common Stock is currently outstanding.
|
A-4
corporation with capital stock). The single exception for director-alone approval is where the corporation has not yet received payment for any of its capital stock. 8
Del. C.
§
241;
Farahpour
, 635 A.2d at 898.
Further, the Delaware Supreme Court narrowly limits certificate of incorporation
provisions providing for the vote of a larger portion of the stock
than is required by th[e] [General Corporation Law] under Section 102(b)(4) of the General Corporation Law.
See
8
Del. C.
§ 102(b)(4).
According to the Delaware Supreme Court, high vote requirements which purport to protect minority shareholders by disenfranchising the majority, must be clear and unambiguous and [t]here must be no doubt that the shareholders
intended that a supermajority would be required.
Centaur Partners, IV v. Natl Intergroup, Inc.
, 582 A.2d 923, 927 (Del. 1990). This conclusion is consistent with Delawares general policy against
disenfranchisement, and further supports the conclusion that a complete prohibition on the corporations ability to amend its certificate of incorporation is invalid.
See Frankino v. Gleason
, C.A. No. 17399, 1999 WL 1032773,
*4 (Del. Ch. Nov. 5, 1999) (upholding an 80% vote bylaw amendment provision as consistent with Delawares general policy against disenfranchisement) (citing
Blasius Indus. v. Atlas Corp.
, 564 A.2d 651, 669 (Del.
Ch. 1988)). Further, while the Delaware courts have upheld clear and unambiguous provisions of certificates of incorporation requiring the vote of 75% and 80% of the corporations stockholders to amend the certificate of
incorporation,
Sellers v. Joseph Bancroft & Sons Co.
, 2 A.2d 108 (Del. Ch. 1938) (75% vote) and
Centaur Partners, IV
, 582 A.2d at 927-28 (80% vote), respectively, the Court of Chancery has questioned the validity of an
absolute prohibition on the right of a Delaware corporation to amend its certificate of incorporation. Although not asked to answer this question, the Court remarked as follows:
When seventy-five per cent. [sic] or more of the preferred shares undertake to alter the one hundred per cent. [sic] provision, if ever, it
will then be time to consider whether it is permissible for a corporation in exercising the power conferred by [the predecessor to Section 102(b)(4) of the General Corporation Law] to make a charter provision practically irrepealable by raising
the statutory rule of the majority found in [the predecessor to Section 242 of the General Corporation Law] to as high as one hundred per cent [sic].
Sellers
, 2 A.2d at 26.
Cases interpreting Section 102(b)(1) of the
General Corporation Law are also relevant and instructive. Section 102(b)(1) of the General Corporation Law permits the certificate of incorporation of a Delaware corporation to contain:
Any provision for the management of the business and for the conduct of the affairs of the corporation, and any provision creating, defining,
limiting and regulating the powers of the corporation, the directors, and the stockholders, or any class of the stockholders
;
if such provisions are not contrary to the laws of this State
.
8
Del. C.
§ 102(b)(1) (emphasis added). The ability of a certificate of incorporation provision to limit the powers of the corporation or its
directors and/or stockholders is therefore not without its limits. While Section 102(b)(1) provides wide room for private ordering authorized by the [General Corporation Law], when such private ordering is reflected in the corporate
charter,
Jones Apparel,
883 A.2d at 838, to the extent a certificate of incorporation provision adopted pursuant to Section 102(b)(1) of the General Corporation Law contravenes a mandatory rule of our corporate
code, it is invalid,
id.
at 846. That is, certificate of incorporation provisions that transgress a statutory enactment or a public policy settled by the common law or implicit in the General Corporation Law itself are
deemed contrary to the laws of Delaware
. Sterling v. Mayflower Hotel Corp.
, 93 A.2d 107, 118 (Del. Ch. 1952);
see also Rohe v. Reliance Training Network
, 2000 WL 1038190, at *11 (Del. Ch. July 21, 2000) (finding that the company
must hold an annual meeting for the election of directors because the stockholders statutory right to removal cannot be impaired by a certificate of incorporation, and a provision that purports to do so is invalid under Delaware law).
According to the Delaware Court of Chancery, in evaluating a provision of the certificate of incorporation under Section 102(b)(1) of the General Corporation Law,
the court must determine, based on a careful, context-specific review in keeping with
Sterling
, whether a particular certificate provision contravenes Delaware public policy, i.e., our law, whether
it be in the form of statutory or common law.
A-5
Jones Apparel
, 883 A.2d at 848. Given the fundamental nature of a Delaware corporations ability
to amend its certificate of incorporation as established by Section 242 of the General Corporation Law, as well as Delawares policy against disenfranchisement, a certificate of incorporation provision completely eliminating
the corporations right to amend its certificate of incorporation appears invalid. Accordingly, the language in Article SIXTH of the Certificate of Incorporation purporting to require the affirmative vote of at least 95% of the
outstanding shares of Common Stock of the Corporation issued in the IPO to amend with Article SIXTH other than in connection with, and [ ] effective upon, the consummation of a Business Combination is
invalid.
An invalid provision is [n]ot legally binding.
B
LACK
S
L
AW
D
ICTIONARY
829 (7
th
ed. 1999). Where a charter provision is declared invalid or void by a court, the court refuses to give it legal effect.
Marmon v. Arbinet-Thexchange, Inc.
, C.A.
No. 20092, 2004 WL 936512, at *5 n. 12 (Del. Ch. Apr. 28, 2004) (A charter provision that conflicts with a statute is void.);
Loews Theatres
,
Inc
.
v. Commercial Credit Co.
, 243 A.2d 78 (Del. Ch. 1968)
(invalidating charter provision limiting the right to inspect books and records of corporation to those shareholders holding 25% of the corporations stock);
State ex rel. Cochran v. Penn-Beaver Oil Co.
, 143 A. 257 (Del. 1926) (noting
that any charter provision limiting disclosure is void to the extent that it abridges shareholder inspection rights under § 220). The invalid or void provision constitutes no part of the certificate of incorporation, or charter, and
should be rejected as surplusage.
State ex rel. Cochran
, 143 A. at 259.
Section 394 of the General
Corporation Law provides that [t]his chapter and all amendments thereof shall be a part of the charter or certificate of incorporation of every corporation. 8
Del. C.
§ 394. Section 394 therefore engrafts the provisions
of the General Corporation Law into every certificate of incorporation. Where a certificate of incorporation is silent as to a matter covered by the General Corporation Law, the General Corporation Law is deemed to have been incorporated into the
certificate of incorporation.
Jones Apparel
, 883 A.2d at 842 (noting that if the certificate of incorporation at issue did not include a provision governing record dates for consent solicitations, then Section 394 would incorporate the
terms of Section 213(b) of the General Corporation Law into the certificate of incorporation). Because the 95% vote requirement of Article SIXTH of the Certificate of Incorporation is invalid and should therefore be rejected
as surplusage,
State ex rel. Cochran
, 143 A. at 259, the provisions of Section 242 of the General Corporation Law should, by operation of Section 394 thereof, be deemed to be incorporated into the Certificate of Incorporation
to require the approval and adoption of the Amendment by the Board of Directors and a majority of the outstanding capital stock of the Corporation entitled to vote thereon.
See
8
Del. C
. § 394,
id
. at § 242.
* * *
This opinion speaks only as of the date hereof and is based on the application of the General Corporation Law as the same exists as of the
date hereof, and we undertake no obligation to update or supplement this opinion after the date hereof for the benefit of any person or entity with respect to any facts or circumstances that may hereafter come to our attention or any changes in
facts or law that may hereafter occur or take effect.
This opinion is rendered for your benefit in connection with the
matters addressed herein. We understand that you may furnish a copy of this opinion letter to the SEC in connection with the matters addressed herein. We further understand that you may include this opinion letter as an Annex to your proxy statement
for the special meeting of stockholders of the Corporation to consider and vote upon the Amendment, and we consent to your doing so. Except as stated in this paragraph, this opinion letter may not be furnished or quoted to, nor may the foregoing
opinion be relied upon by, any other person or entity for any purpose without our prior written consent.
Very Truly Yours,
GREENBERG TRAURIG, LLP
A-6
EXHIBIT A
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ATLAS ACQUISITION HOLDINGS CORP.
Atlas Acquisition Holdings Corp. (the
Corporation
), a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, does hereby certify as follows:
1. The certificate of incorporation of the
Corporation is hereby amended by deleting Article SIXTH thereof in its entirety and substituting the following in lieu thereof:
SIXTH
: The Corporations existence shall terminate on February 16, 2010 (hereinafter, the
Termination Date
).
2. The foregoing amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be executed and acknowledged by
its Chief Executive Officer on this day of , 2010.
|
|
|
ATLAS ACQUISITION HOLDINGS CORP.
|
|
|
By:
|
|
|
Name:
|
|
James N. Hauslein
|
Title:
|
|
Chief Executive Officer
|
A-7
Annex B
FORM OF
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ATLAS ACQUISITION HOLDINGS CORP.
Atlas Acquisition Holdings Corp. (the
Corporation
), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify
as follows:
1. The certificate of incorporation of the Corporation is hereby amended by deleting Article SIXTH thereof in its
entirety and substituting the following in lieu thereof:
SIXTH
: The Corporations existence
shall terminate on February 16, 2010 (hereinafter, the
Termination Date
).
2. The foregoing
amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be executed and acknowledged by its Chief Executive Officer on this
day of , 2010.
|
|
|
ATLAS ACQUISITION HOLDINGS CORP.
|
|
|
By:
|
|
|
Name:
|
|
James N. Hauslein
|
Title:
|
|
Chief Executive Officer
|
B-1
SUBJECT TO COMPLETION, DATED DECEMBER 18, 2009
SPECIAL MEETING OF STOCKHOLDERS OF
ATLAS ACQUISITION HOLDINGS CORP.
January 20, 2010
Please sign, date and mail
your proxy card in the
envelope provided as soon
as possible.
i
Please detach along perforated line and mail in the envelope provided.
i
THIS PROXY WILL BE VOTED AS DIRECTED. IF NO DIRECTIONS ARE GIVEN WITH
RESPECT TO A PROPOSAL, THIS PROXY WILL BE VOTED FOR SUCH PROPOSAL.
THE BOARD OF DIRECTORS OF ATLAS
ACQUISITION HOLDINGS CORP. RECOMMENDS A VOTE FOR EACH OF THE PROPOSALS.
PLEASE SIGN, DATE AND RETURN
PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
To change the address on your account, please check the box at right and indicate your new address in the
address space above. Please note that changes to the registered name(s) on the account may not be submitted via this method.
|
|
¨
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FOR
|
|
AGAINST
|
|
ABSTAIN
|
1.
|
|
To approve an amendment to the amended and restated certificate of incorporation of Atlas Acquisition Holdings Corp. (Atlas) to extend the date by which Atlas must
complete a business combination from January 23, 2010 to February 16, 2010.
|
|
¨
|
|
¨
|
|
¨
|
2.
|
|
To approve any adjournment or postponement of the special meeting of stockholders for the purpose of soliciting additional
proxies.
|
|
¨
|
|
¨
|
|
¨
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature of Stockholder
|
|
|
|
Date:
|
|
|
|
Signature of Stockholder
|
|
|
|
Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
n
|
|
Note:
|
|
Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator,
attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by
authorized person.
|
|
n
|
n
ATLAS ACQUISITION HOLDINGS CORP.
SPECIAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF ATLAS ACQUISITION HOLDINGS CORP.
The undersigned
stockholder of Atlas Acquisition Holdings Corp. (the Company) hereby appoints James N. Hauslein and Gaurav V. Burman, and each of them, proxies and attorneys-in-fact, with full power to each of substitution, on behalf and in the name of
the undersigned, to represent the undersigned at the Special Meeting of Stockholders of the Company, to be held on Wednesday, January 20, 2010, at 10:30 a.m., Eastern time, at the offices of Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue,
New York, New York 10166 and at any adjournment or postponement thereof, and to vote all shares of the Companys common stock that the undersigned would be entitled to vote if then and there personally present, on the matters set forth on the
reverse side.
THIS PROXY REVOKES ALL PRIOR PROXIES GIVEN BY THE UNDERSIGNED.
THIS PROXY WILL BE VOTED AS DIRECTED. IF NO DIRECTIONS ARE GIVEN WITH RESPECT TO A PROPOSAL, THIS PROXY WILL BE VOTED FOR SUCH PROPOSAL. THE
BOARD OF DIRECTORS OF ATLAS ACQUISITION HOLDINGS CORP. RECOMMENDS A VOTE FOR EACH OF THE PROPOSALS SHOWN ON THE REVERSE SIDE OF THIS PROXY CARD.
|
|
|
|
|
|
|
n
|
|
|
|
(Continued and to be signed on the reverse side.)
|
|
n
|
Atlas Acquistion Hldg Corp (AMEX:AXG)
Gráfico Histórico do Ativo
De Abr 2024 até Mai 2024
Atlas Acquistion Hldg Corp (AMEX:AXG)
Gráfico Histórico do Ativo
De Mai 2023 até Mai 2024