UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________
FORM
10-K
|
x
|
Annual
Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
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For the
fiscal year ended
December 31,
2008
|
o
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Transition
Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
|
For the
transition period from ______________to ______________
Commission
File Number
001-33814
TREMISIS
ENERGY ACQUISITION CORPORATION II
(Name of
Registrant as Specified in Its Charter)
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Delaware
(State
or Other Jurisdiction
of
Incorporation or Organization)
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30-0485452
(I.R.S.
Employer
Identification
Number)
|
|
545-7
Dogok-Dong
SoftForum B/D, 7th Floor
Gangnam-Gu, Seoul, South Korea
(Address
of Principal Executive Offices)
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135-270
(Zip
Code)
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(82)(2)
575-0466
(Registrant’s
Telephone Number, Including Area Code)
Securities
Registered Pursuant to Section 12(b) of the Act:
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Title of Each Class
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Name of Each Exchange on Which
Registered
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Units
consisting of one share of Common Stock, par value $.0001 per share, and
one Warrant
|
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NYSE
Alternext US LLC
|
|
Common
Stock, $.0001 par value per share
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NYSE
Alternext US LLC
|
|
Warrants
to purchase shares of Common Stock
|
|
NYSE
Alternext US LLC
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Securities
Registered Pursuant to Section 12(g) of the Act:
None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes
o
No
x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. Yes
o
No
x
Indicate
by check mark whether the Issuer (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the past 12 months (or for
such shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirement for the past 90 days.
Yes
x
No
o
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant’s knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
x
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting
company. See definitions of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act. (Check one):
Large accelerated
filer
o
Accelerated
filer
o
Non-accelerated
filer
o
Smaller
reporting company
x
(Do not check if a smaller reporting
company)
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes
x
No
o
As of
June 30, 2008, the aggregate market value of the common stock held by
non-affiliates of the Registrant was approximately $72,897,691.
As
March 30, 2009, there were 12,165,837 shares of Common Stock, $.0001 par value
per share, outstanding.
Documents
incorporated by reference: None.
TREMISIS
ENERGY ACQUISITION CORPORATION II
FORM
10-K
TABLE
OF CONTENTS
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PART
I
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1
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ITEM 1.
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BUSINESS.
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1
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ITEM 1A.
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RISK FACTORS.
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8
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ITEM 1B.
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UNRESOLVED STAFF
COMMENTS.
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24
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ITEM 2.
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PROPERTIES.
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24
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ITEM 3.
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LEGAL PROCEEDINGS.
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24
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ITEM 4.
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SUBMISSION OF MATTERS TO A VOTE OF SECURITY
HOLDERS.
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25
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PART II
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26
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ITEM 5.
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MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED
STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY
SECURITIES.
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26
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ITEM 6.
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SELECTED FINANCIAL
DATA.
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28
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ITEM 7.
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
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30
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ITEM 7A.
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QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK.
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32
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ITEM 8.
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FINANCIAL STATEMENTS AND SUPPLEMENTARY
DATA.
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32
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ITEM 9.
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CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE.
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32
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ITEM 9A(T).
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CONTROLS AND
PROCEDURES.
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33
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ITEM 9B.
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OTHER INFORMATION.
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34
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PART III
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35
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ITEM 10.
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DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE
GOVERNANCE.
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35
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ITEM 11.
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EXECUTIVE
COMPENSATION.
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39
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ITEM 12.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.
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40
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ITEM 13.
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS,
AND DIRECTOR INDEPENDENCE.
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42
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ITEM 14.
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PRINCIPAL ACCOUNTANT FEES AND
SERVICES.
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46
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PART IV
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48
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ITEM 15.
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EXHIBITS AND FINANCIAL STATEMENT
SCHEDULES.
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48
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PART
I
Tremisis
Energy Acquisition Corporation II is a blank check company formed on July 3,
2007 to acquire one or more operating businesses or assets through a merger,
stock exchange, asset acquisition, reorganization or similar business
combination. Our efforts in identifying a prospective target business
are not limited to a particular industry, although we are focusing our efforts
on seeking a business combination with an operating company in either the energy
or the environmental industry and their related infrastructures.
On
December 12, 2007, we closed our initial public offering (“IPO”) of 9,500,000
units with each unit consisting of one share of our common stock and one
warrant, each to purchase one share of our common stock at an exercise price of
$5.00 per share. Simultaneously with the consummation of the IPO, we
consummated the private sale of 2,650,000 warrants (“sponsors’ warrants”) at a
price of $1.00 per sponsors’ warrant, generating total proceeds of
$2,650,000. On January 24, 2008, we consummated the closing of an
additional 232,669 units which were subject to the underwriters’ over-allotment
option in the IPO. The units from the IPO (including the
over-allotment option) were sold at an offering price of $8.00 per unit,
generating total gross proceeds of $77,861,352. After deducting the
underwriting discounts and commissions and the offering expenses, the total net
proceeds to us from the offering (including the over-allotment option and the
private sale) were $77,572,806, of which $77,400,511 was deposited into the
trust account and the remaining proceeds became available to be used to provide
for business, legal and accounting due diligence on prospective business
combinations and continuing general and administrative expenses. In
addition, there can be released to us from the trust account interest earned on
the funds in the trust account up to an aggregate of $1,200,000 to fund expenses
related to investigating and selecting a target business and our other working
capital requirements, plus any amounts we may need to pay our income or other
tax obligations. Through December 31, 2008, we have used all of the net proceeds
that were not deposited into the trust fund to pay general and administrative
expenses, and we have drawn interest income in the amount of $236,000 and
$884,787 for our tax obligations and working capital, respectively. The net
proceeds deposited into the trust fund remain on deposit in the trust fund
earning interest. As of December 31, 2008, there was $77,652,972 plus accrued
interest of $15,099 held in the trust fund.
We are
not presently engaged in, and we will not engage in, any substantive commercial
business for an indefinite period of time. We intend to utilize cash derived
from the proceeds of our IPO, our capital stock, debt or a combination of these
in effecting a business combination. Although substantially all of the net
proceeds of our IPO are intended to be applied generally toward effecting a
business combination, the proceeds are not otherwise being designated for any
more specific purposes. A business combination may involve the acquisition of,
or merger with, a company which does not need substantial additional capital but
which desires to establish a public trading market for its shares, while
avoiding what it may deem to be adverse consequences of undertaking a public
offering itself. These include time delays, significant expense, loss of voting
control and compliance with various Federal and state securities laws. In the
alternative, we may seek to consummate a business combination with a company
that may be financially unstable or in its early stages of development or
growth. While we may seek to effect simultaneous business combinations with more
than one target business, we will probably have the ability, as a result of our
limited resources, to effect only a single business
combination.
Energy
industry and its related infrastructure
The
energy industry and its related infrastructure generally includes the
production, generation, transmission and distribution of electricity, heat, fuel
and other consumable forms of energy and the infrastructure needed to maintain
and operate the facilities, services and installations used in the foregoing
areas. The shortage of natural gas, rising oil prices and blackouts that have
occurred as a result of over-usage in current energy forms have brought renewed
focus on a variety of energy forms and the infrastructure related to the
transmission of such energy.
Although
we may consider a target business in any segment of the energy industry, we
currently are concentrating our search for an acquisition candidate on companies
in the following segments:
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|
·
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Electricity
generation, distribution and
transmission;
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·
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Oil
and natural gas production, distribution and
transmission;
|
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·
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Energy
related services including conservation, metering, operations and
maintenance;
|
|
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·
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Steam
generation and distribution;
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|
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·
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Alternative
and renewable energy technologies;
and
|
|
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·
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The
infrastructure necessary to operate in the energy industry including but
not limited to areas such as the production, transportation or
distribution of towers, power lines, scaffolding products and other
equipment or supplies incidental to the energy
industry.
|
Environmental
industry and its related infrastructure
The
environmental industry and its related infrastructure generally includes the
technologies and services that protect the natural and human environment from
destruction and pollution, and the infrastructure needed to maintain and operate
the facilities, services and installations used in the foregoing areas. The
environmental industry also seeks to ameliorate the negative effects of
industrial production and unhealthy practices and materials on our population as
a whole.
Landfill
closures and the difficulty of positioning new facilities in certain parts of
the country have required that waste be transported long distances for
environmentally sound disposal. New landfills require additional remediation
measures to ensure that waste does not contaminate the surrounding ground or
nearby water supplies. New technologies and expenditures are increasingly
required with respect to air emissions and water cleanup, as pollution from
power and industrial plants merit increasing examination and concern. Searches
for new energy and water sources must meet stringent environmental standards,
while existing and alternative forms of energy that are being used, developed
and tested must adhere to an expanding body of practices and procedures to
ensure that our environment is protected.
Although
we may consider a target business in any segment of the environmental industry,
we currently are concentrating our search for an acquisition candidate on
companies in the following segments:
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·
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Waste
management and disposal, including wastewater treatment and management and
sewage control;
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·
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Air
treatment and ionization, pollution and emission
control;
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·
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Medical
waste disposal;
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·
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Radon
and site cleanup services;
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·
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Other
energy/environmental related technologies;
and
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·
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The
infrastructure necessary to operate in the environmental industry
including but not limited to areas such as the operation of water supply
facilities, waste and wastewater treatment facilities, pollution control
facilities and transportation facilities and the production,
transportation or distribution of the equipment and products incidental to
such operations.
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Selection
of a target business and structuring of a business combination
We
believe based on our management’s business knowledge and past experience that
there are numerous acquisition candidates available. We anticipate
that target business candidates will be brought to our attention from various
unaffiliated sources, including investment bankers, venture capital funds,
private equity funds, leveraged buyout funds, management buyout funds and other
members of the financial community. Target businesses may be brought to our
attention by such unaffiliated sources as a result of being solicited by us
through calls or mailings. These sources may also introduce us to target
businesses they think we may be interested in on an unsolicited basis, since
many of these sources will have read our prospectus for our IPO and know what
types of businesses we are targeting. Our officers and directors, as well as
their affiliates, may also bring to our attention target business candidates
that they become aware of through their business contacts as a result of formal
or informal inquiries or discussions they may have, as well as attending trade
shows or conventions. We may engage professional firms or consultants to assist
us in finding potential business combinations, evaluating such business
combinations and determining whether or not to proceed with a particular
business combination, in which event we may pay a finder’s fee, consulting fee
or other compensation to be determined in an arm’s length negotiation based on
the terms of the transaction. Payment of such fees is customarily tied to
completion of a transaction, in which case any such fee will be paid out of the
funds held in the trust account. Although it is possible that we may pay such
fees in the case of an uncompleted transaction, we consider this possibility to
be remote. In no event, however, will we pay any of our initial
officers, directors or stockholders (collectively, our “founders”) or any entity
with which they are affiliated any finder’s fee or other compensation for
services rendered to us prior to or in connection with the consummation of a
business combination.
Subject
to the requirement that our initial business combination must be with a target
business with a fair market value that is at least 80% of our net assets at the
time of such acquisition, our management will have virtually unrestricted
flexibility in identifying and selecting a prospective target business. We have
not established any other specific attributes or criteria (financial or
otherwise) for prospective target businesses. In evaluating a prospective target
business, our management may consider a variety of factors, including one or
more of the following:
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·
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financial
condition and results of operation;
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·
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experience
and skill of management and availability of additional
personnel;
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·
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stage
of development of the products, processes or
services;
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·
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degree
of current or potential market acceptance of the products, processes or
services;
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·
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proprietary
features and degree of intellectual property or other protection of the
products, processes or services;
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·
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regulatory
environment of the industry; and
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·
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costs
associated with effecting the business
combination.
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These
criteria are not intended to be exhaustive. Any evaluation relating to the
merits of a particular business combination will be based, to the extent
relevant, on the above factors as well as other considerations deemed relevant
by our management in effecting a business combination consistent with our
business objective. In evaluating a prospective target business, we will conduct
an extensive due diligence review which will encompass, among other things,
meetings with incumbent management and inspection of facilities, as well as
review of financial and other information which is made available to us. This
due diligence review will be conducted either by our management or by
unaffiliated third parties we may engage. We are also required to have all
prospective target businesses execute agreements with us waiving any right,
title, interest or claim of any kind in or to any monies held in the trust
account. If any prospective target business refused to execute such agreement,
we would cease negotiations with such target business.
The time
and costs required to select and evaluate a target business and to structure and
complete the business combination cannot presently be ascertained with any
degree of certainty. Any costs incurred with respect to the identification and
evaluation of a prospective target business with which a business combination is
not ultimately completed will result in a loss to us and reduce the amount of
capital available to otherwise complete a business combination.
Fair
market value of target business
The
initial target business that we acquire must have a fair market value equal to
at least 80% of our net assets at the time of such acquisition. We anticipate
structuring a business combination to acquire 100% of the equity interests or
assets of the target business. We may, however, structure a business combination
to acquire less than 100% of such interests or assets of the target business but
will not acquire less than a controlling interest (meaning not less than 50% of
the voting securities of the target business). If we acquire only a controlling
interest in a target business or businesses, the portion of such business that
we acquire must have a fair market value equal to at least 80% of our net
assets. In order to consummate such an acquisition, we may issue a significant
amount of our debt or equity securities to the sellers of such businesses and/or
seek to raise additional funds through a private offering of debt or equity
securities. Since we have no specific business combination under consideration,
we have not entered into any such financing arrangement. The fair market value
of such business will be determined by our board of directors based upon one or
more standards generally accepted by the financial community (such as actual and
potential sales, earnings, cash flow, book value and/or the price for which
comparable businesses have recently been sold). If our board is not
able to independently determine that the target business has a sufficient fair
market value, we will obtain an opinion from an unaffiliated, independent
investment banking firm with respect to the satisfaction of such criteria. We
will not be required to obtain an opinion from an investment banking firm as to
the fair market value if our board of directors independently determines that
the target business complies with the 80% threshold.
Opportunity
for stockholder approval of business combination
Prior to
the completion of a business combination, we will submit the transaction to our
stockholders for approval, even if the nature of the acquisition is such as
would not ordinarily require stockholder approval under applicable state
law. In connection with any such transaction, we will also submit to
our stockholders for approval a proposal to amend our amended and restated
certificate of incorporation to provide for our corporate life to continue
perpetually following the consummation of such initial business combination. Any
vote to extend our corporate life to continue perpetually following the
consummation of an initial business combination will be taken only if the
initial business combination is approved. We will only consummate an initial
business combination if stockholders vote both in favor of such initial business
combination and our amendment to extend our corporate life.
In
connection with seeking stockholder approval of a business combination, we will
furnish our stockholders with proxy solicitation materials prepared in
accordance with the Securities Exchange Act of 1934, or the Exchange Act, which,
among other matters, will include a description of the operations of the target
business and audited historical financial statements of the
business.
In
connection with the vote required for any business combination, all of our
founders, including all of our officers and directors, have agreed to vote the
shares each received prior to our IPO (“founders’ shares”) in accordance with
the vote of the holders of a majority of the shares of common stock purchased in
our IPO (“IPO shares,” and the holders of IPO shares, “public stockholders”).
This voting arrangement shall not apply to IPO shares purchased following our
IPO in the open market by any of our founders. Accordingly, they may vote these
shares on a proposed business combination any way they choose. We
will proceed with the business combination only if a majority of the shares of
common stock voted by the public stockholders are voted in favor of the business
combination and public stockholders owning less than 30% of the IPO shares both
exercise their conversion rights and vote against the business
combination.
Conversion
rights
At the
time we seek stockholder approval of any business combination, we will offer the
public stockholders (but not any of our founders to the extent they hold IPO
shares) the right to have such shares converted to cash if the stockholder votes
against the business combination and the business combination is approved and
completed. The actual per-share conversion price will be equal to the
amount in the trust fund, inclusive of any interest, as of two business days
prior to the consummation of the business combination, divided by the total
number of IPO shares. As of December 31, 2008, the per-share
conversion price would have been approximately $7.98.
An
eligible stockholder may request conversion at any time after the mailing to our
stockholders of the proxy statement and prior to the vote taken with respect to
a proposed initial business combination at a meeting held for that purpose, but
the request will not be granted unless the stockholder votes against the initial
business combination and the initial business combination is approved and
completed. Additionally, we may require public stockholders, whether they are a
record holder or hold their shares in “street name,” to either tender their
certificates to our transfer agent at any time through the vote on the initial
business combination or to deliver their shares to the transfer agent
electronically using Depository Trust Company’s DWAC (Deposit/Withdrawal At
Custodian) System, at the holder’s option. The proxy solicitation materials that
we will furnish to stockholders in connection with the vote for any proposed
initial business combination will indicate whether we are requiring stockholders
to satisfy such certification and delivery requirements. Accordingly, a
stockholder would have from the time we send out our proxy statement through the
vote on the initial business combination to complete the tender or delivery of
his shares to us if he wishes to seek to exercise his conversion rights. This
time period varies depending on the specific facts of each transaction. However,
as the delivery process can be accomplished by the stockholder, whether or not
he is a record holder or his shares are held in “street name,” in a matter of
hours by simply contacting the transfer agent or his broker and requesting
delivery of his shares through the DWAC System, we believe this time period is
sufficient for an average investor. However, because we do not have any control
over this process, it may take significantly longer than we
anticipate.
Any
request for conversion, once made, may be withdrawn at any time up to the vote
taken with respect to the proposed business combination. Furthermore, if a
stockholder delivered his certificate for conversion and subsequently decided
prior to the meeting not to elect conversion, he may simply request that the
transfer agent return the certificate (physically or electronically). It is
anticipated that the funds to be distributed to stockholders entitled to convert
their shares who elect conversion will be distributed promptly after completion
of a business combination. Public stockholders who convert their stock into
their share of the trust account still have the right to exercise any warrants
they still hold.
If a vote
on our initial business combination is held and the business combination is not
approved, we may continue to try to consummate a business combination with a
different target until December 6, 2009. If the initial business combination is
not approved or completed for any reason, then public stockholders voting
against our initial business combination who exercised their conversion rights
would not be entitled to convert their shares of common stock into a pro rata
share of the aggregate amount then on deposit in the trust account. In such
case, if we have required public stockholders to tender their certificates prior
to the meeting, we will promptly return such certificates to the tendering
public stockholder. Public stockholders would be entitled to receive their pro
rata share of the aggregate amount on deposit in the trust account only in the
event that the initial business combination they voted against was duly approved
and subsequently completed, or in connection with our liquidation.
We will
not complete any business combination if public stockholders, owning 30% or more
of the IPO shares, both exercise their conversion rights and vote against the
business combination. Accordingly, it is our understanding and intention in
every case to structure and consummate a business combination in which public
stockholders owning approximately 29.99% of the IPO shares may exercise their
conversion rights and the business combination will still go forward. We have
set the conversion percentage at 30% in order to reduce the likelihood that a
small group of investors holding a block of our stock will be able to stop us
from completing a business combination that is otherwise approved by a large
majority of our public stockholders.
Liquidation
if no business combination
If we do
not complete a business combination by December 6, 2009, we will be dissolved
and will distribute to all holders of IPO shares, in proportion to the number of
IPO shares held by them, an aggregate sum equal to the amount in the trust fund,
inclusive of any interest, plus any remaining net assets. The
founders have waived their rights to participate in any liquidation distribution
with respect to their founder shares. There will be no distribution
from the trust fund with respect to our warrants.
Upon
notice from us, the trustee of the trust fund will commence liquidating the
investments constituting the trust fund and will turn over the proceeds to our
transfer agent for distribution to our stockholders. We anticipate
that our instruction to the trustee would be given promptly after the expiration
of the applicable time periods.
If we
were to expend all of the net proceeds of our initial public offering, other
than the proceeds then held in the trust fund, the per-share liquidation price
as of December 31, 2008 would have been approximately $7.98. However,
the proceeds deposited in the trust fund could become subject to the claims of
our creditors which could be prior to the claims of our public
stockholders. Lawrence S. Coben and Ronald D. Ormand 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 IPO
not held in the trust account or previously released to us. Accordingly, if a
claim brought by a target business or vendor or other entity did not exceed the
amount of funds available to us outside of the trust account or available to be
released to us from interest earned on the trust account balance, Messrs. Coben
and Ormand would not have any personal obligation to indemnify such claims as
they would be paid from such available funds. However, if a claim exceeded such
amounts, there is no exception to the obligations of Messrs. Coben and Ormand to
pay such claim.
Competition
In
identifying, evaluating and selecting a target business, we may encounter
intense competition from other entities having a business objective similar to
ours. There are numerous blank check companies that have completed initial
public offerings that are seeking to carry out a business plan similar to our
business plan. Furthermore, there are likely to be more blank check companies
filing registration statements for initial public offerings prior to our
completion of a business combination.
We may
also be subject to competition from entities other than blank check companies
having a business objective similar to ours, including venture capital firms,
leverage buyout firms and operating businesses looking to expand their
operations through the acquisition of a target business. Many of these entities
are well established and have extensive experience identifying and effecting
business combinations directly or through affiliates. Many of these competitors
possess greater technical, human and other resources than us and our financial
resources will be relatively limited when contrasted with those of many of these
competitors. While we believe there may be numerous potential target businesses
that we could acquire with the net proceeds of our IPO, our ability to compete
in acquiring certain sizable target businesses will be limited by our available
financial resources. This inherent competitive limitation gives others an
advantage in pursuing the acquisition of a target business. Further, the
following may not be viewed favorably by certain target businesses:
|
|
·
|
our
obligation to seek stockholder approval of a business combination may
delay the completion of a
transaction;
|
|
|
·
|
our
obligation to convert into cash shares of common stock held by our public
stockholders to such holders that both vote against the business
combination and exercise their conversion rights may reduce the resources
available to us for a business combination;
and
|
|
|
·
|
our
outstanding warrants and the potential future dilution they
represent.
|
Any of
these factors may place us at a competitive disadvantage in successfully
negotiating a business combination. Our management believes, however, that our
status as a public entity and potential access to the United States public
equity markets may give us a competitive advantage over privately-held entities
having a similar business objective as ours in acquiring a target business with
significant growth potential on favorable terms.
If we
succeed in effecting a business combination, there will be, in all likelihood,
intense competition from competitors of the target business. We cannot assure
you that, subsequent to a business combination, we will have the resources or
ability to compete effectively.
Employees
We have
two executive officers. These individuals are not obligated to
contribute any specific number of hours to our matters and intend to devote only
as much time as they deem necessary to our affairs. The amount of
time they will devote in any time period will vary based on whether a target
business has been selected for the business combination and the stage of the
business combination process the company is in. We do not intend to have any
full time employees prior to the consummation of a business
combination.
Risks
associated with our business
In
addition to other information included in this report, the following factors
should be considered in evaluating our business and future
prospects.
We
are a development stage company with no operating history and no revenues, and
you have no basis on which to evaluate our ability to achieve our business
objective.
We are a
development stage company with no operating results. Because we lack an
operating history, you have no basis upon which to evaluate our ability to
achieve our business objective of completing an initial business combination
with one or more target businesses. We will not generate any revenues other than
interest and dividends until, at the earliest, after the consummation of a
business combination.
We
may not be able to consummate an initial business combination within the
required time frame, in which case, we would be forced to liquidate our
assets.
Pursuant
to our amended and restated certificate of incorporation, we have until December
6, 2009 to complete an initial business combination. If we fail to consummate an
initial business combination within the required time frame, our corporate
existence will, in accordance with our amended and restated certificate of
incorporation, cease except for the purposes of winding up our affairs and
liquidating. We may not be able to find suitable target businesses within the
required time frame. In addition, our negotiating position and our ability to
conduct adequate due diligence on any potential target may be reduced as we
approach the deadline for the consummation of an initial business
combination.
If
we are forced to liquidate before an initial business combination and distribute
the trust account, our public stockholders may receive less than $8.00 per share
and our warrants will expire worthless.
If we are
unable to complete an initial business combination by December 6, 2009 and are
forced to liquidate our assets, the per-share liquidation distribution may be
less than $8.00 because of the expenses of our IPO, our general and
administrative expenses and the anticipated costs of seeking an initial business
combination. As of December 31, 2008, the per-share liquidation price was
approximately $7.98. However, we cannot assure you that we will in fact be able
to distribute approximately $7.98 per share upon liquidation of the trust
account, as a result of claims of creditors which may take priority over the
claims of our public stockholders. Furthermore, there will be no distribution
with respect to our outstanding warrants which will expire worthless if we
liquidate before the completion of an initial business combination.
If
we are unable to consummate an initial business combination, our public
stockholders will be forced to wait until December 6, 2009 before receiving
liquidation distributions.
We have
until December 6, 2009 to complete an initial business combination. We have no
obligation to return funds to our public stockholders prior to such date unless
we consummate an initial business combination prior thereto and only then in
cases where public stockholders have sought conversion of their shares. Only
after the expiration of this full time period will public stockholders be
entitled to liquidation distributions if we are unable to complete an initial
business combination. Accordingly, public stockholders’ funds may be unavailable
to them until such date.
Because
there are numerous companies with a business plan similar to ours seeking to
effectuate an initial business combination, it may be more difficult for us to
do so.
There are
numerous similarly structured blank check companies which have completed initial
public offerings with business plans similar to ours and there are a number of
additional offerings for blank check companies that are still in the
registration process but have not completed initial public
offerings. While some of those companies must complete an initial
business combination in specific industries, a number of them may consummate an
initial business combination in any industry they choose. Therefore, we are
subject to competition from these and other companies seeking to consummate a
business plan similar to ours. Because of this competition, we cannot assure you
that we will be able to effectuate an initial business combination within the
required time period.
If
the funds available to us are insufficient to allow us to operate until December
6, 2009, we may be unable to complete an initial business
combination.
We
believe that the funds available to us outside the trust fund, plus the interest
earned on the funds held in the trust account that is available to us, will be
sufficient to allow us to operate at least until December 6, 2009, assuming that
an initial business combination is not consummated during that time. However, we
cannot assure you that our estimates will be accurate. We could use a portion of
the funds available to us to pay fees to consultants to assist us with our
search for a target business. We could also use a portion of the funds as a down
payment or to fund a “no-shop” provision (a provision in letters of intent
designed to keep target businesses from “shopping” around for transactions with
other companies on terms more favorable to such target businesses) with respect
to a particular proposed business combination, although we do not have any
current intention to do so. If we entered into a letter of intent where we paid
for the right to receive exclusivity from a target business and were
subsequently required to forfeit the funds (whether as a result of our breach or
otherwise), we might not have sufficient funds to continue searching for, or
conduct due diligence with respect to, a target business.
If
we do not conduct an adequate due diligence investigation of a target business
with which we combine, we may be required to subsequently take write-downs or
write-offs, restructuring, and impairment or other charges that could have a
significant negative effect on our financial condition, results of operations
and our stock price, which could cause you to lose some or all of your
investment.
We must
conduct a due diligence investigation of the target businesses we intend to
acquire. Intensive due diligence is time consuming and expensive due to the
operations, accounting, finance and legal professionals who must be involved in
the due diligence process. Even if we conduct extensive due diligence on a
target business with which we combine, we cannot assure you that this diligence
will reveal all material issues that may affect a particular target business, or
that factors outside the control of the target business and outside of our
control will not later arise. If our diligence fails to identify issues specific
to a target business, industry or the environment in which the target business
operates, we may be forced to later write-down or write-off assets, restructure
our operations, or incur impairment or other charges that could result in our
reporting losses. Even though these charges may be non-cash items and not have
an immediate impact on our liquidity, the fact that we report charges of this
nature could contribute to negative market perceptions about us or our common
stock. In addition, charges of this nature may cause us to violate net worth or
other covenants to which we may be subject as a result of assuming pre-existing
debt held by a target business or by virtue of our obtaining post-combination
debt financing.
A
decline in interest rates could limit the amount available to fund our search
for a target business or businesses and complete an initial business combination
since we will depend on interest earned on the trust account to fund our search,
to pay our tax obligations and to complete our initial business
combination.
We will
depend on sufficient interest being earned on the proceeds held in the trust
account to provide us with additional working capital which we will need to
identify one or more target businesses and to complete our initial business
combination, as well as to pay any tax obligations that we may owe. While we are
entitled to have released to us for such purposes certain interest earned on the
funds in the trust account, a substantial decline in interest rates may result
in our having insufficient funds available with which to structure, negotiate or
close an initial business combination. In such event, we would need to borrow
funds from our founders to operate or may be forced to liquidate. Our founders
are under no obligation to advance funds in such circumstances.
The
report of the independent registered public accounting firm that audited our
financial statements includes a “going concern” explanatory paragraph due to the
possibility that we may not consummate a business combination within the
required time frame, which will require us to dissolve and
liquidate.
The audit
report in our financial statements for the year ended December 31, 2008,
includes an explanatory paragraph that states that due to the possibility that a
business combination may not be consummated within the required timeframe, there
is “substantial doubt” about our ability to continue as a going concern. We must
complete a business combination with a fair market value of at least 80% of our
net assets (excluding the amount held in the trust account representing a
portion of the underwriters’ deferred discount) at the time of acquisition by
December 6, 2009 (i.e., 24 months after the effective date of the registration
statement covering the securities sold in our initial public
offering).
If
third parties bring claims against us, the proceeds held in trust could be
reduced and the per-share liquidation price received by stockholders may be less
than approximately $7.98 per share.
Our
placing of funds in trust may not protect those funds from third party claims
against us. Although we are required to have all third parties (including any
vendors or other entities we engage) and any prospective target businesses we
negotiate with, execute agreements with us waiving any right, title, interest or
claim of any kind in or to any monies held in the trust account, there is no
guarantee that they will execute such agreements. Furthermore, there is no
guarantee that, even if such entities execute such agreements with us, they will
not seek recourse against the trust account. Nor is there any guarantee that
such entities will agree to waive any claims they may have in the future as a
result of, or arising out of, any negotiations, contracts or agreements with us
and will not seek recourse against the trust account for any reason. There is
also no guarantee that a court would uphold the validity of such agreements.
Accordingly, the proceeds held in trust could be subject to claims which could
take priority over those of our public stockholders and, as a result, the
per-share liquidation price could be less than approximately $7.98 due to claims
of such creditors. If we liquidate before the completion of a business
combination and distribute the proceeds held in trust to our public
stockholders, Sang-Chul Kim, our chairman and co-chief executive officer and
SoftForum Co., Ltd., an affiliate of Mr. Kim, have agreed that they will be
personally liable to ensure that the proceeds in the trust account are not
reduced by the claims of target businesses or claims of vendors or other
entities that are owed money by us for services rendered or contracted for or
products sold to us. However, they may not be able to satisfy those obligations.
Therefore, we cannot assure you that the per-share distribution from the trust
account, if we liquidate, will not be less than approximately $7.98, plus
interest, due to such claims.
Additionally,
if we are forced to file a bankruptcy case or an involuntary bankruptcy case is
filed against us which is not dismissed, the proceeds held in the trust account
could be subject to applicable bankruptcy law, and may be included in our
bankruptcy estate and subject to the claims of third parties with priority over
the claims of our stockholders. To the extent any bankruptcy claims deplete the
trust account, we cannot assure you we will be able to return to our public
stockholders at least approximately $7.98 per share.
Our
stockholders may be held liable for claims by third parties against us to the
extent of distributions received by them.
If we are
unable to complete an initial business combination by December 6, 2009, our
corporate existence will cease except for the purposes of winding up our affairs
and liquidating pursuant to Section 278 of the Delaware General Corporation Law,
in which case we will as promptly as practicable thereafter adopt a plan of
distribution in accordance with Section 281(b) of the Delaware General
Corporation Law. Section 278 provides that our existence will continue for at
least three years after its expiration for the purpose of prosecuting and
defending suits, whether civil, criminal or administrative, by or against us,
and of enabling us gradually to settle and close our business, to dispose of and
convey our property, to discharge our liabilities and to distribute to our
stockholders any remaining assets, but not for the purpose of continuing the
business for which we were organized. Our existence will continue automatically
even beyond the three-year period for the purpose of completing the prosecution
or defense of suits begun prior to the expiration of the three-year period,
until such time as any judgments, orders or decrees resulting from such suits
are fully executed. Section 281(b) will require us to pay or make reasonable
provision for all then-existing claims and obligations, including all
contingent, conditional, or unmatured contractual claims known to us, and to
make such provision as will be reasonably likely to be sufficient to provide
compensation for any then-pending claims and for claims that have not been made
known to us or that have not arisen but that, based on facts known to us at the
time, are likely to arise or to become known to us within 10 years after the
date of dissolution. Accordingly, we would be required to provide for any
creditors known to us at that time or those that we believe could be potentially
brought against us within the subsequent 10 years prior to distributing the
funds held in the trust to stockholders. However, because we are a blank check
company, rather than an operating company, and our operations will be limited to
searching for prospective target businesses to acquire, the only likely claims
to arise would be from our vendors (such as accountants, lawyers, investment
bankers, etc.) and potential target businesses. We intend to have all third
parties (including any vendors or other entities that we engage in pursuit of a
business combination) and prospective target businesses execute valid and
enforceable agreements with us waiving any right, title, interest or claim of
any kind in or to any monies held in the trust account. Accordingly, we believe
the claims that could be made against us should be limited, thereby lessening
the likelihood that any claim would result in any liability extending to the
trust. However, we cannot assure you that we will properly assess all claims
that may be potentially brought against us. As such, our stockholders could
potentially be liable for any claims to the extent of distributions received by
them (but no more) and any liability of our stockholders may extend well beyond
the third anniversary of the date of distribution. Accordingly, we cannot assure
you that third parties will not seek to recover from our stockholders amounts
owed to them by us.
If we are
forced to file a bankruptcy case or an involuntary bankruptcy case is filed
against us which is not dismissed, any distributions received by stockholders
could be viewed under applicable debtor/creditor and/or bankruptcy laws as
either a “preferential transfer” or a “fraudulent conveyance.” As a result, a
bankruptcy court could seek to recover all amounts received by our stockholders.
Furthermore, because we intend to distribute the proceeds held in the trust
account to our public stockholders promptly after December 6, 2009, this may be
viewed or interpreted as giving preference to our public stockholders over any
potential creditors with respect to access to or distributions from our assets.
Furthermore, our board may be viewed as having breached their fiduciary duties
to our creditors and/or may have acted in bad faith, and thereby exposing itself
and our company to claims of punitive damages, by paying public stockholders
from the trust account prior to addressing the claims of creditors. We cannot
assure you that claims will not be brought against us for these
reasons.
An
effective registration statement may not be in place when an investor desires to
exercise warrants, thus precluding such investor from being able to exercise
his, her or its warrants and causing such warrants to expire
worthless.
No
warrant held by public stockholders will be exercisable and we will not be
obligated to issue shares of common stock unless, at the time such holder seeks
to exercise such warrant, a prospectus relating to the common stock issuable
upon exercise of the warrant is current. Under the terms of the warrant
agreement, we have agreed to use our best efforts to maintain a current
prospectus relating to the common stock issuable upon exercise of the warrants
until the expiration of the warrants. If we do not maintain a current prospectus
related to the common stock issuable upon exercise of the warrants, holders will
be unable to exercise their warrants and we will not be required to settle any
such warrant exercise. If the prospectus relating to the common stock issuable
upon the exercise of the warrants is not current, the warrants held by public
stockholders may have no value, the market for such warrants may be limited and
such warrants may expire worthless. Notwithstanding the foregoing, the sponsors’
warrants may be exercisable for unregistered shares of common stock even if the
prospectus relating to the common stock issuable upon exercise of the warrants
is not current.
An
investor will only be able to exercise a warrant if the issuance of common stock
upon the exercise has been registered or qualified or is deemed exempt under the
securities laws of the state of residence of the holder of the
warrants.
No
warrants will be exercisable and we will not be obligated to issue shares of
common stock unless the common stock issuable upon such exercise has been
registered or qualified or deemed to be exempt under the securities laws of the
state of residence of the holder of the warrants. Because the exemptions from
qualification in certain states for resales of warrants and for issuances of
common stock by the issuer upon exercise of a warrant may be different, a
warrant may be held by a holder in a state where an exemption is not available
for issuance of common stock upon an exercise and the holder will be precluded
from exercise of the warrant. At the time that the warrants become exercisable
(following our completion of a business combination), we expect to continue to
be listed on a national securities exchange, which would provide an exemption
from registration in every state, or we would register the warrants in every
state (or seek another exemption from registration in such states). Accordingly,
we believe holders in every state will be able to exercise their warrants as
long as our prospectus relating to the common stock issuable upon exercise of
the warrants is current. However, if we are incorrect in this belief, the
warrants may be deprived of any value, the market for the warrants may be
limited and the holders of warrants may not be able to exercise their warrants
if the common stock issuable upon such exercise is not qualified or exempt from
qualification in the jurisdictions in which the holders of the warrants
reside.
Since
we have not yet selected any target business with which to complete an initial
business combination, we are unable to currently ascertain the merits or risks
of the business’ operations.
We may
consummate a business combination with a company in any industry we choose and
are not limited to any particular industry or type of business. Accordingly,
there is no current basis for you to evaluate the possible merits or risks of
the particular industry in which we may ultimately operate or the target
business which we may ultimately acquire. To the extent we complete a business
combination with a financially unstable company or an entity in its development
stage, we may be affected by numerous risks inherent in the business operations
of that entity. If we complete a business combination with an entity in an
industry characterized by a high level of risk, we may be affected by the
currently unascertainable risks of that industry. We may not properly ascertain
or assess all of the significant risk factors inherent in a particular industry
or target business. An investment in our units may also ultimately prove to be
less favorable to investors than a direct investment, if an opportunity were
available, in a target business.
We
may issue shares of our capital stock or debt securities to complete an initial
business combination. Issuance of our capital stock would reduce the equity
interest of our stockholders and may cause a change in control of our ownership,
while the issuance of debt securities may have a significant impact on our
ability to utilize our available cash.
Our
amended and restated certificate of incorporation authorizes the issuance of up
to 35,000,000 shares of common stock, par value $.0001 per share, and 1,000,000
shares of preferred stock, par value $.0001 per share. There are currently
10,451,494 authorized but unissued shares of common stock available for issuance
(after appropriate reservation for the issuance of the shares upon full exercise
of our outstanding warrants) and all of the 1,000,000 shares of preferred stock
available for issuance. We may issue a substantial number of additional shares
of our common or preferred stock, or a combination of common and preferred
stock, to complete an initial business combination. The issuance of additional
shares of common stock or any number of shares of our preferred
stock:
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may
significantly reduce your equity interest in
us;
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may
subordinate the rights of holders of shares of common stock if we issue
preferred stock with rights senior to those afforded to our common
stock;
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may
cause a change in control if a substantial number of our shares of common
stock are issued, which may affect, among other things, our ability to use
our net operating loss carry forwards, if any, and could result in the
resignation or removal of our present officers and
directors;
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may
adversely affect prevailing market prices for our common
stock.
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Similarly,
if we issue debt securities, it could result in:
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default
and foreclosure on our assets if our operating revenues after an initial
business combination are insufficient to repay our debt
obligations;
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acceleration
of our obligations to repay the indebtedness even if we make all principal
and interest payments when due if we breach certain covenants that require
the maintenance of certain financial ratios or reserves without a waiver
or renegotiation of that covenant;
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our
immediate payment of all principal and accrued interest, if any, if the
debt security is payable on demand;
and
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our
inability to obtain necessary additional financing if the debt security
contains covenants restricting our ability to obtain such financing while
the debt security is outstanding.
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The value
of your investment in us may decline if any of these events occur.
Resources
could be wasted in researching acquisitions that are not consummated, which
could materially adversely affect subsequent attempts to locate and acquire or
merge with another business.
It is
anticipated that the investigation of each specific target business and the
negotiation, drafting, and execution of relevant agreements, disclosure
documents, and other instruments will require substantial management time and
attention and substantial costs for accountants, attorneys and others. If a
decision is made not to complete a specific business combination, the costs
incurred up to that point for the proposed transaction likely would not be
recoverable. Furthermore, even if an agreement is reached relating to a specific
target business, we may fail to consummate the initial business combination for
any number of reasons including those beyond our control, such as that public
stockholders owning 30% or more of the IPO shares vote against the initial
business combination and opt to have us convert their stock for a pro rata share
of the trust account even if a majority of our stockholders approve the initial
business combination. Any such event will result in a loss to us of the related
costs incurred which could materially adversely affect subsequent attempts to
locate and acquire or merge with another business.
Our
ability to successfully effect an initial business combination and to be
successful thereafter will be totally dependent upon the efforts of our key
personnel, some of whom may join us following an initial business
combination.
Our
ability to successfully effect a business combination is dependent upon the
efforts of our key personnel. The role of our key personnel in the operation of
the target business, however, cannot presently be ascertained. Although some of
our key personnel may remain with the target business in senior management or
advisory positions following a business combination, it is likely that some or
all of the management of the target business will remain in place. These
individuals may be unfamiliar with the requirements of operating a public
company, which could cause us to have to expend time and resources helping them
become familiar with such requirements. This could be expensive and
time-consuming and could lead to various regulatory issues which may adversely
affect our operations.
Our
key personnel may negotiate employment or consulting agreements with a target
business in connection with a particular business combination. These agreements
may provide for them to receive compensation following an initial business
combination and as a result, may cause them to have conflicts of interest in
determining whether a particular business combination is the most
advantageous.
Our key
personnel will be able to remain with the company after the consummation of a
business combination only if they are able to negotiate employment or consulting
agreements in connection with the business combination. Such negotiations would
take place simultaneously with the negotiation of the business combination and
could provide for such individuals to receive compensation in the form of cash
payments and/or our securities for services they would render to the company
after the consummation of the business combination. The personal and financial
interests of such individuals may influence their motivation in identifying and
selecting a target business.
Our
officers and directors will allocate their time to other businesses thereby
causing conflicts of interest in their determination as to how much time to
devote to our affairs. This conflict of interest could have a negative impact on
our ability to consummate an initial business combination.
Our
officers and directors are not required to commit their full time to our
affairs, which could create a conflict of interest when allocating their time
between our operations and their other commitments. We do not intend to have any
full time employees prior to the consummation of an initial business
combination. All of our executive officers and directors are engaged in several
other business endeavors and are not obligated to devote any specific number of
hours to our affairs. If our officers’ and directors’ other business affairs
require them to devote more substantial amounts of time to such affairs, it
could limit their ability to devote time to our affairs and could have a
negative impact on our ability to consummate an initial business combination. We
cannot assure you that these conflicts will be resolved in our
favor.
Our
officers and directors may in the future become affiliated with entities engaged
in business activities similar to those intended to be conducted by us and
accordingly, may have conflicts of interest in allocating their time and
determining to which entity a particular business opportunity should be
presented.
Our
officers and directors may in the future become affiliated with entities,
including other “blank check” companies, engaged in business activities similar
to those intended to be conducted by us. Additionally, our officers and
directors may become aware of business opportunities which may be appropriate
for presentation to us and the other entities to which they owe fiduciary
duties. Accordingly, they may have conflicts of interest in determining to which
entity time should be allocated or a particular business opportunity should be
presented. We cannot assure you that these conflicts will be resolved in our
favor. As a result, a potential target business may be presented to another
entity prior to its presentation to us and we may miss out on a potential
transaction.
One
of our officers and directors owns founders’ shares as well as warrants
purchased simultaneously with our IPO. These shares and warrants will not
participate in liquidation distributions and, therefore, such officer and
director may have a conflict of interest in determining whether a particular
target business is appropriate for an initial business
combination.
One of
our officers and directors owns founders’ shares as well as sponsors’ warrants
purchased simultaneously with our IPO. Such individual has waived their right to
receive distributions with respect to their initial shares upon our liquidation
if we are unable to consummate a business combination. Accordingly, the shares
acquired prior to our IPO, as well as the sponsors’ warrants, will be worthless
if we do not consummate a business combination. The personal and financial
interests of such director and officer may influence their motivation in timely
identifying and selecting a target business and completing a business
combination. Consequently, our director’s and officer’s discretion in
identifying and selecting a suitable target business may result in a conflict of
interest when determining whether the terms, conditions and timing of a
particular business combination are appropriate and in our stockholders’ best
interest.
The
NYSE Alternext US LLC may delist our securities from quotation on its exchange
which could limit investors’ ability to make transactions in our securities and
subject us to additional trading restrictions.
Our
securities are currently quoted on the NYSE Alternext US LLC (“NYSE Alternext
US”). In order to continue quotation of our securities, we must maintain certain
financial, distribution and stock price levels. Generally, we must maintain a
minimum amount in stockholders’ equity (usually between $2,000,000 and
$4,000,000) and a minimum number of public shareholders (usually 300
shareholders). Additionally, our securities cannot have what is deemed to be a
“low selling price” as determined by the Exchange. Additionally, in connection
with our business combination, it is likely that the NYSE Alternext US will
require us to file a new initial listing application and meet its initial
listing requirements as opposed to these more lenient continued listing
requirements. We cannot assure you that we will be able to meet those initial
listing requirements at that time.
On
February 10, 2009, we received notice from the NYSE Alternext US, LLC indicating
that we were below certain additional continued listing standards of the
exchange, specifically that we had not held an annual meeting of stockholders in
2008, as set forth in Section 704 of the Company Guide. The
notification from the exchange indicated that we had until March 10, 2009 to
submit a plan advising the exchange of action we would take to bring us into
compliance with all continued listing standards by August 11,
2009. We submitted our plan on February 17, 2009.
In the
plan, we propose that if it appears likely that we will not execute a definitive
agreement for our business combination prior to August 11, 2009, we will take
all actions necessary to hold an annual meeting of stockholders by August 11,
2009 solely to elect directors pursuant to Section 704 of the Company
Guide. However, if we have signed a definitive agreement for our
business combination prior to August 11, 2009 (or if it is apparent that it will
be signed shortly thereafter), we will hold our annual meeting of stockholders
promptly after the SEC completes its review of our proxy statement for such
transaction and allows us to hold the meeting. At such meeting, in
addition to asking stockholders to approve the transaction, stockholders will
also be asked to elect directors pursuant to Section 704 of the Company Guide.
T
he exchange is now evaluating our plan and will make a determination as
to whether we have made a reasonable demonstration in the plan of an ability to
regain compliance with the continued listing standards. If our plan is accepted,
we will be able to continue our listing, during which time we will be subject to
continued periodic review by the exchange’s staff. If our plan is not accepted,
the exchange could initiate delisting procedures against
us.
If the
NYSE Alternext US delists our securities from trading on its exchange, we could
face significant material adverse consequences, including:
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a
limited availability of market quotations for our
securities;
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reduced
liquidity with respect to our
securities;
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a
determination that our common stock is a “penny stock” which will require
brokers trading in our common stock to adhere to more stringent rules,
possibly resulting in a reduced level of trading activity in the secondary
trading market for our common
stock;
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a
limited amount of news and analyst coverage for our company;
and
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a
decreased ability to issue additional securities or obtain additional
financing in the future.
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We
may only be able to complete one business combination with the proceeds of our
IPO, which will cause us to be solely dependent on a single business which may
have a limited number of products or services.
Our
initial business combination must be with a target business having an aggregate
fair market value of at least 80% of our net assets at the time of such
acquisition, although this may entail the simultaneous acquisitions of several
operating businesses at the same time. However, we may not be able to acquire
more than one target business because of various factors, including the
existence of complex accounting issues and the requirement that we prepare and
file pro forma financial statements with the SEC that present operating results
and the financial condition of several target businesses as if they had been
operated on a combined basis. By consummating an initial business combination
with only a single entity, our lack of diversification may subject us to
numerous economic, competitive and regulatory developments. Further, we would
not be able to diversify our operations or benefit from the possible spreading
of risks or offsetting of losses, unlike other entities which may have the
resources to complete several business combinations in different industries or
different areas of a single industry. Accordingly, the prospects for our success
may be:
|
|
·
|
solely
dependent upon the performance of a single business,
or
|
|
|
·
|
dependent
upon the development or market acceptance of a single or limited number of
products, processes or services.
|
This lack
of diversification may subject us to numerous economic, competitive and
regulatory developments, any or all of which may have a substantial adverse
impact upon the industry in which we ultimately operate.
If
we determine to simultaneously acquire several businesses, we will need the
acquisitions to be consummated at the same time, thereby making it more
difficult for us to consummate a business combination.
If we
determine to simultaneously acquire several businesses and such businesses are
owned by different sellers, we will need for each of such sellers to agree that
our purchase of its business is contingent on the simultaneous closings of the
other business combinations, which may make it more difficult for us, and delay
our ability, to complete the business combination. With multiple business
combinations, we could also face additional risks, including additional burdens
and costs with respect to possible multiple negotiations and due diligence
investigations (if there are multiple sellers) and the additional risks
associated with the subsequent assimilation of the operations and services or
products of the acquired companies in a single operating business. If we are
unable to adequately address these risks, it could negatively impact our
profitability and results of operations.
We
may proceed with an initial business combination even if public stockholders
owning approximately 30% of the shares sold in the IPO exercise their conversion
rights.
We may
proceed with an initial business combination as long as public stockholders
owning less than 30% of the IPO shares exercise their conversion rights.
Accordingly, public stockholders holding up to approximately 29.99% of the IPO
shares may exercise their conversion rights and we could still consummate a
proposed business combination. We have set the conversion percentage at 30% in
order to reduce the likelihood that a small group of investors holding a block
of our stock will be able to stop us from completing an initial business
combination that is otherwise approved by a large majority of our public
stockholders.
Our
business combination may require us to use substantially all of our cash to pay
the purchase price. In such a case, because we will not know how many
stockholders may exercise such conversion rights, we may need to arrange third
party financing to help fund our business combination in case a larger
percentage of stockholders exercise their conversion rights than we expect.
Additionally, even if our business combination does not require us to use
substantially all of our cash to pay the purchase price, if a significant number
of stockholders exercise their conversion rights, we will have less cash
available to use in furthering our business plans following an initial business
combination and may need to arrange third party financing. We have not taken any
steps to secure third party financing for either situation. We cannot assure you
that we will be able to obtain such third party financing on terms favorable to
us or at all.
The
ability of our stockholders to exercise their conversion rights may not allow us
to effectuate the most desirable business combination or optimize our capital
structure.
When we
seek stockholder approval of any business combination, we will offer each public
stockholder (but not our founders) the right to have his, her or its shares of
common stock converted to cash if the stockholder votes against the initial
business combination and the initial business combination is approved and
completed. Such holder must both vote against such business combination and then
exercise his, her or its conversion rights to receive a pro rata portion of the
trust account. Accordingly, if our business combination requires us to use
substantially all of our cash to pay the purchase price, because we will not
know how many stockholders may exercise such conversion rights, we may either
need to reserve part of the trust account for possible payment upon conversion,
or we may need to arrange third party financing to help fund our business
combination in case a larger percentage of public stockholders exercise their
conversion rights than we expect. Therefore, we may not be able to consummate an
initial business combination that requires us to use all of the funds held in
the trust account as part of the purchase price, or we may end up having a
leverage ratio that is not optimal for our business combination. This may limit
our ability to effectuate the most attractive business combination available to
us.
We
may require stockholders who wish to convert their shares in connection with a
proposed business combination to comply with specific requirements for
conversion that may make it more difficult for them to exercise their conversion
rights prior to the deadline for exercising their rights.
We may
require public stockholders who wish to convert their shares in connection with
a proposed business combination to either tender their certificates to our
transfer agent at any time prior to the vote taken at the stockholder meeting
relating to such initial business combination or to deliver their shares to the
transfer agent electronically using the Depository Trust Company’s DWAC
(Deposit/Withdrawal At Custodian) System. In order to obtain a physical stock
certificate, a stockholder’s broker and/or clearing broker, DTC and our transfer
agent will need to act to facilitate this request. It is our understanding that
stockholders should generally allot at least two weeks to obtain physical
certificates from the transfer agent. However, because we do not have any
control over this process or over the brokers or DTC, it may take significantly
longer than two weeks to obtain a physical stock certificate. While we have been
advised that it takes a short time to deliver shares through the DWAC System, we
cannot assure you of this fact. Accordingly, if it takes longer than we
anticipate for stockholders to deliver their shares, stockholders who wish to
convert may be unable to meet the deadline for exercising their conversion
rights and thus may be unable to convert their shares.
Because
of our limited resources and structure, we may not be able to consummate an
attractive business combination.
We expect
to encounter intense competition from entities other than blank check companies
having a business objective similar to ours, including venture capital funds,
leveraged buyout funds and operating businesses competing for acquisitions. Many
of these entities are well established and have extensive experience in
identifying and effecting business combinations directly or through affiliates.
Many of these competitors possess greater technical, human and other resources
than we do and our financial resources will be relatively limited when
contrasted with those of many of these competitors. Our ability to compete in
acquiring certain sizable target businesses will be limited by our available
financial resources. Furthermore, the obligation we have to seek stockholder
approval of a business combination may delay the consummation of a transaction.
Additionally, our outstanding warrants, and the future dilution they potentially
represent, may not be viewed favorably by certain target businesses. Any of
these obligations may place us at a competitive disadvantage in successfully
negotiating a business combination. Additionally, because of our structure,
there may be fewer attractive target businesses available to acquire or
privately held target businesses may not be inclined to enter into a transaction
with a publicly held blank check company like us.
We
may be unable to obtain additional financing, if required, to complete an
initial business combination or to fund the operations and growth of the target
business, which could compel us to restructure or abandon a particular business
combination.
If the
net proceeds of our IPO prove to be insufficient to allow us to consummate a
particular business combination either because of the size of the business
combination, the depletion of the available net proceeds in search of a target
business, or the obligation to convert into cash a significant number of shares
from dissenting stockholders, we will be required to seek additional financing.
The current global credit crisis is making it difficult, if not impossible, for
companies to obtain financing for acquisitions and operational growth. There is
no indication when this credit crisis will abate. Accordingly, financing may not
be available to us on acceptable terms, if at all. To the extent that additional
financing proves to be unavailable when needed to consummate a particular
business combination, we would be compelled to either restructure the
transaction or abandon that particular business combination and seek an
alternative target business candidate. In addition, if we consummate a business
combination, we may require additional financing to fund the operations or
growth of the target business. The failure to secure additional financing could
have a material adverse effect on the continued development or growth of the
target business. None of our officers, directors or stockholders is required to
provide any financing to us in connection with or after a business
combination.
Our
founders, including one of our officers and directors, control a
substantial interest in us and thus may influence certain actions requiring a
stockholder vote.
Our
founders (including one of our officers and directors) collectively own 20% of
our issued and outstanding shares of common stock. Our founders are not
restricted from purchasing additional units or shares of common stock in the
open market or in private tractions. Additional purchases of shares of common
stock by our founders, including one of our officers or directors, would likely
allow them to exert more influence over the approval of our initial business
combination. These individuals may have substantial financial interests in
making these types of purchases. Furthermore, these purchases may make it less
likely that the holders of 30% or more of the IPO shares vote against a business
combination and exercise their conversion rights.
Our board
of directors is and will be divided into three classes, each of which will
generally serve for a term of three years with only one class of directors being
elected in each year. It is unlikely that there will be an annual meeting of
stockholders to elect new directors prior to the consummation of an initial
business combination, in which case all of the current directors will continue
in office until at least the consummation of the initial business combination.
If there is an annual meeting, as a consequence of our “staggered” board of
directors, only a minority of the board of directors will be considered for
election and our founders, because of their ownership position, will have
considerable influence regarding the outcome. Accordingly, our founders will
continue to exert control at least until the consummation of an initial business
combination.
Our
outstanding warrants may have an adverse effect on the market price of our
common stock and make it more difficult to effect an initial business
combination.
We issued
warrants to purchase 9,732,669 shares of common stock as part of the units
offered in the IPO. We also sold the sponsors’ warrants to purchase 2,650,000
shares of common stock. To the extent we issue shares of common stock to effect
an initial business combination, the potential for the issuance of a substantial
number of additional shares upon exercise of these warrants could make us a less
attractive acquisition vehicle in the eyes of a target business. Such
securities, when exercised, will increase the number of issued and outstanding
shares of common stock and reduce the value of the shares issued to complete the
initial business combination. Accordingly, our warrants may make it more
difficult to effectuate an initial business combination or increase the cost of
acquiring the target business. Additionally, the sale, or even the possibility
of a sale, of the shares underlying the warrants could have an adverse effect on
the market price for our securities or on our ability to obtain future
financing. If and to the extent these warrants are exercised, you may experience
a substantial dilution of your holdings.
Our
management’s ability to require holders of our warrants to exercise such
warrants on a cashless basis will cause holders to receive fewer shares of
common stock upon their exercise of the warrants than they would have received
had they been able to exercise their warrants for cash.
If we
call our warrants for redemption after the redemption criteria described in the
prospectus for our IPO have been satisfied, our management will have the option
to require any holder that wishes to exercise his warrant to do so on a
“cashless basis.” If our management chooses to require holders to exercise their
warrants on a cashless basis, the number of shares of common stock received by a
holder upon exercise will be fewer than it would have been had such holder
exercised his warrant for cash. This will have the effect of reducing the
potential “upside” of the holder’s investment in our company.
If
our founders or the holders of the sponsors’ warrants exercise their
registration rights with respect to their founders’ shares or sponsors’ warrants
and underlying shares, it may have an adverse effect on the market price of our
common stock and the existence of these rights may make it more difficult to
effect an initial business combination.
The
founders are entitled to demand that we register the resale of the founders’
shares at any time commencing nine months after the consummation of our initial
business combination. Additionally, the holders of the sponsors’ warrants are
entitled to demand that we register the resale of such warrants and underlying
shares of common stock at any time after we consummate an initial business
combination. If such individuals exercise their registration rights with respect
to all of their securities, then there will be an additional 2,433,168 shares of
common stock and 2,650,000 warrants (as well as 2,650,000 shares of common stock
underlying the warrants) eligible for trading in the public market. The presence
of these additional securities trading in the public market may have an adverse
effect on the market price of our common stock. In addition, the existence of
these rights may make it more difficult to effectuate an initial business
combination or increase the cost of acquiring the target business, as the
stockholders of the target business may be discouraged from entering into an
initial business combination with us or will request a higher price for their
securities because of the potential negative effect the exercise of such rights
may have on the trading market for our common stock.
If
we are deemed to be an investment company, we may be required to institute
burdensome compliance requirements and our activities may be restricted, which
may make it difficult for us to complete an initial business
combination.
A company
that, among other things, is or holds itself out as being engaged primarily, or
proposes to engage primarily, in the business of investing, reinvesting, owning,
trading or holding certain types of securities would be deemed an investment
company under the Investment Company Act of 1940. Since we have invested the IPO
proceeds held in the trust account, it is possible that we could be deemed an
investment company. Notwithstanding the foregoing, we do not believe that our
anticipated principal activities will subject us to the Investment Company Act
of 1940. To this end, the proceeds held in trust may be invested by the trustee
only in United States “government securities” within the meaning of Section
2(a)(16) of the Investment Company Act of 1940 having a maturity of 180 days or
less or in money market funds meeting certain conditions under Rule 2a-7
promulgated under the Investment Company Act of 1940. By restricting the
investment of the proceeds to these instruments, we intend to meet the
requirements for the exemption provided in Rule 3a-1 promulgated under the
Investment Company Act of 1940.
If we are
nevertheless deemed to be an investment company under the Investment Company Act
of 1940, we may be subject to certain restrictions that may make it more
difficult for us to complete an initial business combination,
including:
|
|
·
|
restrictions
on the nature of our investments;
and
|
|
|
·
|
restrictions
on the issuance of securities.
|
|
|
·
|
In
addition, we may have imposed upon us certain burdensome requirements,
including:
|
|
|
·
|
registration
as an investment company;
|
|
|
·
|
adoption
of a specific form of corporate structure;
and
|
|
|
·
|
reporting,
record keeping, voting, proxy, compliance policies and procedures and
disclosure requirements and other rules and
regulations.
|
Compliance
with these additional regulatory burdens would require additional expense for
which we have not allotted.
If
we effect an initial business combination with a company located outside of the
United States, we would be subject to a variety of additional risks that may
negatively impact our operations.
We may
effect an initial business combination with a company located outside of the
United States. If we do, we would be subject to any special considerations or
risks associated with companies operating in the target business’ home
jurisdiction, including any of the following:
|
|
·
|
rules
and regulations or currency conversion or corporate withholding taxes on
individuals;
|
|
|
·
|
tariffs
and trade barriers;
|
|
|
·
|
regulations
related to customs and import/export
matters;
|
|
|
·
|
tax
issues, such as tax law changes and variations in tax laws as compared to
the United States;
|
|
|
·
|
currency
fluctuations and exchange controls;
|
|
|
·
|
challenges
in collecting accounts receivable;
|
|
|
·
|
cultural
and language differences; and
|
|
|
·
|
employment
regulations.
|
If we
were unable to adequately address these additional risks, our operations might
suffer.
If
we effect an initial business combination with a company located outside of the
United States, the laws applicable to such company will likely govern all of our
material agreements and we may not be able to enforce our legal
rights.
If we
effect an initial business combination with a company located outside of the
United States, the laws of the country in which such company operates will
govern almost all of the material agreements relating to its operations. We
cannot assure you that the target business will be able to enforce any of its
material agreements or that remedies will be available in this new jurisdiction.
The system of laws and the enforcement of existing laws in such jurisdiction may
not be as certain in implementation and interpretation as in the United States.
The inability to enforce or obtain a remedy under any of our future agreements
could result in a significant loss of business, business opportunities or
capital. Additionally, if we acquire a company located outside of the United
States, it is likely that substantially all of our assets would be located
outside of the United States and some of our officers and directors might reside
outside of the United States. As a result, it may not be possible for investors
in the United States to enforce their legal rights, to effect service of process
upon our directors or officers or to enforce judgments of United States courts
predicated upon civil liabilities and criminal penalties of our directors and
officers under Federal securities laws.
Risks
Associated with the Energy and Environmental Industries and Their Related
Infrastructures
Business
combinations with companies with operations in the energy and environmental
industries and their related infrastructures entail special considerations and
risks. If we are successful in completing a business combination with a target
business with operations in the energy and environmental industries and their
related infrastructures, we will be subject to, and possibly adversely affected
by, the following risks:
Fluctuations
in energy prices may cause a reduction in the demand or profitability of the
products or services we may ultimately produce or offer.
Prices
for energy sources such as oil and natural gas tend to fluctuate widely based on
a variety of political and economic factors. These price fluctuations heavily
influence both the energy and environmental industries and their related
infrastructures. Lower energy prices for existing products tend to limit the
demand for alternate forms of energy services and related products and
infrastructure. Factors that impact price fluctuations include the actions of
the members of the Organization of Petroleum Exporting Countries, or OPEC, the
level of production by non-OPEC countries, worldwide demand for oil and natural
gas, political tensions involving OPEC and non-OPEC countries and other varying
factors. If we complete a business combination with a target business that is
involved with an energy source that is affected by these or other factors, there
may be a decrease in the demand for the products or services we may ultimately
produce or offer and our profitability could be adversely affected.
Changes
in technology may render our products or services obsolete following a business
combination.
Both the
energy and environmental industries and their related infrastructures are
substantially affected by rapid and significant changes in technology. These
changes may render certain existing services and technologies currently used
obsolete. The technologies used by or relied upon by a target business with
which we effect a business combination may be subject to such obsolescence.
While we may attempt to adapt and apply the services provided by the target
business to newer technologies, our resources may be insufficient to fund these
changes or these changes may ultimately prove unsuccessful.
Failure
to comply with governmental regulations could result in the imposition of
penalties, fines or restrictions on operations and remedial
liabilities.
Both the
energy and environmental industries are subject to extensive federal, state and
local laws and regulations related to health and safety and those associated
with compliance and permitting obligations (including those related to the use,
storage, handling, discharge, emission and disposal of municipal solid waste and
other waste, pollutants or hazardous substances or wastes, or discharges and air
and other emissions) as well as land use and development. Existing laws also
impose obligations to clean up contaminated properties or to pay for the cost of
such remediation, often upon parties that did not actually cause the
contamination. Compliance with these laws, regulations and obligations could
require substantial capital expenditures. Failure to comply could result in the
imposition of penalties, fines or restrictions on operations and remedial
liabilities. These costs and liabilities could adversely affect our operations
following a business combination. These laws, regulations and obligations could
change with the promulgation of new laws and regulations or a change in the
interpretation of existing laws and regulations, which could result in
substantially similar risks. We may not be able to comply with existing or new
regulations.
If
we are unable to acquire or renew permits and approvals required for our
operations following a business combination, we may be forced to suspend or
cease our operations altogether.
The
construction and operation of energy projects require numerous permits and
approvals from governmental agencies. We may not be able to obtain all necessary
permits and approvals following a business combination. If we are unable to
obtain or renew permits or approvals necessary for the operation of our business
following a business combination, our operations would be adversely affected. In
addition, obtaining all necessary permits and approvals may necessitate
substantial expenditures and may create a significant risk of expensive delays
or loss of value if a project is unable to function as planned due to changing
requirements or local opposition.
Regulation
within the energy industry could reduce our profitability following a business
combination.
Essentially
all of the energy sectors including electric generation, transmission and
distribution, natural gas transmission and distribution, and oil transportation
are subject to highly technical Federal and state regulatory regimes. Rates,
terms of service, facility sites, financing, dividend payments, wages,
divestitures, changes in control and business dealings with affiliates are all
subject to ongoing regulatory disclosure and approval on the merits. The failure
or refusal of any jurisdictional regulator to grant approval as to any
particular rate, service or transaction could prove harmful to us, as could the
occurrence of any dispute with a regulator.
|
ITEM
1B.
|
UNRESOLVED
STAFF COMMENTS.
|
None.
We
maintain our principal executive offices at 545-7 Dogok-Dong, SoftForum B/D, 7th
Floor, Gangnam-Gu, Seoul, South Korea 135-270. An affiliate of ours is providing
this space to us. Such affiliate has agreed that, until we consummate
a business combination, it will make such office space available to us, as may
be required by us from time to time, at $5,500 per month. We consider
our current office space, combined with the other office space otherwise
available to our executive officers, adequate for our current
operations.
|
ITEM
3.
|
LEGAL
PROCEEDINGS.
|
None.
|
ITEM
4.
|
SUBMISSION
OF MATTERS TO A VOTE OF SECURITY
HOLDERS.
|
None.
PART
II
|
ITEM
5.
|
MARKET
FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER
PURCHASES OF EQUITY SECURITIES.
|
Market
Information
Our
units, common stock and warrants are listed on the NYSE Alternext US under the
symbols TGY.U, TGY and TGY.WS, respectively. The following table sets
forth the range of high and low sales prices for the units, common stock and
warrants for the periods indicated since the units commenced public trading on
December 12, 2007, and since the common stock and warrants commenced public
trading on March 5, 2008.
|
|
|
Units
|
|
|
Common Stock
|
|
|
Warrants
|
|
|
|
|
High
|
|
|
Low
|
|
|
High
|
|
|
Low
|
|
|
High
|
|
|
Low
|
|
|
2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter*
|
|
7.66
|
|
|
7.10
|
|
|
7.62
|
|
|
7.30
|
|
|
0.11
|
|
|
0.02
|
|
|
2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fourth
Quarter
|
|
|
7.26
|
|
|
|
6.96
|
|
|
|
7.25
|
|
|
|
6.94
|
|
|
|
0.30
|
|
|
|
0.03
|
|
|
Third
Quarter
|
|
|
8.03
|
|
|
|
7.25
|
|
|
|
7.60
|
|
|
|
7.10
|
|
|
|
0.56
|
|
|
|
0.25
|
|
|
Second
Quarter
|
|
|
8.03
|
|
|
|
7.55
|
|
|
|
7.55
|
|
|
|
7.20
|
|
|
|
0.60
|
|
|
|
0.40
|
|
|
First
Quarter
|
|
|
8.05
|
|
|
|
7.55
|
|
|
|
7.35
|
|
|
|
7.18
|
|
|
|
0.65
|
|
|
|
0.48
|
|
|
2007:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fourth
Quarter
|
|
|
8.00
|
|
|
|
7.90
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
__________________________
*
Through March 30, 2009.
Holders
As of
March 30, 2009, there was 1 holder of record of our units, 20 holders of
record of our common stock and 18 holders of record of our
warrants.
Dividends
We have
not paid any cash dividends on our common stock to date and do not intend to pay
cash dividends prior to the completion of a business combination. The payment of
cash dividends in the future will be contingent upon our revenues and earnings,
if any, capital requirements and general financial condition subsequent to
completion of a business combination. The payment of any dividends subsequent to
a business combination will be within the discretion of our then board of
directors. It is the present intention of our board of directors to retain all
earnings, if any, for use in our business operations and, accordingly, our board
does not anticipate declaring any dividends in the foreseeable
future.
Delisting notice and plan of
action
On
February 10, 2009, we received notice from the NYSE Alternext US, LLC indicating
that we were below certain additional continued listing standards of the
exchange, specifically that we had not held an annual meeting of stockholders in
2008, as set forth in Section 704 of the Company Guide. The notification from
the exchange indicated that we had until March 10, 2009 to submit a plan
advising the exchange of action we would take to bring us into compliance with
all
continued listing standards by August 11, 2009. We submitted our plan on
February 17, 2009. In the plan, we propose that if it appears likely that we
will not execute a definitive agreement for our business combination prior to
August 11, 2009, we will take all actions necessary to hold an annual meeting of
stockholders by August 11, 2009 solely to elect directors pursuant to Section
704 of the Company Guide. However, if we have signed a definitive
agreement for our business combination prior to August 11, 2009 (or if it is
apparent that it will be signed shortly thereafter), we will hold our annual
meeting of stockholders promptly after the SEC completes its review of our proxy
statement for such transaction and allows us to hold the meeting. At
such meeting, in addition to asking stockholders to approve the transaction,
stockholders will also be asked to elect directors pursuant to Section 704 of
the Company Guide. The exchange is now evaluating our plan and will make
a determination as to whether we have made a reasonable demonstration in
the plan of an ability to regain compliance with the continued listing
standards. If our
plan is
accepted, we will be able to continue our listing, during which time we will be
subject to continued periodic review by the exchange’s staff. If our plan is not
accepted, the exchange could initiate delisting procedures against
us.
Recent
Sales of Unregistered Securities and Use of Proceeds
In July
2007, we sold the following shares of common stock without registration under
the Securities Act of 1933, as amended:
|
Stockholders
|
|
Number of Shares
|
|
|
Lawrence
S. Coben
|
|
|
2,406,250
|
|
|
Jon
Schotz
|
|
|
150,000
|
|
|
Charles
A. Norris
|
|
|
150,000
|
|
|
Stephen
N. Casati
|
|
|
25,000
|
|
Such
shares were issued in connection with our organization pursuant to the exemption
from registration contained in Section 4(2) of the Securities Act as they were
sold to sophisticated, wealthy individuals or entities. The shares
issued to the individuals and entities above were sold at a purchase price of
approximately $0.009 per share.
In
September 2007, Lawrence S. Coben transferred 1,203,125 shares of common stock
to Ronald D. Ormand, our co-chief executive officer, chief financial officer and
member of our board of directors, for approximately $0.009 per share. In October
2007, Messrs. Coben and Ormand transferred an aggregate of 281,250 shares of
common stock to (i) Bill Armstrong (42,185 shares of common stock), (ii) Dean
Vanech (37,500 shares of common stock), (iii) Jerry Doren, Owen Coleman, Bill
Goldstein and Trevor Wilson (each 28,125 shares of common stock), (iv) David A.
Preiser (18,750 shares of common shares) and (v) Brian McInerney, Richard
Kassar, David Levine, Jim Land and Dr. John Jacobs (each 14,063 shares of common
stock), all for approximately $0.009 per share. In November 2007, Messrs. Coben
and Ormand transferred an aggregate of 187,500 shares of common stock to Gary
Evans for approximately $0.009 per share.
Simultaneously
with the consummation of the IPO, we consummated the private sale of 2,650,000
sponsors’ warrants at a price of $1.00 per sponsors’ warrant, generating total
proceeds of $2,650,000. Each sponsors’ warrant entitles the holder to purchase
one share of common stock at an exercise price of $5.00 per share, commencing
six months after our completion of a business combination and expiring on
December 5, 2012. The sponsors’ warrants are identical to the warrants issued in
our IPO except that if we call the warrants for redemption, the sponsors’
warrants will be exercisable on a cashless basis so long as they are still held
by such purchasers or their affiliates. The sponsors’ warrants were
purchased by Lawrence S. Coben, Ronald D. Ormand, our co-chief executive
officer, chief financial officer and member of our board of directors, Jon
Schotz, Charles A. Norris, Bill Goldstein, Olympus Capital Investment, LLC,
Jerry Doren, Owen Coleman, Bill Armstrong, Trevor Wilson, Brian McInerney,
Richard Kassar, David Levine, Jim Land, David A. Preiser, Gary Evans and Dr.
John Jacobs, each a stockholder of ours (except Olympus Capital Investment,
LLC).
In
January 2008, because only a portion of the over-allotment option was exercised,
the following founders’ shares were canceled in order to maintain our founders’
aggregate ownership in our common stock at 20%:
|
Name of Holder
|
|
Number of Shares
|
|
|
Lawrence
S. Coben
|
|
|
140,524
|
|
|
Ronald
D. Ormand
|
|
|
140,524
|
|
|
Jon
Schotz
|
|
|
5,678
|
|
|
Charles
A. Norris
|
|
|
5,678
|
|
|
Stephen
N. Casati
|
|
|
5,678
|
|
Initial
Public Offering
On
December 12, 2007, we closed our initial public offering of 9,500,000 units with
each unit consisting of one share of our common stock and one warrant, each to
purchase one share of our common stock at an exercise price of $5.00 per
share. On January 24, 2008, we consummated the closing of an
additional 232,669 units which were subject to the over-allotment
option. The units from the initial public offering (including the
over-allotment option) were sold at an offering price of $8.00 per unit,
generating total gross proceeds of $77,861,352. Merrill Lynch,
Pierce, Fenner & Smith Incorporated acted as representative of the
underwriters. The securities sold in the offering were registered under the
Securities Act of 1933 on a registration statement on Form S-1 (No. 333-145625).
The Securities and Exchange Commission declared the registration statement
effective on December 6, 2007.
We paid a
total of $2,335,841 in underwriting discounts and commissions and incurred
$602,705 for other costs and expenses related to the offering and the
over-allotment option. After deducting the underwriting discounts and
commissions and the offering expenses, the total net proceeds to us from the
offering and the private sale of sponsors’ warrants were $77,572,806, of which
$77,400,511 ($75,595,000 on December 12, 2007 and $1,805,511 on January 24,
2008) was deposited into the trust account. The remaining proceeds
became available to be used to provide for business, legal and accounting due
diligence on prospective business combinations and continuing general and
administrative expenses. In addition, there can be released to us
from the trust account interest earned on the funds in the trust account up to
an aggregate of $1,200,000 to fund expenses related to investigating and
selecting a target business and our other working capital requirements, plus any
amounts we may need to pay our income or other tax obligations. Through December
31, 2008, we have used all of the net proceeds that were not deposited into the
trust fund to pay general and administrative expenses, and we have drawn
interest income in the amount of $236,000 and $884,787 for our tax obligations
and working capital, respectively. The net proceeds deposited into the trust
fund remain on deposit in the trust fund earning interest. As of December 31,
2008, there was $77,652,972 plus accrued interest of $15,099 held in the trust
fund.
Issuer Purchases of Equity
Securities.
None.
|
ITEM
6.
|
SELECTED
FINANCIAL DATA.
|
The
selected financial data set forth below is derived from our audited financial
statements. This selected financial data should be read in conjunction with the
section under the caption “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and the Consolidated Financial Statements
included elsewhere in this Annual Report on Form 10-K:
|
|
|
|
|
|
From
inception
|
|
|
From
inception
|
|
|
|
|
Year
ended
|
|
|
(July
3, 2007) to
|
|
|
(July
3, 2007) to
|
|
|
|
|
12/31/2008
|
|
|
12/31/2007
|
|
|
12/31/2008
|
|
|
Statement
of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
Interest
Income
|
|
|
1,235,335
|
|
|
|
152,990
|
|
|
|
1,388,325
|
|
|
General
and administrative expenses
|
|
|
1,052,718
|
|
|
|
51,370
|
|
|
|
1,104,088
|
|
|
Provision
for income taxes
|
|
|
53,500
|
|
|
|
25,000
|
|
|
|
78,500
|
|
|
Net
income
|
|
|
129,117
|
|
|
|
76,620
|
|
|
|
205,737
|
|
|
Accretion
of Trust Account relating to common
|
|
|
|
|
|
|
|
|
|
|
|
|
|
stock
subject to possible conversion
|
|
|
(370,478
|
)
|
|
|
(45,882
|
)
|
|
|
(416,360
|
)
|
|
Net
income (loss) attributable to common stockholders
|
|
|
(241,361
|
)
|
|
|
30,738
|
|
|
|
(210,623
|
)
|
|
Earnings
per share data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average number of shares outstanding,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
basic
and diluted:
|
|
|
9,236,774
|
|
|
|
3,462,124
|
|
|
|
7,219,917
|
|
|
Net
income (loss) per share, basic and diluted
|
|
$
|
(0.03
|
)
|
|
$
|
0.01
|
|
|
$
|
(0.03
|
)
|
|
Number
of shares outstanding subject to possible
|
|
|
|
|
|
|
|
|
|
|
|
|
|
conversion
|
|
|
2,918,827
|
|
|
|
2,849,050
|
|
|
|
2,918,827
|
|
|
Net
income per share subject to possible
|
|
|
|
|
|
|
|
|
|
|
|
|
|
conversion,
basic and diluted:
|
|
$
|
0.13
|
|
|
$
|
0.02
|
|
|
$
|
0.14
|
|
|
Statement
of Cash Flows Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
cash (used in) provided by operating activities
|
|
$
|
187,646
|
|
|
$
|
(108,339
|
)
|
|
$
|
79,307
|
|
|
Net
cash used in investing activities
|
|
|
(2,061,997
|
)
|
|
|
(75,595,000
|
)
|
|
|
(77,656,997
|
)
|
|
Net
cash provided by financing activities
|
|
|
1,792,654
|
|
|
|
75,805,175
|
|
|
|
77,597,829
|
|
|
Cash
contributed to Trust Account
|
|
|
(2,057,972
|
)
|
|
|
(75,595,000
|
)
|
|
|
(77,652,972
|
)
|
|
Net
proceeds from public offering allocable to
|
|
|
|
|
|
|
|
|
|
|
|
|
|
stockholders'
equity
|
|
|
1,264,054
|
|
|
|
50,459,235
|
|
|
|
51,723,289
|
|
|
Portion
of net proceeds from public offering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
allocable
to common stock subject to possible
|
|
|
|
|
|
|
|
|
|
|
|
|
|
conversion
|
|
|
541,480
|
|
|
|
22,670,940
|
|
|
|
23,212,420
|
|
|
Proceeds
from issuance of insider warrants
|
|
|
-
|
|
|
|
2,650,000
|
|
|
|
2,650,000
|
|
|
|
|
December
31, 2008
|
|
|
December
31, 2007
|
|
|
|
|
|
Selected
Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
20,139
|
|
|
$
|
101,836
|
|
|
|
|
|
|
Investments
held in Trust Account including accrued interest
|
|
|
77,668,071
|
|
|
|
75,747,990
|
|
|
|
|
|
|
Total
assets
|
|
|
77,912,214
|
|
|
|
75,940,612
|
|
|
|
|
|
|
Common
stock subject to possible conversion
|
|
|
23,628,780
|
|
|
|
22,716,822
|
|
|
|
|
|
|
Total
stockholders' equity
|
|
|
51,060,332
|
|
|
|
50,112,093
|
|
|
|
|
|
|
ITEM
7.
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS.
|
Forward
Looking Statements
All
statements other than statements of historical fact included in this Form 10-K
including, without limitation, statements under “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” regarding our
financial position, business strategy and the plans and objectives of management
for future operations, are forward looking statements. When used in
this Form 10-K, words such as “anticipate,” “believe,” “estimate,” “expect,”
“intend” and similar expressions, as they relate to us or our management,
identify forward looking statements. Such forward looking statements
are based on the beliefs of management, as well as assumptions made by, and
information currently available to, our management. Actual results
could differ materially from those contemplated by the forward looking
statements as a result of certain factors detailed in our filings with the
Securities and Exchange Commission. All subsequent written or oral
forward looking statements attributable to us or persons acting on our behalf
are qualified in their entirety by this paragraph.
Overview
We were
formed on July 3, 2007, to serve as a vehicle to effect a merger, capital stock
exchange, asset acquisition, or other similar business combination with an
operating business. Our efforts in identifying a prospective target
business will not be limited to a particular industry, although we intend to
focus our efforts on acquiring an operating business in either the energy or the
environmental industry and their related infrastructures.
As
indicated in the accompanying financial statements, at December 31, 2008, we had
$20,139 in cash and $77,668,071 in cash equivalents held in the trust account.
Further, we have incurred and expect to continue to incur significant costs in
pursuit of our financing and acquisition plans. We cannot assure you that our
plan to consummate a business combination will be successful. We must complete a
business combination with a fair market value of at least 80% of our net assets
(excluding the amount held in the trust account representing a portion of the
underwriters’ discount) at the time of acquisition by December 6, 2009.
These factors, among others, raise substantial doubt as to our ability to
continue as a going concern.
Results
of Operations
For the
year ended December 31, 2008, we had net income of $129,117. Interest income on
the trust account investment was $1,235,335. During the fourth
quarter of 2008, we reduced interest income by approximately $72,000 related to
an overaccrual at September 30, 2008. General and administrative expenses were
$1,052,718, which includes administrative consulting fees of $140,440, dues and
subscriptions of $33,680, professional fees of $572,843, Delaware franchise tax
of $57,500, insurance of $71,838, travel of $114,073, rent and office expenses
of $59,478 and other operating costs of $2,866. Professional fees include
approximately $473,000 related to a potential acquisition. These costs
were deferred through September 30, 2008. In the fourth quarter of 2008,
we determined that the acquisition was unlikely to succeed and expensed the
costs. We have a provision for federal income taxes of
$53,500.
For
the period from July 3, 2007 (inception) to December 31, 2008, we had net income
of $205,737 which consisted of interest income on the trust account investment
of $1,388,325, offset by general and administrative expenses of $1,104,088,
which includes administrative consulting fees of $140,440, dues and
subscriptions of $33,680, professional fees of $572,843, Delaware franchise tax
of $83,554, insurance of $75,052, travel of $130,199, rent and office expenses
of $59,478, formation costs of $5,650, and other operating costs of
$3,192. The Company has a provision for Federal income taxes of
$78,500.
Liquidity
and Capital Resources
We
consummated our initial public offering of 9,500,000 units on December 12, 2007.
Gross proceeds from our initial public offering were $76,000,000. We paid a
total of $2,280,000 in underwriting discounts and commissions and incurred
$602,705 for costs and expenses related to the offering. An additional
$3,040,000 of underwriting discounts and commissions has been deferred by the
underwriters and placed in our trust account and will be released to the
underwriters only on completion of our initial business combination. After
deducting the underwriting discounts and commissions and the offering expenses,
the total net proceeds, including $2,650,000 from the private sale of warrants
to Lawrence S. Coben, Ronald D. Ormand, our co-chief executive officer, chief
financial officer and member of our board of directors, Jon Schotz, Charles A.
Norris, Bill Goldstein, Olympus Capital Investment, LLC, Jerry Doren, Owen
Coleman, Bill Armstrong, Trevor Wilson, Brian McInerney, Richard Kassar, David
Levine, Jim Land, David A. Preiser, Gary Evans and Dr. John Jacobs, each a
stockholder of ours, (except Olympus Capital Investment, LLC) from the offering
were $75,767,295, of which $75,595,000 was deposited into the trust account. On
January 24, 2008, we consummated the closing of the sale of 232,669 additional
units which were sold subject to the underwriters' over-allotment
option. The 9,732,669 units sold in the initial public offering,
including the 232,669 units sold subject to the over-allotment option, were sold
at an offering price of $8.00 per unit, generating total gross proceeds of
$77,861,352. Of the gross proceeds of the offering and the private
placement of warrants, $77,400,511 (or approximately $7.95 per share) was placed
in the trust account. The net proceeds deposited into the trust fund remain on
deposit in the trust fund and earned $1,388,325 in interest through December 31,
2008. We intend to use substantially all of the net proceeds of the
initial public offering to effect a business combination. To the extent that our
capital stock is used in whole or in part as consideration to effect a business
combination, the proceeds held in the trust account as well as any other net
proceeds not expended will be used to finance the operations of the target
business. We believe we will have sufficient available funds outside of the
trust fund to operate through December 6, 2009, assuming that a business
combination is not consummated during that time.
We
expect our primary liquidity requirements during this period to include
approximately $200,000 for expenses for the due diligence and investigation of a
target business or businesses; approximately $500,000 for legal, accounting and
other expenses associated with structuring, negotiating and documenting an
initial business combination; $150,000 for legal and accounting fees relating to
our SEC reporting obligations; and approximately $500,000 for general working
capital that will be used for miscellaneous expenses and reserves. We do not
believe we will need to raise additional funds in order to meet the expenditures
required for operating our business. However, we may need to raise additional
funds through a private offering of debt or equity securities if such funds are
required to consummate a business combination that is presented to us. We would
only consummate such a financing simultaneously with the consummation of a
business combination.
In
addition, prior to the IPO, Lawrence S. Coben and Ronald D. Ormand advanced an
aggregate of $157,990 to us for payment on our behalf of offering expenses.
These loans were repaid following our initial public offering from the proceeds
of the offering.
Recently
Issued Accounting Pronouncements
In
December 2007, the Financial Accounting Standards Board (“FASB”) issued
Statement of Financial Accounting Standards (“SFAS”) No. 141R (revised 2007),
“Business Combinations” (“SFAS 141(R)”). SFAS 141(R) retains the fundamental
requirements of the original pronouncement requiring that the purchase method be
used for all business combinations, but also provides revised guidance for
recognizing and measuring identifiable assets and goodwill acquired and
liabilities assumed arising from contingencies, the capitalization of
in-process research and development at fair value, and the expensing of
acquisition-related costs as incurred. SFAS 141(R) is effective for fiscal years
beginning after December 15, 2008. In the event that we complete acquisitions
subsequent to our adoption of SFAS 141(R), the application of its provisions
will likely have a material impact on our results of operations, although we are
not currently able to estimate that impact.
In
December 2007, the FASB issued SFAS No. 160, “Non-controlling Interests in
Consolidated Financial Statements – an amendment of ARB No. 51” (“SFAS 160”).
SFAS 160 requires that ownership interests in subsidiaries held by parties other
than the parent, and the amount of consolidated net income, be clearly
identified, labeled and presented in the consolidated financial statements. It
also requires that once a subsidiary is deconsolidated, any retained
non-controlling equity investment in the former subsidiary be initially measured
at fair value. Sufficient disclosures are required to clearly identify and
distinguish between the interests of the parent and the interests of the
non-controlling owners. It is effective for fiscal years beginning after
December 15, 2008, and requires retroactive adoption of the presentation and
disclosure requirements for existing minority interests. All other requirements
are applied prospectively. We do not expect the adoption of SFAS 160 to have a
material impact on our financial condition or results of
operations.
In March
2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments
and Hedging Activities” (“SFAS 161”). SFAS 161 amends and expands the disclosure
requirements of SFAS No. 133, “Accounting for Derivative Instruments and Hedging
Activities,” to improve financial reporting of derivative instruments and
hedging activities by requiring enhanced disclosures to enable investors to
better understand their effects on an entity’s financial
position,
financial performance, and cash flows. SFAS 161 is effective for financial
statements issued for fiscal years and interim periods beginning after November
15, 2008, which will require us to adopt these provisions beginning in fiscal
2009 and thereafter. We do not expect the adoption of SFAS 161 to have a
material impact on our financial condition or results of
operations.
In
June 2008, the FASB issued FASB Staff Position No. EITF 03-6-1, “Determining
Whether Instruments Granted in Share-Based Payment Transactions Are
Participating Securities,” which classifies unvested share-based payment awards
that contain nonforfeitable rights to dividends or dividend equivalents (whether
paid or unpaid) as participating securities and requires them to be included in
the computation of earnings per share pursuant to the two-class method described
in SFAS No. 128, “Earnings per share.” This Staff Position is effective for
financial statements issued for fiscal years beginning after December 15, 2008,
and interim periods within those years. All prior-period earnings per share data
presented are to be adjusted retrospectively (including interim financial
statements, summaries of earnings, and selected financial data). We do not
expect the adoption of the adoption of this Staff Position to have a material
impact on our financial condition or results of operations .
The
Company does not believe that any other recently issued, but not yet effective,
accounting standards if currently adopted would have a material effect on the
accompanying financial statements.
Off-Balance
Sheet Arrangements
Options
and warrants issued in conjunction with our IPO are equity linked derivatives
and accordingly represent off-balance sheet arrangements. The options and
warrants meet the scope exception in paragraph 11(a) of Financial Accounting
Standard No. 133 (“FAS 133”) and are accordingly not accounted for as
derivatives for purposes of FAS 133, but instead are accounted for as equity.
See Note 2 to the financial statements for more information.
|
ITEM
7A.
|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK.
|
This
item is not required as we are a smaller reporting company.
|
ITEM
8.
|
FINANCIAL
STATEMENTS AND SUPPLEMENTARY
DATA.
|
This
information appears following Item 15 of this Annual Report and is incorporated
herein by reference.
|
ITEM
9.
|
CHANGES
IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE.
|
None.
|
ITEM
9A(T).
|
CONTROLS
AND PROCEDURES.
|
Evaluation
of Disclosure Controls and Procedures
We have
established disclosure controls and procedures to ensure that material
information relating to us is made known to the officers who certify our
financial reports and to other members of senior management and the Board of
Directors.
Based
on their evaluation as of December 31, 2008, our principal executive officer and
our principal financial and accounting officer have concluded that our
disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e)
under the Securities Exchange Act of 1934) as of the end of the period covered
by this Annual Report on Form 10-K are effective.
Limitations
on the effectiveness of controls
A control
system, no matter how well conceived and operated, can provide only reasonable,
not absolute, assurance that the objectives of the control system are
met. Because of the inherent limitations in all control systems, no
evaluation of controls can provide absolute assurance that all control issues
and instances of fraud, if any, within a company have been
detected. Our disclosure controls and procedures are designed to
provide reasonable assurance of achieving its objectives.
Management's
Report on Internal Control Over Financial Reporting
Our
management is responsible for establishing and maintaining adequate internal
control over financial reporting as such term is defined in Exchange Act Rule
13a-15(f). Internal control over financial reporting is a process
used to provide reasonable assurance regarding the reliability of our financial
reporting and the preparation of our financial statements for external purposes
in accordance with generally accepted accounting principles in the United
States. Internal control over financial reporting includes policies and
procedures that pertain to the maintenance of records that in reasonable detail
accurately and fairly reflect the transactions and dispositions of our assets;
provide reasonable assurance that transactions are recorded as necessary to
permit preparation of our financial statements in accordance with generally
accepted accounting principles in the United States, and that our receipts and
expenditures are being made only in accordance with the authorization of our
board of directors and management; and provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or disposition
of our assets that could have a material effect on our financial
statements.
An
internal control system over financial reporting has inherent limitations and
may not prevent or detect misstatements. Therefore, even those systems
determined to be effective can provide only reasonable assurance with respect to
financial statement preparation and presentation. Also, projections of any
evaluation of effectiveness to future periods are subject to the risk that
controls may become inadequate because of changes in conditions, or that the
degree of compliance with the policies or procedures may deteriorate. However,
these inherent limitations are known features of the financial reporting
process. Therefore, it is possible to design into the process safeguards to
reduce, though not eliminate, this risk.
Our
management assessed the effectiveness of our internal control over financial
reporting as of December 31, 2008. In making this assessment, our management
used the criteria set forth by the
Committee of Sponsoring
Organizations of the Treadway Commission in Internal Control — Integrated
Framework
. Based on management’s assessment and those criteria, our
management believes that we maintained effective internal control over financial
reporting as of December 31, 2008.
This
annual report does not include an attestation report of our registered public
accounting firm regarding internal control over financial
reporting. Management’s report was not subject to attestation by our
registered public accounting firm pursuant to temporary rules of the Securities
and Exchange Commission that permit us to provide only management’s report in
this annual report.
Changes
in Internal Control Over Financial Reporting
For the
three month period ending December 31, 2008, there has been no change in our
internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, our internal control over financial
reporting.
|
ITEM
9B.
|
OTHER
INFORMATION.
|
None.
|
ITEM
10.
|
DIRECTORS,
EXECUTIVE OFFICERS AND CORPORATE
GOVERNANCE.
|
Directors
and Executive Officers
Our
current directors and executive officers are as follows:
|
Name
|
|
Age
|
|
Position
|
|
Sang-Chul
Kim
|
|
55
|
|
Chairman
of the Board and Co-Chief Executive Officer
|
|
Ronald
D. Ormand
|
|
50
|
|
Co-Chief
Executive, Chief Financial Officer and Director
|
|
Jhong
Won Kim
|
|
65
|
|
Director
|
|
Seung
Jung Ro
|
|
44
|
|
Director
|
|
David
Jin Yoo
|
|
35
|
|
Director
|
|
Yeon-su
Kim
|
|
25
|
|
Secretary
|
Sang-Chul
Kim
has served as our chairman and co-chief executive officer since March
2009. He has also served as the chief executive officer of Dawin Technology,
Inc., an ASIC/SoC design and services company that has a strategic partnership
with Samsung Electronics Co., Ltd. since May 2008. Mr. Kim has also served as
the chairman of the boards of directors of both SF Investment Co., Ltd., an
investment company and SoftForum Co., Ltd., a web and desktop security software
company and systems producer, since June 2005. From June 2004 to May 2005, he
was the chairman of the boards of directors of WIZIT Co., Ltd., a metering
hardware, semiconductor and LCD components manufacturer, and DureCom Co., Ltd.,
a plastic molding/injection manufacturer, the latter of which merged with
SoftForum Co., Ltd. in 2005. Mr. Kim served as the president and chief executive
officer of Kumho Metertech, Inc., which he founded, from February 1997 to
January 2004. In June 2008, Mr. Kim was elected as the vice chairman of the
Korea CEO Association (KCEOA). Mr. Kim received his Bachelor of Arts in
Political Science from Dankook University.
Ronald D.
Ormand
has served as a member of our board of directors since September
2007, as our chief financial officer since November 2007 and as our co-chief
executive officer since March 2009. Mr. Ormand has over twenty five years of
investment and commercial banking experience in the energy industry. From April
2005 to October 2007, he served as a managing director with West LB, a
German-based international bank with over $300 billion in assets, where he
covered the energy industry and served as head of the oil and gas investment
banking group for the Americas. From 1988 until December 2004, Mr. Ormand was
with CIBC World Markets and Oppenheimer & Co., which CIBC acquired in 1997.
From 1997 to 2004, Mr. Ormand served as head of CIBC World Markets’ U.S. oil and
gas investment banking group. Prior to joining CIBC World Markets in 1988, Mr.
Ormand worked in various investment banking positions with Bateman Eichler, Hill
Richards Incorporated, and L.F. Rothschild & Co., and as a research analyst
covering the exploration and production sector at Rauscher Pierce Refsnes, Inc.
Mr. Ormand received a B.A. and an M.B.A. from the University of California at
Los Angeles and attended Cambridge University in Cambridge, England where he
studied Economics.
Jhong
Won Kim
has served as a member of our board of directors since March
2009. Mr. Kim served as a director and the chief financial officer of the Korea
Railroad Construction Authority (a rail investment company established by the
Korean Government to build, develop and manage railways) from January 2004 until
January 2007, where he advised the Finance department on matters including
financing, strategy and financial planning, and risk management. From November
2005 until December 2006, Mr. Kim served as a director and a member of the
management advisory committee of Korea NICE e-banking Services, Co., Ltd. (a
subsidiary of the National Information & Credit Evaluation Inc.), a company
that operates and manages ATMs in banks, security and insurance companies,
investment trusts and other related financial institutions. From October 2002 to
January 2006, Mr. Kim was an executive director of the Friendship Society of the
Ministry of Finance and Economy. He also served from January 2001 to January
2002, as vice president of Yushin Corporation, a civil infrastructure company,
and from January 2000 until January 2001, Mr. Kim served on the board of Rotem
Co. (now known as Hyundai Rotem, and member of the Hyundai Motor Group). Mr. Kim
received his Bachelor of Arts in Economics from Yonsei University and his Master
of Arts in Development Economics from Boston University.
Seung
Jung Ro
has served as a member of our board of directors since March
2009. Mr. Ro has been the chief executive officer of Mermax Co., Ltd., a
semiconductor manufacturer, since August 2008. From January 2006 to August 2008,
Mr. Ro served as the chief executive officer of DureCom Co., Ltd. Mr. Ro also
served as the chief executive officer of DureTech Inc., a semiconductor and LCD
components manufacturer, from March 2000 to December 2005. From July 1999 to
February 2000, Mr. Ro served as a director for KoreaSambo Inc., a gas metering
manufacturer. From February 1997 to June 1999, Mr. Ro also served as manager of
the administration department for Kumho Metertech, Inc., a metering business
administration firm. Mr. Ro earned his Bachelor of Science from Chungbuk
National University.
David
Jin Yoo
has served as a member of our board of directors since March
2009. Mr. Yoo has served as the managing director of Hyundai LCD USA, Inc., an
LCD manufacturer, since November 2008. From September 2004 to November 2008, Mr.
Yoo served as a vice president of the corporate finance group at
EarlyBirdCapital, Inc., an investment banking firm. From May 2004 to September
2004, he worked as an associate at Ardour CapitalPartners, LLC, another
investment banking firm. Mr. Yoo also served as a senior associate from May 2003
to September 2003 at KPMG International Financial Advisory Services Inc., a
corporate finance firm. He was manager and assistant to the Chairman at The
Doosan Group from May 1994 to August 2002. Mr. Yoo earned his Bachelor of Arts
at University of California at Berkeley and his Master of Business
Administration from Leonard N. Stern School of Business at New York
University.
Yeon-su
Kim
has served as our secretary since March 2009. Ms. Kim has served as
the chief executive officer and a director of Han Wool S&C. Co., Ltd., an
investment firm, since April 2008. Since March 2007, Ms. Kim has served as an
adviser for SF Investment Co., Ltd. Ms. Kim has also served as head of the
foreign business division for WIZIT Co., Ltd., since January 2007. Ms. Kim
earned her Bachelor of Arts from Boston University, School of Management and a
Bachelor of Commerce from Auckland University. Ms. Kim is the daughter of
Sang-Chul Kim.
Our
board of directors is divided into three classes with only one class of
directors being elected in each year and each class serving a three-year term.
The term of office of the first class of directors, consisting of Seung Jung Ro,
will expire at our first annual meeting of stockholders. The term of office of
the second class of directors, consisting of Jhong Won Kim, will expire at the
second annual meeting. The term of the third class of directors, consisting of
Sang-Chul Kim and David Jin Yoo, will expire at the third annual
meeting.
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Securities Exchange Act of 1934 requires our officers, directors
and persons who own more than ten percent of a registered class of our equity
securities to file reports of ownership and changes in ownership with the
Securities and Exchange Commission. Officers, directors and ten
percent stockholders are required by regulation to furnish us with copies of all
Section 16(a) forms they file. Based solely on copies of such forms
received or written representations from certain reporting persons that no Form
5s were required for those persons, we believe that, during the fiscal year
ended December 31, 2008, all filing requirements applicable to our officers,
directors and greater than ten percent beneficial owners were complied
with.
Code
of Ethics
In
December 2007, our board of directors adopted a code of ethics that applies to
our directors, officers and employees as well as those of our
subsidiaries. Copies of our code of ethics are available free of
charge upon request. Requests for copies of our code of ethics should be sent in
writing to Tremisis Energy Acquisition Corporation II, 545-7 Dogok-Dong,
SoftForum B/D, 7th Floor, Gangnam-Gu, Seoul, South Korea, 135-270. We have also
filed the code of ethics as an exhibit hereto.
Corporate
Governance
Board Meeting
Attendance.
During the fiscal year ended December 31, 2008,
there were
three
meetings of our board of directors, and the various committees of the board of
directors met a total of
four
times. No
director attended fewer than 75% of the total number of meetings of the board
and of committees of the board on which he served during fiscal
2008.
Nominating
Committee
Effective
December 2007, we established a nominating committee of the board of directors,
which currently consists of Jhong Won Kim, as chairman, and David Jin Yoo
and Seung Jung Ro, each of whom is an independent director under the NYSE
Alternext US’s listing standards. The nominating committee is responsible for
overseeing the selection of persons to be nominated to serve on our board of
directors. The nominating committee considers persons identified by its members,
management, stockholders and others. The nominating committee did not meet
during the fiscal year ended December 31, 2008.
Guidelines for Selecting
Director Nominees
The
guidelines for selecting nominees, which are specified in the Nominating
Committee Charter, generally provide that the Nominating Committee will consider
and evaluate based on, among other factors, the following:
|
|
·
|
The
candidate’s independence under the rules of the NYSE Alternext
US;
|
|
|
·
|
The
candidate’s accomplishments and reputations, both personal and
professional;
|
|
|
·
|
The
candidate’s relevant experience and
expertise;
|
|
|
·
|
The
candidate’s knowledge of the company and issues affecting
us;
|
|
|
·
|
The
candidate’s moral and ethical character;
and
|
|
|
·
|
The
candidate’s ability to commit the required time necessary to discharge the
duties of board membership.
|
The
Nominating Committee will consider a number of qualifications relating to
management and leadership experience, background and integrity and
professionalism in evaluating a person’s candidacy for membership on the board
of directors. The nominating committee may require certain skills or attributes,
such as financial or accounting experience, to meet specific board needs that
arise from time to time. The nominating committee does not distinguish among
nominees recommended by shareholders and other persons.
There
have been no material changes to the procedures by which security holders may
recommend nominees to our board of directors.
Audit
Committee
Effective
December 2007, we established an audit committee of the board of directors,
which currently consists of Seung Jung Ro, as chairman, David Jin Yoo and Jhong
Won Kim, each of whom is an independent director under the NYSE Alternext’s
listing standards. The audit committee met four times during the fiscal
year ended December 31, 2008. The audit committee’s duties, which are specified
in our audit committee charter, include, but are not limited
to:
|
|
·
|
reviewing
and discussing with management and the independent auditor the annual
audited financial statements, and recommending to the board whether the
audited financial statements should be included in our Form
10-K;
|
|
|
·
|
discussing
with management and the independent auditor significant financial
reporting issues and judgments made in connection with the preparation of
our financial statements;
|
|
|
·
|
discussing
with management major risk assessment and risk management
policies;
|
|
|
·
|
monitoring
the independence of the independent
auditor;
|
|
|
·
|
verifying
the rotation of the audit partners having primary responsibility for the
audit and the audit partner responsible for reviewing the audit as
required by law;
|
|
|
·
|
reviewing
and approving all related-party
transactions;
|
|
|
·
|
inquiring
and discussing with management our compliance with applicable laws and
regulations;
|
|
|
·
|
pre-approving
all audit services and permitted non-audit services to be performed by our
independent auditor, including the fees and terms of the services to be
performed;
|
|
|
·
|
appointing
or replacing the independent
auditor;
|
|
|
·
|
determining
the compensation and oversight of the work of the independent auditor
(including resolution of disagreements between management and the
independent auditor regarding financial reporting) for the purpose of
preparing or issuing an audit report or related work;
and
|
|
|
·
|
establishing
procedures for the receipt, retention and treatment of complaints received
by us regarding accounting, internal accounting controls or reports which
raise material issues regarding our financial statements or accounting
policies.
|
Financial
Experts on Audit Committee
The audit
committee will at all times be composed exclusively of “independent directors”
who are “financially literate” as defined under the NYSE Alternext US listing
standards. The NYSE Alternext US listing standards define “financially literate”
as being able to read and understand fundamental financial statements, including
a company’s balance sheet, income statement and cash flow
statement.
In
addition, we must certify to the NYSE Alternext US that the committee has, and
will continue to have, at least one member who has past employment experience in
finance or accounting, requisite professional certification in accounting, or
other comparable experience or background that results in the individual’s
financial sophistication. The board of directors has determined that Messrs.
Jhong Won Kim and David Jin Yoo both satisfy the NYSE Alternext US’s definition
of financial sophistication and also qualify as an “audit committee financial
expert,” as defined under rules and regulations of the SEC.
Compensation
Committee
We do
not have a standing compensation committee. The board believes this is
appropriate as no compensation of any kind, including finder’s, consulting or
other similar fees, will be paid to any of our directors, or any of their
respective affiliates, prior to, or for any services they render in order to
effectuate, the consummation of our initial business
combination.
|
ITEM
11.
|
EXECUTIVE
COMPENSATION.
|
No
executive officer has received any cash compensation for services rendered to
us. No compensation of any kind, including finder’s, consulting or other similar
fees, will be paid to any of our directors, or any of their respective
affiliates, prior to, or for any services they render in order to effectuate,
the consummation of our initial business combination. However, such individuals
will be reimbursed for any out-of-pocket expenses incurred in connection with
activities on our behalf such as identifying potential target businesses and
performing due diligence on suitable business combinations.
Since our
formation, we have not granted any stock options or stock appreciation rights or
any awards under long-term incentive plans
.
Benchmarking
of Cash and Equity Compensation
We
believe it is important when making compensation-related decisions to be
informed as to current practices of similarly situated publicly held companies.
We expect to stay apprised of the cash and equity compensation practices of
publicly held companies in the industry we operate in following our initial
business combination through the review of such companies’ public reports and
through other resources. It is expected that any companies chosen for inclusion
in any benchmarking group would have business characteristics comparable to our
company, including revenues, financial growth metrics, stage of development,
employee headcount and market capitalization. While benchmarking may not always
be appropriate as a stand-alone tool for setting compensation due to the aspects
of our post-acquisition business and objectives that may be unique to us, we
generally believe that gathering this information will be an important part of
our compensation-related decision-making process.
Compensation
Components
Base Salary
. Generally, we
anticipate setting executive base salaries at levels comparable with those of
executives in similar positions and with similar responsibilities at comparable
companies. We will seek to maintain base salary amounts at or near the industry
norms while avoiding paying amounts in excess of what we believe is necessary to
motivate executives to meet corporate goals. It is anticipated base salaries
will generally be reviewed annually, subject to terms of employment agreements,
and that we will seek to adjust base salary amounts to realign such salaries
with industry norms after taking into account individual responsibilities,
performance and experience.
Annual Bonuses
. We may design
and utilize cash incentive bonuses for executives to focus them on achieving key
operational and financial objectives within a yearly time horizon. We will
structure cash incentive bonus compensation so that it is taxable to our
employees at the time it becomes available to them. At this time, it is not
anticipated that any executive officer’s annual cash compensation will exceed $1
million, and we have accordingly not made any plans to qualify for any
compensation deductions under Section 162(m) of the Internal Revenue
Code.
Equity Awards
. We may also
use stock options and other stock-based awards to reward long-term
performance. We believe that providing a meaningful portion of our
executives’ total compensation package in stock options and other stock-based
awards will align the incentives of our executives with the interests of our
shareholders and with our long-term success.
|
ITEM
12.
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS.
|
The
following table sets forth information regarding the beneficial ownership of our
common stock as of March 30, 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 officers and directors; and
|
|
|
·
|
all
our officers and directors as a
group.
|
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.
|
Name and Address of Beneficial Owner (1)
|
|
Amount and Nature of
Beneficial Ownership
|
|
|
Percent
of Class
|
|
|
Bulldog
Investors
|
|
|
1,409,560
|
(2)
|
|
|
11.6
|
%
|
|
Brian
Taylor
|
|
|
1,185,000
|
(3)
|
|
|
9.7
|
%
|
|
Fortress
Investment Group LLC
|
|
|
1,100,000
|
(4)
|
|
|
9.0
|
%
|
|
Citigroup
Global Markets Inc.
|
|
|
628,800
|
(5)
|
|
|
5.2
|
%
|
|
Aldebaran
Investments LLC
|
|
|
752,101
|
(6)
|
|
|
6.2
|
%
|
|
Name and Address of Beneficial Owner (1)
|
|
Amount and Nature of
Beneficial Ownership
|
|
|
Percent
of Class
|
|
|
Drawbridge
Special Opportunities Advisors LLC
|
|
|
821,800
|
(7)
|
|
|
6.8
|
%
|
|
Lawrence
S. Coben
|
|
|
827,726
|
(8)
|
|
|
6.8
|
%
|
|
Ronald
D. Ormand
|
|
|
827,726
|
(8)
|
|
|
6.8
|
%
|
|
Sang-Chul
Kim
|
|
|
0
|
|
|
|
|
*
|
|
Jhong
Won Kim
|
|
|
0
|
|
|
|
|
*
|
|
Seung
Jung Ro
|
|
|
0
|
|
|
|
|
*
|
|
David
Jin Yoo
|
|
|
0
|
|
|
|
|
*
|
|
All
directors and executive officers as a group (five
individuals)
|
|
|
827,726
|
(
9
)
|
|
|
6.8
|
%
|
________________________________
|
(1)
|
Unless
otherwise indicated, the business address of each of the individuals is
545-7 Dogok-Dong, SoftForum B/D, 7th Floor, Gangnam-Gu, Seoul, South Korea
135-270.
|
|
(2)
|
Bulldog
Investors (“Bulldog”) and Phillip Goldstein and Andrew Dakos, principals
of Bulldog, have sole voting power over 1,043,560 of such shares and
shared voting power over 365,740 of the shares of common
stock. Bulldog Investors and Mr. Goldstein and Mr. Dakos have
sole investment power over all such shares. The business
address of the entity and each principal is Park 80 West, Plaza Two,
Saddle Brook, New Jersey 07663. The foregoing information was
derived from a Schedule 13G filed with the Securities and Exchange
Commission on January 14, 2009.
|
|
(3)
|
Mr.
Taylor, Pine River Capital Management L.P. (“Pine River”) and Nisswa
Master Fund Ltd. (“Nisswa”) have shared voting and investment power over
the shares of common stock. The business address of Mr. Taylor,
Pine River and Nisswa is 601 Carlson Parkway, Suite 330, Minnetonka, MN
55305. The foregoing information was derived from a Schedule
13G filed with the Securities and Exchange Commission on December 17,
2007.
|
|
(4)
|
Represents
(i) 990,000 shares of common stock held by Drawbridge DSO Securities LLC
(“DSO”) and (ii) 110,000 shares of common stock held by Drawbridge OSO
Securities LLC (“OSO”). Each has sole voting and investment
power of such shares. Drawbridge Special Opportunities Fund LP
(“Fund LP”) is the sole managing member of DSO, Drawbridge Special
Opportunities GP LLC (“GP”) is the general partner of Fund LP and Fortress
Principal Investment Holdings IV LLP (“Holdings”) is the sole managing
member of GP. Drawbridge Special Opportunities Fund Ltd. (“Fund
Ltd.”) is the sole managing member of OSO, Drawbridge Special
Opportunities Advisors LLC (“Advisors”) is the investment advisor for Fund
LP and Fund Ltd., and FIG LLC (“FIG LLC”) is the sole managing member of
Advisors. Fortress Operating Entity I LP (“Operating”) is the
sole managing member of Holdings and FIG LLC, FIG Corp. (“FIG Corp.”) is
the general partner of Operating and Fortress Investment Group LLC
(“Group”) is the beneficial owner of all securities beneficially owned by
FIG Corp. Each of the foregoing entities has shared voting and
investment power over the shares beneficially owned by it. The
business address of all of the entities is c/o Fortress Investment Group
LLC, 1345 Avenue of the Americas, 46th Floor, New York, New York 10105,
Attention: Michael Cohn. The foregoing information was derived
from a Schedule 13G filed with the Securities and Exchange Commission on
February 14, 2008.
|
|
(5)
|
Represents
shares held by Citigroup Global Markets Inc. Assumes the
conversion or exercise of certain securities held. The business
address of Citigroup Global Markets Inc. is 388 Greenwich Street, New
York, New York 10013. The foregoing information was derived
from a Schedule 13G filed with the SEC on February 11,
2009.
|
|
(6)
|
The
business address of Aldebaran Investments LLC is 500 Park Avenue, 5th
Floor, New York, New York 10022. Represents 752,101 shares held
by Aldebaran Investments LLC. Includes shares held in a
separate account of which Aldebaran Investments LLC is the investment
manager. The foregoing information was derived from a Schedule
13G filed with the SEC on February 17,
2009.
|
|
(7)
|
The
business address of Drawbridge Special Opportunities Advisors LLC is c/o
Fortress Investment Group LLC, 1345 Avenue of the Americas, 46th Floor,
New York, NY 10105, Attention: Michael Cohn. The foregoing
information was derived from a Schedule 13G filed with the SEC on February
18, 2009.
|
|
(8)
|
Does
not include 450,000 shares of common stock issuable upon exercise of
sponsors’ warrants that are not exercisable and will not become
exercisable within 60 days. Mr. Coben’s business address is 40 West 22nd
Street, New York, New York 10010. Mr. Ormand’s business address is 11622
Monica Street, Houston, Texas
77024.
|
|
(9)
|
Does
not include 900,000 shares of common stock issuable upon exercise of
sponsors’ warrants that are not exercisable and will not become
exercisable within 60 days.
|
All of
the founders’ shares have been placed in escrow with Continental Stock Transfer
& Trust Company, as escrow agent, until one year after the consummation of
our initial business combination. The founders’ shares may be released from
escrow earlier than this date if, within the first year after we consummate an
initial business combination, we consummate a subsequent liquidation, merger,
stock exchange or other similar transaction which results in all of our
stockholders having the right to exchange their shares of common stock for cash,
securities or other property. Additionally, if holders of more than
20% of the IPO shares vote against a proposed business combination and seek to
exercise their conversion rights and such business combination is consummated,
our founders have agreed to forfeit and return to us for cancellation a number
of shares so that the founders will collectively own no more than 23.8% of our
outstanding common stock upon consummation of such business combination (without
giving effect to any shares that may be issued in the business combination).
During the escrow period, the holders of these shares will not be able to sell
or transfer their securities except (i) to an entity’s members upon its
liquidation, (ii) to relatives and trusts for estate planning purposes or (iii)
by private sales made at or prior to the consummation of a business combination
at prices no greater than the price at which the shares were originally
purchased, in each case where the transferee agrees to the terms of the escrow
agreement, but will retain all other rights as our stockholders, including,
without limitation, the right to vote their shares of common stock and the right
to receive cash dividends, if declared. If dividends are declared and payable in
shares of common stock, such dividends will also be placed in escrow. If we are
unable to effect a business combination and liquidate, none of our founders will
receive any portion of the liquidation proceeds with respect to their initial
shares.
Certain
of our officers, directors and initial stockholders purchased the sponsors’
warrants (for a total purchase price of $2,650,000) from us. These purchases
took place on a private placement basis simultaneously with the consummation of
our IPO. The sponsors’ warrants are identical to the warrants underlying the
units offered in our IPO except that if we call the warrants for redemption, the
sponsors’ warrants will be exercisable on a cashless basis so long as such
warrants are held by the purchasers or their affiliates. The purchasers have
agreed that the sponsors’ warrants will not be sold or transferred by them until
after we have completed a business combination.
Lawrence
S. Coben and Ronald D. Ormand are our “promoters” as that term is defined under
the federal securities laws.
|
ITEM
13.
|
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE.
|
In July
2007, we issued 2,731,250 shares of founders’ common stock to the individuals
set forth below for an aggregate of $25,000 in cash, at a purchase price of
approximately $0.009 per share, as follows:
|
Stockholders
|
|
Number of Shares
|
|
Relationship to Us
|
|
Lawrence
S. Coben
|
|
|
2,406,250
|
|
Stockholder
|
|
Jon
Schotz
|
|
|
150,000
|
|
|
|
Charles
A. Norris
|
|
|
150,000
|
|
|
|
Stephen
N. Casati
|
|
|
25,000
|
|
|
In
September 2007, Lawrence S. Cohen transferred 1,203,125 shares of common stock
to Ronald D. Ormand, our co-chief executive officer, chief financial officer and
member of our board of directors, for approximately $0.009 per share. In October
2007, Messrs. Coben and Ormand transferred an aggregate of 281,250 shares of
common stock to (i) Bill Armstrong (42,185 shares of common stock), (ii) Dean
Vanech (37,500 shares of common stock), (iii) Jerry Doren, Owen Coleman, Bill
Goldstein and Trevor Wilson (each 28,125 shares of common stock), (iv) David A.
Preiser (18,750 shares of common shares) and (v) Brian McInerney, Richard
Kassar, David Levine, Jim Land and Dr. John Jacobs (each 14,063 shares of common
stock), all for approximately $0.009 per share. In November 2007, Messrs. Coben
and Ormand transferred an aggregate of 187,500 shares of common stock to Gary
Evans for approximately $0.009 per share.
On
January 24, 2008, we consummated the offering of 232,669 units that were subject
to the over-allotment option granted to the underwriters in our initial public
offering. The remainder of the underwriters’ over-allotment option
expired unexercised. As only a portion of the over-allotment option
was exercised, the following founders’ shares were canceled:
|
Name of Holder
|
|
Number of Shares
|
|
|
Lawrence
S. Coben
|
|
|
140,524
|
|
|
Ronald
D. Ormand
|
|
|
140,524
|
|
|
Jon
Schotz
|
|
|
5,678
|
|
|
Charles
A. Norris
|
|
|
5,678
|
|
|
Stephen
N. Casati
|
|
|
5,678
|
|
The
following table reflects the current ownership of our founders shares,
accounting for the aforementioned transactions:
|
Name
|
|
Number of Shares
|
|
Relationship to Us
|
|
Ronald
D. Ormand
|
|
|
827,726
|
|
Co-Chief
Executive Officer, Chief Financial Officer and
Director
|
|
Lawrence
S. Coben
|
|
|
827,726
|
|
Stockholder
|
|
Jon
Schotz
|
|
|
144,822
|
|
|
|
Charles
A. Norris
|
|
|
144,822
|
|
|
|
Stephen
N. Casati
|
|
|
19,322
|
|
|
|
Bill
Armstrong
|
|
|
42,185
|
|
Stockholder
|
|
Dean
Vanech
|
|
|
37,500
|
|
Stockholder
|
|
Jerry
Doren
|
|
|
28,125
|
|
Stockholder
|
|
Owen
Coleman
|
|
|
28,125
|
|
Stockholder
|
|
Bill
Goldstein
|
|
|
28,125
|
|
Stockholder
|
|
Trevor
Wilson
|
|
|
28,125
|
|
Stockholder
|
|
David
A. Preiser
|
|
|
18,750
|
|
Stockholder
|
|
Brian
McInery
|
|
|
14,063
|
|
Stockholder
|
|
Richard
Kassar
|
|
|
14,063
|
|
Stockholder
|
|
David
Levine
|
|
|
14,063
|
|
Stockholder
|
|
Jim
Land
|
|
|
14,063
|
|
Stockholder
|
|
Dr.
John Jacobs
|
|
|
14,063
|
|
Stockholder
|
|
Gary
Evans
|
|
|
187,500
|
|
Stockholder
|
All of
the founders shares have been placed in escrow with Continental Stock Transfer
& Trust Company, as escrow agent, until one year after the consummation of a
business combination. The founders’ shares may be released from escrow earlier
than this date if, within the first year after we consummate a business
combination, we consummate a subsequent liquidation, merger, stock exchange or
other similar transaction which results in all of our stockholders having the
right to exchange their shares of common stock for cash, securities or other
property. Additionally, if holders of more than 20% of the IPO shares vote
against a proposed business combination and seek to exercise their conversion
rights and such business combination is consummated, our founders have agreed to
forfeit and return to us for cancellation a number of shares so that the
founders will collectively own no more than 23.8% of our outstanding common
stock upon consummation of such business combination (without giving effect to
any shares that may be issued in the business combination). The holders of a
majority of the founders’ shares will be entitled to make up to two demands that
we register these shares pursuant to a registration rights agreement. The
holders of a majority of the founders’ shares may elect to exercise these
registration rights at any time commencing nine months after the consummation of
a business combination. In addition, the founders have certain “piggy-back”
registration rights allowing them to include their shares in registration
statements filed with respect to offerings by us subsequent to the date on which
these shares of common stock are released from escrow. We will bear the expenses
incurred in connection with the filing of any such registration
statements.
Certain
of our founders purchased 2,650,000 sponsors’ warrants (for a total purchase
price of $2,650,000) from us. These purchases took place on a private placement
basis simultaneously with the consummation of our IPO. The sponsors’ warrants
are identical to the warrants underlying the units offered in our IPO except
that if we call the warrants for redemption, the sponsors’ warrants will be
exercisable on a cashless basis so long as such warrants are held by the
purchasers or their affiliates. The purchasers have agreed that the sponsors’
warrants will not be sold or transferred by them until after we have completed a
business combination. The holders of the majority of these sponsors’ warrants
(or underlying shares) will be entitled to demand that we register these
securities pursuant to a registration rights agreement. The holders of the
majority of these securities may elect to exercise these registration rights
with respect to such securities at any time after we consummate a business
combination. In addition, these holders have certain “piggy-back” registration
rights with respect to registration statements filed subsequent to such date. We
will bear the expenses incurred in connection with the filing of any such
registration statements.
Prior
to our IPO, Lawrence S. Coben and Ronald D. Ormand advanced to us an aggregate
of $157,990 ($50,000 in July 2007, $82,990 in August 2007 and $25,000 in
September 2007,) to cover expenses related to our IPO. The loans were repaid
without interest upon the consummation of our IPO from the proceeds of the IPO
not placed in trust.
On
March 13, 2009, we entered into an agreement with the initial stockholders,
SoftForum Co., Ltd. (“SoftForum”) and Mr. Sang-Chul Kim. Pursuant to the
agreement, (i) each of Lawrence S. Coben, Stephen N. Casati, Jon Schotz and
Charles A. Norris resigned from his position as officer and/or director of the
Company, (ii) Ronald D. Ormand resigned from his position as president and was
appointed as co-chief executive officer of the Company and will serve in such
capacity, as well as in his existing capacity as chief financial officer and
director, until we file this Annual Report on Form 10-K, at which time he will
resign from all of his positions except as a member of the board of directors
and (iii) Mr. Kim was appointed as chairman of the board and co-chief executive
officer, and each of Seung Jung Ro, Jhong Won Kim and David Jin Yoo was
appointed as a member of the board of directors. Additionally, Yeon-su Kim was
appointed as secretary and will be appointed as chief financial officer upon Mr.
Ormand’s resignation of such position. Ms. Kim is Sang-Chul Kim’s daughter.
Neither Mr. Kim nor Ms. Kim has entered into an employment agreement with us and
will not receive any cash or other compensation from us for services rendered to
us until following the consummation of our initial business
combination.
Pursuant
to the agreement, our initial stockholders have the option to sell to SoftForum
and Sang-Chul Kim, and SoftForum and Sang-Chul Kim have the option to purchase
from the initial stockholders, the sponsors’ warrants to purchase 2,650,000
shares of our common stock upon the earliest of (i) the consummation of our
initial business combination, (ii) the liquidation of our trust account and
(iii) December 31, 2009. The purchase price for the sponsors’ warrants is
$2,100,000. Our initial stockholders originally paid $2,650,000 for their
sponsors’ warrants.
Pursuant
to the agreement and as part of the same transaction, our initial stockholders
also agreed to transfer an aggregate of 2,333,168 founders’ shares of our common
stock to SoftForum and Sang-Chul Kim, for no additional consideration, upon
consummation of our initial business combination. The initial stockholders will
continue to hold an aggregate of 100,000 shares of our common stock following
the transfer. If transferred, such shares will remain in escrow until one year
after consummation of such business combination in accordance with the terms of
the escrow agreement that was entered into by the initial stockholders in
connection with our IPO. Additionally, the SoftForum and Sang-Chul Kim will be
granted the same registration rights that the initial stockholders were granted
with respect to the sponsors’ warrants and shares they may receive as a result
of the transactions.
In
connection with our IPO, Messrs. Coben and Ormand had personally agreed that if
we liquidated prior to the consummation of a business combination, they would 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 the IPO not held in
the trust account or previously released to us. Additionally, if we are forced
to liquidate and do not have sufficient funds to pay the cost of liquidation,
Messrs. Coben and Ormand had agreed to advance us the funds necessary to
complete such liquidation and agreed not to seek repayment for such expenses. As
part of the above-referenced resignations and appointments, Sang-Chul Kim and
SoftForum have agreed to be responsible for such obligations and Messrs. Coben
and Ormand have been released from such obligations.
We will
reimburse our officers and directors for any reasonable out-of-pocket business
expenses incurred by them in connection with certain activities on our behalf
such as identifying and investigating possible target businesses and business
combinations. There is no limit on the amount of out-of-pocket expenses
reimbursable by us, which will be reviewed only by our board or a court of
competent jurisdiction if such reimbursement is challenged.
Other
than reimbursable out-of-pocket expenses payable to our officers and directors,
no compensation or fees of any kind, including finder’s fees, consulting fees or
other similar compensation, will be paid to any of our stockholders, officers or
directors who owned our common stock prior to our IPO, or to any of their
respective affiliates, prior to or with respect to the business combination
(regardless of the type of transaction that it is).
All
ongoing and future transactions between us and any of our officers and directors
or their respective affiliates, including loans by our officers and directors,
will be on terms believed by us to be no less favorable to us than are available
from unaffiliated third parties. Such transactions or loans, including any
forgiveness of loans, will require prior approval by a majority of our
uninterested “independent” directors (to the extent we have any) or the members
of our board who do not have an interest in the transaction, in either case who
had access, at our expense, to our attorneys or independent legal counsel. We
will not enter into any such transaction unless our disinterested “independent”
directors (or, if there are no “independent” directors, our disinterested
directors) determine that the terms of such transaction are no less favorable to
us than those that would be available to us with respect to such a transaction
from unaffiliated third parties.
Related
party policy
Our Code
of Ethics requires us to avoid, wherever possible, all related party
transactions that could result in actual or potential conflicts of interest,
except under guidelines approved by the board of directors (or the audit
committee). Related-party transactions are defined under SEC rules as
transactions in which (1) the aggregate amount involved will or may be expected
to exceed $120,000 in any calendar year, (2) we or any of our subsidiaries is a
participant, and (3) any (a) executive officer, director or nominee for election
as a director, (b) greater than 5 percent beneficial owner of our common stock,
or (c) immediate family member, of the persons referred to in clauses (a) and
(b), has or will have a direct or indirect material interest (other than solely
as a result of being a director or a less than 10 percent beneficial owner of
another entity). A conflict of interest situation can arise when a person takes
actions or has interests that may make it difficult to perform his or her work
objectively and effectively. Conflicts of interest may also arise if a person,
or a member of his or her family, receives improper personal benefits as a
result of his or her position.
Our audit
committee, pursuant to its written charter, is responsible for reviewing and
approving related-party transactions to the extent we enter into such
transactions. The audit committee will consider all relevant factors when
determining whether to approve a related party transaction, including whether
the related party transaction is on terms no less favorable than terms generally
available to an unaffiliated third party under the same or similar circumstances
and the extent of the related party’s interest in the transaction. No director
may participate in the approval of any transaction in which he is a related
party, but that director is required to provide the audit committee with all
material information concerning the transaction. Additionally, we require each
of our directors and executive officers to complete a directors’ and officers’
questionnaire on an annual basis that elicits information about related party
transactions.
To
further minimize potential conflicts of interest, we have agreed not to
consummate a business combination with an entity which is affiliated with any of
our existing stockholders unless we obtain an opinion from an independent
investment banking firm that the business combination is fair to our
unaffiliated shareholders from a financial point of view.
These
procedures are intended to determine whether any such related party transaction
impairs the independence of a director or presents a conflict of interest on the
part of a director, employee or officer.
Director
Independence
The NYSE
Alternext US requires that a majority of our board must be composed of
“independent directors,” which is defined generally as a person other than an
officer or employee of the company or its subsidiaries or any other individual
having a relationship, which, in the opinion of the company’s board of directors
would interfere with the director’s exercise of independent judgment in carrying
out the responsibilities of a director.
Seung
Jung Ro, Jhong Won Kim and David Jin Yoo are our independent directors,
constituting a majority of our board. Our independent directors will have
regularly scheduled meetings at which only independent directors are
present.
|
ITEM
14.
|
PRINCIPAL
ACCOUNTANT FEES AND SERVICES.
|
The firm
of BDO Seidman, LLP acts as our independent registered public accounting
firm. The following is a summary of fees incurred to BDO Seidman, LLP
for services rendered.
Audit
Fees
During
the fiscal year ended December 31, 2008, audit fees for our independent
registered public accounting firm were $65,000 for the services they performed
in connection with our Quarterly Reports on Form 10-Q and an estimate of
$33,000 for the audit of our financial statements as of December 31,
2008.
During
the period ended December 31, 2007, audit fees for our independent registered
public accounting firm were $68,690 for the services they performed in
connection with our initial public offering, including the audit of the
financial statements included in the Registration Statement on Form S-1 and in
the Form 8-K filed with the Securities and Exchange Commission on December 18,
2007; $7,820 for the services they performed in connection with our Quarterly
Report on Form 10-Q for September 30, 2007 and $22,185 for the audit of our
financial statements as of December 31, 2007.
Audit-Related
Fees
During
2008 and 2007, our independent registered public accounting firm did not render
any audit related services.
Tax
Fees
During
2008 and 2007, our independent registered public accounting firm did not render
any services to us for tax compliance, tax advice and tax planning.
All
Other Fees
During
2008 and 2007, there were no fees billed for products and services provided by
our independent registered public accounting firm other than those set forth
above.
Audit
Committee Approval
Since our
audit committee was not formed until December 2007, the audit committee did not
pre-approve all of the foregoing services although any services rendered prior
to the formation of our audit committee were approved by our board of
directors. However, all services render since December 2007 were
pre-approved by our audit committee. In addition, in accordance with
Section 10A(i) of the Securities Exchange Act of 1934, before we engage our
independent accountant to render audit or non-audit services on a going-forward
basis, the engagement will be approved by our audit committee.
PART
IV
|
ITEM
15.
|
EXHIBITS
AND FINANCIAL STATEMENT
SCHEDULES.
|
(a) The
following Exhibits are filed as part of this report.
|
Exhibit No.
|
|
Description
|
|
|
|
|
|
3.1
|
|
Amended
and Restated Certificate of Incorporation. (1)
|
|
|
|
|
|
3.2
|
|
By-laws.
(1)
|
|
|
|
|
|
4.1
|
|
Specimen
Unit Certificate. (1)
|
|
|
|
|
|
4.2
|
|
Specimen
Common Stock Certificate. (1)
|
|
|
|
|
|
4.3
|
|
Specimen
Warrant Certificate. (1)
|
|
|
|
|
|
4.4
|
|
Form
of Warrant Agreement between Continental Stock Transfer & Trust
Company and the Registrant. (1)
|
|
|
|
|
|
10.1
|
|
Letter
Agreement among the Registrant, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, EarlyBirdCapital, Inc. and Lawrence S. Coben.
(1)
|
|
|
|
|
|
10.2
|
|
Letter
Agreement among the Registrant, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, EarlyBirdCapital, Inc. and Jon Schotz.
(1)
|
|
|
|
|
|
10.3
|
|
Letter
Agreement among the Registrant, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, EarlyBirdCapital, Inc. and Charles A. Norris.
(1)
|
|
|
|
|
|
10.4
|
|
Letter
Agreement among the Registrant, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, EarlyBirdCapital, Inc. and Stephen N. Casati.
(1)
|
|
|
|
|
|
10.5
|
|
Form
of Investment Management Trust Agreement between Continental Stock
Transfer & Trust Company and the Registrant. (1)
|
|
|
|
|
|
10.6
|
|
Form
of Stock Escrow Agreement between the Registrant, Continental Stock
Transfer & Trust Company and the Founders. (1)
|
|
|
|
|
|
10.7
|
|
Promissory
Note issued to Lawrence S. Coben. (1)
|
|
|
|
|
|
10.8
|
|
Form
of Registration Rights Agreement among the Registrant and the Founders.
(1)
|
|
|
|
|
|
10.9
|
|
Form
of Subscription Agreements among the Registrant, Graubard Miller and each
of Lawrence S. Coben, Ronald D. Ormand, Jon Schotz, Charles A. Norris,
Bill Goldstein, Dean Vanech, Jerry Doren, Owen Coleman, Bill Armstrong,
Trevor Wilson, Brian McInerny, Richard Kassar, David Levine, Jim Land,
David A. Preiser, Gary Evans and Dr. John Jacobs. (1)
|
|
|
|
|
|
10.10
|
|
Letter
Agreement among the Registrant, Merrill Lynch, Pierce Fenner & Smith
Incorporated, EarlyBirdCapital, Inc. and Ronald D. Ormand.
(1)
|
|
|
|
|
|
10.11
|
|
Form
of Letter Agreement among the Registrant, Merrill Lynch, Pierce, Fenner
& Smith Incorporated, EarlyBirdCapital, Inc. and each of Bill
Goldstein, Dean Vanech, Jerry Doren, Owen Coleman, Bill Armstrong, Trevor
Wilson, Brian McInerny, Richard Kassar, David Levine, Jim Land, David A.
Preiser, Gary Evans and Dr. John Jacobs. (1)
|
|
|
|
|
|
10.12
|
|
Amendment to
the
Letter Agreement among the Registrant, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, EarlyBirdCapital, Inc. and Lawrence S.
Coben
and
the
Letter Agreement among the Registrant, Merrill Lynch, Pierce Fenner &
Smith Incorporated, EarlyBirdCapital, Inc. and Ronald D.
Ormand.
(2)
|
|
|
|
|
|
10.13
|
|
Amendment
to
the
Letter Agreement among the Registrant, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, EarlyBirdCapital, Inc. and Jon Schotz, the Letter
Agreement among the Registrant, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, EarlyBirdCapital, Inc. and Charles
A. Norris and the
Letter Agreement among the Registrant, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, EarlyBirdCapital, Inc. and Stephen N.
Casati.
(2)
|
|
|
|
|
|
14
|
|
Code
of
Ethics*
|
|
31.1
|
|
Certification
of Principal Executive Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.*
|
|
|
|
|
|
31.2
|
|
Certification
of Principal Financial and Accounting Officer pursuant to Section 302 of
the Sarbanes-Oxley Act of 2002.*
|
|
|
|
|
|
32
|
|
Certification
of Principal Executive Officer and Principal Financial and Accounting
Officer pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.*
|
|
|
|
|
|
99.1
|
|
Audit
Committee charter. (1)
|
|
|
|
|
|
99.2
|
|
Nominating
Committee charter.
(1)
|
|
|
(1)
|
Incorporated
by reference to the Registrant’s Registration Statement on Form S-1 (SEC
File No. 333-145625).
|
|
|
|
|
|
|
(2)
|
Incorporated
by reference to the Registrant’s Current Report on Form 8-K filed on March
16, 2009.
|
|
|
|
|
|
|
*
|
Filed
herewith.
|
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Index
to Financial Statements
|
Report
of Independent Registered Public Accounting Firm
|
F-2
|
|
|
|
|
Financial
statements
|
|
|
Balance
sheet
|
F-3
|
|
Statement
of Operations
|
F-4
|
|
Statement
of Stockholders’ Equity
|
F-5
|
|
Statement
of Cash Flows
|
F-6
|
|
|
|
|
Notes
to Financial Statements
|
F-7 – F-15
|
REPORT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the
Board of Directors and Stockholders
Tremisis
Energy Acquisition Corporation II
Seoul,
South Korea
We
have audited the accompanying balance sheets of Tremisis Energy Acquisition
Corporation II (a corporation in the development stage, the “Company”) as of
December 31, 2008 and 2007, and the related statements of operations,
stockholders’ equity and cash flows for the year ended December 31, 2008, the
period from July 3, 2007 (inception) to December 31, 2007 and for the period
from July 3, 2007 (inception) to December 31, 2008. These financial statements
are the responsibility of the Company’s management. Our responsibility is to
express an opinion on these financial statements based on our
audit.
We
conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. The Company is not required to
have, nor were we engaged to perform an audit of its internal control over
financial reporting. Our audit included consideration of internal control over
financial reporting as a basis for designing audit procedures that are
appropriate in the circumstances, but not for the purpose of expressing an
opinion on the effectiveness of the Company's internal control over financial
reporting. Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
As discussed in Note 1, the Company’s
Amended and Restated
Certificate of
Incorporation provides for a mandatory liquidation of the Company in the event
that the Company does not consummate a business combination within
24
months from the date of the consummation
of its initial public offering (“Offering”) (such date would be
December
6, 2009
).
In our
opinion, the financial statements referred to above present fairly, in all
material respects, the financial position of Tremisis Energy Acquisition
Corporation II as of December 31, 2008 and December 31, 2007, and the results of
its operations and its cash flows for the year ended December 31, 2008,
the period from July 3, 2007 (inception) to December 31, 2007
and for the period from July 3, 2007 (inception) to December 31, 2008
in conformity with accounting principles generally accepted in the United States
of America.
The accompanying financial statements
have been prepared assuming that the Company would continue as a going concern.
As discussed in Note 1 to the financial statements, the Company is required to
consummate a business combination by
December
6, 2009
. The possibility of
such business combination not being consummated raises substantial doubt as to
its ability to continue as a going concern, and the financial statements do not
include any adjustments that might result from the outcome of this
uncertainty.
/s/ BDO
Seidman, LLP
BDO
Seidman, LLP
New York,
NY
March 30,
2009
TREMISIS
ENERGY ACQUISITION CORPORATION II
(a
corporation in the development stage)
BALANCE
SHEETS
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
|
2008
|
|
|
2007
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
assets:
|
|
|
|
|
|
|
|
Cash
|
|
$
|
20,139
|
|
|
$
|
101,836
|
|
|
Cash
equivalents held in trust (Note 1)
|
|
|
77,652,972
|
|
|
|
75,595,000
|
|
|
Interest
receivable on cash equivalents held in trust
|
|
|
15,099
|
|
|
|
152,990
|
|
|
Income
tax receivable
|
|
|
157,500
|
|
|
|
-
|
|
|
Prepaid
expenses
|
|
|
62,949
|
|
|
|
90,786
|
|
|
Total
current assets
|
|
|
77,908,659
|
|
|
|
75,940,612
|
|
|
|
|
|
|
|
|
|
|
|
|
Equipment,
net of accumulated depreciation (Note 4)
|
|
|
3,555
|
|
|
|
-
|
|
|
Total
assets
|
|
$
|
77,912,214
|
|
|
$
|
75,940,612
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES
AND STOCKHOLDERS' EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
liabilities:
|
|
|
|
|
|
|
|
|
|
Accrued
registration costs
|
|
$
|
-
|
|
|
$
|
12,880
|
|
|
Accrued
expenses
|
|
|
108,648
|
|
|
|
7,763
|
|
|
Income
and franchise taxes payable
|
|
|
-
|
|
|
|
51,054
|
|
|
Deferred
underwriting fee (Note 3)
|
|
|
3,114,454
|
|
|
|
3,040,000
|
|
|
Total
current liabilities
|
|
|
3,223,102
|
|
|
|
3,111,697
|
|
|
|
|
|
|
|
|
|
|
|
|
Common
stock subject to possible conversion (2,918,827 and
2,849,050 shares at conversion value) (Note
1)
|
|
|
23,628,780
|
|
|
|
22,716,822
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments
(Note 7)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS'
EQUITY: (Note 8)
|
|
|
|
|
|
|
|
|
|
Common
stock, $.0001 par value per share, authorized 35,000,000
shares, issued and outstanding 9,247,010 and
9,382,200 (excluding 2,918,827 and 2,849,050 shares subject to
conversion, respectively)
|
|
|
925
|
|
|
|
938
|
|
|
Additional
paid in capital
|
|
|
50,853,670
|
|
|
|
50,034,535
|
|
|
Retained
earnings accumulated during the development stage
|
|
|
205,737
|
|
|
|
76,620
|
|
|
Total
stockholders' equity
|
|
|
51,060,332
|
|
|
|
50,112,093
|
|
|
Total
liabilities and stockholders' equity
|
|
$
|
77,912,214
|
|
|
$
|
75,940,612
|
|
See notes
to financial statements
TREMISIS
ENERGY ACQUISITION CORPORATION II
(a
corporation in the development stage)
STATEMENTS
OF OPERATIONS
|
|
|
For the year
|
|
|
From inception
|
|
|
From inception
|
|
|
|
|
ended
|
|
|
(July 3, 2007) to
|
|
|
(July 3, 2007) to
|
|
|
|
|
December 31, 2008
|
|
|
December 31, 2007
|
|
|
December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
income
|
|
$
|
1,235,335
|
|
|
$
|
152,990
|
|
|
$
|
1,388,325
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Franchise
tax (Note 6)
|
|
|
57,500
|
|
|
|
26,054
|
|
|
|
83,554
|
|
|
General
and administrative (Note 5)
|
|
|
922,910
|
|
|
|
16,452
|
|
|
|
939,362
|
|
|
Formation
costs
|
|
|
-
|
|
|
|
5,650
|
|
|
|
5,650
|
|
|
Insurance
|
|
|
71,838
|
|
|
|
3,214
|
|
|
|
75,052
|
|
|
Depreciation
|
|
|
470
|
|
|
|
-
|
|
|
|
470
|
|
|
Total
expenses
|
|
|
1,052,718
|
|
|
|
51,370
|
|
|
|
1,104,088
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income before taxes
|
|
|
182,617
|
|
|
|
101,620
|
|
|
|
284,237
|
|
|
Provision
for income taxes (Note 6)
|
|
|
53,500
|
|
|
|
25,000
|
|
|
|
78,500
|
|
|
Net
income for the period
|
|
|
129,117
|
|
|
|
76,620
|
|
|
|
205,737
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accretion
of trust account relating to common stock subject to possible
conversion
|
|
|
(370,478
|
)
|
|
|
(45,882
|
)
|
|
|
(416,360
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income (loss) attributable to common stockholders
|
|
$
|
(241,361
|
)
|
|
$
|
30,738
|
|
|
$
|
(210,623
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average number of shares outstanding - basic and
diluted
|
|
|
9,236,774
|
|
|
|
3,462,124
|
|
|
|
7,219,917
|
|
|
Net
income (loss) per share, basic and diluted
|
|
$
|
(0.03
|
)
|
|
$
|
0.01
|
|
|
$
|
(0.03
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number
of shares outstanding subject to possible conversion - basic
and diluted
|
|
|
2,918,827
|
|
|
|
2,849,050
|
|
|
|
2,918,827
|
|
|
Net
income per share subject to possible conversion - basic and
diluted
|
|
$
|
0.13
|
|
|
$
|
0.02
|
|
|
$
|
0.14
|
|
See notes
to financial statements
TREMISIS
ENERGY ACQUISITION CORPORATION II
(a
corporation in the development stage)
STATEMENTS
OF STOCKHOLDERS' EQUITY
Condensed
Statement of Stockholders' Equity
|
|
|
|
|
|
|
|
|
|
|
|
Retained earnings
|
|
|
Total
|
|
|
|
|
Common Stock
|
|
|
Additional
|
|
|
accumulated during
|
|
|
stockholders'
|
|
|
|
|
Shares
|
|
|
Amount
|
|
|
paid-in capital
|
|
|
the development stage
|
|
|
equity
|
|
|
Issuance
of common stock to initial stockholders
|
|
|
2,731,250
|
|
|
$
|
273
|
|
|
$
|
24,727
|
|
|
$
|
-
|
|
|
$
|
25,000
|
|
|
Proceeds
from sale of 9,500,000 units through public offering net of underwriter's
discount and offering expenses and excluding $22,670,940 allocable to
2,849,050 shares of common stock subject to possible
conversion
|
|
|
6,650,950
|
|
|
|
665
|
|
|
|
47,405,690
|
|
|
|
-
|
|
|
|
47,406,355
|
|
|
Proceeds
from issuance of 2,650,000 warrants
|
|
|
-
|
|
|
|
-
|
|
|
|
2,650,000
|
|
|
|
-
|
|
|
|
2,650,000
|
|
|
Accretion
of trust account relating to common stock subject to possible
conversion
|
|
|
-
|
|
|
|
-
|
|
|
|
(45,882
|
)
|
|
|
-
|
|
|
|
(45,882
|
)
|
|
Net
income for the period
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
76,620
|
|
|
|
76,620
|
|
|
Balance
at December 31, 2007
|
|
|
9,382,200
|
|
|
$
|
938
|
|
|
$
|
50,034,535
|
|
|
$
|
76,620
|
|
|
$
|
50,112,093
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Forfeiture
and cancellation of common stock received from intial
stockholders
|
|
|
(298,082
|
)
|
|
|
(29
|
)
|
|
|
29
|
|
|
|
-
|
|
|
|
-
|
|
|
Proceeds
from sale of 232,669 units through over-allotment option, net
of underwriter's discount and offering expenses
and excluding $541,480 allocable to 69,777 shares of
common stock subject to possible conversion
|
|
|
162,892
|
|
|
|
16
|
|
|
|
1,189,584
|
|
|
|
-
|
|
|
|
1,189,600
|
|
|
Net
income for the period
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
129,117
|
|
|
|
129,117
|
|
|
Accretion
of trust account relating to common stock subject to possible
conversion
|
|
|
-
|
|
|
|
-
|
|
|
|
(370,478
|
)
|
|
|
-
|
|
|
|
(370,478
|
)
|
|
Balance
at December 31, 2008
|
|
|
9,247,010
|
|
|
$
|
925
|
|
|
$
|
50,853,670
|
|
|
$
|
205,737
|
|
|
$
|
51,060,332
|
|
See notes
to financial statements
TREMISIS
ENERGY ACQUISITION CORPORATION II
(a
corporation in the development stage)
STATEMENTS
OF CASH FLOWS
FOR THE
PERIOD FROM JULY 3, 2007 (inception) TO DECEMBER 31, 2008
|
|
|
For the year
|
|
|
From inception
|
|
|
From inception
|
|
|
|
|
ended
|
|
|
(July 3, 2007) to
|
|
|
(July 3, 2007) to
|
|
|
|
|
December 31, 2008
|
|
|
December 31, 2007
|
|
|
December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH
FLOWS FROM OPERATING ACTIVITIES
|
|
|
|
|
|
|
|
|
|
|
Net
income
|
|
$
|
129,117
|
|
|
$
|
76,620
|
|
|
$
|
205,737
|
|
|
Items
in net income not using cash
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation
|
|
|
470
|
|
|
|
-
|
|
|
|
470
|
|
|
Adjustments
to reconcile net income to net cash used in operating
activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Increase)
/ decrease in interest receivable
|
|
|
137,891
|
|
|
|
(152,990
|
)
|
|
|
(15,099
|
)
|
|
Increase
in income tax receivable
|
|
|
(157,500
|
)
|
|
|
-
|
|
|
|
(157,500
|
)
|
|
(Increase)
/ decrease in prepaid expenses
|
|
|
27,837
|
|
|
|
(90,786
|
)
|
|
|
(62,949
|
)
|
|
Increase
in accrued expenses
|
|
|
100,885
|
|
|
|
7,763
|
|
|
|
108,648
|
|
|
Increase
/ (decrease) in income and franchise taxes payable
|
|
|
(51,054
|
)
|
|
|
51,054
|
|
|
|
-
|
|
|
Net
cash (used in) provided by operating activities
|
|
|
187,646
|
|
|
|
(108,339
|
)
|
|
|
79,307
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH
FLOW FROM INVESTING ACTIVITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
equivalents held in trust
|
|
|
(2,057,972
|
)
|
|
|
(75,595,000
|
)
|
|
|
(77,652,972
|
)
|
|
Purchase
of net fixed asset
|
|
|
(4,025
|
)
|
|
|
-
|
|
|
|
(4,025
|
)
|
|
Net
cash used in investing activities
|
|
|
(2,061,997
|
)
|
|
|
(75,595,000
|
)
|
|
|
(77,656,997
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH
FLOWS FROM FINANCING ACTIVITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds
from issuance of shares of common stock to initial
stockholders
|
|
|
-
|
|
|
|
25,000
|
|
|
|
25,000
|
|
|
Net
proceeds from issuance of shares of common stock through public
offering
|
|
|
1,264,054
|
|
|
|
50,459,235
|
|
|
|
51,723,289
|
|
|
Proceeds
from issuance of insider warrants to initial stockholders
|
|
|
-
|
|
|
|
2,650,000
|
|
|
|
2,650,000
|
|
|
Portion
of proceeds from sale of units through public offering allocable to shares
of common stock subject to possible conversion
|
|
|
541,480
|
|
|
|
22,670,940
|
|
|
|
23,212,420
|
|
|
Registration
costs paid
|
|
|
(12,880
|
)
|
|
|
-
|
|
|
|
(12,880
|
)
|
|
Proceeds
from notes payable, stockholders
|
|
|
-
|
|
|
|
157,990
|
|
|
|
157,990
|
|
|
Repayment
of notes payable, stockholders
|
|
|
-
|
|
|
|
(157,990
|
)
|
|
|
(157,990
|
)
|
|
Net
cash provided by financing activities
|
|
|
1,792,654
|
|
|
|
75,805,175
|
|
|
|
77,597,829
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET
INCREASE (DECREASE) IN CASH
|
|
|
(81,697
|
)
|
|
|
101,836
|
|
|
|
20,139
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
at beginning of period
|
|
|
101,836
|
|
|
|
-
|
|
|
|
-
|
|
|
Cash
at end of period
|
|
$
|
20,139
|
|
|
$
|
101,836
|
|
|
$
|
20,139
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental
disclosure of non-cash financing activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
underwriting fee
|
|
$
|
74,454
|
|
|
$
|
3,040,000
|
|
|
$
|
3,114,454
|
|
|
Accrued
registration costs
|
|
|
-
|
|
|
|
12,880
|
|
|
|
12,880
|
|
|
Accretion
of trust account relating to common stock subject to possible
conversion
|
|
|
370,478
|
|
|
|
45,882
|
|
|
|
416,360
|
|
|
Income
taxes paid
|
|
|
236,000
|
|
|
|
-
|
|
|
|
236,000
|
|
See notes
to financial statements
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Notes
to Financial Statements
NOTE
1 - Organization and Business Operations
Tremisis
Energy Acquisition Corporation II (the "Company”) was incorporated in
Delaware on July 3, 2007 for the purpose of effecting a merger, capital stock
exchange, asset acquisition or other similar business combination with an
operating business.
The
Company is considered to be a development stage company and as such the
financial statements presented herein are presented in accordance with Statement
of Financial Accounting Standards ("SFAS") No. 7 - Accounting and Reporting by
Development Stage Enterprises.
At
December 31, 2008, the Company had not yet commenced any
operations. All activity from July 3, 2007 (date of inception) to
December 31, 2008 relates to the Company’s formation and the public offering
described below.
The
registration statement for the Company's initial public offering ("Offering")
was declared effective December 6, 2007. The Company consummated the
Offering on December 12, 2007 and the over-allotment on January 24, 2008 and
received net proceeds of approximately $77,861,352. The Company’s
management has broad discretion with respect to the specific application of the
net proceeds of the Offering and over-allotment, although substantially all of
the net proceeds of the Offering are intended to be generally applied toward
consummating a business combination with an operating business (“Business
Combination”). Furthermore, there is no assurance that the Company
will be able to successfully effect a Business Combination. Upon the
closing of the Offering and the over-allotment of January 24, 2008 an aggregate
of $77,400,511 including the $2,650,000 proceeds of the Private Placement
described in Note 3 and the $3,114,454 of deferred underwriters’ discount
described in Note 3, was placed in a trust account ("Trust Account") which is to
be invested in United States "government securities" within the meaning of
Section 2(a)(16) of the Investment Company Act of 1940 having a maturity of 180
days or less or in money market funds meeting certain conditions under Rule 2a-7
promulgated under the Investment Company Act of 1940 until the earlier of (i)
the consummation of its first Business Combination and (ii) liquidation of the
Company. The placing of funds in the Trust Account may not protect
those funds from third party claims against the Company. Although the
Company will seek to have all vendors and service providers (which would include
any third parties engaged to assist the Company in any way in connection with
the search for a target business) and prospective target businesses execute
agreements with the Company waiving any right, title, interest or claim of any
kind in or to any monies held in the Trust Account, there is no guarantee they
will execute such agreements. Nor is there any guarantee that, even
if such entities execute such agreements with the Company, they will not seek
recourse against the trust account or that a court would not conclude that such
agreements are not legally enforceable.
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Notes
to Financial Statements
The Company's Chairman of the Board and Co-Chief Executive Officer and
his affiliate have agreed that they will be liable under certain circumstances
to ensure that the proceeds in the Trust Account are not reduced for the claims
of target businesses or claims of vendors or other entities that are owed money
by the Company for services rendered or contracted for or products sold to the
Company. However, there can be no assurance that they will be able to
satisfy those obligations. Furthermore, they will not have any
personal liability as to any claimed amounts owed to a third party who executed
a waiver (including a prospective target business). Additionally, in
the case of a prospective target business that did not execute a waiver, such
liability will only be in an amount necessary to ensure that public stockholders
receive no less than $7.77 per share upon liquidation. The remaining net
proceeds (not held in the Trust Account) may be used to pay for business, legal
and accounting due diligence on prospective acquisitions and continuing general
and administrative expenses. Additionally, up to an aggregate of
$1,200,000 of interest earned on the Trust Account balance may be released to
the Company to fund working capital requirements and additional amounts may be
released as necessary to satisfy tax obligations. As of December 31,
2008, an amount of $1,120,787 has been released for such purposes.
The
Company, after signing a definitive agreement for the acquisition of a target
business, is required to submit such transaction for stockholders'
approval. Stockholders that vote against such proposed Business
Combination and exercise their conversion rights are, under certain conditions
described below, entitled to convert their share into a pro-rata distribution
from the Trust Account (the "Conversion Right"). The actual per share
conversion price will be equal to the amount in the Trust Account (inclusive of
any interest thereon), calculated as of two business days prior to the proposed
Business Combination, divided by the number of shares sold in the
Offering. As a result of the Conversion Right, $23,212,420
(representing 29.99% of net proceeds of the public offering) plus accretion of
$416,360 (representing 29.99% of interest earned on the trust account)
aggregating $23,628,780 has been classified as common stock, subject to
possible conversion on the accompanying balance sheet as of December 31,
2008. The Initial Stockholders have agreed to vote their 2,433,168
founding shares (after forfeiture of 298,082 shares disclosed in Note 3) of
common stock in accordance with the manner in which the majority of the shares
of common stock offered in the Offering are voted by the Company's public
stockholders ("Public Stockholders") with respect to a Business
Combination.
In the
event that a majority of the outstanding shares of common stock voted by the
Public Stockholders vote for the approval of a Business Combination and holders
owning 30% or more of the outstanding common stock do not vote against the
Business Combination and do not exercise their Conversion Rights, the Business
Combination may then be consummated.
The
Company’s Amended and Restated Certificate of Incorporation provides that the
Company will continue in existence up to 24 months from the Effective Date of
the Offering. If the Company has not completed a Business Combination
by such date, its corporate existence will cease and it will dissolve and
liquidate for the purposes of winding up its affairs. In the event of
liquidation, it is likely that the per share value of the residual assets
remaining available for distribution (including Trust Fund assets) will be less
than the initial public offering price per share in the Offering (assuming no
value is attributed to the Warrants contained in the Units sold in the
Offering).
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Notes
to Financial Statements
NOTE
2 - Summary of Significant Accounting Policies
Cash Equivalents -
The Company
considers all highly liquid investments with original maturities of three months
or less to be cash equivalents.
Deferred Acquisition Costs -
Through December 31, 2008,
costs
related to proposed acquisitions were capitalized and in the event the
acquisition does not occur, the costs are expensed. (See
New Accounting Pronouncements
below).
Concentration of Credit Risk-
The Company maintains cash in a bank deposit account which, at times, exceeds
federally insured (FDIC) limits. The Company has not experienced any
losses on this account.
At
December 31, 2008 the Company held approximately $77.7 million in a mutual fund
that invests primarily in U.S. Treasuries. The mutual fund is part of a family
of funds ultimately controlled by a large financial institution, in which the
Company does not believe any liquidity risk exists. On January
7
, 2009 the Company moved the funds to a mutual
fund focused on investing in Dreyfus Tax Exempt Cash Management (Institutional
Shares), controlled by the same financial institution.
Income Taxes-
Deferred income
tax assets and liabilities are computed for differences between the financial
statements and tax basis of assets and liabilities that will result in future
taxable or deductible amounts and are based on enacted tax laws and rates
applicable to the periods in which the differences are expected to effect
taxable income. Valuation allowances are established when necessary
to reduce deferred income tax assets to the amount expected to be
realized. As of December 31, 2008 and 2007, there were no temporary
differences and therefore no deferred tax has been recorded.
In July
2006, the Financial Accounting Standards Board (“FASB”) issued Interpretation
No. 48 (“FIN 48”), “Accounting for Uncertainty in Income Taxes, and
Interpretation of FASB Statement No. 109.” FIN 48 clarifies the accounting for
uncertainty in income taxes recognized in a company’s financial statements and
prescribes a recognition threshold and measurement attribute for the financial
statement recognition and measurement of a tax position taken or expected to be
taken in an income tax return. FIN 48 also provides guidance in de-recognition,
classification, interest and penalties, accounting in interim periods,
disclosures and transition. The adoption of FIN 48 did not have a material
impact on the Company’s financial statements.
Net Income Per Share-
Basic
net income per share excludes dilution and is computed by dividing income
available to common stockholders by the weighted average common shares
outstanding for the period. Calculation of the weighted average
common shares outstanding during the period is based on 2,731,250 initial shares
outstanding throughout the period from July 3, 2007 (inception) to December 31,
2008, less 298,082 initial shares cancelled by the Company on January 24, 2008
(retroactively restated for this calculation to July 3, 2007), 6,650,950 common
shares (excluding 2,849,050 shares subject to possible conversion) issued at the
completion of the Offering on December 12, 2007 and 162,892 shares (excluding
69,777 shares subject to possible conversion) from the January 24, 2008
over-allotment option exercised. Basic net income per share subject
to possible conversion is calculated by dividing accretion of Trust Account
relating to common stock subject to possible conversion by 2,918,827 common
shares subject to possible conversion. Diluted earnings per share
reflects the potential dilution that could occur if securities or other
contracts to issue common stock were exercised or converted into common stock or
resulted in the issuance of common stock that then shared in the earnings of the
entity. The shares issuable upon exercise of the Warrants have been
excluded from the calculation of diluted net income per share since the Warrants
are exercisable commencing the later of one year or the completion of a Business
Combination and this contingency has not been resolved.
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Notes
to Financial Statements
Use of Estimates-
The
preparation of financial statements in conformity with accounting principles
generally accepted in the United States of America requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities at the date of the financial statements and the reported amounts of
expenses during the reporting period. Actual results could differ
from those estimates.
Fair Value Measurements
- On
January 1, 2008, the Company adopted Statement of Financial
Accounting Standards (“SFAS”) No. 157, “Fair Value Measurements” related to the
valuation and reporting of the Company’s financial assets and
liabilities. The adoption of the SFAS No. 157 did not have a material
impact on the Company’s financial assets and liabilities or its financial
results. SFAS No. 157 establishes a hierarchy for inputs used in
measuring fair value that maximizes the use of observable inputs and minimizes
the use of unobservable inputs by requiring that the most observable inputs be
used when available.
Observable
inputs are inputs that market participants would use in pricing the asset or
liability developed based on market data obtained from sources independent of
the Company. Unobservable inputs are inputs that reflect the Company’s
assumptions about the assumptions market participants would use in pricing the
asset or liability developed based on the best information available in the
circumstances. The hierarchy is
broken
down into three levels based on the reliability of inputs as
follows:
Level 1 -
Valuations based on unadjusted quoted prices in active markets for identical
assets or liabilities that the Company holds. An active market for the asset or
liability is a market in which transactions for the asset or liability occur
with sufficient frequency and volume to provide pricing information on an
ongoing basis.
Level 2 -
Valuation
based on quoted prices in markets that are not active for which all significant
inputs are observable, either directly or indirectly.
Level 3 -
Valuations based on inputs that are unobservable and significant to the overall
fair value measurement.
The
availability of observable inputs can vary from product to product and is
affected by a wide variety of factors, including, for example, the type of
product, whether the product is new and not yet established in the marketplace,
and other characteristics particular to the transaction. In certain
cases, the inputs used to measure fair value may fall into different levels of
the fair value hierarchy. In such cases, for disclosure purposes the level in
the fair value hierarchy within which the fair value measurement in its entirety
falls is determined based on the lowest level input that is significant
to the fair value measurement in its entirety. Fair value
is a market-based measure considered from the perspective of a market
participant rather than an entity-specific measure. The Company uses
prices and inputs that are current as of the measurement date.
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Notes
to Financial Statements
Effective
January 1, 2008, the Company implemented SFAS Statement No. 157, which did not
have an impact on the Company's financial results.
The
following table presents certain of the Company's assets that are measured at
fair value as of December 31, 2008.
|
Description
|
|
Quoted Prices in
Active Markets
(Level 2)
|
|
|
Cash
equivalents held in trust account
|
|
$
|
77,652,972
|
|
In
accordance with provisions of FSP No FAS 157-2 Effective Date of FASB
Statement No 157, the Company has elected to defer implementation of SFAS 157 as
it relates to its non-financial assets and non-financial liabilities until
January 1, 2009 and is evaluating the impact, if any, this standard will have on
its financial statements.
New Accounting Pronouncements
-
In
December 2007, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 141R (revised 2007), “Business Combinations”
(“SFAS 141(R)”). SFAS 141(R) retains the fundamental requirements of the
original pronouncement requiring that the purchase method be used for all
business combinations, but also provides revised guidance for recognizing and
measuring identifiable assets and goodwill acquired and liabilities
assumed arising from contingencies, the capitalization of in-process
research and development at fair value, and the expensing of acquisition-related
costs as incurred. SFAS 141(R) is effective for fiscal years beginning after
December 15, 2008. In the event that the Company completes acquisitions
subsequent to its adoption of SFAS 141(R), the application of its provisions
will likely have a material impact on the Company’s results of operations,
although the Company is not currently able to estimate that
impact.
In
December 2007, the FASB issued SFAS 160, Non-controlling Interests in
Consolidated Financial Statements – an amendment of ARB No. 51. SFAS 160
requires that ownership interests in subsidiaries held by parties other than the
parent, and the amount of consolidated net income, be clearly identified,
labeled and presented in the consolidated financial statements. It also requires
that once a subsidiary is deconsolidated, any retained non-controlling equity
investment in the former subsidiary be initially measured at fair value.
Sufficient disclosures are required to clearly identify and distinguish between
the interests of the parent and the interests of the non-controlling owners. It
is effective for fiscal years beginning after December 15, 2008, and requires
retroactive adoption of the presentation and disclosure requirements for
existing minority interests. All other requirements are applied prospectively.
The Company does not expect the adoption of SFAS 160 to have a material impact
on its financial condition or results of operations.
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Notes
to Financial Statements
In March
2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments
and Hedging Activities” (“SFAS 161”). SFAS No. 161 amends and expands the
disclosure requirements of SFAS No. 133, “Accounting for Derivative Instruments
and Hedging Activities”, to improve financial
reporting
of derivative instruments and hedging activities by requiring enhanced
disclosures to enable investors to better understand their effects on an
entity’s financial position, financial performance, and cash
flows. SFAS 161 is effective for financial statements issued for
fiscal years and interim periods beginning after November 15, 2008, which will
require the Company to adopt these provisions beginning in fiscal 2009 and
thereafter. The Company does not expect the adoption of SFAS 161 to
have a material impact on its financial condition or results of
operations.
In June
2008, the FASB issued FASB Staff Position No. EITF 03-6-1, “Determining Whether
Instruments Granted in Share-Based Payment Transactions Are Participating
Securities,” which classifies unvested share-based payment awards that contain
nonforfeitable rights to dividends or dividend equivalents (whether paid or
unpaid) as participating securities and requires them to be included in the
computation of earnings per share pursuant to the two-class method described in
SFAS No. 128, “Earnings per share.” This Staff Position is effective for
financial statements issued for fiscal years beginning after December 15, 2008,
and interim periods within those years. All prior-period earnings per share data
presented are to be adjusted retrospectively (including interim financial
statements, summaries of earnings, and selected financial data). The Company
does not expect adoption of this Staff Position to have a material impact on its
results of operations or financial position.
The
Company does not believe that any other recently issued, but not yet effective,
accounting standards if currently adopted would have a material effect on the
accompanying financial statements.
NOTE
3 - Public Offering
In
December 2007, the Company completed its Offering in which it sold to the public
9,500,000 units (“Units”), at a price of $8.00 per Unit. Each Unit consists of
one share of the Company’s common stock and one Redeemable Common Stock Purchase
Warrant (“Warrants”). Each Warrant will entitle the holder to purchase from the
Company one share of common stock at an exercise price of $5.00 commencing the
later of the completion of a Business Combination and one year from the
effective date of the Offering and expiring four years from the effective date
of the Offering. The Company may redeem the Warrants, at a price of $.01 per
Warrant upon 30 days’ notice while the Warrants are exercisable, only in
the event that the last sale price of the common stock is at least $12.00 per
share for any 20 trading days within a 30 trading day period ending on the third
day prior to the date on which notice of redemption is given. In accordance with
the warrant agreement relating to the Warrants sold and issued in the Offering,
the Company is only required to use its best efforts to maintain the
effectiveness of the registration statement covering the Warrants. The Company
will not be obligated to deliver securities, and there are no contractual
penalties for failure to deliver securities, if a registration statement is not
effective at the time of exercise. Additionally, in the event that a
registration is not effective at the time of exercise, the holder of such
Warrant shall not be entitled to exercise such Warrant and in no event (whether
in the case of a registration statement not being effective or otherwise) will
the Company be required to net cash settle the warrant exercise. Consequently,
the Warrants may expire unexercised and unredeemed.
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Notes
to Financial Statements
The
Company paid the underwriters in the Offering an underwriting discount of
$2,280,000 of the gross proceeds of the Offering and $55,841 of the gross
proceeds of the January 24, 2008 over-allotment. The Company and the
underwriters have agreed that payment of the balance of the underwriting
discount of $3,040,000, from the offering and $74,454 from the over-allotment
will not be payable unless and until the Company completes a Business
Combination and have waived their right to receive such payment upon the
Company’s liquidation if it is unable to complete a Business
Combination.
On
January 24, 2008, the Company consummated the closing of the sale of 232,669
Units which were sold subject to the over-allotment option. Each Unit
sold in the Offering and pursuant to the over-allotment option consisted of one
share of common stock, $.0001 par value per share, and one Warrant, each to
purchase one share of the Company’s common stock. The 9,732,669 Units
sold in the Offering, including the 232,669 Units sold subject to the
over-allotment option, were sold at an Offering price of $8.00 per Unit,
generating total gross proceeds of $77,861,352. Of the gross proceeds
of the offering and the private placement of warrants, $77,400,511 (or
approximately $7.95 per share) was placed in the Trust Account.
On
January 24, 2008, the Company's Initial Stockholders returned an aggregate of
298,082 shares of the Company's common stock to the Company for
cancellation. The cancellation was due to the remainder of the
underwriter's over-allotment option expiring unexercised. Upon
receipt, such shares were then immediately cancelled by the
Company.
NOTE
4 - Equipment
During
the year ended December 31, 2008, the Company purchased computer equipment at a
cost of $4,025, and the computer equipment is depreciated on a
straight line basis over five years.
NOTE 5 - Acquisition Costs
Through
September 30, 2008 the Company deferred costs of approximately $473,000 related
to a potential acquisition. During the fourth quarter of 2008, the Company
determined it was unlikely to consummate the acquisition and expensed the
deferred costs.
NOTE 6
- Income and Franchise Taxes
The
provision for income and franchise taxes consist of the following:
|
|
|
For the
|
|
|
From inception
|
|
|
From inception
|
|
|
|
|
Year ended
|
|
|
(July 3, 2007)
|
|
|
(July 3, 2007) to
|
|
|
|
|
December 31, 2008
|
|
|
December 31, 2007
|
|
|
December 31, 2008
|
|
|
Federal
income tax - current
|
|
$
|
53
,500
|
|
|
$
|
25,000
|
|
|
$
|
78,500
|
|
|
Delaware
franchise taxes
|
|
$
|
57,500
|
|
|
$
|
26,054
|
|
|
$
|
83,554
|
|
No
provision for state and local income taxes has been made since the Company was
formed as a vehicle to effect a Business Combination and, as a result does not
conduct operations and is not engaged in a trade or business in any
state. The Company is incorporated in Delaware and accordingly is
subject to franchise taxes.
NOTE 7
- Commitments
The
Company presently occupies office space provided by an affiliate of the Initial
Stockholders. Such affiliate has agreed that, until the Company
consummates a Business Combination, it will make such office space, as well as
certain office and secretarial services, available to the Company, as may be
required by the Company from time to time, at an approximate monthly rate of
$2,100 commencing in May 2008. The current arrangement is month to
month. For the year ended December 31, 2008 an amount of $21,186 has
been incurred for rent and office support services.
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Notes
to Financial Statements
Pursuant
to a letter of agreements which the Initial Stockholders entered into with the
Company and the underwriters, the Initial Stockholders will waive their right to
receive distributions with respect to their founding shares upon the Company’s
liquidation.
The
Company’s Initial Stockholders purchased a total of 2,650,000 Warrants (“Insider
Warrants”) at $1.00 per Warrant (for an aggregate purchase price of $2,650,000)
privately from the Company. These purchases took place simultaneously
with the consummation of the Offering. All of the proceeds received
from this purchase were placed in the Trust Account. The Insider
Warrants purchased are identical to the Warrants underlying the Units sold in
the Offering except that the Warrants may not be called for redemption and the
Insider Warrants may be exercisable on a “cashless basis,” at the holder’s
option, so long as such securities are held by such purchaser or his
affiliates. Furthermore, the purchasers have agreed that the Insider
Warrants will not be sold or transferred by them, except for estate planning
purposes, until after the Company has completed a Business
Combination.
The
Initial Stockholders and the holders of the Insider Warrants (or underlying
securities) are entitled to registration rights with respect to their founding
shares or Insider Warrants (or underlying securities) pursuant to an agreement
signed on the effective date of the Offering. The holders of the
majority of the founding shares are entitled to demand that the Company register
these shares at any time commencing three months prior to the first anniversary
of the consummation of a Business Combination. The holders of the
Insider Warrants (or underlying securities) are entitled to demand that the
Company register these securities at any time after the Company consummates a
Business Combination. In addition, the Initial Stockholders and
holders of the Insider Warrants (or underlying securities) have certain
“piggy-back” registration rights on registration statements filed after the
Company’s consummation of a Business Combination.
The
Company has also agreed to pay the fees to the underwriters in the Offering as
described in Note 3 above.
NOTE 8
- Preferred Stock
The
Company is authorized to issue 1,000,000 shares of preferred stock with such
designations, voting and other rights and preferences as may be determined from
time to time by the Board of Directors. There are no shares of
preferred stock issued or outstanding.
The
agreement with the underwriters prohibit the Company, prior to a
Business Combination, from issuing preferred stock which participates in the
proceeds of the Trust Account or which votes as a class with the Common Stock on
a Business Combination.
Tremisis
Energy Acquisition Corporation II
(a
Corporation in the Development Stage)
Notes
to Financial Statements
NOTE 9
- Subsequent Events
On
March 13, 2009, the Company entered into an agreement (“Agreement”) with the
Company’s stockholders prior to its initial public offering (“Initial
Stockholders”) and SoftForum Co., Ltd. and Mr.
Sang-Chul
Kim (collectively, the “Investors”). Pursuant to the Agreement, the
Initial Stockholders have the option to sell to the Investors, and the Investors
have the option to purchase from the Initial Stockholders, the Insider Warrants
upon the earliest of (i) the Company's consummation of a Business Combination,
(ii) the Company's liquidation of its trust account and (iii) December 31, 2009.
The purchase price for the Insider Warrants is $2,100,000. The Initial
Stockholders originally paid $2,650,000 for the Insider
Warrants.
Pursuant
to the Agreement and as part of the same transaction, the Initial Stockholders
also agreed to transfer an aggregate of 2,333,168 shares of the Company’s common
stock to the Investors, for no additional consideration, upon consummation of a
Business Combination. The Initial Stockholders will continue to hold an
aggregate of 100,000 shares of the Company’s common stock following the
transfer. If transferred, such shares will remain in the Trust Account until one
year after consummation of such Business Combination in accordance with the
terms of the escrow agreement that was entered into by the Initial Stockholders
in connection with the Offering. Additionally, the Investors will be granted the
same registration rights that the Initial Stockholders were granted with respect
to the Insider Warrants and shares they may receive as a result of the
transactions.
In
connection with the Offering, Messrs. Lawrence Coben, the Company's founding
chief eexecutive officer and Ronald D. Ormand, the
Company’s
current
co-chief executive officer and member of the Board, had personally agreed
that if the Company liquidated prior to the consummation of a Business
Combination, they would be personally liable to pay debts and obligations to
target businesses or vendors or other entities that are owed money by the
Company for services rendered or contracted for or products sold to the Company
in excess of the net proceeds of the Offering not held in the trust account or
previously released to the Company. Additionally, if the Company is forced to
liquidate and does not have sufficient funds to pay the cost of liquidation,
Messrs. Coben and Ormand had agreed to advance the Company the funds necessary
to complete such liquidation and agreed not to seek repayment for such expenses.
As part of the above-referenced resignations and appointments, Mr. Kim and
SoftForum Co., Ltd. have agreed to be responsible for such obligations and
Messrs. Coben and Ormand have been released from such
obligations.
In connection with and pursuant to the Agreement, the Company
appointed new members to the Board of Directors and elected new members to the
Company’s audit and nominating committees.
New lease
agreement
In March
2009, the Company entered into a lease agreement with SoftForum Co., Ltd. for
office use. The lease term is two years and the monthly rent is $5,500 per
month.
SIGNATURES
Pursuant
to the requirements of the Section 13 or 15 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized on the 30th day of March
2009.
|
TREMISIS ENERGY ACQUISITION CORPORATION
II
|
|
|
|
|
By:
|
/s/ Ronald D.
Ormand
|
|
|
Ronald
D. Ormand
|
|
|
Co-Chief
Executive Officer (Principal Executive Officer)
|
|
|
|
|
|
/s/ Sang-Chul Kim
|
|
|
Sang-Chul Kim
|
|
|
Chairman
of the Board and Co-Chief Executive Officer
|
|
|
(Principal
Executive Officer)
|
In
accordance with the Securities Exchange Act of 1934, this report has been signed
below by the following persons on behalf of the registrant and in the capacities
and on the dates indicated.
|
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Sang-Chul Kim
|
|
Chairman
of the Board and Co-Chief Executive Officer
|
|
March
30, 2009
|
|
Sang-Chul
Kim
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/
Ronald
D. Ormand
|
|
Co-Chief
Executive Officer, Chief Financial Officer and Director
|
|
March
30, 2009
|
|
Ronald
D. Ormand
|
|
(Principal
Executive Officer, Principal Financial Officer and Principal Accounting
Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Yeon-su Kim
|
|
Secretary
|
|
March
30, 2009
|
|
Yeon-Su
Kim
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Jhong Won Kim
|
|
Director
|
|
March
30, 2009
|
|
Jhong
Won Kim
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Seung Jung Ro
|
|
Director
|
|
March
30, 2009
|
|
Seung
Jung Ro
|
|
|
|
|
|
|
|
|
|
|
|
/s/ David Jin Yoo
|
|
Director
|
|
March
30, 2009
|
|
David
Jin Yoo
|
|
|
|
|
|
|
|
|
|
|
Tremisis Energy Acquisition Corp. Ii (AMEX:TGY)
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Tremisis Energy Acquisition Corp. Ii (AMEX:TGY)
과거 데이터 주식 차트
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