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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
______________
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event reported):
July 30,
2009
TREMISIS ENERGY ACQUISITION
CORPORATION II
(Exact
Name of Registrant as Specified in Charter)
Delaware
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001-33814
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30-0485452
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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545-7
Dogok-Dong
SoftForum
B/D, 7
th
Floor
Gangnam-Gu,
Seoul, South Korea 135-270
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77042
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
(82)(2)
575-0466
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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ý
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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TREMISIS
ENERGY ACQUISITION CORPORATION II (“TREMISIS II”) INTENDS TO HOLD PRESENTATIONS
FOR CERTAIN OF ITS STOCKHOLDERS, AS WELL AS OTHER PERSONS WHO MIGHT BE
INTERESTED IN PURCHASING TREMISIS II SECURITIES, REGARDING ITS ACQUISITION OF
ALL THE OUTSTANDING CAPITAL STOCK OF ASIANA IDT, INC. (“ASIANA IDT”), AS
DESCRIBED IN THIS REPORT. THIS CURRENT REPORT ON FORM 8-K, INCLUDING
SOME OR ALL OF THE EXHIBITS HERETO, WILL BE DISTRIBUTED TO PARTICIPANTS AT SUCH
PRESENTATIONS.
TREMISIS
II, ASIANA IDT AND ASIANA AIRLINES, INC., THE CURRENT PARENT COMPANY OF ASIANA
IDT, AND THEIR RESPECTIVE DIRECTORS AND EXECUTIVE OFFICERS MAY BE DEEMED TO BE
PARTICIPANTS IN THE SOLICIATION OF PROXIES FOR THE SPECIAL MEETING OF TREMISIS
II STOCKHOLDERS TO BE HELD TO APPROVE THE ACQUISITION AND THE SPECIAL MEETING OF
TREMISIS II WARRANTHOLDERS TO BE HELD TO APPROVE AN AMENDMENT TO THE GOVERNING
WARRANT AGREEMENT AND REDEMPTION OF OUTSTANDING WARRANTS.
MERRILL
LYNCH AND EARLYBIRD CAPITAL, INC., WHO ACTED AS UNDERWRITERS IN TREMISIS II’S
INITIAL PUBLIC OFFERING, WILL RECEIVE DEFERRED UNDERWRITING COMMISSIONS
TOTALLING $3,114,454 UPON CONSUMMATION OF THE ACQUISITION. IF THE
ACQUISITION IS NOT CONSUMMATED AND TREMISIS II DOES NOT CONSUMMATE ANOTHER
BUSINESS COMBINATION TRANSACTION BY DECEMBER 6, 2009, SUCH DEFERRED UNDERWRITNG
COMMISSIONS WILL BE FORFEITED BY THE UNDERWRITERS AND WILL BE INCLUDED
AMONG THE FUNDS THAT WILL BE AVAILABLE TO THE TREMISIS II STOCKHOLDERS UPON
LIQUIDATION.
STOCKHOLDERS
AND WARRANTHOLDERS OF TREMISIS II AND OTHER INTERESTED PERSONS ARE ADVISED TO
READ, WHEN AVAILABLE, TREMISIS II’S PRELIMINARY PROXY STATEMENT AND DEFINITIVE
PROXY STATEMENT IN CONNECTION WITH TREMISIS II’S SOLICITATION OF PROXIES FOR THE
SPECIAL MEETINGS BECAUSE THESE PROXY STATEMENTS WILL CONTAIN IMPORTANT
INFORMATION. SUCH PERSONS CAN ALSO READ TREMISIS II’S FINAL
PROSPECTUS, DATED DECEMBER 6, 2007 AND ITS CURRENT REPORT ON FORM 8-K DATED
MARCH 13, 2009, FOR A DESCRIPTION OF THE SECURITY HOLDINGS OF THE TREMISIS II
OFFICERS AND DIRECTORS AND OF MERRILL LYNCH AND EARLYBIRD CAPITAL, INC. AND
THEIR RESPECTIVE INTERESTS IN THE SUCCESSFUL CONSUMMATION OF THIS BUSINESS
COMBINATION. THE DEFINITIVE PROXY STATEMENT WILL BE MAILED TO
STOCKHOLDERS AND WARRANTHOLDERS AS OF A RECORD DATE TO BE ESTABLISHED FOR VOTING
ON THE ACQUISITION AND THE WARRANT AGREEMENT AMENDMENT AND WARRANT
REDEMPTION. STOCKHOLDERS AND WARRANTHOLDERS WILL ALSO BE ABLE TO
OBTAIN A COPY OF THE DEFINITIVE PROXY STATEMENT, WITHOUT CHARGE, BY DIRECTING A
REQUEST TO: TREMISIS ENERGY ACQUISITION CORPORATION II, 545-7
DOGOK-DONG, SOFTFORUM B/D, 7
TH
FLOOR,
GANGNAM-GU, SEOUL, SOUTH KOREA 135-270. THE PRELIMINARY PROXY
STATEMENT AND CURRENT REPORT, AND THE DEFINITIVE PROXY STATEMENT, ONCE
AVAILABLE, MAY ALSO BE OBTAINED, WITHOUT CHARGE, AT THE SECURITIES AND EXCHANGE
COMMISSION’S INTERNET SITE (
http://www.sec.gov
).
Item
1.01. Entry
into a Material Definitive Agreement.
General;
Structure of the Acquisition
On July
30, 2009, Tremisis Energy Acquisition Corporation II (“Tremisis II”) entered
into a Securities Purchase Agreement (“Purchase Agreement”) with Asiana IDT Inc.
(“Asiana IDT”) and Asiana Airlines, Inc. (“Asiana Airlines”) providing for the
purchase by Tremisis II from Asiana Airlines of all of the outstanding capital
stock of Asiana IDT. Asiana IDT is a leading information technology
(IT) service provider in the Republic of Korea.
The
acquisition is expected to be consummated in the last quarter of 2009, after the
required approval by the stockholders of Tremisis II and the fulfillment of
certain other conditions, as discussed herein.
Acquisition
Consideration
Pursuant
to the Purchase Agreement, at the closing, Tremisis II will pay Asiana Airlines
US$63,076,925 and issue to it 9,832,670 shares of Tremisis II’s common stock,
which would represent 50% plus 1 share of Tremisis II’s outstanding common stock
based on the amount of shares currently outstanding and retirement of certain
founders’ shares and assuming that no holders of shares of Tremisis II’s common
stock issued in its initial public shares vote against the acquisition and elect
to convert their shares into cash in accordance with Tremisis II’s certificate
of incorporation and the prospectus issued for its initial public
offering.
BDO
Daejoo, LLP, Tremisis II’s independent registered accounting firm, has been
engaged to render to Tremisis II’s board of directors its opinion on the
fairness to Tremisis II’s stockholders of the consideration to be paid by
Tremisis II to Asiana Airlines and on the fair market value of Asiana
IDT. BDO Daejoo, LLP is an independent member of the BDO Seidman
Alliance and is experienced in the evaluation of businesses and their securities
in connection with mergers, acquisitions and other purposes.
Representations
and Warranties
The
purchase agreement contains representations of each of Tremisis II, Asiana IDT
and Asiana Airlines relating to (a)
authority to
enter into the Purchase Agreement, (b) accuracy and completeness of the
information provided by them to the other parties, (c) by Asiana IDT and Asiana
Airlines only, no contingent liabilities or off-balance sheet debt of Asiana
IDT, and (d) by Tremisis II only, the trust fund established for the benefit of
the holders of shares of its common stock issued in its initial public offering
(“Public Shares”).
Covenants
Tremisis
II, with respect to its business, and Asiana IDT and Asiana Airlines, with
respect to the business of Asiana IDT, have each agreed to continue to operate
such businesses in the ordinary course prior to the closing and not to take
certain specified actions without the prior written consent of the other
parties. The Purchase Agreement also contains additional covenants of
the parties, including covenants providing for, among other things:
(i)
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The
parties to use commercially reasonable efforts to obtain all necessary
approvals from governmental agencies and other third parties that are
required for the consummation of the transactions contemplated by the
Purchase Agreement;
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(ii)
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The
protection of confidential information of the parties and, subject to the
confidentiality requirements, the provision of reasonable access to
information;
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(iii)
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Tremisis
II to prepare and file a proxy statement to solicit proxies from the
Tremisis II stockholders to vote on proposals regarding the approval of
the acquisition, the change of Tremisis II’s name to Asiana IDT Holdings,
Inc., the election of directors, changes to Tremisis II’s certificate of
incorporation as agreed by the parties, including changing Tremisis II’s
existence to perpetual, providing for classification of directors and
removing provisions that will no longer be applicable after the closing,
and an adjournment proposal if, based on the tabulated vote at the time of
the special meeting that will be called to present such matters for
consideration, Tremisis II is not authorized to consummate the
acquisition, and to solicit proxies from the holders of Tremisis II’s
warrants to approve an amendment to the governing warrant agreement to
provide for the redemption of all existing and outstanding warrants
promptly after the closing and a similar adjournment
proposal.
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(iv)
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Asiana
IDT and Asiana Airlines to waive their rights to make claims against
Tremisis II to collect from the trust fund for any monies that may be owed
to them by Tremisis II;
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(v)
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Asiana
IDT to list and provide Tremisis II with schedules for payment and/or
performance of obligations relating to any and all loans made by Asian IDT
to officers, directors and employees of Asiana IDT no later than the
closing;
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(vi)
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Tremisis
II to make borrowings from its directors, officers and/or stockholders to
meet its reasonable capital requirements prior to closing, which will be
made on a non-recourse basis and will be repayable at the closing from
funds in the trust fund;
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(vii)
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Tremisis
II to be permitted to use proceeds of the trust fund upon closing to fund
agreements and arrangements relating to the repurchase or redemption of
Public Shares from holders thereof who have voted, or have indicated an
intention to vote, against the acquisition proposal and convert their
shares to cash in order to enhance the likelihood of securing approval of
the transactions contemplated by the Purchase Agreement;
and
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(viii)
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Tremisis
II to use its best efforts cause certain third parties, no later than
the record date of the special meeting of the warrantholders, to purchase
51% of the outstanding warrants and to vote such warrants (the “Acquired
Warrants”) at such special meeting in favor of the proposals presented for
consideration to the holders of the warrants thereat and, at or after the
closing, for Tremisis II to redeem all outstanding warrants,
including the Acquired Warrants, provided that the redemption price
to be paid by Tremisis II for the Acquired Warrants shall not exceed the
purchase price paid by the purchasers of the Acquired
Warrants.
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Conditions
to Closing
C
onsummation of the
transactions is conditioned on, among other things, (i) the Tremisis II
stockholders, at the meeting called for these purposes, approving the
acquisition, including the consideration to be paid to Asiana Airlines with
respect thereto, (ii) the holders of fewer than 30% of the Public Shares voting
against the acquisition and exercising their right to convert their Public
Shares into a pro-rata portion of the trust fund and (iii) the warrantholders
approving the warrant agreement amendment and redemption.
The
approval of the acquisition will require the affirmative vote of the holders of
a majority of the Public Shares present in person or represented by proxy and
entitled to vote at the special meeting. The holders of the Tremisis
II common stock issued prior to its initial public offering, including a current
director of Tremisis II, have agreed to vote such shares in the matter of the
approval of the acquisition to the same effect as the majority of the Public
Shares are voted.
The
approval of the Tremisis II name change and other amendments of Tremisis II’s
certificate of incorporation will require the affirmative vote of the holders of
a majority of the outstanding common stock of Tremisis II. None of
these approvals is a condition to the consummation of the
acquisition. The approval of the amendment to the warrant agreement
governing the warrants will require the affirmative vote of the holders of a
majority of the outstanding warrants.
In
addition, the consummation of the transactions contemplated by the Purchase
Agreement is conditioned upon, among other things, (i) the receipt of all
necessary consents and approvals by third parties and the completion of
necessary proceedings, and (ii) 2,333,168 shares of Tremisis common stock of the
2,433,168 shares of common stock presently owned by its initial founders shall
have been retired.
Termination
The
Purchase Agreement may be terminated at any time, but not later than the
closing, as follows:
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(i)
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by
mutual written consent of the parties at any
time;
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(ii)
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automatically,
if the acquisition is not consummated on or before December 6,
2009;
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(iii)
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by
either Tremisis II, on the one hand, or Asiana IDT or Asiana Airlines, on
the other hand, if the other party has breached any of its covenants or
agreements in any material respect and has not cured its breach within
thirty days of the notice of an intent to terminate, provided that the
terminating party is itself not in
breach;
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(iv)
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by
Tremisis II if Asiana IDT or Asiana Airlines has materially breached its
representations in Section 2.2 or Section 2.4 of the Purchase Agreement or
by Asiana IDT or Asiana Airlines if Tremisis II has materially breached
its representations in Section 2.3 of the Purchase Agreement;
and
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(v)
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by
either Tremisis II, on the one hand, or Asiana IDT or Asiana Airlines, on
the other hand, if their respective “due diligence” investigation of the
other reveals that, based on the reasonable opinion of its outside
advisors, information relating to the other, provided to the terminating
party by the other party, was materially inaccurate or incomplete, making
the transactions contemplated under the Purchase Agreement not appropriate
on the terms set forth therein.
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Founders’
Shares and Warrants
On March
13, 2009, Tremisis II entered into an agreement (“Investor
Agreement”) with those persons who were its stockholders prior to its initial
public offering (“Founders”) and SoftForum Co., Ltd. and Mr. Sang-Chul Kim
(together, the “Investors”). Pursuant to the Investor Agreement,
among other things, the Founders have the option to sell to the Investors, and
the Investors have the option to purchase from the Founders, warrants to
purchase 2,650,000 shares of Tremisis II’s common stock (“Founder Warrants”)
upon the earliest of (i) Tremisis II’s consummation of a business combination,
(ii) the liquidation of its trust fund and (iii) December 31,
2009. The purchase price for the Founder Warrants is
$2,100,000. The Founder Warrants will be redeemed together with all
other outstanding warrants to purchase shares of Tremisis II common stock as
promptly as practicable after the closing of the acquisition.
Pursuant
to the Investor Agreement and as part of the same transaction, the Founders also
agreed to transfer an aggregate of 2,333,168 shares of Tremisis II’s common
stock to the Investors, for no additional consideration, upon consummation of a
business combination. The Founders will continue to hold an aggregate
of 100,000 shares of Tremisis II’s common stock following the
transfer. No later than the closing of the acquisition, the Investors
will contribute to Tremisis II the 2,333,168 shares of common stock that they
will receive from the Founders, thus reducing the number of shares of
outstanding Tremisis II common stock by that amount.
Press
Release
Tremisis
II is filing the attached press release (Exhibit 99.1 to this Form 8-K) as
Regulation FD Disclosure material.
Item
8.01. Other
Events.
Asiana
IDT and its Business
Asiana
IDT, an affiliate of the Kumho Asiana Group, is a leading information technology
(IT) service provider that offers total IT solutions and services in consulting,
system integration (SI) and network integration (NI), largely for the Korean
market. Its customers and partners, including Lufthansa Systems, IBM
Korea, Oracle Korea, Hewlett Packard Korea, Sun Microsystems Korea, Microsoft
Korea, and the Korea Electric Certification Authority, are in various fields
such as public service, air and road transportation, construction,
manufacturing, logistics, finance and leisure.
Asiana
IDT had, respectively for the years 2008, 2007 and 2006, sales of $191.75
million, $153.68 million and $112.45 million, operating income of $14.01
million, $6.14 million and $5.35 million and net income of $10.29 million, $6.33
million and $4.39 million. At December 31, 2008, it had total assets
of $83.84 million and shareholders’ equity of $15.99 million. Asiana IDT’s
financial statements are audited under Korea generally accepted accounting
principles, are public and are filed with the Korea Financial Supervisory
Service. USD figures were translated according to a 10-day moving average
exchange rate of 1,255.04 Won per USD provided by the Bank of Korea Economic
Statistics System for the ten business days ending July 29,
2009. Korea generally accepted accounting principles differ in a
number of material respects from United States generally accepted accounting
principles. The financial statements of Asiana IDT that will be
included in the proxy statement that Tremisis II will file with respect to the
transaction described herein will be reconciled to United States generally
accepted accounting principles.
Asiana
IDT provides various IT outsourcing services based on its extensive
technological experience in system management, including the management of all
Kumho Asiana Group affiliates. It also concentrates on supporting each
industry group so that clients can function strategically in improving their
management efficiency as well as entering into new businesses. In
addition, it offers business consulting services, such as IT business strategy
consulting, radio frequency identification, enterprise resource planning,
business process management, consulting, diagnosis of product quality and
information literacy level, and project management.
Asiana
IDT is leading Korea’s public service sector's push for information literacy,
including environment and intelligent transport systems through advanced
infrastructure and services that make use of many technologies. Asiana IDT
believes that its public services not only contribute to the strengthening of
Korean national competitiveness but also bring about a cleaner, more enriched
world by creating pleasant environments and improving urban transport
systems.
Asiana
IDT’s principal executive office is located at S-Tower 19F, Shinmoonro, 1 Ga,
Jongro-gu, Seoul, Korea 110-700. Its telephone number is (82)
2-2127-8350. Its website address is
www.asianaidt.com
.
Item
9.01. Financial
Statement and Exhibits.
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99.1
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Press
release dated August 3, 2009.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date:
August 5, 2009
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TREMISIS
ENERGY ACQUISITION CORPORATION II
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By:
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/s/ Sang-Chul
Kim
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Name:
Sang-Chul Kim
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Title:
Chairman and Chief Executive Officer
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Tremisis Energy Acquisition Corp. Ii (AMEX:TGY)
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