UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM 10-Q
|
x
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QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
|
For the
quarterly period ended September 30, 2009
OR
|
¨
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
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For the
transition period from ______________ to ______________
Commission
File Number 001-33920
TRIAN
ACQUISITION I CORP.
(Exact
name of Registrant as specified in its charter)
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Delaware
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26-1252336
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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280
Park Avenue, 41
st
Floor
New
York, New York 10017
(Address
of principal executive offices and zip code)
Registrant’s
telephone number, including area code: (212) 451-3000
Indicate by check mark whether the
Registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes
x
No
¨
Indicate by check mark whether the
registrant has submitted electronically and posted on its corporate Web site, if
any, every Interactive Data File required to be submitted and posted pursuant to
Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12
months (or for such shorter period that the registrant was required to submit
and post such files). Yes
o
No
o
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
¨
Accelerated
filer
¨
Non-accelerated filer
x
(do not check if a smaller reporting
company)
Smaller reporting
company
¨
Indicate
by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Act).
x
Yes
¨
No
There were 115,000,000 shares of the
Company’s common stock, par value $0.0001 per share, outstanding on
November 1, 2009.
Table
of Contents
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PART
I. FINANCIAL INFORMATION
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Item
1.
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Item
2.
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Item
3.
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Item
4.
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PART
II. OTHER INFORMATION
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Item
1.
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Item
1A.
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Item
2.
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Item
3.
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Item
4.
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Item
5.
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Item
6.
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Ex-31.1
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Ex-31.2
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Ex-32.1
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Cautionary
Note Regarding Forward-Looking Statements
The
statements contained in this Quarterly Report on Form 10-Q, and the information
incorporated by reference, that are not purely historical are forward-looking
statements. Our forward-looking statements include, but are not
limited to, statements regarding our or our management’s expectations, hopes,
beliefs, intentions or strategies regarding the future. In addition,
any statements that refer to projections, forecasts or other characterizations
of future events or circumstances, including any underlying assumptions, are
forward-looking statements. The words “anticipates,” “believe,”
“continue,” “could,” “estimate,” “expect,” “intends,” “may,” “might,” “plan,”
“possible,” “potential,” “predicts,” “project,” “should,” “would” and similar
expressions may identify forward-looking statements, but the absence of these
words does not mean that a statement is not
forward-looking. Forward-looking statements in this Quarterly Report
on Form 10-Q may include, for example, statements about:
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·
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our
ability to consummate our business combination;
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·
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our
success in retaining or recruiting, or changes required in, our officers,
key employees or directors following our business
combination;
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·
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our
officers and directors allocating their time to other businesses and
potentially having conflicts of interest with our business or in approving
our business combination;
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·
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our
potential ability to obtain additional financing to consummate our
business combination, particularly in light of recent significant
disruptions in the equity and credit markets;
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·
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our
pool of prospective target businesses;
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·
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the
ability of our officers and directors to generate a number of potential
investment opportunities;
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·
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our
public securities’ liquidity and trading;
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·
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the
delisting of our securities from the NYSE Amex or the ability to have our
securities listed on the NYSE Amex or any other securities exchange
following a business combination;
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·
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the
use of proceeds not held in the trust account or available to us from
income on the trust account balance; or
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·
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our
financial performance.
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The
forward-looking statements contained or incorporated by reference in this
Quarterly Report on Form 10-Q are based on our current expectations and beliefs
concerning future developments and their potential effects on
us. There can be no assurance that future developments affecting us
will be those that we have anticipated. These forward-looking
statements involve a number of risks, uncertainties (some of which are beyond
our control) or other assumptions that may cause actual results or performance
to be materially different from those expressed or implied by these
forward-looking statements. These risks and uncertainties include,
but are not limited to, those factors described in our Annual Report on Form
10-K for the fiscal year ended December 31, 2008 under the heading “Item 1A.
Risk Factors.” Should one or more of these risks or uncertainties materialize,
or should any of our assumptions prove incorrect, actual results may vary in
material respects from those projected in these forward-looking
statements. We undertake no obligation to update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise, except as may be required under applicable securities
laws.
References in this Quarterly Report on
Form 10-Q to “we,” “us,” “our,” “company” or “our company” refer to Trian
Acquisition I Corp. References to our “public stockholders” refer to
holders of common stock acquired either as part of the units sold in our initial
public offering or in the after market.
PART 1 – FINANCIAL
INFORMATION
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Item
1
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Financial
Statements
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TRIAN
ACQUISITION I CORP.
(A
Development Stage Company)
UNAUDITED CONDENSED BALANCE
SHEETS
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December
31,
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September
30,
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2008
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2009
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Assets
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Current
assets:
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Cash
and cash equivalents
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$
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175,614
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$
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73,594
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Restricted
cash equivalents held in the trust account (Notes 1 and 3)
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231,474,921
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11,695,885
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Restricted
short-term investments held in the trust account (Notes 1 and
3)
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678,943,070
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899,615,837
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Prepaid
income taxes
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684,646
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379,540
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Other
prepaid expenses
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283,928
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175,286
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Total
assets
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$
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911,562,179
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$
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911,940,142
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Liabilities
and Stockholders’ Equity
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Current
liabilities:
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Other
accrued expenses (Note 4)
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$
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383,433
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$
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388,488
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Deferred
underwriters’ discount (Note 1)
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29,808,000
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29,808,000
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Total
current liabilities
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30,191,433
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30,196,488
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Common
stock subject to redemption, $0.0001 par value;
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36,799,999
shares issued and outstanding (Note 1)
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362,152,639
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362,152,639
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Deferred
interest attributable to common stock subject to
redemption
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(net
of taxes of $1,746,845 and $1,937,832) (Note 1)
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2,135,033
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2,368,461
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Commitments
and contingencies
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Stockholders’
equity:
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Preferred
stock, $0.0001 par value; 1,000,000 shares authorized;
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none
issued or outstanding
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--
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--
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Common
stock, $0.0001 par value; 500,000,000 shares authorized,
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78,200,001
shares issued and outstanding (Note 1)
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7,820
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7,820
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Additional
paid-in capital (Note 1)
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513,344,837
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513,344,837
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Surplus
accumulated during the development stage
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3,730,417
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3,869,897
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Total
stockholders’ equity
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517,083,074
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517,222,554
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Total
liabilities and stockholders’ equity
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$
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911,562,179
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$
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911,940,142
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See
accompanying notes to financial statements.
TRIAN
ACQUISITION I CORP.
(A
Development Stage Company)
UNAUDITED CONDENSED STATEMENTS OF
OPERATIONS
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Period
from
October
16, 2007
(inception)
to
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Three
Months Ended
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Nine
Months Ended
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September
30,
2009
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September
30,
2008
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September
30,
2009
|
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September
30,
2008
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September
30,
2009
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Income:
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Interest
income
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$
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14,546,659
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$
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3,750,135
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$
|
660,223
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$
|
10,213,066
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$
|
2,348,971
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Expenses:
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Professional
fees and other
expenses
(Note 4)
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3,197,841
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290,503
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684,632
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901,249
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1,670,957
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Income
(loss) before income taxes
|
|
|
11,348,818
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3,459,632
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(24,409
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)
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|
9,311,817
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678,014
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(Provision
for) benefit from
income
taxes
|
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|
(5,110,460
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)
|
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(1,556,834
|
)
|
|
|
10,984
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|
|
|
(4,190,317
|
)
|
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|
(305,106
|
)
|
|
Net
income (loss)
|
|
$
|
6,238,358
|
|
|
$
|
1,902,798
|
|
|
$
|
(13,425
|
)
|
|
$
|
5,121,500
|
|
|
$
|
372,908
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
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|
|
|
|
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|
(Deferred
interest) reversal of
deferred
interest, net of taxes,
attributable
to common stock
subject
to redemption
|
|
|
(2,368,461
|
)
|
|
|
(827,768
|
)
|
|
|
19,218
|
|
|
|
(1,694,993
|
)
|
|
|
(233,428
|
)
|
|
Net
income attributable to common
stock
|
|
$
|
3,869,897
|
|
|
$
|
1,075,030
|
|
|
$
|
5,793
|
|
|
$
|
3,426,507
|
|
|
$
|
139,480
|
|
|
|
|
|
|
|
|
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|
|
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|
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|
|
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Income
per common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
and diluted
|
|
$
|
0.06
|
|
|
$
|
0.01
|
|
|
$
|
0.00
|
|
|
$
|
0.05
|
|
|
$
|
0.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average common shares
outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
and diluted (Note 1)
|
|
|
69,665,085
|
|
|
|
78,200,001
|
|
|
|
78,200,001
|
|
|
|
72,252,556
|
|
|
|
78,200,001
|
|
See
accompanying notes to financial statements.
TRIAN ACQUISITION I
CORP.
(A
Development Stage Company)
UNAUDITED CONDENSED STATEMENTS OF CASH
FLOWS
|
|
|
Period
from
October
16, 2007
(inception)
to
|
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|
Nine
Months Ended
|
|
|
|
|
September
30,
2009
|
|
|
September
30,
2008
|
|
|
September
30,
2009
|
|
|
|
|
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|
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Cash
Flows from Operating Activities:
|
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|
|
|
|
|
|
|
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|
Net
income
|
|
$
|
6,238,358
|
|
|
$
|
5,121,500
|
|
|
$
|
372,908
|
|
|
Adjustments
to reconcile net income to net cash provided by
(used
in) operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
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Interest
income on restricted cash equivalents and restricted
short-term
investments held in the trust account
|
|
|
(14,540,910
|
)
|
|
|
(10,208,834
|
)
|
|
|
(2,348,464
|
)
|
|
Withdrawal
of restricted cash equivalents held in the trust
account
|
|
|
8,837,188
|
|
|
|
5,926,622
|
|
|
|
1,454,733
|
|
|
Changes
in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Increase)
decrease in prepaid income taxes
|
|
|
(379,540
|
)
|
|
|
--
|
|
|
|
305,106
|
|
|
(Increase)
decrease in other prepaid expenses
|
|
|
(175,286
|
)
|
|
|
(434,999
|
)
|
|
|
108,642
|
|
|
Increase
in accrued income taxes
|
|
|
--
|
|
|
|
180,317
|
|
|
|
--
|
|
|
Increase
in other accrued expenses
|
|
|
388,488
|
|
|
|
11,215
|
|
|
|
5,055
|
|
|
Net
cash and cash equivalents provided by (used in)
operating
activities
|
|
|
368,298
|
|
|
|
595,821
|
|
|
|
(102,020
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
Flows from Investing Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investment
in restricted cash equivalents held in the trust account
|
|
|
(905,608,000
|
)
|
|
|
(905,608,000
|
)
|
|
|
--
|
|
|
Purchases
of restricted short-term investments held in the trust
account
|
|
|
(2,584,154,728
|
)
|
|
|
(662,346,548
|
)
|
|
|
(1,243,429,602
|
)
|
|
Maturities
of restricted short-term investments held in the trust
account
|
|
|
1,685,239,890
|
|
|
|
--
|
|
|
|
1,022,893,342
|
|
|
Redemption
of restricted cash equivalents held in the trust account
|
|
|
898,914,838
|
|
|
|
662,346,548
|
|
|
|
220,536,260
|
|
|
Net
cash and cash equivalents used in investing activities
|
|
|
(905,608,000
|
)
|
|
|
(905,608,000
|
)
|
|
|
--
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
Flows from Financing Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds
of initial public offering, including deferred
underwriters’
discount, held in the trust account
|
|
|
895,608,000
|
|
|
|
895,608,000
|
|
|
|
--
|
|
|
Proceeds
from issuance of sponsor warrants held in the trust
account
|
|
|
10,000,000
|
|
|
|
10,000,000
|
|
|
|
--
|
|
|
Proceeds
from initial public offering held outside the trust
account
|
|
|
1,300,000
|
|
|
|
1,300,000
|
|
|
|
--
|
|
|
Payments
for offering costs
|
|
|
(1,619,704
|
)
|
|
|
(1,499,225
|
)
|
|
|
--
|
|
|
Proceeds
from note payable to sponsor
|
|
|
250,000
|
|
|
|
--
|
|
|
|
--
|
|
|
Repayment
of note payable to sponsor
|
|
|
(250,000
|
)
|
|
|
(250,000
|
)
|
|
|
--
|
|
|
Proceeds
from sale of sponsor units subject to redemption
|
|
|
25,000
|
|
|
|
--
|
|
|
|
--
|
|
|
Net
cash and cash equivalents provided by financing
activities
|
|
|
905,313,296
|
|
|
|
905,158,775
|
|
|
|
--
|
|
|
Increase
(decrease) in cash and cash equivalents
|
|
|
73,594
|
|
|
|
146,596
|
|
|
|
(102,020
|
)
|
|
Cash
and cash equivalents at beginning of period
|
|
|
--
|
|
|
|
117,774
|
|
|
|
175,614
|
|
|
Cash
and cash equivalents at end of period
|
|
$
|
73,594
|
|
|
$
|
264,370
|
|
|
$
|
73,594
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental
Disclosure of Noncash Financing Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrual
of deferred underwriters’ discount
|
|
$
|
29,808,000
|
|
|
$
|
29,808,000
|
|
|
$
|
--
|
|
Due to
its non-cash nature, the reclassification to permanent equity of the $3,261
corresponding to common stock that had been subject to mandatory redemption is
not reflected in the statements of cash flows for the periods from October 16,
2007 (inception) to September 30, 2009 and the nine months ended September 30,
2008.
See
accompanying notes to financial statements.
TRIAN
ACQUISITION I CORP.
(A
Development Stage Company)
NOTES TO UNAUDITED
CONDENSED FINANCIAL
STATEMENTS
NOTE
1—ORGANIZATION, BUSINESS OPERATIONS AND SIGNIFICANT ACCOUNTING
POLICIES
Organization
and Business Operations
Trian Acquisition I Corp. (the
“Company”) was incorporated in Delaware on October 16, 2007 for the purpose of
effecting a merger, capital stock exchange, asset acquisition, stock purchase,
reorganization or similar business combination with one or more domestic or
international operating businesses or assets. The Company is
considered in the development stage and is subject to the risks associated with
development stage companies.
At September 30, 2009, the Company had
not effected a business combination. All activity through September
30, 2009 relates to the Company’s formation, its initial public offering
described below and conducting the selection process with respect to a business
combination or combinations. In connection with the Company’s
formation and as described in Note 5, in October 2007 the Company’s Sponsor (as
defined below) purchased an aggregate of 23,000,000 units of the Company, each
consisting of one share of common stock and one warrant to purchase an
additional share of common stock. The Company’s fiscal year ends on
December 31.
The accompanying unaudited condensed
financial statements of the Company have been prepared in accordance with Rule
10-1 of Regulation S-X promulgated by the Securities and Exchange Commission
and, accordingly, do not include all information and footnotes necessary for a
fair presentation of financial position, results of operations and cash flows in
conformity with accounting principles generally accepted in the United States of
America. In the opinion of the Company, however, these financial
statements contain all adjustments, consisting only of normal recurring
adjustments, necessary to present fairly the Company’s financial position as of
September 30, 2009 and the results of its operations for the period from October
16, 2007 (date of inception) to September 30, 2009, the three and nine months
ended September 30, 2008 and the three and nine months ended September 30,
2009. The results of operations for these periods are not necessarily
indicative of the results of operations to be expected for a full fiscal
year. The Company has evaluated subsequent events through November 5,
2009, the date at which these interim financial statements were available to be
issued.
The registration statement for the
Company’s initial public offering (the “Offering”) described in Note 2 was
declared effective January 23, 2008. The Company consummated the
Offering (including units sold pursuant to the underwriters’ exercise of their
over-allotment option) on January 29, 2008 and immediately prior to such
Offering, the Sponsor purchased 10,000,000 warrants at $1.00 per warrant from
the Company in a private placement (the “Private Placement”) (see Notes 2 and
5). The Company intends to effect a business combination using the
proceeds of the Offering and the Private Placement, its capital stock, debt or a
combination of cash, stock and debt. The business combination must
occur with one or more target businesses that together have a fair market value
of at least 80% of the Company’s net assets held in trust (net of taxes and
amounts disbursed to the Company for working capital purposes and excluding the
amount of the underwriters’ deferred discount held in trust) at the time of such
business combination. If the Company acquires less than 100% of one
or more target businesses, the aggregate fair market value of the portion or
portions the Company acquires must equal at least 80% of such net assets at the
time of the business combination. The Company will not consummate a
business combination unless it acquires a controlling interest in a target
company, whether through the acquisition of the majority of the voting interests
of the target or through other means.
The Company’s efforts in identifying
prospective target businesses are not limited to a particular industry or group
of industries. Instead, the Company is focused on various industries
and target businesses that may provide significant opportunities for increasing
profitability.
Net proceeds of $905,608,000 from the
Offering and the Private Placement received on January 29, 2008 are held in a
trust account (“Trust Account”) and will only be released to the Company upon
the earlier of: (i) the consummation of a business combination; or (ii) the
Company’s liquidation, except to satisfy stockholder conversion rights (as
described below). The proceeds in the Trust Account include
$29,808,000 of deferred underwriting discount, which represents 3.24% of the
Offering proceeds. Upon consummation of a business combination, such
deferred underwriting discount, reduced pro-ratably by the exercise of
stockholder conversion rights, will be paid to the underwriters from the funds
held in the Trust Account. Proceeds held outside of the Trust Account
as well as income of
up to
$9,500,000 earned on the Trust Account that may be released to the Company (as
discussed in Note 2) to pay for business, legal and accounting due diligence on
prospective acquisitions and continuing general and administrative
expenses. The proceeds held in the Trust Account may be invested by
the trustee only in United States government securities with maturities of 180
days or less or in money market funds, both meeting certain conditions of the
Investment Company Act of 1940.
If the Company does not
consummate a business combination by January 23, 2010 (which is 24 months from
the date of the prospectus filed with the Securities and Exchange Commission
relating to the Offering), or by up to July 23, 2010 (which is 30 months from
the date of such prospectus) (the “Extension Period”) if our stockholders
approve an extension, the Company will liquidate and promptly distribute only to
the holders of common stock acquired either as part of the units sold in the
Offering or in the after market (the “Public Stockholders”) the amount in the
Trust Account, less any income taxes payable on income, investment management
fees payable to the trustee and income of up to $9,500,000 previously released
to the Company and used to fund its working capital requirements. If
the Company fails to consummate a business combination within such time period,
the Company’s amended and restated certificate of incorporation also provides
that the Company’s corporate existence will automatically cease on January 23,
2010 (or at the conclusion of the Extension Period, if applicable) except for
the purpose of winding up its affairs and liquidating. In the event of
liquidation, it is possible that the per share value of the residual assets
remaining available for distribution (including Trust Account assets) will be
less than the $10 offering price per share (assuming no value is attributed to
the warrants contained in the units offered in the Offering discussed in Note
2).
The Company will seek stockholder
approval before it effects its initial business combination, even if the
business combination would not ordinarily require stockholder approval under
applicable law. In connection with the stockholder vote required to
approve a business combination or an extension of the Company’s corporate
existence up to the end of the Extension Period in the event the Company has
entered into a definitive agreement for, but has not yet consummated, a business
combination, the Company’s stockholders immediately prior to the consummation of
the Offering, including Trian Acquisition I, LLC, a Delaware limited liability
company (the “Sponsor”), have agreed and their permitted transferees will agree,
to vote the shares owned by them immediately before the Offering in accordance
with the majority of the shares of common stock voted by the Public
Stockholders. The Company will proceed with a business combination
only if (i) the business combination is approved by a majority of votes cast by
the Public Stockholders at a duly held stockholders meeting, (ii) an amendment
to the Company’s amended and restated certificate of incorporation to provide
for the Company’s perpetual existence is approved by a majority of the Company’s
outstanding shares of common stock, and (iii) conversion rights (as described
below) have been exercised with respect to less than 40% of the shares of common
stock issued in the Offering, on a cumulative basis (including the shares as to
which conversion rights were exercised in connection with a stockholder vote, if
any, to approve an extension of the time period within which the Company must
consummate a business combination and the stockholder vote to approve a business
combination). If the conditions to consummate the proposed business
combination are not met but sufficient time remains before the Company’s
corporate life expires, the Company may attempt to effect another business
combination.
If the business combination is approved
and consummated, subject to a limitation on the ability of a stockholder or more
than one stockholder acting as a group to exercise conversion rights with
respect to more than 10% of the outstanding shares, each Public Stockholder
voting against such business combination will be entitled to convert its shares
of common stock into a pro rata share of the aggregate amount then on deposit in
the Trust Account (including the deferred underwriters’ discount and income
earned on the Trust Account, net of income taxes payable on such income,
investment management fees payable to the trustee and income of up to $9,500,000
on the Trust Account disbursed to fund the Company’s working capital
requirements). Public Stockholders who convert their stock into their
share of the Trust Account will continue to have the right to exercise any
warrants they may hold.
On
January 23, 2008 the Company declared a stock dividend of 0.06667 shares of
common stock for each share of common stock issued and outstanding and adjusted
the number of Sponsor units and warrants included in those units. All
share and per share data in the accompanying financial statements and these
notes reflect this stock dividend.
Significant
Accounting Policies
Cash and cash equivalents
—The
Company considers all highly liquid investments with original maturities of
three months or less when acquired to be cash equivalents. Cash and
cash equivalents at December 31, 2008 and September 30, 2009 principally
consisted of cash in a mutual fund money market account.
Restricted cash equivalents and
short-term investments held in the trust account
—Of the net proceeds of
the Offering and the Private Placement, $905,608,000 was placed in the Trust
Account including $29,808,000 of deferred underwriters’
discount. These amounts are classified as restricted assets since
such amounts can only be used by the Company in connection with a business
combination. At September 30, 2009, the Trust Account is invested in
U.S. Treasury bills and a money market mutual fund that invests only in U.S.
Treasury securities. At September 30, 2009, the aggregate balance in
the Trust Account was $911,311,722, which reflects $14,540,910 of interest
income less $8,837,188 withdrawn to make income tax payments and pay expenses,
and represents approximately $9.91 per share held by Public
Stockholders.
Restricted cash equivalents held in
the trust account
—The Company classifies investments in U.S. Treasury
bills with maturities of 90 days or less when purchased and money market mutual
fund investments as “Restricted cash equivalents held in the trust
account.”
Restricted short-term investments
held in the trust account
—The Company classifies investments in U.S.
Treasury bills with maturities greater than 90 days and less than 181 days when
purchased as “Restricted short-term investments held in the trust
account.” These investments are classified as held-to-maturity and,
accordingly, are carried at amortized cost.
Concentration of credit
risk
—Financial instruments that potentially subject the Company to a
significant concentration of credit risk consist primarily of cash and cash
equivalents and short-term investments. The Company may maintain deposits in
federally insured financial institutions in excess of federally insured limits.
However, management believes that the Company is not exposed to significant
credit risk due to the financial position of the depository institution in which
those deposits are held. The Company does not believe the cash
equivalents and short-term investments held in the Trust Account are subject to
significant credit risk as the portfolio is invested in United States government
securities and a money market fund that invests only in securities of the United
States government.
Use of estimates
—The
preparation of financial statements in conformity with accounting principles
generally accepted in the United States requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenue and expenses during the reporting
period. Actual results could differ from those
estimates.
Common stock subject to
redemption
—As discussed in more detail above, the Company will only
proceed with a business combination if (1) it is approved by a majority of the
votes cast by Public Stockholders and (2) Public Stockholders holding less than
40% (36,800,000) of the shares of common stock sold in the Offering exercise
their conversion rights. Accordingly, the Company has classified
36,799,999 shares of its common stock outside of permanent equity as “Common
stock subject to redemption,” at the initial conversion price of
$9.84. The Company recognizes changes in the redemption value as they
occur and adjusts the carrying value of “Deferred interest attributable to
common stock subject to redemption” to reflect the required adjustment to the
redemption value at the end of each reporting period by an adjustment to
“Surplus accumulated during the development stage,” or in the absence of a
surplus, by an adjustment to paid-in capital.
Income per share
—Basic and
diluted income per share is computed by dividing net income attributable to
common stock by the weighted average number of shares of common stock
outstanding, excluding the common stock subject to redemption, during the
period. The exclusion of common stock subject to redemption from
income per share gives effect to the fact that the Company may be required, upon
the exercise of stockholder conversion rights, to redeem those shares for their
pro rata portion of the Trust Account, as a result of which the terms of the
common stock subject to redemption are considered to be substantially different
than those of the common stock. Increases or decreases in the
redemption value of the common stock subject to redemption reduce or increase,
respectively, the net income attributable to common stock. Warrants,
of which there were (i) 23,000,000 outstanding from inception through January
29, 2008 and (ii) 125,000,000 thereafter through September 30, 2009 (including
10,000,000 warrants purchased by the Sponsor on January 29, 2008 - see Note 4),
have not been considered in the calculation of income per share because the
shares underlying the warrants are contingently issuable.
Income taxes
—Deferred income
tax assets and liabilities are computed for differences between the financial
statement 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.
Deferred offering
costs
—Deferred offering costs consisting principally of legal, accounting
and printing and engraving expenses that were related to the Offering were
charged to additional paid-in capital upon the closing of the Offering on
January 29, 2008.
NOTE
2—PUBLIC OFFERING
On January 29, 2008, the Company sold
92,000,000 units, including 12,000,000 units sold pursuant to the underwriters’
exercise of their over-allotment option, in the Offering at a price of $10.00
per unit. Each unit consists of one share of the Company’s common
stock, $0.0001 par value, and one warrant. Each warrant entitles the
holder to purchase from the Company one share of common stock at an exercise
price of $7.00 per share commencing on later of (i) the consummation of the
business combination or (ii) January 23, 2009. The warrants will be
exercisable only if a current registration statement covering the shares of
common stock issuable upon exercise of the warrants is then
effective. In no event will the holder of a warrant be entitled to
receive a net cash settlement or other consideration in lieu of physical
settlement in shares of the Company’s common stock.
The warrants expire on January 23,
2013, unless earlier redeemed. The warrants included in the units
sold in the Offering are redeemable in whole and not in part at a price of $0.01
per warrant upon a minimum of 30 days’ notice after the warrants become
exercisable, but only in the event that the last sale price of the common stock
exceeds $13.75 per share for any 20 trading days within a 30-trading day
period.
The warrants are classified within
stockholders’ equity since, under the terms of the warrants, the Company cannot
be required to settle or redeem them for cash.
NOTE
3—RESTRICTED CASH EQUIVALENTS AND SHORT-TERM INVESTMENTS HELD IN THE TRUST
ACCOUNT
The restricted cash equivalents held in
the Trust Account were as follows:
|
|
|
December
31,
|
|
|
September
30,
|
|
|
|
|
2008
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
Money market mutual funds invested only in United States
Treasury securities
|
|
$
|
121,476,494
|
|
|
$
|
11,695,885
|
|
|
United States Treasury bills
|
|
|
109,998,427
|
|
|
|
--
|
|
|
|
|
$
|
231,474,921
|
|
|
$
|
11,695,885
|
|
All of the restricted short-term
investments held in the Trust Account at December 31, 2008 and September 30,
2009, aggregating $678,943,070 and $899,615,837, respectively, had maturities of
greater than 90 days and less than 181 days when purchased.
The United States Treasury investments
that are held in “Restricted cash equivalents held in the trust account” and
“Restricted short-term investments held in the trust account” are classified and
accounted for by the Company as “held-to-maturity”
securities. Accordingly, such investments are reported at their
amortized cost. The aggregate carrying value and fair value of such
investments, including accrued interest, as of September 30, 2009 are presented
below.
|
|
Carrying
Value
|
|
Unrealized
Holding
Gains
|
|
Fair
Value
|
|
United
States Treasury money market funds
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Classified
in restricted cash equivalents held
in
the trust account
|
$ 11,695,885
|
|
$ --
|
|
$ 11,695,885
|
|
|
|
|
|
|
|
|
United
States Treasury bills
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Classified
in restricted short-term investments held in the
trust
account
|
$ 899,615,837
|
|
$ 245,913
|
|
$
899,861,750
|
The Company follows the provisions of
the accounting standard for fair value measurements, which provides enhanced
guidance for measuring fair value. The standard requires the Company
to provide expanded information about the assets and liabilities measured at
fair value and the potential effect of these fair valuations on the Company’s
financial performance. The standard establishes a hierarchal
disclosure framework that prioritizes and ranks the level of market price
observability used in measuring investments at fair value. Market
price observability is impacted by a number of factors, including the type of
investment and the characteristics specific to the
investment. Investments with readily available active quoted prices
or for which fair value can be measured from actively quoted prices generally
will have a higher degree of market price observability and a lesser degree of
judgment used in measuring fair value.
Investments measured and reported at
fair value are classified and disclosed in one of the following
categories:
Level
I−Quoted prices are available in active markets for identical investments as of
the reporting date.
Level
II−Pricing inputs are other than quoted prices in active markets, which are
either directly or indirectly observable as of the reporting date, and fair
value is determined through the use of models or other valuation
methodologies.
Level
III−Pricing inputs are unobservable and include situations where there is
little, if any, market activity for the investment.
As of September 30, 2009, the Company’s
cash and cash equivalents, restricted cash equivalents held in the trust account
and restricted short-term investments held in the trust account are classified
as Level I.
NOTE
4—RELATED PARTY TRANSACTIONS
On January 29, 2008, the Sponsor
purchased 10,000,000 warrants at $1.00 per warrant (for an aggregate purchase
price of $10,000,000) from the Company. The Sponsor is permitted to
transfer the warrants held by it to certain permitted transferees, including the
Company’s officers, directors and employees, any affiliates or family members of
such individuals, any affiliates of the Company or the Sponsor, Trian Fund
Management, L.P., an affiliate of the Sponsor, and any officers, directors,
members and employees of the Sponsor, Trian Fund Management, L.P. or such
affiliates, but the transferees receiving such securities will be subject to the
same agreements with respect to such securities as the
Sponsor. Otherwise, these warrants are not transferable or salable by
the Sponsor (except as described below) until after the consummation of a
business combination. The Sponsor warrants may be exercised by paying
cash or on a cashless basis and are non-redeemable as long as they are held by
the Sponsor or its permitted transferees. Otherwise, the Sponsor
warrants have terms and provisions that are identical to those of the warrants
included in the units sold in the Offering.
In
connection with the closing of the Offering, Trian Fund Management, L.P. agreed
to cause Trian Partners (defined below) to place limit orders for up to
$75,000,000 of the Company’s common stock commencing two days after
the
Company files a preliminary
proxy statement relating to a business combination and ending on the business
day immediately preceding the record date for the meeting of stockholders at
which the business combination is to be approved, or earlier under certain
circumstances. “Trian Partners” refers to Trian Fund Management,
L.P., its affiliates and the funds and accounts managed by Trian Fund
Management, L.P. or its affiliates. The limit orders will require
Trian Partners to purchase any of the shares of the Company’s common stock
offered for sale at or below a price equal to the per-share value of the Trust
Account as of the date of the Company’s most recent annual report on Form 10-K
or quarterly report on Form 10-Q, as applicable, filed prior to such
purchase. Any portion of the $75,000,000 not used for open market
purchases of the Company’s common stock will be applied to the purchase of the
Company’s units from the Company, at a price of $10 per unit, immediately prior
to the consummation of a business combination.
In
December 2007, the Sponsor sold an aggregate of 1,893,332 shares of common stock
included in the Sponsor units discussed in Note 5 to certain officers and
directors of the Company and other related parties for an aggregate purchase
price of $2,058, or approximately $0.0011 per share, which is equal to the
purchase price per unit paid by the Sponsor.
In
connection with travel related to the January 2008 marketing efforts with
respect to the Offering, aircraft owned by Wendy’s/Arby’s Group, Inc.
(“Wendy’s/Arby’s,” formerly Triarc Companies, Inc.) were made available to the
Company by Trian Fund Management, L.P., an affiliate of the Sponsor, pursuant to
aircraft time sharing agreements (the “Time Sharing Agreements”) between
Wendy’s/Arby’s and Trian Fund Management, L.P. The Company reimbursed
Trian Fund Management, L.P., which in turn reimbursed Wendy’s/Arby’s, for the
incremental costs of the air travel associated with the use of such aircraft,
which aggregated $293,221, substantially all of which was incurred during the
2008 first quarter. In connection with travel related to
investigating potential business combinations during the nine-month period ended
September 30, 2009, the Company incurred $296,362 of incremental aircraft
expenses ($122,192 for the three-month period ended September 30,
2009). Of that amount, $271,808 ($122,192 for the three-month period
ended September 30, 2009) related to the use of aircraft leased by Trian Fund
Management, L.P. from unaffiliated third parties and $24,554 (all of which was
incurred prior to the three-month period ended September 30, 2009) related
to the use of an aircraft owned by Wendy’s/Arby’s and made available pursuant to
the Time Sharing Agreements. The Company has reimbursed or will
reimburse Trian Fund Management, L.P., which in turn has reimbursed or will
reimburse such third parties and Wendy’s/Arby’s, for the amounts noted
above. The Company’s Chairman and Vice Chairman are also the
non-executive Chairman and Vice Chairman, respectively, of Wendy’s/Arby’s, and
together with funds managed by Trian Fund Management, L.P., are significant
shareholders of Wendy’s/Arby’s. The Company’s Chief Executive Officer
is also a director of Wendy’s/Arby’s.
The
Company pays Trian Fund Management, L.P. $10,000 a month for office space and
general and administrative services. Services commenced promptly
after the completion of the Offering and will terminate upon the earlier of (i)
the consummation of a business combination and (ii) the liquidation of the
Company. Payments under this arrangement began in January 2008 and
aggregated $30,000 and $90,000, respectively, for each of the three-month and
nine-month periods ended September 30, 2008 and 2009 and $210,000 for the period
from October 16, 2007 (date of inception) to September 30, 2009. The
Company’s officers and certain of its directors are also employees of Trian Fund
Management, L.P.
In
addition, prior to a business combination, Trian Fund Management, L.P. has
agreed to guarantee certain of the Company’s obligations to its officers and
directors under indemnity agreements. The Company will not pay a fee
for such guarantees.
NOTE
5—SPONSOR UNITS
In October 2007, the Sponsor purchased
an aggregate of 23,000,000 units for an aggregate purchase price of $25,000, or
$0.0011 per unit. This included an aggregate of 3,000,000 units that
were subject to mandatory redemption by the Company if and to the extent the
underwriters’ over-allotment option was not exercised, so that the Sponsor and
its permitted transferees would own 20% of the Company’s issued and outstanding
shares after the Offering. As the underwriters’ over-allotment was
exercised in full in connection with the Offering, such units are no longer
mandatorily redeemable. Accordingly, the $3,261 corresponding to the
common stock that was subject to mandatory redemption was reclassified to
permanent equity during the three-month period ended March 31,
2008. There are no circumstances beyond the Company’s control that
would require the Company to redeem the warrants for
cash. Accordingly, the warrants included in the units are classified
within “Stockholders’ equity” in the accompanying balance sheets.
Each Sponsor unit consists of one share
of common stock and one warrant. The common stock and warrants
comprising the Sponsor units are identical to the common stock and warrants
comprising the units sold in the Offering, except that:
|
·
|
such
common stock and warrants are subject to the transfer restrictions
described below;
|
|
·
|
the
Sponsor has agreed, and any permitted transferees will agree, to vote the
shares of common stock in the same manner as a majority of the shares of
common stock voted by the Public Stockholders at a special or annual
stockholders meeting called for the purpose of approving the Company’s
business combination or any extension of the Company’s corporate existence
up to July 23, 2010 in the event the Company has entered into a definitive
agreement for, but has not yet consummated, any business
combination;
|
|
·
|
the
Sponsor and its permitted transferees will not be able to exercise the
conversion rights described in Note 1 with respect to the common
stock;
|
|
·
|
the
Sponsor and its permitted transferees will have no right to participate in
any liquidation distribution from the Trust Account with respect to the
common stock if the Company fails to consummate a business
combination;
|
|
·
|
such
warrants may not be exercised unless and until the last sale price of the
common stock equals or exceeds $13.75 for any 20 days within any
30-trading day period beginning 90 days after the business
combination;
|
|
·
|
such
warrants will not be redeemable by the Company as long as they are held by
the Sponsor or its permitted transferees;
and
|
|
·
|
such
warrants may by exercised by the holders, at their election, by paying
cash or on a cashless net share settlement
basis.
|
The Sponsor has agreed, subject to
certain exceptions described below, not to transfer, assign or sell any of the
Sponsor units or any of the common stock or warrants included in such units
(including the common stock issuable upon exercise of such warrants) for a
period of 180 days from the date of consummation of a business
combination.
The Sponsor is permitted to transfer
the Sponsor units and the common stock and warrants comprising such units
(including the common stock issuable upon exercise of such warrants) to the
Company’s officers, directors and employees, any affiliates or family members of
such individuals, any affiliates of the Company, the Sponsor or Trian Fund
Management, L.P. and any officers, directors, members or employees of the
Sponsor, Trian Fund Management, L.P. or such affiliates, but the transferees
receiving such securities will be subject to the same transfer restrictions as
the Sponsor. Any such transfers will be made in accordance with
applicable securities laws. See Note 4 for disclosure of permitted
transfers that took place in December 2007.
NOTE
6—STOCKHOLDERS’ EQUITY
Preferred
Stock
The Company is authorized to issue up
to 1,000,000 shares of preferred stock, par value $0.0001 per share, with such
designations, voting and other rights and preferences as may be determined from
time to time by the board of directors. No shares of preferred stock
were issued and outstanding as of September 30, 2009.
Common
Stock
The authorized common stock of the
Company is 500,000,000 shares. Holders of common stock are entitled
to one vote for each share of common stock. In addition, holders of
common stock are entitled to receive dividends when, as and if declared by the
board of directors.
|
Item 2.
|
Management’s
Discussion
and Analysis of Financial Condition and Results of
Operations
|
Overview
We are a
blank check company formed on October 16, 2007 for the purpose of effecting
a merger, capital stock exchange, asset acquisition, stock purchase,
reorganization or similar business combination with one or more domestic or
international operating businesses or assets. We consummated our
initial public offering on January 29, 2008. We are currently in
the process of evaluating and identifying targets for a business
combination. Our efforts in identifying prospective target businesses
are not limited to a particular industry or group of industries.
We intend
to effect our business combination using cash from the proceeds of our initial
public offering, our capital stock, debt or a combination of cash, stock and
debt.
The
issuance of additional shares of our stock in a business
combination:
|
·
|
may
significantly dilute the equity interest of our public
stockholders;
|
|
·
|
may
subordinate the rights of holders of common stock if preferred stock is
issued with rights senior to those afforded our common
stock;
|
|
·
|
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 and cause our
public stockholders to become minority stockholders in the combined
entity;
|
|
·
|
may
have the effect of delaying or preventing a change of control of us by
diluting the stock ownership or voting rights of a person seeking to
obtain control of our company; and
|
|
·
|
may
adversely affect prevailing market prices for our common stock and/or
warrants.
|
Similarly,
if we incur indebtedness, it could result in:
|
·
|
default
and foreclosure on our assets if our operating revenues after a business
combination are insufficient to repay our debt
obligations;
|
|
·
|
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;
|
|
·
|
our
immediate payment of all principal and accrued interest, if any, if the
debt obligation is payable on demand;
and
|
|
·
|
our
inability to obtain necessary additional financing if the debt obligation
contains covenants restricting our ability to obtain such financing while
the debt obligation is outstanding.
|
If we are
unable to consummate our business combination by January 23, 2010 (or up to July
23, 2010 if our stockholders approve an extension), our charter requires that we
wind up our affairs and liquidate. Our plans to consummate our
business combination may not be successful and, accordingly, we may be required
to liquidate as soon as practicable after January 23, 2010 (or up to July 23,
2010 if our stockholders approve an extension).
Results
of Operations and Known Trends or Future Events
We have
neither engaged in any operations nor generated any revenues to date (other than
interest income), other than in connection with our initial public
offering. Our only activities since inception have been
organizational
activities,
those necessary to consummate our initial public offering and those in
connection with identifying and investigating targets for a business
combination. We will not generate any operating revenues until after
consummation of our business combination. We are generating
non-operating income in the form of interest income on cash, cash equivalents
and investments. We have incurred expenses as a result of being a
public company (for legal, financial reporting, accounting and auditing
compliance), as well as for due diligence activities. Our expenses
may increase substantially.
Three
Months Ended September 30, 2009 Compared with Three Months Ended September 30,
2008
Our
interest income, which principally related to the investment of $905.6 million
of the net proceeds from our initial public offering, decreased $3.1 million to
$0.7 million in the 2009 third quarter from $3.8 million in the 2008 third
quarter. This decrease was due to the significantly lower available
yields on United States Treasury securities during the 2009 third quarter as
compared with the 2008 third quarter. The average yield on our
investments decreased from 1.7% for the 2008 third quarter to 0.3% for the 2009
third quarter.
Our
professional fees and other expenses increased $0.4 million to $0.7 million in
the 2009 third quarter from $0.3 million in the 2008 third quarter reflecting an
increase in expenses related to investigating potential business
combinations.
We had a
benefit from income taxes in the 2009 third quarter of an insignificant amount
reflecting a loss before income taxes also of an insignificant
amount. We had a provision for income taxes in the 2008 third quarter
of $1.6 million due to the income before income taxes of $3.5 million in that
period.
Nine
Months Ended September 30, 2009 Compared with Nine Months Ended September 30,
2008
Our
interest income, which principally related to the investment of $905.6 million
of the net proceeds from our initial public offering, decreased $7.9 million to
$2.3 million for the nine months ended September 30, 2009 from $10.2 million for
the nine months ended September 30, 2008. This decrease was due to
the significantly lower available yields on United States Treasury securities
for the nine months ended September 30, 2009 as compared with the nine months
ended September 30, 2008, which impact more than offset the full period effect
of the investment of the initial public offering proceeds for the nine months
ended September 30, 2009, which were invested in the 2008 first quarter
beginning only on January 29, 2008. The average yield on our
investments decreased from 1.5% for the nine months ended September 30, 2008 to
0.3% for the nine months ended September 30, 2009.
Our
professional fees and other expenses increased $0.8 million to $1.7 million in
the nine months ended September 30, 2009 from $0.9 million for the nine months
ended September 30, 2008 reflecting an increase in expenses related to
investigating potential business combinations as well as the full period effect
of recurring expenses in the 2009 nine-month period.
Our
provision for income taxes decreased $3.9 million to $0.3 million for the nine
months ended September 30, 2009 from $4.2 million for the nine months ended
September 30, 2008 principally reflecting the lower income before income taxes
for the 2009 nine-month period.
Liquidity
and Capital Resources
A total
of $905.6 million of the net proceeds from our initial public offering,
including $10.0 million from the sale of the sponsor warrants in a private
placement and $29.8 million of deferred underwriting commissions, was placed in
a trust account initially at Wilmington Trust Company, which we refer to as
Wilmington, with Wilmington serving as trustee and
custodian. Effective October 1, 2008, in accordance with the terms of
the investment management trust agreement dated as of January 23, 2008 between
us and Wilmington, which we refer to as the Original Trust Agreement, by mutual
agreement of the parties, Wilmington resigned as trustee and custodian of the
trust account and we appointed U.S. Trust Company of Delaware, which we refer to
as U.S. Trust, as successor trustee and custodian. We and U.S. Trust
have entered into an amended and restated investment management trust agreement
dated as of October 1, 2008, the terms of which are substantially the same as
the Original Trust Agreement.
As of
September 30, 2009, the trust account was invested in U.S. Treasury bills with
maturities ranging from 119 to 178 days when purchased and, to a lesser extent,
a money market mutual fund that invests exclusively in U.S. Treasury
securities. As of September 30, 2009, the balance in the trust
account was $911.3 million, or approximately $9.91 per share held by our public
stockholders. Up to $9.5 million of interest income earned on the
cash equivalents and short-term investments in the trust account may be
withdrawn to fund general and administrative expenses. Amounts
necessary to pay (a) income taxes and (b) the trustee’s investment management
fees, which fees may not exceed $0.35 million per year, may also be withdrawn in
addition to the $9.5 million of interest income. From the
establishment of the trust account through September 30, 2009, $14.5 million of
interest income was earned, $5.5 million was withdrawn to pay estimated income
tax payments, $0.5 million was withdrawn to pay the trustee’s investment
management fees and $2.8 million was withdrawn to fund general and
administrative expenses. As of September 30, 2009, the balance of our
cash and cash equivalents held outside the trust account was $0.1
million.
Prior to
the consummation of a business combination, we intend to use a substantial
portion of the cash released to us from the trust account in connection with
identifying and evaluating prospective target businesses, selecting one or more
target businesses, and structuring and negotiating the business
combination. We intend to effect a business combination using the
proceeds from our initial public offering, our capital stock, debt or a
combination of cash, stock and debt. The proceeds held in the trust
account (less amounts paid to any public stockholders who exercise their
conversion rights and deferred underwriting commissions paid to the
underwriters) that are not utilized as part of the consideration for a business
combination will be released to us and will be available to finance the
operations of the target business or businesses. Such working capital
funds could be used in a variety of ways including continuing or expanding the
target business’ operations, for strategic acquisitions or the payment of
principal or interest due on indebtedness incurred in consummating a business
combination or preexisting indebtedness of the target business. Such
funds could also be used to repay any operating expenses or finder’s fees that
we had incurred prior to the consummation
of our
business combination if the funds available to us outside of the trust account
were insufficient to cover such expenses.
The
following amounts are or were available to us to fund our working capital
requirements and certain other expenses, (1) $0.8 million of offering expense
reimbursement obtained from the proceeds of our initial public offering, (2)
$0.5 million of working capital held outside the trust account and also obtained
from the proceeds of our initial public offering and (3) income of up to $9.5
million, net of income taxes, earned (or to be earned) on the balance of the
trust account. Of these amounts, we have used an aggregate of $4.1
million through September 30, 2009 leaving us with a maximum additional
availability of up to $6.7 million. However, based on currently
available interest rates on U.S. Treasury securities, we would not earn
sufficient interest income on the cash equivalents and short-term investments
held in the trust account in order to generate the $9.5 million, net of income
taxes, permitted to be withdrawn from the trust account. As of
September 30, 2009, $5.0 million of interest earned on the trust account remains
available for withdrawal. We believe the $5.0 million together with
the remaining interest income that would be earned (and available for
withdrawal) based on currently available interest rates will be sufficient to
allow us to operate at least until January 23, 2010 (the date that is 24
months from the date of the prospectus relating to our initial public offering),
or up to July 23, 2010 (30 months from the date of such prospectus) if
extended pursuant to a stockholder vote, assuming our business combination is
not consummated during that time. We estimate our primary liquidity
requirements during that period to include legal, accounting and other expenses
associated with structuring, negotiating and documenting a business combination,
the trustee’s investment management fees, payments for income taxes, payments to
Trian Fund Management, L.P. of $10,000 per month for up to 24 months (or up to
30 months in the event our stockholders approve an extension) for office space,
administrative services and support, legal and accounting fees related to
regulatory reporting requirements, and general working capital that will be used
for miscellaneous expenses and reserves, including director and officer
liability insurance.
If our
estimates of the costs of undertaking in-depth due diligence and negotiating a
business combination are less than the actual amount necessary to do so, we may
have insufficient funds available to operate our business prior to our business
combination. Moreover, we may need to obtain additional financing
either to consummate our business combination or because we become obligated to
convert into cash a significant number of shares of public stockholders voting
against our business combination, in which case we may issue additional
securities or incur debt in connection with such business
combination. Following our business combination, if cash on hand is
insufficient, we may need to obtain additional financing in order to meet our
obligations.
Off-Balance
Sheet Arrangements
We have
never entered into any off-balance sheet financing arrangements and have never
established any special purposes entities. We have not guaranteed any
debt or commitments of other entities or entered into any options on
non-financial assets.
Contractual
Obligations
We do not
have any long-term debt, capital lease obligations, operating lease obligations,
purchase obligations or other long-term liabilities.
We are
obligated to pay a $10,000 monthly fee to Trian Fund Management, L.P. for office
space, administrative services and support for up to 24 months (or up to 30
months in the event our stockholders approve an extension) from the date of our
initial public offering. As of September 30, 2009, the maximum amount
of future payments under this obligation is $90,000 through July 23, 2010 (30
months from the date of the prospectus relating to our initial public
offering). This obligation terminates upon the earlier of the
consummation of our business combination and our liquidation.
|
Item 3.
|
Quantitative and Qualitative
Disclosures About Market
Risk
|
The net
proceeds from our initial public offering, including amounts in the trust
account, have been invested in U.S. Treasury bills with a maturity of 180 days
or less or in money market funds meeting certain conditions under Rule 2a-7
under the Investment Company Act. As of September 30, 2009, the
aggregate carrying amounts of the investments in U.S. Treasury bills (held at
amortized cost) and a money market fund were $899.6 million and $11.7 million,
respectively. The U.S. Treasury bills had remaining maturities
ranging from 15 to 103 days as of September 30, 2009, with a weighted average
remaining maturity of 61 days. We are subject to interest rate risk
to the extent of changes in interest rates on U.S. Treasury
securities. However, due to the short-term nature of these
investments, we do not believe the associated risk is material. As of
September 30, 2009, the aggregate estimated fair values of the investments in
U.S. Treasury bills and the money market fund were $899.9 million and $11.7
million, respectively. We do not believe we have significant exposure
to other types of market risk, such as equity price risk.
|
Item 4.
|
Controls and
Procedures
|
Evaluation
of Disclosure Controls and Procedures
Our
management, with the participation of our Chief Executive Officer and our Chief
Financial Officer, carried out an evaluation of the effectiveness of the design
and operation of our disclosure controls and procedures (as defined in Rules
13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)) as of September 30, 2009. Based on that
evaluation, our Chief Executive Officer and our Chief Financial Officer have
concluded that, as of September 30, 2009, our disclosure controls and procedures
were effective to provide reasonable assurance that information required to be
disclosed by us in the reports that we file or submit under the Exchange Act was
accumulated and communicated to management, including our Chief Executive
Officer and our Chief Financial Officer, recorded, processed, summarized and
reported within the time periods specified in the rules and forms of the
SEC.
Change
in Internal Control Over Financial Reporting
There were no changes in our internal
control over financial reporting made during our most recent fiscal quarter that
materially affected, or are reasonably likely to materially affect, our internal
control over financial reporting.
Inherent
Limitations on Effectiveness of Controls
There are inherent limitations on the
effectiveness of any control system, including the potential for human error and
the circumvention of overriding of the controls and
procedures. Additionally, judgments in decision-making can be faulty
and breakdowns can occur because of simple error or mistake. An
effective control system can provide only reasonable, not absolute, assurance
that the control objectives of the system are adequately
met. Accordingly, our management, including our Chief Executive
Officer and our Chief Financial Officer, does not expect that our control system
can prevent or detect all errors or fraud. Finally, projections of
any evaluation or assessment of effectiveness of a control system to future
periods are subject to the risks that, over time, controls may become inadequate
because of changes in an entity’s operating environment or deterioration in the
degree of compliance with policies or procedures.
PART II - OTHER
INFORMATION
|
Item 1.
|
Legal
Proceedings
|
We are
not currently subject to any material legal proceedings, nor, to our knowledge,
is any material legal proceeding threatened against us.
As of
October 31, 2009, there have been no material changes to the risk factors
disclosed in our Annual Report on Form 10-K for the fiscal year ended December
31, 2008 filed with the SEC. We may disclose changes to such factors
or disclose additional factors from time to time in our future filings with the
SEC.
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Item 2.
|
Unregistered Sales
of Equity Securities and Use of
Proceeds
|
The
information in this section has been adjusted to reflect a dividend on
January 23, 2008 of 0.06667 shares of common stock for each share of common
stock issued and outstanding on such date and a corresponding adjustment to the
number of units issued to our sponsor, Trian Acquisition I, LLC, and to the
warrants included in (or formerly included in) such units.
Use
of Proceeds from Our Initial Public Offering
On
January 29, 2008, we consummated our initial public offering of 92,000,000
units (including 12,000,000 units sold pursuant to the underwriters’
over-allotment option), each unit consisting of one share of common stock and
one warrant to purchase one share of common stock at $7.00 per
share. The units were sold at a price of $10.00 per unit, generating
gross proceeds of $920 million. Also on January 29, 2008, we
completed the sale of 10,000,000 warrants to our sponsor at a purchase price of
$1.00 per warrant, generating gross proceeds to us of $10
million. The securities sold in our initial public offering were
registered under the Securities Act on a registration statement on Form S-1
(File Nos. 333-147094 and 333-148830). The SEC declared the
registration statement effective on January 23, 2008. Deutsche
Bank Securities Inc. and Merrill Lynch & Co. served as joint bookrunning
managers of the offering, and Maxim Group LLC served as co-manager.
Net
proceeds of approximately $905.6 million from our initial public offering and
the sale of the sponsor warrants, including $29.8 million of underwriting
commissions that have been deferred until the consummation of our business
combination, were deposited in a trust account that is now maintained by U.S.
Trust. The funds in the trust account will not be released from the
trust account until the earlier to occur of our business combination and our
dissolution and liquidation, except that the underwriters’ deferred commissions
will be payable to the underwriters only upon the consummation of our business
combination, in which case they will be reduced pro ratably to the extent public
stockholders exercise conversion rights. After taking into account
$800,000 that was deducted from the offering proceeds to pay expenses relating
to the offering, we received an additional $500,000 of offering proceeds that
was not deposited in the trust account and is being used to fund our working
capital requirements. A portion of the amount held outside the trust
account was used to repay a $250,000 loan from our sponsor, which loan had been
used to fund offering related expenses. Up to $9.5 million of the
income earned on the trust account, net of income taxes, may be released to us
from time to time to fund expenses related to investigating and selecting a
target business and other working capital requirements. In addition,
any amounts necessary to pay tax obligations on the income earned on the
investments in the trust account as well as the trustee’s investment management
fees may also be released to us from the trust account.
As of
September 30, 2009, the balance in the trust account was $911.3 million, or
approximately $9.91 per share held by public stockholders. Since the
inception of the trust account through September 30, 2009, $14.5 million of
interest income was earned, $5.5 million was withdrawn to pay estimated income
tax payments, $0.5 million was withdrawn to pay the trustee’s investment
management fees and $2.8 million was withdrawn to fund general and
administrative expenses. As of September 30, 2009, the balance of our
cash and cash equivalents held outside the trust account was $0.1
million.
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Item 3.
|
Defaults Upon Senior
Securities
|
Not
applicable.
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Item 4.
|
Submission of Matters
to a Vote of Security
Holders
|
None.
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Item 5.
|
Other
Information
|
None.
The following exhibits are filed as
part of, or incorporated by reference into, this Quarterly Report on Form
10-Q.
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1.1
|
Underwriting
Agreement, dated January 23, 2008, among Trian Acquisition I Corp. and
Deutsche Bank Securities Inc. and Merrill Lynch & Co., as
representatives of the underwriters (incorporated by reference to
Exhibit 1.1 of our Current Report on Form 8-K filed on January 29,
2008).
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3.1
|
Amended
and Restated Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 of our Current Report on Form 8-K filed on January 29,
2008).
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3.2
|
Amended
and Restated By-laws (incorporated by reference to Exhibit 3.2 of our
Current Report on Form 8-K filed on January 29, 2008).
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4.1
|
Specimen
Unit Certificate (incorporated by reference to Exhibit 4.1 of
Amendment No. 1 to our Registration Statement on Form S-1 (No.
333-147094)).
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4.2
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Specimen
Common Stock Certificate (incorporated by reference to Exhibit 4.2 of
Amendment No. 1 to our Registration Statement on Form S-1 (No.
333-147094)).
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4.3
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Specimen
Warrant Certificate (incorporated by reference to Exhibit 4.3 of
Amendment No. 5 to our Registration Statement on Form S-1 (No.
333-147094)).
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4.4
|
Second
Amended and Restated Warrant Agreement between American Stock Transfer
& Trust Company, as warrant agent, and Trian Acquisition I Corp.
(incorporated by reference to Exhibit 4.4 of Amendment No. 5 to our
Registration Statement on Form S-1 (No. 333-147094)).
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|
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4.5
|
Amendment
to Second Amended and Restated Warrant Agreement, dated as of January 23,
2008, between Trian Acquisition I Corp. and American Stock Transfer &
Trust Company, as warrant agent (incorporated by reference to
Exhibit 4.2 of our Current Report on Form 8-K filed on January 29,
2008).
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10.1
|
Unit
Subscription Agreement between Trian Acquisition I Corp. and Trian
Acquisition I, LLC (incorporated by reference to Exhibit 10.1 of our
Registration Statement on Form S-1 (No. 333-147094)).
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10.2
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Amendment
to Unit Subscription Agreement, dated as of January 23, 2008, between
Trian Acquisition I Corp. and Trian Acquisition I, LLC (incorporated by
reference to Exhibit 4.3 of our Current Report on Form 8-K filed on
January 29, 2008).
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10.3
|
Amended
and Restated Sponsor Warrant Purchase Agreement between Trian Acquisition
I Corp. and Trian Acquisition I, LLC (incorporated by reference to
Exhibit 10.2 of Amendment No. 3 to our Registration Statement on Form
S-1 (No. 333-147094)).
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10.4
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Letter
Agreement, dated as of January 23, 2008, among Trian Acquisition I Corp.,
the Underwriters and Trian Acquisition I, LLC (incorporated by reference
to Exhibit 10.7 of our Current Report on Form 8-K filed on January
29, 2008).
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10.5
|
Letter
Agreement, dated as of January 23, 2008, among Trian Acquisition I Corp.,
the Underwriters and each of the officers and management directors
(incorporated by reference to Exhibit 10.4 of our Current Report on
Form 8-K filed on January 29, 2008).
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10.6
|
Letter
Agreement, dated as of January 23, 2008, among Trian Acquisition I Corp.,
the Underwriters and each of the independent directors (incorporated by
reference to Exhibit 10.5 of our Current Report on Form 8-K filed on
January 29, 2008).
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10.7
|
Letter
Agreement, dated as of January 23, 2008, among Trian Acquisition I Corp.,
the Underwriters and each stockholder (who is not also a director or
officer) (incorporated by reference to Exhibit 10.6 of our Current
Report on Form 8-K filed on January 29, 2008).
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10.8
|
Letter
Agreement, dated as of January 23, 2008, between Trian Acquisition I Corp.
and Trian Acquisition I, LLC providing for administrative services
(incorporated by reference to Exhibit 10.9 of our Current Report on
Form 8-K filed on January 29, 2008).
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|
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10.9
|
Registration
Rights Agreement, dated January 29, 2008, among Trian Acquisition I Corp.,
Trian Acquisition I, LLC, Trian Fund Management, L.P. and certain
stockholders (incorporated by reference to Exhibit 10.2 of our
Current Report on Form 8-K filed on January 29, 2008).
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|
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10.10
|
License
Agreement between Trian Acquisition I Corp., Trian Acquisition I, LLC and
Trian Fund Management, L.P. (incorporated by reference to
Exhibit 10.9 of Amendment No. 2 to our Registration Statement on Form
S-1 (No. 333-147094)).
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|
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10.11
|
Co-Investment
Unit Subscription Agreement, dated January 29, 2008, between Trian
Acquisition I Corp. and Trian Fund Management, L.P. (incorporated by
reference to Exhibit 10.3 of our Current Report on Form 8-K filed on
January 29, 2008).
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10.12
|
Letter
Agreement, dated as of January 23, 2008, among Trian Acquisition I Corp.,
the Underwriters and Trian Fund Management, L.P. (incorporated by
reference to Exhibit 10.8 of our Current Report on Form 8-K filed on
January 29, 2008).
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10.13
|
Amended
and Restated Investment Management Trust Agreement, dated as of October 1,
2008, between Trian Acquisition I Corp. and U.S. Trust Company of
Delaware, as trustee (incorporated by reference to Exhibit 99.1 of
our Current Report on Form 8-K filed on October 1,
2008).
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31.1*
|
Certification
of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
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31.2*
|
Certification
of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
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32.1*
|
Certification
of Chief Executive Officer and Chief Financial Officer pursuant to Section
906 of the Sarbanes-Oxley Act of 2002.
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|
____________
SIGNATURES
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 thereunto
duly authorized.
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Date: November 5, 2009
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|
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|
TRIAN
ACQUISITION I CORP.
(Registrant)
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By: /s/ EDWARD P.
GARDEN
Edward P. Garden
President and Chief Executive Officer
(On behalf of the Company)
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Date: November 5, 2009
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By:
/
s/GREG
ESSNER
Greg
Essner
Treasurer, Chief Financial Officer and
Assistant Secretary
(Principal Accounting Officer)
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EXHIBIT 31.1
CERTIFICATION
I, Edward
P. Garden, certify that:
1. I
have reviewed this quarterly report on Form 10-Q of Trian Acquisition I
Corp.;
2. Based
on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and
for, the periods presented in this report;
4. The
registrant’s other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) and internal control over financial reporting (as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and
have:
a) Designed
such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to us by others within these entities, particularly during the
period in which this report is being prepared;
b) Designed
such internal control over financial reporting, or caused such internal control
over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles;
c) Evaluated
the effectiveness of the registrant’s disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
d) Disclosed
in this report any change in the registrant’s internal control over financial
reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect, the
registrant’s internal control over financial reporting; and
5. The
registrant’s other certifying officer and I have disclosed, based on our most
recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of registrant’s board of directors
(or persons performing the equivalent functions):
a) All
significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to
adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
b) Any
fraud, whether or not material, that involves management or other employees who
have a significant role in the registrant’s internal control over financial
reporting.
|
Date:
November 5, 2009
|
By:
|
/s/EDWARD P.
GARDEN
|
|
|
|
Edward
P. Garden
|
|
|
|
President
and Chief Executive Officer
|
|
|
|
(Principal
Executive Officer)
|
EXHIBIT 31.2
CERTIFICATION
I, Greg
Essner, certify that:
1. I
have reviewed this quarterly report on Form 10-Q of Trian Acquisition I
Corp.;
2. Based
on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and
for, the periods presented in this report;
4. The
registrant’s other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) and internal control over financial reporting (as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and
have:
a) Designed
such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to us by others within these entities, particularly during the
period in which this report is being prepared;
b) Designed
such internal control over financial reporting, or caused such internal control
over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles;
c) Evaluated
the effectiveness of the registrant’s disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
d) Disclosed
in this report any change in the registrant’s internal control over financial
reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect, the
registrant’s internal control over financial reporting; and
5. The
registrant’s other certifying officer and I have disclosed, based on our most
recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of registrant’s board of directors
(or persons performing the equivalent functions):
a) All
significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to
adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
b) Any
fraud, whether or not material, that involves management or other employees who
have a significant role in the registrant’s internal control over financial
reporting.
|
Date:
November 5, 2009
|
By:
|
/s/GREG
ESSNER
|
|
|
|
Greg
Essner
|
|
|
|
Treasurer
and Chief Financial Officer
|
|
|
|
(Principal
Financial Officer)
|
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18
U.S.C. SECTION 1350,
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Quarterly Report of Trian Acquisition I Corp. (the
“Company”) on Form 10-Q for the quarter ended September 30, 2009 (the
“Report”), and pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002, each of the undersigned
officers of the Company does hereby certify, to the best of such officer’s
knowledge, that:
|
|
|
(1)
|
The
Report fully complies with the requirements of Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended;
and
|
|
|
|
(2)
|
The
information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company.
|
|
Date:
November 5, 2009
|
By:
|
/s/EDWARD P.
GARDEN
|
|
|
|
Edward
P. Garden
|
|
|
|
President
and Chief Executive Officer
|
|
Date:
November 5, 2009
|
By:
|
/s/GREG
ESSNER
|
|
|
|
Greg
Essner
|
|
|
|
Treasurer
and Chief Financial Officer
|
A signed original of this written
statement required by Section 906, or other document authenticating,
acknowledging or otherwise adopting the signature that appears in typed form
within the electronic version of this written statement required by Section 906,
has been provided to Trian Acquisition I Corp. and will be retained by
Trian Acquisition I Corp. and furnished to the Securities and Exchange
Commission or its staff upon request.
The
foregoing certification is being furnished solely pursuant to section 906 of the
Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63
of title 18, United States Code) and is not being filed as part of the Quarterly
Report on Form 10-Q or as a separate disclosure document.
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