As filed with the Securities and Exchange Commission on April 23, 2004
Registration No.
--------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ARPEGGIO ACQUISITION CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 6770
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) Number)
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------------
Eric S. Rosenfeld, Chairman, Chief Executive Officer and President
Arpeggio Acquisition Corporation
10 East 53rd Street, 36th Floor
New York, New York 10022
(212) 319-7676
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------
Copies to:
David Alan Miller, Esq. Floyd I. Wittlin, Esq.
Graubard Miller Bingham McCutchen LLP
600 Third Avenue 399 Park Avenue
New York, New York 10016 New York, New York 10022
(212) 818-8800 (212) 705-7000
(212) 818-8881 - Facsimile (212) 752-5378 - Facsimile
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
==========================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of each Class of Amount being Offering Price Per Aggregate Offering Registration
Security being registered Registered Security(1) Price(1) Fee
--------------------------------------------------------------------------------------------------------------------------
Units, each consisting of one
share of Common Stock, $.0001 par 5,750,000 Units $6.00 $34,500,000 $4,371.15
value, and two Warrants (2)
--------------------------------------------------------------------------------------------------------------------------
Shares of Common Stock included as
part of the Units(2) 5,750,000 Shares ------- ------- -------(3)
------------------------------------ ---------------------- -------------------- --------------------- -------------------
Warrants included as part of the
Units(2) 11,500,000 Warrants ------- ------- -------(3)
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Shares of Common Stock underlying
the Warrants included in the 11,500,000 Shares $5.00 $57,500,000 $7,285.25
Units(4)
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Representative's Unit Purchase
Option 1 $100 $100 -------(3)
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Units underlying the
Representative's Unit Purchase
Option ("Underwriter's Units")(4) 250,000 Units $9.90 $2,475,000 $313.59
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Shares of Common Stock included as
part of the Underwriter's Units(4) 250,000 Shares ------- ------- -------(3)
--------------------------------------------------------------------------------------------------------------------------
Warrants included as part of the
Representative's Units(4) 500,000 Warrants ------- ------- -------(3)
--------------------------------------------------------------------------------------------------------------------------
Shares of Common Stock underlying
the Warrants included in the
Representative's Units(4) 500,000 Shares $5.25 $2,625,000 $332.59
--------------------------------------------------------------------------------------------------------------------------
Total $97,100,100 $12,302.59
==========================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Includes 750,000 Units and 750,000 shares of Common Stock and 1,500,000
Warrants underlying such Units which may be issued on exercise of a 45-day
option granted to the Underwriters to cover over-allotments, if any.
(3) No fee pursuant to Rule 457(g).
(4) Pursuant to Rule 416, there are also being registered such indeterminable
additional securities as may be issued as a result of the anti-dilution
provisions contained in the Warrants.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
-i-
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, APRIL 23, 2004
PROSPECTUS
$30,000,000
ARPEGGIO ACQUISITION CORPORATION
5,000,000 UNITS
Arpeggio Acquisition Corporation is a blank check company recently
formed for the purpose of effecting a merger, capital stock exchange, asset
acquisition or other similar business combination with an operating business.
Our efforts in identifying a prospective target business will not be limited to
a particular industry although we intend to focus on target businesses in both
the United States and Canada that may provide significant opportunities for
growth.
This is an initial public offering of our securities. Each unit
consists of:
o one share of our common stock; and
o two warrants.
Each warrant entitles the holder to purchase one share of our common
stock at a price of $5.00. Each warrant will become exercisable on the later of
our completion of a business combination or _______ __, 2005 [ONE YEAR FROM THE
DATE OF THIS PROSPECTUS], and will expire on ________ __, 2008 [FOUR YEARS FROM
THE DATE OF THIS PROSPECTUS], or earlier upon redemption.
We have granted the underwriters a 45-day option to purchase up to
750,000 additional units solely to cover over-allotments, if any (over and above
the 5,000,000 units referred to above). The over-allotment will be used only to
cover the net syndicate short position resulting from the initial distribution.
We have also agreed to sell to the representative of the underwriters, for $100,
an option to purchase up to a total of 250,000 units at a per-unit offering
price of $9.90. The units issuable upon exercise of this option are identical to
those offered by this prospectus except that the warrants included in the option
have an exercise price of $5.25 (105% of the exercise price of the warrants
included in the units sold in the offering). The purchase option and its
underlying securities have been registered under the registration statement of
which this prospectus forms a part.
There is presently no public market for our units, common stock or
warrants. We anticipate that the units will be quoted on the OTC Bulletin Board
under the symbol _______ on or promptly after the date of this prospectus. Once
the securities comprising the units begin separate trading, the common stock and
warrants will be traded on the OTC Bulletin Board under the symbols ______ and
_____, respectively.
INVESTING IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 8 OF THIS PROSPECTUS FOR A DISCUSSION OF INFORMATION
THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN OUR SECURITIES.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
Public Underwriting discount Proceeds, before
offering price and commissions(1) expenses, to us
-------------- ------------------ ---------------
Per unit......................... $6.00 $0.54 $5.46
Total............................ $30,000,000 $2,700,000 $27,300,000
(1) Includes a non-accountable expense allowance in the amount of 3% of the
gross proceeds, or $0.18 per unit ($900,000 in total) payable to
EarlyBirdCapital, Inc.
Of the net proceeds we receive from this offering, $25,500,000 ($5.10
per unit) will be deposited into trust with Continental Stock Transfer & Trust
Company acting as trustee.
We are offering the units for sale on a firm-commitment basis.
EarlyBirdCapital, Inc., acting as representative of the underwriters, expects to
deliver our securities to investors in the offering on or about __________ ____,
2004.
EARLYBIRDCAPITAL, INC.
___________ ____, 2004
TABLE OF CONTENTS
Page
----
Prospectus Summary..........................................................1
Summary Financial Data......................................................7
Risk Factors................................................................8
Use of Proceeds............................................................18
Dilution...................................................................20
Capitalization.............................................................21
Management's Discussion and Analysis
of Financial Condition and Results of Operations...........................22
Proposed Business..........................................................24
Management.................................................................34
Principal Stockholders.....................................................39
Certain Transactions.......................................................41
Description of Securities..................................................42
Underwriting...............................................................47
Legal Matters..............................................................52
Experts....................................................................52
Where You Can Find Additional Information..................................53
Index to Financial Statements.............................................F-1
-------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
DIFFERENT INFORMATION. WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY
JURISDICTION WHERE THE OFFER IS NOT PERMITTED.
-------------------------
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PROSPECTUS SUMMARY
This summary highlights certain information appearing elsewhere in this
prospectus. For a more complete understanding of this offering, you should read
the entire prospectus carefully, including the risk factors and the financial
statements. Unless otherwise stated in this prospectus, references to "we," "us"
or "our company" refer to Arpeggio Acquisition Corporation. Unless we tell you
otherwise, the information in this prospectus assumes that the underwriters will
not exercise their over-allotment option.
We are a blank check company organized under the laws of the State of
Delaware on April 2, 2004. We were formed to effect a merger, capital stock
exchange, asset acquisition or other similar business combination with an
operating business. To date, our efforts have been limited to organizational
activities. As a result of our business objective, we may sometimes be referred
to as a "Specified Purpose Acquisition Company(TM)" or "SPAC(TM)." The terms
"Specified Purpose Acquisition Company" and "SPAC" are service marks of
EarlyBirdCapital, the representative of the underwriters, which have been
historically defined to mean any company formed for the purpose of acquiring or
merging with an operating entity.
Our efforts in identifying a prospective target business will not be
limited to a particular industry. Instead, we intend to focus on various
industries and target businesses in both the United States and Canada that may
provide significant opportunities for growth. We believe that in addition to the
United States, Canada represents both a favorable environment for making
acquisitions and an attractive operating environment for a target business for
several reasons, including a lack of competition for business combinations
compared to the United States, the immaturity of the Canadian private equity
market compared to the United States, attractive valuations for target
businesses and strong economic factors such as low inflation and interest rates.
Additionally, our management team has been active in the Canadian markets and
has extensive experience and contacts in Canada.
While we may seek to effect business combinations with more than one
target business, our initial business combination must be with a target business
whose fair market value is at least equal to 80% of our net assets at the time
of such acquisition. Consequently, it is likely that we will have the ability to
effect only a single business combination.
Our offices are located at 10 East 53rd Street, 36th Floor, New York,
New York 10022 and our telephone number is (212) 319-7676.
1
THE OFFERING
Securities offered:.................................. 5,000,000 units, at $6.00 per unit, each unit consisting of:
o one share of common stock; and
o two warrants.
The units will begin trading on or promptly after the date of this
prospectus. Each of the common stock and warrants may trade
separately on the 90th day after the date of this prospectus unless
EarlyBirdCapital determines that an earlier date is acceptable. In
no event will EarlyBirdCapital allow separate trading of the common
stock and warrants until we file an audited balance sheet
reflecting our receipt of the gross proceeds of this offering. We
will file a Current Report on Form 8-K, including an audited
balance sheet, upon the consummation of this offering, which is
anticipated to take place three business days from the date of this
prospectus. The audited balance sheet will include proceeds we
receive from the exercise of the over-allotment option if the
over-allotment option is exercised prior to the filing of the Form
8-K.
Common stock:
Number outstanding before this offering........... 1,250,000 shares
Number to be outstanding after this offering...... 6,250,000 shares
Warrants:
Number outstanding before this offering........... 0
Number to be outstanding after this offering...... 10,000,000 warrants
Exercisability.................................... Each warrant is exercisable for one share of common stock
Exercise price.................................... $5.00
2
Exercise period................................... The warrants will become exercisable on the later of:
o the completion of a business combination with a target business,
or
o [________], 2005 [ONE YEAR FROM THE DATE OF THIS PROSPECTUS].
The warrants will expire at 5:00 p.m., New York City time, on
[________], 2008 [FOUR YEARS FROM THE DATE OF THIS PROSPECTUS] or
earlier upon redemption.
Redemption........................................ We may redeem the outstanding warrants:
o in whole and not in part,
o at a price of $.01 per warrant at any time after the warrants
become exercisable,
o upon a minimum of 30 days' prior written notice of redemption,
and
o if, and only if, the last sales price of our common stock equals
or exceeds $8.50 per share for any 20 trading days within a 30
trading day period ending three business days before we send
the notice of redemption.
Proposed OTC Bulletin Board symbols for our:.........
Units............................................. [______]
Common stock...................................... [______]
Warrants.......................................... [______]
3
Offering proceeds to be held in trust:............... $25,500,000 of the proceeds of this offering ($5.10 per unit) will
be placed in a trust fund at JPMorgan Chase NY Bank maintained by
Continental Stock Transfer & Trust Company, pursuant to an
agreement to be signed on the date of this prospectus. These
proceeds will not be released until the earlier of the completion
of a business combination or our liquidation. Therefore, unless and
until a business combination is consummated, the proceeds held in
the trust fund will not be available for our use for any expenses
related to this offering or expenses which we may incur related to
the investigation and selection of a target business and the
negotiation of an agreement to acquire a target business. These
expenses may be paid prior to a business combination only from the
net proceeds of this offering not held in the trust fund
(initially, approximately $1,270,000).
None of the warrants may be exercised until after the consummation
of a business combination and, thus, after the proceeds of the
trust fund have been disbursed, the warrant exercise price will be
paid directly to us.
4
Stockholders must approve business combination:...... We will seek stockholder approval before we effect any business
combination, even if the nature of the acquisition would not
ordinarily require stockholder approval under applicable state law.
In connection with the vote required for any business combination,
all of our existing stockholders, including all of our officers and
directors, have agreed to vote the shares of common stock owned by
them immediately before this offering in accordance with the
majority of the shares of common stock voted by the public
stockholders. We will proceed with a business combination only if a
majority of the shares of common stock voted by the public
stockholders are voted in favor of the business combination and
public stockholders owning less than 20% of the shares sold in this
offering exercise their conversion rights described below.
Conversion rights for stockholders voting to reject a
business combination:................................ Public stockholders voting against a business combination will be
entitled to convert their stock into a pro rata share of the trust
fund, including any interest earned on their portion of the trust
fund, if the business combination is approved and completed.
Liquidation if no business combination:.............. We will dissolve and promptly distribute only to our public
stockholders the amount in our trust fund plus any remaining net
assets if we do not effect a business combination within 18 months
after consummation of this offering (or within 24 months from the
consummation of this offering if a letter of intent, agreement in
principle or definitive agreement has been executed within 18
months after consummation of this offering and the business
combination has not yet been consummated within such 18 month
period).
5
Escrow of management shares:......................... On the date of this prospectus, all of our existing stockholders,
including all of our officers and directors, will place the shares
they owned before this offering into an escrow account maintained
by Continental Stock Transfer & Trust Company, acting as escrow
agent. Subject to certain limited exceptions, these shares will not
be transferable during the escrow period and will not be released
from escrow until [________], 2007 [THREE YEARS FROM THE DATE OF
THIS PROSPECTUS].
RISKS
In making your decision on whether to invest in our securities, you should take into account not only the backgrounds of
our management team, but also the special risks we face as a blank check company, as well as the fact that this offering is not
being conducted in compliance with Rule 419 promulgated under the Securities Act of 1933, as amended, and, therefore, you will not
be entitled to protections normally afforded to investors in Rule 419 blank check offerings. You should also note that our
financial statements contain a statement indicating that our ability to continue as a going concern is dependent on us raising
funds in this offering. You should carefully consider these and the other risks set forth in the section entitled "Risk Factors"
beginning on page 8 of this prospectus.
6
SUMMARY FINANCIAL DATA
The following table summarizes the relevant financial data for our
business and should be read with our financial statements, which are included in
this prospectus. We have not had any significant operations to date, so only
balance sheet data is presented.
APRIL 21, 2004
--------------
ACTUAL AS ADJUSTED
------ -----------
BALANCE SHEET DATA:
Working capital/(deficiency) .................. $(69,848) $26,795,000
Total assets .................................. 95,000 26,795,000
Total liabilities ............................. 70,000 --
Value of common stock which may be
converted to cash ($5.10 per share) ....... -- 5,097,450
Stockholders' equity .......................... 25,000 21,697,550
The "as adjusted" information gives effect to the sale of the units we
are offering and the application of the estimated net proceeds from their sale.
The working capital and total assets amounts include the $25,500,000
being held in the trust fund, which will be available to us only upon the
consummation of a business combination within the time period described in this
prospectus. If a business combination is not so consummated, we will be
dissolved and the proceeds held in the trust fund will be distributed solely to
our public stockholders.
We will not proceed with a business combination if public stockholders
owning 20% or more of the shares sold in this offering vote against the business
combination and exercise their conversion rights. Accordingly, we may effect a
business combination if public stockholders owning up to approximately 19.99% of
the shares sold in this offering exercise their conversion rights. If this
occurred, we would be required to convert to cash up to approximately 19.99% of
the 5,000,000 shares sold in this offering, or 999,500 shares of common stock,
at an initial per-share conversion price of $5.10, without taking into account
interest earned on the trust fund. The actual per-share conversion price will be
equal to:
o the amount in the trust fund as of the record date for the
determination of stockholders entitled to vote on the business
combination plus any interest accrued through the record date,
o divided by the number of shares of common stock sold in the
offering.
7
RISK FACTORS
An investment in our securities involves a high degree of risk. You
should consider carefully all of the material risks described below, together
with the other information contained in this prospectus before making a decision
to invest in our units.
RISKS ASSOCIATED WITH OUR BUSINESS
WE ARE A DEVELOPMENT STAGE COMPANY WITH NO OPERATING HISTORY AND VERY LIMITED
RESOURCES AND OUR FINANCIAL STATEMENTS CONTAIN A STATEMENT INDICATING THAT OUR
ABILITY TO CONTINUE AS A GOING CONCERN IS DEPENDENT ON US RAISING FUNDS IN THIS
OFFERING.
We are a recently incorporated development stage company with no
operating results to date. Since we do not have an operating history, you will
have no basis upon which to evaluate our ability to achieve our business
objective, which is to acquire an operating business. We have not conducted any
discussions and we have no plans, arrangements or understandings with any
prospective acquisition candidates. We will not generate any revenues (other
than interest income on the proceeds of this offering) until, at the earliest,
after the consummation of a business combination. We currently have a working
capital deficit whereby our current liabilities exceed our current assets
(cash). The report of our independent certified public accountants on our
financial statements includes an explanatory paragraph, stating that our ability
to continue as a going concern, is dependent on the consummation of this
offering. The financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
IF WE ARE FORCED TO LIQUIDATE BEFORE A BUSINESS COMBINATION, OUR PUBLIC
STOCKHOLDERS WILL RECEIVE LESS THAN $6.00 PER SHARE UPON DISTRIBUTION OF THE
TRUST FUND AND OUR WARRANTS WILL EXPIRE WORTHLESS.
If we are unable to complete a business combination and are forced to
liquidate our assets, the per-share liquidation distribution will be less than
$6.00 because of the expenses of this offering, our general and administrative
expenses and the anticipated costs of seeking a business combination.
Furthermore, there will be no distribution with respect to our outstanding
warrants and, accordingly, the warrants will expire worthless if we liquidate
before the completion of a business combination. For a more complete discussion
of the effects on our stockholders if we are unable to complete a business
combination, see the section below entitled "Effecting a business combination -
Liquidation if no business combination."
YOU WILL NOT BE ENTITLED TO PROTECTIONS NORMALLY AFFORDED TO INVESTORS OF BLANK
CHECK COMPANIES.
Since the net proceeds of this offering are intended to be used to
complete a business combination with a target business that has not been
identified, we may be deemed to be a "blank check" company under the United
States securities laws. However, since we will have net tangible assets in
excess of $5,000,000 upon the successful consummation of this offering and our
units are being offered at an initial price of $6.00 per unit, we are exempt
from rules
8
promulgated by the SEC to protect investors of blank check companies such as
Rule 419. Accordingly, investors will not be afforded the benefits or
protections of those rules. Because we are not subject to Rule 419, our units
will be immediately tradable and we have a longer period of time to complete a
business combination in certain circumstances. For a more detailed comparison of
our offering to offerings under Rule 419, see the section entitled "Comparison
to offerings of blank check companies" below.
IF THIRD PARTIES BRING CLAIMS AGAINST US, THE PROCEEDS HELD IN TRUST COULD BE
REDUCED AND THE PER-SHARE LIQUIDATION PRICE RECEIVED BY STOCKHOLDERS WILL BE
LESS THAN $5.10 PER SHARE.
Our placing of funds in trust may not protect those funds from third
party claims against us. The proceeds held in trust could be subject to claims
which could take priority over the claims of our public stockholders. We cannot
assure you that the per-share liquidation price will not be less than $5.10,
plus interest, due to claims of creditors. If we liquidate before the completion
of a business combination, Eric S. Rosenfeld, our chairman of the board, chief
executive officer and president, will be personally liable under certain
circumstances to ensure that the proceeds in the trust fund are not reduced by
the claims of various vendors or other entities that are owed money by us for
services rendered or products sold to us. However, we cannot assure you that Mr.
Rosenfeld will be able to satisfy those obligations.
SINCE WE HAVE NOT CURRENTLY SELECTED A PARTICULAR INDUSTRY OR TARGET BUSINESS
WITH WHICH TO COMPLETE A BUSINESS COMBINATION, WE ARE UNABLE TO CURRENTLY
ASCERTAIN THE MERITS OR RISKS OF THE INDUSTRY OR BUSINESS IN WHICH WE MAY
ULTIMATELY OPERATE.
We may consummate a business combination with a company in any industry
we choose and are not limited to any particular industry or type of business.
Accordingly, there is no current basis for prospective investors to evaluate the
possible merits or risks of the particular industry in which we may ultimately
operate or the target business which we may ultimately acquire. To the extent we
complete a business combination with a financially unstable company or an entity
in its development stage, we may be affected by numerous risks inherent in the
business operations of those entities. If we complete a business combination
with an entity in an industry characterized by a high level of risk, we may be
affected by the currently unascertainable risks of that industry. Although our
management will endeavor to evaluate the risks inherent in a particular industry
or target business, we cannot assure you that we will properly ascertain or
assess all of the significant risk factors. We also cannot assure you that an
investment in our units will not ultimately prove to be less favorable to
investors in this offering than a direct investment, if an opportunity were
available, in a target business. For a more complete discussion of our selection
of a target business, see the section below entitled "Effecting a business
combination - We have not identified a target business or target industry."
WE MAY ISSUE SHARES OF OUR CAPITAL STOCK OR DEBT SECURITIES TO COMPLETE A
BUSINESS COMBINATION, WHICH WOULD REDUCE THE EQUITY INTEREST OF OUR STOCKHOLDERS
AND LIKELY CAUSE A CHANGE IN CONTROL OF OUR OWNERSHIP.
Our certificate of incorporation authorizes the issuance of up to
30,000,000 shares of common stock, par value $.0001 per share, and 1,000,000
shares of preferred stock, par value $.0001 per share. Immediately after this
offering (assuming no exercise of the underwriters'
9
over-allotment option), there will be 13,000,000 authorized but unissued shares
of our common stock available for issuance (after appropriate reservation for
the issuance of shares upon full exercise of our outstanding warrants and the
purchase option granted to EarlyBirdCapital, the representative of the
underwriters) and all of the 1,000,000 shares of preferred stock available for
issuance. Although we have no commitments as of the date of this offering to
issue our securities, we will, in all likelihood, issue a substantial number of
additional shares of our common stock or preferred stock, or a combination of
common and preferred stock, to complete a business combination. The issuance of
additional shares of our common stock or any number of shares of our preferred
stock:
o may significantly reduce the equity interest of investors in this
offering;
o will likely 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 most likely also result in the resignation
or removal of our present officers and directors; and
o may adversely affect prevailing market prices for our common
stock.
Similarly, if we issued debt securities, it could result in:
o default and foreclosure on our assets if our operating revenues
after a business combination were insufficient to pay our debt
obligations;
o acceleration of our obligations to repay the indebtedness even if
we have made all principal and interest payments when due if the
debt security contained covenants that required the maintenance of
certain financial ratios or reserves and any such covenant were
breached without a waiver or renegotiation of that covenant;
o our immediate payment of all principal and accrued interest, if
any, if the debt security was payable on demand; and
o our inability to obtain additional financing, if necessary, if the
debt security contained covenants restricting our ability to
obtain additional financing while such security was outstanding.
For a more complete discussion of the possible structure of a business
combination, see the section below entitled "Effecting a business combination -
Selection of a target business and structuring of a business combination."
IT IS LIKELY THAT OUR CURRENT OFFICERS AND DIRECTORS WILL RESIGN UPON
CONSUMMATION OF A BUSINESS COMBINATION AND WE WILL HAVE ONLY LIMITED ABILITY TO
EVALUATE THE MANAGEMENT OF THE TARGET BUSINESS.
Our ability to successfully effect a business combination will be
totally dependent upon the efforts of our key personnel. The future role of our
key personnel in the target business, however, cannot presently be ascertained.
Although it is possible that some of our key personnel
10
will remain associated in various capacities with the target business following
a business combination, it is likely that the management of the target business
at the time of the business combination will remain in place. Although we intend
to closely scrutinize the management of a prospective target business in
connection with evaluating the desirability of effecting a business combination,
we cannot assure you that our assessment of management will prove to be correct.
OUR OFFICERS AND DIRECTORS MAY ALLOCATE THEIR TIME TO OTHER BUSINESSES WHICH
COULD CAUSE A CONFLICT OF INTEREST AS TO WHICH BUSINESS THEY PRESENT A VIABLE
ACQUISITION OPPORTUNITY TO.
Our officers and directors are not required to commit their full time
to our affairs, which may result in a conflict of interest in allocating their
time between our operations and other businesses. Some of these persons may in
the future become affiliated with entities, including other "blank check"
companies, engaged in business activities similar to those intended to be
conducted by us. Our officers and directors may become aware of business
opportunities which may be appropriate for presentation to us as well as the
other entities with which they are or may be affiliated. Accordingly, they may
have conflicts of interest in determining to which entity a particular business
opportunity should be presented. For a complete discussion of the potential
conflicts of interest that you should be aware of, see the section below
entitled "Management - Conflicts of Interest." We cannot assure you that these
conflicts will be resolved in our favor.
ALL OF OUR OFFICERS AND DIRECTORS OWN SHARES OF OUR SECURITIES WHICH WILL NOT
PARTICIPATE IN LIQUIDATION DISTRIBUTIONS AND THEREFORE THEY MAY HAVE A CONFLICT
OF INTEREST IN DETERMINING WHETHER A PARTICULAR TARGET BUSINESS IS APPROPRIATE
FOR A BUSINESS COMBINATION.
All of our officers and directors own stock in our company, but have
waived their right to receive distributions upon liquidation. Additionally, Eric
S. Rosenfeld has agreed with the representative of the underwriters that he and
certain of his affiliates or designees will purchase warrants in the open market
following this offering. The shares and warrants owned by our directors and
officers will be worthless if we do not consummate a business combination. The
personal and financial interests of our directors and officers may influence
their motivation in identifying and selecting a target business and completing a
business combination timely. Consequently, our directors' and officers'
discretion in identifying and selecting a suitable target business may result in
a conflict of interest when determining whether the terms, conditions and timing
of a particular business combination are appropriate and in our stockholders'
best interest.
IF OUR COMMON STOCK BECOMES SUBJECT TO THE SEC'S PENNY STOCK RULES,
BROKER-DEALERS MAY EXPERIENCE DIFFICULTY IN COMPLETING CUSTOMER TRANSACTIONS AND
TRADING ACTIVITY IN OUR SECURITIES MAY BE ADVERSELY AFFECTED.
If at any time we have net tangible assets of $5,000,000 or less and
our common stock has a market price per share of less than $5.00, transactions
in our common stock may be subject to the "penny stock" rules promulgated under
the Securities Exchange Act of 1934. Under these rules, broker-dealers who
recommend such securities to persons other than institutional accredited
investors must:
o make a special written suitability determination for the
purchaser;
11
o receive the purchaser's written agreement to a transaction prior
to sale;
o provide the purchaser with risk disclosure documents which
identify certain risks associated with investing in "penny stocks"
and which describe the market for these "penny stocks" as well as
a purchaser's legal remedies; and
o obtain a signed and dated acknowledgment from the purchaser
demonstrating that the purchaser has actually received the
required risk disclosure document before a transaction in a "penny
stock" can be completed.
If our common stock becomes subject to these rules, broker-dealers may
find it difficult to effectuate customer transactions and trading activity in
our securities may be adversely affected. As a result, the market price of our
securities may be depressed, and you may find it more difficult to sell our
securities.
IT IS PROBABLE THAT WE WILL ONLY BE ABLE TO COMPLETE ONE BUSINESS COMBINATION,
WHICH WILL CAUSE US TO BE SOLELY DEPENDENT ON A SINGLE BUSINESS AND A LIMITED
NUMBER OF PRODUCTS OR SERVICES.
The net proceeds from this offering will provide us with only
approximately $26,770,000 which we may use to complete a business combination.
Our initial business combination must be with a business with a fair market
value of at least 80% of our net assets at the time of such acquisition.
Consequently, it is probable that we will have the ability to complete only a
single business combination. Accordingly, the prospects for our success may be:
o solely dependent upon the performance of a single business, or
o dependent upon the development or market acceptance of a single
or limited number of products, processes or services.
In this case, we will not be able to diversify our operations or benefit from
the possible spreading of risks or offsetting of losses, unlike other entities
which may have the resources to complete several business combinations in
different industries or different areas of a single industry.
BECAUSE OF OUR LIMITED RESOURCES AND THE SIGNIFICANT COMPETITION FOR BUSINESS
COMBINATION OPPORTUNITIES, WE MAY NOT BE ABLE TO CONSUMMATE AN ATTRACTIVE
BUSINESS COMBINATION.
We expect to encounter intense competition from other entities having a
business objective similar to ours, including venture capital funds, leveraged
buyout funds and operating businesses competing for acquisitions. Many of these
entities are well established and have extensive experience in identifying and
effecting business combinations directly or through affiliates. Many of these
competitors possess greater technical, human and other resources than we do and
our financial resources will be relatively limited when contrasted with those of
many of these competitors. While we believe that there are numerous potential
target businesses that we could acquire with the net proceeds of this offering,
our ability to compete in acquiring certain sizable target businesses will be
limited by our available financial resources. This inherent competitive
limitation gives others an advantage in pursuing the acquisition of certain
target businesses. Further, the obligation we have to seek stockholder approval
of a business
12
combination may delay the consummation of a transaction, and our obligation to
convert into cash the shares of common stock held by public stockholders in
certain instances may reduce the resources available for a business combination.
Additionally, our outstanding warrants, and the future dilution they potentially
represent, may not be viewed favorably by certain target businesses. Any of
these obligations may place us at a competitive disadvantage in successfully
negotiating a business combination.
WE MAY BE UNABLE TO OBTAIN ADDITIONAL FINANCING, IF REQUIRED, TO COMPLETE A
BUSINESS COMBINATION OR TO FUND THE OPERATIONS AND GROWTH OF THE TARGET
BUSINESS, WHICH COULD COMPEL US TO RESTRUCTURE THE TRANSACTION OR ABANDON A
PARTICULAR BUSINESS COMBINATION.
Although we believe that the net proceeds of this offering will be
sufficient to allow us to consummate a business combination, in as much as we
have not yet identified any prospective target business, we cannot ascertain the
capital requirements for any particular transaction. If the net proceeds of this
offering prove to be insufficient, either because of the size of the business
combination or the depletion of the available net proceeds in search of a target
business, or because we become obligated to convert into cash a significant
number of shares from dissenting stockholders, we will be required to seek
additional financing. We cannot assure you that such financing would be
available on acceptable terms, if at all. To the extent that additional
financing proves to be unavailable when needed to consummate a particular
business combination, we would be compelled to restructure the transaction or
abandon that particular business combination and seek an alternative target
business candidate. In addition, if we consummate a business combination, we may
require additional financing to fund the operations or growth of the target
business. The failure to secure additional financing could have a material
adverse effect on the continued development or growth of the target business.
None of our officers, directors or stockholders is required to provide any
financing to us in connection with or after a business combination.
OUR EXISTING STOCKHOLDERS, INCLUDING OUR OFFICERS AND DIRECTORS, CONTROL A
SUBSTANTIAL INTEREST IN US AND THUS MAY INFLUENCE CERTAIN ACTIONS REQUIRING
STOCKHOLDER VOTE.
Upon consummation of our offering, our existing stockholders (including
all of our officers and directors) will collectively own 20% of our issued and
outstanding shares of common stock (assuming they do not purchase units in this
offering). Our board of directors is divided into three classes, each of which
will generally serve for a term of two years with only one class of directors
being elected in each year. It is unlikely that there will be an annual meeting
of stockholders to elect new directors prior to the consummation of a business
combination, in which case all of the current directors will continue in office
at least until the consummation of the business combination. If there is an
annual meeting, as a consequence of our "staggered" board of directors, only a
minority of the board of directors will be considered for election and our
existing stockholders, because of their ownership position, will have
considerable influence regarding the outcome. Accordingly, our existing
stockholders will continue to exert control at least until the consummation of a
business combination. In addition, our existing stockholders and their
affiliates and relatives are not prohibited from purchasing units in this
offering or shares in the aftermarket. If they do, we cannot assure you that our
existing stockholders will not have considerable influence upon the vote in
connection with a business combination.
13
OUR EXISTING STOCKHOLDERS PAID AN AGGREGATE OF $25,000, OR $0.02 PER SHARE, FOR
THEIR SHARES AND, ACCORDINGLY, YOU WILL EXPERIENCE IMMEDIATE AND SUBSTANTIAL
DILUTION FROM THE PURCHASE OF OUR COMMON STOCK.
The difference between the public offering price per share of our
common stock and the pro forma net tangible book value per share of our common
stock after this offering constitutes the dilution to you and the other
investors in this offering. The fact that our existing stockholders acquired
their shares of common stock at a nominal price has significantly contributed to
this dilution. Assuming the offering is completed, you and the other new
investors will incur an immediate and substantial dilution of approximately 31%
or $1.87 per share (the difference between the pro forma net tangible book value
per share of $4.13, and the initial offering price of $6.00 per unit).
OUR OUTSTANDING WARRANTS MAY HAVE AN ADVERSE EFFECT ON THE MARKET PRICE OF
COMMON STOCK AND MAKE IT MORE DIFFICULT TO EFFECT A BUSINESS COMBINATION.
In connection with this offering, as part of the units, we will be
issuing warrants to purchase 10,000,000 shares of common stock. We will also
issue an option to purchase 250,000 units to the representative of the
underwriters which, if exercised, will result in the issuance of an additional
500,000 warrants. To the extent we issue shares of common stock to effect a
business combination, the potential for the issuance of substantial numbers of
additional shares upon exercise of these warrants and options could make us a
less attractive acquisition vehicle in the eyes of a target business as such
securities, when exercised, will increase the number of issued and outstanding
shares of our common stock and reduce the value of the shares issued to complete
the business combination. Accordingly, our warrants and options may make it more
difficult to effectuate a business combination or increase the cost of the
target business. Additionally, the sale, or even the possibility of sale, of the
shares underlying the warrants and options could have an adverse effect on the
market price for our securities or on our ability to obtain future public
financing. If and to the extent these warrants and options are exercised, you
may experience dilution to your holdings.
IF OUR EXISTING STOCKHOLDERS EXERCISE THEIR REGISTRATION RIGHTS, IT MAY HAVE AN
ADVERSE EFFECT ON THE MARKET PRICE OUR COMMON STOCK AND THE EXISTENCE OF THESE
RIGHTS MAY MAKE IT MORE DIFFICULT TO EFFECT A BUSINESS COMBINATION.
Our existing stockholders are entitled to demand that we register the
resale of their shares of common stock at any time after the date on which their
shares are released from escrow. If our existing stockholders exercise their
registration rights with respect to all of their shares of common stock, then
there will be an additional 1,250,000 shares of common stock eligible for
trading in the public market. The presence of this additional number of shares
of common stock eligible for trading in the public market may have an adverse
effect on the market price of our common stock. In addition, the existence of
these rights may make it more difficult to effectuate a business combination or
increase the cost of the target business, as the stockholders of the target
business may be discouraged from entering into a business combination with us or
will request a higher price for their securities as a result of these
registration rights and the potential future effect their exercise may have on
the trading market for our common stock.
14
IF YOU ARE NOT AN INSTITUTIONAL INVESTOR, YOU MAY PURCHASE OUR SECURITIES IN
THIS OFFERING ONLY IF YOU RESIDE WITHIN CERTAIN STATES AND MAY ENGAGE IN RESALE
TRANSACTIONS ONLY IN THOSE STATES AND A LIMITED NUMBER OF OTHER JURISDICTIONS.
We have applied to register our securities, or have obtained or will
seek to obtain an exemption from registration, in Delaware, the District of
Columbia, Florida, Hawaii, Illinois, Maryland, New York and Rhode Island. We
also intend to obtain an exemption from registration in certain Canadian
provinces. If you are not an "institutional investor," you must be a resident of
these jurisdictions to purchase our securities in the offering. The definition
of an "institutional investor" varies from state to state but generally includes
financial institutions, broker-dealers, banks, insurance companies and other
qualified entities. In order to prevent resale transactions in violation of
states' securities laws, you may engage in resale transactions only in these
states and in a limited number of other jurisdictions in which an applicable
exemption is available or a Blue Sky application has been filed and accepted.
This restriction on resale may limit your ability to resell the securities
purchased in this offering and may impact the price of our securities. For a
more complete discussion of the Blue Sky state securities laws and registrations
affecting this offering, please see the section entitled "State Blue Sky
Information" below.
WE INTEND TO HAVE OUR SECURITIES QUOTED ON THE OTC BULLETIN BOARD, WHICH WILL
LIMIT THE LIQUIDITY AND PRICE OF OUR SECURITIES MORE THAN IF OUR SECURITIES WERE
QUOTED OR LISTED ON THE NASDAQ STOCK MARKET OR A NATIONAL EXCHANGE.
Our securities will be traded in the over-the-counter market. It is
anticipated that they will be quoted on the OTC Bulletin Board, an
NASD-sponsored and operated inter-dealer automated quotation system for equity
securities not included in the Nasdaq Stock Market. Quotation of our securities
on the OTC Bulletin Board will limit the liquidity and price of our securities
more than if our securities were quoted or listed on The Nasdaq Stock Market or
a national exchange.
THE REPRESENTATIVE OF THE UNDERWRITERS IN THE OFFERING WILL NOT MAKE A MARKET
FOR OUR SECURITIES WHICH COULD ADVERSELY AFFECT THE LIQUIDITY AND PRICE OF OUR
SECURITIES.
EarlyBirdCapital, the representative of the underwriters in this
offering, does not make markets in securities and will not be making a market in
our securities. However, we believe certain broker-dealers other than
EarlyBirdCapital will be making a market in our securities. EarlyBirdCapital not
acting as a market maker for our securities may adversely impact the liquidity
of our securities.
IF WE ARE DEEMED TO BE AN INVESTMENT COMPANY, WE MAY BE REQUIRED TO INSTITUTE
BURDENSOME COMPLIANCE REQUIREMENTS AND OUR ACTIVITIES MAY BE RESTRICTED, WHICH
MAY MAKE IT DIFFICULT FOR US TO COMPLETE A BUSINESS COMBINATION.
If we are deemed to be an investment company under the Investment
Company Act of 1940, our activities may be restricted, including:
o restrictions on the nature of our investments; and
15
o restrictions on the issuance of securities,
which may make it difficult for us to complete a business combination.
In addition, we may have imposed upon us burdensome requirements,
including:
o registration as an investment company;
o adoption of a specific form of corporate structure; and
o reporting, record keeping, voting, proxy and disclosure
requirements and other rules and regulations.
We do not believe that our anticipated principal activities will subject us to
the Investment Company Act of 1940. To this end, the proceeds held in trust may
only be invested by the trust agent in "government securities" with specific
maturity dates. By restricting the investment of the proceeds to these
instruments, we intend to meet the requirements for the exemption provided in
Rule 3a-1 promulgated under the Investment Company Act of 1940. If we were
deemed to be subject to the act, compliance with these additional regulatory
burdens would require additional expense that we have not allotted for.
BECAUSE WE MAY BE DEEMED TO HAVE NO "INDEPENDENT" DIRECTORS, ACTIONS TAKEN AND
EXPENSES INCURRED BY OUR OFFICERS AND DIRECTORS ON OUR BEHALF WILL GENERALLY NOT
BE SUBJECT TO "INDEPENDENT" REVIEW.
Each of our directors own shares of our securities and, although no
compensation will be paid to them for services rendered prior to or in
connection with a business combination, they may receive reimbursement for
out-of-pocket expenses incurred by them in connection with activities on our
behalf such as identifying potential target businesses and performing due
diligence on suitable business combinations. There is no limit on the amount of
these out-of-pocket expenses and there will be no review of the reasonableness
of the expenses by anyone other than our board of directors, which includes
persons who may seek reimbursement, or a court of competent jurisdiction if such
reimbursement is challenged. Because none of our directors will be deemed
"independent," we will generally not have the benefit of independent directors
examining the propriety of expenses incurred on our behalf and subject to
reimbursement. Although we believe that all actions taken by our directors on
our behalf will be in our best interests, we cannot assure you that this will
actually be the case. If actions are taken, or expenses are incurred that are
actually not in our best interests, it could have a material adverse effect on
our business and operations.
SINCE WE MAY ACQUIRE A COMPANY LOCATED IN CANADA, WE MAY BE SUBJECT TO VARIOUS
RISKS OF HAVING OPERATIONS OUTSIDE THE UNITED STATES.
As with all companies that have sales and operations outside the United
States, we are exposed to risks that could negatively impact our future sales or
profitability following a business combination, including but not limited to:
16
o tariffs and trade barriers;
o regulations related to customs and import/export matters;
o longer payment cycles;
o tax issues, such as tax law changes and variations in tax laws as
compared to the United States;
o currency fluctuations;
o challenges in collecting accounts receivable;
o cultural and language differences; and
o employment regulations.
17
USE OF PROCEEDS
We estimate that the net proceeds of this offering will be as set forth
in the following table:
Without Over- Over-Allotment
Allotment Option Option Exercised
---------------- ----------------
Gross proceeds ................................................................. $30,000,000.00 $34,500,000.00
--------------
Offering expenses
-----------------
Underwriting discount (6% of gross proceeds) ............................... 1,800,000.00 2,070,000.00
Underwriting non-accountable expense allowance
(3% of gross proceeds) ................................................ 900,000.00 1,035,000.00
Legal fees and expenses (including blue sky services
and expenses) ......................................................... 350,000.00 350,000.00
Miscellaneous expenses ...................................................... 97,487.40 97,487.40
Printing and engraving expenses ............................................. 35,000.00 35,000.00
Accounting fees and expenses ................................................ 25,000.00 25,000.00
SEC registration fee ........................................................ 12,302.59 13,094.45
NASD registration fee ....................................................... 10,210.01 10,835.01
Net proceeds
------------
Held in trust ............................................................... 25,500,000.00 29,595,000.00
Not held in trust ........................................................... 1,270,000.00 1,270,000.00
-------------- --------------
Total net proceeds .................................................... $26,770,000.00 $30,865,000.00
============== ==============
Use of net proceeds not held in trust
-------------------------------------
Legal, accounting and other expenses attendant to
the due diligence investigations, structuring and
negotiation of a business combination ..................................... $180,000 (14.2%)
Payment of administrative fee to Crescendo Advisors II LLC ($7,500 per month for
two years) ..................................................................... 180,000 (14.2%)
Due diligence of prospective target businesses ................................. 150,000 (11.8%)
Legal and accounting fees relating to SEC reporting
obligations ............................................................... 40,000 (3.1%)
Working capital to cover miscellaneous expenses,
D&O insurance and reserves ................................................ 720,000 (56.7%)
-------------- --------------
Total ................................................................. $1,270,000 (100.0%)
============== ==============
$25,500,000, or $29,595,000 if the underwriters' over-allotment option
is exercised in full, of net proceeds will be placed in a trust fund maintained
by Continental Stock Transfer & Trust Company, New York, New York, as trustee.
The proceeds will not be released from the trust fund until the earlier of the
completion of a business combination or our liquidation. The proceeds held in
the trust fund may be used as consideration to pay the sellers of a target
18
business with which we ultimately complete a business combination. Any amounts
not paid as consideration to the sellers of the target business may be used to
finance operations of the target business or to effect other acquisitions, as
determined by our board of directors at that time.
The payment to Crescendo Advisors II LLC, an affiliate of Eric S.
Rosenfeld, our chairman, chief executive officer and president, of a monthly fee
of $7,500 is for general and administrative services including office space,
utilities and secretarial support. We believe, based on rents and fees for
similar services in the New York, New York metropolitan area, that the fee
charged by Crescendo Advisors II LLC is at least as favorable as we could have
obtained from an unaffiliated person.
We intend to use the excess working capital (approximately $720,000)
for director and officer liability insurance premiums (approximately $115,000),
with the balance of $605,000 being held in reserve in the event due diligence,
legal, accounting and other expenses of structuring and negotiating business
combinations exceed our estimates, as well as for reimbursement of any
out-of-pocket expenses incurred by our existing stockholders in connection with
activities on our behalf as described below. We believe that the excess working
capital will be sufficient to cover the foregoing expenses and reimbursement
costs.
To the extent that our capital stock is used in whole or in part as
consideration to effect a business combination, the proceeds held in the trust
fund as well as any other net proceeds not expended will be used to finance the
operations of the target business.
Eric S. Rosenfeld, our chairman, chief executive officer and president,
has advanced to us a total of $70,000 which was used to pay a portion of the
expenses of this offering referenced in the line items above for SEC
registration fee, NASD registration fee and legal fees and expenses. The loan
will be payable without interest on the earlier of April 14, 2005 or the
consummation of this offering. The loan will be repaid out of the gross proceeds
of this offering.
The net proceeds of this offering not held in the trust fund and not
immediately required for the purposes set forth above will only be invested in
United States "government securities," defined as any Treasury Bill issued by
the United States having a maturity of one hundred and eighty days or less so
that we are not deemed to be an investment company under the Investment Company
Act. The interest income derived from investment of these net proceeds during
this period will be used to defray our general and administrative expenses, as
well as costs relating to compliance with securities laws and regulations,
including associated professional fees, until a business combination is
completed.
We believe that, upon consummation of this offering, we will have
sufficient available funds to operate for at least the next 24 months, assuming
that a business combination is not consummated during that time.
Commencing on the effective date of this prospectus through the
consummation of the acquisition of the target business, we will pay Crescendo
Advisors II LLC the fee described above. Other than this $7,500 per month
administrative fee, no compensation of any kind (including finder's and
consulting fees) will be paid to any of our existing stockholders, or any of
their affiliates, for services rendered to us prior to or in connection with the
consummation of the
19
business combination. However, our existing stockholders will receive
reimbursement for any out-of-pocket expenses incurred by them in connection with
activities on our behalf, such as identifying potential target businesses and
performing due diligence on suitable business combinations. Since the role of
present management after a business combination is uncertain, we have no ability
to determine what remuneration, if any, will be paid to those persons after a
business combination.
A public stockholder will be entitled to receive funds from the trust
fund (including interest earned on his, her or its portion of the trust fund)
only in the event of our liquidation or if that public stockholder were to seek
to convert such shares into cash in connection with a business combination which
the public stockholder voted against and which we actually consummate. In no
other circumstances will a public stockholder have any right or interest of any
kind to or in the trust fund.
DILUTION
The difference between the public offering price per share of common
stock, assuming no value is attributed to the warrants included in the units,
and the pro forma net tangible book value per share of our common stock after
this offering constitutes the dilution to investors in this offering. Net
tangible book value per share is determined by dividing our net tangible book
value, which is our total tangible assets less total liabilities (including the
value of common stock which may be converted into cash), by the number of
outstanding shares of our common stock.
At April 21, 2004, our net tangible book value was $(69,848), or
approximately $(0.06) per share of common stock. After giving effect to the sale
of 5,000,000 shares of common stock included in the units, and the deduction of
underwriting discounts and estimated expenses of this offering, our pro forma
net tangible book value (as decreased by the value of 999,500 shares of common
stock which may be converted into cash) at April 21, 2004 would have been
$21,697,550 or $4.13 per share, representing an immediate increase in net
tangible book value of $4.19 per share to the existing stockholders and an
immediate dilution of $1.87 per share or 31% to new investors not exercising
their conversion rights.
The following table illustrates the dilution to the new investors on a
per-share basis, assuming no value is attributed to the warrants included in the
units:
Public offering price...................................... $6.00
Net tangible book value before this offering.......... (0.06)
Increase attributable to new investors................ 4.19
----
Pro forma net tangible book value after this offering...... $4.13
-----
Dilution to new investors.................................. $1.87
=====
Our pro forma net tangible book value after this offering has been
reduced by approximately $5,097,450 because if we effect a business combination,
the conversion rights to the public stockholders may result in the conversion
into cash of up to approximately 19.99% of the aggregate number of the shares
sold in this offering at a per-share conversion price equal to the amount in the
trust fund as of the record date for the determination of stockholders entitled
to
20
vote on the business combination, inclusive of any interest, divided by the
number of shares sold in this offering.
The following table sets forth information with respect to our existing
stockholders and the new investors:
SHARES PURCHASED TOTAL CONSIDERATION PRICE
---------------- ------------------- PRICE
NUMBER PERCENTAGE AMOUNT PERCENTAGE PER SHARE
------ ---------- ------ ---------- ---------
Existing stockholders............ 1,250,000 20.0% $ 25,000 0.1% $0.02
New investors.................... 5,000,000 80.0% $30,000,000 99.9% $6.00
--------- ----- ----------- -----
6,250,000 100.0% $30,025,000 100.0%
========= ====== =========== ======
CAPITALIZATION
The following table sets forth our capitalization at April 21, 2004 and
as adjusted to give effect to the sale of our units and the application of the
estimated net proceeds derived from the sale of our units:
APRIL 21, 2004
--------------
AS
ACTUAL ADJUSTED
------ --------
Common stock, $.0001 par value, -0- and 999,500 shares which are
subject to possible conversion, shares at conversion value .... $ -- $ 5,097,450
=========== ===========
Stockholders' equity:
Preferred stock, $.0001 par value, 1,000,000 shares
authorized; none issued or outstanding ...................... $ -- $ --
=========== ===========
Common stock, $.0001 par value, 30,000,000 shares authorized;
1,250,000 shares issued and outstanding; 5,250,500 shares
issued and outstanding (excluding 999,500 shares subject to
possible conversion), as adjusted .......................... 125 525
Additional paid-in capital .................................. 24,875 21,697,025
----------- -----------
Total stockholders' equity: ........................... $ 25,000 $21,697,550
=========== ===========
Total capitalization .................................. $ 25,000 $26,795,000
=========== ===========
If we consummate a business combination, the conversion rights afforded
to our public stockholders may result in the conversion into cash of up to
approximately 19.99% of the aggregate number of shares sold in this offering at
a per-share conversion price equal to the amount in the trust fund as of the
record date for determination of stockholders entitled to vote on the business
combination, inclusive of any interest thereon, divided by the number of shares
sold in this offering.
21
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
We were formed on April 2, 2004, to serve as a vehicle to effect a
merger, capital stock exchange, asset acquisition or other similar business
combination with an operating business. We intend to utilize cash derived from
the proceeds of this offering, our capital stock, debt or a combination of cash,
capital stock and debt, in effecting a business combination. The issuance of
additional shares of our capital stock:
o may significantly reduce the equity interest of our stockholders;
o will likely 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 most likely will also result in the
resignation or removal of our present officers and directors; and
o may adversely affect prevailing market prices for our common
stock.
Similarly, if we issued debt securities, it could result in:
o default and foreclosure on our assets if our operating revenues
after a business combination were insufficient to pay our debt
obligations;
o acceleration of our obligations to repay the indebtedness even if
we have made all principal and interest payments when due if the
debt security contained covenants that required the maintenance of
certain financial ratios or reserves and any such covenant were
breached without a waiver or renegotiation of that covenant;
o our immediate payment of all principal and accrued interest, if
any, if the debt security was payable on demand; and
o our inability to obtain additional financing, if necessary, if the
debt security contained covenants restricting our ability to
obtain additional financing while such security was outstanding.
We have neither engaged in any operations nor generated any revenues to
date. Our entire activity since inception has been to prepare for our proposed
fundraising through an offering of our equity securities.
We estimate that the net proceeds from the sale of the units, after
deducting offering expenses of approximately $1,430,000, including $900,000
evidencing the underwriters' non-accountable expense allowance of 3% of the
gross proceeds, and underwriting discounts of approximately $1,800,000, will be
approximately $26,770,000, or $30,865,000 if the underwriters' over-allotment
option is exercised in full. Of this amount, $25,500,000, or $29,595,000 if the
underwriters' over-allotment option is exercised in full, will be held in trust
and the remaining $1,270,000 in either case will not be held in trust. We will
use substantially all of
22
the net proceeds of this offering to acquire a target business, including
identifying and evaluating prospective acquisition candidates, selecting the
target business, and structuring, negotiating and consummating the business
combination. To the extent that our capital stock is used in whole or in part as
consideration to effect a business combination, the proceeds held in the trust
fund as well as any other net proceeds not expended will be used to finance the
operations of the target business. We believe that, upon consummation of this
offering, the funds available to us outside of the trust fund will be sufficient
to allow us to operate for at least the next 24 months, assuming that a business
combination is not consummated during that time. Over this time period, we
anticipate approximately $180,000 of expenses for legal, accounting and other
expenses attendant to the due diligence investigations, structuring and
negotiating of a business combination, $180,000 for the administrative fee
payable to Crescendo Advisors II LLC ($7,500 per month for two years), $150,000
of expenses for the due diligence and investigation of a target business,
$40,000 of expenses in legal and accounting fees relating to our SEC reporting
obligations and $720,000 for general working capital that will be used for
miscellaneous expenses and reserves, including approximately $115,000 for
director and officer liability insurance premiums. We do not believe we will
need to raise additional funds following this offering in order to meet the
expenditures required for operating our business. However, we may need to raise
additional funds through a private offering of debt or equity securities if such
funds are required to consummate a business combination that is presented to us.
We would only consummate such a fund raising simultaneously with the
consummation of a business combination.
We are obligated, commencing on the date of this prospectus, to pay to
Crescendo Advisors II LLC, an affiliate of Eric S. Rosenfeld, a monthly fee of
$7,500 for general and administrative services. In addition, on April 14, 2004,
Mr. Rosenfeld advanced $70,000 to us, on a non-interest bearing basis, for
payment of offering expenses on our behalf. The loan will be payable without
interest on the earlier of April 14, 2005 or the consummation of this offering.
The loan will be repaid out of the gross proceeds of this offering.
23
PROPOSED BUSINESS
INTRODUCTION
We are a recently organized Delaware blank check company formed to
serve as a vehicle for the acquisition of an operating business. Our efforts in
identifying a prospective target business will not be limited to a particular
industry, although we intend to focus on target businesses in both the United
States and Canada that may provide significant opportunities for growth.
We believe that in addition to the United States, Canada represents
both a favorable environment for making acquisitions and an attractive operating
environment for a target business for the following reasons:
o Lack of competition for business combinations. The Canadian and
United States landscapes are similar based on comparable ratios of
private companies available for investment to the total number of
private equity firms. However, the capital under private equity
management per available private company is twice as large in the
United States as it is in Canada. This suggests a more competitive
investment environment in the United States. Capital under private
equity management in the United States buyout market is
approximately 20 times the amount in Canada for a gross domestic
product and a population that is only 10 times higher in the
United States. As a result, we believe there is significantly less
competition for business combinations in Canada.
o Immature and inefficient market for private companies. A reason
for the favorable competitive landscape in Canada is due, in part,
to the immaturity of the Canadian private equity markets when
compared to the United States. Many Canadian private equity firms
have not been in business for very long and therefore cannot
exhibit long-tern proven track records. For instance, the median
age of private equity firms in Canada is only four years compared
to nine years in the United States. This, in turn, makes it harder
to convince new investors to supply capital to these firms.
o Advantageous valuations. The Canadian market, due to its lack of
competition and its immaturity, creates many interesting valuation
discrepancies with valuations observed in the United States. We
believe that private companies are available for sale in Canada
for lower multiples than they are in the United States. Over the
past three years, Canadian firms have been acquired at roughly a
40% discount versus companies in the United States. If this trend
continues, the Canadian private equity market should benefit.
o Strong macroeconomic environment. The Canadian federal government
spending as a percentage of gross domestic product is currently at
a 50-year low, leading to a surplus since 1997. The government is
expected to stay in a surplus for the next five fiscal years.
Canada also currently has a trade surplus. Inflation and interest
rates are low and are expected to stay low given the favorable
fiscal
24
conditions. We believe these strong economic factors will provide
us with an attractive operating environment following a business
combination.
EFFECTING A BUSINESS COMBINATION
General
We are not presently engaged in, and we will not engage in, any
substantive commercial business for an indefinite period of time following this
offering. We intend to utilize cash derived from the proceeds of this offering,
our capital stock, debt or a combination of these in effecting a business
combination. Although substantially all of the net proceeds of this offering are
intended to be generally applied toward effecting a business combination as
described in this prospectus, the proceeds are not otherwise being designated
for any more specific purposes. Accordingly, prospective investors will invest
in us without an opportunity to evaluate the specific merits or risks of any one
or more business combinations. A business combination may involve the
acquisition of, or merger with, a company which does not need substantial
additional capital but which desires to establish a public trading market for
its shares, while avoiding what it may deem to be adverse consequences of
undertaking a public offering itself. These include time delays, significant
expense, loss of voting control and compliance with various Federal and state
securities laws. In the alternative, we may seek to consummate a business
combination with a company that may be financially unstable or in its early
stages of development or growth. While we may seek to effect business
combinations with more than one target business, we will probably have the
ability, as a result of our limited resources, to effect only a single business
combination.
We have not identified a target business or target industry
To date, we have not selected any target business or target industry on
which to concentrate our search for a business combination. Subject to the
limitations that a target business have a fair market value of at least 80% of
our net assets at the time of the acquisition, as described below in more
detail, we will have virtually unrestricted flexibility in identifying and
selecting a prospective acquisition candidate. Accordingly, there is no basis
for investors in this offering to evaluate the possible merits or risks of the
target business with which we may ultimately complete a business combination. To
the extent we effect a business combination with a financially unstable company
or an entity in its early stage of development or growth, including entities
without established records of sales or earnings, we may be affected by numerous
risks inherent in the business and operations of financially unstable and early
stage or potential emerging growth companies. Although our management will
endeavor to evaluate the risks inherent in a particular target business, we
cannot assure you that we will properly ascertain or assess all significant risk
factors.
Sources of target businesses
We anticipate that target business candidates will be brought to our
attention from various unaffiliated sources, including investment bankers,
venture capital funds, private equity funds, leveraged buyout funds, management
buyout funds and other members of the financial community, who may present
solicited or unsolicited proposals. Our officers and directors as well as their
affiliates may also bring to our attention target business candidates. While we
do not presently anticipate engaging the services of professional firms that
specialize in business acquisitions on
25
any formal basis, we may engage these firms in the future, in which event we may
pay a finder's fee or other compensation. In no event, however, will we pay any
of our existing officers, directors or stockholders or any entity with which
they are affiliated any finder's fee or other compensation for services rendered
to us prior to or in connection with the consummation of a business combination.
Selection of a target business and structuring of a business
combination
Subject to the requirement that our initial business combination must
be with a target business with a fair market value that is at least 80% of our
net assets at the time of such acquisition, our management will have virtually
unrestricted flexibility in identifying and selecting a prospective target
business. In evaluating a prospective target business, our management will
consider, among other factors, the following:
o financial condition and results of operation;
o valuation;
o growth potential;
o experience and skill of management and availability of
additional personnel;
o capital requirements;
o competitive position;
o stage of development of the products, processes or services;
o degree of current or potential market acceptance of the
products, processes or services;
o proprietary features and degree of intellectual property or
other protection of the products, processes or services;
o regulatory environment of the industry; and
o costs associated with effecting the business combination.
These criteria are not intended to be exhaustive. Any evaluation
relating to the merits of a particular business combination will be based, to
the extent relevant, on the above factors as well as other considerations deemed
relevant by our management in effecting a business combination consistent with
our business objective. In evaluating a prospective target business, we will
conduct an extensive due diligence review which will encompass, among other
things, meetings with incumbent management and inspection of facilities, as well
as review of financial and other information which will be made available to us.
26
The time and costs required to select and evaluate a target business
and to structure and complete the business combination cannot presently be
ascertained with any degree of certainty. Any costs incurred with respect to the
identification and evaluation of a prospective target business with which a
business combination is not ultimately completed will result in a loss to us and
reduce the amount of capital available to otherwise complete a business
combination. However, we will not pay any finders or consulting fees to our
existing stockholders, or any of their respective affiliates, for services
rendered to or in connection with a business combination.
Fair Market Value of Target Business
The initial target business that we acquire must have a fair market
value equal to at least 80% of our net assets at the time of such acquisition.
The fair market value of such business will be determined by our board of
directors based upon standards generally accepted by the financial community,
such as actual and potential sales, earnings and cash flow and book value. If
our board is not able to independently determine that the target business has a
sufficient fair market value, we will obtain an opinion from an unaffiliated,
independent investment banking firm which is a member of the National
Association of Securities Dealers, Inc. with respect to the satisfaction of such
criteria. Since any opinion, if obtained, would merely state that fair market
value meets the 80% of net assets threshold, it is not anticipated that copies
of such opinion would be distributed to our stockholders, although copies will
be provided to stockholders who request it. We will not be required to obtain an
opinion from an investment banking firm as to the fair market value if our board
of directors independently determines that the target business has sufficient
fair market value.
Probable lack of business diversification
While we may seek to effect business combinations with more than one
target business, our initial business combination must be with a target business
which satisfies the minimum valuation standard at the time of such acquisition,
as discussed above. Consequently, it is probable that we will have the ability
to effect only a single business combination. Accordingly, the prospects for our
success may be entirely dependent upon the future performance of a single
business. Unlike other entities which may have the resources to complete several
business combinations of entities operating in multiple industries or multiple
areas of a single industry, it is probable that we will not have the resources
to diversify our operations or benefit from the possible spreading of risks or
offsetting of losses. By consummating a business combination with only a single
entity, our lack of diversification may:
o subject us to numerous economic, competitive and regulatory
developments, any or all of which may have a substantial adverse
impact upon the particular industry in which we may operate
subsequent to a business combination, and
o result in our dependency upon the development or market acceptance
of a single or limited number of products, processes or services.
27
Limited ability to evaluate the target business' management
Although we intend to closely scrutinize the management of a
prospective target business when evaluating the desirability of effecting a
business combination, we cannot assure you that our assessment of the target
business' management will prove to be correct. In addition, we cannot assure you
that the future management will have the necessary skills, qualifications or
abilities to manage a public company. Furthermore, the future role of our
officers and directors, if any, in the target business cannot presently be
stated with any certainty. While it is possible that one or more of our
directors will remain associated in some capacity with us following a business
combination, it is unlikely that any of them will devote their full efforts to
our affairs subsequent to a business combination. Moreover, we cannot assure you
that our officers and directors will have significant experience or knowledge
relating to the operations of the particular target business.
Following a business combination, we may seek to recruit additional
managers to supplement the incumbent management of the target business. We
cannot assure you that we will have the ability to recruit additional managers,
or that additional managers will have the requisite skills, knowledge or
experience necessary to enhance the incumbent management.
Opportunity for stockholder approval of business combination
Prior to the completion of a business combination, we will submit the
transaction to our stockholders for approval, even if the nature of the
acquisition is such as would not ordinarily require stockholder approval under
applicable state law. In connection with seeking stockholder approval of a
business combination, we will furnish our stockholders with proxy solicitation
materials prepared in accordance with the Securities Exchange Act of 1934,
which, among other matters, will include a description of the operations of the
target business and audited historical financial statements of the business.
In connection with the vote required for any business combination, all
of our existing stockholders, including all of our officers and directors, have
agreed to vote their respective shares of common stock owned by them immediately
prior to this offering in accordance with the majority of the shares of common
stock voted by the public stockholders. This voting arrangement shall not apply
to shares included in units purchased in this offering or purchased following
this offering in the open market by any of our existing stockholders, officers
and directors. We will proceed with the business combination only if a majority
of the shares of common stock voted by the public stockholders are voted in
favor of the business combination and public stockholders owning less than 20%
of the shares sold in this offering exercise their conversion rights.
Conversion rights
At the time we seek stockholder approval of any business combination,
we will offer each public stockholder the right to have such stockholder's
shares of common stock converted to cash if the stockholder votes against the
business combination and the business combination is approved and completed. The
actual per-share conversion price will be equal to the amount in the trust fund,
inclusive of any interest, as of the record date for determination of
stockholders entitled to vote on the business combination, divided by the number
of shares sold in this offering. Without taking into any account interest earned
on the trust fund, the initial per-share conversion price would be
28
$5.10, or $0.90 less than the per-unit offering price of $6.00. An eligible
stockholder may request conversion at any time after the mailing to our
stockholders of the proxy statement and prior to the vote taken with respect to
a proposed business combination at a meeting held for that purpose, but the
request will not be granted unless the stockholder votes against the business
combination and the business combination is approved and completed. Any request
for conversion, once made, may be withdrawn at any time up to the date of the
meeting. It is anticipated that the funds to be distributed to stockholders
entitled to convert their shares who elect conversion will be distributed
promptly after completion of a business combination. Public stockholders who
convert their stock into their share of the trust fund still have the right to
exercise the warrants that they received as part of the units. We will not
complete any business combination if public stockholders, owning 20% or more of
the shares sold in this offering, exercise their conversion rights.
Liquidation if no business combination
If we do not complete a business combination within 18 months after the
consummation of this offering, or within 24 months if the extension criteria
described below have been satisfied, we will be dissolved and will distribute to
all of our public stockholders, in proportion to their respective equity
interests, an aggregate sum equal to the amount in the trust fund, inclusive of
any interest, plus any remaining net assets. Our existing stockholders have
waived their rights to participate in any liquidation distribution with respect
to shares of common stock owned by them immediately prior to this offering.
There will be no distribution from the trust fund with respect to our warrants.
If we were to expend all of the net proceeds of this offering, other
than the proceeds deposited in the trust fund, and without taking into account
interest, if any, earned on the trust fund, the initial per-share liquidation
price would be $5.10, or $0.90 less than the per-unit offering price of $6.00.
The proceeds deposited in the trust fund could, however, become subject to the
claims of our creditors which could be prior to the claims of our public
stockholders. We cannot assure you that the actual per-share liquidation price
will not be less than $5.10, plus interest, due to claims of creditors. Eric S.
Rosenfeld, our chairman of the board, chief executive officer and president, has
agreed pursuant to an agreement with us and EarlyBirdCapital that, if we
liquidate prior to the consummation of a business combination, he will be
personally liable to pay debts and obligations to vendors or other entities that
are owed money by us for services rendered or products sold to us in excess of
the net proceeds of this offering not held in the trust account. We cannot
assure you, however, that Mr. Rosenfeld would be able to satisfy those
obligations.
If we enter into either a letter of intent, an agreement in principle
or a definitive agreement to complete a business combination prior to the
expiration of 18 months after the consummation of this offering, but are unable
to complete the business combination within the 18-month period, then we will
have an additional six months in which to complete the business combination
contemplated by the letter of intent, agreement in principle or definitive
agreement. If we are unable to do so by the expiration of the 24-month period
from the consummation of this offering, we will then liquidate. Upon notice from
us, the trustee of the trust fund will commence liquidating the investments
constituting the trust fund and will turn over the proceeds to our transfer
agent for distribution to our stockholders. We anticipate that our instruction
to the trustee would be given promptly after the expiration of the applicable
18-month or 24-month period.
29
Our public stockholders shall be entitled to receive funds from the
trust fund only in the event of our liquidation or if the stockholders seek to
convert their respective shares into cash upon a business combination which the
stockholder voted against and which is actually completed by us. In no other
circumstances shall a stockholder have any right or interest of any kind to or
in the trust fund.
COMPETITION
In identifying, evaluating and selecting a target business, we may
encounter intense competition from other entities having a business objective
similar to ours. Many of these entities are well established and have extensive
experience identifying and effecting business combinations directly or through
affiliates. Many of these competitors possess greater technical, human and other
resources than us and our financial resources will be relatively limited when
contrasted with those of many of these competitors. While we believe there are
numerous potential target businesses that we could acquire with the net proceeds
of this offering, our ability to compete in acquiring certain sizable target
businesses will be limited by our available financial resources. This inherent
competitive limitation gives others an advantage in pursuing the acquisition of
a target business. Further:
o our obligation to seek stockholder approval of a business
combination may delay the completion of a transaction;
o our obligation to convert into cash shares of common stock held by
our public stockholders in certain instances may reduce the
resources available to us for a business combination; and
o our outstanding warrants and options, and the future dilution they
potentially represent, may not be viewed favorably by certain
target businesses.
Any of these obligations may place us at a competitive disadvantage in
successfully negotiating a business combination. Our management believes,
however, that our status as a public entity and potential access to the United
States public equity markets may give us a competitive advantage over
privately-held entities having a similar business objective as us in acquiring a
target business with significant growth potential on favorable terms.
If we succeed in effecting a business combination, there will be, in
all likelihood, intense competition from competitors of the target business. We
cannot assure you that, subsequent to a business combination, we will have the
resources or ability to compete effectively.
FACILITIES
We maintain our executive offices at 10 East 53rd Street, 36th Floor,
New York, New York. The cost for this space is included in the $7,500 per-month
fee Crescendo Advisors II LLC charges us for general and administrative services
pursuant to a letter agreement between us and Crescendo Advisors II LLC. We
believe, based on rents and fees for similar services in the New York, New York
metropolitan area, that the fee charged by Crescendo Advisors II LLC is at least
30
as favorable as we could have obtained from an unaffiliated person. We consider
our current office space adequate for our current operations.
EMPLOYEES
We have two executive officers, each of whom are members of our board
of directors. These individuals are not obligated to contribute any specific
number of hours per week and intend to devote only as much time as they deem
necessary to our affairs. The amount of time they will devote in any time period
will vary based on the availability of suitable target businesses to
investigate, although we expect them to devote an average of approximately ten
hours per week to our business. We do not intend to have any full time employees
prior to the consummation of a business combination.
PERIODIC REPORTING AND AUDITED FINANCIAL STATEMENTS
We have registered our units, common stock and warrants under the
Securities Exchange Act of 1934, as amended, and have reporting obligations,
including the requirement that we file annual and quarterly reports with the
SEC. In accordance with the requirements of the Securities Exchange Act of 1934,
our annual reports will contain financial statements audited and reported on by
our independent accountants.
We will not acquire a target business if audited financial statements
based on United States generally accepted accounting principles cannot be
obtained for the target business. Additionally, our management will provide
stockholders with audited financial statements, prepared in accordance with
generally accepted accounting principles, of the prospective target business as
part of the proxy solicitation materials sent to stockholders to assist them in
assessing the target business. Our management believes that the requirement of
having available audited financial statements for the target business will not
materially limit the pool of potential target businesses available for
acquisition.
31
COMPARISON TO OFFERINGS OF BLANK CHECK COMPANIES
The following table compares and contrasts the terms of our offering
and the terms of an offering of blank check companies under Rule 419 promulgated
by the SEC assuming that the gross proceeds, underwriting discounts and
underwriting expenses for the Rule 419 offering are the same as this offering
and that the underwriters will not exercise their over-allotment option. None of
the terms of a Rule 419 offering will apply to this offering.
TERMS OF OUR OFFERING TERMS UNDER A RULE 419 OFFERING
--------------------- -------------------------------
ESCROW OF OFFERING PROCEEDS...... $25,500,000 of the net offering $24,570,000 of the offering proceeds
proceeds will be deposited into a would be required to be deposited into
trust fund maintained by Continental either an escrow account with an
Stock Transfer & Trust Company. insured depositary institution or in a
separate bank account established by a
broker-dealer in which the broker-dealer
acts as trustee for persons having the
beneficial interests in the account.
INVESTMENT OF NET PROCEEDS....... The $25,500,000 of net offering Proceeds could be invested only in
proceeds held in trust will only be specified securities such as a money
invested in U.S. "government market fund meeting conditions of the
securities," defined as any Treasury Investment Company Act of 1940 or in
Bill issued by the United States securities that are direct obligations
having a maturity of one hundred and of, or obligations guaranteed as to
eighty days or less. principal or interest by, the United
States.
LIMITATION ON FAIR VALUE OR NET
ASSETS OF TARGET BUSINESS........ The initial target business that we We would be restricted from acquiring
acquire must have a fair market value a target business unless the fair value
equal to at least 80% of our net assets of such business or net assets to be
at the time of such acquisition. acquired represent at least 80% of the
maximum offering proceeds.
TRADING OF SECURITIES ISSUED..... The units may commence trading on or No trading of the units or the
promptly after the date of this underlying common stock and warrants
prospectus. The common stock and would be permitted until the
warrants comprising the units will completion of a business combination.
begin to trade separately on the During this period, the securities
90th day after the date of this would be held in the escrow or trust
prospectus unless EarlyBirdCapital account.
informs us of its decision to allow
earlier separate trading, provided
we have filed with the SEC a Current
Report on Form 8-K, which includes
an audited balance sheet reflecting
our receipt of the proceeds of this
offering, including any proceeds we
receive from the exercise of the
over-allotment option, if such
option is exercised prior to the
filing of the Form 8-K.
32
EXERCISE OF THE WARRANTS......... The warrants cannot be exercised The warrants could be exercised prior
until the later of the completion of to the completion of a business
a business combination or one year combination, but securities received
from the date of this prospectus, and cash paid in connection with the
and, accordingly, will only be exercise would be deposited in the
exercised after the trust fund has escrow or trust account.
been terminated and distributed.
ELECTION TO REMAIN AN INVESTOR... We will give our stockholders the A prospectus containing information
opportunity to vote on the business required by the SEC would be sent to
combination. In connection with each investor. Each investor would be
seeking stockholder approval, we given the opportunity to notify the
will send each stockholder a proxy company, in writing, within a period
statement containing information of no less than 20 business days and
required by the SEC. A stockholder no more than 45 business days from the
following the procedures described effective date of the post-effective
in this prospectus is given the amendment, to decide whether he or she
right to convert his or her shares elects to remain a stockholder of the
into his or her pro rata share of company or require the return of his
the trust fund. However, a or her investment. If the company has
stockholder who does not follow not received the notification by the
these procedures or a stockholder end of the 45th business day, funds
who does not take any action would and interest or dividends, if any,
not be entitled to the return of any held in the trust or escrow account
funds. would automatically be returned to the
stockholder. Unless a sufficient number of
investors elect to remain investors, all
of the deposited funds in the escrow
account must be returned to all investors
and none of the securities will be issued.
BUSINESS COMBINATION DEADLINE.... A business combination must occur If an acquisition has not been
within 18 months after the consummated within 18 months after the
consummation of this offering or effective date of the initial
within 24 months after the registration statement, funds held in
consummation of this offering if a the trust or escrow account would be
letter of intent or definitive returned to investors.
agreement relating to a prospective
business combination was entered
into prior to the end of the
18-month period.
RELEASE OF FUNDS................. The proceeds held in the trust The proceeds held in the escrow
account will not be released until account would not be released until
the earlier of the completion of a the earlier of the completion of a
business combination or our business combination or the failure to
liquidation upon failure to effect a effect a business combination within
business combination within the the allotted time.
allotted time.
33
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
Our current directors and executive officers are as follows:
NAME AGE POSITION
---- --- --------
Eric S. Rosenfeld 46 Chairman of the Board of Directors, Chief
Executive Officer and President
Arnaud Ajdler 28 Chief Financial Officer, Secretary and
Director
Leonard B. Schlemm 51 Director
Jon Bauer 47 Director
Colin D. Watson 62 Director
James G. Dinan 44 Director
ERIC S. ROSENFELD has been our chairman of the board, chief executive
officer and president since our inception. Mr. Rosenfeld has been the president
and chief executive officer of Crescendo Partners, L.P., a New York-based
investment firm, since its formation in November 1998. Prior to forming
Crescendo Partners, Mr. Rosenfeld had been managing director at CIBC Oppenheimer
and its predecessor company Oppenheimer & Co., Inc. for fourteen years. He was
also chairman of the board of Spar Aerospace Limited from 1999 through 2001,
until its sale to L-3 Communications. Mr. Rosenfeld is a director and chairman
of the strategic planning committee of CPI Aerostructures, Inc., an American
Stock Exchange-listed company engaged in the contract production of structural
aircraft parts principally for the United States Air Force and other branches of
the U.S. armed forces. He is also a director of Sierra Systems Group, Inc., a
Toronto Stock Exchange-listed information technology, management consulting and
systems integration firm based in Canada, and a director of AD OPT Technologies,
Inc., a Toronto Stock Exchange-listed company that provides advanced workforce
planning, scheduling and management solutions. Mr. Rosenfeld recently served as
a director and head of the special committee of Pivotal Corporation, a Canadian
based customer relations management software company that was sold to
chinadotcom. Mr. Rosenfeld is a regular guest lecturer at Columbia Business
School and has served on numerous panels at Queen's University Business Law
School Symposia, McGill Law School and the World Presidents' Organization. He
has also been a regular guest host on CNBC. Mr. Rosenfeld received an M.B.A.
from Harvard University and an A.B. degree in economics from Brown University.
ARNAUD AJDLER has been our chief financial officer and secretary and a
member of our board of directors since our inception. Mr. Ajdler has been an
investment analyst at Crescendo Partners since September 2003. From January 2000
to July 2001, he worked as a management consultant at Mercer Management
Consulting, a leading international strategy consulting firm, before completing
his M.B.A. at Harvard Business School in June 2003. He also worked as an
34
investment analyst at Tilson Capital, a New York-based hedge fund, as an
investment banker at Deutsche Bank, a leading international financial service
provider, and as a management consultant at the Boston Consulting Group. Mr.
Ajdler received a B.S. in engineering from the Free University of Brussels,
Belgium, an S.M. in Aeronautics from the Massachusetts Institute of Technology
and an M.B.A from the Harvard Business School.
LEONARD B. SCHLEMM has been a member of our board of directors since
our inception. He has been the chairman of the board of AD OPT Technologies
since November 2002. He has also been chairman of Sila Holdings, a Cyprus
holding company which owns one of the largest chains of fitness centers in
Russia, since March 1997 and the president of The Atwater Club, a private
racquet club in Montreal, since February 2002. From November 1999 until its
merger with Netpulse Communications and E-Zone Networks in November 2000, he
served as chairman of the board of Xystos Media Networks, an interactive media
company with three million users under long-term contract. Mr. Schlemm was a
co-founder of 24 Hour Fitness, one of the world's largest privately owned and
operated fitness center chains and was its chairman from 1986 until 1997. From
June 1996 to January 1999, Mr. Schlemm served as a member of the board of
directors of Forza Limited, a European fitness equipment distribution company.
Mr. Schlemm received a Bachelor of Commerce degree from McGill University (great
distinction) and an M.B.A. from Harvard University (with distinction). He also
received his Chartered Accountant designation in Canada in 1975.
JON BAUER has been a member of our board of directors since our
inception. Since May 1995, Mr. Bauer has been the managing member and chief
investment officer of Contrarian Capital Management, a multi-strategy distressed
securities money management firm. From July 1986 to May 1995, he was managing
director at Oppenheimer & Co., Inc. where he founded the High Yield Department.
Mr. Bauer received a B.A. (with honors) from Rutgers College and an MBA from
Harvard Business School.
COLIN D. WATSON has been a member of our board of directors since our
inception. Since November 2003, Mr. Watson has been president and chief
executive officer of Vector Aerospace Corporation, a company engaged in the
aviation repair and overhaul industry. He has also been a director of
Louisiana-Pacific Corporation, a New York Stock Exchange-listed manufacturer and
distributor of building materials, since June 2000. From April 1996 until
January 2002, Mr. Watson served in various positions with Spar Aerospace. In
December 2001, he retired from the office of vice-chairman of Spar Aerospace, a
position he had held since January 2001. From January 2000 to December 2000, he
was vice-chairman and chief executive officer of Spar Aerospace and from April
1996 until December 1999, he was its president and chief executive officer. From
April 1974 to April 1996, Mr. Watson was president and chief executive officer
of Rogers Cable TV, one of Canada's largest cable providers, and a director of
Rogers Communications Inc. as well as director, president and chief executive
officer of Rogers Cable TV. Mr. Watson is a member of the Chairman's Advisory
Council of Harbourfront Centre and Sunnybrook Foundation, respectively, and is a
past Chairman of the Toronto Film Festival. Mr. Watson received a Ba.Sc.
(Mechanical Engineering) from UBC and an MBA from the Richard Ivey School of
Business at the University of Western Ontario.
35
JAMES G. DINAN has been a member of our board of directors since our
inception. Mr. Dinan has been the chief executive officer of JGD Management
Corp., a New York-based hedge fund that invests in various event-driven
strategies, since he founded it in September 1991. From 1985 to 1991, he was
affiliated with Kellner, DiLeo & Co., a New York Stock Exchange member firm
specializing in risk arbitrage, and served as a general partner from 1989 to
1991. Prior to joining Kellner, he was a member of the Investment Banking Group
of Donaldson, Lufkin & Jenrette. Mr. Dinan received his B.S. (summa cum laude)
from the Wharton School, University of Pennsylvania, and an MBA from Harvard
Business School.
Our board of directors is divided into three classes with only one
class of directors being elected in each year and each class serving a
three-year term. The term of office of the first class of directors, consisting
of Leonard B. Schlemm and Jon Bauer, will expire at our first annual meeting of
stockholders. The term of office of the second class of directors, consisting of
Colin D. Watson and James G. Dinan, will expire at the second annual meeting.
The term of office of the third class of directors, consisting of Eric S.
Rosenfeld and Arnaud Ajdler, will expire at the third annual meeting.
SPECIAL ADVISOR
JOEL GREENBLATT is our special advisor who will advise us concerning
our acquisition of a target business. Mr. Greenblatt is the managing partner of
Gotham Capital III, L.P., an investment partnership he founded in April 1985. He
is the former chairman of the board and a former board member of Alliant
Techsystems, a New York Stock Exchange-listed aerospace and defense contractor.
Since 1996, he has been on the adjunct faculty of Columbia Business School where
he teaches "Security Analysis." Mr. Greenblatt is the author of "You Can Be A
Stock Market Genius" (Simon & Schuster, 1997). He received a B.S. (summa cum
laude) and an MBA from the Wharton School of the University of Pennsylvania.
These individuals will play a key role in identifying and evaluating
prospective acquisition candidates, selecting the target business, and
structuring, negotiating and consummating its acquisition. None of these
individuals has been a principal of a public company or blank check company that
executed a business plan similar to our business plan. However, we believe that
the skills and expertise of these individuals, their collective access to
acquisition opportunities and ideas, their contacts, and their transactional
expertise should enable them to successfully identify and effect an acquisition.
EXECUTIVE COMPENSATION
No executive officer has received any cash compensation for services
rendered. Commencing on the effective date of this prospectus through the
acquisition of a target business, we will pay Crescendo Advisors II LLC, an
affiliate of Eric S. Rosenfeld, a fee of $7,500 per month for providing us with
office space and certain office and secretarial services. No other executive
officer or director has a relationship with or interest in Crescendo Advisors II
LLC. Other than this $7,500 per-month fee, no compensation of any kind,
including finder's and consulting fees, will be paid to any of our existing
stockholders, including our directors, or any of their respective affiliates,
for services rendered prior to or in connection with a business
36
combination. However, our existing stockholders will be reimbursed for any
out-of-pocket expenses incurred in connection with activities on our behalf such
as identifying potential target businesses and performing due diligence on
suitable business combinations. There is no limit on the amount of these
out-of-pocket expenses and there will be no review of the reasonableness of the
expenses by anyone other than our board of directors, which includes persons who
may seek reimbursement, or a court of competent jurisdiction if such
reimbursement is challenged. Because none of our directors will be deemed
"independent," we will generally not have the benefit of independent directors
examining the propriety of expenses incurred on our behalf and subject to
reimbursement.
CONFLICTS OF INTEREST
Potential investors should be aware of the following potential
conflicts of interest:
o None of our officers and directors are required to commit their
full time to our affairs and, accordingly, they may have conflicts
of interest in allocating management time among various business
activities.
o In the course of their other business activities, our officers and
directors may become aware of investment and business
opportunities which may be appropriate for presentation to us as
well as the other entities with which they are affiliated. They
may have conflicts of interest in determining to which entity a
particular business opportunity should be presented.
o Our officers and directors may in the future become affiliated
with entities, including other blank check companies, engaged in
business activities similar to those intended to be conducted by
us.
o Since our directors own shares of our common stock which will be
released from escrow only if a business combination is
successfully completed, our board may have a conflict of interest
in determining whether a particular target business is appropriate
to effect a business combination. The personal and financial
interests of our directors and officers may influence their
motivation in identifying and selecting a target business,
completing a business combination timely and securing the release
of their stock.
In general, officers and directors of a corporation incorporated under
the laws of the State of Delaware are required to present business opportunities
to a corporation if:
o the corporation could financially undertake the opportunity;
o the opportunity is within the corporation's line of business; and
o it would not be fair to the corporation and its stockholders for
the opportunity not to be brought to the attention of the
corporation.
37
Accordingly, as a result of multiple business affiliations, our
officers and directors may have similar legal obligations relating to presenting
business opportunities meeting the above-listed criteria to multiple entities.
In addition, conflicts of interest may arise when our board evaluates a
particular business opportunity with respect to the above-listed criteria. We
cannot assure you that any of the above mentioned conflicts will be resolved in
our favor.
In order to minimize potential conflicts of interest which may arise
from multiple corporate affiliations, each of our officers and directors has
agreed, until the earlier of a business combination, our liquidation or such
time as he ceases to be an officer or director, to present to us for our
consideration, prior to presentation to any other entity, any suitable business
opportunity which may reasonably be required to be presented to us subject to
any pre-existing fiduciary or contractual obligations he might have.
In connection with the vote required for any business combination, all
of our existing stockholders, including all of our officers and directors, have
agreed to vote their respective shares of common stock which were owned prior to
this offering in accordance with the vote of the public stockholders owning a
majority of the shares of our common stock sold in this offering. In addition,
they have agreed to waive their respective rights to participate in any
liquidation distribution but only with respect to those shares of common stock
acquired by them prior to this offering.
To further minimize potential conflicts of interest, we have agreed not
to consummate a business combination with an entity which is affiliated with any
of our existing stockholders unless we obtain an opinion from an independent
investment banking firm that the business combination is fair to our
stockholders from a financial point of view.
38
PRINCIPAL STOCKHOLDERS
The following table sets forth information regarding the beneficial
ownership of our common stock as of April 23, 2004, and as adjusted to reflect
the sale of our common stock included in the units offered by this prospectus,
by:
o each person known by us to be the beneficial owner of more than 5%
of our outstanding shares of common stock;
o each of our officers and directors; and
o all our officers and directors as a group.
Unless otherwise indicated, we believe that all persons named in the
table have sole voting and investment power with respect to all shares of common
stock beneficially owned by them.
APPROXIMATE PERCENTAGE
AMOUNT AND NATURE OF OUTSTANDING COMMON STOCK
OF BENEFICIAL ---------------------------------
NAME AND ADDRESS OF BENEFICIAL OWNER(1) OWNERSHIP BEFORE OFFERING AFTER OFFERING
--------------------------------------- --------- --------------- --------------
Eric S. Rosenfeld 1,000,000(2) 80.0% 16.0%
Rosenfeld 1991 Children's Trust 100,000 8.0% 1.6%
Leonard B. Schlemm(3) 50.000 4.0% *
Colin D. Watson(4) 50.000 4.0% *
James G. Dinan(5) 50.000 4.0% *
Jon Bauer(6) 50.000 4.0% *
Arnaud Ajdler 50.000 4.0% *
All directors and executive officers as a group (6 1,250,000 100% 20.0%
individuals)
-----------------------------------
*Less than 1%.
(1) Unless otherwise noted, the business address of each of the following is 10
East 53rd Street, 36th Floor, New York, New York 10022.
(2) Includes 100,000 shares of common stock held by the Rosenfeld 1991
Children's Trust, of which Mr. Rosenfeld's wife is the sole trustee.
(3) The business address of Mr. Schlemm is c/o AD OPT Technologies, Inc., 3535
Queen Mary Road, Suite 650, Montreal, Quebec, Canada H3V 1H8.
39
(4) The business address of Mr. Watson is c/o Vector Aerospace Corporation, 105
Bedford Road, Suite 300, Toronto, Ontario, Canada M5R 2K4.
(5) The business address of Mr. Dinan is c/o JGD Management Corp., 390 Park
Avenue, New York, New York 10022.
(6) The business address of Mr. Bauer is 411 W. Putnam Ave., Ste 225, Greenwich,
Connecticut 06830.
Immediately after this offering, our existing stockholders, which
include all of our officers and directors, collectively, will beneficially own
20% of the then issued and outstanding shares of our common stock. Because of
this ownership block, these stockholders may be able to effectively exercise
control over all matters requiring approval by our stockholders, including the
election of directors and approval of significant corporate transactions other
than approval of a business combination.
All of the shares of our common stock outstanding prior to the date of
this prospectus will be placed in escrow with Continental Stock Transfer & Trust
Company, as escrow agent, until the earliest of:
o three years following the date of this prospectus;
o our liquidation; or
o the consummation of a liquidation, merger, stock exchange or other
similar transaction which results in all of our stockholders
having the right to exchange their shares of common stock for
cash, securities or other property subsequent to our consummating
a business combination with a target business.
During the escrow period, the holders of these shares will not be able to sell
or transfer their securities except to their spouses and children or trusts
established for their benefit, but will retain all other rights as our
stockholders, including, without limitation, the right to vote their shares of
common stock and the right to receive cash dividends, if declared. If dividends
are declared and payable in shares of common stock, such dividends will also be
placed in escrow. If we are unable to effect a business combination and
liquidate, none of our existing stockholders will receive any portion of the
liquidation proceeds with respect to common stock owned by them prior to the
date of this prospectus.
Eric S. Rosenfeld has agreed with EarlyBirdCapital that after this
offering is completed and within the first forty trading days after separate
trading of the warrants has commenced, he or certain of his affiliates or
designees will collectively purchase up to 1,000,000 warrants in the public
marketplace at prices not to exceed $0.65 per warrant. He has further agreed
that any warrants purchased by him or his affiliates or designees will not be
sold or transferred until after we have completed a business combination. The
warrants may trade separately on the 90th day after the date of this prospectus
unless EarlyBirdCapital determines that an earlier date is acceptable. In no
event will EarlyBirdCapital allow separate trading of the common stock and
warrants until we file a Current Report on Form 8-K which includes an audited
balance sheet reflecting our receipt of the proceeds of this offering including
any proceeds we receive from the
40
exercise of the over-allotment option if such option is exercised prior to our
filing of the Form 8-K. Purchases of warrants demonstrate confidence in our
ultimate ability to effect a business combination because the warrants will
expire worthless if we are unable to consummate a business combination and are
ultimately forced to liquidate.
Eric S. Rosenfeld may be deemed to be our "parent" and "promoter," as
these terms are defined under the Federal securities laws.
CERTAIN TRANSACTIONS
In April 2004, we issued 1,250,000 shares of our common stock to the
individuals set forth below for $25,000 in cash, at an average purchase price of
$0.02 per share, as follows:
NAME NUMBER OF SHARES RELATIONSHIP TO US
---- ---------------- ------------------
Eric S. Rosenfeld 900,000 Chairman of the Board, Chief Executive
Officer and President
Rosenfeld 1991 Children's Trust 100,000 Stockholder
Leonard B. Schlemm 50,000 Director
Colin D. Watson 50,000 Director
James G. Dinan 50,000 Director
Jon Bauer 50,000 Director
Arnaud Ajdler 50,000 Chief Financial Officer, Secretary and
Director
The holders of the majority of these shares will be entitled to make up
to two demands that we register these shares pursuant to an agreement to be
signed prior to or on the date of this prospectus. The holders of the majority
of these shares may elect to exercise these registration rights at any time
after the date on which these shares of common stock are released from escrow.
In addition, these stockholders have certain "piggy-back" registration rights on
registration statements filed subsequent to the date on which these shares of
common stock are released from escrow. We will bear the expenses incurred in
connection with the filing of any such registration statements.
Crescendo Advisors II LLC, an affiliate of Eric S. Rosenfeld, has
agreed that, commencing on the effective date of this prospectus through the
acquisition of a target business, it will make available to us a small amount of
office space and certain office and secretarial services, as we may require from
time to time. We have agreed to pay Crescendo Advisors II LLC $7,500 per month
for these services. Mr. Rosenfeld is the senior managing member of Crescendo
Advisors II LLC and, as a result, will benefit from the transaction to the
extent of his interest in Crescendo Advisors II LLC. We believe, based on rents
and fees for similar services in the New York, New York metropolitan area, that
the fee charged by Crescendo Advisors II
41
LLC is at least as favorable as we could have obtained from an unaffiliated
person. However, as our directors may not be deemed "independent," we did not
have the benefit of disinterested directors approving this transaction.
Eric S. Rosenfeld has advanced $70,000 to us as of the date of this
prospectus to cover expenses related to this offering. The loan will be payable
without interest on the earlier of April 14, 2005 or the consummation of this
offering. We intend to repay this loan from the proceeds of this offering.
We will reimburse our officers and directors for any reasonable
out-of-pocket business expenses incurred by them in connection with certain
activities on our behalf such as identifying and investigating possible target
businesses and business combinations. There is no limit on the amount of
accountable out-of-pocket expenses reimbursable by us, which will be reviewed
only by our board or a court of competent jurisdiction if such reimbursement is
challenged.
Other than the $7,500 per-month administrative fee and reimbursable
out-of-pocket expenses payable to our officers and directors, no compensation or
fees of any kind, including finders and consulting fees, will be paid to any of
our existing stockholders, officers or directors who owned our common stock
prior to this offering, or to any of their respective affiliates for services
rendered to us prior to or with respect to the business combination.
All ongoing and future transactions between us and any of our officers
and directors or their respective affiliates, including loans by our officers
and directors, will be on terms believed by us to be no less favorable than are
available from unaffiliated third parties and such transactions or loans,
including any forgiveness of loans, will require prior approval in each instance
by a majority of our uninterested "independent" directors (to the extent we have
any) or the members of our board who do not have an interest in the transaction,
in either case who had access, at our expense, to our attorneys or independent
legal counsel.
DESCRIPTION OF SECURITIES
GENERAL
We are authorized to issue 30,000,000 shares of common stock, par value
$.0001, and 1,000,000 shares of preferred stock, par value $.0001. As of the
date of this prospectus, 1,250,000 shares of common stock are outstanding, held
by seven recordholders. No shares of preferred stock are currently outstanding.
UNITS
Each unit consists of one share of common stock and two warrants. Each
warrant entitles the holder to purchase one share of common stock. The common
stock and warrants will begin to trade separately on the 90th day after the date
of this prospectus unless EarlyBirdCapital informs us of its decision to allow
earlier separate trading, provided that in no event may the common stock and
warrants be traded separately until we have filed with the SEC a Current Report
on Form 8-K which includes an audited balance sheet reflecting our receipt of
the gross proceeds of this offering. We will file a Current Report on Form 8-K
which includes this audited
42
balance sheet upon the consummation of this offering. The audited balance sheet
will reflect proceeds we receive from the exercise of the over-allotment option,
if the over-allotment option is exercised prior to the filing of the Form 8-K.
COMMON STOCK
Our stockholders are entitled to one vote for each share held of record
on all matters to be voted on by stockholders. In connection with the vote
required for any business combination, all of our existing stockholders,
including all of our officers and directors, have agreed to vote their
respective shares of common stock owned by them immediately prior to this
offering in accordance with the public stockholders. This voting arrangement
shall not apply to shares included in units purchased in this offering or
purchased following this offering in the open market by any of our existing
stockholders, officers and directors. Additionally, our existing stockholders,
officers and directors will vote all of their shares in any manner they
determine, in their sole discretion, with respect to any other items that come
before a vote of our stockholders.
We will proceed with the business combination only if a majority of the
shares of common stock voted by the public stockholders are voted in favor of
the business combination and public stockholders owning less than 20% of the
shares sold in this offering exercise their conversion rights discussed below.
Our board of directors is divided into three classes, each of which
will generally serve for a term of three years with only one class of directors
being elected in each year. There is no cumulative voting with respect to the
election of directors, with the result that the holders of more than 50% of the
shares voted for the election of directors can elect all of the directors.
If we are forced to liquidate prior to a business combination, our
public stockholders are entitled to share ratably in the trust fund, inclusive
of any interest, and any net assets remaining available for distribution to them
after payment of liabilities. Our existing stockholders have agreed to waive
their rights to share in any distribution with respect to common stock owned by
them prior to the offering if we are forced to liquidate.
Our stockholders have no conversion, preemptive or other subscription
rights and there are no sinking fund or redemption provisions applicable to the
common stock, except that public stockholders have the right to have their
shares of common stock converted to cash equal to their pro rata share of the
trust fund if they vote against the business combination and the business
combination is approved and completed. Public stockholders who convert their
stock into their share of the trust fund still have the right to exercise the
warrants that they received as part of the units.
PREFERRED STOCK
Our certificate of incorporation authorizes the issuance of 1,000,000
shares of blank check preferred stock with such designation, rights and
preferences as may be determined from time to time by our board of directors. No
shares of preferred stock are being issued or registered in this offering.
Accordingly, our board of directors is empowered, without stockholder approval,
to issue preferred stock with dividend, liquidation, conversion, voting or
43
other rights which could adversely affect the voting power or other rights of
the holders of common stock, although the underwriting agreement prohibits us,
prior to a business combination, from issuing preferred stock which participates
in any manner in the proceeds of the trust fund, or which votes as a class with
the common stock on a business combination. We may issue some or all of the
preferred stock to effect a business combination. In addition, the preferred
stock could be utilized as a method of discouraging, delaying or preventing a
change in control of us. Although we do not currently intend to issue any shares
of preferred stock, we cannot assure you that we will not do so in the future.
WARRANTS
No warrants are currently outstanding. Each warrant entitles the
registered holder to purchase one share of our common stock at a price of $5.00
per share, subject to adjustment as discussed below, at any time commencing on
the later of:
o the completion of a business combination; or
o one year from the date of this prospectus.
The warrants will expire four years from the date of this prospectus at 5:00
p.m., New York City time.
We may call the warrants for redemption,
o in whole and not in part,
o at a price of $.01 per warrant at any time after the warrants
become exercisable,
o upon not less than 30 days' prior written notice of redemption to
each warrantholder, and
o if, and only if, the reported last sale price of the common stock
equals or exceeds $8.50 per share, for any 20 trading days within
a 30 trading day period ending on the third business day prior to
the notice of redemption to warrantholders.
The warrants will be issued in registered form under a warrant
agreement between Continental Stock Transfer & Trust Company, as warrant agent,
and us. You should review a copy of the warrant agreement, which has been filed
as an exhibit to the registration statement of which this prospectus is a part,
for a complete description of the terms and conditions applicable to the
warrants.
The exercise price and number of shares of common stock issuable on
exercise of the warrants may be adjusted in certain circumstances including in
the event of a stock dividend, or our recapitalization, reorganization, merger
or consolidation. However, the warrants will not be adjusted for issuances of
common stock at a price below their respective exercise prices.
44
The warrants may be exercised upon surrender of the warrant certificate
on or prior to the expiration date at the offices of the warrant agent, with the
exercise form on the reverse side of the warrant certificate completed and
executed as indicated, accompanied by full payment of the exercise price, by
certified check payable to us, for the number of warrants being exercised. The
warrantholders do not have the rights or privileges of holders of common stock
and any voting rights until they exercise their warrants and receive shares of
common stock. After the issuance of shares of common stock upon exercise of the
warrants, each holder will be entitled to one vote for each share held of record
on all matters to be voted on by stockholders.
No warrants will be exercisable unless at the time of exercise a
prospectus relating to common stock issuable upon exercise of the warrants is
current and the common stock has been registered or qualified or deemed to be
exempt under the securities laws of the state of residence of the holder of the
warrants. Under the terms of the warrant agreement, we have agreed to meet these
conditions and to maintain a current prospectus relating to common stock
issuable upon exercise of the warrants until the expiration of the warrants.
However, we cannot assure you that we will be able to do so. The warrants may be
deprived of any value and the market for the warrants may be limited if the
prospectus relating to the common stock issuable upon the exercise of the
warrants is not current or if the common stock is not qualified or exempt from
qualification in the jurisdictions in which the holders of the warrants reside.
No fractional shares will be issued upon exercise of the warrants.
However, we will pay to the warrantholder, in lieu of the issuance of any
fractional share which is otherwise issuable to the warrantholder, an amount in
cash based on the market value of the common stock on the last trading day prior
to the exercise date.
PURCHASE OPTION
We have agreed to sell to the representative of the underwriters an
option to purchase up to a total of 250,000 units at a per-unit price of $9.90.
The units issuable upon exercise of this option are identical to those offered
by this prospectus except that the warrants included in the option have an
exercise price of $5.25 (105% of the exercise price of the warrants included in
the units sold in the offering). For a more complete description of the purchase
option, see the section below entitled "Underwriting--Purchase Option."
DIVIDENDS
We have not paid any dividends on our common stock to date and do not
intend to pay dividends prior to the completion of a business combination. The
payment of dividends in the future will be contingent upon our revenues and
earnings, if any, capital requirements and general financial condition
subsequent to completion of a business combination. The payment of any dividends
subsequent to a business combination will be within the discretion of our then
board of directors. It is the present intention of our board of directors to
retain all earnings, if any, for use in our business operations and,
accordingly, our board does not anticipate declaring any dividends in the
foreseeable future.
45
OUR TRANSFER AGENT AND WARRANT AGENT
The transfer agent for our securities and warrant agent for our
warrants is Continental Stock Transfer & Trust Company, 17 Battery Place, New
York, New York 10004.
SHARES ELIGIBLE FOR FUTURE SALE
Immediately after this offering, we will have 6,250,000 shares of
common stock outstanding, or 7,000,000 shares if the underwriters'
over-allotment option is exercised in full. Of these shares, the 5,000,000
shares sold in this offering, or 5,750,000 shares if the over-allotment option
is exercised, will be freely tradable without restriction or further
registration under the Securities Act, except for any shares purchased by one of
our affiliates within the meaning of Rule 144 under the Securities Act. All of
the remaining 1,250,000 shares are restricted securities under Rule 144, in that
they were issued in private transactions not involving a public offering. None
of those will be eligible for sale under Rule 144 prior to April 2, 2005.
Notwithstanding this, all of those shares have been placed in escrow and will
not be transferable for a period of three years from the date of this prospectus
and will only be released prior to that date subject to certain limited
exceptions.
Rule 144
In general, under Rule 144 as currently in effect, a person who has
beneficially owned restricted shares of our common stock for at least one year
would be entitled to sell within any three-month period a number of shares that
does not exceed the greater of either of the following:
o 1% of the number of shares of common stock then outstanding, which
will equal 62,500 shares immediately after this offering (or
70,000 if the underwriters' exercise their over-allotment option);
and
o the average weekly trading volume of the common stock during the
four calendar weeks preceding the filing of a notice on Form 144
with respect to the sale.
Sales under Rule 144 are also limited by manner of sale provisions and
notice requirements and to the availability of current public information about
us.
Rule 144(k)
Under Rule 144(k), a person who is not deemed to have been one of our
affiliates at the time of or at any time during the three months preceding a
sale, and who has beneficially owned the restricted shares proposed to be sold
for at least two years, including the holding period of any prior owner other
than an affiliate, is entitled to sell their shares without complying with the
manner of sale, public information, volume limitation or notice provisions of
Rule 144.
SEC Position on Rule 144 Sales
The Securities and Exchange Commission has taken the position that
promoters or affiliates of a blank check company and their transferees, both
before and after a business
46
combination, would act as an "underwriter" under the Securities Act when
reselling the securities of a blank check company. Accordingly, the Securities
and Exchange Commission believes that those securities can be resold only
through a registered offering and that Rule 144 would not be available for those
resale transactions despite technical compliance with the requirements of Rule
144.
Registration Rights
The holders of our 1,250,000 issued and outstanding shares of common
stock on the date of this prospectus will be entitled to registration rights
pursuant to an agreement to be signed prior to or on the effective date of this
offering. The holders of the majority of these shares are entitled to make up to
two demands that we register these shares. The holders of the majority of these
shares can elect to exercise these registration rights at any time after the
date on which these shares of common stock are released from escrow. In
addition, these stockholders have certain "piggy-back" registration rights on
registration statements filed subsequent to the date on which these shares of
common stock are released from escrow. We will bear the expenses incurred in
connection with the filing of any such registration statements.
UNDERWRITING
In accordance with the terms and conditions contained in the
underwriting agreement, we have agreed to sell to each of the underwriters named
below, and each of the underwriters, for which EarlyBirdCapital is acting as
representative, have severally, and not jointly, agreed to purchase on a firm
commitment basis the number of units offered in this offering set forth opposite
their respective names below:
UNDERWRITERS NUMBER OF UNITS
------------ ---------------
EarlyBirdCapital, Inc.............................
Total....................................
========================
A copy of the underwriting agreement has been filed as an exhibit to
the registration statement of which this prospectus forms a part.
47
STATE BLUE SKY INFORMATION
We will offer and sell the units to retail customers only in Delaware,
the District of Columbia, Florida, Hawaii, Illinois, Maryland, New York and
Rhode Island. In New York and Hawaii, we have relied on exemptions from the
state registration requirements for transactions between an issuer and an
underwriter involving a firm-commitment underwritten offering. In the other
states, we have applied to have the units registered for sale and will not sell
the units in these states until such registration is effective. We also believe
that the units, from and after the effective date, and the common stock and
warrants comprising the units, once they become separately transferable, will be
eligible for sale on a secondary market basis in each of the following states
based upon the registration of the units, common stock and warrants in those
states or the availability of an applicable exemption from the state's
registration requirements:
o immediately in Alabama, Colorado, Delaware, the District of
Columbia, Florida, Georgia, Illinois, Kentucky, Maryland, New
York, Pennsylvania, Rhode Island and Wisconsin;
o commencing 90 days from the date of this prospectus in Iowa,
Maine, Missouri, Nevada, New Mexico; and
o commencing 180 days from the date of this prospectus in
Massachusetts.
Additionally, the units, from and after the effective date, and the
common stock and warrants comprising the units, once they become separately
transferable, will be eligible for sale on a secondary market basis in certain
states based on exemptions from such states' registration requirements as a
result of the National Securities Markets Improvement Act of 1996. The National
Securities Markets Improvement Act exempts from state registration requirements
certain secondary market trading transactions for issuers that file periodic and
annual reports under the Securities Exchange Act of 1934. However, under the
act, the states are able to continue to require notice filings and collect fees
with regard to these transactions. As of the date of this prospectus, we have
not determined in which states we will submit the required notice filing and
applicable fee to take advantage of this exemption.
We will amend this prospectus for the purpose of disclosing additional
states, if any, in which our securities will be eligible for resale in the
secondary trading market. If you are not an institutional investor, you may
purchase our securities in this offering or in any subsequent trading market
which may develop, only in the jurisdictions described above. Institutional
investors in every state except in Idaho and South Dakota may purchase the units
in this offering and in the secondary market pursuant to exemptions provided to
such entities under the Blue Sky laws of various states. The definition of an
"institutional investor" varies from state to state but generally includes
financial institutions, broker-dealers, banks, insurance companies and other
qualified entities.
PRICING OF SECURITIES
We have been advised by the representative that the underwriters
propose to offer the units to the public at the initial offering price set forth
on the cover page of this prospectus. They may allow some dealers concessions
not in excess of $___ per unit and the dealers may reallow a concession not in
excess of $____ per unit to other dealers.
48
Prior to this offering there has been no public market for any of our
securities. The public offering price of the units and the terms of the warrants
were negotiated between us and the representative. Factors considered in
determining the prices and terms of the units, including the common stock and
warrants underlying the units, include:
o the history and prospects of companies whose principal business is
the acquisition of other companies;
o prior offerings of those companies;
o our prospects for acquiring an operating business at attractive
values;
o our capital structure;
o an assessment of our management and their experience in
identifying operating companies;
o general conditions of the securities markets at the time of the
offering; and
o other factors as were deemed relevant.
However, although these factors were considered, the determination of our
offering price is more arbitrary than the pricing of securities for an operating
company in a particular industry since the underwriters are unable to compare
our financial results and prospects with those of public companies operating in
the same industry.
OVER-ALLOTMENT OPTION
We have also granted to the underwriters an option, exercisable during
the 45-day period commencing on the date of this prospectus, to purchase from us
at the offering price, less underwriting discounts and the non-accountable
expense allowance, up to an aggregate of 750,000 additional units for the sole
purpose of covering over-allotments, if any. The over- allotment option will
only be used to cover the net syndicate short position resulting from the
initial distribution. The underwriters may exercise that option if the
underwriters sell more units than the total number set forth in the table above.
If any units underlying the option are purchased, the underwriters will
severally purchase shares in approximately the same proportion as set forth in
the table above.
COMMISSIONS AND DISCOUNTS
The following table shows the public offering price, underwriting
discount to be paid by us to the underwriters and the proceeds, before expenses,
to us. This information assumes either no exercise or full exercise by the
underwriters of their over-allotment option.
49
PER UNIT WITHOUT OPTION WITH OPTION
-------- -------------- -----------
Public offering price................... $6.00 $30,000,000 $34,500,000
Discount................................ $0.36 $1,800,000 $2,070,000
Non Accountable Expense Allowance....... $0.18 $900,000 $1,035,000
Proceeds before expenses(1)............. $5.46 $27,300,000 $31,395,000
-----------
(1) The offering expenses are estimated at $530,000.
PURCHASE OPTION
We have agreed to sell to the representative, for $100, an option to
purchase up to a total of 250,000 units. The units issuable upon exercise of
this option are identical to those offered by this prospectus except that the
warrants included in the option have an exercise price of $5.25 (105% of the
exercise price of the warrants included in the units sold in the offering). This
option is exercisable at $9.90 per unit commencing on the later of the
consummation of a business combination or one year from the date of this
prospectus and expiring five years from the date of this prospectus. The option
may not be sold, transferred, assigned, pledged or hypothecated for a one-year
period following the date of this prospectus. However, the option may be
transferred to any underwriter and selected dealer participating in the offering
and their bona fide officers or partners. Although the purchase option and its
underlying securities have been registered under the registration statement of
which this prospectus forms a part of, the option grants to holders demand and
"piggy back" rights for periods of five and seven years, respectively, from the
date of this prospectus with respect to the registration under the Securities
Act of the securities directly and indirectly issuable upon exercise of the
option. We will bear all fees and expenses attendant to registering the
securities, other than underwriting commissions which will be paid for by the
holders themselves. The exercise price and number of units issuable upon
exercise of the option may be adjusted in certain circumstances including in the
event of a stock dividend, or our recapitalization, reorganization, merger or
consolidation. However, the option will not be adjusted for issuances of common
stock at a price below its exercise price.
WARRANT SOLICITATION FEE
We have engaged EarlyBirdCapital, the representative of the
underwriters, on a non-exclusive basis, as our agent for the solicitation of the
exercise of the warrants. To the extent not inconsistent with the guidelines of
the NASD and the rules and regulations of the SEC, we have agreed to pay the
representative for bona fide services rendered a commission equal to 5% of the
exercise price for each warrant exercised more than one year after the date of
this prospectus if the exercise was solicited by the underwriters. In addition
to soliciting, either orally or in writing, the exercise of the warrants, the
representative's services may also include disseminating information, either
orally or in writing, to warrantholders about us or the market for our
securities, and assisting in the processing of the exercise of warrants. No
compensation will be paid to the representative upon the exercise of the
warrants if:
o the market price of the underlying shares of common stock is lower
than the exercise price;
50
o the holder of the warrants has not confirmed in writing that the
underwriters solicited the exercise;
o the warrants are held in a discretionary account;
o the warrants are exercised in an unsolicited transaction; or
o the arrangement to pay the commission is not disclosed in the
prospectus provided to warrantholders at the time of exercise.
REGULATORY RESTRICTIONS ON PURCHASE OF SECURITIES
Rules of the SEC may limit the ability of the underwriters to bid for
or purchase our securities before the distribution of the securities is
completed. However, the underwriters may engage in the following activities in
accordance with the rules:
o Stabilizing Transactions. The underwriters may make bids or
purchases for the purpose of pegging, fixing or maintaining the
price of our securities, so long as stabilizing bids do not exceed
a specified maximum.
o Over-Allotments and Syndicate Coverage Transactions. The
underwriters may create a short position in our securities by
selling more of our securities than are set forth on the cover
page of this prospectus. If the underwriters create a short
position during the offering, the representative may engage in
syndicate covering transactions by purchasing our securities in
the open market. The representative may also elect to reduce any
short position by exercising all or part of the over-allotment
option.
o Penalty Bids. The representative may reclaim a selling concession
from a syndicate member when the common stock originally sold by
the syndicate member is purchased in a stabilizing or syndicate
covering transaction to cover syndicate short positions.
Stabilization and syndicate covering transactions may cause the price
of the securities to be higher than they would be in the absence of these
transactions. The imposition of a penalty bid might also have an effect on the
prices of the securities if it discourages resales of the securities.
Neither we nor the underwriters makes any representation or prediction
as to the effect that the transactions described above may have on the prices of
the securities. These transactions may occur on the OTC Bulletin Board, in the
over-the-counter market or on any trading market. If any of these transactions
are commenced, they may be discontinued without notice at any time.
51
OTHER TERMS
We have granted the representative the right to have its designee
present at all meetings of our board of directors for a period of five years
from the date of this prospectus. The designee will be entitled to the same
notices and communications sent by us to our directors and to attend directors'
meetings, but will not have voting rights. The representative has not named a
designee as of the date of this prospectus.
Although they are not obligated to do so, any of the underwriters may
introduce us to potential target businesses or assist us in raising additional
capital, as needs may arise in the future, but there are no preliminary
agreements or understandings between any of the underwriters and any potential
targets. We are not under any contractual obligation to engage any of the
underwriters to provide any services for us after this offering, but if we do,
we may pay the underwriters a finder's fee that would be determined at that time
in an arm's length negotiation where the terms would be fair and reasonable to
each of the interested parties; provided that no agreement will be entered into
and no fee will be paid prior to the one year anniversary of the date of this
prospectus.
All of our existing stockholders have agreed that, until March 18,
2007, they will not negotiate with or engage any investment banking firm or
underwriter other than EarlyBirdCapital with respect to any public financing for
any company with a business plan similar to ours with which they are affiliated.
INDEMNIFICATION
We have agreed to indemnify the underwriters against some liabilities,
including civil liabilities under the Securities Act, or to contribute to
payments the underwriters may be required to make in this respect.
LEGAL MATTERS
The validity of the securities offered in this prospectus are being
passed upon for us by Graubard Miller, New York, New York. Bingham McCutchen
LLP, New York, New York, is acting as counsel for the underwriters in this
offering.
EXPERTS
The financial statements included in this prospectus and in the
registration statement have been audited by BDO Seidman, LLP, independent
certified public accountants, to the extent and for the period set forth in
their report (which contains an explanatory paragraph regarding our ability to
continue as a going concern) appearing elsewhere in this prospectus and in the
registration statement. The financial statements and the report of BDO Seidman,
LLP are included in reliance upon their report given upon the authority of BDO
Seidman, LLP as experts in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on Form S-1, which
includes exhibits, schedules and amendments, under the Securities Act, with
respect to this offering of our
52
securities. Although this prospectus, which forms a part of the registration
statement, contains all material information included in the registration
statement, parts of the registration statement have been omitted as permitted by
rules and regulations of the SEC. We refer you to the registration statement and
its exhibits for further information about us, our securities and this offering.
The registration statement and its exhibits, as well as our other reports filed
with the SEC, can be inspected and copied at the SEC's public reference room at
450 Fifth Street, N.W., Washington, D.C. 20549-1004. The public may obtain
information about the operation of the public reference room by calling the SEC
at 1-800-SEC-0330. In addition, the SEC maintains a web site at
http://www.sec.gov which contains the Form S-1 and other reports, proxy and
information statements and information regarding issuers that file
electronically with the SEC.
53
ARPEGGIO ACQUISITION CORPORATION
(A CORPORATION IN THE DEVELOPMENT STAGE)
INDEX TO FINANCIAL STATEMENTS
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS F-2
FINANCIAL STATEMENTS
Balance sheet F-3
Statement of cash flows F-4
NOTES TO FINANCIAL STATEMENTS F-5 - F-8
F-1
Report of Independent Certified Public Accountants
To the Directors and Shareholders
Arpeggio Acquisition Corporation
New York, New York
We have audited the accompanying balance sheet of Arpeggio Acquisition
Corporation (a corporation in the development stage) as of April 21, 2004, and
the related statement of cash flows for the period April 2, 2004 (inception) to
April 21, 2004. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Arpeggio Acquisition
Corporation as of April 21, 2004, and the related statement of cash flows for
the period April 2, 2004 (inception) to April 21, 2004 in conformity with
accounting principles generally accepted in the United States of America.
The accompanying financial statements have been prepared assuming Arpeggio
Acquisition Corporation will continue as a going concern. The Company has a
working capital deficit whereby current liabilities exceed current assets
(cash), has no operations and as discussed in Note 2, is in the process of
raising capital through a Proposed Offering. This raises substantial doubt about
the Company's ability to continue as a going concern. The financial statements
do not include any adjustments that might result from the outcome of this
uncertainty.
/s/ BDO Seidman, LLP
--------------------
BDO Seidman, LLP
New York, NY
April 21, 2004
F-2
ARPEGGIO ACQUISITION CORPORATION
(A CORPORATION IN THE DEVELOPMENT STAGE)
BALANCE SHEET
================================================================================
April 21, 2004
--------------------------------------------------------------------------------
ASSETS
CURRENT ASSETS - CASH $ 152
DEFERRED REGISTRATION COSTS (NOTE 3) 94,848
--------------------------------------------------------------------------------
TOTAL ASSETS $ 95,000
--------------------------------------------------------------------------------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES - NOTE PAYABLE, STOCKHOLDER (NOTE 4) $ 70,000
COMMITMENT (NOTE 5)
STOCKHOLDERS' EQUITY (NOTES 1, 2 AND 6)
Preferred stock, $.0001 par value
Authorized 1,000,000 shares; none issued
Common stock, $.0001 par value
Authorized 30,000,000 shares
Issued and outstanding 1,250,000 shares 125
Additional paid-in capital 24,875
--------------------------------------------------------------------------------
TOTAL STOCKHOLDERS' EQUITY 25,000
--------------------------------------------------------------------------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 95,000
--------------------------------------------------------------------------------
See accompanying notes to financial statements.
F-3
ARPEGGIO ACQUISITION CORPORATION
(A CORPORATION IN THE DEVELOPMENT STAGE)
STATEMENT OF CASH FLOWS
================================================================================
April 2, 2004 (inception) to April 21, 2004
------------------------------------------------------------------------------------------------------------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from note payable, stockholder $ 70,000
Proceeds from issuance of common stock to initial stockholders 25,000
Deferred registration costs (94,848)
------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED BY FINANCING ACTIVITIES, NET INCREASE IN CASH 152
------------------------------------------------------------------------------------------------------------
CASH AT BEGINNING OF PERIOD --
------------------------------------------------------------------------------------------------------------
CASH AT END OF PERIOD $ 152
------------------------------------------------------------------------------------------------------------
See accompanying notes to financial statements.
F-4
ARPEGGIO ACQUISITION CORPORATION
(A CORPORATION IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS
================================================================================
1. ORGANIZATION Arpeggio Acquisition Corporation ("Company")
AND was incorporated in Delaware on April 2, 2004
BUSINESS as a blank check company, the objective of
OPERATIONS which is to acquire an operating business in
the United States or Canada. The Company's
initial stockholders purchased 1,250,000
common shares, $.0001 par value, for $25,000
on April 2, 2004. At April 21, 2004, the
Company had not yet commenced any operations
and, accordingly, a statement of operations
has not been presented. All activity through
April 21, 2004 relates to the Company's
formation. The Company has selected December
31, as its fiscal year-end.
The Company's ability to commence operations
is contingent upon obtaining adequate
financial resources through a proposed public
offering ("Proposed Offering") which is
discussed in Note 2. The Company's management
has broad discretion with respect to the
specific application of the net proceeds of
this Proposed Offering, although
substantially all of the net proceeds of this
Proposed Offering are intended to be
generally applied toward consummating a
business combination with a operating
business in the United States or Canada
("Business Combination"). Furthermore, there
is no assurance that the Company will be able
to successfully effect a Business
Combination. Upon the closing of the Proposed
Offering, at least ninety percent (90%) of
the net proceeds, after payment of certain
amounts to the underwriter, will be held in a
trust account ("Trust Fund") and invested in
government securities until the earlier of
(i) the consummation of its first Business
Combination or (ii) liquidation of the
Company. The remaining proceeds may be used
to pay for business, legal and accounting due
diligence on prospective acquisitions and
continuing general and administrative
expenses. The Company, after signing a
definitive agreement for the acquisition of a
target business, will submit such transaction
for stockholder approval. In the event that
stockholders owning 20% or more of the
outstanding stock excluding, for this
purpose, those persons who were stockholders
prior to the Proposed Offering, vote against
the Business Combination, the Business
F-5
ARPEGGIO ACQUISITION CORPORATION
(A CORPORATION IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS
================================================================================
Combination will not be consummated. All of
the Company's stockholders prior to the
Proposed Offering, including all of the
officers and directors of the Company
("Initial Stockholders"), have agreed to vote
their 1,250,000 founding shares of common
stock in accordance with the vote of the
majority in interest of all other
stockholders of the Company ("Public
Stockholders") with respect to any Business
Combination. After consummation of the
Company's first Business Combination, all of
these voting safeguards will no longer be
applicable.
With respect to the first Business
Combination which is approved and
consummated, any Public Stockholder who voted
against the Business Combination may demand
that the Company redeem his shares. The per
share redemption price will equal the amount
in the Trust Fund as of the record date for
determination of stockholders entitled to
vote on the Business Combination divided by
the number of shares of common stock held by
Public Stockholders at the consummation of
the Proposed Offering. Accordingly, Public
Stockholders holding approximately 19.99% of
the aggregate number of shares owned by all
Public Stockholders may seek redemption of
their shares in the event of a Business
Combination. Such Public Stockholders are
entitled to receive their per share interest
in the Trust Fund computed without regard to
the shares held by Initial Stockholders.
The Company's Certificate of Incorporation
provides for mandatory liquidation of the
Company, without stockholder approval, in the
event that the Company does not consummate a
Business Combination within 18 months from
the date of the consummation of the Proposed
Offering, or 24 months from the consummation
of the Proposed Offering if certain extension
criteria have been satisfied. In the event of
liquidation, it is likely that the per share
value of the residual assets remaining
available for distribution (including Trust
Fund assets) will be less than the initial
public offering price per share in the
Proposed Offering (assuming no value is
attributed to the Warrants contained in the
Units to be offered in the Proposed Offering
discussed in Note 2).
F-6
ARPEGGIO ACQUISITION CORPORATION
(A CORPORATION IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS
================================================================================
2. PROPOSED The Proposed Offering calls for the Company
OFFERING to offer for public sale up to 5,000,000
units ("Units"). Each Unit consists of one
share of the Company's common stock, $.0001
par value, and two Redeemable Common Stock
Purchase Warrants ("Warrants"). Each Warrant
will entitle the holder to purchase from the
Company one share of common stock at an
exercise price of $5.00 commencing the later
of the completion of a business combination
with a target business or one year from the
effective date of the Proposed Offering and
expiring four years from the date of the
prospectus. The Warrants will be redeemable
at a price of $.01 per Warrant upon 30 days
notice after the Warrants become exercisable,
only in the event that the last sale price of
the common stock is at least $8.50 per share
for any 20 trading days within a 30 trading
day period ending on the third day prior to
date on which notice of redemption is given.
3. DEFERRED REGISTRATION As of April 21, 2004, the Company has
COSTS incurred deferred registration costs of
$94,848 relating to expenses incurred in
connection to the Proposed Offering. Upon
consummation of this Proposed Offering, the
deferred registration costs will be charged
to equity. Should the Proposed Offering prove
to be unsuccessful, these deferred costs as
well as additional expenses to be incurred,
will be charged to operations.
4. NOTE PAYABLE, STOCKHOLDER The Company issued a $70,000 unsecured
promissory note to a stockholder on April 14,
2004. The note is non-interest bearing and is
payable on the earlier of April 14, 2005 or
the consummation of the Company's initial
public offering.
5. COMMITMENT The Company presently occupies office space
provided by an affiliate of an Initial
Stockholder. Such affiliate has agreed that,
until the acquisition of a target business by
the Company, it will make such office space,
as well as certain office and secretarial
services, available to the Company, as may be
required by the Company from time to time.
The Company has agreed to pay this affiliate
$7,500 per month for such services commencing
on the effective date of the Proposed
Offering.
F-7
ARPEGGIO ACQUISITION CORPORATION
(A CORPORATION IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS
================================================================================
6. PREFERRED STOCK The Company is authorized to issue 1,000,000
shares of preferred stock with such
designations, voting and other rights and
preferences as may be determined from time to
time by the Board of Directors.
F-8
================================================================================
Until _______________, 2004, all dealers that effect transactions in
these securities, whether or not participating in this offering, may be required
to deliver a prospectus. This is in addition to the dealers' obligation to
deliver a prospectus when acting as underwriters and with respect to their
unsold allotments or subscriptions.
No dealer, salesperson or any other person is authorized to give any
information or make any representations in connection with this offering other
than those contained in this prospectus and, if given or made, the information
or representations must not be relied upon as having been authorized by us. This
prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any security other than the securities offered by this prospectus, or an
offer to sell or a solicitation of an offer to buy any securities by anyone in
any jurisdiction in which the offer or solicitation is not authorized or is
unlawful.
TABLE OF CONTENTS
Page
Prospectus Summary............................................................1
Summary Financial Data........................................................7
Risk Factors..................................................................8
Use of Proceeds..............................................................18
Dilution.....................................................................20
Capitalization...............................................................21
Management's Discussion and Analysis
of Financial Condition and Results of Operations.............................22
Proposed Business............................................................24
Management...................................................................34
Principal Stockholders.......................................................39
Certain Transactions.........................................................41
Description of Securities....................................................42
Underwriting.................................................................47
Legal Matters................................................................52
Experts......................................................................52
Where You Can Find Additional Information....................................53
Index to Financial Statements...............................................F-1
$30,000,000
ARPEGGIO ACQUISITION CORPORATION
5,000,000 UNITS
PROSPECTUS
EARLYBIRDCAPITAL, INC.
__________ __, 2004
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by us in connection with the offering
described in this registration statement (other than the underwriting discount
and commissions and the Representative's non-accountable expense allowance) will
be as follows:
Initial Trustees' fee....................................................... $ 1,000.00(1)
SEC Registration Fee........................................................ 12,302.59
NASD filing fee............................................................. 10,210.01
Accounting fees and expenses................................................ 25,000.00
Printing and engraving expenses............................................. 35,000.00
Directors & Officers liability insurance premiums........................... 115,000.00 (2)
Legal fees and expenses (including blue sky services and expenses).......... 350,000.00
Miscellaneous............................................................... 96,487.40
--------------
Total.......................................................... $ 645,000.00
(1) In addition to the initial acceptance fee that is charged by Continental
Stock Transfer & Trust Company, as trustee, the registrant will be required to
pay to Continental Stock Transfer & Trust Company annual fees of $3,000 for
acting as trustee, $4,800 for acting as transfer agent of the registrant's
common stock, $2,400 for acting as warrant agent for the registrant's warrants
and $1,800 for acting as escrow agent.
(2) This amount represents the approximate amount of Director and Officer
liability insurance premiums the registrant anticipates paying following the
consummation of its initial public offering and until it consummates a business
combination.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our certificate of incorporation provides that all directors, officers,
employees and agents of the registrant shall be entitled to be indemnified by us
to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law.
Section 145 of the Delaware General Corporation Law concerning
indemnification of officers, directors, employees and agents is set forth below.
"Section 145. Indemnification of officers, directors, employees and
agents; insurance.
(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
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(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees)."
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers, and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment of expenses incurred or paid by a director, officer or
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controlling person in a successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, we will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to the court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
Paragraph B of Article Eighth of our certificate of incorporation
provides:
"The Corporation, to the full extent permitted by Section 145 of the
GCL, as amended from time to time, shall indemnify all persons whom it may
indemnify pursuant thereto. Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding for which such officer or director may
be entitled to indemnification hereunder shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized hereby."
Pursuant to the Underwriting Agreement filed as Exhibit 1.1 to this
Registration Statement, we have agreed to indemnify the Underwriter and the
Underwriter has agreed to indemnify us against certain civil liabilities that
may be incurred in connection with this offering, including certain liabilities
under the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
(a) During the past three years, we sold the following shares of common
stock without registration under the Securities Act:
Stockholders Number of Shares
------------ ----------------
Eric S. Rosenfeld 900,000
Rosenfeld 1991 Children's Trust 100,000
Leonard B. Schlemm 50,000
Colin D. Watson 50,000
James G. Dinan 50,000
Jon Bauer 50,000
Arnaud Ajdler 50,000
Such shares were issued in April 2004 in connection with our
organization pursuant to the exemption from registration contained in Section
4(2) of the Securities Act as they were sold to sophisticated, wealthy
individuals. The shares issued to the individuals above were sold at an average
purchase price of $0.02 per share.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Description
----------- -----------
1.1 Form of Underwriting Agreement.
1.2 Form of Selected Dealers Agreement.
3.1 Certificate of Incorporation.
3.2 By-laws.
4.1 Specimen Unit Certificate.
4.2 Specimen Common Stock Certificate.
4.3 Specimen Warrant Certificate.
4.4 Form of Unit Purchase Option to be granted to Representative.
4.5 Form of Warrant Agreement between Continental Stock Transfer &
Trust Company and the Registrant.
5.1 Opinion of Graubard Miller.
10.1 Letter Agreement among the Registrant, EarlyBirdCapital, Inc.
and Eric S. Rosenfeld.
10.2 Letter Agreement among the Registrant, EarlyBirdCapital, Inc.
and Rosenfeld 1991 Children's Trust.
10.3 Letter Agreement among the Registrant, EarlyBirdCapital, Inc.
and Leonard B. Schlemm.
10.4 Letter Agreement among the Registrant, EarlyBirdCapital, Inc.
and Colin D. Watson.
10.5 Letter Agreement among the Registrant, EarlyBirdCapital, Inc.
and James G. Dinan.
10.6 Letter Agreement among the Registrant, EarlyBirdCapital, Inc.
and Jon Bauer.
10.7 Letter Agreement among the Registrant, EarlyBirdCapital, Inc.
and Arnaud Ajdler.
10.8 Form of Investment Management Trust Agreement between
Continental Stock Transfer & Trust Company and the Registrant.
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10.9 Form of Stock Escrow Agreement between the Registrant,
Continental Stock Transfer & Trust Company and the Initial
Stockholders.
10.10 Form of Letter Agreement between Crescendo Advisors II LLC and
Registrant regarding administrative support.
10.11 Promissory Note, dated April 14, 2004, in the principal amount
of $70,000 issued to Eric S. Rosenfeld.
10.12 Form of Registration Rights Agreement among the Registrant and
the Initial Stockholders.
10.13 Warrant Purchase Agreement among Eric S. Rosenfeld and
EarlyBirdCapital, Inc.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Graubard Miller (included in Exhibit 5.1).
24 Power of Attorney (included on signature page of this
Registration Statement).
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
i. To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
ii. To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
iii. To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
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(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned hereby undertakes to provide to the underwriter at
the closing specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on the 23rd day of April, 2004.
ARPEGGIO ACQUISITION CORPORATION
By: /s/ Eric S. Rosenfeld
---------------------
Eric S. Rosenfeld
Chairman of the Board (Principal Executive Officer),
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Eric S. Rosenfeld and Arnaud Ajdler his
true and lawful attorney-in-fact, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments including post-effective amendments to
this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact or
his substitute, each acting alone, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Position Date
---- -------- ----
/s/ Eric S. Rosenfeld Chairman of the Board (Principal April 23,2004
--------------------- executive officer), Chief Executive
Eric S. Rosenfeld Officer and President
/s/ Arnaud Ajdler Chief Financial Officer (Principal April 23, 2004
----------------- financial and accounting officer),
Arnaud Ajdler Secretary and Director
/s/ Leonard B. Schlemm Director April 23, 2004
----------------------
Leonard B. Schlemm
/s/ Colin D. Watson Director April 23, 2004
-------------------
Colin D. Watson
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/s/ James G. Dinan Director April 23, 2004
------------------
James G. Dinan
/s/ Jon Bauer Director April 23, 2004
-------------
Jon Bauer
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