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| RAK > SEC Filings for RAK > Form 10-Q on 13-Nov-2008 | All Recent SEC Filings |
13-Nov-2008
Quarterly Report
This Quarterly Report on Form 10-Q includes forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. We have based
these forward-looking statements on our current expectations and projections
about future events. These forward-looking statements are subject to known and
unknown risks, uncertainties and assumptions about us that may cause our actual
results, levels of activity, performance or achievements to be materially
different from any future results, levels of activity, performance or
achievements expressed or implied by such forward-looking statements. In some
cases, you can identify forward-looking statements by terminology such as "may,"
"should," "could," "would," "expect," "plan," "anticipate," "believe,"
"estimate," "continue," or the negative of such terms or other similar
expressions. Factors that might cause or contribute to such a discrepancy
include, but are not limited to, those described in our other Securities and
Exchange Commission filings.
Overview
The Company was formed on April 17, 2006 for the purpose of effecting a merger, capital stock exchange, asset acquisition or other similar business combination with one or more operating businesses.
On February 1, 2007, we completed our initial public offering or IPO of 15,600,000 units, and on February 16, 2007, we completed the sale of an additional 2,340,000 units that were subject to the underwriter's over-allotment option. Each Unit consists of one share of our common stock and two warrants entitling the holder to purchase one share of our common stock at a price of $5.00. The public offering price of each unit was $6.00, and we generated gross proceeds of $107,640,000 in the IPO (including proceeds from the exercise of the over-allotment option). Of the gross proceeds: (i) we deposited $102,047,840 into a trust account, or the Trust Account, at JPMorgan Chase NY Bank, maintained by Continental Stock Transfer & Trust Company as trustee, which included $3,051,240 of deferred underwriting fees; (ii) the underwriters received $4,811,160 in underwriting fees (excluding the deferred underwriting fees); and (iii) we retained $781,000 for offering expenses. In addition, we deposited into the Trust Account $2,100,000 that we received from the issuance and sale of 4,666,667 warrants to RAC Partners LLC, an entity controlled by Barry W. Florescue, our chairman and chief executive officer, and Charles Miersch and Morton Farber, directors on January 29, 2007.
We intend to utilize cash derived from the proceeds of our initial public 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:
• may significantly reduce the equity interest of our stockholders;
• may subordinate the rights of holders of common stock if we issue preferred stock with rights senior to those afforded to our common stock;
• 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
• may adversely affect prevailing market prices for our common stock.
• default and foreclosure on our assets if our operating revenues after a business combination are insufficient to pay our debt obligations;
• acceleration of our obligations to repay the indebtedness even if we have made all principal and interest payments when due if the debt security contains covenants that required the maintenance of certain financial ratios or reserves and we breach any such covenant without a waiver or renegotiation of that covenant;
• our immediate payment of all principal and accrued interest, if any, if the debt security is payable on demand; and
• our inability to obtain additional financing, if necessary, if the debt security contains covenants restricting our ability to obtain additional financing while such security is outstanding.
We intend to use substantially all of the net proceeds of our IPO (excluding deferred underwriting discounts and commissions) to acquire a target business. To the extent that our capital stock is used in whole or in part as consideration to effect a business combination, the remaining proceeds held in the trust account as well as any other net proceeds not expended will be used as working capital to finance the operations of the target business. Such working capital funds could be used in a variety of ways including continuing or expanding the target business operations, for strategic acquisitions and for marketing, research and development of existing or new products. Such funds could also be used to repay any operating expenses or finders' fees which we had incurred prior to the completion of a business combination if the funds available to us outside of the trust account were insufficient to cover such expenses.
Entry Into Definitive Merger Agreement
On September 13, 2008, we entered into an Agreement and Plan of Merger (the "Merger Agreement") by and among the Company, FCI Merger Sub I, Inc., our wholly owned subsidiary ("Merger Sub I"), FCI Merger Sub II, LLC, our wholly owned subsidiary ("Merger Sub II"), First Communications, Inc. ( "First Communications") and The Gores Group LLC, solely in its capacity as the exclusive representative of the stockholders of First Communications ("Stockholders' Representative"), which, among other things, provides for the merger of Merger Sub I with and into First Communications, with First Communications continuing as the surviving corporation ("First Merger"), and First Communications immediately thereafter merging with and into Merger Sub II, with Merger Sub II continuing as the surviving limited liability company ("Second Merger," and together with the First Merger, the "Merger").. If the Merger is consummated, First Communications shareholders will receive an aggregate of 18,460,000 shares of our common stock and the right to receive up to an aggregate of an additional (i) 9,950,000 shares of our common stock if certain conditions relating to EBITDA are satisfied (as further described in the following paragraph) and (ii) 8,500,000 shares of our common stock if the last sales price of our common stock has been at least $8.50 per share on 20 trading days within any 30 trading day period ending on January 28, 2011 ("Warrant Condition"). In addition, holders of First Communications' preferred stock would receive an aggregate of $15.0 million in cash consideration, together with an accrued dividend of 12% per annum, pro rated and calculated from September 28, 2008, in exchange for their shares.
9,950,000 shares of our common stock will be distributed to First Communications' stockholders if, for any fiscal quarter from September 13, 2008 through June 30, 2011, First Communications or the post-merger combined company has an annualized adjusted EBITDA equal to or greater than the EBITDA target. EBITDA is defined as income before provision for income taxes, plus interest expense, less interest income, plus depreciation and amortization, plus amortization of intangible assets, plus any expenses arising solely from the Merger charged to income in such fiscal quarter, and will be calculated for an applicable fiscal quarter based on the unaudited reviewed financial statements of First Communications or the post-merger combined company. The EBITDA target is $50 million plus the sum of any target increases, which will be 1/7 of the aggregate consideration paid by First Communications prior to the Merger or the post-merger combined company, as applicable, for any acquisition consummated between September 13, 2008 and June 30, 2011, other than the acquisition of GCI Globalcom Holdings, Inc. ("Globalcom"), a Chicago based telecom company acquired by First Communications on October 1, 2008. In determining whether the EBITDA Condition has been satisfied for the fiscal quarter during which such acquisition is consummated, the target increase will be 1/7 of such aggregate consideration multiplied by a fraction (A) the numerator of which shall be the number of days beginning on the date of the consummation of such acquisition and ending on the last day of such fiscal quarter and (B) the denominator of which shall be the total number of days in such fiscal quarter.
If the EBITDA Condition is not satisfied by June 30, 2011, then we and the Stockholders' Representative will deliver joint written instructions to the escrow agent to release the remaining shares held in escrow pursuant to the EBITDA Condition to us on August 31, 2011 and such securities will be cancelled.
First Communications Warrants
As of September 1, 2008, First Communications had the following outstanding:
• warrants to purchase a total of 5,333,333 shares of First Communications common stock at an exercise price of $0.05 per share expiring on July 2, 2012 ("T1 Warrants");
• warrants to purchase a total of 8,000,000 shares of First Communications common stock at an exercise price of $7.50 per share and an expiration date of three years following the redemption of all of the First Communications Series A Preferred Stock ("Series A Preferred Stock") held by the holder of such warrant ("T2 Warrants"); and
• warrants to purchase a total of 2,000,000 shares of First Communications common stock at an exercise price of $7.50 per share and an expiration date of three years following the redemption of all of the Series A Preferred Stock ("T3 Warrants").
Each of the holders of the T1 Warrants has agreed pursuant to a separate agreement irrevocably to make a cashless exercise of their T1 Warrants, immediately prior to and conditionally upon, the closing of the Merger. First Communications common stock will have a fair market value of $5.00 for purposes of this cashless exercise. Each share of First Communications common stock which a holder of a T1 warrant receives upon the exercise of the T1 Warrants will be converted into the right to receive the same merger consideration as the First Communications stockholders. An aggregate of 3,028,661 shares of our common stock will be issued to the holders of T1 Warrants. Additionally, they will be eligible to receive their proportionate share of any shares issued pursuant to the satisfaction of the Warrant Condition and the EBITDA Condition, which are described above.
Certain holders of the T2 Warrants and T3 Warrants have entered into exchange agreements pursuant to which they will receive a new warrant entitling them to receive with respect to each share of First Communications common stock for which a T2 Warrant or T3 Warrant is exercisable (A) the right to acquire 0.25 shares of our common stock exercisable at $9.00 per share expiring on January 28, 2011 for a total number of new warrants not to exceed 2,500,000 in the aggregate and (B) the right to receive 1/10th of a share of our common stock upon the satisfaction of the Warrant Condition for a total number of shares of our common stock not to exceed 1,000,000 in the aggregate. We will deposit into the escrow account up to 1,000,000 shares of its common stock to satisfy the Warrant Condition obligation to the T2 and T3 Warrant Holders. In the event that Warrant Condition is not satisfied by January 28, 2011, then on January 31, 2011, all the shares deposited into the escrow account to will be released to us and cancelled.
We anticipate that all T2 Warrant Holders will enter into the exchange agreement. Under the Merger Agreement, First Communications is obligated to use its reasonable efforts to cause all remaining holders of the T3 Warrants who have not previously exercised their T3 Warrants, to exercise and exchange these warrants on the same terms and conditions as the exercising holders pursuant to the exchange agreement. To the extent such holders still do not exercise their rights, such T3 Warrants will remain outstanding in accordance with their terms. As all of the shares of Series A Preferred Stock are being redeemed upon consummation of the Merger, any T3 warrants remaining outstanding after the Merger will expire three years from the date of the Merger.
We and First Communications have agreed to operate in the ordinary course and to refrain from taking certain material prohibited actions without obtaining the other party's prior written consent (which shall not be unreasonably withheld) until the consummation of the Merger. Until the termination of the Merger Agreement or the consummation of the Merger, the parties have agreed not to encourage, solicit, initiate, engage or participate in negotiations regarding an alternate transaction. The parties have agreed to use commercially reasonable efforts to consummate the transaction, including commercially reasonable efforts by us to obtain the requisite stockholder approval. We and First Communications will provide to each other reasonable access to their properties, books, records, advisors, accountants, counsel and other representatives and to all information reasonably requested by each other.
We have filed a proxy statement/prospectus with the U.S. Securities and Exchange Commission for the purpose of (i) soliciting proxies from our stockholders for the purpose of obtaining the requisite approval of the Merger Agreement and the transactions contemplated thereby at a meeting of our stockholders to be called and held for such purpose and (ii) registering the shares to be issued to First Communication's security holders in connection with the Merger. We expect that a special stockholders meeting to vote on the Merger and the related proposals will be scheduled before January 29, 2009.
Our obligations, on the one hand, and First Communications' obligations, on the
other hand, to consummate the transaction are subject to the following closing
conditions: (i) we shall have obtained the approval of our stockholders with
respect to the transaction, (ii) holders of less than 20% of our common stock
shall have exercised their rights to convert their shares into a pro rata share
of the aggregate amount then on deposit in the trust account, (iii) the
expiration of the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, (iv) no statute, rule, regulation, decree, injunction
or order of any governmental entity which prohibits the consummation of the
transaction shall have been enacted, issued or entered, (v) the accuracy of
representations and warranties of the other parties, (vi) performance and
compliance by the other parties with their respective agreements and covenants,
and (vii) the execution of related transaction agreements. In addition, the
obligation of us and First Communications to consummate the transaction is also
subject to (x) an absence of a material adverse effect on either party and
(b) us having made appropriate arrangements reasonably satisfactory to First
Communications to have the trust account (which shall contain no less than $81
million) disbursed to us and First Communications upon the closing.
Termination
The Merger Agreement may be terminated, among other reasons, at any time
prior to Closing:
• by mutual written consent of us and First Communications;
• by either us or First Communications if the Merger is not consummated on or before January 29, 2009;
• by either us or First Communications if a governmental authority has enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order, in each case, which has become final and non-appealable, and which permanently restrains, enjoins or otherwise prohibits the Merger;
• by either us or First Communications if, at our special meeting (including any adjournments thereof), the Merger shall fail to be approved and adopted by the affirmative vote of the holders of Renaissance common stock required under our amended and restated certificate of incorporation, or the holders of 20% or more of our public shares outstanding as of the record date of our special meeting exercise their rights to convert the shares of our common stock held by them into cash in accordance with our amended and restated certificate of incorporation; or
• by either us or First Communications, if such party is not in material breach of its obligations under the Merger Agreement and there has been a material breach of the representations and warranties, covenants or agreements by the other party and such breach has not been cured within 30 days after written notice to the breaching party, if curable.
The foregoing summary of the Merger Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the reference to the Merger Agreement, a copy of which was filed as Exhibit 10.1 in our Current Report on Form 8-K filed on September 17, 2008, which is incorporated herein by reference.
For additional information about the Merger, please see our preliminary registration statement on Form S-4, which was filed with the Securities and Exchange Commission on October 20, 2008.
Through September 30, 2008, our efforts have been limited to organizational activities, activities relating to our initial public offering, activities relating to identifying and evaluating prospective acquisition candidates and activities relating to general corporate matters; we have neither engaged in any operations nor generated any revenues, other than interest income earned on the proceeds of our private placement and initial public offering.
Net income (loss) totaled $277,904, ($727,950), $1,432,797, ($233,642) and $2,066,218 for the three months ended September 30, 2007 and September 30, 2008, for the nine months ended September 30, 2007 and September 30, 2008 and for the period from inception to September 30, 2008, respectively. The decrease in net income for the three months ended September 30, 2008 versus the three months ended September 30, 2007 was primarily due to the Company's transferring of its trust account assets from money market funds invested in various short term credits to United States Treasuries, which had a comparatively lower yield.
Our operating expenses totaled $466,888, $994,357, $761,264, $1,323,749 and $2,173,305 for the three months ended September 30, 2007 and September 30, 2008, for the nine months ended September 30, 2007 and September 30, 2008 and for the period from inception to September 30, 2008, respectively.
We had net interest income earned on marketable securities and held in the trust account of $1,268,684, $407,398, $2,788,458, $1,676,380, and $5,790,312, for the three months ended September 30, 2007 and September 30, 2008, for the nine months ended September 30, 2007 and September 30, 2008 and for the period from inception to September 30, 2008, respectively. Interest income, after $1,875,000, which has been released to us, excludes earnings on funds held in our trust account associated with common stock subject to possible conversion and, except for amounts equal to any taxes payable by us relating to such interest earned, will not be released from the Trust Account until the earlier of the completion of a business combination or the expiration of the time period during which we may complete a business combination. After deduction of the amount related to our income taxes payable on the interest, approximately $2,269,700 of interest income remains to be allocable, with approximately $453,700 of such amount being allocable to common shares subject to conversion.
Interest expense for the periods presented relates to the borrowings from the installment loan for insurance.
We have only provided for an effective tax rate of over 44% on an inception to-date basis. As of September 30, 2008, there is an estimated liability of $614,299 which is fully provided for by estimated payments.
The following table shows the total funds held in the trust account through September 30, 2008:
Net proceeds from our initial public offering and private placement
of warrants placed in trust $ 104,147,840 Total interest and miscellaneous income received to date 5,790,462 Less total interest disbursed to us for working capital through September 30, 2008 (1,875,000) Less total taxes paid through September 30, 2008 (1,655,310) Total funds held in trust account through September 30, 2008 $ 106,407,992 |
• payment of premiums associated with our directors' and officers' insurance;
• payment of estimated taxes incurred as a result of interest income earned on funds currently held in the trust account;
• due diligence and investigation of prospective target businesses;
• legal and accounting fees relating to our SEC reporting obligations and general corporate matters;
• structuring and negotiating a business combination, including the making of a down payment or the payment of exclusivity or similar fees and expenses; and
• other miscellaneous expenses including the $8,000 per month to a related party for office space and general and administrative services.
Critical Accounting Policies
In presenting our financial statements in conformity with accounting principles generally accepted in the United States, we are required to make estimates and judgments that affect the amounts reported in our financial statements. Some of the estimates and assumptions we are required to make relate to matters that are inherently uncertain as they pertain to future events. We formulate these estimates and assumptions based on historical experience and on various other matters that we believe to be reasonable and appropriate. Actual results may differ significantly from these estimates.
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