Attached files
| file | filename |
|---|---|
| 8-K - TRIAN ACQUISITION I CORP. 8-K DECEMBER 17, 2009 - TRIAN ACQUISITION I CORP. | dec2009.htm |
| EX-99.1 - PRESS RELEASE DATED DECEMBER 18, 2009 - TRIAN ACQUISITION I CORP. | pressrelease.htm |
PLAN
OF DISTRIBUTION
TRIAN
ACQUISITION I CORP.
This Plan
of Distribution (the “Plan”) of Trian Acquisition I Corp., a Delaware
corporation (the “Company”), is intended to constitute a plan of distribution
under Section 281(b) of the General Corporation Law of the State of Delaware
(the “DGCL”).
1. Termination of the Company’s
Existence. Article V of the Amended and Restated Certificate of
Incorporation of the Company, as filed with the Secretary of State of the State
of Delaware (the “Secretary of State”) on January 28, 2008 (the “Certificate of
Incorporation”), provides that the Company’s existence shall terminate on
January 23, 2010 (the “Termination Date”). The Board of Directors of
the Company (the “Board”), by resolution dated December 17, 2009, confirmed the
termination of the Company’s existence on January 23, 2010 pursuant to the terms
of the Certificate of Incorporation and authorized the delivery of a notice
confirming such termination to the Secretary of State.
2. Approval of
Plan. The Board has adopted this Plan.
3. Cessation of Business
Activities. From and after the Termination Date, the Company
shall not engage in any business activities except to the extent necessary to
preserve the value of its assets, wind up its business affairs, and distribute
its assets in accordance with this Plan.
4. Continuing Employees and
Consultants. For the purpose of effecting this Plan, the
Company may hire or retain, at the discretion of the Board, such employees,
consultants and advisors as the Board deems necessary or desirable to supervise
or facilitate the distribution of the Company’s assets in accordance with this
Plan.
5. Distribution
Process.
From and after the Termination Date,
the Company (or any successor entity of the Company) shall complete the
following corporate actions:
(i) The
Company (a) shall pay or make reasonable provision to pay all claims and
obligations, including all contingent, conditional or unmatured contractual
claims known to the Company, (b) shall make such provision as will be reasonably
likely to be sufficient to provide compensation for any claim against the
Company which is the subject of a pending action, suit or proceeding to which
the Company is a party, and (c) shall make such provision as will be reasonably
likely to be sufficient to provide compensation for claims that have not been
made known to the Company or that have not arisen but that, based on facts known
to the Company, are likely to arise or to become known to the Company within 10
years after the Termination Date. All such claims shall be paid or
provided for in full and any such provision for payment shall be made in full if
there are sufficient assets available for such payments and provision, subject
to the terms of the Certificate of Incorporation. If there are
insufficient assets, such claims and obligations shall be paid or provided for
according to their priority and, among claims of equal priority, ratably to the
extent of assets legally available therefor. Any remaining assets
shall be distributed to the holders of IPO Shares (as defined in the Certificate
of Incorporation).
(ii) The
Company shall distribute to its holders of IPO Shares, in accordance with the
Company’s Certificate of Incorporation, all remaining assets, including all
available cash, including the cash proceeds of any sale, exchange or
disposition, except such cash, property or assets as are required for paying or
making reasonable provision for the claims and obligations of the
Company. If and to the extent deemed necessary, appropriate or
desirable by the Board, in its absolute discretion, the Company may establish
and set aside a reasonable amount of cash and/or property to satisfy claims
against the Company, including, without limitation, tax obligations, all
expenses related to the sale of the Company’s property and assets, all expenses
related to the collection and defense of the Company’s property and assets, and
the distribution provided for in this Plan. Notwithstanding the
foregoing provisions of this paragraph, all assets of the trust account
established pursuant to the Amended and Restated Investment Management Trust
Agreement (the “Trust Agreement”) between the Company and U.S. Trust Company of
Delaware, as trustee (the “Trustee”), dated as of October 1, 2008, and all other
net assets of the Company not used for or reserved to pay obligations and claims
or such other corporate expenses relating to or arising from this Plan, shall be
distributed on a pro rata basis to holders of IPO Shares in accordance with the
terms of the Trust Agreement and the Certificate of
Incorporation. Such distributions may occur all at once or in a
series of distributions and shall be in cash or assets, in such amounts, and at
such time or times, as the Board in its absolute discretion, may determine. The
Company shall pay no liquidating distributions with respect to any shares of
capital stock of the Company other than the IPO Shares.
6. Cancellation of Stock and
Warrants. The distributions to the Company’s stockholders pursuant to
Section 5 hereof shall be in complete cancellation of all of the outstanding
shares of stock of the Company. From and after the Termination Date,
and subject to applicable law, each holder of shares of capital stock of the
Company shall cease to have any rights in respect thereof, except the right to
receive distributions pursuant to and in accordance with Section 5(ii)
hereof. As a condition to receipt of any distribution to the
Company’s stockholders, the Board, in its absolute discretion, may require the
Company’s stockholders to (i) surrender their certificates evidencing their
shares of stock to the Company, or (ii) furnish the Company with evidence
satisfactory to the Board of the loss, theft or destruction of such
certificates, together with such surety bond or other security or indemnity as
may be required by and satisfactory to the Board. The Company will
close its stock transfer books and discontinue recording transfers of shares of
stock of the Company at the close of business on the Termination Date, and
thereafter certificates representing shares of stock of the Company will not be
assignable or transferable on the books of the Company except by will, intestate
succession, or operation of law. All warrants issued by the Company
shall expire without value upon the Termination Date.
7. Conduct of the Company Following
Approval of the Plan. Section 278 of DGCL provides that all
corporations, whether they expire by their own limitation or are otherwise
dissolved, shall nevertheless be continued for three (3) years from such
expiration or dissolution for the purpose of prosecuting and defending suits by
or against the corporation and enabling it to settle and close its business and
dispose of and convey its remaining assets, but not for the purpose of
continuing the business of the corporation as a going concern. A
corporation can continue to exist beyond the three (3) year period, if ordered
by a court, for the sole purpose of prosecuting or defending any action, suit or
proceeding that was brought before or during the three (3) year period after the
date of its expiration or dissolution, until any judgments, orders or decrees
are fully executed. The powers of the directors continue during this
time period in order to allow them to take the necessary steps to wind-up the
affairs of the corporation.
8. Absence of Appraisal
Rights. Under Delaware law, the Company’s stockholders are not
entitled to appraisal rights for their shares of capital stock in connection
with the transactions contemplated by the Plan.
9. Abandoned
Property. If any distribution to a stockholder cannot be made,
whether because the stockholder cannot be located, has not surrendered
certificates evidencing the capital stock as required hereunder or for any other
reason, the distribution to which such stockholder is entitled shall be
transferred, at such time as the final liquidating distribution is made by the
Company, to the official of such state or other jurisdiction authorized by
applicable law to receive the proceeds of such distribution. The
proceeds of such distribution shall thereafter be held solely for the benefit of
and for ultimate distribution to such stockholder as the sole equitable owner
thereof and shall be treated as abandoned property and escheat to the applicable
state or other jurisdiction in accordance with applicable law. In no
event shall the proceeds of any such distribution revert to or become the
property of the Company.
10. Expenses. In
connection with and for the purposes of implementing and assuring completion of
this Plan, the Company may, in the absolute discretion of the Board, pay any
brokerage, agency, professional and other fees and expenses of persons rendering
services to the Company in connection with the collection, sale, exchange or
other disposition of the Company’s property and assets and the implementation of
this Plan.
11. Compensation. Subject
to the terms of the Certificate of Incorporation, in connection with and for the
purpose of implementing and assuring completion of this Plan, the Company may,
in the absolute discretion of the Board, pay the Company’s officers, directors,
employees, agents and representatives, or any of them, compensation or
additional compensation above their regular compensation, including pursuant to
severance and retention agreements, in money or other property, in recognition
of the extraordinary efforts they, or any of them, will be required to
undertake, or actually undertake, in connection with the implementation of this
Plan; provided, however, that no current officer or director of the Company
shall receive any compensation for his or her services as aforesaid and that any
such compensation to such other persons shall be fair and
reasonable.
12. Indemnification. The
Company shall continue to indemnify its officers, directors, employees, agents
and the Trustee in accordance with its Certificate of Incorporation, Bylaws, the
Trust Agreement and contractual arrangements as therein or elsewhere provided,
the Company’s existing directors’ and officers’ liability insurance policy and
applicable law, and such indemnification shall apply to acts or omissions of
such persons in connection with the implementation of this Plan and the winding
up of the affairs of the Company. The Board is authorized to obtain
and maintain insurance as may be necessary to cover the Company’s
indemnification obligations.
13. Modification or Abandonment of the
Plan. The Board may modify, amend or abandon this Plan and the
transactions contemplated hereby without action by the stockholders to the
extent permitted by the DGCL.
14. Authorization. The
Board is hereby authorized, without further action by the stockholders, to do
and perform or cause the officers of the Company, subject to approval of the
Board, to do and perform, any and all acts, and to make, execute, deliver or
adopt any and all agreements, resolutions, conveyances, certificates and other
documents of every kind that are deemed necessary, appropriate or desirable, in
the absolute discretion of the Board, to implement this Plan and the
transactions contemplated hereby, including, without limiting the foregoing, all
filings or acts required by any state or federal law or regulation to wind up
its affairs.