Attached files
file | filename |
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8-K - FORM 8-K - RAE SYSTEMS INC | f59320e8vk.htm |
EX-2.1 - EX-2.1 - RAE SYSTEMS INC | f59320exv2w1.htm |
Exhibit 10.1
AMENDMENT NO. 4 TO GUARANTEE
This Amendment No. 4 (this Amendment No. 4), dated as of
May 24, 2011, to that certain Guarantee dated as of January 18, 2011 (the
Original Guarantee), as amended by Amendment No. 1 dated as of April
3, 2011 (Amendment No. 1), Amendment No. 2 dated as of May 17, 2011
(Amendment No. 2) and Amendment No. 3 dated as of May 20, 2011
(Amendment No. 3, and collectively with the Original Guarantee,
Amendment No. 1 and Amendment No. 2, the Guarantee), is entered into
by Vector Capital IV, L.P. (VCIV) and Vector Capital III, L.P.
(VCIII, and each of VCIII and VCIV, a Guarantor and
collectively VCIII and VCIV, the Guarantors) in favor of RAE Systems
Inc., a Delaware corporation (the Company). Capitalized terms used
herein and not otherwise defined shall have the respective meanings assigned to
such terms in the Merger Agreement (as defined below).
RECITAL
Ray Holding Corporation, a Delaware corporation (Parent),
Ray Merger Sub Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent (Merger Sub), and the Company have entered into
that certain Agreement and Plan of Merger, dated as of January 18, 2011 (as
amended by Amendment No. 1 thereto dated as of April 3, 2011, Amendment No. 2
thereto dated May 17, 2011 and Amendment No. 3 dated as of May 20, 2011, and as
may be further amended, modified or supplemented from time to time, the
Merger Agreement), and it was a requirement of the Merger Agreement
that Parent deliver this Guarantee to the Company concurrently with the
execution and delivery thereof.
On May 24, 2011, Parent offered to amend the Merger Agreement on the
terms set forth in an Amendment No. 4 to the Merger Agreement to provide for,
among other things, an increase in the Merger Consideration payable.
The parties to this Amendment No. 4, intending to be legally bound,
agree as follows:
1.
Cap. Section 1(b) of the Guarantee is amended by
replacing, in the definition of Cap set forth therein, the reference to
$97,720,000 minus an amount equal to (x) the Transferable Shares times (y) the
Merger Consideration with $107,651,000 minus an amount equal to (x) the
Transferable Shares times (y) the Merger Consideration.
2.
Guarantee References. The parties hereto hereby agree that
all references to the Guarantee set forth in the Guarantee shall be deemed to
be references to the Guarantee as amended by this Amendment No. 4.
3.
Full Force and Effect. Except as expressly amended or
modified hereby, the Guarantee shall remain in full force and effect without
any amendment or other modification thereto.
4.
Counterparts. This Amendment No. 4 may be executed in
several counterparts, each of which shall be deemed an original and all of
which shall constitute one and the same instrument. The exchange of a fully
executed Amendment No. 4 (in counterparts or otherwise) by facsimile shall be
sufficient to bind the parties to the terms and conditions of this Amendment
No. 4.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 4
to be duly executed and delivered as of the date first written above.
Vector Capital IV, L.P. |
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By: | Vector Capital Partners IV, L.P., its general partner |
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By: | Vector Capital, L.L.C., its general partner |
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By: | /s/ Alexander R. Slusky | |||
Name: | Alexander R. Slusky | |||
Title: | Managing Member | |||
Vector Capital III, L.P. |
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By: | Vector Capital Partners III, L.P., its general partner |
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By: | Vector Capital, L.L.C., its general partner |
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By: | /s/ Alexander R. Slusky | |||
Name: | Alexander R. Slusky | |||
Title: | Managing Member | |||
Signature Page to Amendment No. 4 to Guarantee
RAE Systems Inc. |
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By: | /s/ Randall Gausman | |||
Name: | Randall Gausman | |||
Title: | CFO | |||
Signature Page to Amendment No. 4 to Guarantee