Attached files
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8-K - FORM 8-K - RAE SYSTEMS INC | f59320e8vk.htm |
EX-10.1 - EX-10.1 - RAE SYSTEMS INC | f59320exv10w1.htm |
Exhibit 2.1
AMENDMENT NO. 4 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 4 (this Amendment No. 4) to that certain Agreement and Plan of Merger,
dated as of January 18, 2011 (the Original Merger Agreement), 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 Merger Agreement, Amendment No. 1 and Amendment No. 2, the Merger Agreement), by and
among Ray Holding Corporation, a Delaware corporation (Parent); Ray Merger Sub
Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (Merger Sub);
and RAE Systems Inc., a Delaware corporation (the Company), is made and entered into as
of May 24, 2011 by and among Parent, Merger Sub and the Company. All capitalized terms that are
used in this Amendment No. 4 but not defined in this Amendment No. 4 shall have the respective
meanings ascribed thereto in the Merger Agreement.
WHEREAS, on May 24, 2011, the Company received an Acquisition Proposal from Rudy II
Acquisition Corp.;
WHEREAS, on May 24, 2011, Parent offered to amend the Merger Agreement on the terms set forth
herein;
WHEREAS, the boards of directors of Parent and Merger Sub have approved this Amendment No. 4;
WHEREAS, concurrently with the execution of this Amendment No. 4, the Sponsors and the Company
are entering into an Amendment No. 4 to the Guarantee; and
WHEREAS, the Board of Directors, after considering the recommendation of the Special
Committee, has approved this Amendment No. 4 and has determined that the Merger (on the terms as
provided in the Merger Agreement and as amended by this Amendment No. 4) is in the best interest of
the Company and its stockholders and declared it advisable to enter into this Amendment No. 4 and
the Merger (on the terms as provided in the Merger Agreement and as amended by this Amendment No.
4).
The parties to this Amendment No. 4, intending to be legally bound, agree as follows:
1. Merger Consideration. Section 1.5(a)(iii) of the Merger Agreement is
hereby amended by replacing, in the definition of Merger Consideration set forth therein, the
reference to $2.05 with 2.25.
2. BV/SFW Proposal. The covenant added to Section 4.3(c) of the Merger
Agreement pursuant to Amendment No. 3 is hereby and amended and restated in its entirety as set
forth below:
The Company shall immediately cease and cause to be terminated any solicitation,
encouragement, discussion or negotiation with Rudy II Acquisition Corp. (the Bidder), the
entities that have provided signed guarantees of certain of the Bidders obligations in
connection with the proposal received from the Bidder on May 24, 2011 (the BV/SFW
Proposal) and their respective Affiliates and Representatives (the BV/SFW Persons)
conducted heretofore by the Company, its Subsidiaries or any of their respective
Representatives with respect to the BV/SFW Proposal; for the avoidance of doubt, the
foregoing shall not preclude the Company from taking any actions permitted by this
Section 4.3 if one of more of the BV/SFW Persons submits an Acquisition Proposal
after the date of this Amendment No. 4 satisfying the requirements of the proviso to the
first sentence of Section 4.3(a) of the Merger Agreement.
3. Termination Fee. Section 8.4(c)(i) of the Merger Agreement is hereby
amended by replacing, in clause (A) thereof, the reference to 4,270,000 with 5,750,000.
4. Rollover Shares; Transferable Shares. Exhibit D of the Merger Agreement is hereby
amended and restated in its entirety as set forth in Exhibit A attached hereto.
5. Public Announcement. The Company shall issue a press release on the date of this
Amendment No. 4 with respect to the execution of this Amendment No. 4, which press release will be
in form mutually agreed by the Company and Parent.
6. Merger Agreement References. The parties hereto hereby agree that all references
to the Agreement set forth in the Merger Agreement (including, without limitation, in the
representations and warranties of the parties set forth therein) shall be deemed to be references
to the Merger Agreement as amended by this Amendment No. 4.
7. Full Force and Effect. Except as expressly amended or modified hereby, the Merger
Agreement and the agreements, documents, instruments and certificates among the parties hereto as
contemplated by, or referred to, in the Merger Agreement shall remain in full force and effect
without any amendment or other modification thereto.
8. 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 parties have caused this Amendment No. 4 to be executed as of the
date first above written.
Ray Holding Corporation |
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By: | /s/ David Baylor | |||
Name: | David Baylor | |||
Title: | President | |||
Ray Merger Sub Corporation |
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By: | /s/ David Baylor | |||
Name: | David Baylor | |||
Title: | President | |||
RAE Systems Inc. |
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By: | /s/ Randall Gausman | |||
Name: | Randall Gausman | |||
Title: | Chief Financial Officer | |||
Amendment No. 4 Signature Page
Exhibit A
Exhibit D
Treatment of Rollover Stockholders
Rollover Shares | Transferable Shares | Cash-Out Shares | ||||||||||
Chen Revocable Trust DTD 5/8/2001 |
10,701,525 | TBD1 | TBD2 | |||||||||
Hsi Family Trust |
2,691,332 | 0 | 0 |
1 | To equal a number of shares of Company Common Stock equal to (a) (i) (A) the Merger Consideration minus (B) $1.30 times (ii) (A) the number of shares of Company Common Stock owned by such Rollover Holder on the Closing Date minus (B) 10,701,525 divided by (b) the Merger Consideration. | |
2 | To equal a number of shares of Company Common Stock equal to (a) the number of shares of Company Common Stock owned by such Rollover Holder on the Closing Date minus (b) 10,701,525 minus (c) Transferable Shares. |