- Amended Statement of Ownership: Private Transaction (SC 13E3/A)
29 3월 2011 - 7:01PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on
March 28, 2011.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
(§240.13e-100)
Amendment No. 5
RULE 13e-3 TRANSACTION STATEMENT
UNDER SECTION 13(e) OF
THE SECURITIES EXCHANGE ACT OF 1934
RAE SYSTEMS INC.
(Name of the Issuer)
RAE SYSTEMS INC.
RAY HOLDING CORPORATION
RAY MERGER SUB CORPORATION
VECTOR CAPITAL III, L.P.
VECTOR ENTREPRENEUR FUND III, L.P.
VECTOR CAPITAL IV, L.P.
VECTOR CAPITAL PARTNERS III, L.P.
VECTOR CAPITAL PARTNERS IV, L.P.
VECTOR CAPITAL, L.L.C
ALEXANDER R. SLUSKY
CHEN REVOCABLE TRUST DTD 5/8/2001
CHEN FAMILY FOUNDATION
HSI FAMILY TRUST
ROBERT I. CHEN
PETER C. HSI
LIEN Q. CHEN
(Name of Person(s) Filing Statement)
COMMON STOCK, $0.001 PAR VALUE PER SHARE
(Title of Class of Securities)
75061P102
(CUSIP Number of Class of Securities)
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RAE Systems Inc.
3775 North First Street
San Jose, California 95134
Attention: Randall Gausman
(408) 952-8200
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Susan Wang
Chairman of the Special
Committee of
the Board of Directors of
RAE Systems Inc.
3775 North First Street
San Jose, California 95134
(408) 952-8200
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Ray Holding Corporation
Ray Merger Sub Corporation
Vector Capital III, L.P.
Vector EntrePreneur Fund III, L.P.
Vector Capital IV, L.P.
Vector Capital Partners III, L.P.
Vector Capital Partners IV, L.P.
Vector Capital, L.L.C.
Alexander R. Slusky
c/o Vector Capital Corporation
One Market Street, Steuart Tower, 23rd Floor
San Francisco, CA 94105
(415) 293-5000
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Chen Revocable Trust DTD
5/8/2001
Chen Family Foundation
Hsi Family Trust
Robert I. Chen
Peter C. Hsi
Lien Q. Chen
c/o RAE Systems Inc.
3775 North First Street
San Jose, California 95134
(408) 952-8200
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(Name, Address, and Telephone Numbers of Person Authorized to Receive
Notices and Communications on Behalf of the Person(s) Filing Statement)
COPIES TO:
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David K. Michaels, Esq.
Fenwick & West LLP
Silicon Valley Center
801 California Street
Mountain View, CA 94041
(650) 988-8500
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Steve L. Camahort, Esq.
Shearman & Sterling LLP
525 Market Street, 15
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Floor
San Francisco, CA 94105
(415) 616-1100
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Robert T. Ishii, Esq.
Wilson Sonsini Goodrich &
Rosati, Professional Corporation
One Market Street, Spear Tower
Suite 3300
San Francisco, California 94105
(415) 947-2000
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This statement is filed in connection with (check the appropriate box):
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a.
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The filing of solicitation materials or an information statement
subject to Regulation 14A (Sections 240.14a-1 through 240.14b-2),
Regulation 14C (Sections 240.14c-1 through 240.14c-101) or
Rule 13e-3(c) (§240.13e-3(c)) under the Securities Exchange Act of
1934.
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b.
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The filing of a registration statement under the Securities Act of 1933.
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c.
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A tender offer.
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d.
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o
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None of the above.
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Check the following box if the soliciting materials or information statement referred to in
checking box (a) are preliminary copies:
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Check the following box if the filing is a final amendment reporting the results of the
transaction:
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Calculation of Filing Fee
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Transaction valuation*
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Amount of filing fee*
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$82,800,590.25
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$9,613.15
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*
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This calculation is based upon
$0.0001161 multiplied by transaction
valuation shown above. For purposes
of calculating this fee only, the
transaction valuation is based on the
aggregate number of securities to
which the transaction applies
multiplied by the merger
consideration of $1.75 per share. For
purposes of calculating the aggregate
number of securities only, this
number is based on (i) 46,119,207
shares of RAE Systems Inc. common
stock outstanding and owned by
stockholders other than 13,392,857
shares (the Rollover Shares) owned
by the Rollover Holders (as defined
below); and (ii) outstanding stock
options to purchase an aggregate of
3,238,155 shares of RAE Systems Inc.
common stock with exercise prices
below $1.75 which are eligible to be
cashed out in the merger. For
purposes of calculating the per unit
price, this price is based on the
fact that (i) each outstanding share
of common stock owned by stockholders
(other than the Rollover Holders with
respect to the Rollover Shares) will
be converted into the right to
receive $1.75 in cash, without
interest, and (ii) each outstanding
stock option to purchase shares of
RAE Systems Inc. common stock with a
per share exercise price less than
$1.75 will be converted into the
right to receive a cash payment equal
to (a) the excess of $1.75 over the
per share exercise price for the
shares of common stock subject to
such stock option, multiplied by
(b) the number of shares of common
stock underlying such stock option.
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Check the box if any part of the fee is offset as provided by
Section 240.0-11(a)(2) and identify the filing with which the
offsetting fee was previously paid. Identify the previous filing
by registration statement number, or the Form or Schedule and the
date of its filing.
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Amount previously Paid: $9,613.15
Form or Registration No.: Schedule 14A
Filing Party: RAE Systems Inc.
Date Filed: February 1, 2011
TABLE OF CONTENTS
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2
Introduction
This Rule 13e-3 Transaction Statement on Schedule 13E-3 (this Schedule) is being filed
by (i) RAE Systems Inc., a Delaware corporation and the issuer of the equity securities which are
the subject of the Rule 13e-3 transaction (RAE Systems),
(ii) Ray Holding Corporation, a Delaware Corporation, (Purchaser), (iii) Ray Merger Sub
Corporation, a Delaware corporation (Merger Sub), (iv) Vector Capital III, L.P., a Delaware
limited partnership (VC III LP), (v) Vector Entrepreneur Fund III, L.P., a Delaware limited
partnership (VEF III LP), (vi) Vector Capital IV, L.P., a Delaware limited partnership (VC IV
LP), (vii) Vector Capital Partners III, L.P., an exempt Cayman limited partnership (VCP III
LP), (viii) Vector Capital Partners IV, L.P., an exempt Cayman limited partnership (VCP IV
LP), (ix) Vector Capital, L.L.C., a Delaware limited liability company (VC LLC, and together
with VC III LP, VEF III LP, VC IV LP, VCP III LP and VCP IV LP, Vector Capital), and (x)
Alexander R. Slusky, an individual (Mr. Slusky, and together with Purchaser, Merger Sub, and
Vector Capital, the Purchaser Group),
(xi) Robert I. Chen, Chairman and Chief Executive Officer of RAE Systems, (xii) Peter C. Hsi, Chief
Technology Officer of RAE Systems, (xiii) Chen Revocable Trust DTD 5/8/2001 (the RLC Trust), a
revocable trust organized under the laws of the State of California for the purpose of holding
assets of Robert I. and Lien Q. Chen in trust, (xii) the Chen Family Foundation (the Chen
Foundation), a corporation organized under the laws of the State of California to hold certain
assets of Robert I. and Lien Q. Chen for estate planning purposes, (xiv) Lien Q. Chen, and (xv) Hsi Family Trust,
a trust organized under the laws of the State of California for the purpose of holding assets of Peter C. Hsi and Sandy Hsi
in trust (the Hsi Family Trust and together with Mr.
Chen, Dr. Hsi, Ms. Chen, and the RLC Trust, the Rollover Holders) (and collectively with RAE Systems and the Purchaser Group, the Filing Persons).
This Schedule relates to the Agreement and Plan of Merger, dated as of January 18,
2011 (the Merger Agreement), by and among Purchaser, Merger Sub and RAE Systems. Pursuant to the
Merger Agreement, and upon the terms and subject to the conditions thereof, Merger Sub will be
merged with and into RAE Systems (the merger), and each outstanding share of RAE Systems common
stock (other than shares as to which dissenters rights have been properly exercised and except as
described below with respect to 13,392,857 shares of RAE Systems common stock beneficially owned by
the Rollover Holders (the Rollover Shares)) will be converted into the right to receive $1.75,
without interest. Each of RLC Trust and the Hsi Family Trust has entered into Rollover
Agreements, dated as of January 18,
2011, with Purchaser (the Rollover Agreements). Under the
terms of the Rollover Agreements, the Rollover Holders have agreed to contribute, immediately prior
to the effective time of the merger, 13,392,857 Rollover Shares, which will be valued at $1.75 per
share, and in exchange for the Rollover Shares, the Rollover Holders will receive preferred and
common stock in Purchaser, at the same valuation as the cash investment made by Vector Capital and Profit Spring Investments Limited (PSIL), an affiliate of CITIC Capital MB Investment Limited. Purchaser
expects to fund the aggregate merger consideration and all related fees and expenses with a
combination of equity financing to be provided by Vector Capital and PSIL, debt financing to be provided
by one or more lenders, if available, and available cash balances of RAE Systems. The Merger
Agreement contains representations, warranties and covenants of RAE Systems, Purchaser and Merger
Sub, including among others, covenants by RAE Systems concerning the conduct of RAE Systems
business in the ordinary course during the interim period between the execution of the Merger
Agreement and the consummation of the merger. The closing of the Merger is subject to closing
conditions, including approval of the merger by the holders of a majority of RAE Systems
outstanding common stock. Mr. Chen and Dr. Hsi (collectively, the Voting
Parties) who beneficially hold, directly or indirectly, approximately 31% of RAE Systems outstanding common
stock, have also entered into voting agreements with Purchaser pursuant to which they have agreed
to vote their shares in favor of the merger and against any other acquisition proposals, and
further agreed to certain restrictions on the transfer of their shares and have granted Purchaser
and Vector Capital a proxy to vote such shares in favor of the merger in the event either Voting
Party fails to do so.
RAE Systems filed with the Securities
and Exchange Commission a proxy statement (the Proxy Statement) under Regulation 14A of the
Securities Exchange Act of 1934, as amended (the Exchange
Act) on March 9, 2011, and supplements to the Proxy Statement
(Proxy Supplements) under Regulation 14A of the Exchange
Act on March 16, 2011 and March 28, 2011, respectively, relating to the special meeting
of stockholders of RAE Systems at which the stockholders of RAE Systems will consider and vote upon
a proposal to approve the terms of the merger and adopt the Merger Agreement. A copy of the Proxy
Statement is attached hereto as Exhibit (a)(3)(i), copies of the Proxy
Supplements are attached hereto as Exhibits (a)(3)(ii) and (a)(3)(iii) and a copy of the Merger Agreement is attached as
Annex A to the Proxy Statement. All references in this Schedule to Items numbered 1001 to 1016 are
references to Items contained in Regulation M-A under the Exchange Act.
The cross-references below are being supplied pursuant to General Instruction G to
Schedule 13E-3 and show the location in the Proxy Statement of the information required to be
included in response to the Items of Schedule 13E-3. The information contained in the Proxy
Statement, including all annexes thereto, is hereby expressly incorporated herein by reference.
Capitalized terms used but not defined in this Schedule shall have the meanings given to them in
the Proxy Statement.
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Item 1. Summary Term Sheet.
The information set forth under the caption Summary Term Sheet in the Proxy Statement
is incorporated herein by reference.
Item 2. Subject Company Information.
(a)
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Name and Address.
The principal executive office of the subject
company, RAE Systems Inc., is 3775 North First Street, San Jose,
California 95134, and its telephone number is (408) 952-8200.
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(b)
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Securities.
The information set forth under the caption The Special
MeetingRecord Date; Stock Entitled to Vote; Quorum of the Proxy
Statement is incorporated herein by reference. The exact title of the
subject class of equity securities is common stock, $0.001 par value
per share.
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(c)
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Trading Market and Price.
The information set forth under the caption
Important Information Concerning RAE SystemsMarket Price and
Dividend Data of the Proxy Statement is incorporated herein by
reference.
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(d)
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Dividends.
The information set forth under the caption Important
Information Concerning RAE SystemsMarket Price and Dividend Data of
the Proxy Statement is incorporated herein by reference.
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(e)
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Prior Public Offerings.
The information set forth under the caption
Important Information Concerning RAE SystemsPrior Public Offerings
of the Proxy Statement is incorporated herein by reference.
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(f)
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Prior Stock Purchases.
The information set forth under the caption
Important Information Concerning RAE SystemsTransactions in Shares
of the Proxy Statement is incorporated herein by reference.
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Item 3. Identity and Background of Filing Person.
(a)
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Name and Address
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The business address and business telephone number of RAE Systems, the
subject company, and all of directors and executive officers of RAE
Systems are as stated in Item 2(a).
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Robert I. Chen is the Chairman and Chief Executive Officer of RAE
Systems. Peter C. Hsi is the Chief Technology Officer of RAE Systems.
Lien Q. Chen is the Director of Information Systems of RAE Systems.
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Chen Revocable Trust DTD 5/8/2001 (the RLC Trust) is organized under
the laws of the State of California for the purpose of holding assets
of Robert I. and Lien Q. Chen in trust. Robert I. and Lien Q. Chen
serve as the trustees of the RLC Trust. The business address of the
RLC Trust is c/o Robert I. Chen, RAE Systems Inc., 3775 North First
Street, San Jose, California 95134. The telephone number for the RLC
Trust is (408) 952-8200.
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The Chen Family Foundation (the Chen Foundation) is a corporation
organized under the laws of the State of California to hold certain
assets of Robert I. and Lien Q. Chen for estate planning purposes.
Robert I. and Lien Q. Chen serve as directors of the Chen Foundation.
The business address of the Chen Foundation is c/o Robert I. Chen, RAE
Systems Inc., 3775 North First Street, San Jose, California 95134.
The telephone number for the Chen Foundation is (408) 952-8200.
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Hsi Family Trust (the Hsi Family Trust) is organized under the laws
of the State of California for the purpose of holding assets of Peter C. Hsi and Sandy Hsi in trust. Peter and Sandy Hsi serve as the trustees of
the Hsi Family Trust. The business address of the Hsi Family Trust is
c/o Peter C. Hsi, RAE Systems Inc., 3775 North First Street, San Jose,
California 95134. The telephone number for the Hsi Family Trust is
(408) 952-8200.
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Each of VC III LP, VEF III LP and VC IV LP is a Delaware limited partnership. VCP III LP is
an exempt Cayman limited partnership and general partner of VC III LP and VEF III LP. VCP
IV LP is an exempt Cayman limited partnership and general partner of VC IV LP. VC LLC is a
Delaware limited liability company and general partner of VCP III LP and VCP IV LP. Mr.
Slusky is the sole managing member of VC LLC. The business address of each is One Market
Street, Steuart Tower, 23rd Floor, San Francisco, CA 94105, (415)
293-5000.
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(b)
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Business and Background of Entities.
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The information required by this item with respect to the
Purchaser Group is set forth under the captions Summary
Term SheetRay Holding Corporation and Ray Merger Sub Corporation and Special Factors Parties to the Merger
Agreement of the Proxy Statement and is incorporated herein by reference. The state of
organization of each of
Purchaser, Merger Sub, VC III LP, VEF III LP, VC IV LP, and VC LLC is
Delaware,
VCP III LP and VCP IV LP are exempt Cayman limited partnerships, and Mr. Slusky is a United States citizen.
During the
past five years, no member of the Purchaser Group has been (i) convicted in a criminal proceeding
(excluding traffic violations and similar misdemeanors) or (ii) a
party to any judicial or administrative proceeding (except for matters
that were dismissed without sanction or settlement) that resulted in a
judgment, decree or final order enjoining such person from future
violations of, or prohibiting activities subject to, federal or state
securities laws, or a finding of any violation of federal or state
securities laws.
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The state of organization of each of the RLC Trust, the Hsi Family
Trust and the Chen Foundation is California. During the past five
years, none of the RLC Trust, the Hsi Family Trust or the Chen
Foundation have been (i) convicted in a criminal proceeding (excluding
traffic violations and similar misdemeanors) or (ii) a party to any
judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment,
decree or final order enjoining such person from future violations of,
or prohibiting activities subject to, federal or state securities
laws, or a finding of any violation of federal or state securities
laws.
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(c)
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Business and Background of Natural Persons
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The information required by this item with respect to all of the
directors and executive officers of RAE Systems, including Mr. Chen
and Dr. Hsi, is set forth under the captions Important Information
Concerning RAE Systems Directors and Executive Officers of RAE
Systems and Important Information Concerning RAE SystemsSecurity
Ownership of Certain Beneficial Owners and Management of the Proxy
Statement and is incorporated herein by reference. During the past
five years, none of the directors or executive officers of RAE
Systems has been (i) convicted in a criminal proceeding (excluding
traffic violations and similar misdemeanors) or (ii) a party to any
judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment,
decree or final order enjoining such person from future violations of,
or prohibiting activities subject to, federal or state securities
laws, or a finding of any violation of federal or state securities
laws. All of the directors and officers of RAE Systems are U.S.
citizens except Sigrun Hjelmqvist (Sweden) and Christopher Hameister
(Australia) and their business telephone number is (408) 952-8200.
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The information required by this item with respect to the
Purchaser Group is set forth under the captions Important
Information Concerning RAE SystemsDirectors and Executive Officers of
the Purchaser Group of the Proxy Statement and is incorporated herein
by reference. During the last five years, none of Alex Slusky, David
Fishman, Andrew Fishman, David Baylor, or Roy Kelvin has been (i) convicted
in a criminal proceeding (excluding traffic violations and similar
misdemeanors) or (ii) a party to any judicial or administrative
proceeding (except for matters that were dismissed without sanction or
settlement) that resulted in a judgment, decree, or final order
enjoining such person from future violations of, or prohibiting
activities subject to, federal or state securities laws, or a finding
of any violation of federal or state securities laws. Each of the
individuals listed in this paragraph is a U.S. citizen and his
business telephone number is (415) 293-5000.
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The information required by this item with respect to Voting Parties
pertaining to Mr. Chen as a trustee and director of the RLC Trust and
the Chen Foundation, respectively, and Dr. Hsi as a trustee of the Hsi
Family Trust, is set forth under the captions Important Information
Concerning RAE Systems Directors and Executive Officers of Voting Parties of the Proxy Statement and is
incorporated herein by reference. Lien Q. Chen, Mr. Chens spouse, is
also a trustee and director of the RLC Trust and the Chen Foundation,
respectively. Ms. Chens principal business occupation is Director of
Information Systems of RAE Systems, which position she has held for
over five years. Ms. Chens business address is RAE Systems Inc.,
3775 North First Street, San Jose, California 95134, and the telephone
number for Ms. Chen is (408) 952-8200. Sandy Hsi, Dr. Hsis spouse,
is also a trustee of the Hsi Family Trust. Ms. Hsis principal
business occupation is director of Seed2Sprout Learning Center located
at 7485 Village Parkway, Dublin, California, which position she has held for
over five years. Ms. Hsis business number is (925) 828-2468. Each
of Mr. Chen, Dr. Hsi, Ms. Chen and Ms. Hsi is a U.S. citizen and
during the last five years none of them has been (i) convicted in a
criminal proceeding (excluding traffic violations and similar
misdemeanors) or (ii) a party to any judicial or administrative
proceeding (except for matters that were dismissed without sanction or
settlement) that resulted in a judgment, decree, or final order
enjoining such person from future violations of, or prohibiting
activities subject to, federal or state securities laws, or a finding
of any violation of federal or state securities laws.
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Item 4. Terms of the Transaction.
(a)(2)
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Material Terms
. The information set forth under the captions
Summary Term Sheet, Questions and Answers about the
Merger and the Special Meeting,
The Merger Agreement, Special Factors and The Special
MeetingVote Required of the Proxy Statement is incorporated
herein by reference.
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(c)
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Different Terms.
The information set forth under the captions
Summary Term Sheet, Special FactorsPurposes and Plans for RAE
Systems After the Merger, Special FactorsFinancing, Special
FactorsRollover Agreements, Special FactorsVoting Agreements,
Special FactorsCertain Effects of the Merger, Special
FactorsInterests of Our Directors and Executive Officers in the
Merger and The Merger AgreementMerger Consideration of the
Proxy Statement is incorporated herein by reference.
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(d)
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Appraisal Rights.
The information set forth under the captions
Special FactorsAppraisal Rights and Annex CSection 262 of the
Delaware General Corporation Law of the Proxy Statement is
incorporated herein by reference.
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(e)
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Provisions for Unaffiliated Security Holders.
The information set
forth under the caption Special FactorsProvisions for
Unaffiliated Security Holders of the Proxy Statement is
incorporated herein by reference.
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(f)
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Eligibility for Listing or Trading.
Not applicable.
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Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(a)
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Transactions
. The information set forth under the captions Special FactorsBackground of the Merger of the Proxy
Statement is incorporated herein by reference. During the past two years, no other transactions have occurred between the
natural persons listed in the second paragraph of Item 3(c) above, on the one hand, and any executive officer or
director of RAE Systems or RAE Systems, on the other hand.
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(b)
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Significant Corporate Events.
The information set forth under the caption Special FactorsBackground of the Merger of
the Proxy Statement is incorporated herein by reference.
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(c)
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Negotiations or Contacts.
The information set forth under the caption Special FactorsBackground of the Merger of the
Proxy Statement is incorporated herein by reference.
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(d)
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Conflicts of Interest.
The information set forth under the captions Special FactorsBackground of the Merger, Special
FactorsRollover Agreements, Special FactorsVoting Agreements, Special FactorsCertain Effects of the Merger, and
Special FactorsInterests of Our Directors and Executive Officers in the Merger of the Proxy Statement is
incorporated herein by reference.
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(e)
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Agreements Involving the Subject Companys Securities.
The information set forth under the captions Summary Term
Sheet, Special FactorsFinancing, Special FactorsRollover Agreements, Special FactorsVoting Agreements,
Special FactorsInterests of Our Directors and Executive Officers in the Merger and The Merger Agreement of the
Proxy Statement is incorporated herein by reference.
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Item 6. Purposes of the Transaction and Plans or Proposals.
(b)
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Use of Securities Acquired
. The information set forth under the
captions Special FactorsCertain Effects of the Merger and
The Merger Agreement of the Proxy Statement is incorporated
herein by reference.
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(c)(1)-(8)
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Plans
. The information set forth under the captions Summary
Term Sheet, Special FactorsPurposes and Plans for RAE
Systems After the Merger, Special FactorsInterests of Our
Directors and Executive Officers in the MergerTransactions
with the Rollover Holders, and The Merger Agreement of the Proxy
Statement is incorporated herein by reference.
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Item 7. Purposes, Alternatives, Reasons and Effects.
(a)
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Purposes
. The information set forth under the captions Summary Term
Sheet, Questions and Answers about the Merger and the Special Meeting, Special
FactorsReasons for the Merger of RAE Systems and Recommendation of
the Board of Directors, Special Factors Purposes and Reasons for
the Merger of the Purchaser Group and Special FactorsPurposes and Reasons of
the Rollover Holders for the Merger and Position of the Rollover
Holders as to the Fairness of the Merger of the Proxy Statement is
incorporated herein by reference.
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(b)
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Alternatives
. The information set forth under the captions Special
FactorsBackground of the Merger, Special FactorsReasons for the
Merger of RAE Systems and Recommendation of the Board of Directors,
Special Factors Purposes and Reasons for the Merger of
the Purchaser Group
and Special FactorsPurposes and Reasons of the Rollover Holders for
the Merger and Position of the Rollover Holders as to the Fairness of
the Merger of the Proxy Statement is incorporated herein by
reference.
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(c)
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Reasons
. The information set forth under the captions Special
FactorsBackground of the Merger, Special FactorsReasons for the
Merger of RAE Systems and Recommendation of the Board of Directors,
Special Factors Purposes and Reasons for the Merger of
the Purchaser Group,
Special FactorsPurposes and Reasons of the Rollover Holders for the
Merger and Position of the Rollover Holders as to the Fairness of the
Merger and Special FactorsPurposes and Plans for RAE Systems After
the Merger of the Proxy Statement is incorporated herein by
reference.
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(d)
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Effects
. The information set forth under the captions Special
FactorsCertain Effects of the Merger, Special FactorsInterests of
Our Directors and Executive Officers in the Merger, Special
FactorsMaterial U.S. Federal Income Tax Consequences of the Merger,
Special FactorsPurposes and Plans for RAE Systems After the
Merger, Special FactorsAppraisal Rights and Annex CSection 262
of the Delaware General Corporation Law of the Proxy Statement is
incorporated herein by reference.
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Item 8. Fairness of the Transaction.
(a)
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Fairness
. The information set forth under the captions Summary Term
Sheet, Special FactorsBackground of the Merger, Special
FactorsOpinion of the Financial Advisor to RAE Systems Special
Committee, Special FactorsReasons for the Merger of RAE Systems and
Recommendation of the Board of Directors, Special FactorsPosition
of the Purchaser Group as to the Fairness of the Merger and
Special FactorsPurposes and Reasons of the Rollover Holders for the
Merger and Position of the Rollover Holders as to the Fairness of the
Merger of the Proxy Statement, and the information set forth in
Annex BOpinion of UBS Securities LLC to the Proxy Statement, is
incorporated herein by reference.
|
|
(b)
|
|
Factors Considered in Determining Fairness
. The information set forth
under the captions Special FactorsBackground of the Merger,
Special FactorsReasons for the Merger of RAE Systems and
Recommendation of the Board of Directors, Special FactorsOpinion of
the Financial Advisor to RAE Systems Special Committee, Special
FactorsPosition of the Purchaser Group as to the Fairness of the
Merger Special FactorsPurposes and Reasons of the Rollover Holders
for the Merger and Position of the Rollover Holders as to the Fairness
of the Merger, Special FactorsPurposes and Plans for RAE Systems
After the Merger and Special FactorsInterests of Our Directors and
Executive Officers in the Merger of the Proxy Statement, and the
information set forth in Annex BOpinion of UBS Securities LLC to
the Proxy Statement, is incorporated herein by reference.
|
|
(c)
|
|
Approval of Security Holders
. The information set forth under the
caption The Special MeetingVote Required of the Proxy Statement is
incorporated herein by reference.
|
|
(d)
|
|
Unaffiliated Representative
. An unaffiliated representative was not
retained to act solely on behalf of unaffiliated security holders for
the purposes of negotiating the terms of the transaction and/or
preparing a report concerning the fairness of the transaction.
|
|
(e)
|
|
Approval of Directors
. The information set forth under the Special
FactorsReasons for the Merger of RAE Systems and Recommendation of
the Board of Directors of the Proxy Statement is incorporated herein
by reference.
|
|
(f)
|
|
Other Offers
. The information set forth under the caption Special
FactorsBackground of the Merger and Special FactorsReasons for the
Merger of RAE Systems and Recommendation of the Board of Directors of
the Proxy Statement is incorporated herein by reference.
|
Item 9. Reports, Opinions, Appraisals and Negotiations.
(a)
|
|
Report, Opinion, or Appraisal
. The information set forth under the
captions Special FactorsBackground of the Merger, Summary Term
Sheet and Special FactorsOpinion of the Financial Advisor to RAE
Systems Special Committee of the Proxy Statement, and the
information set forth in Annex BOpinion of UBS Securities LLC to
the Proxy Statement, is incorporated herein by reference.
|
|
(b)
|
|
Preparer and Summary of the Report, Opinion, or Appraisal
. The
information set forth under the captions Special FactorsBackground
of the Merger, Special FactorsOpinion of the Financial Advisor to
RAE Systems Special Committee and Special FactorsFinancing of the
Proxy Statement, and the information set forth in Annex BOpinion of
UBS Securities LLC to the Proxy Statement, is incorporated herein by
reference.
|
7
(c)
|
|
Availability of Documents
. The information set forth under the caption
Other MattersWhere You Can Find More Information of the Proxy
Statement is incorporated herein by reference.
The reports, opinions or appraisal referenced in this Item 9 will be
made available for inspection and copying at the principal executive
offices of RAE Systems during regular business hours by any
interested holder of RAE Systems common stock or any representative
who has been so designated in writing.
|
Item 10. Source and Amounts of Funds or Other Consideration.
(a)
|
|
Source of Funds
. The information set forth under the captions Summary
Term Sheet Financing, Special FactorsFinancing and Special
FactorsGuarantee of Payment of Merger Consideration of the Proxy
Statement is incorporated herein by reference.
|
|
(b)
|
|
Conditions
. The information set forth under the captions Summary Term
Sheet Financing, Special FactorsFinancing Special
FactorsGuarantee of Payment of Merger Consideration of the Proxy
Statement is incorporated herein by reference.
|
|
(c)
|
|
Expenses
. The information set forth under the caption Special
FactorsEstimated Fees and Expenses of the Proxy Statement is
incorporated herein by reference.
|
|
(d)
|
|
Borrowed Funds
. The information set forth under the captions Special
FactorsFinancing of the Proxy Statement is incorporated herein by
reference.
|
Item 11. Interest in Securities of the Subject Company.
(a)
|
|
Securities Ownership
. The information required by this item with
respect to all directors and executive officers of RAE Systems,
including Mr. Chen and Dr. Hsi, is set forth under the caption
Important Information Concerning RAE Systems Security Ownership of
Certain Beneficial Owners and Management of the Proxy Statement and
is incorporated herein by reference. As a result of the Voting
Agreements, as described in the Proxy Statement, the Purchaser Group, including Mr. Slusky, may be deemed to be beneficial owners of the
shares of RAE Systems common stock held by Mr. Chen and
Dr. Hsi.
The Purchaser Group expressly disclaims beneficial ownership of
such shares. The Purchaser Group collectively beneficially owns 2,900,000 shares of RAE Systems common stock.
|
|
(b)
|
|
Securities Transactions
. The information set forth under the caption
Important Information Concerning RAE Systems Transactions in Shares
of the Proxy Statement is incorporated herein by reference. Except for
the execution of the Voting Agreements, as described in the Proxy
Statement, the Purchaser Group has not effected
any transaction in RAE Systems common stock during the past 60 days.
Except for the execution of the Voting Agreements, as described in the
Proxy Statement, Mr. Chen, Dr. Hsi, Ms. Chen, the RLC Trust, the Chen Foundation
and the Hsi Family Trust have not effected any transaction in RAE
Systems common stock during the past 60 days.
|
Item 12. The Solicitation or Recommendation.
(d)
|
|
Intent to Tender or Vote in a Going-Private Transaction
. The
information set forth under the captions Summary Term Sheet,
Questions and Answers about the Merger and the Special MeetingQ: How do RAE Systems
directors and executive officers intend to vote?, Special
FactorsBackground of the Merger, Special FactorsReasons for the
Merger of RAE Systems and Recommendation of the Board of Directors,
Special FactorsOpinion of the Financial Advisor to RAE Systems
Special Committee, Special FactorsPurposes and Reasons of the
Rollover Holders for the Merger and Position of the Rollover Holders
as to the Fairness of the Merger, Special FactorsPurposes and
Plans for RAE Systems After the Merger, Special FactorsVoting
Agreements and Important Information Concerning RAE Systems
Directors and Executive Officers of RAE Systems of the Proxy
Statement is incorporated herein by reference.
|
|
(e)
|
|
Recommendations of Others
. The information set forth under the
caption Special FactorsReasons for the Merger of RAE Systems and
Recommendation of the Board of Directors, Special
FactorsBackground of the Merger, Special FactorsOpinion of the
Financial Advisor to RAE Systems Special Committee, Special
FactorsPurposes and Reasons of the Rollover Holders for the Merger
and Position of the Rollover Holders as to the Fairness of the
Merger and Special FactorsPurposes and Plans for RAE Systems After
the Merger of the Proxy Statement is incorporated herein by
reference.
|
8
Item 13. Financial Statements.
(a)
|
|
Financial Information
. The information set forth under (i) the
captions Important Information Concerning RAE SystemsSelected
Historical Financial Data, Important Information Concerning RAE
SystemsRatio of Earnings to Fixed Charges, and Important
Information Concerning RAE SystemsBook Value Per Share of the Proxy
Statement, (ii) the captions Consolidated Balance Sheets,
Consolidated Statements of Operations, Consolidated Statements of
Shareholders Equity and Comprehensive Loss, and Consolidated
Statements of Cash Flows in RAE Systems Annual Report on Form 10-K
for the year ended December 31, 2009 filed with the SEC on March 12,
2010, and (iii) the captions Condensed Consolidated Statements of
Operations, Condensed Consolidated Balance Sheets, and Condensed
Consolidated Statements of Cash Flows in RAE Systems Quarterly
Report on Form 10-Q for the quarter ended September 30, 2010 filed with the
SEC on November 5, 2010, is incorporated herein by reference.
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|
(b)
|
|
Pro Forma Information
. Not applicable.
|
Item 14. Persons/Assets, Retained, Employed, Compensated or Used.
(a)
|
|
Solicitations or Recommendations
. The information set forth under the
captions The Special MeetingSolicitation of Proxies and Expense, Special
FactorsEstimated Fees and Expenses and Special FactorsInterests of
Our Directors and Executive Officers in the Merger of the Proxy
Statement is incorporated herein by reference.
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|
(b)
|
|
Employees and Corporate Assets
. The information set forth under the
captions The Special Meeting Solicitation of Proxies and Expense and Special
FactorsInterests of Our Directors and Executive Officers in the
Merger of the Proxy Statement is incorporated herein by reference.
|
Item 15. Additional information.
|
|
Other Material Information
. The information contained in the Proxy Statement,
including all annexes thereto, is incorporated in its entirety herein by
reference. There is litigation related to the Merger. The information set
forth under the caption Special FactorsLitigation Related to the Merger of
the Proxy Statement is incorporated herein by reference.
|
Item 16. Exhibits.
|
|
|
(a)(1)
|
|
Not applicable.
|
|
|
|
(a)(2)(i)
|
|
Copy of Letter to Stockholders from the Secretary of RAE Systems Inc., incorporated by reference to
Schedule 14A filed by RAE Systems Inc. on March 9, 2011
(the Proxy Statement).
|
|
|
|
(a)(2)(ii)
|
|
Copy of Notice of Special Meeting of Stockholders, incorporated by reference to the Proxy Statement.
|
|
|
|
(a)(2)(iii)
|
|
Form of Proxy Card, incorporated by reference to the Proxy Statement.
|
|
|
|
(a)(3)(i)
|
|
Proxy Statement, incorporated by reference to the Proxy Statement.
|
|
|
|
(a)(3)(ii)
|
|
Supplement to Proxy Statement,
incorporated by reference to Schedule 14A filed by RAE Systems Inc. on
March 16, 2011.
|
|
|
|
(a)(3)(iii)
|
|
Supplement to Proxy Statement, incorporated by reference to Schedule 14A
filed by RAE Systems Inc. on March 28, 2011.
|
|
|
|
(a)(4)
|
|
Not applicable.
|
|
|
|
(a)(5)(i)
|
|
Press Release issued by RAE Systems Inc. dated
January 18, 2011, incorporated by reference to Schedule 14A
Information Statement filed pursuant to Rule 14a-12 by RAE Systems Inc. on January 18, 2011.
|
|
|
|
(a)(5)(ii)
|
|
Guarantee, dated as of January 18, 2011, by
Vector Capital III, L.P. and Vector Capital IV, L.P.
in favor of RAE Systems Inc., incorporated by reference to
Exhibit C to Exhibit 2.1 of the Current Report on Form 8-K filed by RAE Systems Inc. on January 19, 2011.
|
|
|
|
9
|
|
|
(b)
|
|
Not applicable.
|
|
|
|
(c)(1)
|
|
Financial analysis materials prepared by UBS Securities, in connection with its presentation to the Special
Committee of RAE Systems Inc.s Board of Directors on
September 19, 2010, filed as an
exhibit to the Schedule 13E-3 filed with the Securities and Exchange
Commission on October 21, 2010.
|
|
|
|
(c)(2)
|
|
Financial analysis materials
prepared by UBS Securities, in connection with its presentation to
the Special Committee of RAE Systems Inc.s Board of Directors on April 13, 2010, filed as an
exhibit to the Schedule 13E-3 filed with the Securities and Exchange
Commission on October 21, 2010.
|
|
|
|
(c)(3)
|
|
Opinion of UBS Securities, LLC, dated September 19, 2010, incorporated by reference to Annex B to the Proxy
Statement.
|
|
|
|
(d)(1)
|
|
Agreement and Plan of Merger, dated as of January 18, 2011, by and among
RAE Systems Inc., Ray Holding Corporation and Ray Merger Sub Corporation, incorporated by reference to Annex A to the Proxy Statement.
|
|
|
|
(d)(2)
|
|
Form of Voting Agreement, dated as of January 18, 2011, by and
between RAE Systems Inc. and each of Robert I.
Chen and Peter Hsi respectively,
incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by RAE Systems Inc. on January 19, 2011.
|
|
|
|
(d)(3)
|
|
Form of Rollover Agreement, dated as of January 18, 2011, by and between Chen Revocable Trust DTD 5/8/2001 and
Hsi Family Trust, respectively, incorporated by reference to the Schedule 13D filed by Vector Capital III, L.P..,
et. al. on January 28, 2011.
|
|
|
|
(d)(4)
|
|
Reference is made to Exhibit (a)(5)(ii).
|
|
|
|
(e)
|
|
Not applicable.
|
|
|
|
(f)(1)
|
|
Section 262 of the Delaware General Corporation Law, incorporated by reference to Annex C to the Proxy Statement.
|
|
|
|
(g)
|
|
Not applicable.
|
|
|
|
(h)
|
|
Not applicable.
|
10
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information
set forth in this statement is true, complete and correct. Dated
March 28, 2011
|
|
|
|
|
|
RAE SYSTEMS INC.
|
|
|
By:
|
/s/ Randall K. Gausman
|
|
|
|
Name:
|
Randall K. Gausman
|
|
|
|
Title:
|
Chief Financial Officer
|
|
|
|
CHEN REVOCABLE TRUST DTD 5/8/2001
|
|
|
By:
|
/s/ Robert I. Chen
|
|
|
|
Name:
|
Robert I. Chen
|
|
|
|
Title:
|
Trustee
|
|
|
|
|
|
|
By:
|
/s/ Lien Q. Chen
|
|
|
|
Name:
|
Lien Q. Chen
|
|
|
|
Title:
|
Trustee
|
|
|
|
CHEN FAMILY FOUNDATION
|
|
|
By:
|
/s/ Robert I. Chen
|
|
|
|
Name:
|
Robert I. Chen
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Lien Q. Chen
|
|
|
|
Name:
|
Lien Q. Chen
|
|
|
|
|
|
|
|
ROBERT I. CHEN
|
|
|
By:
|
/s/ Robert I. Chen
|
|
|
|
Name:
|
Robert I. Chen
|
|
|
|
|
|
|
|
LIEN Q. CHEN
|
|
|
By:
|
/s/ Lien Q. Chen
|
|
|
|
Name:
|
Lien Q. Chen
|
|
|
|
|
|
|
|
HSI FAMILY TRUST
|
|
|
By:
|
/s/ Peter C. Hsi
|
|
|
|
Name:
|
Peter C. Hsi
|
|
|
|
Title:
|
Trustee
|
|
|
|
|
|
|
By:
|
/s/ Sandy Hsi
|
|
|
|
Name:
|
Sandy Hsi
|
|
|
|
Title:
|
Trustee
|
|
|
|
PETER C. HSI
|
|
|
By:
|
/s/ Peter C. Hsi
|
|
|
|
Name:
|
Peter C. Hsi
|
|
|
|
|
|
11
|
|
|
|
|
|
RAY HOLDING CORPORATION
|
|
|
By:
|
/s/ David Baylor
|
|
|
|
Name:
|
David Baylor
|
|
|
|
Title:
|
President
|
|
|
|
RAY MERGER SUB CORPORATION
|
|
|
By:
|
/s/ David Baylor
|
|
|
|
Name:
|
David Baylor
|
|
|
|
Title:
|
President
|
|
|
|
VECTOR CAPITAL III, L.P
.
By: Vector Capital Partners III, L.P., its General Partner
By: Vector Capital, L.L.C., its General Partner
|
|
|
By:
|
/s/ Alexander R. Slusky
|
|
|
|
Name:
|
Alexander R. Slusky
|
|
|
|
Title:
|
Member Manager
|
|
|
|
VECTOR ENTREPRENEUR FUND III, L.P.
By: Vector Capital Partners III, L.P., its General Partner
By: Vector Capital, L.L.C., its General Partner
|
|
|
By:
|
/s/ Alexander R. Slusky
|
|
|
|
Name:
|
Alexander R. Slusky
|
|
|
|
Title:
|
Member Manager
|
|
|
|
VECTOR CAPITAL IV, L.P
.
By: Vector Capital Partners IV, L.P., its General Partner
By: Vector Capital, L.L.C., its General Partner
|
|
|
By:
|
/s/ Alexander R. Slusky
|
|
|
|
Name:
|
Alexander R. Slusky
|
|
|
|
Title:
|
Member Manager
|
|
|
|
VECTOR CAPITAL PARTNERS III, L.P.
By: Vector Capital, L.L.C., its General Partner
|
|
|
By:
|
/s/ Alexander R. Slusky
|
|
|
|
Name:
|
Alexander R. Slusky
|
|
|
|
Title:
|
Member Manager
|
|
|
|
VECTOR CAPITAL PARTNERS IV, L.P.
By: Vector Capital, L.L.C., its General Partner
|
|
|
By:
|
/s/ Alexander R. Slusky
|
|
|
|
Name:
|
Alexander R. Slusky
|
|
|
|
Title:
|
Member Manager
|
|
|
|
VECTOR CAPITAL, L.L.C.
|
|
|
By:
|
/s/ Alexander R. Slusky
|
|
|
|
Name:
|
Alexander R. Slusky
|
|
|
|
Title:
|
Member Manager
|
|
|
|
ALEXANDER R. SLUSKY
|
|
|
/s/ Alexander R. Slusky
|
|
|
Alexander R. Slusky
|
|
|
|
|
|
12
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