SEC Form SC 13E3/A filed by QAD Inc. (Amendment)
$QADA
Computer Software: Prepackaged Software
Technology
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Washington, D.C. 20549
SCHEDULE 13E-3
(Amendment No. 2)
RULE 13E-3 TRANSACTION STATEMENT UNDER
SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934
RULE 13E-3 TRANSACTION STATEMENT UNDER
SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934
QAD Inc.
(Name of the Issuer)
(Name of the Issuer)
QAD Inc.
QAD Parent, LLC
Project Quick Merger Sub, Inc.
Thoma Bravo Fund XIV, L.P.
Pamela M. Lopker
Lopker Living Trust dated November 18, 2013
Estate of Karl F. Lopker
(Names of Persons Filing Statement)
Class A Common Stock, Par Value $0.001 per share
Class B Common Stock, Par Value $0.001 per share
(Title of Class of Securities)
Class A 74727D306
Class B 74727D207
(CUSIP Number of Class of Securities)
QAD Parent, LLC
Project Quick Merger Sub, Inc.
Thoma Bravo Fund XIV, L.P.
Pamela M. Lopker
Lopker Living Trust dated November 18, 2013
Estate of Karl F. Lopker
(Names of Persons Filing Statement)
Class A Common Stock, Par Value $0.001 per share
Class B Common Stock, Par Value $0.001 per share
(Title of Class of Securities)
Class A 74727D306
Class B 74727D207
(CUSIP Number of Class of Securities)
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Daniel Lender
Chief Financial Officer QAD Inc. 100 Innovation Place Santa Barbara, CA 93108 (805) 566-6709 |
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S. Scott Crabill
Peter Stefanksi c/o Thoma Bravo, L.P. 600 Montgomery Street, 20 Floor San Fransisco, CA 91444 (415) 263-3660 |
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Pamela M. Lopker
100 Innovation Place Santa Barbara, CA 93108 (805) 566-6000 |
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
With copies to
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Jeffrey D. Marell
Krishna Veeraraghavan Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000
Craig Miller
Veronica Lah Manatt, Phelps & Phillips, LLP One Embarcadero Center 30th Floor San Francisco, CA 94111 (415) 291-7400 |
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Theodore A. Peto, P.C.
Bradley C. Reed, P.C. Kirkland & Ellis LLP 300 N. LaSalle Street Chicago, IL 60654 (312) 862-2000 |
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David M. Hernand
Sean A. Monroe Paul Hastings LLP 1999 Avenue of the Stars, 27th Floor Los Angeles, CA 90067 (310) 620-5700 |
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This statement is filed in connection with (check the appropriate box):
| | a. | | | ☒ | | |
The filing of solicitation materials or an information statement subject to Regulation 14A (§§240.14a-1 through 240.14b-2), Regulation 14C (§§240.14c-1 through 240.14c-101) or Rule 13e-3(c) (§240.13e-3(c)) under the Securities Exchange Act of 1934 (“the Act”).
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| | b. | | | ☐ | | | The filing of a registration statement under the Securities Act of 1933. | |
| | c. | | | ☐ | | | A tender offer. | |
| | d. | | | ☐ | | | None of the above. | |
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ☐
Check the following box if the filing is a final amendment reporting the results of the transaction: ☒
Calculation of Filing Fee
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Transaction Valuation*
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Amount of Filing Fee**
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$1,959,900,687.50
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$213,825.17
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*
Calculated solely for purposes of determining the filing fee. The transaction value was calculated as the sum of (A) 17,662,554 shares of Class A Common Stock multiplied by the Merger Consideration of $87.50 per share; (B) 3,344,775 shares of Class B Common Stock multiplied by the Merger Consideration of $87.50 per share; (C) 950,000 Shares subject to Company SARs which would convert into 622,584 issued Shares (such amount determined using a weighted average exercise price per share of $30.16 and the Merger Consideration of $87.50 per Share) multiplied by the Merger Consideration of $87.50 per share; (D) 537,199 shares of Class A Common Stock issuable upon settlement of Company RSUs multiplied by the Merger Consideration of $87.50 per share; and (E) 231,753 shares of Class A Common Stock issuable upon settlement of Company PSUs multiplied by the Merger Consideration of $87.50 per share (assuming the maximum achievement of the performance goals applicable to such award, and assuming the satisfaction of all other conditions to such delivery); which results in a proposed maximum aggregate value of $1,959,900,687.50 and a total filing fee due of $213,825.17.
**
In accordance with Exchange Act Rule 0-11(c), the filing fee was determined by multiplying 0.0001091 by the aggregate transaction valuation.
☒
Check the box if any part of the fee is offset as provided by §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.
(1)
Amount Previously Paid: $213,825.17
(2)
Form, Schedule or Registration Statement No.: Schedule 14A
(3)
Filing Party: QAD Inc.
(4)
Date Filed: August 2, 2021
INTRODUCTION
This Amendment No. 2 (this “Final Amendment”) to Rule 13E-3 Transaction Statement on Schedule 13E-3, together with the exhibits hereto (this “Schedule 13E-3” or “Transaction Statement”), is being filed with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), jointly by the following persons (each, a “Filing Person,” and collectively, the “Filing Persons”): (i) QAD Inc. (“QAD” or the “Company”), a Delaware corporation and the issuer of the Class A common stock, par value $0.001 per share (the “Class A Common Stock”) and the Class B common stock, par value $0.001 per share (the “Class B Common Stock”, and together with the Class A Common Stock, the “Shares”), that is subject to the Rule 13e-3 transaction, (ii) Project Quick Merger Sub, Inc., a Delaware corporation (“Merger Sub”), (iii) QAD Parent, LLC, a Delaware limited liability company and the parent of Merger Sub (f/k/a Project Quick Parent, LLC) (“Parent”), (iv) Thoma Bravo Fund XIV, L.P., a Delaware limited partnership and an affiliate of Parent and Merger sub (“TB Fund XIV” and, collectively with Parent and Merger Sub, the “TB Parties”), (v) Pamela M. Lopker, the Company’s founder and President, and (vi) certain entities affiliated with Ms. Lopker, namely, the Lopker Living Trust dated November 18, 2013, and the Estate of Karl F. Lopker (together with Ms. Lopker, the “Lopker Entities”). The TB Parties are Filing Persons of this Transaction Statement because they may be deemed to be affiliates of the Company under a possible interpretation of the SEC rules governing “going-private” transactions.
This Transaction Statement relates to the Agreement and Plan of Merger, dated as of June 27, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), by and among the Company, Parent and Merger Sub, which provides for, among other things, the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as a direct wholly-owned subsidiary of Parent.
Pursuant to General Instruction F to Schedule 13E-3, the information contained in the Company’s definitive proxy statement, dated September 9, 2021 (as previously supplemented on September 27, 2021 and October 12, 2021, the “Definitive Proxy Statement”), including all appendices thereto, is incorporated in its entirety herein by reference, and the responses to each item in this Schedule 13E-3 are qualified in their entirety by the information contained in the Definitive Proxy Statement and the appendices thereto.
Capitalized terms used but not expressly defined in this Final Amendment shall have the respective meanings given to them in the Definitive Proxy Statement.
This Final Amendment is being filed pursuant to Rule 13e-3(d)(3) under the Exchange Act to report the results of the transaction that is the subject of this Transaction Statement. Except as otherwise set forth below, the information set forth in the Schedule 13E-3 remains unchanged. This Final Amendment is being filed to reflect certain updates as reflected below.
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Item 15. Additional Information
(c) Other Material Information. The information set forth in response to Item 1011(c) of Regulation M-A is hereby amended and supplemented as follows:
On November 2, 2021, at the Special Meeting, QAD’s stockholders voted to (i) approve and adopt the Merger Agreement, and approve the transactions contemplated thereby, including the Merger the “Merger Agreement Proposal”) and (ii) approve a non-binding, advisory proposal to approve certain compensation arrangements for the Company’s named executive officers in connection with the Merger.
The Merger Agreement Proposal was approved by the affirmative vote of the holders of (i) a majority of the voting power of all outstanding Shares entitled to vote, voting as a single class, and (ii) a majority of the voting power of all outstanding Shares, voting as a single class, that are not owned, beneficially or of record, by the Lopker Entities, their respective affiliates, or any executive officer or director of the Company. The holders of Class A Common Stock and Class B Common Stock voted together as a single class. Each record holder of Class A Common Stock was entitled to 1/20th of the vote for each share of Class A Common Stock owned of record on the record date and each holder of Class B Common Stock was entitled to one (1) vote for each share of Class B Common stock owned of record on the record date.
On November 5, 2021, Parent filed a Certificate of Merger with the Office of the Secretary of State of the State of Delaware, pursuant to which the Merger became effective and Merger Sub was merged with and into QAD, with QAD continuing as the surviving corporation in the Merger. As a result of the Merger, QAD became a wholly owned subsidiary of Parent.
At the effective time of the Merger (the “Effective Time”), each share of Class A Common Stock and Class B Common Stock issued and outstanding immediately prior to the Effective Time (other than the Excluded Shares) was automatically converted into the right to receive $87.50 in cash, without interest, less any applicable withholding taxes.
As a result of the Merger, the Company’s Shares have ceased to trade on Nasdaq and became eligible for delisting from Nasdaq and termination of registration under the Exchange Act. QAD has requested that Nasdaq file with the SEC a notification of removal from listing on Form 25 with respect to the delisting of the Shares from Nasdaq. QAD intends to file with the SEC a certification on Form 15 to terminate or suspend its reporting obligations under Sections 13(a) and 15(d) of the Exchange Act.
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Item 16. Exhibits
The following exhibits are filed herewith:
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Exhibit No.
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Description
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| | | | | incorporated herein by reference). | |
| | (d)(vii) | | | Notice and Joinder to the Support Agreement, dated October 19, 2021, by and between QAD Inc., QAD Parent, LLC (f/k/a Project Quick Parent, LLC), LLC, Pamela M. Lopker, The Lopker Living Trust dated November 18, 2013, the Estate of Karl F. Lopker and Fidelity Investments Charitable Gift Fund (included as Exhibit C to the Schedule 13D filed by Pamela M. Lopker on October 26, 2021, and incorporated herein by reference). | |
| | (f) | | | | |
| | (g) | | | Not Applicable. | |
*
Certain portions of this exhibit have been redacted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment.
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Previously filed.
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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.
QAD INC.
By: /s/ Daniel Lender
Name: Daniel Lender
Title: Chief Financial Officer
Title: Chief Financial Officer
Date: November 5, 2021
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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.
QAD PARENT, LLC
By: /s/ S. Scott Crabill
Name: S. Scott Crabill
Title: President and Assistant Treasurer
Title: President and Assistant Treasurer
Date: November 5, 2021
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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.
PROJECT QUICK MERGER SUB, INC.
By: /s/ S. Scott Crabill
Name: S. Scott Crabill
Title: President and Assistant Treasurer
Title: President and Assistant Treasurer
Date: November 5, 2021
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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.
THOMA BRAVO FUND XIV, L.P.
By: Thoma Bravo Partners XIV, L.P.
Its: General Partner
Its: General Partner
By: Thoma Bravo UGP XIV, LLC
Its: General Partner
Its: General Partner
By: Thoma Bravo UGP, LLC
Its: Managing Member
Its: Managing Member
By: /s/ S. Scott Crabill
Name: S. Scott Crabill
Title: Managing Partner
Title: Managing Partner
Date: November 5, 2021
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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.
PAMELA M. LOPKER
By: /s/ Pamela M. Lopker
Name: Pamela M. Lopker
Date: November 5, 2021
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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.
LOPKER LIVING TRUST DATED
NOVEMBER 18, 2013
NOVEMBER 18, 2013
By: /s/ Pamela M. Lopker
Name: Pamela M. Lopker
Title: Trustee
Title: Trustee
Date: November 5, 2021
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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.
ESTATE OF KARL F. LOPKER
By: /s/ Pamela M. Lopker
Name: Pamela M. Lopker
Title: Personal Representative
Title: Personal Representative
Date: November 5, 2021
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