This Amendment No. 3 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO, as amended and supplemented by Amendment No. 1 filed on December 8, 2021 (“Amendment No. 1”) and Amendment No. 2 filed on December 14, 2021 (“Amendment No. 2”), filed by Zeta Merger Sub Inc., a Texas corporation (“Purchaser”) that is a wholly-owned subsidiary of Open Text Corporation, a corporation incorporated under the federal laws of Canada (“OpenText”), with the Securities and Exchange Commission on November 22, 2021 (together with Amendment No. 1, Amendment No. 2 and this Amendment, the “Schedule TO”). The Schedule TO relates to the tender offer by Purchaser for all shares of common stock of Zix Corporation, a Texas corporation (“Zix”), par value $0.01 per share (each, a “Share”), that are issued and outstanding, at a price of $8.50 per Share, in cash, without interest and subject to any applicable withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated November 22, 2021 (the “Offer to Purchase”), a copy of which is attached to the Schedule TO as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached to the Schedule TO as Exhibit (a)(1)(B) (and which, together with the Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, collectively constitute the “Offer”).
All capitalized terms used but not defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO.
The items of the Schedule TO set forth below are hereby amended and supplemented as follows:
Amendments to the Schedule TO
Items 1, 4 and 11. Summary Term Sheet; Terms of the Transaction; and Additional Information.
The subsection entitled “Have any Zix stockholders entered into agreements with OpenText or its affiliates requiring them to tender their Shares?” of the section entitled “Summary Term Sheet” of the Offer to Purchase and the subsection of Section 11 of the Offer to Purchase titled “Tender and Voting Agreements” is hereby amended and supplemented by replacing the first sentence of the first paragraph thereof to read as follows:
“Concurrently with the execution and delivery of the Merger Agreement, OpenText and Purchaser entered into a Tender and Voting Agreement with Mark J. Bonney, Maryclaire Campbell, Taher A. Elgamal, Robert C. Hausmann, Maribess L. Miller, David J. Wagner, Ryan L. Allphin, John P. Di Leo, David E. Rockvam and Noah F. Webster, directors and executive officers of Zix, pursuant to which each executive officer and director agreed, among other things, to tender his or her Shares pursuant to the Offer, which agreement was amended on December 18, 2021.”
Items 1, 4 and 11 of the Schedule TO are hereby amended and supplemented by adding the following paragraph at the end thereof.
“On December 21, 2021, OpenText announced an extension of the expiration of the Offer to one minute after 11:59 P.M., Eastern time, on December 22, 2021, unless the Offer is further extended or earlier terminated in accordance with the Merger Agreement. The Offer was previously scheduled to expire at one minute after 11:59 P.M., Eastern time, on December 20, 2021.
The Depositary has advised OpenText and Purchaser that, as of one minute after 11:59 P.M., Eastern time, on December 20, 2021, approximately 33,967,027 Shares had been validly tendered and not withdrawn pursuant to the tender offer, including approximately 5,397,062 Shares tendered pursuant to a notice of guaranteed delivery. Assuming no validly tendered Shares are withdrawn, all Shares tendered pursuant to a notice of guaranteed delivery are delivered and all shares of Series A Preferred Stock are converted into Shares and validly tendered pursuant to the Tender and Voting Agreement with Zephyr Holdco, the number of Shares validly tendered and not withdrawn pursuant to the tender offer would be approximately 54,807,927 Shares, representing approximately 70% of the outstanding shares of Zix (including Shares issuable upon the conversion of Series A Preferred Stock) and, therefore, the Minimum Condition would be satisfied.
The full text of the press release issued by OpenText announcing the extension of the Offer is attached hereto as Exhibit (a)(5)(M) and is incorporated by reference herein.
