UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(RULE 14d-100)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)
Daegis Inc.
(Name of Subject Company)
Company D Merger Sub Inc.
(Offeror)
Open Text Corporation
(Parent of Offeror)
(Names of Filing Persons)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
233720101
(Cusip Number of Class of Securities)
Gordon A. Davies
Open Text Corporation
Chief Legal Officer and Corporate Secretary
275 Frank Tompa Drive, Waterloo, Ontario, Canada N2L 0A1
519-888-7111
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Neil Whoriskey
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
212-225-2000
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount of Filing Fee** | |
| $15,370,315 | $1,548 | |
| * | Estimated solely for purposes of calculating the filing fee pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Transaction Valuation was calculated on the basis of (a) 18,744,286 shares of common stock, $0.001 par value per share, of Daegis Inc. (“Daegis”), the estimated maximum number of shares of Actuate common stock that may be acquired in this tender offer (representing as of the close of business on October 21, 2015 (i) 16,388,826 shares of common stock issued and outstanding, (ii) 1,636,600 shares issuable upon the exercise of outstanding options and (iii) 718,860 shares issuable upon the exercise of an outstanding warrant), multiplied by (b) the offer price of $6.60 per share. |
| ** | The filing fee was calculated in accordance with Rule 0-11 under the Exchange Act and Fee Rate Advisory #1 for fiscal year 2016, issued August 2015, by multiplying the transaction value by 0.0001007. |
| x | Check box if any part of the fee is offset as provided by Rule 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. |
| Amount Previously Paid: $1,548.00 | Filing Party: Open Text Corporation, Company D Merger Sub Inc. | |
| Form or Registration No.: Schedule TO | Date Filed: October 23, 2015 |
| ¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| x | third-party tender offer subject to Rule 14d-1. |
| ¨ | issuer tender offer subject to Rule 13e-4. |
| ¨ | going-private transaction subject to Rule 13e-3. |
| x | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer. x
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ¨ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ¨ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
| CUSIP No. 233720101 | 13D |
| 1 | NAMES OF REPORTING PERSONS
Open Text Corporation | |||||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions) (a) ¨ (b) ¨
| |||||
| 3 | SEC USE ONLY
| |||||
| 4 | SOURCE OF FUNDS (see instructions)
OO | |||||
| 5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
| |||||
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Canada | |||||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
1,000 | ||||
| 8 | SHARED VOTING POWER
0 | |||||
| 9 | SOLE DISPOSITIVE POWER
1,000 | |||||
| 10 | SHARED DISPOSITIVE POWER
0 | |||||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000 | |||||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
| |||||
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
100% | |||||
| 14 | TYPE OF REPORTING PERSON
CO | |||||
This Amendment No. 1 (“Amendment No. 1”) amends and supplements the Tender Offer Statement on Schedule TO (the “Schedule TO”) originally filed on October 23, 2015 by Company D Merger Sub Inc., a Delaware corporation (“Purchaser”) that is an indirect wholly-owned subsidiary of Open Text Corporation, a corporation organized in Canada (“OpenText”), to purchase all shares of common stock of Daegis Inc., a Delaware corporation (“Daegis”), par value $0.001 per share (each, a “Share”), that are issued and outstanding, at a price of $0.82 per Share, net to the seller in cash, without interest thereon and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated October 23, 2015 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(A), and in the related Letter of Transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”), which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(B).
All capitalized terms used and not defined in this Amendment No. 1 have the meanings ascribed to them in the Schedule TO.
The items of the Schedule TO set forth below are hereby amended and supplemented as follows:
Items 1-9 and 11.
The Offer to Purchase and Items 1-9 and 11 of the Schedule TO are hereby amended and supplemented by adding the following paragraphs at the end thereof:
“Consummation of the Offer and the Merger.
The Offer expired at 12:01 a.m., New York City time, on Monday, November 23, 2015. The Depositary for the Offer has indicated that a total of 14,113,666 Shares (excluding Shares tendered pursuant to guaranteed delivery procedures but not yet delivered and Shares that were owned as of the date of the commencement of the Offer by Daegis or any direct or indirect wholly-owned subsidiary of Daegis) were validly tendered in accordance with the terms of the Offer and not withdrawn on or prior to the Expiration Time. The validly tendered Shares represent approximately 86.12% of the Shares outstanding as of the Expiration Time. In addition, notices of guaranteed delivery have been delivered with respect to 30,699 Shares. The number of Shares tendered into the Offer satisfied the Minimum Tender Condition (as defined in the Merger Agreement) as of the expiration of the Offer. All conditions to the Offer have been satisfied. Purchaser has accepted for payment all Shares that were validly tendered and not withdrawn, in accordance with the terms of the Offer.
On November 23, 2015, following the expiration of the Offer and acceptance for payment of the Shares tendered pursuant to the Offer, OpenText completed its acquisition of Daegis pursuant to the terms of the Merger Agreement. Pursuant to the terms and conditions of the Merger Agreement, Purchaser merged with and into Daegis (the “Merger”), with Daegis surviving the Merger as an indirect wholly-owned subsidiary of OpenText, pursuant to the procedure provided for under DGCL Section 251(h), without any stockholder approvals. As a result of the Merger, each Share outstanding immediately prior to the Effective Time was automatically canceled and converted into the right to receive the Merger Consideration, without interest thereon and subject to any required withholding taxes (which is the same amount per Share that will be paid in the Offer), other than Shares held (i) by OpenText or Daegis or any direct or indirect wholly-owned subsidiary of OpenText or Daegis, which Shares were canceled and ceased to exist without payment being made with respect to such Shares, or (ii) by Daegis stockholders who are entitled to and who validly exercise appraisal rights under DGCL Section 262 with respect to such Shares.
Shares ceased trading on the OTC Pink® marketplace as of November 23, 2015.
The full text of the press release issued by OpenText on November 23, 2015 in connection with the expiration of the Offer and the Merger is filed as Exhibit (a)(5)(D) and is incorporated herein by reference.”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented with the following:
(a)(5)(D) Press Release issued by Open Text Corporation on November 23, 2015
SIGNATURE
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: November 23, 2015
| OPEN TEXT CORPORATION | ||
| By: | /s/ Gordon A. Davies | |
| Name: Gordon A. Davies | ||
| Title: Chief Legal Officer and Corporate Secretary | ||
| DAEGIS INC. | ||
| By: | /s/ Gordon A. Davies | |
| Name: Gordon A. Davies | ||
| Title: Secretary | ||
EXHIBIT INDEX
| (a)(1)(A) |
Offer to Purchase, dated October 23, 2015* | |
| (a)(1)(B) |
Form of Letter of Transmittal* | |
| (a)(1)(C) |
Form of Notice of Guaranteed Delivery* | |
| (a)(1)(D) |
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* | |
| (a)(1)(E) |
Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* | |
| (a)(5)(A) |
Press Release issued by Open Text Corporation on October 8, 2015 (incorporated by reference to the pre-commencement communication filing on Schedule TO filed by Open Text Corporation with the Securities and Exchange Commission on October 8, 2015)* | |
| (a)(5)(B) |
Press Release issued by Open Text Corporation on October 23, 2015* | |
| (a)(5)(C) |
Form of summary advertisement, published in The New York Times on October 23, 2015* | |
| (a)(5)(D) |
Press Release issued by Open Text Corporation on November 23, 2015 | |
| (b) |
Not applicable | |
| (d)(1) |
Agreement and Plan of Merger, dated October 8, 2015, by and among Company D Merger Sub Inc., Open Text Corporation and Daegis Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Daegis Inc. with the Securities and Exchange Commission on October 14, 2015)* | |
| (d)(2) |
Tender and Voting Agreement, dated as of October 8, 2015, by and among Open Text Corporation, Company D Merger Sub Inc. and certain stockholders of Daegis Inc. (incorporated by reference to Exhibit 2 to Schedule 13D filed by Open Text Corporation with the Securities and Exchange Commission on October 19, 2015)* | |
| (d)(3) |
Mutual Non-Disclosure Agreement, entered into as of August 12, 2015, by and between Open Text Corporation and Daegis Inc. (incorporated by reference to Exhibit 3 to Schedule 13D filed by Open Text Corporation with the Securities and Exchange Commission on October 19, 2015)* | |
| (d)(4) |
Exclusivity Agreement, dated as of September 1, 2015, by and between Open Text Corporation and Daegis Inc.* | |
| (g) |
Not applicable | |
| (h) |
Not applicable | |
| * | Previously filed |
Exhibit (a)(5)(D)
OpenText Buys Daegis Inc.
Acquisition Strengthens OpenText’s Information Governance Leadership
Waterloo, ON– November 23, 2015– OpenText™ (NASDAQ: OTEX, TSX: OTC), a global leader in Enterprise Information Management (EIM), today announced that, through its indirect wholly-owned subsidiary, Company D Merger Sub Inc., it has successfully completed its acquisition of Daegis Inc. (OTC Pink: DAEG), a global software and services company with solutions for information archiving, information governance, application development and migration. Daegis brings a broad range of information governance expertise and technology to OpenText that enable customers to mitigate the risks and costs associated with information sprawl and the permanent retention of information.
“Let me welcome Daegis customers, partners and employees to OpenText. With the Daegis acquisition, OpenText strengthens its information governance capabilities,” said OpenText CEO Mark J. Barrenechea. “Daegis’ deep expertise in information governance technology will strengthen OpenText’s current offerings and we will support all Daegis customers and partners in archiving, hosted eDiscovery managed services, migration and mobile development tools.”
The previously announced tender offer expired at 12:01 A.M., New York City time, on Monday, November 23, 2015, and was not extended. The depositary for the tender offer advised Company D Merger Sub Inc. that, as of the expiration of the tender offer, a total of 14,113,666 shares were validly tendered and not withdrawn in the tender offer, representing a total of approximately 86.12% of Daegis’ outstanding shares (excluding shares tendered pursuant to guaranteed delivery procedures but not yet delivered and shares that were owned as of the date of the commencement of the tender offer by Daegis or any direct or indirect wholly-owned subsidiary of Daegis). In addition, notices of guaranteed delivery have been delivered with respect to 30,699 shares. Company D Merger Sub Inc. accepted for payment all shares tendered in the tender offer and will pay for all such tendered shares as soon as practicable in accordance with the terms of the offer.
Company D Merger Sub Inc. subsequently completed the merger without a vote of Daegis’ stockholders pursuant to Section 251(h) of the Delaware General Corporation Law, with Daegis surviving the merger as an indirect wholly-owned subsidiary of OpenText. Daegis shares ceased trading on the OTC Pink® marketplace on November 23, 2015. In connection with the merger, all remaining Daegis shares (other than shares held by OpenText or Daegis or any of their wholly-owned subsidiaries (including Company D Merger Sub Inc.) or held by any Daegis stockholder who properly exercised appraisal rights under Section 262 of the Delaware General Corporation Law) not validly tendered into, or withdrawn from, the tender offer will be cancelled and converted into the right to receive US$0.82 per share in cash, the same consideration per share offered in the tender offer.
About OpenText
OpenText enables the digital world, creating a better way for organizations to work with information, on premises or in the cloud. For more information about OpenText (NASDAQ: OTEX, TSX: OTC) visit opentext.com.
Connect with us:
| • | OpenText CEO Mark Barrenechea’s blog |
| • | Twitter | LinkedIn | Facebook |
Cautionary Statement Regarding Forward-Looking Statements
Certain statements in this press release may contain words considered forward-looking statements or information under applicable securities laws. These statements are based on OpenText’s current expectations, estimates, forecasts and projections about the operating environment, economies and markets in which the company operates. These statements are subject to important assumptions, risks and uncertainties that are difficult to predict, and the actual outcome may be materially different.
OpenText’s assumptions, although considered reasonable by the company at the date of this press release, may prove to be inaccurate and consequently its actual results could differ materially from the expectations set out herein. For additional information with respect to risks and other factors which could occur, see OpenText’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and other securities filings with the SEC and other securities regulators. Unless otherwise required by applicable securities laws, OpenText disclaims any intention or obligations to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
2015 Open Text Corporation. OpenText is a trademark or registered trademark of OpenText SA and/or Open Text ULC. The list of trademarks is not exhaustive of other trademarks, registered trademarks, product names, company names, brands and service names mentioned herein are property of OpenText SA or other respective owners. All rights reserved. For more information, visit: http://www.opentext.com/2/global/site-copyright.html_SKU.
Further information:
Greg Secord
Vice President, Investor Relations
Open Text Corporation
San Francisco: (415) 963-0825
gsecord@opentext.com
Julie Millard
Sr. Director, Corporate Communications
Open Text Corporation
Waterloo: 519-888-7111 x3454
publicrelations@opentext.com