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. 5)
Guidance
Software, Inc.
(Name of Subject Company)
Galileo Acquisition 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)
401692108
(CUSIP Number
of Class of Securities)
Gordon A. Davies
Open Text Corporation
Executive Vice President, Chief Legal Officer and Corporate Development
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:
Aaron
J. Meyers, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New
York, New York 10006
212-225-2000
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee*
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$237
,
305
,
991
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$27
,
504
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*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 the sum of (a) the product of
(x) 33,431,155 shares of common stock issued and outstanding, minus 457,335 shares owned by Open Text Corporation as of August 3, 2017 and (y) the offer price of $7.10 per share and (b) the product of (x) 449,559 shares
(using the treasury stock method) issuable upon the exercise of outstanding options with an exercise price less than the offer price of $7.10 per share and (y) the offer price of $7.10 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 2017, issued August 31, 2016, by multiplying the transaction value by 0.0001159.
☒
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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.
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Amount Previously Paid: $27,504
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Filing Party: Galileo Acquisition Sub Inc.
And Open Text Corporation
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Form or Registration No.: Schedule TO
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Date Filed: August 8, 2017
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☐
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
☒
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third-party tender offer subject to Rule
14d-1.
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☐
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issuer tender offer subject to Rule
13e-4.
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☐
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going-private transaction subject to Rule
13e-3.
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☐
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amendment to Schedule 13D under Rule
13d-2.
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Check the following box
if the filing is a final amendment reporting the results of the tender offer. ☐
If applicable, check the appropriate box(es) below to
designate the appropriate rule provision(s) relied upon:
☐
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Rule
13e-4(i)
(Cross-Border Issuer Tender Offer)
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☐
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Rule
14d-1(d)
(Cross-Border Third-Party Tender Offer)
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This Amendment No. 5 (this Amendment) amends and supplements the Tender Offer
Statement on Schedule TO, as amended and supplemented by Amendment No. 1 filed on August 15, 2017, Amendment No. 2 filed on August 21, 2017, Amendment No. 3 filed on August 22, 2017 and Amendment No. 4 filed on
August 29, 2017, filed by Galileo Acquisition Sub Inc., a Delaware corporation (Purchaser) and 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 August 8, 2017 (together with any subsequent amendments and supplements thereto, including this Amendment, the Schedule TO). The Schedule TO relates to the tender offer by Purchaser for
all of the outstanding shares of common stock, par value $0.001 per share (Shares), of Guidance Software, Inc., a Delaware corporation (Guidance), at a price of $7.10 per Share in cash, without interest and net of applicable
withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 8, 2017 (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 No. 5 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:
Item 11. Additional Information.
The Offer to Purchase and Item 11 of the Schedule TO, to the extent such Item incorporates by reference the information contained in the Offer
to Purchase, are hereby amended and supplemented as set forth below.
The subsection of Section 15 of the Offer to Purchase titled
Litigation is hereby amended and supplemented by replacing the first paragraph thereof to read as follows:
Five purported
class action complaints related to the Offer and the Merger have been filed in the United States District Court for the Central District of California on behalf of putative classes of Guidances stockholders. Two of the complaints, captioned
Robert Berg v. Guidance Software, Inc., et al.
and
Bryan Lazzaro v. Guidance Software, Inc., et al.
, were filed on August 14, 2017. The third complaint, captioned
Enrique Hernandez v. Guidance Software, Inc., et al.
, was
filed on August 18, 2017. The fourth complaint, captioned
Patricia Mayer v. Guidance Software, Inc., et al.
, was filed on August 21, 2017. The fifth complaint, captioned
Aniket Schneider v. Guidance Software, Inc., et al.
,
was filed on August 31, 2017. All five complaints name as defendants Guidance and its directors. The complaints generally allege that Guidance and its directors violated federal securities laws by failing to disclose certain material
information in the Schedule
14D-9.
The
Mayer
complaint also alleges that the Guidance directors breached their fiduciary duties of due care, loyalty, and good faith to Guidance by entering into the
Merger. In addition, three of the complaints (
Berg
,
Lazzaro
and
Mayer
)
also name OpenText and Purchaser as defendants and allege that the omissions in the Schedule
14D-9
constitute
violations of federal securities laws by OpenText and Purchaser. The complaints seek, among other things, injunctive relief preventing the consummation of the transactions contemplated by the Merger Agreement; rescission of the transactions
contemplated by the Merger Agreement or an award of rescissory damages in the event they are consummated; and an award of plaintiffs expenses including reasonable attorneys and experts fees. The defendants believe that the claims
respectively asserted against them are without merit.
The subsection of Section 15 of the Offer to Purchase titled
Litigation is hereby further amended and supplemented by adding the following paragraph to the end of the subsection:
On
September 1, 2017, Guidance disclosed certain additional information (the Supplemental Disclosures) in an amendment to the Schedule
14D-9
in response to the first four of the five class action
complaints and solely for the purpose of mooting the allegations contained therein. OpenText believes that the Schedule
14D-9
disclosed all material information, and denies that the Supplemental Disclosures
are material, or are otherwise required.
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: September 1, 2017
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OPEN TEXT CORPORATION
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By:
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/s/ Gordon A. Davies
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Name: Gordon A. Davies
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Title: EVP, CLO and Corporate Development
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GALILEO ACQUISITION SUB INC.
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By:
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/s/ Gordon A. Davies
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Name: Gordon A. Davies
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Title: President and Secretary
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EXHIBIT INDEX
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(a)(1)(A)
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Offer to Purchase, dated August 8, 2017*
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(a)(1)(B)
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Form of Letter of Transmittal*
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery*
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
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(a)(1)(E)
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Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
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(a)(5)(A)
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Press Release issued by Open Text Corporation on July 26, 2017 (incorporated by reference to the
pre-commencement
communication filing on Schedule TO filed by Open Text Corporation with
the Securities and Exchange Commission on July 26, 2017)*
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(a)(5)(B)
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Press Release issued by Open Text Corporation on August 8, 2017*
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(a)(5)(C)
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Form of summary advertisement, published in
The New York Times
on August 8, 2017*
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(b)(1)
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Amended and Restated Credit Agreement among Open Text Corporation and certain of its subsidiaries, the Lenders, Barclays Bank PLC, Royal Bank of Canada, Barclays Capital and RBC Capital Markets, dated as of November 9, 2011,
filed as Exhibit 99.1 to the Current Report on Form
8-K,
filed on November 9, 2011 by Open Text Corporation and incorporated by reference herein.*
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(b)(2)
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First Amendment to Amended and Restated Credit Agreement and Amended and Restated Security and Pledge Agreement, dated as of December 16, 2013, between Open Text ULC, as term borrower, Open Text ULC, Open Text Inc. and Open
Text Corporation, as revolving credit borrowers, the domestic guarantors party thereto, each of the lenders party thereto, Barclays Bank PLC, as sole administrative agent and collateral agent, and Royal Bank of Canada, as documentary credit lender,
filed as Exhibit 10.1 to the Current Report on Form
8-K,
filed on December 20, 2013 by Open Text Corporation and incorporated by reference herein.*
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(b)(3)
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Second Amendment to Amended and Restated Credit Agreement, dated as of December 22, 2014, between Open Text ULC, as term borrower, Open Text ULC, Open Text Holdings, Inc. and Open Text Corporation, as revolving credit
borrowers, the domestic guarantors party thereto, each of the lenders party thereto, Barclays Bank PLC, as sole administrative agent and collateral agent, and Royal Bank of Canada, as documentary credit lender, filed as Exhibit 10.1 to the Current
Report on Form
8-K,
filed on December 23, 2014 by Open Text Corporation and incorporated by reference herein.*
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(b)(4)
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Amendment No. 3 to Second Amended and Restated Credit Agreement, dated as of May 5, 2017, among Open Text ULC, Open Text Holdings, Inc. and Open Text Corporation, as borrowers, the guarantors party thereto, each of the
lenders party thereto, and Barclays Bank PLC, as sole administrative agent and collateral agent, filed as Exhibit 10.2 to the Quarterly Report on Form
10-Q,
filed on May 8, 2017 by Open Text Corporation
and incorporated by reference herein.*
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(b)(5)
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Agreement and Plan of Merger by and among Open Text Corporation, Galileo Acquisition Sub Inc. and Guidance Software, Inc., dated as of July 25, 2017, filed as Exhibit 2.1 to the Current Report on Form
8-K,
filed on July 26, 2017 by Guidance Software, Inc. and incorporated by reference herein.*
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(d)(1)
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Agreement and Plan of Merger, dated as of July 25, 2017, by and among Open Text Corporation, Galileo Acquisition Sub Inc. and Guidance Software, Inc.*
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(d)(2)
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Tender and Voting Agreement, dated as of July 25, 2017, by and among Open Text Corporation, Galileo Acquisition Sub Inc. and certain stockholders of Guidance Software, Inc. (incorporated by reference to Exhibit 6 to Schedule
13D filed by OpenText Corporation with the Securities and Exchange Commission on August 4, 2017).*
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(d)(3)
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Confidentiality Agreement, dated as of November 11, 2016, by and between Open Text Corporation and Guidance Software, Inc. (incorporated by reference to Exhibit 7 to Schedule 13D filed by Open Text Corporation with the
Securities and Exchange Commission on August 4, 2017).*
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(d)(4)
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Exclusivity Agreement, dated as of June 26, 2017, by and between Open Text Corporation and Guidance Software, Inc.*
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(g)
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Not applicable
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(h)
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Not applicable
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*
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Previously filed
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