Item 1.02 Termination of a Material Definitive Agreement
Credit Agreement
In connection with the completion of the Merger (as defined below), on
December 23, 2021, Zix Corporation, a Texas corporation ("Zix" or the "Company")
terminated its credit agreement (the "Credit Agreement"), dated February 20,
2019, with Truist Bank, successor by merger to SunTrust Bank, as administrative
agent, collateral agent, issuing bank and swing line lender and certain other
lenders. In connection with such termination, the Company paid approximately
$216.2 million in aggregate principal, interest, fees, expenses and other
amounts and obligations that were outstanding and payable under the Credit
Agreement at the time of its termination, and all liens on assets of the Company
and its subsidiaries guaranteeing such facility, together with such subsidiary
guarantees, were released and terminated. The Company incurred no early
termination penalty in connection with termination of the Credit Agreement. The
material terms of the Credit Agreement are described in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 2020, filed by the
Company with the U.S. Securities and Exchange Commission (the "SEC") on March 5,
2021. Such description is incorporated herein by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets.
As previously announced, on November 7, 2021, the Company entered into an
Agreement and Plan of Merger (the "Merger Agreement") with Open Text
Corporation, a corporation incorporated under the federal laws of Canada
("OpenText") and, by joinder, Zeta Merger Sub Inc., a Texas corporation and a
wholly-owned subsidiary of OpenText ("Merger Sub"). Pursuant to the Merger
Agreement, and on the terms and subject to the conditions thereof, Merger Sub
commenced a tender offer on November 22, 2021 to acquire all of the outstanding
shares of common stock of the Company, $0.01 par value per share (the "Shares"),
at an offer price of $8.50 per Share in cash, without interest and subject to
applicable withholding of taxes (such amount, the "Offer Price"), upon the terms
and conditions set forth in the Offer to Purchase dated November 22, 2021 (as
amended or supplemented, the "Offer to Purchase"), and in the related Letter of
Transmittal (as amended or supplemented, the "Letter of Transmittal" and
together with the Offer to Purchase, the "Offer").
On December 23, 2021, OpenText announced that the Offer expired at one minute
after 11:59 P.M., Eastern time, on December 22, 2021 (the "Expiration Time").
The Depositary (as defined in the Offer to Purchase) has advised OpenText and
Merger Sub that immediately prior to the Expiration Time there were validly
tendered and not withdrawn (and excluding any Shares tendered pursuant to
guaranteed delivery procedures that were not yet delivered in satisfaction of
such guarantee in accordance with Section 21.459(c) of the Texas Business
Organizations Code (the "TBOC")), a total of 55,709,092 Shares. The validly
tendered Shares represent approximately 71% of the Shares outstanding
immediately prior to the Expiration Time (including following the conversion of
all of the outstanding shares of the Company's Series A Preferred Stock into
Shares immediately prior to the Expiration Time). The number of Shares
(excluding Shares tendered pursuant to guaranteed delivery procedures that were
not yet delivered in satisfaction of such guarantee in accordance with
Section 21.459(c) of the TBOC)) tendered into the Offer satisfied the Minimum
Condition (as defined in the Merger Agreement) immediately prior to the
Expiration Time. All conditions to the Offer have been satisfied or waived.
Merger Sub has accepted for payment all Shares that were validly tendered
pursuant to the Offer and not withdrawn prior to the Expiration Time.
On December 23, 2021, following the expiration of the Offer and acceptance for
payment of the Shares tendered pursuant to the Offer, OpenText completed its
acquisition of the Company pursuant to the terms of the Merger Agreement.
Pursuant to the terms and conditions of the Merger Agreement, Merger Sub merged
with and into the Company (the "Merger"), with the Company surviving the Merger
as a wholly-owned subsidiary of OpenText, without a stockholder vote to adopt
the Merger Agreement or effect the Merger in accordance with Section 21.459(c)
of the TBOC. As a result of the Merger, each Share outstanding immediately prior
to the effective time of the Merger (the "Effective Time") was cancelled and
converted into the right to receive $8.50 in cash without interest and net of
applicable withholding taxes, other than Shares held by OpenText or the Company,
or by any wholly-owned subsidiary of OpenText (including Merger Sub) or the
. . .
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
As a result of the transactions described in Item 2.01 of this Current Report on
Form 8-K, the Company no longer fulfills the numerical listing requirements of
Nasdaq. Accordingly, on December 23, 2021, (i) the Company requested that Nasdaq
suspend trading of the Shares effective prior to the start of trading on
December 23, 2021, (ii) the Company notified Nasdaq of its intent to remove its
Shares from listing on Nasdaq, and (iii) Nasdaq filed with the SEC a
Notification of Removal from Listing and/or Registration under Section 12(b) of
the Exchange Act, on Form 25 to delist and deregister the Shares. The delisting
will become effective ten days after the filing of the Form 25. The Company also
intends to file with the SEC a certification on Form 15 under the Exchange Act
requesting deregistration of the Shares and the suspension of the Company's
reporting obligations under Sections 13(a) and 15(d) of the Exchange Act and
deregistration of its Shares under Section 12(g) of the Exchange Act.
The information set forth or incorporated by reference in Item 2.01 of this
Current Report on Form 8-K is incorporated by reference into this Item 3.01.
Item 3.03 Material Modifications to Rights of Security Holders.
The information set forth or incorporated by reference in Items 2.01, 3.01 and
5.01 of this Current Report on Form 8-K is incorporated by reference into this
Item 3.03.
Item 5.01 Changes in Control of Registrant.
As a result of the completion of the Offer, a change in control of the Company
occurred. Upon the consummation of the Merger, the Company became a wholly-owned
subsidiary of OpenText. The total purchase price paid in connection with the
Offer and Merger was approximately $860 million, inclusive of the Company's cash
and debt.
The information set forth or incorporated by reference in Items 2.01, 3.01,
3.03, 5.02 and 5.03 of this Current Report on Form 8-K is incorporated by
reference into this Item 5.01.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In accordance with the terms of the Merger Agreement and effective as of the
Effective Time on December 23, 2021, David J. Wagner, Mark J. Bonney, Maryclaire
Campbell, Taher A. Elgamal, James H. Greene, Jr., Robert C. Hausmann, Maribess
L. Miller and Brandon Van Buren resigned as members of the Company's Board of
Directors and Gordon A. Davies and Madhu Ranganathan, the directors of Merger
Sub immediately prior to the Effective Time, became the directors of the
Company. At the time Mr. Davies and Ms. Ranganathan assumed the roles of
directors, it had not yet been determined on which committees, if any, of the
Company's Board of Directors each of them would serve.
In addition, effective as of the Effective Time on December 23, 2021, the
Company removed David J. Wagner as President and Chief Executive Officer, David
E. Rockvam as Vice President and Chief Financial Officer, Ryan L. Allphin as
Chief Product Officer, John P. Di Leo as Chief Revenue Officer, David J.
Robertson as Vice President, Engineering, Noah F. Webster as Chief Legal and
Compliance Officer & Secretary, Geoffrey R. Bibby as Chief Marketing Officer,
Sheila D. Carpenter as Chief Information Officer and Shirley E. Devlin as Chief
Accounting Officer; and the Company appointed Madhu Ranganathan as President and
Treasurer, and Gordon Davies as Secretary.
Information about Mr. Davies and Ms. Ranganathan is contained in the Offer to
Purchase, filed as Exhibit (a)(l)(A) to the Tender Offer Statement on Schedule
TO originally filed by OpenText and Merger Sub with the SEC on November 22,
2021, which is included as Exhibit 20.1 to this Current Report on Form 8-K and
incorporated herein by reference into this Item 5.02.
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Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Pursuant to the terms of the Merger Agreement, the Company's certificate of
incorporation and bylaws were amended and restated in their entirety, effective
as of the Effective Time. Copies of the Company's amended and restated
certificate of incorporation and amended and restated bylaws are included as
Exhibit 3.1 and 3.2, respectively, to this Current Report on Form 8-K and are
incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On December 23, 2021, OpenText issued a press release (the "Press Release")
regarding the matters described in this Current Report on Form 8-K. A copy of
the Press Release was filed as Exhibit (a)(5)(N) to Amendment 4 to the Schedule
TO filed by OpenText on December 23, 2021. The Press Release is incorporated by
reference into this Item 7.01, and the foregoing description of the Press
Release is qualified in its entirety by the full text of the Press Release. The
information in this Item 7.01 (and in the Press Release) is being furnished to,
and shall not be deemed "filed" with, the SEC for purposes of the Section 18 of
the Exchange Act. The website addresses of OpenText and the Company are included
in the Press Release as inactive textual references only. The information
contained on these websites is not part of the Press Release and shall not be
deemed furnished to the SEC.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
2.1 Agreement and Plan of Merger, dated as of November 7, 2021, by
and among Open Text Corporation and Zix Corporation (incorporated
by reference to Exhibit 2.1 to the Current Report on Form 8-K
filed by Zix Corporation on November 8, 2021)
3.1 Restated Articles of Incorporation of Zix Corporation
3.2 Third Amended and Restated Bylaws of Zix Corporation
20.1 Offer to Purchase dated November 22, 2021 (incorporated by
reference to Exhibit (a)(1)(A) to the Schedule TO filed by Open
Text Corporation on November 22, 2021)
99.1 Press Release issued by Open Text Corporation on December 23,
2021 (incorporated by reference to Exhibit (a)(5)(N) to Amendment
4 to the Schedule TO filed by Open Text Corporation on
December 23, 2021)
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