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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Guidance Software, Inc. | NASDAQ:GUID | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 7.07 | 0.0001 | 7.00 | 0 | 01:00:00 |
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
Transaction Valuation* | Amount of Filing Fee* | |
$237 , 305 , 991 | $27 , 504 |
*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.
☒ | 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: $27,504 |
Filing Party: Galileo Acquisition Sub Inc. And Open Text Corporation |
|
Form or Registration No.: Schedule TO |
Date Filed: August 8, 2017 |
☐ | 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:
☒ | 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. |
☐ | 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. ☐
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) |
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
OPEN TEXT CORPORATION |
||
By: |
/s/ Gordon A. Davies | |
Name: Gordon A. Davies |
||
Title: EVP, CLO and Corporate Development |
||
GALILEO ACQUISITION SUB INC. |
||
By: |
/s/ Gordon A. Davies | |
Name: Gordon A. Davies |
||
Title: President and Secretary |
EXHIBIT INDEX
1 Year Guidance Software, Inc. Chart |
1 Month Guidance Software, Inc. Chart |
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