Open Text Corp SC TO-T/A, filed Dec 21, 2021
Open Text Corp (OTEX)
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. 3)
Zix Corporation
(Name of Subject Company)
Zeta Merger Sub Inc.
(Offeror)
Open Text Corporation
(Parent of Offeror)
(Names of Filing Persons)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
98974P100
(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:
James E. Langston
Aaron J. Meyers
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** | |
| $699,670,491.00 | $64,859.45 | |
| * | 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) 56,790,468 shares of common stock issued and outstanding and (y) the offer price of $8.50 per share, (b) the product of (x) 777,010 shares issuable upon the exercise of outstanding options with an exercise price less than the offer price of $8.50 per share and (y) $4.05 per share, which is the offer price of $8.50 per share less the weighted-average exercise price for such options, (c) the product of (x) 2,715,756 shares issuable pursuant to granted and outstanding restricted stock units and performance stock units and (y) the offer price of $8.50 per share, (d) the product of (x) 1,596,829 shares issuable pursuant to granted and outstanding restricted common stock and restricted performance common stock and (y) the offer price of $8.50 per share, and (f) the product of (x) 20,840,900 shares of common stock issuable pursuant to the conversion of preferred stock on December 20, 2021 and (y) the offer price of $8.50 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 2022, effective October 1, 2021, by multiplying the transaction value by 0.00009270. |
| ☒ | 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: $64,859.45 |
Filing Party: Zeta Merger Sub Inc. and Open Text Corporation | |
| Form or Registration No.: Schedule TO |
Date Filed: November 22, 2021 |
| ☐ | 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. 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.
Item 12. Exhibits
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
| Exhibit No. |
Description | |
| (a)(5)(M) | Press Release issued by Open Text Corporation on December 21, 2021 | |
| (d)(8) | First Amendment to the Tender and Voting Agreement, dated December 18, 2021, by and among Open Text Corporation, Zeta Merger Sub Inc. and certain stockholders of Zix Corporation | |
Amendments to the Offer to Purchase and the Other Exhibits to the Schedule TO
All references to “one minute after 11:59 P.M., Eastern time, on December 20, 2021” in the Offer to Purchase (Exhibit (a)(1)(A) to the Schedule TO), Form of Letter of Transmittal (Exhibit (a)(1)(B) to the Schedule TO), Form of Notice of Guaranteed Delivery (Exhibit(a)(1)(C) to the Schedule TO), Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies, and Other Nominees (Exhibit(a)(1)(D) to the Schedule TO), and Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(E) to the Schedule TO) are hereby amended and replaced with “one minute after 11:59 P.M., Eastern time, on December 22, 2021”. The Offer to Purchase and Items 1 through 9 and 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in any of the foregoing exhibits, are hereby amended and supplemented to reflect the same.
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: December 21, 2021
| OPEN TEXT CORPORATION | ||||
| By: | /s/ Gordon A. Davies | |||
| Name: |
Gordon A. Davies | |||
| Title: | EVP, CLO and Corporate Development | |||
| ZETA MERGER SUB INC. | ||||
| By: | /s/ Gordon A. Davies | |||
| Name: |
Gordon A. Davies | |||
| Title: |
Secretary | |||
EXHIBIT INDEX
Exhibit (a)(5)(M)
PRESS RELEASE
OpenText Extends Tender Offer for Zix Corporation
WATERLOO, ON — December 21, 2021 — In connection with the previously announced agreement to acquire Zix Corporation (NASDAQ: ZIXI) (“Zix”), OpenText™ (NASDAQ: OTEX) (TSX: OTEX) announced today that it has extended the expiration of its tender offer for all outstanding shares of common stock of Zix at a price of U.S. $8.50 per share, through its subsidiary, Zeta Merger Sub Inc. The tender offer is now scheduled to expire at one minute after 11:59 P.M., Eastern time, on December 22, 2021 unless it is further extended. The tender offer was previously scheduled to expire at one minute after 11:59 P.M., Eastern time, on December 20, 2021.
The depositary for the tender offer has advised OpenText that as of the previous expiration time there were validly tendered and not withdrawn a total of approximately 33,967,027 shares of Zix common stock, including approximately 5,397,062 shares of Zix common stock tendered pursuant to a notice of guaranteed delivery. The tender offer is being extended to allow for those shares tendered pursuant to a notice of guaranteed delivery to be delivered, which can take up to two business days. Assuming no validly tendered shares of common stock are withdrawn, all shares of common stock subject to a notice of guaranteed delivery are delivered, and all shares of Zix Series A Preferred Stock are converted into Zix common stock and validly tendered pursuant to the Tender and Voting Agreement with Zephyr Holdco LLC, approximately 54,807,927 shares of Zix common stock would be tendered, representing approximately 70% of the shares outstanding (including shares of common stock issuable upon the conversion of Series A Preferred Stock) and the minimum tender condition would be satisfied. All other conditions to the tender offer (other than such conditions which by their terms can only be satisfied on the expiration date) have been satisfied. Accordingly, OpenText and Zix expect the transaction to close on Thursday, December 23, 2021.
All terms and conditions of the tender offer remain unchanged during the extension period. Zix shareholders who have already tendered their shares do not have to re-tender their shares or take any other action as a result of the extension.
Complete terms and conditions of the tender offer are set forth in the Offer to Purchase, Letter of Transmittal and other related materials, which have been filed by OpenText with the SEC on November 22, 2021. In addition, Zix filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC relating to the tender offer on November 23, 2021.
Copies of the Offer to Purchase, Letter of Transmittal and other related materials are available free of charge from Georgeson LLC, the information agent for the tender offer, toll-free at (888) 607-6511. Computershare Trust Company, N.A. is acting as depositary for the tender offer.
Additional Information
This communication is provided for informational purposes only and does not constitute an offer to purchase or the solicitation of an offer to sell any securities. OpenText has filed with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO containing an offer to purchase, a form of letter of transmittal and other documents relating to the tender offer, and Zix has filed with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the tender offer. OpenText, Zeta Merger Sub Inc. and Zix have mailed these documents to the Zix stockholders. Investors and stockholders are urged to read those documents and other relevant documents filed or to be filed with the SEC carefully as they contain important information about OpenText, Zix, the tender offer and related matters. Those documents as well as OpenText’s and Zix’s other public filings with the SEC may be obtained without charge at the SEC’s website at www.sec.gov. OpenText’s public filings with the SEC may be obtained at OpenText’s website at http://investors.opentext.com and Zix’s public filings with the SEC may be obtained at Zix’s website at http://investor.zixcorp.com. The offer to purchase and related materials may also be obtained for free by contacting Georgeson LLC, the information agent for the tender offer, toll-free at (888) 607-6511.
About OpenText
OpenText, The Information Company™, enables organizations to gain insight through market leading information management solutions, powered by OpenText Cloud Editions. For more information about OpenText (NASDAQ: OTEX, TSX: OTEX) visit opentext.com.
About Zix Corporation
Zix Corporation (Zix) is a leader in email security, productivity, and compliance. Trusted by the nation’s most influential institutions in healthcare, finance, and government, Zix delivers a superior experience and easy-to-use solutions for email encryption and data loss prevention, advanced threat protection, unified information archiving and cloud to cloud backup. Focusing on the protection of business communication, Zix enables its customers to better secure data and meet compliance needs. Zix is publicly traded on the Nasdaq Global Market under the symbol ZIXI. For more information, visit www.zixcorp.com.
Cautionary Statement Regarding Forward-Looking Statements
Certain statements in this press release, including statements regarding OpenText’s plans, objectives, expectations and intentions relating to the acquisition, the acquisition’s expected contribution to OpenText’s results, financing and closing of the acquisition, as well as the expected timing and benefits of the acquisition, impact on future financial performance including in respect of annual recurring revenues, cloud growth, adjusted EBITDA, cash flows and earnings, 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 OpenText operates, as well as the impact of the ongoing COVID-19 pandemic. 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.
Copyright © 2021 Open Text. All Rights Reserved. Trademarks owned by OpenText. One or more patents may cover this product(s). For more information, please visit https://www.opentext.com/patents.
Further information, please contact:
Harry E. Blount
Senior Vice President, Investor Relations
Open Text Corporation
415-963-0825
investors@opentext.com
2
Exhibit (d)(8)
Execution Version
FIRST AMENDMENT TO THE
TENDER AND VOTING AGREEMENT
This FIRST AMENDMENT TO THE TENDER AND VOTING AGREEMENT (this “Amendment”), is made and entered into as of December 18, 2021, by and among Open Text Corporation, a corporation incorporated under the federal laws of Canada (“Parent”), Zeta Merger Sub Inc., a Texas corporation (“Merger Sub”), and each of the Stockholders who are party to the Tender and Voting Agreement (defined below). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Tender and Voting Agreement, dated as of November 7, 2021, by and among Parent, Merger Sub and the Stockholders (the “Tender and Voting Agreement”).
WHEREAS, pursuant to the Tender and Voting Agreement, the Stockholders have agreed, among other things, to tender in the Offer all Shares beneficially owned by such Stockholders and not withdraw any such Shares previously tendered; and
WHEREAS, the parties desire to amend Annex I to the Tender and Voting Agreement to correctly set forth the number of Shares of which each Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act).
NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants, representations, warranties and agreements contained in the Tender and Voting Agreement, the parties hereto agree as follows:
1. Annex I to the Tender and Voting Agreement is hereby deleted in its entirety and Annex I attached hereto shall be substituted therefor as if originally attached to the Tender and Voting Agreement.
2. Except as modified by this Amendment, in all other respects, the terms and conditions of the Tender and Voting Agreement shall remain in full force and effect.
3. Section 4.15 (Severability), Section 4.09 (Governing Law), Section 4.10 (Jurisdiction), Section 4.12 (Waiver of Jury Trial) and Section 4.20 (Counterparts) of the Tender and Voting Agreement shall apply mutatis mutandis to this Amendment.
[Signature Page Follows]
IN WITNESS WHEREOF, Parent and Merger Sub have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized.
| OPEN TEXT CORPORATION | ||
| By: | /s/ Gordon A. Davies | |
| Name: Gordon A. Davies | ||
| Title: EVP, CLO and Corporate Development | ||
| ZETA MERGER SUB INC. | ||
| By: | /s/ Gordon A. Davies | |
| Name: Gordon A. Davies | ||
| Title: Director and Secretary | ||
[Signature Page to First Amendment to Tender and Voting Agreement]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ Mark J. Bonney |
| Printed Name: Mark J. Bonney |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of Mark J. Bonney, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/16/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ Maryclaire Campbell |
| Printed Name: Maryclaire Campbell |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of Maryclaire Campbell, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/17/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ Taher A. Elgamal |
| Printed Name: Taher A. Elgamal |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of Taher A. Elgamal, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/17/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ Robert C. Hausmann |
| Printed Name: Robert C. Hausmann |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of Robert C. Hausmann, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/16/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ Maribess L. Miller |
| Printed Name: Maribess L. Miller |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of Maribess L. Miller, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/16/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ David J. Wagner |
| Printed Name: David J. Wagner |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of David J. Wagner, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/17/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ Ryan L. Allphin |
| Printed Name: Ryan L. Allphin |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of Ryan L. Allphin, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/17/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ John P. Di Leo |
| Printed Name: John P. Di Leo |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of John P. Di Leo, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/17/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ David E. Rockvam |
| Printed Name: David E. Rockvam |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of David E. Rockvam, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/16/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
IN WITNESS WHEREOF, the Stockholder below has severally caused this Amendment to be duly executed as of the day and year first above written.
| STOCKHOLDER |
| /s/ Noah F. Webster |
| Printed Name: Noah F. Webster |
[Signature Page to First Amendment to Tender and Voting Agreement]
TENDER AND VOTING AGREEMENT – SPOUSAL CONSENT
I, [REDACTED], spouse of Noah F. Webster, have read and approve the foregoing Tender and Voting Agreement and the First Amendment thereto (as amended, the “Agreement”). In consideration of the terms and conditions as set forth in the Agreement, I hereby appoint my spouse as my attorney in fact with respect to the exercise of any rights and obligations under the Agreement, and agree to be bound by the provisions of the Agreement insofar as I may have any rights or obligations in the Agreement under the community property laws of the State of Texas or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Agreement.
| Date: 12/16/2021 |
| Signature of Spouse: [REDACTED] |
| Printed Name of Spouse: [REDACTED] |
[Signature Page – Spousal Consent]
ANNEX I
| Stockholder |
Shares Beneficially Owned | |||
| Mark J. Bonney – Director |
144,700 | |||
| Maryclaire Campbell – Director |
43,641 | |||
| Taher A. Elgamal – Director |
81,175 | |||
| Robert C. Hausmann – Director |
111,485 | |||
| Maribess L. Miller – Director |
123,937 | |||
| David J. Wagner – Director |
737,278 | |||
| Ryan L. Allphin – Sec 16 |
50,000 | |||
| John P. Di Leo – Sec 16 |
132,648 | |||
| David E. Rockvam – Sec 16 |
338,840 | |||
| Noah F. Webster – Sec 16 |
91,948 | |||
| Total |
1,855,652 | |||