ESW Capital applies for OSC exemption and commits to $60 bid for Optiva

CPE News (8/6/2020) – ESW Capital, LLC said it has delivered today an application to the Ontario Securities Commission (OSC) for an exemption from the “majority of the minority” requirement in connection with its previously announced intention to make an offer to acquire any and all subordinate voting shares of Optiva, Inc. (TSX: OPT) at the price of CDN $60 per share for CDN $319 million in total equity.

ESW Capital said it is firmly committed to pursuing the offer. ESW Capital invites the “activist investors” Maple Rock Capital Partners and EdgePoint Investment Group Inc. to make their own offer if they feel the ESW offer undervalues Optiva.

On July 20, 2020, Optiva redeemed all of the issued and outstanding Preferred Shares held by ESW Capital and affiliate. ESW Capital said it is in the process of challenging the legality of the redemption and has not accepted receipt of the proceeds.

As of July 28, 2020, Optiva had 5,316,057 subordinate voting shares outstanding. ESW Capital, Maple Rock Capital and EdgePoint Investment were three largest shareholders controlling approximately 27.78%, 22.35%, and 18.13% of the outstanding subordinate voting shares respectively.

photo credit: Optiva

News Release

ESW Firmly Committed to Pursuing Offer to Acquire Shares in Optiva, Inc. at $60 Per Share, Delivers Application for Exemption to Ontario Securities Commission

AUSTIN, Texas, Aug. 06, 2020 (GLOBE NEWSWIRE) — ESW Capital, LLC (“ESW”) – confirms that it has delivered today an application to the Ontario Securities Commission (the “OSC”) for an exemption from the “majority of the minority” requirement contained in Section 2.29.1(c) of National Instrument 62-104 (the “Exemption”) in connection with its previously announced intention to make an offer to acquire any and all subordinate voting shares (the “Shares”) in the capital of Optiva, Inc. (TSX:OPT) (“Optiva”) at the price of CAD $60 per Share (the “Offer”).

We want to make clear to all Optiva shareholders that ESW is firmly committed to pursuing the Offer.

Optiva and certain of its insiders, Maple Rock Capital Partners and EdgePoint Investment Group Inc. (together, the “Activists”) have been expressing their doubts around our intentions to actually proceed with the Offer – publicly, privately, and in legal filings. ESW is committed to the Offer and has delivered an application to the OSC for the Exemption in order to pave the way for minority shareholders to sell their Shares at CAD $60 per share, a price that the Chair of Optiva’s Board of Directors (“Optiva’s Board”) has described as “an extraordinary premium” to Optiva’s trading price prior to the announcement.

We ask Optiva and the Activists to support our plan to allow the minority shareholders to sell their Shares by taking the following actions by August 11, 2020:

inform the public that Optiva and the Activists support shareholder choice, and will not stand in the way of any offer that allows any willing shareholder to sell its Shares at a price of at least CAD $60 per share, even if the Activists elect not to;
notify the OSC that Optiva and the Activists support the Exemption; and
provide confirmation that, provided the OSC grants the Exemption, Optiva’s Board will consider the Offer to be a “Permitted Bid” relative to Section 1.1(ii)(ii)(B) of its July 27, 2020 Shareholder Rights Plan Agreement (the “Poison Pill”), which was adopted unilaterally by Optiva’s Board and disclosed only after the Offer was made public.

Alternatively, if the Activists feel CAD $60 per Share undervalues Optiva, we invite them to make their own offer. In such case, ESW will support the same exemption if sought by them.

To the minority shareholders: we are genuine in our desire to buy Shares from any and all shareholders that wish to sell at CAD $60 per Share and will formally launch the Offer promptly upon receiving the Exemption. If you are frustrated by the lack of support from Optiva’s Board and their apparent unwillingness to give you the opportunity to sell your Shares, express your support for the Exemption and your desire to allow the Offer to continue by emailing ESW (info@eswcapital.com) so that we may aggregate your email and submit to the OSC, with a copy to Optiva’s Board (corpaffairs@optiva.com).

It is critical that all minority shareholders voice their concerns at the upcoming AGM (August 18, 2020). A vote AGAINST the ratification of Optiva’s recently instituted Poison Pill (known as the Shareholder Rights Plan) will send a clear signal in support of the Offer.

The Activists claimed their intent was to improve governance and accountability at Optiva while increasing options for the shareholders by eliminating entrenchment. However, since that time they have put their representatives on the board, are blocking your ability to tender to our Offer, refused to release the debenture documents to other board members prior to closing, instituted the Poison Pill, and have, thus far, limited participation at the AGM to those directors, officers and shareholders able to attend in person.

The actions ESW requests of Optiva and the Activists creates choice for Optiva’s minority investors. ESW looks forward to Optiva’s actions that favor shareholder choice.

Disclaimer

This press release is not a recommendation, an offer to purchase or a solicitation of an offer to sell securities of Optiva. ESW has not commenced an offer to purchase or a take-over bid for Shares as described in this press release. ESW will only commence an offer to purchase or a take-over bid for Shares by filing a take-over bid circular with the applicable securities regulatory authorities in Canada which will contain the full terms and conditions of the Offer, including details of how the Offer may be accepted. Once filed with the applicable securities regulatory authorities in Canada, the take-over bid circular and other related documentation will be available on www.sedar.com.

ESW does not seek, directly or indirectly, the power to act as proxy for any shareholder and the information contained in this news release does not and is not meant to constitute a solicitation of any proxy within the meaning of applicable securities laws. Shareholders wishing to vote by proxy should follow the instructions contained in the form of proxy provided to them by Optiva.

ESW’s address is:

ESW Capital, LLC
401 Congress Avenue, Suite 2650
Austin, TX 78701 USA
info@eswcapital.com

About ESW Capital, LLC

ESW Capital, LLC is based in Austin, Texas and is focused on buying, strengthening, and growing mature business software companies. By taking advantage of its unique operating platform, ESW revitalizes its acquisitions for sustainable success while making customer satisfaction a top priority. ESW and its affiliated companies have been in the enterprise software space since 1988, and the group includes notable brands such as Aurea, Ignite Technologies, Trilogy and Versata.