OPT Optiva Inc

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.

Cautionary Note Regarding Forward-Looking Statements

Certain information contained in this press release, including any information as to ESW’s estimates, strategy, projects, plans, prospects, future outlook, anticipated events or results or future financial or operating performance and ESW`s intention to make an Offer may constitute “forward-looking information” within the meaning of Canadian securities laws. All statements, other than statements of historical fact, constitute forward-looking information. Forward-looking information can often, but not always, be identified by the use of words such as “intends”, “plans”, “expects”, “is expected”, “budget”, “scheduled”, “estimates”, “forecasts”, “anticipates”, “predicts”, “potential”, “continue” or “believes”, or variations (including negative variations) of such words, or statements that certain actions, events or results “may”, “could”, “would”, “should”, “might”, “potential to”, or “will” be taken, occur or be achieved or other similar expressions concerning matters that are not historical facts. The purpose of forward-looking information is to provide the reader with information about management’s expectations and plans. Readers are cautioned that forward-looking statements are not guarantees of future performance. All forward-looking statements made or incorporated in this press release are qualified by these cautionary statements.

Forward-looking information involves significant risks, assumptions, uncertainties and other factors that may cause actual future realities or anticipated events to differ materially from those expressed or implied in any forward-looking information and, accordingly, should not be read as guarantees of future performance or realities. Material factors or assumptions that were applied in formulating the forward-looking information contained herein include the assumption that the business and economic conditions affecting Optiva’s operations will continue substantially in their current state, including, without limitation, with respect to industry conditions, general levels of economic activity, continuity and availability of personnel and third party service providers, local and international laws and regulations, foreign currency exchange rates, litigation and intellectual property, and interest rates, inflation, taxes, and that there will be no unplanned material changes to Optiva’s facilities, equipment, software, pricing models, operations, customer and employee relations and credit arrangements, and the assumption that the conditions of the Offer will be satisfied. ESW cautions that the foregoing list of material factors and assumptions is not exhaustive. Many of these assumptions are based on factors and events that are not within the control of ESW and there is no assurance that they will prove correct. The risks and other factors that may cause actual future realities or anticipated events to differ materially from those expressed or implied in any forward-looking information include, but are not limited to the financial and operational performance of Optiva; the potential interference of activist shareholders; the results of the valuation; the ability of the ESW to obtain the Exemption; the cooperation of management of Optiva in the Offer process and/or defensive tactics that may be employed; sales of Shares in the public market; political factors; the capital requirements associated with operations; dependence on key personnel; dependence on sales channel partners and suppliers; dependence on related party contracts; compliance with regulations; protection of intellectual property; litigation and product liability; competition; and satisfaction of the conditions of the Offer. There is no assurance that the conditions of the Offer will be satisfied or that the Offer will be successfully completed.

Actual performance or achievement could differ materially from that expressed in, or implied by, any forward-looking information in this press release and, accordingly, investors should not place undue reliance on any such forward-looking information. Further, any forward-looking information speaks only as of the date on which such statement is made, and ESW does not undertake any obligation to update any forward-looking information to reflect information, events, results, circumstances or realities after the date on which such statement is made or to reflect the occurrence of unanticipated events, except as required by applicable Canadian securities laws. All forward-looking information contained in this press release is qualified by such cautionary statements. New risk factors emerge from time to time, and it is not possible for ESW to predict all of such risk factors and to assess in advance the impact of each such factor on Optiva’s business or the extent to which any factor, or combination of factors, may cause actual realities to differ materially from those contained in any forward-looking information.