UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
BBQ Holdings, Inc.
(Name of Subject Company)
Grill Merger Sub, Inc.
(Offeror)
(Names of Filing Persons)
MTY Franchising USA, Inc.
(Parent of Offeror)
(Names of Filing Persons)
MTY Food Group Inc.
(Indirect and Ultimate Parent of Offeror) (Names of Filing Persons)
Common stock, par value $0.01 per share
(Title of Class of Securities)
698814100
(CUSIP Number of Class of Securities)
Eric Lefebvre
Chief Executive Officer
Grill Merger Sub, Inc.
MTY Franchising USA, Inc.
MTY Food Group Inc.
8210, route Transcanadienne
St. Laurent, QC, H4S 1M5
Canada
(514) 336-9222
(Name, address and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
With a copy to:
Shai Kalansky Steven G. Rowles Morrison & Foerster LLP 12531 High Bluff Drive, Suite 100 San Diego, California 92130 United States of America (858) 720-5100 |
W. Todd Carlisle David W. Drum Dentons Sirote PC 2311 Highland Avenue South Birmingham, AL 35205 (205) 930-5100 |
CALCULATION OF FILING FEE
Transaction Valuation* | Amount of Filing Fee** | |
$193,312,450 | $17,920 | |
* | Calculated solely for purposes of determining the filing fee. The transaction value was calculated by adding (a) 10,760,055 shares of issued and outstanding common stock, par value $0.01 per share (the Shares), of BBQ Holdings, Inc., a Minnesota corporation (BBQ Holdings), multiplied by the offer price of $17.25 per Share, (b) 321,490 Shares issuable pursuant to outstanding options to acquire Shares from BBQ Holdings with an exercise price less than the offer price of $17.25 per share, multiplied by $10.13, which is the offer price of $17.25 per Share less the weighted- average exercise price for such options of $7.12 per Share, and (c) 257,670 Shares issuable pursuant to outstanding time-based and performance- based restricted stock units multiplied by the offer price of $17.25 per Share. The calculation of the filing fee is based on information provided by BBQ Holdings as of August 8, 2022. |
** | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for fiscal year 2022, issued August 23, 2021, by multiplying the transaction value by 0.0000927. |
☒ | 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: | $17,920 | Filing Party: | Grill Merger Sub, Inc. | |||
Form or Registration No: | Schedule TO | Date Filed: | August 24, 2022 |
☐ | 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. 4 (this Amendment) amends and supplements the Tender Offer Statement on Schedule TO (as amended and together with any subsequent amendments, modifications and supplements thereto, the Schedule TO), filed with the Securities and Exchange Commission on August 24, 2022, by Grill Merger Sub, Inc. (Purchaser), a Minnesota corporation and a wholly owned subsidiary of MTY Franchising USA, Inc. (MTY), a Tennessee corporation and a wholly owned subsidiary of MTY Food Group Inc. (Parent). The Schedule TO relates to the tender offer by Purchaser for any and all of the outstanding shares of common stock, par value $0.01 per share (Shares), of BBQ Holdings, Inc. (BBQ Holdings), at a price of $17.25 per Share, without interest, net to the seller in cash, and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 24, 2022, a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the Letter of Transmittal, a copy of which is attached as Exhibit (a)(1)(B), and which, together with the Offer to Purchase and other related materials, as each may be amended, modified or supplemented from time to time, constitutes the Offer).
The information set forth in the Offer to Purchase, including Schedule I thereto, is incorporated by reference to the extent stated herein in response to Items 1 through 9 and Item 11 of the Schedule TO, and is supplemented by the information specifically provided in this Amendment.
Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO.
Items 1 through 9 and Item 11.
The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as set forth below:
The Offer and withdrawal rights expired as scheduled one minute following 11:59 p.m. (12:00 midnight), New York City Time, on Wednesday, September 21, 2022. The Depositary has indicated that a total of 9,724,637 Shares (excluding Shares with respect to which notices of guaranteed delivery were delivered but which Shares were not delivered) have been validly tendered and not validly withdrawn pursuant to the Offer, representing approximately 91.94% of the outstanding Shares as of the Expiration Time. The number of Shares validly tendered and not properly withdrawn pursuant to the Offer satisfies the Minimum Condition. All conditions to the Offer having been satisfied or waived, Purchaser has accepted for payment and will promptly pay for all such Shares in accordance with the Offer.
As a result of its acceptance of the Shares tendered in the Offer, Purchaser acquired a sufficient number of Shares to complete the Merger without a vote of the shareholders of the company pursuant to Section 302A.613(4) of the MBCA. Accordingly, BBQ Holdings and Purchaser expect to consummate the Merger on September 27, 2022 pursuant to Section 302A.613(4) of the MBCA. Pursuant to the Merger Agreement, in the Merger, each Share that is issued and outstanding immediately prior to the Effective Time (other than any Shares (i) owned by BBQ Holdings as treasury stock, (ii) owned by Purchaser or MTY (or their respective wholly-owned subsidiaries) or that were irrevocably accepted for purchase by Purchaser in the Offer, or (iii) held by BBQ Holdings shareholders who properly asserted dissenters rights to obtain payment for the fair value of their Shares and who did not lose or withdraw their dissenters rights under the MBCA) will be converted automatically into the right to receive $17.25 in cash, without interest and less any applicable withholding taxes (which is the same amount per Share paid in the Offer). Following the Merger, all Shares will be delisted from NASDAQ and deregistered under the Exchange Act.
On September 26, 2022, Parent issued a press release relating to the expiration and results of the Offer. The full text of the press release is attached as Exhibit (a)(5)(B) hereto.
Item 12.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
Exhibit No. |
Description | |
(a)(5)(B) | Press Release issued by MTY Food Group Inc., dated September 26, 2022. |
Item 12. Exhibits.
* | Previously filed. |
+ | Confidential portions of this exhibit have been omitted. |
| Filed herewith. |
Item 13. Information Required by Schedule 13E-3.
Not applicable.
SIGNATURES
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
GRILL MERGER SUB, INC. | ||
By: | /s/ Eric Lefebvre | |
Name: Eric Lefebvre | ||
Title: Chief Executive Officer | ||
MTY FRANCHISING USA, INC. | ||
By: | /s/ Eric Lefebvre | |
Name: Eric Lefebvre | ||
Title: Chief Executive Officer | ||
MTY FOOD GROUP INC. | ||
By: | /s/ Eric Lefebvre | |
Name: Eric Lefebvre | ||
Title: Chief Executive Officer |
Dated: September 26, 2022
Exhibit (a)(5)(B)
MTY Food Group Inc. Announces Successful Tender Offer for BBQ Holdings, Inc. Common Stock
MONTREAL, September 26, 2022 MTY Food Group Inc. (TSX: MTY) (MTY) today announced the successful completion of its previously announced tender offer for all of the outstanding shares of common stock of BBQ Holdings, Inc. (NASDAQ: BBQ) (BBQ Holdings), at a per share price of $17.25 in cash, without interest and less any applicable withholding taxes. The tender offer was effected by Grill Merger Sub, Inc. (Merger Sub), a wholly owned subsidiary of MTY.
The depositary for the tender offer has advised MTY that, as of the expiration of the tender offer at one minute following 11:59 p.m. (12:00 midnight), New York City time, on September 21, 2022, approximately 9,724,637 shares of BBQ Holdings common stock (excluding shares with respect to which notices of guaranteed delivery were delivered but which shares were not yet delivered) had been validly tendered and not validly withdrawn, representing approximately 91.94% of BBQ Holdings outstanding shares of common stock. All conditions to the tender offer were satisfied, and the tender offer was not extended.
All shares of common stock that were validly tendered and not validly withdrawn have been accepted for purchase and will be promptly paid for by Merger Sub.
MTY expects to complete the acquisition of BBQ Holdings on September 27, 2022 through a merger of Merger Sub with and into BBQ Holdings, in accordance with Section 302A.613(4) of the Minnesota Business Corporation Act (the MBCA). Each remaining share of common stock of BBQ Holdings not purchased in the tender offer (other than shares held in the treasury of BBQ Holdings, any shares owned by MTY or any of its respective subsidiaries and shares held by any BBQ Holdings shareholder who has validly exercised its dissenters rights under the MBCA) will be converted into the right to receive the same $17.25 in cash, without interest and less any applicable withholding taxes, that will be paid in the tender offer. Upon completion of the merger, BBQ Holdings will become an indirect wholly-owned subsidiary of MTY.
Following completion of the merger, shares of common stock of BBQ Holdings will cease to be traded on NASDAQ and will no longer be listed on NASDAQ.
About MTY
MTY franchises and operates quick-service and casual dining restaurants under approximately 80 different banners in Canada, the United States and internationally. Based in Montreal, MTY is a family whose heart beats to the rhythm of its brands, the very soul of its multibranded strategy. For over 40 years, it has been increasing its presence by delivering new concepts in quick-service restaurants and making acquisitions and strategic alliances that have allowed it to reach new heights year after year. By combining new trends with operational know-how, the brands forming the MTY now touch the lives of millions of people every year. With approximately 6,660 locations in operation, the many brands of MTY have the key to responding to the different tastes and needs of consumers today and tomorrow.
For more information about MTY or the transaction, please contact Eric Lefebvre, Chief Executive Office at 1-514-336-8885 or by email at ir@mtygroup.com or visit our website, https://mtygroup.com or SEDARs website at www.sedar.com under MTYs name.
About BBQ Holdings
BBQ Holdings, Inc. (NASDAQ: BBQ) is an international restaurant company engaged in the business of franchising, and operating casual and fast casual dining restaurants. As of August 8, 2022, BBQ Holdings has multiple brands with over 100 Company-owned locations and over 200 franchised locations, including ghost kitchens operating out of the kitchen of another restaurant location or shared kitchen space. While BBQ Holdings continues to diversify its ownership in the restaurant community, it was founded with the principle of combining the art and science of barbecue to serve up the very best of the best to barbecue lovers everywhere. Along with a wide variety of BBQ favorites, BBQ Holdings also operates Granite City Food and Brewery restaurants which offer award winning craft beer and a made-from-scratch, chef driven menu featuring contemporary American cuisine. Village Inn and Bakers Square add a legendary family dining element to BBQ Holdings specializing in breakfast and pies. Tahoe Joes is known for their steaks and chops cooked over an open wood pellet broiler. Recently acquired Barrio Queen adds an authentic Mexican cuisine, and the Famous Craft Concepts brands adds bar-centric restaurants to further diversify the BBQ Holdings portfolio.
For more information about BBQ Holdings or the transaction, please contact InvestorRelations@bbq-holdings.com or visit our website, https://ir.bbqholdco.com/ or the SEC website at www.sec.gov under the BBQ Holdings name.