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Share Name | Share Symbol | Market | Type |
---|---|---|---|
BBQ Holdings Inc | NASDAQ:BBQ | 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% | 17.24 | 14.30 | 17.26 | 0 | 01:00:00 |
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. 1)
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. 1 (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.
Amendments to the Offer to Purchase
Item 11. Additional Information.
Item 11 of the Schedule TO (and Items 1 through 11 of the Schedule TO, to the extent such items incorporate by reference the information contained in the Offer to Purchase) and the disclosure under Section 16 Certain Legal Matters; Regulatory Approvals of the Offer to Purchase are hereby amended and supplemented by:
Inserting after the subsection titled Dissenters Rights a new subsection entitled Certain Litigation and the disclosure set forth below:
On August 24, 2022, Shiva Stein, a purported shareholder, filed a lawsuit alleging violations of Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 (the Exchange Act) made in connection with the proposed Offer and related transactions in the United States District Court in the Southern District of New York. The complaint is captioned Stein v. BBQ Holdings, Inc., et al., case number 1:22-cv-7206. The complaint alleges, among other things, that BBQ Holdings and BBQ Holdings Board of Directors violated provisions of the Exchange Act by provision of a materially incomplete and misleading Solicitation Statement on Schedule 14D-9 (the Solicitation Statement), which Solicitation Statement recommends that BBQ Holdings shareholders tender their shares in support of the proposed transaction. As relief, the complaint seeks, among other things, (i) to enjoin BBQ Holdings from taking any steps to consummate the proposed transaction unless and until the material information requested in the complaint is disclosed, (ii) rescission of the Agreement and Plan of Merger, dated as of August 8, 2022, by and among MTY Franchising USA, Inc., Grill Merger Sub, Inc. and BBQ Holdings, Inc., a copy of which is attached as Exhibit (d)(1), or grant of rescissory damages, (iii) an accounting of damages caused by such purported wrongdoing, (iv) awarding of costs and expenses related to the action and (v) other and further equitable relief. BBQ Holdings has informed Purchaser and MTY that the defendants believe that the complaint lacks merit.
Item 12. Exhibits.
Exhibit No. Description Previously filed. Confidential portions of this exhibit have been omitted. 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. /s/ Eric Lefebvre /s/ Eric Lefebvre /s/ Eric Lefebvre Dated: August 29, 2022
(g
)
None.
(h
)
None.
*
+
Item 13.
GRILL MERGER SUB, INC.
By:
Name: Eric Lefebvre
Title: Chief Executive Officer
MTY FRANCHISING USA, INC.
By:
Name: Eric Lefebvre
Title: Chief Executive Officer
MTY FOOD GROUP INC.
By:
Name: Eric Lefebvre
Title: Chief Executive Officer
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