Item 2.01. Completion of Acquisition or Disposition of Assets
Pursuant to the Merger Agreement, on August 24, 2022, Merger Sub commenced the
Offer to acquire all of the outstanding shares of Common Stock ("Shares") for
$17.25 per Share, net to the seller in cash, without interest and subject to any
required withholding of taxes (the "Merger Consideration"), upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated August 24,
2022 (as amended or supplemented), and the related Letter of Transmittal.
The Offer and withdrawal rights expired one minute following 11:59 p.m. (12:00
midnight), New York City Time, on Wednesday, September 21, 2022 (the "Expiration
Time"). Broadridge Corporate Issuer Solutions, Inc., in its capacity as
depositary and paying agent for the Offer (the "Depositary and Paying Agent"),
has advised Parent and Merger Sub that, as of the Expiration Time, a total of
9,724,637 Shares (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validly tendered and not withdrawn pursuant to the Offer, representing
approximately 91.94% of the outstanding Shares.
All conditions to the Offer having been satisfied, on September 26, 2022, Merger
Sub accepted for payment (such time of acceptance for payment, the "Acceptance
Time") all such Shares validly tendered and not properly withdrawn pursuant to
the Offer on or prior to the Expiration Time, and payment for such Shares will
be made by the Depositary and Paying Agent in accordance with the terms of the
Offer.
On September 27, 2022, pursuant to the terms of the Merger Agreement and in
accordance with Section 302A.613(4) of the Minnesota Business Corporation Act
(the "MBCA"), Merger Sub merged with and into the Company, with the Company
surviving as a wholly-owned subsidiary of Parent. At the effective time of the
Merger (the "Effective Time"), each issued and outstanding Share (other than any
Shares (i) owned by BBQ Holdings as treasury stock, (ii) owned by Merger Sub or
Parent (or their respective wholly-owned subsidiaries) or that were irrevocably
accepted for purchase by Merger Sub in the Offer, or (iii) held by the Company's
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) was canceled and converted automatically into the right
to receive an amount in cash equal to the Merger Consideration.
In addition, at the Effective Time, (i) each outstanding Company stock option,
whether or not then exercisable or vested, was canceled and converted into the
right to receive an amount in cash, without interest and subject to any required
withholding taxes, equal to the excess, if any, of the Merger Consideration over
the per share exercise price applicable to such Company stock option, multiplied
by the total number of shares subject to such Company stock option, and
(ii) each outstanding award of restricted stock units and each outstanding
unvested award of restricted stock vested as of immediately before the Effective
Time and was canceled and converted into the right to receive an amount in cash,
without interest and subject to any required withholding taxes, equal to the
Merger Consideration, multiplied by the number of shares of Common Stock subject
to such award.
The aggregate consideration paid in the Offer and the Merger was approximately
$192,462,276.69, excluding related transaction fees and expenses. The aggregate
consideration, and related fees and expenses were funded with cash on hand and
. . .
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing
On September 27, 2022, the Company notified the Nasdaq Global Select Market
("Nasdaq") of the consummation of the Merger and requested that Nasdaq file with
the SEC a notification on Form 25 to delist and deregister the Shares under
Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
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Nasdaq filed the Form 25 with the SEC on September 27, 2022. The Shares were
suspended from listing on the Nasdaq Stock Market after the close of trading on
September 27, 2022, with such suspension deemed effective prior to the markets
opening on September 28, 2022. The Company intends to file with the SEC a Form
15 under the Exchange Act requesting the deregistration of the Shares and the
suspension of the Company's reporting obligations under Section 13 and 15(d) of
the Exchange Act.
Item 3.03. Material Modification to Rights of Security Holders
The information set forth in Item 2.01, Item 5.01, and Item 5.03 of this Current
Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.01. Change in Control of Registrant
The information set forth in Item 2.01, Item 5.02, and Item 5.03 of this Current
Report on Form 8-K is incorporated by reference into this Item 5.01.
As a result of the completion of the Offer, a change of control of the Company
occurred at the Acceptance Time. Upon the consummation of the Merger, the
Company became a wholly-owned subsidiary of Parent.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
Departure of Directors; Election of Directors
In connection with the consummation of the Merger, each of Bryan Wolff, Charles
Davidson, Peter Haeg, and Rachel Maga, resigned from the Board of Directors of
the Company (the "Board") and from the board of directors of any subsidiary of
the Company and from all committees thereof on which such directors served,
effective as of the Effective Time. On September 27, 2022, pursuant to the
Merger Agreement, and in connection with the consummation of the Merger, the
directors of Merger Sub became the directors of the Company. The new members of
the Company's Board are Eric Lefebvre, Renee St-Onge and Jeff Smit. In addition
to the directors of Merger Sub, Parent has appointed Jeffery Crivello to the
Board, effective as of the Effective Time.
Following completion of the Merger, the Board appointed the following new
officers of the Company: Eric Lefebvre, as President and Chief Executive
Officer, Renee St-Onge as Treasurer and Chief Financial Officer, Jeff Smit as
Vice President, and Jenny Moody as Secretary. In addition, the Board appointed
the Company's former Chief Executive Officer, Jeffery Crivello, as Co-Chief
Operating Officer and the Company's former Chief Operating Officer, Albert Hank,
as Co-Chief Operating Officer.
Information regarding the new directors and officers has been previously
disclosed on Schedule I of the Offer to Purchase as filed with the Tender Offer
Statement on Schedule TO on August 24, 2022.
Other than as set forth above, the Company is not aware of any arrangements or
understandings between the foregoing persons, on the one hand, and any other
person, on the other hand, pursuant to which they were selected to their new
positions with the Company. Other than as set forth above, the Company is not
aware of any transaction in which the foregoing persons have an interest
requiring disclosure under Item 404(a) of Regulation S-K.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
Pursuant to the terms of the Merger Agreement, at the Effective Time, the
Company's Articles of Incorporation and Bylaws were amended and restated in
their entirety. Copies of the Amended and Restated Articles of Incorporation of
the Company and the Amended and Restated Bylaws of the Company are filed as
Exhibits 3.1 and 3.2 to this Current Report on Form 8-K, respectively, and are
incorporated by reference into this Item 5.03.
Item 8.01 Other Events
On September 27, 2022, the Company and MTY issued a press release announcing the
closing of the transactions contemplated by the Merger Agreement. A copy of this
press release is attached as Exhibit 99.1 hereto and is incorporated by
reference into this Item 8.01.
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Item 9.01 Financial Statements and Exhibits
(d) Exhibits. The following exhibits are filed with this report:
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
2.1 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. (incorporated by reference to Exhibit 2.1 to the
Current Report on Form 8-K filed by BBQ Holdings, Inc. on August 9,
2022).
3.1 Amended and Restated Articles of Incorporation of BBQ Holdings,
Inc.
3.2 Amended and Restated Bylaws of BBQ Holdings, Inc.
99.1 Joint press release issued by MTY Food Group Inc. and BBQ Holdings,
Inc., dated September 27, 2022.
104 Cover Page Interactive Data File ( embedded within the Inline XBRL
document).
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