BBQ (BBQ) SC TO-T/AThird party tender offer statement (amended)

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. 3)

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:

CALCULATION OF FILING FEE

Check the appropriate boxes below to designate any transactions to which the statement relates:

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:

This Amendment No. 3 (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”).

This Amendment is being filed, in part, for the purpose of disclosing the following matters:

(a) On September 2, 2022, Jeffrey Crivello vested in certain equity awards including 61,667 Restricted Stock Units (the “RSUs”), entitling Mr. Crivello to be issued 61,667 shares of the Company’s Common Stock, which shares upon issuance to Mr. Crivello would be subject to a restriction on transfer pursuant to the Tender and Support Agreement, by and among MTY, Purchaser and each shareholder party thereto (the “Support Agreement”), thereby preventing Mr. Crivello from electing to have a portion of such shares withheld by the Company to cover any Tax withholdings associated with the vesting of such RSUs. As memorialized by a written consent and waiver (“Consent and Waiver”) in favor of Mr. Crivello, Purchaser and MTY consented to, and waived any applicable restrictions under the Support Agreement with respect to, Mr. Crivello forfeiting 24,790 shares of Common Stock otherwise issuable to Mr. Crivello in connection with the vesting of the RSUs in order to facilitate a net settlement of the RSUs in satisfaction of Mr. Crivello’s applicable withholding obligations to the Company as a result of the vesting of equity awards on September 2, 2022.

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 1. Summary Term Sheet.

Item 1 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 the Summary Term Sheet of the Offer to Purchase are hereby amended and supplemented by:

Replacing the first paragraph under the question “Have any shareholders already agreed to tender their Shares in the Offer?” with the following paragraph:

Yes. We have entered into a Tender and Support Agreement (the “Support Agreement”) with certain BBQ Holdings shareholders (the “Supporting Shareholders”), subject to that certain Consent and Waiver, dated September 13, 2022, by MTY and Purchaser, pursuant to which the Supporting Shareholders have agreed, among other things, to tender all of their Shares in the Offer and take certain other actions in furtherance of the Merger. The Shares subject to the Support Agreement represent approximately 36.65% of the outstanding Shares as of August 8, 2022; provided, in the event of an Adverse Recommendation Change (as defined in the Support Agreement) by the BBQ Holdings Board, the Supporting Shareholders have agreed to tender or to cause to be tendered in the Offer, a number of Shares held by them representing, in the aggregate, 32.97% of the outstanding Shares as of the date of the Support Agreement.

Item 4. Terms of the Transaction.

Item 4 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 11 “The Merger Agreement; Other Agreements” of the Offer to Purchase are hereby amended and supplemented by:

Replacing the first paragraph under the heading “Support Agreement” with the following paragraph:

On August 8, 2022, we entered into a Tender and Support Agreement (the “Support Agreement”) with certain BBQ Holdings shareholders (the “Supporting Shareholders”), subject to that certain Consent and Waiver, dated September 13, 2022, by MTY and Purchaser, pursuant to which the Supporting Shareholders have agreed, among other things, to tender all of their Shares in the Offer and take certain other actions in furtherance of the Merger. The Shares subject to the Support Agreement represent approximately 36.65% of the outstanding Shares as of August 8, 2022; provided, in the event of an Adverse Recommendation Change (as defined in the Support Agreement) by the BBQ Holdings Board, the Supporting Shareholders have agreed to tender or to cause to be tendered in the Offer, a number of Shares held by them representing, in the aggregate, 32.97% of the outstanding Shares as of the date of the Support Agreement.

Adding the following paragraph as the second paragraph under the heading “Support Agreement”:

As memorialized in a consent and waiver, dated September 13, 2022, by Purchaser and MTY in favor of Mr. Crivello (the “Consent and Waiver”), Purchaser and MTY consented to, and agreed to waive any transfer restrictions under the Support Agreement with respect to, the forfeiture by Mr. Crivello of 24,790 shares of Common Stock otherwise issuable to Mr. Crivello in order to facilitate a net settlement of Mr. Crivello’s RSUs in satisfaction of certain applicable tax withholding obligations of Mr. Crivello to the Company as a result of the vesting of equity awards on September 2, 2022.

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:

Adding the following paragraph as the last paragraph under the heading “HSR”:

At 11:59 p.m., New York City Time, on September 7, 2022, the applicable waiting period under the HSR Act with respect to the Offer expired. Accordingly, the HSR Condition has been satisfied.

Item 12.

Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:

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.

Dated: September 14, 2022