Amended Tender Offer Statement by Third Party (sc To-t/a)
27 Octobre 2021 - 10:56PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
(Amendment No. 1)
TENDER OFFER
STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Petroteq Energy Inc.
(Name
of Subject Company (Issuer))
2869889 Ontario Inc.
(Offeror)
an indirect,
wholly-owned subsidiary of
Viston United Swiss AG
(Parent of Offeror)
(Names of
Filing Persons)
Common Shares
(Title of Class of Securities)
71678B107
(CUSIP Number of
Class of Securities)
Zbigniew Roch
President
Viston United Swiss AG
Haggenstreet 9, 9014
St.
Gallen
Switzerland
+49 7136 9918888
(Name,
address, and telephone number of person authorized to receive notices and communications on behalf of filing persons)
Copy
to:
Richard Raymer
Jonathan A. Van Horn
Dorsey & Whitney LLP
TD Canada Trust Tower
Brookfield Place
161 Bay
Street, Suite 4310
Toronto, ON Canada M5J 2S1
(416) 367-7370
CALCULATION
OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$469,843,700.95
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$43,554.51
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*
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Estimated solely for purposes of calculating the filing fee. The transaction value was calculated by adding the
sum of (i) 564,293,279, which is the estimated number of issued and outstanding common shares (the “Common Shares”) of Petroteq Energy Inc. (the “Company”), multiplied by $0.5989***; (ii) 3,000,000, which is the estimated
number of Common Shares issuable pursuant to outstanding options with an exercise price less $0.5989, multiplied by $0.5139, which is $0.5989 minus the weighted average exercise price for such options of $0.0850; (iii) 77,304,886, which
is the estimated number of Common Shares issuable pursuant to outstanding warrants with an exercise price less than $0.5989, multiplied by $0.5128, which is $0.5989 minus the weighted average exercise price for such warrants of $0.0861***;
and (iv) 151,452,347, which is the estimated number of Common Shares issuable pursuant to outstanding convertible debentures of the Company, multiplied by $0.5989. The foregoing figures are based solely on the information contained in the
Company’s Form 10-Q for the quarterly period ended May 31, 2021 (as filed on August 19, 2021) and disclosure contained in subsequent filings made by the Company with the Securities and Exchange
Commission and are estimated as of October 22, 2021, the most recent practicable date.
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**
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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 0.00009270.
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***
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$0.5989 is the U.S. Dollar equivalent of the Offer Price of Cdn$0.74, based on the daily exchange rate of
the Canadian dollar, expressed in United States dollars, as quoted by the Bank of Canada on October 22, 2021, of U.S.$1.00 = Cdn$1.2357. $0.0861 is the U.S. Dollar equivalent of Cdn$0.1064, which is the weighted average exercise price,
based on the daily exchange rate of the Canadian dollar, expressed in United States dollars, as quoted by the Bank of Canada on October 22, 2021, of U.S.$1.00 = Cdn$1.2357.
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☒
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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.
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Amount Previously Paid: $43,554.51
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Filing Party: 2869889 Ontario Inc.
and Viston United Swiss AG
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Form or Registration No.: Schedule TO-T
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Date Filed: October 25, 2021
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☐
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Check the box if the filing relates solely to preliminary communications made before the commencement of a
tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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third-party tender offer subject to Rule 14d-1.
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issuer tender offer subject to Rule 13e-4.
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going-private transaction subject to Rule 13e-3.
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☐
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender offer. ☐
This Amendment No. 1 (“Amendment No. 1”) amends and supplements the Tender Offer
Statement on Schedule TO (together with any amendments and supplements hereto, the “Schedule TO”) originally filed by (i) 2869889 Ontario Inc., an Ontario corporation (the “Offeror”) and an indirect, wholly-owned subsidiary of
Viston United Swiss AG, a company limited by shares (AG) (“Viston”) and (ii) Viston. The Schedule TO relates to the offer (the “Offer”) by the Offeror to purchase all of the issued and outstanding common shares (the
“Common Shares”) of Petroteq Energy Inc., an Ontario corporation (the “Company”), which includes any Common Shares that may become issued and outstanding after the date of the Offer but prior to the expiry time of the Offer (the
“Expiry Time”) upon the exercise, exchange or conversion of the options to acquire Common Shares granted pursuant to the the Company’s stock option plan (the “Options”), the warrants (the “Warrants”), the
convertible debentures (the “Convertible Debentures”) and any securities of the Company that are exercisable or exchangeable for or convertible into Common Shares (collectively, the “Convertible Securities”), at a purchase price
of Cdn$0.74 in cash per Common Share (the “Offer Price”) net to the seller in cash, without interest thereon and subject to any required tax withholding, upon the terms and subject to the conditions set forth in the offer to purchase dated
October 25, 2021 (the “Offer to Purchase”) and the circular in connection with the accompanying Offer to Purchase, dated October 25, 2021 (the “Circular”, and collectively, the “Offer to Purchase and
Circular”), and in the related letter of transmittal (the “Letter of Transmittal”) and notice of guaranteed delivery (the “Notice of Guaranteed Delivery”), copies of which are attached hereto as Exhibits (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii), respectively.
All information contained in the Schedule TO is hereby incorporated into this Amendment No. 1 by
reference, except that such information is hereby amended and supplemented to the extent specifically provided herein. All capitalized terms used in this Amendment No. 1 without definition have the meanings ascribed to them in the Schedule TO.
The items of the Schedule TO are hereby amended and supplemented as set forth below:
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
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Exhibit
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Description
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(a)(1)(vi)
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Summary Advertisement, as published in The Wall Street Journal on October 27, 2021†
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(a)(5)(iii)
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Content from the website www.PetroteqOffer.com, publicly available as of October 27, 2021†
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SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement
is true, complete and correct.
Date: October 27, 2021
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2869889 Ontario Inc.
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By:
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/s/ Zbigniew Roch
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Name: Zbigniew Roch
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Title: Chief Executive Officer
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Viston United Swiss AG
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By:
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/s/ Zbigniew Roch
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Name: Zbigniew Roch
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Title: President
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EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(i)
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Offer to Purchase and Circular, dated October 25, 2021.*
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(a)(1)(ii)
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Letter of Transmittal.*
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(a)(1)(iii)
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Notice of Guaranteed Delivery.*
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(a)(1)(iv)
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
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(a)(1)(v)
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Letter to Clients.*
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(a)(1)(vi)
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Summary Advertisement, as published in The Wall Street Journal on October 27, 2021†
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(a)(5)(i)
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Press Release, dated October 25, 2021 relating to the launch of the Offer.*
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(a)(5)(ii)
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Content from the website www.PetroteqOffer.com, publicly available as of October 25, 2021*
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(a)(5)(iii)
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Content from the website www.PetroteqOffer.com, publicly available as of October 27, 2021†
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(b)(1)
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Long-Term Debt Financing Agreement, dated October 22, 2021, between Viston United Swiss AG and Uniexpress Investment Holding Plc.*
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(d)(1)
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Confidentiality Agreement, effective September 17, 2021, between Viston United Swiss AG and Petroteq Energy Inc.*
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*
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Previously filed with the Schedule TO.
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