Genius Sports Ltd SC TO-I/A, filed Jan 18, 2023
Genius Sports Ltd (GENI)
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. 5)
GENIUS SPORTS LIMITED
(Name of Subject Company and Filing Person (issuer))
Warrants to Acquire Ordinary Shares
(Title of Class of Securities)
G3934V 117
(CUSIP Number of Class of Securities)
Genius Sports Group
10 Bloomsbury Way, 9th Floor
London, United Kingdom WC1A 2SL
Telephone: +44 (0) 20 7851 4060
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
| Ross M. Leff, P.C. Tamar Donikyan Allison C. Bell Kirkland & Ellis LLP 601 Lexington Avenue New York, NY 10022 Tel: (212) 446-4800 |
Donald J. Puglisi Puglisi & Associates 850 Library Avenue #204 Newark, Delaware 19711 Telephone: (302) 738-6680 |
| ☐ | Check the box if the filing relates solely to preliminary communications 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. 5 to the Tender Offer Statement on Schedule TO (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Genius Sports Limited, incorporated under the laws of Guernsey as a non-cellular company limited by shares (the “Company,” “us” or “we”), with the Securities and Exchange Commission (the “SEC”) on November 18, 2022 (as amended and supplemented from time to time, the “Schedule TO”), and relates to the Company’s offer to the holders of its outstanding warrants to exercise their warrants on the terms set forth in the Warrant Holder Notice (as defined below) and consent (the “Consent Solicitation”) to amend the Warrant Agreement, dated as of August 13, 2020, between Continental Stock Transfer & Trust Company, as warrant agent (the “Warrant Agent”), and dMY Technology Group, Inc. II (“dMY”), which was assumed by the Company pursuant to that certain Warrant Assumption Agreement, dated as of April 20, 2021, by and among the Company, dMY and the Warrant Agent (the “Warrant Agreement”). Pursuant to the Consent Solicitation, the Warrant Agreement will be amended so that any warrants not exercised by a holder thereof on or prior to 11:59 p.m., Eastern Time, on January 19, 2023, or such later time and date to which we may extend (the “Expiration Date”), shall be exercised automatically on the holder’s behalf on the first trading day following the Expiration Date on a cashless basis at an Exercise Price that is 76.6% of the volume-weighted average price of the ordinary shares of the Company, par value $0.01 per share (the “ordinary shares”), for the one-trading day period on the New York Stock Exchange (the “NYSE”) on the second trading day prior to the Expiration Date (if and only if such Exercise Price would be less than $11.50 per share), which is expected to be January 17, 2023. This will result in such holders receiving 0.234 ordinary shares per warrant, which is 10% less than the number of ordinary shares per warrant to be received by holders that exercise cashlessly at the Reduced Exercise Price (as defined below) on or prior to the Expiration Date (the “Warrant Amendment”), upon the terms and subject to the conditions set forth in the Prospectus that is included in Amendment No. 3 to the registration statement on Form F-4 filed on January 6, 2023 (the “Prospectus”), a copy of which is attached hereto as Exhibit (a)(1)(A). If the Warrant Amendment is approved and 76.6% of the volume-weighted average price of the ordinary shares for the one-trading Day period on the NYSE on the second trading day prior to the Expiration Date is $11.50 or greater, such automatic exercise pursuant to the Warrant Amendment will occur on the holder’s behalf on a cashless basis at an exercise price of $11.50.
In addition, on December 20, 2022, the Company issued to warrant holders an amended notice (the “Warrant Holder Notice”) indicating that the Company has lowered the Exercise Price of the warrants (the “Reduced Exercise Price”) during the period in which the Consent Solicitation is open, giving effect to any withdrawal or extension (the “Consent Period) from $11.50 to an exercise price that is 74% of the volume-weighted average price of the ordinary shares for the one-trading day period on the NYSE on the second trading day prior to the Expiration Date (if and only if such Reduced Exercise Price would be less than $11.50 per share), which one-trading day period is expected to be January 17, 2023. If the Reduced Exercise Price, as calculated on the second trading day prior to the Expiration Date, is $11.50 or greater, the warrant holder would be unable to exercise their warrant at a Reduced Exercise Price and the Consent Solicitation would be withdrawn. Holders of warrants that exercise their warrants on a cashless basis at the Reduced Exercise Price during the Consent Period will receive 0.260 ordinary shares for each warrant exercised by such holder. The Warrant Holder Notice further provided that the Company has entered into an amendment to the Warrant Agreement (the “Cashless Exercise Amendment”) with the Warrant Agent pursuant to the Warrant Agreement that provides all warrant holders the option, but not the obligation, to exercise their warrants on a cashless basis during the Consent Period.
Each of the Reduced Exercise Price and the Cashless Exercise Amendment is conditioned on obtaining the requisite consents to give effect to the Warrant Amendment, which condition may be waived by the Company in its sole discretion. The consummation of any exercise of warrants by a holder thereof at the Reduced Exercise Price or on a cashless basis during the Consent Period is therefore expected to occur on the first trading day following the Expiration Date in order to determine if the condition of obtaining the requisite consents to give effect to the Warrant Amendment has been satisfied. If the Warrant Amendment is approved, on the first trading day following the Expiration Date, the warrants will cease to exist (having all been exercised, either by the holder on or prior to the Expiration Date or otherwise automatically on the first trading day following the Expiration Date) and the warrants will cease trading on the NYSE.
Prior to the Expiration Date, holders may also continue to exercise their warrants on the terms set forth in the Warrant Agreement as in effect on the date hereof, without giving effect to the Reduced Exercise Price or the Cashless Exercise Amendment, at an Exercise Price of $11.50.
The purpose of this Amendment is to amend and supplement the Schedule TO to update Item 12 of the Schedule TO to include a press release issued by the Company on January 18, 2023. Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Schedule TO.
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Item 12. Exhibits.
Item 12(a)
| Exhibit No. |
Description | |
| (a)(l)(A) | Prospectus (incorporated by reference to the Prospectus that is included in the Company’s Amendment No. 3 to Registration Statement on Form F-4 (File No. 333-268457) with the SEC on January 6, 2023). | |
| (a)(2) | Not applicable. | |
| (a)(3) | Not applicable. | |
| (a)(4) | Prospectus (incorporated by reference to Exhibit (a)(1)(A)). | |
| (a)(5)(A) | Press Release, dated November 18, 2022 (incorporated by reference to Exhibit 99.1 of the Form 6-K (File No. 001-40352) filed by the Company on November 18, 2022). | |
| (a)(5)(B) | Amended Notice to the Registered Holders of Warrants (incorporated by reference to Exhibit 4.2 of the Company’s report on Form 6-K (File No. 001-40352) filed with the SEC on December 20, 2022). | |
| (a)(5)(C)* | Press Release, dated December 16, 2022. | |
| (a)(5)(D) | Press Release, dated December 20, 2022 (incorporated by reference to Exhibit 99.1 of the Company’s report on Form 6-K (File No. 001-40352) filed with the SEC on December 20, 2022). | |
| (a)(5)(E) | Press Release, dated January 18, 2023. | |
| (b) | Not applicable. | |
| (d)(i) | Amended and Restated Genius Sports Limited Memorandum of Incorporation (incorporated by reference to Exhibit 1.1 of the Company’s Shell Company Report on 20-F (File No. 001-40352) filed with the SEC on April 27, 2021). | |
| (d)(ii) | Amended and Restated Genius Sports Limited Articles of Incorporation (incorporated by reference to Exhibit 1.2 of the Company’s Shell Company Report on 20-F (File No. 001-40352) filed with the SEC on April 27, 2021). | |
| (d)(iii) | Specimen Warrant Certificate of dMY Technology Group, Inc. II (incorporated by reference to Exhibit 4.3 of dMY Technology Group, Inc. II’s Registration Statement on Form S-1 (File No. 333-239508) filed with the SEC on August 3, 2020). | |
| (d)(iv) | Warrant Agreement between Continental Stock Transfer & Trust Company and dMY Technology Group, Inc. II (incorporated by reference to Exhibit 4.1 of dMY Technology Group, Inc. II’s Current Report on Form 8-K filed with the SEC on August 18, 2020). | |
| (d)(v) | Warrant Assumption Agreement among dMY Technology Group, Inc. II, Genius Sports Limited and Continental Stock Transfer & Trust Company, as Warrant Agent (incorporated by reference to Exhibit 2.3 of the Company’s Shell Company Report on 20-F (File No. 001-40352) filed with the SEC on April 27, 2021). | |
| (d)(vi) | Warrant Certificate of Genius Sports Limited in favor of NFL Enterprises LLC (incorporated by reference to Exhibit 2.4 of the Company’s Shell Company Report on 20-F (File No. 001-40352) filed with the SEC on April 27, 2021). | |
| (d)(vii) | Amended and Restated Solicitation Agent Agreement, dated December 20, 2022, by and between the Company and BofA Securities, Inc. (incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form F-4 (File No. 333-268457) filed with the SEC on December 20, 2022). | |
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| Exhibit No. |
Description | |
| (d)(viii) | Amended and Restated Amendment No. 1 to the Warrant Agreement by and between Continental Stock Transfer & Trust Company and Genius Sports Limited (incorporated by reference to Exhibit 4.1 of the Company’s report on Form 6-K (File No. 001-40352) filed with the SEC on December 20, 2022). | |
| (g) | Not applicable. | |
| (h)(i) | Tax Opinion of Kirkland & Ellis LLP (incorporated by reference to Exhibit 8.1 to the Company’s Registration Statement on Form F-4 (File No. 333-268457) filed with the SEC on November 18, 2022). | |
Item 12(b). Calculation of Filing Fee Table.
Filing Fee Exhibit.*
| * | Previously filed |
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| GENIUS SPORTS LIMITED | ||||||
| Date: January 18, 2023 | By: | /s Nicholas Taylor | ||||
| Name: | Nicholas Taylor | |||||
| Title: | Chief Financial Officer | |||||
| By: | /s/ Donald J. Puglisi | |||||
| Name: | Donald J. Puglisi | |||||
| Title: | Authorized Representative in the United States | |||||
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Exhibit (a)(5)(E)
Genius Sports Limited Announces the Reduced Exercise Price in the Previously Announced Consent Solicitation
LONDON & NEW YORK, January 18, 2023 –– Genius Sports Limited (NYSE: GENI) (“Genius” or the “Company”) announced today the Reduced Exercise Price and Automatic Exercise Price (each as defined below) in connection with its previously announced offer to exercise, and solicitation of consents relating to, the Company’s outstanding warrants.
Pursuant to a notice circulated to warrant holders on December 20, 2022, the Company notified warrant holders that the exercise price of the warrants would be lowered until the termination of the period during which the offer to exercise and consent solicitation is open (the “expiration date”) from $11.50 to an exercise price that is 74% of the volume-weighted average price of the ordinary shares for the one-trading day period on the New York Stock Exchange on January 17, 2023 (the “Reduced Exercise Price”).
The Reduced Exercise Price of the warrants is $3.1816. Holders of warrants that exercise their warrants on a cashless basis at the Reduced Exercise Price prior to the expiration date will receive 0.260 ordinary shares for each warrant exercised by such holder.
Pursuant to the consent solicitation, the Company’s Warrant Agreement will be amended so that any warrants not exercised by a holder thereof on or prior to the expiration date shall be exercised automatically on the holder’s behalf on the first trading day following the expiration date on a cashless basis at the exercise price that is 76.6% of the volume-weighted average price of the ordinary shares for the one-trading day period on the New York Stock Exchange on January 17, 2023 (the “Automatic Exercise Price”).
Therefore, if the consent solicitation is successful, the warrant holders who do not elect to exercise their warrants on or prior to the expiration date will have their warrants exercised at the Automatic Exercise Price of $3.2933. This will result in such holders receiving 0.234 ordinary shares per warrant, which is 10% less than the number of ordinary shares per warrant to be received by holders that exercise cashlessly at the Reduced Exercise Price on or prior to the expiration date.
If the Warrant Amendment is not approved and such condition is not waived, the warrants will retain their current terms and any exercises of warrants by holders at the Reduced Exercise Price will not be consummated and holders will be returned their warrants. The warrants currently have an exercise price of $11.50 per ordinary share and expire on April 20, 2026, subject to certain terms and conditions.
The Company has engaged BofA Securities, Inc. as solicitation agent. D.F. King & Co., Inc. has been appointed as the information and tabulation agent for the consent solicitation and Continental Stock Transfer & Trust Company is the Company’s transfer agent. Requests for documents should be directed to D.F. King & Co., Inc. at (800) 370-1749 (for warrant holders) or (212) 269-5550 (for banks and brokers) or via the following email address: geniussports@dfking.com.
Important Additional Information has been Filed with the U.S. Securities and Exchange Commission
In connection with the consent solicitation, the Company has filed with the U.S. Securities and Exchange Commission (the “SEC”) an amended registration statement on Form F-4/A and an amendment to its tender offer statement on Schedule TO. The registration statement has not yet become effective. Securities may not be sold, nor may offers to buy be accepted, prior to the time that the registration statement becomes effective.
This announcement is for informational purposes only and shall not constitute an offer to purchase or a solicitation of an offer to sell the warrants or an offer to sell or a solicitation of an offer to buy any ordinary shares in any state in which such offer, solicitation or sale would be unlawful before registration or qualification under the laws of any such state. The consent solicitation is being made only through the Schedule TO and prospectus and the complete terms and conditions of the consent solicitation are set forth in the Schedule TO and prospectus. Copies of the Schedule TO and prospectus will be available free of charge at the website of the SEC at www.sec.gov. Requests for documents may also be directed to D.F. King & Co., Inc. at the phone number and email address set forth above.
Holders of the warrants are urged to read the Schedule TO and prospectus carefully before making any decision with respect to the consent solicitation because they contain important information, including the various terms of, and conditions to, the consent solicitation.
None of the Company, any of its management or its board of directors, or the solicitation agent, the transfer agent or the information and tabulation agent makes any recommendation as to whether or not holders of warrants should consent to the Warrant Amendment in the consent solicitation.
About Genius Sports
Genius Sports is the official data, technology and broadcast partner that powers the global ecosystem connecting sports, betting and media. Our technology is used in over 150 countries worldwide, creating highly immersive products that enrich fan experiences for the entire sports industry. We are the trusted partner to over 400 sports organizations, including many of the world’s largest leagues and federations such as the NFL, EPL, FIBA, NCAA, NASCAR, AFA and Liga MX.
Genius Sports is uniquely positioned through cutting-edge technology, scale and global reach to support our partners. Our innovative use of big data, computer vision, machine learning, and augmented reality, connects the entire sports ecosystem from the rights holder all the way through to the fan.
Forward-Looking Statements
This press release contains forward-looking statements as defined in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that involve significant risks and uncertainties. All statements other than statements of historical facts are forward-looking statements. These forward-looking statements include information about our possible or assumed future results of operations or our performance. Words such as “expects,” “intends,” “plans,” “believes,” “anticipates,” “estimates,” and variations of such words and similar expressions are intended to identify such forward looking statements. Forward-looking statements in this press release may include, for example, statements about the consummation of the consent solicitation, the entry into the Warrant Amendment and the effects of the consent solicitation on our capital structure. Although the Company believes that the forward-looking statements contained in this press release are based on reasonable assumptions, you should be aware that many factors could affect our actual financial results or results of operations and could cause actual results to differ materially from those in such forward-looking statements, including but not limited to: our ability to successfully complete the consent solicitation; the effect of COVID-19 on our business; risks related to our reliance on relationships with sports organizations and the potential loss of such relationships or failure to renew or expand existing relationships; fraud, corruption or negligence related to sports events, or by our employees or contracted statisticians; risks related to changes in domestic and foreign laws and regulations or their interpretation; compliance with applicable data protection and privacy laws; pending litigation and investigations; the failure to protect or enforce our proprietary and intellectual property rights; claims for intellectual property infringement; our reliance on information technology; and other factors included under the heading “Risk Factors” in our filings with the SEC.
Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this press release. The Company undertakes no obligation to publicly update or revise any forward-looking statements contained herein, to reflect any change in our expectations with respect to such statements or any change in events, conditions or circumstances upon which any statement is based.
Contact
Media
Chris Dougan, Chief Communications Officer
+1 (202) 766-4430 chris.dougan@geniussports.com
Investors
Brandon Bukstel, Investor Relations Manager
+1 (954)-554-7932 brandon.bukstel@geniussports.com
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