Super Group (SGHC) Ltd SC TO-I/A, filed Dec 12, 2022
Super Group (SGHC) Ltd (SGHC)
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. 2)
Super Group (SGHC) Limited
(Name of Subject Company and Filing Person (Issuer))
Warrants to Acquire Ordinary Shares
(Title of Class of Securities)
G8588X111
(CUSIP Number of Class of Securities)
Robert James Dutnall
Super Group (SGHC) Limited
Bordeaux Court, Les Echelons
St. Peter Port, Guernsey, GY1 1AR
Telephone: +44 (0) 1481-822-939
(Name, address and telephone numbers, of person authorized to receive notices and communications on behalf of filing persons)
Copies of communications to:
Justin Stock
David Boles
Brian Leaf
Cooley LLP
55 Hudson Yards
10001 New York, NY
Tel: +1 212-479-6000
| ☐ | 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) |
EXPLANATORY NOTE
This Amendment No. 2 (“Amendment No. 2”) amends the prospectus/offer to exchange, dated November 10, 2022 (as it may be amended and supplemented from time to time, the “Prospectus/Offer to Exchange”), a copy of which was filed as Exhibit (a)(1)(A) to the Tender Offer Statement on Schedule TO originally filed by Super Group (SGHC) Limited, a non-cellular company limited by shares incorporated under the laws of the Island of Guernsey (the “Company”), on November 10, 2022 (as it may be amended and supplemented from time to time, the “Schedule TO”), relating to an offer by the Company to each holder of the Company’s outstanding public warrants (as defined below) to receive 0.25 ordinary shares of the Company, no par value per share (“Ordinary Shares”) in exchange for every outstanding public warrant tendered by the holder and exchanged pursuant to the offer (the “Offer”).
The 22,499,986 redeemable warrants sold as part of the units in Sports Entertainment Acquisition Corp.’s (“SEAC”) initial public offering of SEAC’s securities on October 6, 2020 (the “IPO”) (whether they were purchased in the IPO or thereafter in the open market) are referred to herein as the “public warrants”. The warrants originally issued to certain investors in a private placement simultaneously with the closing of the IPO, as well as in connection with the closing of the partial exercise by the underwriters of their over-allotment option, that have not become public warrants under the Warrant Agreement (as defined below) as a result of being transferred to any person other than permitted transferees are referred to herein as the “private placement warrants”, and were issued pursuant to certain subscription agreements, each in connection with the closing of the transactions contemplated by the business combination agreement, dated as of April 23, 2021, by and among SEAC and the Company, et al.
The public warrants and the private placement warrants are referred to herein collectively as the “warrants”, and each a “warrant”.
Concurrently with the Offer, the Company also solicited consents (the “Consent Solicitation”) from holders of the outstanding warrants to amend that certain Warrant Agreement, dated as of October 6, 2020, by and between the Company and Continental Stock Transfer & Trust Company, as warrant agent (the “Warrant Agreement”), to permit the Company to (i) require that all outstanding public warrants following this Offer be converted into 0.225 Ordinary Shares (a ratio 10% less than the exchange ratio applicable to the Offer) and (ii) instruct the warrant agent to cancel each outstanding private placement warrant for no consideration (the “Warrant Amendment”).
The purpose of this Amendment No. 2 is to amend and supplement the Schedule TO to (i) update Item 11 of the Schedule TO to report the final results of the Offer, and (ii) update Item 12 of the Schedule TO to include (a) the final Prospectus/Offer to Exchange, dated December 12, 2022, which forms part of the Registration Statement on Form F-4 (“Registration Statement”) declared effective by the SEC on December 9, 2022, (b) a press release issued by the Company on December 12, 2022, announcing the results of the Offer, the execution of the Warrant Amendment, and the effectiveness of the Registration Statement, and (c) the executed Warrant Amendment.
Except as amended hereby to the extent discussed above, the information contained in the Schedule TO, the Prospectus/Offer to Exchange, and the other exhibits to the Schedule TO remains unchanged and is hereby expressly incorporated into this Amendment No. 2 by reference. This Amendment No. 2 should be read with the Schedule TO and the Prospectus/Offer to Exchange.
Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented by adding at the end thereof the following text:
The Offer and Consent Solicitation expired at 12:01 a.m., Eastern Time, on December 12, 2022. The Company has been advised that 21,328,401 public warrants (including 118,953 public warrants tendered through
1
guaranteed delivery), or approximately 94.79% of the outstanding public warrants, were validly tendered and not validly withdrawn prior to the expiration of the Offer and Consent Solicitation. The Company expects to accept all validly tendered public warrants for exchange and settlement on or before December 14, 2022. In addition, pursuant to the Consent Solicitation, the Company received the approval of approximately 94.79% of the outstanding public warrants and approximately 100% of the outstanding private placement warrants to the Warrant Amendment, which exceeds the threshold of 50% of each of the outstanding public warrants and outstanding private placement warrants required to effect the Warrant Amendment. On December 12, 2022, the Company and Continental Stock Transfer & Trust Company entered into the Warrant Amendment and the Company announced that it will exercise its right, in accordance with the terms of the Warrant Amendment, (i) to exchange all remaining untendered public warrants for Ordinary Shares at a ratio of 0.225 Ordinary Shares per public warrant and (ii) to cancel any remaining private placement warrants for no consideration, following which, no public or private warrants will remain outstanding (together, the “Post-Offer Exchange”). The Company has fixed the date for the Post-Offer Exchange as December 26, 2022. The last day of trading for the warrants will be December 23, 2022.
On December 12, 2022, the Company issued a press release announcing the final results of the Offer and Consent Solicitation as set forth above and the Company’s entry into the Warrant Amendment. A copy of the press release is filed as Exhibit (a)(5)(B) to the Schedule TO and is incorporated herein by reference.
Item 12. Exhibits.
| (a) | Exhibits |
2
3
| Exhibit No. |
Description | |
| (g) | Not applicable. | |
| (h) | Tax Opinion of Cooley LLP (incorporated by reference to Exhibit 8.1 to the Registration Statement on Form F-4 filed by the Company with the SEC on November 10, 2022). | |
| (b) | Filing Fee Exhibit. |
Previously Filed
Item 13. Information Required By Schedule 13E-3.
Not applicable.
4
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.
| SUPER GROUP (SGHC) LIMITED | ||
| By: | /s/ Robert James Dutnall | |
| Robert James Dutnall | ||
| Authorized Signatory | ||
Dated: December 12, 2022
5
Exhibit (d)(xv)
Execution Version
FORM OF WARRANT AMENDMENT
AMENDMENT NO. 1 TO WARRANT AGREEMENT
This Amendment (this “Amendment”) is made as of December 12, 2022, by and between Super Group (SGHC) Limited, a non-cellular company limited by shares incorporated under the laws of the Island of Guernsey (f/k/a Sports Entertainment Acquisition Corp.) (the “Company”), and Continental Stock Transfer & Trust Company, a New York Corporation, as warrant agent (the “Warrant Agent”), and constitutes an amendment to that certain Warrant Agreement, dated as of October 6, 2020 (the “Existing Warrant Agreement”), between Sports Entertainment Acquisition Corp. (“SEAC”) and the Warrant Agent. Capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to such terms in the Existing Warrant Agreement.
WHEREAS, on January 27, 2022, the Company completed its business combination with SEAC (the “Business Combination”), and in connection therewith the Company was renamed Super Group (SGHC) Limited;
WHEREAS, in accordance with Section 4.4 of the Existing Warrant Agreement, upon effectiveness of the Business Combination, the holders of the Warrants thereafter had the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of shares of the Ordinary Shares of SEAC immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, an Alternative Issuance (as defined in the Existing Warrant Agreement) in Ordinary Shares, no par value per share, of the Company (the “Ordinary Shares”);
WHEREAS, Section 9.8 of the Existing Warrant Agreement provides that the Company and the Warrant Agent may amend, subject to certain conditions provided therein, the Existing Warrant Agreement with the vote or written consent of the Registered Holders of at least 50% of the number of then outstanding Public Warrants, and the consent of the Registered Holders least 50% of the number of then outstanding Private Placement Warrants and at least 50% of the number of then outstanding Public Warrants;
WHEREAS, the Company desires to amend the Existing Warrant Agreement to provide the Company with the right to require the holders of the Warrants to exchange all of the outstanding Warrants for Ordinary Shares, on the terms and subject to the conditions set forth herein; and
WHEREAS, in the exchange offer and consent solicitation undertaken by the Company pursuant to the Registration Statement on Form F-4 filed with the U.S. Securities and Exchange Commission, the Registered Holders of more than 50% of each of the then outstanding Public Warrants and Private Placement Warrants, respectively, consented to and approved this Amendment.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree to amend the Existing Warrant Agreement as set forth herein.
| 1. | Amendment of Existing Warrant Agreement. The Existing Warrant Agreement is hereby amended by adding: |
| (a) | the new Section 6A thereto: |
| “6A | Mandatory Exchange of Public Warrants. |
| 6A.1 Company Election to Exchange. Notwithstanding any other provision in this Agreement to the contrary, all (and not less than all) of the outstanding Public Warrants may be exchanged, at the option of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon notice to the Registered Holders of the then outstanding Public Warrants, as described in Section 6A.2 below, for Ordinary Shares (or any Alternative Issuance pursuant to Section 4.4), at the exchange rate of 0.225 Ordinary Shares (or any Alternative Issuance pursuant to Section 4.4) for each Public Warrant held by the holder thereof (the “Consideration”) (subject to equitable adjustment by the Company in the event of any stock splits, stock dividends, recapitalizations or similar transaction with respect to the Ordinary Shares). In lieu of issuing fractional shares to any holder of warrants who would otherwise have been entitled to receive fractional shares as Consideration, the Company will round the number of shares to which such holder is entitled, after aggregating all fractions, up to the next whole number of shares. |
| 6A.2 Date Fixed for, and Notice of, Exchange. In the event that the Company elects to exchange all of the Public Warrants, the Company shall fix a date for the exchange (the “Exchange Date”). Notice of exchange shall be mailed by first class mail, postage prepaid, by the Company not less than fifteen (15) days prior to the Exchange Date to the Registered Holders at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the registered holder received such notice. The Company will make a public announcement of its election following the mailing of such notice. |
| 6A.3 Exercise After Notice of Exchange. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with subsection 3.3.1(b) of this Agreement) at any time after notice of exchange shall have been given by the Company pursuant to Section 6A.2 hereof and prior to the Exchange Date. On and after the Exchange Date, the Registered Holder of the Public Warrants shall have no further rights except to receive, upon surrender of the Public Warrants, the Consideration.” |
| (b) | the new Section 6A2 thereto: |
| “6A2. Cancellation of Private Placement Warrants for No Consideration. |
| 6A2.1. Company Election to Cancel Private Placement Warrants. Notwithstanding any other provision in this Agreement to the contrary, all (and not less than all) of the outstanding Private Placement Warrants may be cancelled by the Warrant Agent, at the option and instruction of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon notice to the Registered Holders of the then outstanding Private Placement Warrants, as described in Section 6.A.2.2 below, for no consideration. |
| 6A2.2. Date Fixed for, and Notice of, Cancellation. In the event that the Company elects to cancel all of the outstanding Private Placement Warrants, the Company shall fix a date for the cancellation (the “Cancellation Date”). Notice of cancellation shall be mailed by first class mail, postage prepaid, by the Company not less than fifteen (15) days prior to the Cancellation Date to the Registered Holders at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the registered holder received such notice. The Company will make a public announcement of its election following the mailing of such notice.” |
| 2. | Miscellaneous Provisions. |
2.1 Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
2.2 Applicable Law. The validity, interpretation, and performance of this Amendment and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Amendment shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
2.3 Counterparts. This Amendment may be executed in any number of counterparts (which may include counterparts delivered by any standard form of telecommunication) and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Amendment or in any other certificate, agreement or document related to this Amendment, if any, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
2.4 Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof.
2.5 Entire Agreement. The Existing Warrant Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated.
[Signature Pages Follow]
Execution Version
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be duly executed as of the date first above written.
| SUPER GROUP (SGHC) LIMITED | ||
| By: | /s/ Robert James Dutnall | |
| Name: Robert James Dutnall | ||
| Title: Authorized Signatory | ||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent | ||
| By: | /s/ Leicia Savinetti | |
| Name: Leicia Savinetti | ||
| Title: Vice President
| ||
(Signature page to Amendment No. 1 to Warrant Agreement)