SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER
STATEMENT UNDER SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934.
(Amendment No. 1)
BIGLARI
HOLDINGS INC.
(Name of Subject Company (Issuer))
THE LION FUND II, L.P.
(Name of Filing Person (Offeror and Affiliate of Issuer))
Common stock, stated value $0.50 per share
(Title of Class of Securities)
857873103
(CUSIP Number
of Class of Securities)
Sardar Biglari
Chairman
and Chief Executive Officer
Biglari Capital Corp., General Partner of The Lion Fund II, L.P.
17802 IH 10 West, Suite 400
San Antonio, Texas 78257
Telephone: (210) 344-3400
(Name, address, and telephone number of person authorized to receive notices and communications on behalf of filing persons)
with copies to:
Edward Horton, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, NY 10004
(212)
574-1200
CALCULATION OF FILING FEE
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Transaction Valuation*: |
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Amount of Filing Fee: |
$258,851,040 |
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$30,078.50 |
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Estimated for purposes of calculating the amount of the filing fee only. Calculated by multiplying the $420.00 per share tender offer purchase price by 616,312, the maximum number of shares of common stock to be
purchased in the offer. The amount of the filing fee was calculated in accordance with Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, and equals $116.20 for each $1,000,000 of the value of the transaction. A portion of the filing
fee has been offset as set forth below. |
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Check the 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: $28,062.30 |
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Filing Party: The Lion Fund II, L.P |
Form or Registration No.: Schedule TO (File No. 005-30771) |
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Date Filed: June 4, 2015 |
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
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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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: ¨
INTRODUCTORY STATEMENT
This Amendment No. 1 to the Tender Offer Statement on Schedule TO (as amended, the Schedule TO) relates to a Tender Offer (as
defined herein) by The Lion Fund II, L.P., a Delaware limited partnership (the Offeror), to purchase up to 575,000 of the outstanding shares of common stock, $0.50 par value (the Common Stock) of Biglari Holdings Inc. (the
Company), an Indiana corporation (the Shares), at a price of $420.00 per share, net to the seller in cash without interest and subject to any withholding taxes required by applicable law, on the terms and subject to the
conditions set forth in the Offer to Purchase dated June 4, 2015 (the Offer to Purchase) and in the related Letter of Transmittal and Important Instructions and Information (which together, as they may be amended or supplemented
from time to time, constitute the Offer), copies of which are attached to this Schedule TO as Exhibits (a)(1)(i), (a)(1)(ii) and (a)(1)(iii), respectively. The Offeror is an affiliate of the Company, as described below. This Tender Offer
Statement on Schedule TO (including exhibits) is intended to satisfy the reporting requirements of Rules 14d-1 under the Securities Exchange Act of 1934, as amended.
Copies of the Offer to Purchase, the related Letter of Transmittal and Important Instructions and Information, and certain other relevant
documents are filed as exhibits hereto. The information in the Offer to Purchase is hereby incorporated by reference in response to all the items of this Schedule TO, except those items as to which information is specifically provided therein.
Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented by adding the following information:
On July 2, 2015, the Offeror issued a press release announcing the preliminary results of the Offer, which expired at 11:59 p.m., New
York City time, on July 1, 2015. A copy of the press release is filed as Exhibit (a)(5)(ii) to the Schedule TO and is incorporated herein by reference.
Item 12. Exhibits.
Item 12 of
the Schedule TO is hereby amended and supplemented by adding the following exhibit:
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(a)(5)(ii) |
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Press release issued by The Lion Fund II, L.P., dated July 2, 2015 |
See the Exhibit Index immediately following the signature page, which Exhibit Index is incorporated herein by
reference.
SIGNATURE
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.
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Date: July 2, 2015 |
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The Lion Fund II, L.P. |
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By: Biglari Capital Corp., its General Partner |
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By: |
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/s/ Sardar Biglari |
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Name: Sardar Biglari |
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Title: Chairman and Chief Executive Officer |
EXHIBIT INDEX
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(a)(1)(i) |
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Offer to Purchase, dated June 4, 2015 |
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(a)(1)(ii) |
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Letter of Transmittal (including IRS Form W-9 and Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9) |
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(a)(1)(iii) |
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Important Instructions and Information |
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(a)(1)(iv) |
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Notice of Guaranteed Delivery |
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(a)(1)(v) |
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees |
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(a)(1)(vi) |
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Form of Summary Advertisement |
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(a)(5)(i) |
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Press release announcing the commencement of the Offer, dated June 4, 2015 |
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(a)(5)(ii) |
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Press release issued by The Lion Fund II, L.P., dated July 2, 2015* |
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(d)(1) |
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Stock Purchase Agreement, dated July 1, 2013, by and between Biglari Holdings Inc. and Sardar Biglari, incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by the Company on July 2, 2013. |
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(d)(2) |
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Shared Services Agreement, dated July 1, 2013, by and between Biglari Holdings Inc. and Biglari Capital Corp., incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by the Company on July 2,
2013. |
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(d)(3) |
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Amended and Restated Incentive Bonus Agreement, dated as of September 28, 2010, by and between the Company and Sardar Biglari, incorporated by reference to Annex A to the Companys definitive Proxy Statement dated September 28,
2011. |
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(d)(4) |
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First Amendment, dated as of July 1, 2013, to the Amended and Restated Incentive Bonus Agreement, dated as of September 28, 2010, by and between Biglari Holdings Inc. and Sardar Biglari, incorporated by reference to Exhibit 10.3 to
the Current Report on Form 8-K filed by the Company on July 2, 2013. |
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(d)(5) |
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Trademark License Agreement, dated as of January 11, 2013, by and between Biglari Holdings Inc. and Sardar Biglari, incorporated by reference to the Current Report on Form 8-K filed by the Company on January 11, 2013. |
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(d)(6) |
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Trademark Sublicense Agreement, entered as of May 14, 2013, by and among Biglari Holdings Inc., Steak n Shake, LLC and Steak n Shake Enterprises, Inc., incorporated by reference to the Quarterly Report on Form 10-Q for the quarterly
period ended April 10, 2013 filed by the Company on May 17, 2013. |
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(d)(7) |
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Amended and Restated Partnership Agreement of The Lion Fund II, L.P., as amended on June 3, 2015, incorporated by reference to the Current Report on Form 8-K filed by the Company on June 4, 2015. |
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Filed as an exhibit to this Schedule TO. |
Exhibit (a)(5)(ii)
THE LION FUND II, L.P.
ANNOUNCES PRELIMINARY RESULTS OF ITS TENDER OFFER FOR SHARES OF
COMMON STOCK OF BIGLARI HOLDINGS INC.
San Antonio, TX, July 2, 2015 /PRNewswire/ The Lion Fund II, L.P. (The Lion Fund II) today announced the preliminary
results of its tender offer to purchase for cash up to 575,000 shares of the common stock of Biglari Holdings Inc. (NYSE: BH) at a purchase price of $420.00 per share. The tender offer expired at 11:59 p.m., New York City Time,
on July 1, 2015.
Based on a preliminary count, the total number of shares tendered in the tender offer was 620,679 shares, including shares tendered
pursuant to the guaranteed delivery procedure described in the tender offer documents. These preliminary results indicate the tender offer was oversubscribed. Pursuant to the terms of the tender offer The Lion Fund II elected to increase the
number of shares accepted for payment by 41,312 or 2% of the outstanding shares of Biglari Holdings Inc. The number of shares that The Lion Fund II will purchase from each tendering shareholder will be prorated so that The Lion Fund II will
purchase a total of 616,312 shares.
The number of shares of common stock of Biglari Holdings Inc. expected to be purchased by The Lion Fund II is
preliminary and subject to final confirmation. The final results of the tender offer will be announced promptly following completion of the confirmation process. Payment for shares of common stock of Biglari Holdings Inc. accepted for purchase by
The Lion Fund II will be made promptly in accordance with the terms of the tender. All shares tendered in the tender offer but not accepted for purchase will be promptly returned to tendering shareholders.
If shareholders have any questions, please call our Information Agent, Okapi Partners LLC, by telephone toll free at (877) 629-6357.
Important Notice
The Lion Fund II launched a
tender offer for up to 575,000 shares of the common stock of Biglari Holdings Inc. on June 4, 2015, and filed a tender offer statement on Schedule TO with the SEC, including the offer to purchase and other related materials. Biglari Holdings
Inc. filed a solicitation/recommendation statement on Schedule 14D-9 with respect to the tender offer. The offer to purchase shares of Biglari Holdings common stock will only be made pursuant to the Schedule TO and other related materials.
Shareholders are urged to read carefully the Schedule TO and other related materials, as well as the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Biglari Holdings Inc. Shareholders may obtain free copies of the Schedule TO, offer
to purchase and other related materials, as well as the Solicitation/Recommendation Statement on Schedule 14D-9, from the SECs website at www.sec.gov.
Forward-Looking Statements Disclaimer
Certain
statements in this letter constitute forward-looking statements. Forward-looking statements are statements that are not historical, including statements regarding managements intentions, beliefs, expectations, representations,
plans or predictions of the future, and are typically identified by words such as believe, expect, anticipate, intend, estimate, predict, potential,
continue, likely, plan, seek, may, will, should, would and could. These forward-looking statements are not historical facts but are the
intent, belief or current expectations of The Lion Fund II based on its knowledge and understanding of the business and industry, the economy and other future conditions. These statements are not guarantees of future performance, and shareholders
should not place undue reliance on forward-looking statements. Actual results may differ materially from those
expressed or forecasted in the forward-looking statements due to a variety of risks, uncertainties and other factors, including but not limited to the factors listed and described under
Risk Factors in Biglari Holdings Inc.s most recent Annual Report on Form 10-K, as filed with the SEC. The Lion Fund II undertakes no obligation to update or revise the forward-looking statements to reflect changed assumptions,
the occurrence of unanticipated events or changes to future operating results, except as may be required by applicable law.
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