Exhibit (a)(1)(viii)

 

 

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SECOND NOTICE OF EXTENSION

February 24, 2022

TO:    THE HOLDERS OF COMMON SHARES OF PETROTEQ

This Second Notice of Extension supplements the Original Offer to Purchase and Circular.

As set out in this Second Notice of Extension, the Offeror has extended the Expiry Time of the Offer to 5:00 p.m. (Toronto Time) on April 14, 2022.

Except as otherwise set forth in this Second Notice of Extension, the terms and conditions previously set forth in the Original Offer to Purchase and Circular, the Letter of Transmittal and the Notice of Guaranteed Delivery continue to be applicable in all respects. This Second Notice of Extension should be read in conjunction with the Original Offer to Purchase and Circular, the Letter of Transmittal and the Notice of Guaranteed Delivery.

All references to the “Offer” in the Original Offer to Purchase and Circular, the Letter of Transmittal, the Notice of Guaranteed Delivery and this Second Notice of Extension mean the Original Offer to Purchase as amended and extended thereby and hereby, and all references in such documents to the “Circular” or the “Offer to Purchase and Circular” mean the Original Circular or the Original Offer to Purchase and Circular as amended thereby and hereby. Unless the context requires otherwise, capitalized terms used in this Second Notice of Extension but not defined herein that are defined in the Original Offer to Purchase and Circular have the respective meanings ascribed thereto in the Original Offer to Purchase and Circular.

 

1.	Time for Acceptance – Extension of the Offer

The Offeror has extended the Expiry Time of the Offer from 5:00 p.m. (Toronto time) on February 28, 2022 to 5:00 p.m. (Toronto time) on April 14, 2022, unless the Offer is further extended, accelerated or withdrawn by the Offeror.

Accordingly, the definition of “Expiry Time” in the Original Offer to Purchase and Circular is deleted in its entirety and replaced with the following definition:

“Expiry Time” means 5:00 p.m. (Toronto time) on April 14, 2022, or such earlier or later time or times, and date or dates as may be fixed by the Offeror from time to time pursuant to Section 5 of the Offer to Purchase, “Extension, Variation or Change in the Offer”;

The Offer has been extended in order to allow additional time for the Offeror to obtain the CFIUS Clearance (as defined and discussed further below under Section 6(b) – “Recent Developments – Regulatory Matters”).

In addition, all references to the “initial deposit period” in the Original Offer to Purchase and Circular shall take into account this extension of the Expiry Time beyond 105 days and all references to “5:00 p.m. (Toronto time) on February 28, 2022” in the Letter of Transmittal and Notice of Guaranteed Delivery are deemed to be deleted in their entirety and replaced with “5:00 p.m. (Toronto time) on April 14, 2022”.

If the Statutory Minimum Condition is satisfied and the other conditions to the Offer are satisfied or waived at the expiry of the initial deposit period such that the Offeror takes up the Common Shares deposited under the Offer, the Offeror will make a public announcement of the foregoing matters and extend the period during which Common Shares may be deposited and tendered to the Offer for a period of not less than ten days after the date of such announcement. See Section 5 of the Original Offer to Purchase, “Extension, Variation or Change in the Offer”. Shareholders who have validly deposited and not withdrawn their Common Shares need to take no further action to accept the Offer.

2.	Manner of Acceptance

Common Shares may be deposited under the Offer in accordance with the provisions set out in Section 3 of the Original Offer to Purchase, “Manner of Acceptance”.

 

3.	Conditions of the Offer

All conditions contained in Section 4 of the Original Offer to Purchase, “Conditions of the Offer” (as amended by the First Notice of Variation and Extension) remain unchanged.

 

4.	Take-Up of and Payment for Deposited Common Shares

If, at the expiry of the initial deposit period, the Statutory Minimum Condition has been satisfied and all of the other conditions described in Section 4 of the Original Offer to Purchase, “Conditions of the Offer” (as amended by the First Notice of Variation Extension), have been satisfied or waived by the Offeror, the Offeror will immediately take up the Common Shares validly deposited under the Offer and not withdrawn. The Offeror will pay for Common Shares taken up under the Offer promptly but, in any event, not later than two business days after the Common Shares are taken up. In accordance with applicable Law, if the Offeror is obligated to take up such Common Shares, the Offeror will extend the period during which Common Shares may be deposited under the Offer for an additional period of at least ten days following the expiry of the initial deposit period (the “mandatory 10–day extension period”) and may further extend the deposit period after the expiration of the mandatory 10-day extension period (“Optional Extension Periods”). The mandatory 10-day extension period and any Optional Extension Periods will constitute a “subsequent offering period” under Rule 14d-11 under the U.S. Exchange Act of 1934. The Offeror will take up and promptly pay for Common Shares deposited under the Offer during the mandatory 10-day extension period and any Optional Extension Period.

 

5.	Withdrawal of Deposited Common Shares

Shareholders have the right to withdraw Common Shares deposited under the Offer in the circumstances and in the manner set out in Section 7 of the Original Offer to Purchase, “Withdrawal of Deposited Common Shares”.

 

6.	Recent Developments

 

(a)	First Notice of Variation and Extension

On February 1, 2022, the Offeror announced and filed the First Notice of Variation and Extension varying certain conditions to the Original Offer to Purchase and extending the time for acceptance of the Original Offer to Purchase until 5:00 p.m. (Toronto time) on February 28, 2022.

The changes to the conditions to the Original Offer to Purchase arose from (i) comments received by the Offeror in a comment letter from the United States Securities and Exchange Commission, and (ii) changes made by Petroteq to the capitalization of Petroteq other than pursuant to the exercise or conversion of the Options, Warrants or the principal amount of the Convertible Debentures (each as defined in the Original Offer to Purchase), in contravention of one of the Offeror’s conditions to the Original Offer to Purchase.

 

(b)	Regulatory Matters

HSR Approval and ICA Clearance

On February 9, 2022, the Offeror announced the completion of two key regulatory milestones in respect of the Offer:

 

(i)

The expiry of the Hart-Scott-Rodino Act (“HSR Act”) waiting period, constituting the HSR Approval (as defined in the Offer to Purchase and Circular). The HSR Act is a key U.S. antitrust act that enables the Federal Trade Commission (“FTC”) and Department of Justice (“DOJ”) to review proposed merger transactions by requiring the parties to observe a waiting period before closing their transaction.

 

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(ii)

The lapse of the initial review period under the Investment Canada Act (the “ICA”) without any national security related notice being issued, constituting the ICA Clearance (as defined in the Offer to Purchase and Circular). The ICA regulates foreign investment in Canada.

Update Regarding CFIUS Filings

On January 6, 2021, the Offeror made a voluntary declaration filing (the “CFIUS Declaration”) with the Committee on Foreign Investment in the United States (“CFIUS”), a group of Cabinet-level officials in the U.S. government who are authorized to review certain transactions involving foreign investment in the United States, in order to determine the effect of such transactions on the national security of the United States. The CFIUS Declaration was made for the purpose of securing a clearance by CFIUS (the “CFIUS Clearance”) that the Offeror’s acquisition of Common Shares pursuant to the Offer, and any subsequent second-step acquisition by the Offeror of any Common Shares not acquired by it pursuant to the Offer (the “Transactions”), which CFIUS Clearance may be given by any of the following: (i) written notice from CFIUS that the Transactions do not constitute a “covered transaction” under relevant government regulations; (ii) written notice from CFIUS that it has completed its assessment, review, or investigation of the Transactions and has concluded all action under Section 721 of the U.S. Defense Production Act of 1950, as amended (the “DPA”); or (iii) an announcement by the President of the United States, made within the period required by the DPA, of a decision not to take any action to suspend or prohibit the Transactions.

Under the DPA, the U.S. President may take such action as appropriate to suspend or prohibit any covered transaction that threatens to impair U.S. national security where no other adequate and appropriate means are available to address the threat. The President has vast power to review and investigate a covered transaction. The President may direct the Attorney General of the United States to seek appropriate relief, including divestment relief, in the district courts of the United States, in order to implement and enforce this power under the DPA. The only statutory means to cut-off the Presidential power is for parties to a covered transaction to receive CFIUS Clearance.

Despite the Offeror’s request that Petroteq jointly submit the CFIUS Declaration to CFIUS with the Offeror, Petroteq declined to do so, and the Offeror submitted the CFIUS Declaration on the basis of information about Petroteq available to the Offeror. During an assessment period that expired on February 11, 2022, the Offeror responded to various requests to provide information relating to (among other things), Petroteq, the Offer, Viston and the Offeror. Following the expiration of the assessment period, CFIUS notified the Offeror that it was unable to complete action under Section 721 of the DPA and grant a CFIUS Clearance on the basis of the CFIUS Declaration.

One of the conditions to the Offer is that all government or regulatory consents, authorizations, waivers, permits, reviews, orders, rulings, decisions, approvals, clearances or exemptions or other third party approvals, that are necessary or desirable, in the Offeror’s reasonable judgment, to complete the Offer and the acquisition of Common Shares, and/or to complete a Compulsory Acquisition or Subsequent Acquisition Transaction, or to prevent the occurrence of a Material Adverse Effect as a result of the completion of the Offer, a Compulsory Acquisition or Subsequent Acquisition Transaction, shall have been obtained or concluded on terms and conditions satisfactory to the Offeror in its reasonable judgment, and/or all regulatory notice, waiting or suspensory periods (including any extensions thereof) in respect of the foregoing shall have expired or been terminated or waived.

Given the significance of an adverse determination by CFIUS on the Offeror’s ability to complete the Offer, and/or to complete a Compulsory Acquisition or Subsequent Acquisition Transaction (including the possibility of CFIUS requiring a subsequent divestiture by the Offeror following the completion of the Offer and/or a subsequent Compulsory Acquisition or Subsequent Acquisition Transaction), the Offeror, in its reasonable judgment, is requiring that the CFIUS Clearance be obtained as a condition to completing the Offer.

Accordingly, Viston and the Offeror have determined to file a joint voluntary notice (the “CFIUS Notice”) with CFIUS seeking a CFIUS Clearance. Viston and the Offeror have commenced the preparation of the CFIUS Notice with an objective of submitting it on an expedited basis, which will commence a 45-day review period.

Given the additional time required in order to pursue the CFIUS Clearance, the Offer has been extended as set out and discussed above under Section 1 – “Time for Acceptance – Extension of the Offer”.

 

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(c)	Communications Between Petroteq and the Offeror

On February 7, 2022, Canadian legal counsel to Viston and the Offeror, at its client’s request, sent an email communication to Petroteq’s Canadian legal counsel seeking its assistance in scheduling a meeting between Viston and Petroteq’s board of directors to discuss next steps.

On February 9, 2022, in response to Petroteq’s Canadian legal counsel’s request for certain information prior to arranging such a meeting, Canadian legal counsel to Viston and the Offeror, at its client’s request, provided Petroteq’s Canadian legal counsel with a copy of an advice issued by Royal Bank of Scotland on February 7, 2022 (the “Bank Advice”).

On February 10, 2022, Petroteq publicly disclosed that it had received the aforementioned Bank Advice, and that the Bank Advice included confirmation by Uniexpress Investment Holdings PLC that EUR420 million are irrevocably blocked and are reserved in favour of the receiving bank’s client, Kingsdale Advisors, for a period of 45 days from the date of the Bank Advice. Kingsdale Advisors is the Information Agent and Depositary in connection with the Offer.

As of the date of this Second Notice of Extension, Canadian legal counsel to Viston and the Offeror, at its client’s request, was continuing to seek assistance from Petroteq’s Canadian legal counsel to schedule a meeting between Viston and Petroteq’s board of directors to discuss next steps, including with respect to Petroteq assistance required for the CFIUS Clearance.

 

(d)	Changes in Petroteq Share Capital

As previously indicated, the Offer is being made only for Common Shares and is not made for any Options, Warrants or Convertible Debentures or other convertible securities.

Since the commencement of the Offer, Petroteq has disclosed the issuance of additional Common Shares, as well as convertible securities and/or contractual obligations to issue additional Common Shares. In particular, and based solely on information contained in Petroteq’s quarterly report on Form 10-Q for the quarter ended November 30, 2021 as filed with the SEC and on SEDAR on January 19, 2022 (the “Form 10-Q”), as of November 30, 2021:

 

a)

646,053,821 Common Shares were issued and outstanding;

 

b)

70,371,047 Common Shares were issuable upon the exercise of share purchase warrants;

 

c)

7,250,000 Common Shares were issuable upon the exercise of stock options;

 

d)

44,116,827 Common Shares were issuable upon the conversion of convertible securities; and

 

e)

25,785,869 Common Shares were issuable pursuant to contractual obligations to issue securities.

Additionally, based solely on the cover page of the Form 10-Q, the number of Common Shares outstanding as of January 18, 2022 was 646,053,821.

Pursuant to the First Notice of Extension and Variation, the Offeror waived certain breaches of the No Change in Capitalization Condition (as defined in the First Notice of Extension and Variation) by Petroteq, solely with respect to changes in the capitalization of Petroteq as were accurately and fully reflected in its 10-Q, provided that there are no further changes to its capitalization, including any determination by the Offeror, acting in its reasonable discretion, that the number of issued and outstanding Common Shares on a Fully-Diluted Basis immediately prior to the Expiry Time exceeds 795,000,000.

However, based on information provided by Kingsdale Advisors (the Depositary and Information Agent for the Offer), in January of 2022, pursuant to an irrevocable election to convert a convertible debenture, Petroteq converted US$200,000 of principal owing pursuant to a convertible debenture into 5,405,405 Common Shares at a conversion price of US$0.037 per share. This was contrary to Petroteq’s publicly available information, which indicated that such

 

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convertible debenture had been amended to reflect a conversion price of US$0.0475 such that a total of 4,210,526 Common Shares would be issued upon conversion. As a result, as of the date of conversion of such convertible debenture and the resulting issuance of the 5,405,405 Common Shares, an additional 1,194,879 Common Shares were issued and outstanding.

Furthermore, on February 12, 2022, Petroteq announced the closing of a US$750,000 subscription for 6,250,000 units at a price of US$0.12 per unit (originally announced by Petroteq on August 4, 2021). According to Petroteq, each unit consisted of (i) one Common Share, and (ii) one transferable share purchase warrant, with each warrant entitling the holder thereof to acquire one additional Common Share at a price of US$0.128 per share for a period of twenty-four (24) months.

Accordingly, regardless of Petroteq Board or TSX-V approval, assuming the exercise or conversion of all Convertible Securities (including, without limitation, any “out-of-the-money” Convertible Securities) and upon issuance of Common Shares issuable pursuant to contractual obligations, the Offeror currently estimates that, as of the date of this Second Notice of Extension, there are approximately 794,772,443 Common Shares on a Fully-Diluted Basis. As indicated in the First Notice of Variation and Extension, it is a condition of the Offer that the number of issued and outstanding Common Shares on a Fully-Diluted Basis immediately prior to the Expiry Time must not exceed 795,000,000 Common Shares.

 

7.	Amendments and Variation to Offer Documents

The Original Offer to Purchase and Circular, the Letter of Transmittal and the Notice of Guaranteed Delivery are hereby amended to the extent necessary to reflect the amendments contemplated by, and the information contained in, this Second Notice of Extension.

 

8.	Statutory Rights

Securities legislation in the provinces and territories of Canada provides Shareholders with, in addition to any other rights they may have at Law, one or more rights of rescission, price revision or to damages, if there is a misrepresentation in a circular or notice that is required to be delivered to the Shareholders. However, such rights must be exercised within prescribed time limits. Shareholders should refer to the applicable provisions of the securities legislation of their province or territory for particulars of those rights or consult a lawyer.

 

9.	Directors’ Approval

The contents of this Second Notice of Extension have been approved, and the sending of this Second Notice of Extension to the Shareholders and holders of Convertible Securities have been authorized, by the sole director of the Offeror and the sole director of Viston.

 

10.	U.S. Exchange Act Requirements

Petroteq is subject to the information requirements of the U.S. Exchange Act and, in accordance with the U.S. Exchange Act, files reports and other information with the SEC. Petroteq’s U.S. Exchange Act reports and other information filed with the SEC may be inspected and copied at the public reference facilities maintained by the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operations and location of the public reference facilities of the SEC. Copies of the material the Offeror and Petroteq file with the SEC may be obtained at prescribed rates from the Public Reference Section of the SEC at 100 F Street, N.E., Washington, D.C. 20549. The SEC also maintains a website (www.sec.gov) that makes available reports and other information that the Offeror and Petroteq file or furnish electronically.

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CERTIFICATE OF 2869889 ONTARIO INC.

The foregoing, together with the Original Offer to Purchase and Circular, contains no untrue statement of a material fact and does not omit to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made.

DATED: February 24, 2022.

 

(signed) “Zbigniew Roch”				(signed) “Reinhard Paul”
Zbigniew Roch Chief Executive Officer				Reinhard Paul Chief Financial Officer
		(signed) “Zbigniew Roch”
		Zbigniew Roch Sole Director

CERTIFICATE OF VISTON UNITED SWISS AG

The foregoing, together with the Original Offer to Purchase and Circular, contains no untrue statement of a material fact and does not omit to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made.

DATED: February 24, 2022.

 

(signed) “Zbigniew Roch”				(signed) “Zbigniew Roch”
Zbigniew Roch Sole Director				Zbigniew Roch President (Sole Officer)

The Depositary and Information Agent for the Offer is:

 

 

Kingsdale Advisors The Exchange Tower 130 King St W, Suite #2950 Toronto, ON M5X 1K6				North America Toll-Free: 1-866-581-1024 Outside North America: 1-416-867-2272 Email: contactus@kingsdaleadvisors.com

 

Questions and requests for assistance may be directed to the Depositary and Information Agent at the telephone numbers and location set out above. To keep current with further developments and information about the Offer, visit www.PetroteqOffer.com.