Sec Form 13D Filing - BT DE Investments Inc. filing for ORGANIGRAM HLDGS INC (OGI) - 2023-11-08

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 2)

ORGANIGRAM HOLDINGS, INC.

(Name of Issuer)

Common Shares, no par value

(Title of Class of Securities)

68620P101

(CUSIP Number)

Anthony B. Petitt

BT DE Investments Inc.

103 Foulk Road, Suite 111

Wilmington, Delaware 19803

(302) 656-1950

With a copy to:

Bradley C. Brasser

Jones Day

90 South Seventh Street, Suite 4950

Minneapolis, Minnesota 55402

(612) 217-8886

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

November 5, 2023

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box.  ☐

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).

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This statement constitutes Amendment No. 2 (this “Amendment No. 2”) to the Schedule 13D (the “Initial Schedule 13D”) filed with the Securities and Exchange Commission (“SEC”) on March 10, 2021, as amended and supplemented by Amendment No. 1 to Schedule 13D (“Amendment No. 1” and, the Initial Schedule 13D as amended and supplemented by Amendment No. 1, the “Original Schedule 13D”) filed with the SEC on February 1, 2022 relating to the Common Shares of the Issuer. This Amendment No. 2 amends the Original Schedule 13D on behalf of the undersigned to furnish the information set forth herein. Except as set forth below, all Items of the Original Schedule 13D remain unchanged. Capitalized terms used but not defined in this Amendment No. 2 have the meaning assigned to them in the Original Schedule 13D.

The Initial Schedule 13D was filed with respect to Common Shares of the Issuer held by BT DE Investments Inc. (the “Purchaser”). The Purchaser is a wholly owned subsidiary of BATUS Holdings Inc., which is a wholly owned subsidiary of Louisville Securities Limited, which is a wholly owned subsidiary of British-American Tobacco (Holdings) Limited, which is a wholly owned subsidiary of B.A.T. Industries p.l.c., which is a wholly owned subsidiary of Weston (2009) Limited, which is a wholly owned subsidiary of British American Tobacco (2009) Limited, which is a wholly owned subsidiary of British American Tobacco (2012) Limited, which is a wholly owned subsidiary of British American Tobacco (1998) Limited, which is a wholly owned subsidiary of British American Tobacco p.l.c. (“BAT”). BAT and the aforementioned wholly owned subsidiaries of BAT are collectively referred to herein as the “BAT Entities”.

The information set forth in Item 4 of this Amendment No. 2 is incorporated by reference.

On November 5, 2023, the Purchaser executed and delivered a subscription agreement (the “Subscription Agreement”) with the Issuer to acquire Common Shares and Class A preferred shares to be newly created and issued (“Preferred Shares” and, together with the Common Shares, “Shares”) on a private placement basis (the “Private Placement”), increasing the Purchaser’s strategic investment in the Issuer completed on March 11, 2021.

The Private Placement will be undertaken in three (3) tranches, each subject to the satisfaction of certain conditions. Under the first tranche (the “First Tranche”), which will close three (3) business days after the date on which the requisite conditions in the Subscription Agreement are met (provided that such date shall be no later than April 30, 2024 unless the Purchaser and the Issuer mutually so agree), 12,893,175 Shares will be issued to the Purchaser at a price of C$3.2203 per Share (the “Tranche Share Price”). The allocation of Common Shares and Preferred Shares issued as part of each tranche will be subject to a threshold on the issuance of Common Shares to the Purchaser of 30% of the aggregate number of Common Shares issued and outstanding, as described below.

Under the second tranche of the Private Placement (the “Second Tranche”), which will close on August 30, 2024 (or such earlier date as the Purchaser and Issuer may mutually agree), 12,893,175 Shares will be issued to the Purchaser at the Tranche Share Price. Under the third tranche of the Private Placement (the “Third Tranche”), which will close on February 28, 2025 (or such earlier date as the Purchaser and Issuer may mutually agree, provided such date is not earlier than closing of the Second Tranche), 12,893,175 Shares will be issued to the Purchaser at the Tranche Share Price.

The closing of the First Tranche, the Second Tranche, and the Third Tranche are conditional on, among other things, approval under the Canadian Competition Act R.S.C. 1985 c. C-34, as amended, applicable stock exchange approval, and approval of the Issuer’s shareholders.

The aggregate subscription price of the Shares acquired by the Purchaser as part of the First Tranche, the Second Tranche, and the Third Tranche will be C$124,559,674.36. The source of funds for such purchase was dividends from other U.S. subsidiaries of BAT.

In connection with the Private Placement and subject to approval by the Issuer’s shareholders, the Issuer will file articles of amendment (the “Articles of Amendment”) to create the new class of Preferred Shares to be issued in the Private Placement. Pursuant to the terms of the Subscription Agreement, Shares issued in the First Tranche, Second Tranche, and Third Tranche will be allocated between Common Shares and Preferred Shares such

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that if the number of Common Shares owned by the Purchaser or its affiliates, associates, related parties and any joint actors would exceed 30% of the aggregate number of Common Shares issued and outstanding (the “30% Threshold”) after the closing of the applicable tranche, the Issuer will issue to the Purchaser the greatest number of Common Shares issuable pursuant to such closing without exceeding the 30% Threshold, with the remainder of the Shares issuable as Preferred Shares (all as more specifically set forth in the Subscription Agreement).

The Preferred Shares will be non-voting convertible preferred shares of the Issuer convertible at the option of the Purchaser without payment of any additional consideration (subject to the 30% Threshold). The Preferred Shares will be convertible initially on a one-for-one basis, provided however that the conversion rate will increase at a rate of 7.5% per annum commencing from the initial date on which Preferred Shares are issued, until such time as the holders of Preferred Shares would beneficially own, or exercise control or direction over, directly or indirectly, with their respective affiliates, associates, related parties and any joint actors, after giving effect to the conversion of the Preferred Shares, 49.0% of the aggregate number of Common Shares issued and outstanding.

The Purchaser entered into the Subscription Agreement in furtherance of its strategic investment in the Issuer. The completion of the First Tranche, the Second Tranche and the Third Tranche in accordance with the terms of the Subscription Agreement will increase the Purchaser’s security ownership in the Issuer, as described in this Amendment No. 2.

The Purchaser intends to review its investment in the Issuer on a continuing basis and may, subject to the terms of the A&R Investor Rights Agreement (as defined below), and depending upon a number of factors, including market and other conditions, increase or decrease its beneficial ownership, control, direction or economic exposure over securities of the Issuer, through market transactions, private agreements, treasury issuances, exercise of options, convertible securities, derivatives, swaps or otherwise.

Pursuant to the Subscription Agreement, unless otherwise consented to in writing by the Purchaser in advance, the Issuer is required to use one-half of the proceeds from each of the First Tranche and the Second Tranche for general corporate purposes, and one-half of the proceeds of each of the First Tranche and the Second Tranche, and all of the proceeds of the Third Tranche, to fund a segregated bank account (the “Jupiter Pool”), subject to adjustment in accor dance with the terms of the Subscription Agreement. The Jupiter Pool is to be invested by the Issuer in accordance with the terms of reference provided for in the A&R Investor Rights Agreement.

The Subscription Agreement contains customary voting support covenants of the Purchaser in connection with the approval of matters related to the Private Placement by the Issuer’s shareholders. In addition, it contains a covenant of the Issuer not to issue or obligate itself to issue any securities, including Shares, during the term of the Subscription Agreement, except (1) (a) with the prior written consent of the Purchaser, (b) as permitted under Issuer’s equity incentive plans, (c) as expressly contemplated by or pursuant to the Purchaser’s top-up and pre-emptive rights under the A&R Investor Rights Agreement, or (d) at a price that is at or above the Tranche Share Price, and (2) initially up to 15,756,648 Shares (based on estimated pro forma shareholdings that would result in the Purchaser owning at least 40% of the Shares outstanding if the First Tranche, the Second Tranche, and the Third Tranche were completed) at any price, but subject to increase as agreed to by the Issuer and the Purchaser acting reasonably, if the number of Shares outstanding increases over time.

Pursuant to an amended and restated investor rights agreement, to be entered into between the Purchaser and the Issuer concurrently with the closing of the First Tranche (the “A&R Investor Rights Agreement”), the Purchaser will have the right to nominate up to 30% of the board of directors of the Issuer (the “Board”), subject to the Purchaser maintaining certain share ownership thresholds. No additional nominees will be added in connection with execution of the Subscription Agreement or upon closing of the First Tranche. The Purchaser will be entitled, subject to the terms and conditions of its nomination rights, to replace its nominee directors from time to time. In addition, the Purchaser will be provided with certain governance rights, so long as it maintains certain share ownership thresholds, including pre-emptive rights, top-up rights and customary registration rights. The Purchaser will be permitted to engage with the Board regarding the Issuer’s business and prospects.

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The information set forth in Item 4 of this Amendment No. 2 is incorporated by reference. The description of the Subscription Agreement is a summary of that agreement and is qualified in its entirety by the full terms and conditions of the Subscription Agreement, which is incorporated herein by reference.

Item 7 of this Amendment No. 2 is hereby amended to add the following:

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After reasonable 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.

Dated: November 8, 2023

Schedule A

BAT Entities

Schedule B

BAT Directors and Officers

The name, country of citizenship and current principal occupation or emp loyment of each of the BAT Directors and Officers are set forth below. Unless otherwise indicated in the tables below (i) each occupation set forth opposite an individual’s name refers to a position with a BAT Entity and (ii) the business address of such individual is Globe House, 4 Temple Place, London WC2R 2PG, United Kingdom.

British American Tobacco p.l.c.

British American Tobacco (1998) Limited

British American Tobacco (2012) Limited

British American Tobacco (2009) Limited

Weston (2009) Limited

B.A.T. Industries p.l.c.

British-American Tobacco (Holdings) Limited

Louisville Securities Limited

BATUS Holdings Inc.

BT DE Investments Inc.