SNAK Inventure Foods, Inc. (MM)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE TO

Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

(Amendment No. 3)

 

 

INVENTURE FOODS, INC.

(Name of Subject Company (issuer))

HERON SUB, INC.

(Name of Filing Persons (Offeror)) a wholly-owned subsidiary of

UTZ QUALITY FOODS, LLC

(Name of filing Persons (Parent of Offeror))

 

 

Common Stock, $.01 Par Value

(Title of Class of Securities)

 

 

461212102

(CUSIP Number of Class of Securities)

 

 

Heron Sub, Inc.

Utz Quality Foods, LLC

900 High Street

Hanover, PA 17331

Attention: Dylan Lissette

(717) 637-6644

(Name, Address and Telephone Number of Person Authorized

to Receive Notices and Communications on Behalf of Filing Persons)

 

 

With copies to:

Larry P. Laubach

Richard J. Busis

Cozen O’Connor

One Liberty Place, 1650 Market Street, Suite 2800

Philadelphia, PA 19103

(215) 665-2000

 

 

CALCULATION OF FILING FEE

 

Transaction Valuation*		Amount of Filing Fee**
$82,091,562.50		$10,220.40

*

Estimated solely for purposes of calculating the amount of filing fee. The calculation of the transaction value is determined by adding the sum of (i) 19,827,000 shares of common stock, $.01 par value, of Inventure Foods, Inc. (“Inventure Foods”), multiplied by the offer price of $4.00 per share, (ii) the net offer price for 224,550 shares issuable pursuant to outstanding options with an exercise price less than $4.00 per share (which is calculated by multiplying the number of shares underlying such outstanding options by an amount equal to the offer price of $4.00 per share minus the weighted average exercise price per share of $2.25), (iii) 183,021 shares subject to issuance upon settlement of outstanding performance share units multiplied by the offer price of $4.00 per share, and (iv) 414,629 shares subject to issuance upon settlement of outstanding restricted stock units multiplied by the offer price of $4.00 per share. The calculation of the filing fee is based on information provided by Inventure Foods as of October 25, 2017.

**	The amount of the filing fee is calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934 and Fee Rate Advisory #1 for fiscal year 2018, issued by the Securities and Exchange Commission on August 24, 2017, by multiplying the transaction valuation by 0.0001245.

 

☒	Check 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.

 

Amount Previously Paid:		$10,220.40		Filing Party:		Heron Sub, Inc. and Utz Quality Foods, LLC
Form or Registration No.:		Schedule TO		Date Filed:		November 15, 2017

 

☐	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:

 

☒

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. 3 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Heron Sub, Inc., a Delaware corporation (“Purchaser”), and Utz Quality Foods, LLC, a Delaware limited liability company (“Parent”), with the U.S. Securities and Exchange Commission on November 15, 2017 (together with any amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the offer by Purchaser and Parent to purchase all of the outstanding shares of common stock, $.01 par value per share (the “Shares”), of Inventure Foods, Inc., a Delaware corporation (“Inventure Foods”), at a price of $4.00 per Share, net to the seller in cash, without interest but subject to any required withholding taxes and upon the terms and subject to the conditions set forth in the Offer to Purchase dated November 15, 2017 (together with any amendments or supplements thereto, the “Offer to Purchase”) and in the related Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal,” and, together with the Offer to Purchase, the “Offer”), which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. Purchaser is a wholly-owned subsidiary of Parent.

All the information set forth in the Offer to Purchase and the related Letter of Transmittal, including all schedules thereto, is hereby incorporated by reference herein in response to Items 1 through 9 and Item 11 of this Amendment, except as otherwise set forth below. This Amendment should be read together with the Schedule TO. Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Offer to Purchase of the Schedule TO.

Items 1 through 9 and Item 11.

“At one minute after 11:59 p.m., New York City time, on December 13, 2017, the Offer expired. The Depositary advised Purchaser that, as of the expiration of the Offer, a total of 15,249,164 Shares (excluding Shares with respect to which Notices of Guaranteed Delivery were delivered) were validly tendered and not properly withdrawn pursuant to the Offer, representing approximately 77.0% of the Shares outstanding as of the expiration of the Offer. The Depositary advised Purchaser that Notices of Guaranteed Delivery have been delivered with respect to 263,136 Shares, representing approximately 1.3% of the outstanding Shares as of the expiration of the Offer.

As of the expiration of the Offer, the number of Shares validly tendered and not properly withdrawn pursuant to the Offer satisfied the Minimum Condition, and all other conditions to the Offer were satisfied or waived. Immediately after the expiration of the Offer, Purchaser irrevocably accepted for payment, and will promptly pay for, all Shares tendered and not properly withdrawn pursuant to the Offer.

Following expiration of the Offer and acceptance for payment of the Shares, Purchaser has ownership sufficient to effect the Merger under Section 251(h) of the DGCL without a vote of the Inventure Foods stockholders. As promptly as practicable, Purchaser intends to effect the Merger pursuant to which Purchaser will merge with and into Inventure Foods with Inventure Foods as the surviving corporation and a wholly-owned subsidiary of Parent. At the Merger Effective Time, each issued and outstanding Share, other than Shares outstanding immediately prior to the Effective Time beneficially owned by Inventure Foods, its subsidiaries, Parent, Purchaser or any other subsidiary of Parent, or by stockholders who have validly exercised their appraisal rights under the DGCL, will be canceled and converted into the right to receive $4.00, without interest but subject to any required withholding taxes, and payable to the holder thereof on the terms and subject to the conditions set forth in the Merger Agreement.

As a consequence of the Merger, the Shares will no longer be listed on Nasdaq, and Parent and Purchaser intend to take steps to cause the termination of the registration of the Shares under the Exchange Act and suspend all of Inventure Foods’ reporting obligations under the Exchange Act as promptly as practicable.

On December 14, 2017, Parent issued a press release announcing the expiration and results of the Offer. The full text of the press release is attached as Exhibit (a)(5)(B) hereto 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:

 

Exhibit No.		Description
(a)(5)(B)*		Press Release of Utz Quality Foods, LLC on December 14, 2017.

 

*	Filed herewith

---

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.

Dated: December 14, 2017

 

				HERON SUB, INC.
				By:		/s/ Dylan Lissette
						Name: Dylan Lissette
						Title: Chief Executive Officer
				UTZ QUALITY FOODS, LLC
				By:		/s/ Dylan Lissette
						Name: Dylan Lissette
						Title: Chief Executive Officer

 

2

---

EXHIBIT INDEX

 

Exhibit No.		Description
(a)(1)(A)		Offer to Purchase, dated November  15, 2017.*
(a)(1)(B)		Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute  Form  W-9).*
(a)(1)(C)		Notice of Guaranteed Delivery.*
(a)(1)(D)		Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
(a)(1)(E)		Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
(a)(1)(F)		Summary Advertisement as published in  The New York Times  on November  15, 2017.*
(a)(5)(A)		Press Release dated October   26, 2017 (incorporated by reference to Exhibit 99.1 to the Tender Offer Statement on Schedule  TO-C  filed with the Securities and Exchange Commission by Parent on October   26, 2017).
(a)(5)(B)		Press Release of Utz Quality Foods, LLC on December 14, 2017.
(b)(1)		Term Loan Commitment Letter dated October  25, 2017 among Bank of America, N.A., Merrill Lynch, Pierce, Fenner   & Smith Incorporated and Utz Quality Foods, LLC.*
(b)(2)		Second Lien Term Loan Credit Agreement, dated as of November   21, 2017, among Utz Quality Foods, LLC, as borrower, certain affiliates of borrower, Bank of America, N.A. as administrative agent and collateral agent, and the lenders party thereto.*
(d)(1)		Agreement and Plan of Merger dated as of October   25, 2017 among Utz Quality Foods, LLC, Heron Sub, Inc. and Inventure Foods, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form  8-K   of Inventure Foods, Inc. filed with the Securities and Exchange Commission on October  26, 2017).
(d)(2)		Mutual Nondisclosure Agreement dated as of September  26, 2016 between Utz Quality Foods, LLC and Inventure Foods, Inc.*
(d)(3)		Exclusivity Agreement, dated as of August  25, 2017, by and between Utz Quality Foods, LLC and Inventure Foods, Inc.*
(d)(4)		Amendment to Exclusivity Agreement, dated as of October   17, 2017, by and between Utz Quality Foods, LLC and Inventure Foods, Inc.*
(d)(5)		Amendment to Exclusivity Agreement, dated as of October   19, 2017, by and between Utz Quality Foods, LLC and Inventure Foods, Inc.*
(g)		None.
(h)		None.

 

*	Previously filed.

 

3