SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

SCHEDULE TO

 

(RULE 14d-100)

 

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) or 13(e)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

(Amendment No. 5)

 

Continental Materials Corporation

(Name of Subject Company (Issuer))

 

Bee Street Holdings LLC

James G. Gidwitz
Nancy Gidwitz
Ralph W. Gidwitz
Steven B. Gidwitz
Scott Gidwitz

(Offeror)

(Names of Filing Persons)

 

Common Stock Par Value $0.25

(Titles of Class of Securities)

 

211615307

(CUSIP Numbers of Class of Securities)

 

SCHEDULE 13E-3

 

RULE 13E-3 TRANSACTION STATEMENT

UNDER SECTION 13(E) OF THE SECURITIES EXCHANGE ACT OF 1934

 

(Amendment No. 5)

 

Bee Street Holdings LLC

James G. Gidwitz
Nancy Gidwitz
Ralph W. Gidwitz
Steven B. Gidwitz
Scott Gidwitz

(Offeror)

(Names of Filing Persons)

 

Common Stock Par Value $0.25

(Titles of Class of Securities)

 

211615307

(CUSIP Numbers of Class of Securities)

 

Kevin J. O’Keefe

425 South Financial Place, Suite 3100

Chicago, IL 60605

(312) 553-3653

(Name, Address and Telephone Number of Person Authorized

to Receive Notices and Communications on Behalf of the Filing Person)

 

COPIES TO:

 

Arthur McMahon, III

Taft Stettinius & Hollister LLP

425 Walnut Street, Suite 1800

Cincinnati, OH 45202-3957

Tel: (513) 357-9607

 

 

CALCULATION OF FILING FEE

 

TRANSACTION VALUATION*

 

AMOUNT OF FILING FEE+

$6,158,973.50

 

$799.43

 

*                                          Estimated for purposes of calculating the amount of the filing fee only. The amount assumes the purchase of all outstanding common stock (the “Shares”) of Continental Materials Corporation, a Delaware corporation (“CMC”) not owned by Bee Street Holdings LLC, at a purchase price of $9.50 per Share, net to the seller in cash. On February 17, 2020, 1,675,484 Shares were outstanding, of which 1,027,171 are owned by Bee Street. Accordingly, this calculation assumes the purchase of 648,313 Shares.

+                                         The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory # 1 for Fiscal Year 2020 issued by the Securities and Exchange Commission, by multiplying the transaction valuation by .0001298.

x                                   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.

 

Amount previously paid:

$799.43

Filing party:

Bee Street Holdings LLC

Form or registration No.:

Schedule TO

Date filed:

February 27, 2020

 

Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

 

o

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

Third-party tender offer subject to Rule 14d-1.

x

 

Issuer tender offer subject to Rule 13e-4.

o

 

Going-private transaction subject to Rule 13e-3.

x

 

Amendment to Schedule 13D under Rule 13d-2.

o

Check the following box if the filing is a final amendment reporting the results of the tender offer:

 

 

o

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)

o

 

Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)

o

 

 

 

 

This Amendment No. 5 to Tender Offer Statement and Amendment No. 5 to Rule 13e-3 Transaction Statement amends and supplements the joint Schedule TO and Schedule 13E-3 filed with the Commission on February 27, 2020, under cover of Schedule TO, each as amended by Amendment No. 1 thereto which was filed with the Commission on March 20, 2020, as amended by Amendment No. 2 thereto which was filed with the Commission on March 27, 2020, as amended by Amendment No. 3 thereto which was filed with the Commission on April 1, 2020 and as amended by Amendment No. 4 thereto which was filed with the Commission on April 6, 2020 (as amended and supplemented by this Amendment No. 5 and as it may be further amended and supplemented from time to time, collectively, this “Schedule TO”) by Bee Street Holdings LLC, a Delaware limited liability company (“Bee Street”), and relates to the offer by Bee Street to purchase all outstanding common stock, par value $0.25 (the “Shares”), of Continental Materials Corporation, a Delaware corporation (“CMC”), which are not currently held by Bee Street, upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 27, 2020 (the “Offer to Purchase”), the related letter of transmittal and the related notice of guaranteed delivery (which, together with any amendments or supplements thereto, collectively constitute the “Offer”).  All capitalized terms used in this Schedule TO without definition have the meanings ascribed to them in the Offer to Purchase.

 

The Offer to Purchase and the letter of transmittal are attached to this Schedule TO as Exhibits (a)(1)(i) and (a)(1)(ii), respectively.

 

This Schedule TO is intended to satisfy the requirements of a Tender Offer Statement on Schedule TO of the Purchaser Filing Persons and a Schedule 13E-3 Transaction Statement of the Purchaser Filing Persons. All information in the Offer to Purchase and the letter of transmittal, including all schedules and annexes thereto, is hereby expressly incorporated by reference in answer to all items in this Schedule TO, including, without limitation, all of the information required by Schedule 13E-3 that is not included in or covered by the items in Schedule TO and is supplemented by the information specifically provided herein, except as otherwise set forth below.

 

The items of the Schedule TO set forth below are hereby amended and supplemented as follows:

 

Items 1 through 9, Item 11 and Item 13.

 

On April 7, 2020, by way of a press release in the form attached hereto as Exhibit (a)(1)(viii), Bee Street announced the waiver of the Financing Condition (as defined in the Offer to Purchase) and the Minimum Tender Condition (as defined in the Offer to Purchase). Bee Street also announced that it had received from Wintrust Bank, N.A., a definitive commitment letter for a committed $8.75 million debt facility (the “Wintrust Facility”) which would enable Bee Street to consummate the Offer and to purchase all of the tendered Shares if only 306,317 Shares are tendered, which Bee Street believes is the minimum number of tendered Shares necessary to satisfy the Majority Minority Condition (as defined in the Offer to Purchase).

 

Item 12.  Exhibits

 

Exhibit No.

 

Description

 

 

 

(a)(1)(i)

*

Offer to Purchase, dated March 27, 2020

 

 

 

(a)(1)(ii)

*

Letter of Transmittal (including IRS Form W-9)

 

 

 

(a)(1)(iii)

*

Notice of Guaranteed Delivery

 

 

 

(a)(1)(iv)

*

Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees

 

 

 

(a)(1)(v)

*

Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees

 

 

 

(a)(1)(vi)

*

Press Release of Bee Street Holdings LLC dated April 1, 2020

 

 

 

(a)(1)(vii)

*

Press Release of Bee Street Holdings LLC dated April 6, 2020

 

 

 

(a)(1)(viii)

 

Press Release of Bee Street Holdings LLC dated April 7, 2020

 

 

 

(b)(i)

*

Commitment Letter, dated February 17, 2020, from CIBC Bank USA to Bee Street Holdings LLC

 

 

 

(b)(ii)

 

Commitment Letter, dated April 6, 2020, from Wintrust Bank, N.A., to Bee Street Holdings LLC and Bee Street II, Inc.

 

 

 

(c)

*

Valuation Report of Duff & Phelps Securities, LLC dated February 13, 2020

 

 

 

(d)

 

None

 

 

 

(g)

 

None

 

 

 

(h)

 

None

 

* Previously filed

 

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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.

 

Date: April 7, 2020

 

BEE STREET HOLDINGS LLC

 

 

 

 

 

 

 

By:

/s/ JAMES G. GIDWITZ

 

Name:

James G. Gidwitz

 

Title:

Chief Executive Officer

 

 

 

JAMES G. GIDWITZ

 

 

 

By:

/s/ JAMES G. GIDWITZ

 

 

 

NANCY GIDWITZ

 

 

 

By:

/s/ NANCY GIDWITZ

 

 

 

RALPH W. GIDWITZ

 

 

 

By:

/s/ RALPH W. GIDWITZ

 

 

 

STEVEN B. GIDWITZ

 

 

 

By:

/s/ STEVEN B. GIDWITZ

 

 

 

SCOTT GIDWITZ

 

 

 

By:

/s/ SCOTT GIDWITZ

 

 

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Exhibit (a)(1)(viii)

 

Bee Street Waives Financing Condition and Minimum Tender Condition of

Cash Tender Offer to Purchase All Outstanding Common Stock of

Continental Materials Corporation (CUO)

 

April 7, 2020 8:00 AM Eastern Daylight Time

 

CHICAGO—(BUSINESS WIRE)—Bee Street Holdings LLC (“Bee Street”), a holding company owned and controlled by James G. Gidwitz and other members of the Gidwitz family, today announces that it waives certain conditions of its previously announced tender offer to purchase all outstanding shares of common stock (the “Shares”) of Continental Materials Corporation (NYSE American: CUO, the “Company”) at a price of $9.50 per share in cash (the “Offer”).

 

Bee Street announces that is hereby waiving the Financing Condition (as defined in the Tender Offer Statement) and the Minimum Tender Condition (as defined in the Tender Offer Statement).

 

As previously announced, the Offer is scheduled to expire at midnight, New York City time, at the end of April 14, 2020, unless the Offer is further extended or earlier terminated in accordance with the terms set forth in the Tender Offer Statement.  Bee Street currently does not expect to further extend the expiration date of the Offer.

 

Bee Street further announces that Bee Street has received from Wintrust Bank, N.A. (“Wintrust”), a definitive commitment letter for a committed $8.75 million debt facility (the “Wintrust Facility”) which would enable Bee Street to consummate the Offer and to purchase all of the tendered Shares if only 306,317 Shares are tendered, which Bee Street believes is the minimum number of tendered Shares necessary to satisfy the Majority Minority Condition (as defined in the Tender Offer Statement).

 

Computershare Trust Company, N.A., the depositary for the Offer, has advised Bee Street that, as of 5:00 p.m., New York City time, on April 6, 2020, 407,372 Shares had been validly tendered pursuant to the Offer and not properly withdrawn. In addition, as of such time, Notices of Guaranteed Delivery had been delivered for 22,043 Shares.  Assuming that none of the Shares which are currently tendered are withdrawn, Bee Street believes that tenders of no additional Shares are required in order to consummate the Offer.

 

The Financing Condition was waived because Bee Street and the other Purchaser Filing Persons (as defined in the Tender Offer Statement) currently intend to close and draw upon the Wintrust Facility promptly after the expiration date of Offer (as it may be extended from time to time) in order to accept for payment and to pay for all of the Shares which have been validly tendered and not properly withdrawn prior to the expiration date.  The Minimum Tender Condition was waived because it is not a condition the Wintrust Facility.

 

If, notwithstanding the waiver of the Minimum Tender Condition, Bee Street and its affiliates nevertheless do own 90% or more of the outstanding Shares after the Offer is completed, the Purchaser Filing Persons currently intend to promptly consummate the Merger (as defined in the Tender Offer Statement), but the Purchaser Filing Persons may change their intent so to consummate the Merger.

 

As previously announced and together with the other Purchaser Filing Persons, Bee Street expects that, if the Merger does not occur promptly after the closing of the Offer, Bee Street would advocate, as the Company’s overwhelming majority stockholder after the completion of the Offer, for the Company to ‘go dark’ and cease to be a public company by de-listing the Shares from the NYSE American Stock Exchange and by terminating and suspending their and its registrations under the Securities Exchange Act of 1934, as amended.  If the Company so de-lists and de-registers, the Company would not thereafter be required to file periodic reports with the United States Securities and Exchange Commission (the “SEC”) and to comply with certain other rules promulgated by the SEC under the federal securities laws.

 

Except for the Financing Condition and the Minimum Tender Condition, no other condition of the Offer is currently being waived.

 

 

About the Offer

 

The Offer is being made pursuant to the tender offer materials (including an Offer to Purchase, a related Letter of Transmittal and certain other offer documents) in the joint Tender Offer Statement on Schedule TO and Transaction Statement on Schedule 13E-3 (together with any amendments or supplements thereto, collectively, the “Tender Offer Statement”) filed by Bee Street with the SEC on February 18, 2020, as amended on February 27, 2020, March 20, 2020, March 27, 2020, April 1, 2020 and April 6, 2020.  The Tender Offer Statement may be further amended.

 

InvestorCom is acting as information and solicitation agent for the Offer. Requests for documents and questions regarding the Offer may be directed to InvestorCom toll free at (877) 972-0090 (for stockholders) or collect at (203) 972-9300 (for banks and brokers), or by email to info@investor-com.com.

 

About Bee Street

 

Bee Street is the majority stockholder of the Company.  In addition, four of the members of the board of managers of Bee Street are also directors of the Company, including James G. Gidwitz, who is the Chairman and Chief Executive Officer of the Company.

 

Additional Information and Where to Find It

 

The Offer referenced herein commenced on February 18, 2020. This announcement is neither an offer to purchase nor a solicitation of an offer to sell shares of the Company, nor is it a substitute for the tender offer materials that Bee Street has filed with the SEC.  On February 18, 2020, Bee Street filed the Tender Offer Statement with the SEC. The Tender Offer Statement was subsequently amended on February 27, 2020, March 20, 2020, March 27, 2020, April 1, 2020 and April 6, 2020 and may be further amended. On March 3, 2020, the Company filed the related Solicitation/Recommendation Statement on Schedule 14D-9 (the “Solicitation/Recommendation Statement”) with the SEC, which was amended on March 24, 2020 and April 3, 2020 and which may be further amended. The Company’s stockholders and other investors are urged to read the Tender Offer Statement and the Solicitation/Recommendation Statement because they contain important information which should be read carefully before any decision is made with respect to the Offer.

 

The Tender Offer Statement and the Solicitation/Recommendation Statement, including amendments related thereto, are available for free at the SEC’s web site at www.sec.gov. In addition, the Tender Offer Statement and the Solicitation/Recommendation Statement may be obtained free of charge from the information agent by contacting InvestorCom toll free at (877) 972-0090 (for stockholders) or collect at (203) 972-9300 (for banks and brokers), or by email to info@investor-com.com.

 

In addition to the Solicitation/Recommendation Statement, the Company files annual, quarterly and current reports, proxy statements and other information with the SEC. The Company’s filings with the SEC are also available to the public from commercial document-retrieval services and at the website maintained by the SEC at www.sec.gov.

 

Contacts

 

For Bee Street:

c/o InvestorCom

Attn: John Glenn Grau, President

(203) 295-7841

jgrau@investor-com.com

 

Exhibit (b)(ii)

 

April 6, 2020

 

Bee Street Holdings, LLC and Bee Street II, Inc.

c/o 425 South Financial Place

Suite 3100

Chicago, IL 60605

Attention:  Mr. James Gidwitz

 

Dear Mr. Gidwitz:

 

We appreciate the opportunity to review your financing needs and look forward to expanding our relationship with you.  Based upon the information that has been provided to us, Wintrust Bank, N.A., a national banking association, formerly known as Wintrust Bank, a subsidiary of Wintrust Financial Corporation (hereinafter the “Bank”) is pleased to present the following Commitment Letter.  The terms and conditions are as follows:

 

LOAN (“Loan”):

 

Borrowers:

 

BEE STREET HOLDINGS LLC (“Holdings”) and BEE STREET II, INC. (“Merger Sub”), jointly and severally

 

 

 

Type of Loan:

 

Line of Credit.

 

 

 

Purpose:

 

To purchase up to 39% of the outstanding shares of capital stock of Continental Materials Corporation (“CMC”) not presently owned by Borrowers and pay related fees and expenses.

 

 

 

Loan Amount:

 

Up to $8,750,000 (all available at closing)

 

 

 

Maturity:

 

One (1) year from date of initial funding.

 

 

 

Repayment:

 

Interest only monthly and outstanding principal balance due at maturity.

 

 

 

Interest Rate:

 

Prime (floating) but not less than 3.25%.

 

 

 

Pre-Payment Premium:

 

None.

 

 

 

Underwriting Fee:

 

$43,750

 

 

 

Unused Line Fee:

 

50 bps per annum payable quarterly.

 

 

 

Collateral:

 

First priority lien on all assets of each Borrower including, but not limited to, pledge of all shares of Merger Sub and all of the shares of CMC held by Merger Sub.

 

 

GENERAL TERMS AND CONDITIONS:

 

Depository Relationship:

 

The Bank will handle the banking of the receipts, disbursements and other related services of the Borrowers and its wholly-owned subsidiaries with the normal exclusion for immaterial accounts and relationships necessary for the operation of Borrowers’ business. The terms of such relationship to be based upon the mutual negotiation and agreement of Borrowers and the Bank. Average available demand deposit account balances sufficient to cover the cost of services provided would be required.

 

 

 

Insurance:

 

The Borrower will be required to obtain and deliver to the Bank prior to the closing date, evidence of its D&O insurance in amounts satisfactory to the Bank.

 

 

 

Documentation:

 

The Loan will be documented by outside counsel and will include all documentation necessary to evidence and secure loans of this type in the Bank’s sole discretion. All documentation, agreements and instruments will be satisfactory to the Bank.

 

 

 

 

 

Loan documentation will include, without limitation, standard warranties and covenants pertaining to accuracy of information, organization, change in control, material litigation, business activities, use of proceeds, compliance with laws, restrictions on indebtedness, liens and contingent liabilities, payment of taxes, financial reporting, inspection of properties and records and full disclosure.

 

 

 

Events of Default:

 

Loan documentation will also include, without limitation, standard provisions, subject to customary cure rights, pertaining to failure to make payment when due, nonperformance or breach of terms, conditions, warranties or covenants, misrepresentation, default of third-party obligations, cessation of a guaranty, bankruptcy, adverse change and insecurity. The Bank’s rights and remedies will include, in part, setoff, and other rights as provided by law.

 

 

 

Financial Reporting:

 

The Borrower will be required to submit monthly status updates regarding the Borrowers’ tender offer for the shares of CMC not already held by the Borrowers.

 

 

 

Interest Reserve:

 

$500,000 to be deposited on or before closing in a deposit account maintained with Lender. Borrowers and Lenders to negotiate terms under which such reserve will be released.

 

 

 

Costs & Expenses:

 

The Borrowers will pay all of the Bank’s reasonable and customary costs and expenses incurred in underwriting, documenting, administering, funding and enforcing the loan facility including, but not limited to, reasonable attorney’s fees related to the preparation and review of loan documentation, business insurance, tax lien and judgment searches and

 

2

 

 

 

filing fees. Such amounts will be paid regardless of whether the closing of the Loan occurs.

 

 

 

Indemnification:

 

The Borrowers will indemnify, defend and hold harmless the Bank and its affiliates and its and their respective officer, directors, employees and agents from and against all loses, liabilities, claims, damages and expense relating to the loan and related transactions including, but not limited to, reasonable attorney’s fees and expenses and settlement costs. Such indemnification shall survive at all times after the Borrowers’ acceptance of this commitment notwithstanding the failure to close on the contemplated loan.

 

 

 

Waiver:

 

The Bank will not be deemed to have waived any of the terms or conditions hereof except in writing signed by an officer of the Bank and delivered to Borrowers.

 

 

 

Additional Information:

 

Borrowers agree to supply, prior to closing, any information, documentation or verifications that the Bank or its counsel may reasonably deem necessary.

 

 

 

Additional Financing:

 

Additional financing of any type secured by Bank collateral will not be permitted without the Bank’s prior express written consent.

 

 

 

Financial Information Warranty:

 

Borrower warrants that the Borrower’s financial information submitted to Bank is accurate and complete.

 

 

 

Due Diligence:

 

This Commitment Letter is made subject to the satisfactory completion of Bank due diligence including, but not limited to the satisfactory receipt and review and approval by the Bank of the following:

 

 

 

 

 

1)    Documents relating to the tender offer for the shares of CMC;

 

 

2)    Clear tax lien and judgment searches; and

 

 

3)    Applicable corporate and other organizational documents.

 

 

 

Material Adverse Change:

 

There will be no material adverse change in the financial condition of the Borrowers and no event shall have occurred which would prevent Bank from making the subject loan in accordance with the terms herein stated.

 

 

 

Confidentiality:

 

This Commitment Letter and financing arrangements described herein are delivered with the understanding that neither this letter nor the substance of the proposed terms and conditions will be disclosed by Borrowers to anybody outside of its organization, other than those professional advisors who are already in a confidential relationship with the Borrowers. Notwithstanding the foregoing, this Commitment Letter may be filed in connection with the tender offer.

 

3

 

Cancellation:

 

The Bank reserves the right to cancel this Commitment Letter and terminate its obligations hereunder without liability in the event that: (i) Borrowers fail to comply with any provisions or conditions set forth herein; (ii) any change occurs which is deemed by the Bank to materially adverse to either the financial or credit standing of the Borrowers and/or the current value of the collateral, or; (iii) if there is determined to have been any misstatements of fact in the loan application or supporting documents.

 

 

 

Expiration:

 

This Commitment Letter, if not accepted by Borrower and returned to the Bank by April 7, 2020 will expire on same date. In addition, if the Loan is not closed on or before April 30, 2020, this Commitment Letter will expire.

 

Please note that this Commitment Letter provides the general terms and conditions under which the Bank will provide the financing.  If this Commitment Letter sets forth terms which would be acceptable to you, please sign below and return a copy of this letter to the Bank by April 7, 2020. The terms and conditions described herein are not intended to incorporate all such terms and conditions as may be contained in formal loan documents and are meant to provide a general overview of the Bank’s approval.

 

On behalf of the Bank, thank you for the opportunity to serve you’re financing needs.  We are hopeful that the merits of this Commitment Letter and the overall benefits of banking with Wintrust, given its strong commercial and community focus, will result in your agreeing to the terms and conditions outlined above.

 

4

 

If you should have any questions regarding the terms and conditions contained herein, please do not hesitate to contact us.

 

Sincerely,

 

/s/ DAVID M. WYENT

 

David M. Wyent

 

Managing Director

 

 

ACCEPTANCE

 

The undersigned hereby agrees to the terms and conditions contained in the foregoing letter this 6th day of April, 2020.

 

BEE STREET HOLDINGS LLC,

 

a Delaware limited liability company

 

 

 

 

By:

/s/ JAMES GIDWITZ

 

Name:

James Gidwitz

 

Title:

Chief Executive Officer

 

 

 

BEE STREET II, INC.,

 

a Delaware corporation

 

 

 

 

By:

/s/ JAMES GIDWITZ

 

Name:

James Gidwitz

 

Title:

President

 

 

5