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

 

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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.

 

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Exhibit (a)(5)(B)

 

LOGO

Utz Quality Foods, LLC Successfully Completes Cash Tender Offer for Shares of Inventure Foods, Inc.

HANOVER, PA, December 14, 2017 (BUSINESS WIRE) – Utz Quality Foods, LLC (“Utz”), the largest privately-held and family-managed branded salty snack company in the United States, today announced that its wholly-owned subsidiary, Heron Sub, Inc. (“Purchaser”), successfully completed its tender offer for all the outstanding shares of common stock (“Shares”) of Inventure Foods, Inc. (NASDAQ: SNAK) (“Inventure Foods” or the “Company”) at a price of $4.00 per share, net to the seller in cash, without interest but subject to any required withholding taxes. Inventure Foods manufactures and sells salted snacks under the brands Boulder Canyon ® , TGI Fridays™, Nathan’s Famous ® , Vidalia Brands ® , Poore Brothers ® , Tato Skins ® and Bob’s Texas Style ® .

As of the expiration of the tender offer at one minute after 11:59 p.m., New York City time, on December 13, 2017, the depositary for the tender offer advised Purchaser that 15,249,164 Shares were validly tendered and not withdrawn in the tender offer, representing approximately 77.0% of the currently outstanding Shares (not including 263,136 Shares delivered through Notices of Guaranteed Delivery, representing approximately 1.3% of the Shares outstanding). The minimum tender condition as well as all other conditions to the tender offer were satisfied. As a result, Purchaser has accepted for payment and will promptly pay for all validly tendered Shares.

Utz intends to cause Purchaser to be merged with and into Inventure Foods as promptly as practicable today, with Inventure Foods continuing as the surviving corporation. As a result of the completion of the merger, all remaining eligible Shares will be canceled and converted into the right to receive $4.00 per share in cash, without interest but subject to any required withholding taxes, the same price that was paid in the tender offer (eligible Shares exclude those for which holders properly demanded appraisal under Delaware law and those held by Inventure Foods, its subsidiaries, Utz, Purchaser or any other subsidiary of Utz). As a result of the merger, Inventure Foods common stock will no longer be traded on The Nasdaq Global Select Market or any other public market.

“We are thrilled that we will complete the acquisition of Inventure Foods,” said Dylan Lissette, Chief Executive Officer of Utz. “Inventure Foods’ specialty snack food products and brands, as well as its geographic footprint, customer relationships, and distribution strengths, are highly complementary to Utz’s business. Under a unified umbrella, each company’s growth prospects will be enhanced. Like Utz, Inventure Foods’ product suite is strong in both healthy and indulgent snacking, and we look forward to continuing Inventure Foods’ strong heritage of innovation and working with its tremendously talented team of associates.”

Inventure Foods will operate as a wholly-owned subsidiary of Utz, with manufacturing facilities in Goodyear, Arizona and Bluffton, Indiana.

Utz was represented in the transaction by its financial advisor, Stephens Inc., and its legal counsel, Cozen O’Connor. Inventure Foods was represented in the transaction by its financial advisor, Rothschild, and its legal counsel, DLA Piper LLP (US).

About Utz Quality Foods, LLC

Founded in 1921, Utz ® Quality Foods, LLC is the largest privately-held and family-managed branded salty snack company in the United States, producing a full line of products including potato chips, pretzels, cheese snacks, corn chips, tortillas, veggie stix/straws, popcorn, onion rings, pork skins and more. Its brands, which include Utz ® , Golden Flake ® , Zapp’s ® , “Dirty” ® Potato Chips, Good Health ® , Bachman ® , Bachman Jax ® , Wachusett ® and Snikiddy ® among others, are distributed nationally and internationally through grocery, mass-merchant, club stores, convenience stores, drug stores and other channels. Based in Hanover, PA, Utz operates ten facilities located in Pennsylvania, Colorado, Louisiana, Massachusetts and Alabama.

For information about Utz ® or its products, please visit www.utzsnacks.com or call 1-800-FOR-SNAX.

Contacts for Utz Quality Foods:

George Neiderer, Utz SVP HR: (717) 637-1759 or gneiderer@utzsnacks.com

Kevin J. Brick, Utz SVP Marketing: (717) 637-1759 or kbrick@utzsnacks.com

About Inventure Foods, Inc.

With manufacturing facilities in Arizona and Indiana, Inventure Foods, Inc. is a marketer and manufacturer of specialty food brands in better-for-you and indulgent categories under a variety of Company owned and licensed brand names, including Boulder Canyon ® , TGI Fridays™, Nathan’s Famous ® , Vidalia Brands ® , Poore Brothers ® , Tato Skins ® and Bob’s Texas Style ® . For further information about Inventure Foods, please visit www.inventurefoods.com.

Note Regarding Forward-looking Statements

This press release includes forward-looking statements that are subject to risks, uncertainties and other factors. All statements other than statements of historical fact are statements that could be deemed forward-looking statements, including all statements regarding the intent, belief or current expectation of Utz and members of its senior management team. Forward-looking statements include, without limitation, statements regarding the business combination. These statements speak only as of the date of this press release and are based on Utz’s current plans and expectations and involve risks and uncertainties that could cause actual future events or results to be different from those described in or implied by such forward-looking statements, including risks and uncertainties regarding: changes in financial markets; changes in economic, political or regulatory conditions or other trends affecting their industries; and changes in facts and circumstances and other uncertainties concerning the business combination. Utz does not undertake any obligation to update or revise any of its forward-looking statements to reflect future events or circumstances.

 

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