SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
AMENDMENT NO. 2 TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d) (1) OF THE SECURITIES EXCHANGE ACT OF 1934
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.
(Name of Subject Company)
WHITMAN'S CANDIES, INC.
WC-RMA CORP.
(Bidders)
COMMON STOCK, PAR VALUE $.03 PER SHARE
(Title of Class of Securities)
774678403
(CUSIP Number of Class of Securities)
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MR. THOMAS S. WARD
CO-PRESIDENT
WHITMAN'S CANDIES, INC.
1000 WALNUT STREET
SUITE 900
KANSAS CITY, MISSOURI 64106
TELEPHONE: (816) 842-9240
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
with a copy to:
DAVID W. PRESTON, ESQ.
LATHROP & GAGE L.C.
2345 GRAND BOULEVARD
SUITE 2300
KANSAS CITY, MISSOURI 64108
TELEPHONE: (816) 292-2000
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WC-RMA Corp., a Delaware corporation ("Purchaser") and a wholly-owned
subsidiary of Whitman's Candies, Inc., a Missouri corporation ("Parent"), and
Parent hereby amend and supplement their Tender Offer Statement on Schedule
14D-1, as amended (the "Schedule 14D-1") filed with the Securities and Exchange
Commission on May 10, 1999 relating to the Offer by Purchaser to purchase all
Shares of Rocky Mountain Chocolate Factory, Inc., a Colorado corporation (the
"Company"). Capitalized terms not defined herein have the meaning ascribed to
them in the Schedule 14D-1.
ITEM 11. Material to be Filed as Exhibits.
Item 11 of the Schedule 14D-1 is hereby amended to revise the description
of exhibit (a)(8) to reflect that the Summary Advertisement was published in The
New York Times, rather than The Wall Street Journal, as follows:
(a)(8) Summary Advertisement published in the national edition of The New
York Times on May 11, 1999 (incorporated by reference to Schedule 14D-1 filed by
the Purchaser and the Parent on May 10, 1999 (SEC File No. 005-38695)).
Item 11 of the Schedule 14D-1 is also hereby amended to add the following
exhibit:
(b)(2) Commerce Bank Commitment Letter with respect to the Irrevocable
Standby Letter of Credit, dated May 7, 1999.
2
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SIGNATURE
After due inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: May 11, 1999 WHITMAN'S CANDIES, INC.
By: s/ Thomas S. Ward
Name: Thomas S. Ward
Title: Co-President
WC-RMA CORP.
By: s/ Thomas S. Ward
Name: Thomas S. Ward
Title: Co-President
3
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
(a)(8) Summary Advertisement published in the national edition of The New
York Times on May 11, 1999 (incorporated by reference to Schedule
14D-1 filed by the Purchaser and the Parent on May 10, 1999 (SEC
File No. 005-38695)).
(b)(2) Commerce Bank Commitment Letter with respect to the Irrevocable
Standby Letter of Credit, dated May 7, 1999.
4
[Commerce Bank Logo]
Post Office Box 419248
Kansas City, Missouri 64141-6248
(816) 234-2000
May 7, 1999
Mr. Richard S. Masinton
Chief Administrative officer
WHITMAN'S CANDIES, INC.
1000 Walnut Street
Kansas City, Missouri 64106
Re: Standby Letter of Credit
Dear Mr. Masinton:
We are pleased to advise you that the Senior Loan Committee of Commerce Bank,
N.A. ("Commerce Bank") has approved a credit facility for Whitman's Candies,
Inc. ("Company"), consisting of the issuance and delivery of an irrevocable
standby letter of credit of Commerce Bank, in the approximate amount of
$25,000,000 (the "Letter of Credit") for the benefit of WC-RMA Corp. Additional
terms are as follows:
Expiry: The Letter of Credit shall have an initial expiry one (1) year from the
date of issuance. The expiry date may be extended, by a period of one (1) year,
in the sole discretion of Commerce Bank.
Term Loans: All amounts drawn under the Letter of Credit which are not
immediately paid/reimbursed by Company shall be converted, on or before the
expiry date of the Letter of Credit, to a Term Loan, maturing one (1) year from
the date of funding.
Interest: All amounts drawn under the Letter of Credit which are not immediately
paid/reimbursed by Company, including any amounts converted to a Term Loan,
shall bear interest at a per annum
<PAGE>
Mr. Richard S. Masinton
May 7, 1999
Page 2
variable rate equal to three-quarters of one percent (.75%) in excess of the
"LIBOR Rate". For purposes hereof, "LIBOR Rate" shall mean the thirty-day
London Interbank Offered Rate, as quoted in the Money Rates section of The Wall
Street Journal, the Knight-Ridder News Service, or such other news service
used by Commerce Bank, on the business day immediately preceding the date of the
applicable advance/Term Loan (or the business day immediately preceding the date
of any adjustment date, as applicable); the LIBOR Rate, with respect to a
particular advance/Term Loan, shall be subject to adjustment every thirty days
based upon the then applicable LIBOR Rate. Interest shall be calculated on
the actual number of days outstanding on the basis of a year consisting of 360
days and shall be payable monthly, in arrears.
Letter of Credit Fees: The following per annum issuance fees (to be calculated
based upon a year consisting of 360 days, for the actual days in effect) shall
be charged by Commerce Bank with respect to the issuance (and extension, if
applicable) of the Letter of Credit: .50% of the principal amount from time to
time payable under the Letter of Credit, payable quarterly in advance. Letter of
Credit negotiation fees shall be calculated and charged at a rate of $150 per
draw.
Collateral: The obligations of Company with respect to the Letter of Credit and
any Term Loan shall be secured by the collateral pledge, without guaranty, of
marketable securities identified on Exhibit A attached hereto and incorporated
herein by this reference, and all substitutions and replacements therefor and
proceeds thereof owned by Scott H. Ward (and/or any applicable trust of Scott H.
Ward), Thomas S. Ward (and/or any applicable trust of Thomas S. Ward) and Linda
W. O'Hara (and/or any applicable trust of Linda W. O'Hara) (collectively, the
"Pledgors"). Pledgors shall be required to execute and deliver a Collateral
Pledge (Without Guaranty), in form and substance acceptable to Commerce Bank.
Contingencies: As contingencies to the issuance of the Letter of Credit, Company
shall, without limitation, (i) provide all corporate
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Mr. Richard S. Masinton
May 7, 1999
Page 3
existence and authority documents and resolutions, and current good standing
certificates; and (ii) provide, if requested by Commerce Bank an opinion of
Company's counsel opining, without limitation, that Company is duly formed and
existing, in good standing, with the authority to enter into the transactions
contemplated hereby, and that all of the documentation relating to the Letter
of Credit shall be valid, binding and enforceable against Company in
accordance with its terms. Furthermore, Commerce Bank reserves the right to
require an opinion of counsel from Pledgors opining, without limitation, that
Pledgors have the authority to enter into the transactions contemplated
hereby, and that all of the documentation relating to the Collateral Pledge
(Without Guaranty) shall be valid, binding and enforceable against Pledgors in
accordance with its terms.
Documentation: The Company's obligations with respect to the Letter of Credit
and any Term Loan shall be evidenced and governed by this commitment letter, an
Application and Agreement for Standby Letter of Credit, a Term Note (as
applicable), the Collateral Pledge (Without Guaranty) (to be executed by
Pledgors), and other related documents, which shall be drafted by counsel for
Commerce Bank. To the extent of any inconsistencies between the terms of
this commitment letter and any other document executed in connection herewith,
this commitment letter shall control.
Representations: Company represents and warrants to Commerce Bank that the
Company is a corporation existing and in good standing under the laws of the
State of Missouri; that the Company has corporate power and authority to own its
properties and to enter into this agreement, borrow monies from Commerce Bank
and perform its obligations hereunder, and that such entry, borrowing and
performance has been authorized by all necessary corporate action and has
received all necessary governmental approval (if any shall be required) and
shall not contravene or conflict with any provision of law or of the charter or
by-laws of the Company or of any agreement, law or order binding upon the
Company; that all financial statements delivered to Commerce Bank
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Mr. Richard S. Masinton
May 7, 1999
Page 4
on behalf of the Company accurately present the financial condition of the
Company; that since the date of the last financial statements of the Company
delivered to Commerce Bank, no material adverse change in the business, assets,
operations or prospects of the Company have occurred of which Commerce Bank
has not been advised either verbally or in writing; and that no litigation or
other contingent liability exists which may have a material adverse effect on
the business, assets, operations or prospects of the Company of which Commerce
Bank has not been advised in writing. The representations and warranties
contained herein shall be deemed to be continuing while this commitment letter
remains in effect and/or any obligations are outstanding under the Letter of
Credit or any Term Note.
Financial Information: Company shall provide to Commerce Bank (i) copies of its
year-end audited financial statements (prepared by independent certified public
accountants acceptable to Commerce Bank) within ninety (90) days after fiscal
year end, (ii) copies of its quarterly financial statements (certified by the
chief financial officer of Company) within forty-five (45) days after the end of
each quarter, and (iii) from time to time such further information regarding the
financial condition, business and/or properties of Company as Commerce Bank may
request.
Covenants: For such period of time as this commitment letter remains in effect
and/or any obligations are outstanding under the Letter of Credit or any Term
Note, Company covenants and agrees:
(a) Company shall permit Commerce Bank, and any person designated by
Commerce Bank as its agent, to (at Commerce Bank's expense) inspect and review
any of Company's properties, assets, corporate books and financial records, and
to discuss its affairs, finances and accounts with its principal officers and
independent certified public accountants, all at such reasonable times and as
often as Commerce Bank may reasonably request;
(b) Company shall: pay and discharge prior to delinquency
<PAGE>
Mr. Richard S. Masinton
May 7, 1999
Page 5
all material debts, accounts, liabilities, assessments, and governmental
charges or levies imposed upon it or upon its income or profits or upon any of
its properties (provided, however, Company shall not be required to pay any
taxes, assessments or governmental charges being diligently contested by it in
good faith by appropriate legal proceedings); do all things necessary to
preserve and keep in full force and effect its corporate existence, rights,
franchises and privileges; and comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, any governmental
authority, the noncompliance with which could materially adversely affect its
business or credit;
(c) Company shall notify Commerce Bank in writing of any default hereunder,
or under any indenture, agreement, contract or other instrument relating to
moneys borrowed to which it is a party or by which it is bound, or of any
acceleration of maturity of any indebtedness relating to moneys borrowed, and
shall take all such steps as are necessary or appropriate to promptly remedy any
such default;
(d) Company shall not merge or consolidate with another entity or sell all
or substantially all of its assets to any person, firm or corporation; and
(e) There shall be no material change (as determined by Commerce Bank in its
sole discretion) in the ownership of Company, and there shall be no material
adverse change in the financial condition of Company or the nature of its
business.
Events of Default: Upon the occurrence of any of the following events of
default: failure of Company to comply with any of the provisions contained in
this commitment letter or in any other agreement between Company and Commerce
Bank; any event under any other agreement to which Company is a party which
allows Commerce Bank or any other party to declare any indebtedness relating to
moneys borrowed due and payable in full; or dissolution, termination of
existence, insolvency, appointment of a receiver of any part of the property of,
an assignment for the benefit of
<PAGE>
Mr. Richard S. Masinton
May 7, 1999
Page 6
creditors, or the commencement of any proceedings under bankruptcy of insolvency
laws by or against Company; then or at any time thereafter, all obligations of
Company owing to Commerce Bank, shall immediately become due and payable without
notice or demand. Unless prohibited by law, Company will pay on demand all costs
of collection, legal expenses and attorneys, fees incurred or paid in collecting
and/or enforcing this commitment letter and/or any Term Loan. Furthermore,
Commerce Bank reserves the right to offset without notice all funds held by
Commerce Bank against matured debts owing to Commerce Bank by Company.
Commitment Fee: For the commitment of Commerce Bank contained herein, Company
agrees to pay Commerce Bank a commitment fee of $18,000. Such fee shall be
payable upon execution of this commitment letter by Company.
Expenses: Company shall be obligated to pay all fees and expenses related to the
Letter of Credit and related documents, including the fees and expenses of
Commerce Bank's legal counsel (if any), whether or not the Letter of Credit is
issued.
Closing Conditions: In addition to contingencies hereinbefore set forth, this
commitment and the issuance of the Letter of Credit shall be specifically
conditioned upon (i) Commerce Bank's satisfactory due diligence review of
Company, its operations and financial condition; (ii) the execution of the
various documents relating to the Letter of Credit acceptable to Company,
Commerce Bank and their respective legal counsel; and (iii) the continued sound
financial condition of Company, without the occurrence of any significant or
material change in its financial position or the nature of its business (at
closing, Commerce Bank may require a certificate relating to the foregoing).
Miscellaneous:
(a) This commitment letter shall be governed by, and construed in accordance
with, the laws of the State of Missouri.
(b) ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
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Mr. Richard S. Masinton
May 7, 1999
Page 7
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO
EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER)
AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE
REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER
AGREE IN WRITING TO MODIFY IT.
If the terms and conditions contained in this commitment letter are satisfactory
to you, please sign and return the enclosed duplicate of this commitment letter.
Upon the Commerce Bank's receipt of the signed duplicate, this commitment letter
shall become the controlling agreement, with respect to the Letter of Credit
(and/or any Term Loan), between Commerce Bank, N.A. and Whitman's Candies, Inc.
If not accepted and returned to Commerce Bank by the close of business on May
10, 1999 (or such later date as Commerce Bank shall agree upon in writing), this
commitment shall automatically expire.
If you have any questions regarding this commitment letter or any matters
relating to this financing, please do not hesitate to call either of us.
Sincerely,
/s/ Kevin G. Barth
Kevin G. Barth
Vice Chairman
/s/ Peter W. Shriver
Peter W. Shriver
Vice President
<PAGE>
Mr. Richard S. Masinton
May 7, 1999
Page 8
Acknowledged and accepted this 7th day of May, 1999.
WHITMAN'S CANDIES, INC.
By: /s/ Thomas S. Ward
Title: President
