-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PUloPKbLt62Gmy/uGeOB0P+nF71fbLpiyjWyKQb+W+XxSvQyCXvthLJd7mZfbvnx DKiReGfUj3+1HAZGmdlGZg== 0000950134-99-004775.txt : 19990623 0000950134-99-004775.hdr.sgml : 19990623 ACCESSION NUMBER: 0000950134-99-004775 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990524 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ROCKY MOUNTAIN CHOCOLATE FACTORY INC CENTRAL INDEX KEY: 0000785815 STANDARD INDUSTRIAL CLASSIFICATION: SUGAR & CONFECTIONERY PRODUCTS [2060] IRS NUMBER: 840910696 STATE OF INCORPORATION: CO FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: SEC FILE NUMBER: 005-38695 FILM NUMBER: 99633507 BUSINESS ADDRESS: STREET 1: 265 TURNER DR CITY: DURANGO STATE: CO ZIP: 81301 BUSINESS PHONE: 3032590554 MAIL ADDRESS: STREET 1: 265 TURNER DRIVE CITY: DURANGO STATE: CO ZIP: 81301 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ROCKY MOUNTAIN CHOCOLATE FACTORY INC CENTRAL INDEX KEY: 0000785815 STANDARD INDUSTRIAL CLASSIFICATION: SUGAR & CONFECTIONERY PRODUCTS [2060] IRS NUMBER: 840910696 STATE OF INCORPORATION: CO FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 265 TURNER DR CITY: DURANGO STATE: CO ZIP: 81301 BUSINESS PHONE: 3032590554 MAIL ADDRESS: STREET 1: 265 TURNER DRIVE CITY: DURANGO STATE: CO ZIP: 81301 SC 14D9/A 1 AMENDMENT NO. 1 TO SCHEDULE 14D9 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------------- AMENDMENT NO. 1 TO SCHEDULE 14D-9 SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. (Name of Subject Company) ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. (Name of Person(s) Filing Statement) COMMON STOCK, PAR VALUE $0.03 (Title of Class of Securities) 774678403 (CUSIP Number of Class of Securities) ---------------------------- FRANKLIN E. CRAIL CHAIRMAN OF THE BOARD, PRESIDENT AND TREASURER ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. 265 TURNER DRIVE DURANGO, COLORADO 81301 (970) 259-0554 (Name, Address and Telephone Number of Person Authorized to Receive Notice and Communications on Behalf of the Person(s) Filing Statement) COPY TO: STEVEN K. COCHRAN, ESQ. THOMPSON & KNIGHT, P.C. 1700 PACIFIC AVENUE, SUITE 3300 DALLAS, TEXAS 75201 (214) 969-1387 ================================================================================ 2 This Amendment No. 1 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") filed with the Securities and Exchange Commission on May 21, 1999 by Rocky Mountain Chocolate Factory, Inc., a Colorado corporation (the "Company"), related to the tender offer disclosed in the Schedule 14D-1, dated May 10, 1999, of WC-RMA Corp., a Delaware corporation and a wholly owned subsidiary of Whitman's Candies, Inc., a Missouri corporation, to purchase all of the outstanding Shares of the Company at a price per share of $5.75. Capitalized terms used but not defined herein have the meaning ascribed to them in the Schedule 14D-9. ITEM 6. RECENT TRANSACTIONS AND INTENT WITH RESPECT TO SECURITIES. Item 6 is hereby amended and supplemented by deleting paragraph (a) in its entirety and adding in its place the following: (a) To the best of the Company's knowledge, no transactions in Shares have been effected during the past 60 days by the Company or by any executive officer, director, affiliate or subsidiary of the Company, except as follows: On April 30, 1999, Mr. Lee N. Mortenson, a director of the Company, purchased 3,000 Shares in the open market and his wife purchased 1,000 Shares in the open market. ITEM 9. MATERIAL TO BE FILED AS EXHIBITS. Item 9 is hereby amended and supplemented by adding the following exhibit: Exhibit 5 -- Text of Press Release, dated May 24, 1999. SIGNATURE 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. ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. By: /s/ Franklin E. Crail Name: Franklin E. Crail Title: President and Chairman of the Board Dated: May 24, 1999 2 3 EXHIBIT INDEX Exhibit 5 -- Text of Press Release, dated May 24, 1999. 3 EX-99.5 2 PRESS RELEASE 1 Exhibit 5 May 24, 1999 Press Release ROCKY MOUNTAIN CHOCOLATE FACTORY BOARD OF DIRECTORS REJECTS WHITMAN'S CANDIES, INC. OFFER AS INADEQUATE AND ADOPTS SHAREHOLDER RIGHTS PLAN DURANGO, CO - MAY 24, 1999 - Rocky Mountain Chocolate Factory [NASDAQ: RMCF] today announced that its Board of Directors has determined that the unsolicited cash tender offer by Whitman's Candies, Inc. for all of the outstanding shares of Rocky Mountain at a price of $5.75 per share is inadequate and not in the best interests of Rocky Mountain or its shareholders, and therefore recommends that Rocky Mountain's shareholders reject the tender offer and not tender their shares to Whitman's. The Board's recommendation to reject the tender offer results from its determination that the consideration being offered is inadequate to Rocky Mountain's shareholders from a financial point of view. The Board's recommendation is based on the following factors: o A presentation by George K. Baum & Company ("GKB"), financial advisor to the Company, concerning the Company and the financial aspects of the offer, as well as the oral opinion of GKB stating that the offer is inadequate, from a financial point of view, to the Rocky Mountain shareholders. o The historical trading prices of the Company's shares, including the Board's belief, that the trading price for the shares immediately prior to the announcement of the offer did not fully reflect the long-term value inherent in the Company. The offer represents a discount to Rocky Mountain's historic trading prices and multiples. o The Board's belief that the market price of the Company's shares has been adversely affected in the near-term primarily by nonrecurring events. Specifically, the market price for the Shares was adversely affected by the Company's announcement in March 1999 that its earnings per share for the fiscal year ended February 28, 1999 will be significantly lower than previously anticipated primarily because of nonrecurring events. o The fact that the Company is continuing to take steps to improve its near-term operating efficiency and profitability and is in the process of evaluating further distribution and marketing programs as part of a strategic plan to enhance shareholder value. As announced in March 1999, the Company is in the process of implementing a restructuring program to improve profitability. 4 2 Rocky Mountain also announced that it is filing with the Securities and Exchange Commission, and will mail to its shareholders, a Solicitation/Recommendation Statement on Schedule 14D-9 setting forth the Board's formal recommendation to reject the offer. Additional information with respect to the Board's decision to recommend that shareholders reject the offer and the matters considered by the Board in reaching such decision is contained in the Schedule 14D-9. Rocky Mountain also announced that the Board of Directors has adopted a shareholder rights plan pursuant to which the Board had declared a dividend distribution of one Preferred Share Purchase Right on each outstanding share of Rocky Mountain common stock. The rights plan is designed to assure that all shareholders receive fair and equal treatment in the event of an attempted takeover of the company. Contact: Rocky Mountain Chocolate Factory, Inc. Bryan Merryman, 970/259-0554 5 -----END PRIVACY-ENHANCED MESSAGE-----