UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT
UNDER SECTION 14(d)(1) OR SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 15)
DIEDRICH
COFFEE, INC.
(Name of Subject Company (Issuer))
PEBBLES ACQUISITION SUB, INC.
GREEN MOUNTAIN COFFEE ROASTERS, INC.
(Names of Filing Persons (Offerors))
Common Stock,
$0.01 par value per share
(Title of Class of Securities)
253675201
(CUSIP Number of Class of Securities)
Lawrence J.
Blanford
Green Mountain Coffee Roasters, Inc.
33 Coffee Lane
Waterbury, Vermont 05676
(802) 244-5621
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing persons)
with copies to:
Jane D. Goldstein, Esq.
Ropes & Gray LLP
One International Place
Boston, Massachusetts 02110
(617) 951-7000
CALCULATION
OF FILING FEE
|
|
|
Transaction Valuation
(1)
|
|
Amount Of Filing Fee (2)
|
$212,469,740
|
|
$11,855.81
|
(1) Estimated for purposes of calculating the
filing fee only. The transaction valuation was calculated by multiplying (a) 6,070,564 shares of common stock, par value $0.01 per share, of Diedrich Coffee, Inc., consisting of (i) 5,726,813 shares issued and outstanding as of
December 7, 2009 and (ii) 343,751 shares expected to be issuable, or otherwise deliverable, prior to the expiration of this tender offer in connection with vested options, warrants and other rights to acquire Diedrich Coffee, Inc.
common stock, by (b) the tender offer price of $35.00 per share.
(2) The amount of filing fee, calculated in accordance with
Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #3 for Fiscal Year 2010, issued by the Securities and Exchange Commission, equals $55.80 per million of the transaction valuation.
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:
$11,855.81
Form or Registration No.: Schedule TO-T
Filing Party: Pebbles Acquisition Sub, Inc. and Green Mountain Coffee Roasters, Inc.
Date Filed: December 11, 2009
¨
|
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:
x
|
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:
¨
This Amendment No. 15 (this
Amendment
) amends and supplements the Tender Offer
Statement on Schedule TO originally filed with the Securities and Exchange Commission on December 11, 2009, as amended (the
Schedule TO
), by Green Mountain Coffee Roasters, Inc., a Delaware corporation
(
Parent
), and Pebbles Acquisition Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (
Purchaser
). The Schedule TO relates to the offer (the
Offer
) by
Purchaser to purchase all of the issued and outstanding shares of common stock, par value $0.01 per share (the
Shares
), of Diedrich Coffee, Inc., a Delaware corporation (the
Company
), at a
purchase price of $35.00 per Share, net to the seller in cash, without interest thereon, upon the terms, and subject to the conditions, of the Offer to Purchase, dated December 11, 2009 (the
Offer to Purchase
), and the
related Letter of Transmittal (the
Letter of Transmittal
), copies of which are filed with the Schedule TO as Exhibits (a)(1)(i) and (a)(1)(ii), respectively. Capitalized terms used and not otherwise defined in this
Amendment have the respective meanings assigned to such terms in the Schedule TO or the Offer to Purchase, as applicable.
Item 11. Additional Information.
Items 1, 4, 5, 8 and 11 of the Schedule TO are amended and supplemented to include the following:
On May 3, 2010, Purchaser extended the Offer until 12:00 midnight (one minute after 11:59 p.m.) New York City, New
York time on Monday, May 10, 2010, unless further extended. The full text of the press release issued by Parent on May 3, 2010 announcing the Offers extension is filed as Exhibit (a)(5)(xii) to the Schedule TO and is
incorporated by reference into the Schedule TO.
Items 5 and 11 of the Schedule TO are further amended and supplemented
to include the following:
The following paragraphs replace the former final paragraph of Section 11 Background of the
Offer; The Merger Agreement Background of the Offer of the Offer to Purchase:
On
January 13, 2010, Parent received from the FTC a request for additional information (the
Second Request
) under the HSR Act with respect to the Offer and the Merger.
On April 30, 2010, Parent certified to the FTC that Parent had substantially complied with the Second Request.
Item 11 of the Schedule TO is further amended and supplemented to include the following:
The following paragraph replaces the former second paragraph of Section 15 Certain Legal Matters; Regulatory Approvals
Antitrust United States Antitrust Law of the Offer to Purchase:
The Company filed a
Notification and Report Form with respect to the Offer and the Merger on December 8, 2009, pursuant to the requirements of the HSR Act. Parent, on behalf of itself and the Purchaser, filed a Notification and Report Form with respect to the
Offer and the Merger with the FTC and the DOJ on December 9, 2009, pursuant to the requirements of the HSR Act. Following consultation with the FTC staff, Parent voluntarily withdrew its Notification and Report Form effective
December 24, 2009 and re-filed its Notification and Report Form on December 29, 2009, in order to provide the FTC with additional time to review the information submitted by Parent and the Company. Parent then received the Second Request
on January 13, 2010, and, on April 30, 2010, Parent certified to the FTC that Parent had substantially complied with the Second Request. As a result, Parent and the Purchaser expect the waiting period under the HSR Act applicable to the
purchase of Shares pursuant to the Offer to expire at 11:59 p.m., Eastern Time on Monday, May 10, 2010.
Item 11 of the Schedule TO is further amended and supplemented to include the following:
The following paragraphs replace the former final paragraph under Section 12 Purpose of the Offer; Plans for the Company;
Statutory Requirements; Approval of the Merger; Appraisal Rights; Litigation Litigation of the Offer to Purchase:
On January 22, 2010, the Company and the members of the Companys Board filed with the Court a demurrer seeking the
dismissal of the causes of action alleged in the Amended Complaint. On January 27, 2010, Parent and the Purchaser filed with the Court a demurrer seeking the dismissal of the causes of action alleged in the Amended Complaint. On March 12, 2010,
the Court sustained the demurrer seeking the dismissal of the plaintiffs fee petition, with thirty days leave to amend, and overruled the demurrer seeking the dismissal of the disclosure claims against the Company and the members of the
Companys Board of Directors. As a result of the Courts rulings, Parent and the Purchaser were dismissed from the case, but the plaintiff was given thirty days to attempt to re-plead the claim brought against Parent and the Purchaser.
Plaintiff then filed a second amended class action complaint on April 12, 2010 (the
Second Amended Complaint
), re-asserting its claims for breach of fiduciary duty and an equitable assessment of attorneys fees and
costs against the Company, the members of the Companys Board, Parent and the Purchaser. In this Second Amended Complaint, the plaintiff again named Parent and the Purchaser as defendants with respect to the claim for attorneys fees and
costs.
On May 2, 2010, the Company, the members of the Companys Board, Parent, the Purchaser and the plaintiff reached
an agreement in principle to settle the litigation in its entirety, and executed a Memorandum of Understanding that provides for settlement of the litigation (the
MOU
). The MOU contemplates that the plaintiff will release and
settle all known and unknown claims against the Company, the members of the Companys Board, Parent, the Purchaser and their respective affiliates, successors and agents in connection with the Merger Agreement and the transactions contemplated
by the Merger Agreement, including the Offer and the Merger. The MOU contemplates that the Company, in exchange, will provide certain additional disclosures to its Solicitation/Recommendation Statement on Schedule 14D-9 relating to the Offer.
In addition, pursuant to the MOU, the Company, the members of the Companys Board, Parent and the Purchaser have agreed not to oppose the plaintiff counsels application for an award of attorneys fees and costs up to a specified
amount, to be paid by the Company or its successor. Final settlement of the litigation is subject to the plaintiffs completion of confirmatory discovery and to approval by the Court. The settlement also will not take effect unless the Merger
becomes effective under Delaware law. The Company, the members of the Companys Board, Parent and the Purchaser have not admitted to, and deny, any wrongdoing, and have executed the MOU solely to eliminate the burden and expense of further
litigation. A copy of the final stipulation of settlement will be posted on the Companys website at www.Diedrich.com and on Parents website at www.GreenMountainCoffee.com once it is executed.
Item 12. Exhibits.
Item 12 of
the Schedule TO is amended and supplemented to include the following:
(a)(5)(xii) Press Release issued
May 3, 2010
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.
|
|
|
|
|
|
|
|
|
|
|
|
|
GREEN MOUNTAIN COFFEE ROASTERS, INC.
|
|
|
|
|
Date: May 3, 2010
|
|
|
|
By:
|
|
/s/ Frances G. Rathke
|
|
|
|
|
|
|
Name:
|
|
Frances G. Rathke
|
|
|
|
|
|
|
Title:
|
|
Chief Financial Officer
|
|
|
|
|
|
|
|
PEBBLES ACQUISITION SUB, INC.
|
|
|
|
|
Date: May 3, 2010
|
|
|
|
By:
|
|
/s/ Howard Malovany
|
|
|
|
|
|
|
Name:
|
|
Howard Malovany
|
|
|
|
|
|
|
Title:
|
|
Vice President, Corporate,
General Counsel and Secretary
|
EXHIBIT INDEX
|
|
|
Exhibit
|
|
Exhibit Name
|
|
|
(a)(1)(i)
|
|
Offer to Purchase dated December 11, 2009*+
|
|
|
(a)(1)(ii)
|
|
Form of Letter of Transmittal*+
|
|
|
(a)(1)(iii)
|
|
Form of Notice of Guaranteed Delivery*+
|
|
|
(a)(1)(iv)
|
|
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*+
|
|
|
(a)(1)(v)
|
|
Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*+
|
|
|
(a)(5)(i)
|
|
Press release dated December 8, 2009 (incorporated by reference to Exhibit 99.1 of the Current Report on Form 8-K filed on
December 8, 2009)
|
|
|
(a)(5)(ii)
|
|
Summary Advertisement published on December 11, 2009*
|
|
|
(a)(5)(iii)
|
|
Press Release issued December 11, 2009*
|
|
|
(a)(5)(iv)
|
|
Letter to Stockholders of Diedrich Coffee, Inc. dated December 18, 2009*
|
|
|
(a)(5)(v)
|
|
Letter to Employees of Diedrich Coffee, Inc. dated December 18, 2009*
|
|
|
(a)(5)(vi)
|
|
Press Release issued January 8, 2010*
|
|
|
(a)(5)(vii)
|
|
Press Release issued January 13, 2010*
|
|
|
(a)(5)(viii)
|
|
Presentation to Employees of Diedrich Coffee, Inc. dated January 19, 2010*
|
|
|
(a)(5)(ix)
|
|
Press Release issued February 8, 2010*
|
|
|
(a)(5)(x)
|
|
Press Release issued March 9, 2010*
|
|
|
(a)(5)(xi)
|
|
Press Release issued April 6, 2010*
|
|
|
(a)(5)(xii)
|
|
Press Release issued May 3, 2010
|
|
|
(b)(1)
|
|
Amended and Restated Revolving Credit Agreement, dated as of December 3, 2007, among Green Mountain Coffee Roasters, Inc., its guarantor subsidiaries, Bank of
America, N.A., Banc of America Securities LLC and the other lender parties thereto (incorporated by reference to Exhibit 4.1 of the Annual Report on Form 10-K filed for the fiscal year ended
September 29, 2007)
|
|
|
(b)(2)
|
|
Amendment No. 1 dated July 18, 2008 to Amended and Restated Revolving Credit Agreement, dated as of December 3, 2007, among Green Mountain Coffee
Roasters, Inc., its guarantor subsidiaries, Bank of America, N.A., Banc of America Securities LLC and the other lender parties thereto (incorporated by reference to Exhibit 4.2 of the Annual Report on Form 10-K for the
fiscal year ended September 27, 2008)
|
|
|
(d)(1)
|
|
Agreement and Plan of Merger, dated as of December 7, 2009, by and among Green Mountain Coffee Roasters, Inc., Pebbles Acquisition Sub, Inc. and Diedrich
Coffee, Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed on December 8, 2009)
|
|
|
(d)(2)
|
|
Stockholder Agreement, dated as of December 7, 2009, by and between Green Mountain Coffee Roasters, Inc. and Paul C. Heeschen (incorporated by reference to
Exhibit 2.2 of the Current Report on Form 8-K filed on December 8, 2009)
|
|
|
|
(d)(3)
|
|
Form of Stockholder Agreement, dated as of December 7, 2009, by and between Green Mountain Coffee Roasters, Inc. and those certain directors and executive officers
of Diedrich Coffee, Inc. party thereto (incorporated by reference to Exhibit 2.3 of the Current Report on Form 8-K filed on December 8, 2009)
|
|
|
(d)(4)
|
|
Confidentiality Agreement, dated as of November 19, 2009, by and between Diedrich Coffee, Inc. and Green Mountain Coffee Roasters, Inc.*
|
|
|
(g)
|
|
Not applicable
|
|
|
(h)
|
|
Not applicable
|
+
|
Previously mailed to holders and beneficial owners of the Shares
|
Diedrich Coffee (MM) (NASDAQ:DDRX)
Gráfica de Acción Histórica
De Oct 2024 a Nov 2024
Diedrich Coffee (MM) (NASDAQ:DDRX)
Gráfica de Acción Histórica
De Nov 2023 a Nov 2024