SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(RULE 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
DIEDRICH COFFEE, INC.
(Name of Subject Company)
DIEDRICH COFFEE, INC.
(Name of Person Filing Statement)
COMMON STOCK, PAR
VALUE $0.01 PER SHARE
(Title of Class of Securities)
253675201
(CUSIP Number of Class of Securities)
Sean M. McCarthy
Chief Financial Officer
Diedrich Coffee, Inc.
28 Executive Park, Suite 200
Irvine, California
92614
(949) 260-1600
(Name, address and telephone number of person authorized to receive notices
and communications on behalf of the person filing statement)
Copies to:
John M. Williams
Gibson, Dunn & Crutcher LLP
3161 Michelson Drive,
Suite 1200
Irvine, California 92612
(949) 451-3800
¨
|
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
|
This Amendment No. 1 to the Solicitation/Recommendation Statement on
Schedule 14D-9 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 initially filed by Diedrich Coffee, Inc., a Delaware corporation (Diedrich), with the Securities and Exchange Commission (the
SEC) on November 17, 2009 (as amended or supplemented from time to time, the Schedule 14D-9). The Schedule 14D-9 relates to the offer by Peets Coffee & Tea, Inc., a Washington corporation
(Peets), through its wholly-owned subsidiary, Marty Acquisition Sub, Inc., a Delaware corporation (Purchaser), to acquire all issued and outstanding shares of Diedrichs common stock, par value $0.01 per share
(Common Stock), in exchange for, with respect to each share, the right to receive a combination of: (i) $17.33 in cash, without interest, and (ii) a fraction of a share of Peets common stock determined by dividing $8.67
by the volume weighted average price for one (1) share of Peets common stock as reported on the Nasdaq Global Select Market for the five (5) trading day period ending immediately prior to (and excluding) the date on which Purchaser
accepts any shares of Common Stock for exchange pursuant to such offer, provided that in no event will such fraction exceed 0.315, all upon the terms and subject to the conditions set forth in Peets prospectus/offer to purchase, dated
November 17, 2009 (the Prospectus/Offer to Purchase). The Prospectus/Offer to Purchase is contained in the Registration Statement on Form S-4 filed by Peets with the SEC, as amended, and in the related Letter of
Transmittal (the Letter of Transmittal, together with the Prospectus/Offer to Purchase and any amendments or supplements thereto, collectively constituting the Offer). Any capitalized terms used and not otherwise defined
herein shall have the respective meanings ascribed to such terms in the Schedule 14D-9.
Item 8.
|
Additional Information.
|
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding the following immediately before the subheading entitled Forward-Looking Statements:
Subsequent Events
On November 3, 2009, subsequent to the signing of the Merger Agreement on November 2, 2009 and in connection with the provision of the Merger Agreement that allows Diedrich to furnish information to, and
conduct negotiations with, third parties until November 23, 2009 (the Go-Shop), Houlihan Lokey began contacting 33 parties, of which 23 were strategic parties and 10 were financial parties. Houlihan Lokey completed its initial calls in
connection with the Go-Shop on November 5, 2009.
Of the parties contacted, 30 did not execute a confidentiality agreement or
perform any due diligence. Of the three parties that signed a confidentiality agreement, Company B was not qualified by Diedrichs Special Committee based on its financial wherewithal. As a result, Diedrich did not countersign the
confidentiality agreement executed by Company B or provide Company B with non-public information.
On November 4, 2009,
Houlihan Lokey contacted Green Mountain Coffee Roasters, Inc. (GMCR), which was previously referred to in this Statement as Company A. Houlihan Lokey had follow-up discussions with GMCRs financial advisors on November
11, 2009, during which it was indicated that GMCR was considering its response to the transactions contemplated by the Merger Agreement, and on November 18, 2009, during which it was indicated that a competing proposal was forthcoming from GMCR.
Such competing proposal, described in greater detail below, was received later that afternoon. On November 20, 2009, GMCR executed a confidentiality agreement with Diedrich and was provided access to certain non-public information. Later that day,
GMCR began to perform a detailed level of due diligence.
On November 5, 2009, Houlihan Lokey received an inbound call from
Company C. Between November 9, 2009 and November 13, 2009, Houlihan Lokey had discussions with Company C regarding the form of confidentiality agreement that Company C would be required to execute. Ultimately, Diedrichs Special Committee
determined that it would not be in the best interest of Diedrich or its stockholders to continue discussions with Company C or to provide access to due diligence materials.
On November 10, 2009, Company D executed a confidentiality agreement with Diedrich. Company D was provided with access to certain non-public
information and performed a cursory level of due diligence on November 13, 2009. As of November 22, 2009, Company D had not provided any indication that it would be submitting an acquisition proposal.
On November 13, 2009, Company E executed a confidentiality agreement with Diedrich. Company E was provided with access to certain non-public
information and performed a moderate level of due diligence. On November 17, 2009, Company E indicated that it did not intend to submit an acquisition proposal.
On November 23, 2009, Diedrich issued a press release announcing that it received a revised offer from Peets the prior evening, offering to pay to Diedrichs stockholders a combination of
$19.80 in cash and 0.321 of a share of Peets common stock for each share of Common Stock tendered and accepted in the Offer, representing total consideration of $32.00 per share based on the closing price of Peets common stock on
November 20, 2009 of $38.00 per share. The stock component of the revised purchase price is based on a fixed exchange ratio, so the value of that component will increase or decrease with changes in the market price of Peets common stock.
Peets submitted its revised offer in response to a binding offer received by Diedrich
from GMCR to enter into a merger transaction pursuant to which GMCR would acquire all of the outstanding shares of Common Stock for $30.00 per share in cash (the GMCR Proposal). A merger agreement signed by GMCR that contains
substantially the same terms (other than the amount and form of consideration) as the Merger Agreement was included with the GMCR Proposal. A complete copy of the press release issued by Diedrich is filed as Exhibit (a)(8) hereto and is incorporated
herein by reference.
Diedrich also announced that, after reviewing the GMCR Proposal, the board of directors of Diedrich (the
Board) had determined that it constituted a Superior Proposal (as defined in the Merger Agreement) to the terms of the Merger Agreement. As required under the terms of the Merger Agreement, on November 20, 2009, Diedrich
transmitted to Peets notice of the Boards determination. Under the terms of the Merger Agreement, Peets has until 5:00 p.m., Pacific Time, on Friday, November 27, 2009 to negotiate with Diedrich to amend the Merger Agreement or the
Offer in a manner that the Board determines is at least as favorable to Diedrichs stockholders as the GMCR Proposal. As part of those negotiations, Peets has submitted the revised offer described above to Diedrich.
In light of the different forms of consideration in the Peets proposal and the GMCR Proposal, the Board is analyzing the two proposals
to determine whether the GMCR Proposal continues to be a Superior Proposal to the terms of the Merger Agreement and the Offer as amended by the proposal received from Peets. Diedrich intends to make an announcement promptly after a
determination is reached by the Board.
Item 9 is
supplemented by adding the following exhibit:
|
|
|
Exhibit
|
|
Description
|
(a)(8)
|
|
Press Release issued by Diedrich Coffee, Inc. on November 23, 2009.
|
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: November 23, 2009
|
DIEDRICH COFFEE, INC.
|
|
|
By:
|
|
/s/ SEAN M. MCCARTHY
|
Name:
|
|
Sean M. McCarthy
|
Title:
|
|
Chief Financial Officer
|
Diedrich Coffee (MM) (NASDAQ:DDRX)
Historical Stock Chart
From Jun 2024 to Jul 2024
Diedrich Coffee (MM) (NASDAQ:DDRX)
Historical Stock Chart
From Jul 2023 to Jul 2024