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. 3)
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. 3 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 December 11, 2009, as amended by Amendment No. 1 and Amendment No. 2 to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Diedrich with the SEC on December 31, 2009, and
January 11, 2010, respectively (as amended or supplemented from time to time, the Schedule 14D-9). The Schedule 14D-9 relates to the offer by Green Mountain Coffee Roasters, Inc., a Delaware corporation (GMCR),
through its wholly owned subsidiary, Pebbles 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 $35.00 in cash, without interest, upon the terms and subject to the conditions set forth in GMCRs offer to purchase, dated December 11, 2009 (the Offer to
Purchase). The Offer to Purchase is contained in the Schedule TO filed by GMCR with the SEC on December 11, 2009 (as amended or supplemented from time to time, the Schedule TO), and in the related Letter of
Transmittal (the Letter of Transmittal, together with the Offer to Purchase and any amendments or supplements thereto, collectively constituting the Offer). Any capitalized term used and not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Schedule 14D-9.
Item 4.
|
The Solicitation or Recommendation
|
Item 4 of the Schedule 14D-9 is hereby amended and supplemented by adding the following paragraph after the last paragraph under the subheading Background of the Offer:
Effective December 24, 2009, following consultation with the staff of the Federal Trade Commission (the FTC), GMCR
voluntarily withdrew its HSR Act filing. On December 29, 2009, GMCR re-filed its HSR Act filing. This withdrawal and re-filing was undertaken in order to provide the FTC with additional time to review the information submitted by GMCR and
Diedrich.
On January 13, 2010, Diedrich and GMCR each received a request for additional information (a Second
Request) from the FTC with respect to the Offer and Merger. Diedrich and GMCR expect to promptly respond to their respective Second Requests, and to continue to work cooperatively with the FTC as it conducts its review of the proposed
transaction.
Item 8.
|
Additional Information.
|
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding the following after the last paragraph under the subheading entitled Antitrust Laws:
On December 8, 2009, Diedrich filed a Notification and Report Form with respect to the Offer and Merger, pursuant to the requirements
of the HSR Act. On December 9, 2009, GMCR, on behalf of itself and Purchaser, filed a Notification and Report Form with respect to the Offer and Merger with the FTC and the Department of Justice, pursuant to the requirements of the HSR Act.
Following consultation with the FTC staff, GMCR 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 GMCR and Diedrich.
On January 13, 2010, Diedrich and GMCR issued
a joint press release announcing that Diedrich and GMCR each had received a Second Request for additional information from the FTC regarding the Offer and Merger. As a result of the Second Requests, the waiting period under the HSR Act during which
the FTC is permitted to review the proposed transaction has been extended until 11:59 p.m., Eastern Time, on the 10th day after the companies substantial compliance with the Second Requests, or until 11:59 p.m., Eastern Time, on the next
business day following that date, if the 10th day falls on a weekend or federal holiday. Diedrich and GMCR expect to promptly respond to their respective Second Requests, and to continue to work cooperatively with the FTC as it conducts its review
of the proposed transaction. GMCR and Purchaser will extend the Offers expiration time as necessary to occur concurrently with the expiration of the HSR waiting period.
The full text of the press release issued by Diedrich and GMCR on January 13, 2010, announcing the receipt of the FTCs Second
Requests is filed as Exhibit (a)(9) hereto and is incorporated herein by reference.
Item 9 is
supplemented by adding the following exhibit:
|
|
|
Exhibit
|
|
Description
|
|
|
(a)(9)
|
|
Joint Press Release issued on January 13, 2010.
|
Annex A. Information Statement pursuant to Section 14(f) of the Securities Exchange Act of 1934 and
Rule 14f-1 thereunder
Annex A is hereby amended and supplemented by replacing the subsection entitled Director Compensation
Table on page A-16 in its entirety with the following:
Director Compensation Table
The following table shows the 2009 fiscal year compensation for Diedrichs non-employee directors.
|
|
|
|
|
|
|
|
|
|
Name
|
|
Fees Earned
or Paid in
Cash ($)
|
|
Option Awards ($)
(1)
|
|
Total ($)
|
Paul C. Heeschen.
|
|
$
|
22,000
|
|
$
|
13,013
|
|
$
|
35,013
|
Gregory D. Palmer
|
|
|
23,500
|
|
|
15,340
|
|
|
38,840
|
Timothy J. Ryan
(2)
|
|
|
50,062
|
|
|
28,363
|
|
|
78,425
|
James W. Stryker
|
|
|
10,500
|
|
|
2,999
|
|
|
13,499
|
(1)
|
This column represents the dollar amount recognized for financial statement reporting purposes with respect to the 2009 fiscal year for the fair value of stock options
for each of the directors in accordance with SFAS No. 123R. The amounts shown exclude the impact of estimated forfeitures related to service-based vesting conditions. For additional information on the valuation assumptions with respect to
the 2009 grants, refer to Note 1 to the consolidated financial statements of Diedrichs Annual Report on Form 10-K, filed on September 22, 2009.
|
(2)
|
Fees earned include compensation as Vice Chairman of the board in the amount of $27,562.
|
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: January 13, 2010
|
|
|
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