- Amended tender offer statement by Third Party (SC TO-T/A)
May 11 2010 - 6:04AM
Edgar (US Regulatory)
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 10
to
Schedule
TO
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1)
of
the Securities Exchange Act of 1934
Diedrich
Coffee, Inc.
(Name
of Subject Company (Issuer))
Marty
Acquisition Sub, Inc. (Offeror)
Peet’s
Coffee & Tea, Inc. (Parent of Offeror)
(Names
of Filing Persons (Identifying Status as Offeror, Issuer or Other
Person)
COMMON
STOCK, PAR VALUE $0.01 PER SHARE
(Title
of Class of Securities)
253675201
(CUSIP
Number of Class of Securities)
Thomas
P. Cawley
Chief
Financial Officer
Peet’s
Coffee & Tea, Inc.
1400
Park Avenue
Emeryville,
California 94608-3520
Tel:
(510) 594-2100
(Name,
address, and telephone number of person authorized to
receive
notices and communications on behalf of filing persons)
with
copies to:
Kenneth
L. Guernsey
David
A. Lipkin
Gian-Michele
a Marca
Cooley
LLP
101
California Street, 5
th
Floor
San
Francisco, California 94111-5800
Tel:
(415) 693-2000
Fax:
(415) 693-2222
CALCULATION
OF FILING FEE
Transaction valuation(1)
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Amount of filing fee(2)
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$164,502,698.25
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$9,179.25
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(1)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with the Securities Exchange Act of 1934, as amended, based on the product
of (i) $26.125, the average of the high and low per share prices of
Diedrich Coffee, Inc. common stock, par value of $0.01 per share, as
reported on the Nasdaq Capital Market on November 16, 2009, and
(ii) 6,296,754, the estimated maximum number of shares of Diedrich
Coffee, Inc. common stock to be received by Peet’s Coffee & Tea,
Inc. pursuant to the exchange offer and subsequent
Merger.
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(2)
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The
amount of the filing fee calculated in accordance with the Securities
Exchange Act of 1934, as amended, equals $55.80 for each $1,000,000 of
value. The filing fee was calculated in accordance with Rule 0-11
under the Securities Exchange Act of 1934 and Fee Rate Advisory #3 for
fiscal year 2010, issued October 30,
2009.
|
ý
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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.
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Amount
Previously Paid: $9,179.25
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Filing
Party: Peet’s Coffee & Tea, Inc.
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Form
or Registration No.: Schedule TO-T
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Date
Filed: November 17, 2009
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o
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Check
the box if the filing relates to preliminary communications made before
the commencement of a tender offer.
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Check the
appropriate boxes below to designate any transactions to which the statement
relates:
ý
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third-party
tender offer subject to Rule 14d-1.
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o
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issuer
tender offer subject to Rule 13e-4.
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o
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going-private
transaction subject to Rule 13e-3.
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o
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amendment
to Schedule 13D under Rule 13d-2.
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Check the
following box if the filing is a final amendment reporting the results of the
tender offer:
ý
This
Amendment No. 10 to Schedule TO (“
Amendment No. 10
”)
amends and supplements the Tender Offer Statement on Schedule TO, as amended
(the “
Schedule
TO
”), originally filed on November 17, 2009, relating to the offer
by Marty Acquisition Sub, Inc., a Delaware corporation (the “
Purchaser
”) and a
wholly-owned subsidiary of Peet’s Coffee & Tea, Inc., a Washington
corporation (“
Peet’s
”), to purchase
each outstanding share of common stock, par value $0.01 per share, of Diedrich
Coffee, Inc., a Delaware corporation (“
Diedrich
”), for
consideration consisting of $17.33 in cash, without interest, and a fraction of
a share of Peet’s common stock, no par value, having a value equal to $8.67
based on a formula as provided in the Merger Agreement, provided that in no
event will such fraction exceed 0.315 of a share of Peet’s common stock, upon
the terms and subject to the conditions set forth in the Prospectus/Offer to
Purchase, dated November 17, 2009 (the “
Prospectus/Offer to
Purchase
”), and in the related Letter of Transmittal (which, together
with any amendments or supplements thereto, collectively constitute the “
Offer
”). All
capitalized terms used and not otherwise defined herein shall have the meanings
given to such terms in the Prospectus/Offer to Purchase.
ITEMS
1 THROUGH 11
As
permitted by General Instruction F to the Schedule TO, all of the information in
the Prospectus/Offer to Purchase and the related Letter of Transmittal, and any
prospectus supplement or other supplement thereto related to the Offer filed
with the Securities and Exchange Commission after the date of the
Prospectus/Offer to Purchase, is hereby incorporated by reference in answer to
Items 1 through 11 of the Schedule TO, subject to any statements made in
the preamble to this Amendment No. 10 above or in any prior amendments to the
Schedule TO, and subject to the following additional statements and
disclosures:
The
expiration of the Offer occurred at 12:00 midnight, Eastern Time on May 7,
2010. Because certain conditions to the Offer described in the
Prospectus/Offer to Purchase (including the “minimum condition”) were not
satisfied at or prior to such time, the tender offer expired without any shares
of Diedrich common stock having been accepted for exchange by the
Purchaser. Peet’s has instructed the Depositary for the Offer to
promptly return all shares of Diedrich common stock that were tendered and not
previously withdrawn.
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.
MARTY
ACQUISITION SUB, INC.
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By:
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/s/
Patrick J. O’Dea
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Name:
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Patrick
J. O’Dea
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Title:
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President
and Chief Executive Officer
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PEET’S
COFFEE & TEA, INC.
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By:
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/s/
Patrick J. O’Dea
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Name:
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Patrick
J. O’Dea
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Title:
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President
and Chief Executive Officer
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Dated:
May 10, 2010
INDEX
TO EXHIBITS
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(a)(1)
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Prospectus/Offer
to Purchase relating to shares of Peet’s Common Stock to be issued in the
Offer and the Merger (incorporated by reference from the Registration
Statement on Form S-4, filed by Peet’s Coffee & Tea, Inc. with
the Securities and Exchange Commission on November 17,
2009)
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(a)(2)
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Form
of Letter of Transmittal (incorporated by reference to Exhibit 99.1 from
the Registration Statement on Form S-4, filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on November 17,
2009)
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(a)(3)
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Form
of Notice of Guaranteed Delivery (incorporated by reference to Exhibit
99.2 from the Registration Statement on Form S-4, filed by Peet’s
Coffee & Tea, Inc. with the Securities and Exchange Commission on
November 17, 2009)
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(a)(4)
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Form
of Letter from the Information Agent to Brokers, Dealers, Banks, Trust
Companies and Other Nominees (incorporated by reference to Exhibit 99.3
from the Registration Statement on Form S-4, filed by Peet’s Coffee
& Tea, Inc. with the Securities and Exchange Commission on November
17, 2009)
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(a)(5)
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Form
of Letter to Clients with respect to the Prospectus/Offer to Purchase for
use by Brokers, Dealers, Banks, Trust Companies and Other Nominees
(incorporated by reference to Exhibit 99.4 from the Registration Statement
on Form S-4, filed by Peet’s Coffee & Tea, Inc. with the
Securities and Exchange Commission on November 17,
2009)
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(a)(6)
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Instructions
for Certification of Taxpayer Identification Number on Substitute Form W-9
(incorporated by reference to Exhibit 99.5 from the Registration Statement
on Form S-4, filed by Peet’s Coffee & Tea, Inc. with the
Securities and Exchange Commission on November 17,
2009)
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(a)(7)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on November 2, 2009
(incorporated by reference from the Form 425 filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on November 3,
2009)
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(a)(8)
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Summary
Newspaper Advertisement published in The Wall Street Journal on November
17, 2009†
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(a)(9)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on November 23, 2009
(incorporated by reference from the Form 425 filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on November 23,
2009)
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(a)(10)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on November 25, 2009
(incorporated by reference from the Form 425 filed by Peet’s
Coffee & Tea, Inc. with the Securities and Exchange Commission on
November 25, 2009)
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(a)(11)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on November 30, 2009
(incorporated by reference from the Form 425 filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on December 1,
2009)
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(a)(12)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on December 2, 2009
(incorporated by reference from the Form 425 filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on December 2,
2009)
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(a)(13)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on December 7, 2009
(incorporated by reference from the Form 425 filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on December 7,
2009)
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(a)(14)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on December 15, 2009
(incorporated by reference from the Form 425 filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on December 15,
2009)
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(a)(15)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on February 1, 2010
(incorporated by reference from the Form 425 filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on February 1,
2010)
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(a)(16)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on March 1, 2010
(incorporated by reference from the Form 425 filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on March 1,
2010)
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(a)(17)
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Press
Release issued by Peet’s Coffee & Tea, Inc. on April 5, 2010
(incorporated by reference from the Form 425 filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on April 5,
2010)
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(d)(1)
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Agreement
and Plan of Merger, dated as of November 2, 2009, by and among Peet’s
Coffee & Tea, Inc., Marty Acquisition Sub, Inc. and Diedrich Coffee,
Inc. (incorporated by reference to Exhibit 2.1 from the Form 8-K filed by
Peet’s Coffee & Tea, Inc. with the Securities and Exchange Commission
on November 4, 2009)
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(d)(2)
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Amendment
No. 1 to Agreement and Plan of Merger, dated as of November 17, 2009,
by and among Peet’s Coffee & Tea, Inc., Marty Acquisition Sub, Inc.
and Diedrich Coffee, Inc. (incorporated by reference to Exhibit 2.2 from
the Registration Statement on Form S-4, filed by Peet’s Coffee &
Tea, Inc. with the Securities and Exchange Commission on November 17,
2009)
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(d)(3)
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Confidentiality
Agreement, dated as of September 27, 2008, by and between Diedrich Coffee,
Inc., Heeschen & Associates and Paul C. Heeschen, on the one hand, and
Peet’s Coffee & Tea, Inc. on the other†
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(g)
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Not
applicable
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(h)
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Not
applicable
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