Attached files
| file | filename |
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| EX-2.1 - AGREEMENT AND PLAN OF MERGER - PEETS COFFEE & TEA INC | v164692_ex2-1.htm |
| EX-2.3 - FORM OF STOCKHOLDER AGREEMENT - PEETS COFFEE & TEA INC | v164692_ex2-3.htm |
| EX-2.2 - STOCKHOLDER AGREEMENT - PEETS COFFEE & TEA INC | v164692_ex2-2.htm |
| EX-10.1 - COMMITMENT LETTER - PEETS COFFEE & TEA INC | v164692_ex10-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): November 2, 2009
Peet's
Coffee & Tea, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
|
Washington
(State
of jurisdiction)
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0-32233
(Commission
File No.)
|
91-0863396
(IRS
Employer Identification No.)
|
1400 Park
Avenue
Emeryville,
California 94608-3520
(Address
of principal executive offices and zip code)
Registrant's
telephone number, including area code: (510) 594-2100
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
|
ý
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
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Merger Agreement and Stockholder
Agreements
On
November 2, 2009, Peet’s Coffee & Tea, Inc., a Washington corporation (the
“Company”), Marty Acquisition Sub, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company (“Acquisition Sub”), and Diedrich Coffee,
Inc., a Delaware corporation (“Diedrich”), entered into a definitive Agreement
and Plan of Merger (the “Merger Agreement”) which contemplates the acquisition
by the Company, through Acquisition Sub, of all of the outstanding common stock
of Diedrich in a two-step transaction comprised of a combination cash and stock
exchange offer for all of the issued and outstanding shares of Diedrich common
stock (the “Offer”), followed by a merger of Acquisition Sub with and into
Diedrich (the “Merger”). In the Offer, the Company will deliver a combination of
$17.33 in cash (the “Cash Component”) and a fraction of a share of the Company’s
common stock having a numerator equal to $8.67 and a denominator equal to the
Parent Average Stock Price (as defined in the Merger Agreement), provided that
in no event will such fraction of a share exceed 0.315 of a share of the
Company’s common stock, all of the foregoing cash and stock in exchange for each
share of Diedrich common stock validly tendered in the Offer (and not
withdrawn), subject to adjustment for stock splits, stock dividends and similar
events. In addition, upon the acquisition by Acquisition Sub of shares of
Diedrich common stock tendered in the Offer, all outstanding options to acquire
Diedrich common stock will be converted into a combination of cash and shares of
the Company’s common stock based on a formula set forth in the Merger Agreement,
and certain of these options will vest in full as a result of the transactions
contemplated by the Merger Agreement.
The
Merger Agreement provides that Acquisition Sub will use commercially reasonable
efforts to commence the Offer as promptly as practicable after the date of the
Merger Agreement. The obligation of Acquisition Sub to accept for
exchange and deliver consideration for shares of Diedrich common stock validly
tendered in the Offer (and not withdrawn) is subject to a number of conditions
set forth in the Merger Agreement, including (i) that more than 50% of the
outstanding shares of Diedrich common stock (determined on a fully-diluted basis
based on a formula set forth in the Merger Agreement) have been validly tendered
(and not withdrawn) in the Offer and (ii) other conditions set forth in Exhibit
B to the Merger Agreement. The
obligation under the Merger Agreement of Acquisition Sub to accept for exchange
and deliver consideration for shares of Diedrich common stock validly tendered
in the Offer (and not withdrawn) is not subject to a financing
condition.
The
Merger Agreement further provides that, following the consummation of the Offer
(and if necessary, the adoption of the Merger Agreement by Diedrich’s
stockholders) and subject to the satisfaction or waiver of certain conditions
set forth in the Merger Agreement, Acquisition Sub will be merged with and into
Diedrich, and Diedrich will become a wholly-owned subsidiary of the Company, and
that upon consummation of the Merger, each then-outstanding share of Diedrich
common stock held by persons other than the Company and Acquisition Sub, and
stockholders of Diedrich who have properly preserved their appraisal rights
under applicable law, will be converted into the right to receive the same
combination of cash and fraction of a share of the Company’s common stock
delivered in the Offer.
The
respective boards of directors of the Company and Diedrich have approved the
Merger Agreement, the Offer and the Merger, and the Diedrich board of directors
has agreed to recommend that Diedrich’s stockholders tender all of their
outstanding shares of Diedrich common stock into the Offer and if necessary,
vote in favor of the adoption of the Merger Agreement.
The
Merger Agreement may be terminated by either the Company and Diedrich under
certain circumstances set forth in the Merger Agreement, including the failure
of the Offer to be consummated on or before March 31, 2010 and the failure of
the minimum tender condition to the Offer. If the Merger Agreement is
terminated (a) in certain circumstances following the receipt by Diedrich of an
alternative acquisition proposal, or (b) as a result of the Diedrich board of
directors changing its recommendation in favor of the Offer and the Merger,
Diedrich will be obligated to pay a termination fee to the Company.
The
description of the Merger Agreement in this Current Report on Form 8-K is
qualified in its entirety by reference to the full text of the Merger Agreement
referenced as Exhibit 2.1, which is incorporated by reference herein. The Merger
Agreement contains representations and warranties of Diedrich, the Company and
Acquisition Sub made solely to each other as of specific dates. Those
representations and warranties were made solely for purposes of the Merger
Agreement and may be subject to important qualifications and limitations agreed
to by Diedrich, the Company and Acquisition Sub. Moreover, some of those
representations and warranties may not be accurate or complete as of any
specified date, may be subject to a standard of materiality provided for in the
Merger Agreement and have been used for the purpose of allocating
risk among Diedrich, the Company and Acquisition Sub rather than establishing
matters as facts.
- 2
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As an
inducement to the Company to enter into the Merger Agreement, on November 2,
2009, Paul C. Heeschen entered into a Stockholder Agreement with the Company
pursuant to which he has agreed, in his capacity as a stockholder of Diedrich,
to tender 1,832,580 of his beneficially owned shares of Diedrich common stock
(representing approximately 32% of the currently outstanding shares of Diedrich)
to Acquisition Sub in the Offer. Pursuant to the Stockholder
Agreement, Mr. Heeschen has also agreed, among other things, to vote all of the
shares of Diedrich common stock that he has agreed to tender: (a) in favor
of the adoption of the Merger Agreement; and (b) against any action that is
intended, or that could reasonably be expected, to impede, interfere with,
delay, postpone, discourage or adversely affect the Offer or the Merger.
In
addition, Mr. Heeschen has agreed not to exercise, or cause or permit to be
exercised, any warrants to purchase shares of Diedrich common stock owned of
record or beneficially by Mr. Heeschen (the “Warrants”). The Voting
Agreement and the foregoing obligations terminate upon the earlier of (i) any
termination of the Merger Agreement in accordance with its terms and (ii) the
effective time of the Merger.
Pursuant
to the Stockholder Agreement and the Merger Agreement, the Warrants will,
contemporaneously with the consummation of the Offer, be cancelled and converted
into the right to receive a combination of cash and shares of the Company’s
common stock based on a formula set forth in the Merger Agreement.
In
addition to Mr. Heeschen, certain of the other directors and executive officers
of the Company have signed or intend to sign a similar form of Stockholder
Agreement, covering all of the shares of Diedrich common stock beneficially
owned by such individual, as well as any additional shares of which such
individual may become the beneficial owner. These directors and
executive officers collectively hold approximately 4% of the currently
outstanding shares of Diedrich. These Stockholder Agreements also
contain the voting provisions set forth in the Stockholder Agreement entered
into by Mr. Heeschen, and terminate upon any termination of the Merger Agreement
in accordance with its terms.
The
description of the Stockholder Agreements in this Current Report on Form 8-K is
qualified in its entirety by reference to the full text of the forms of
Stockholder Agreements referenced as Exhibits 2.2 and 2.3, which are
incorporated by reference herein.
Financing
Commitment Letter
Also on
November 2, 2009, the Company entered into a commitment letter with Wells Fargo
Bank, National Association (“Wells Fargo”) and Wells Fargo Securities, LLC
(“WFS”), setting forth the material terms and conditions of: (a) a
senior secured revolving credit facility in an aggregate amount up to
$40,000,000 to be provided by Wells Fargo and a syndicate of financial
institutions and other institutional lenders (the “Lenders”) to the
Company, as borrower; and (b) one or more tranches of term loans in an aggregate
amount up to $100,000,000 to be provided by the Lenders to the Company, each of
which is to be guaranteed by all existing and future subsidiaries of the
Company. Wells Fargo and WFS have committed to provide the financing described
in the commitment letter through the earliest to occur of (a) consummation of
the Offer, (b) termination of the Merger Agreement, (c) April 1, 2010, if the
Offer has not been consummated on or prior to March 31, 2010, (d) April 15,
2010, unless the commitment letter is terminated earlier by the Company. The
commitment letter provides that the revolving credit facility and term loans
would mature five years after the closing of the financing.
The
Company intends to use the proceeds from the senior secured credit facilities,
together with cash on hand at the Company, to finance the Offer and the Merger
(and may also use the cash on hand at Diedrich to finance the Merger), the costs
and expenses related to the Offer and the Merger and the ongoing working capital
and other general corporate purposes of the combined organization after
consummation of the Merger.
The
senior credit facilities are subject to the negotiation of mutually acceptable
credit or loan agreements and other mutually acceptable definitive
documentation, which are expected to include customary representations and
warranties, affirmative and negative covenants, provisions for security,
mandatory prepayments upon the occurrence of certain events, financial covenants
(including maximum total leverage ratio, minimum fixed charged coverage ratio
and minimum net income tests) and provisions for events of default. The Lenders’
obligations to provide the financing are subject to the satisfaction of
specified conditions, including that more than 50% of the shares of Diedrich
common stock (determined on a fully-diluted basis based on a formula set forth
in the Merger Agreement) have been validly tendered (and not withdrawn), no
material adverse effect having occurred with respect to Diedrich, the absence of
debt other than certain permitted debt, the accuracy of specified
representations and warranties, compliance with a minimum EBITDAR requirement
and a maximum total leverage ratio after giving effect to the Offer, and other
customary conditions.
- 3
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The
description of the commitment letter in this Current Report on Form 8-K is
qualified in its entirety by reference to the full text of the commitment letter
referenced as Exhibit 10.1, which is incorporated by reference
herein.
Forward-Looking
Statements
This
Current Report on Form 8-K contains statements that are not based on historical
fact and are “forward-looking statements” within the meaning of the Private
Securities Litigation Reform Act of 1995. These forward-looking statements
include statements relating to the proposed Offer and Merger and the anticipated
timing of the consummation of the transaction. Forward-looking statements are
based on management’s beliefs, as well as assumptions made by and information
currently available to management, including financial and operational
information, the Company’s stock price volatility, and current competitive
conditions. As a result, these statements are subject to various risks and
uncertainties. The Company’s actual results could differ materially from
those set forth in forward-looking statements depending on a variety of factors
including, but not limited to, general economic conditions, including the
current recession and its ongoing negative impact on consumer spending and its
ongoing impact on the financial markets, the Company’s ability to implement its
business strategy and to successfully integrate the business of Diedrich. the
risk that the Offer and the Merger will not close, the risk that the Company’s
business and/or Diedrich’s business will be adversely impacted during the
pendency of the Offer and the Merger, and the risk that the Company may not be
able to consummate the financing required to effect the Offer and the Merger on
terms satisfactory to it or at all, as well as other risk factors as described
more fully in the Company’s filings with the Securities and Exchange Commission
(the “Commission”), including its Annual Report on Form 10-K for the year ended
December 28, 2008. These factors may not be exhaustive. The Company
operates in a continually changing business environment, and new risks emerge
from time to time. Any forward-looking statements speak only as of the
date of this report. There can be no assurance that the proposed
Offer and Merger will in fact be consummated.
Additional
Information and Where to Find It
The
description contained herein is neither an offer to purchase nor a solicitation
of an offer to sell shares of Diedrich. Diedrich stockholders are urged to read
the relevant exchange offer documents when they become available because they
will contain important information that stockholders should consider before
making any decision regarding tendering their shares. At the time the Offer, if
any, is commenced, the Company will file a registration statement on Form S-4
and a tender offer statement on Schedule TO with the Commission and Diedrich
will file a solicitation/recommendation statement on Schedule 14D-9 with respect
to the Offer. The exchange offer materials (including the prospectus
contained in the registration statement and the other offer documents contained
in the tender offer statement) and the solicitation/recommendation statement
will contain important information, which should be read carefully before any
decision is made with respect to the Offer. The prospectus and certain other
offer documents, as well as the solicitation/recommendation statement, will be
made available to all stockholders of Diedrich at no expense to them. The
registration statement, the tender offer statement and the
solicitation/recommendation statement will be made available for free at the
Commission’s web site at www.sec.gov. Free copies of these materials will also
be made available by the Company by mail to Peet’s Coffee & Tea, Inc., 1400
Park Avenue, Emeryville, CA 94608, attention: Investor Relations.
In
addition to the registration statement (including the prospectus) and the tender
offer statement (including certain other offer documents), as well as the
solicitation/recommendation statement, the Company and Diedrich file annual,
quarterly and special reports, proxy statements and other information with the
Commission. Investors may read and copy any reports, statements or other
information filed by the Company or Diedrich at the SEC public reference room at
100 F Street, N.E., Washington, D.C. 20549. Please call the Commission at
1-800-SEC-0330 for further information on the public reference room. The
Company’s and Diedrich’s filings with the Commission are also available to the
public from commercial document-retrieval services and at the website maintained
by the Commission at http://www.sec.gov.
Interests
of Certain Persons in the Offer and the Merger
The
Company will be, and certain other persons may be, soliciting Diedrich
stockholders to tender their shares into the Offer. The directors and executive
officers of the Company and the directors and executive officers of Diedrich may
be deemed to be participants in the Company’s solicitation of Diedrich’s
stockholders to tender their shares into the Offer.
Investors
and stockholders may obtain more detailed information regarding the names,
affiliations and interests of the directors and officers of the Company and
Diedrich in the tender offer by reading the prospectus certain other offer
documents,
as well as the solicitation/recommendation statement, when they become
available.
- 4
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(d)
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Exhibits
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Exhibit
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Description
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2.1
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Agreement
and Plan of Merger dated as of November 2, 2009, among Peet’s Coffee &
Tea, Inc., Marty Acquisition Sub, Inc. and Diedrich Coffee,
Inc.*
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2.2
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Stockholder
Agreement dated as of November 2, 2009, between Peet’s Coffee & Tea,
Inc. and Paul C. Heeschen.
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2.3
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Form
of Stockholder Agreement dated as of November 2, 2009, between Peet’s
Coffee & Tea, Inc. and certain directors and executive officers of
Diedrich Coffee, Inc.
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10.1
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Commitment
Letter dated as of November 2, 2009, among Peet’s Coffee & Tea, Inc.,
Wells Fargo Bank, National Association and Wells Fargo Securities,
LLC.
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* Schedules have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. The Company undertakes to furnish
supplemental copies of any of the omitted schedules upon request by the
Securities and Exchange Commission.
Pursuant
to the requirements of the Securities Exchange Act of 1934, Peet's Coffee &
Tea, Inc. has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Peet's
Coffee & Tea, Inc.
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Dated:
November 3, 2009
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By:
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/s/
Thomas Cawley
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Thomas
Cawley
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Chief
Financial Officer
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EXHIBIT
INDEX
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Exhibits
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Exhibit
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Description
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2.1
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Agreement
and Plan of Merger dated as of November 2, 2009, among Peet’s Coffee &
Tea, Inc., Marty Acquisition Sub, Inc. and Diedrich Coffee,
Inc.*
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2.2
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Stockholder
Agreement dated as of November 2, 2009, between Peet’s Coffee & Tea,
Inc. and Paul C. Heeschen.
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2.3
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Form
of Stockholder Agreement dated as of November 2, 2009, between Peet’s
Coffee & Tea, Inc. and certain directors and executive officers of
Diedrich Coffee, Inc.
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10.1
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Commitment
Letter dated as of November 2, 2009, among Peet’s Coffee & Tea, Inc.,
Wells Fargo Bank, National Association and Wells Fargo Securities,
LLC.
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*
Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The
Company undertakes to furnish supplemental copies of any of the omitted
schedules upon request by the Securities and Exchange Commission.