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 17, 2009
Peet's
Coffee & Tea, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
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Washington
(State
of jurisdiction)
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0-32233
(Commission
File No.)
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91-0863396
(IRS
Employer Identification No.)
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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:
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ý
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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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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Amendment to Merger
Agreement
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 “Original Merger Agreement”) which contemplates the
acquisition by the Company, through Acquisition Sub, of all of the outstanding
shares common stock of Diedrich (“Shares”) in a two-step transaction comprised
of a combination cash and stock exchange offer for all of the issued and
outstanding Shares (the “Offer”), followed by a merger of Acquisition Sub with
and into Diedrich (the “Merger”).
On
November 17, 2009, the Company, Acquisition Sub and Diedrich entered into an
Amendment No. 1 to Agreement and Plan of Merger (the
“Amendment”). The Amendment provides that, among other things,
Acquisition Sub’s obligation to accept for exchange and deliver consideration
for Shares validly tendered (and not withdrawn) pursuant to the Offer is subject
to the condition (in addition to other conditions set forth in the Original
Merger Agreement) that the registration statement on Form S-4 to register the
offer and sale of Peet’s common stock pursuant to the Offer shall have
become effective in accordance with the provisions of the Securities Act of
1933, as amended, and no stop order shall have been issued by the Securities and
Exchange Commission (the “SEC”) and be outstanding, and no proceeding for that
purpose shall have been initiated by the SEC and be outstanding or be threatened
by the SEC. As used herein, the term “Merger Agreement” refers to the
Original Merger Agreement, as amended by the Amendment.
The
description of the Merger Agreement and the Amendment in this Current Report on
Form 8-K is qualified in its entirety by reference to the full text of the
Original Merger Agreement and the Amendment, referenced as Exhibits 2.1 and 2.2,
respectively, which are 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.
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. 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
Deidrich; 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 Company’s prospectus/offer to purchase and Diedrich’s
solicitation/recommendation statement on Schedule 14D-9, because they contain
important information that stockholders should consider before making any
decision regarding tendering their shares. The Company has filed a registration
statement on Form S-4 and a tender offer statement on Schedule TO with the
Commission and Diedrich has filed a solicitation/recommendation statement on
Schedule 14D-9, all with respect to the Offer and the Merger. The
tender and exchange offer materials (including the prospectus/offer to purchase
contained in the registration statement and the other offer documents contained
in the registration statement), the tender offer statement and the
solicitation/recommendation statement contain important information, which
should be read carefully before any decision is made with respect to the Offer.
The prospectus/offer to purchase and certain other offer documents, as well as
the tender offer statement and the solicitation/recommendation statement, are
available to all stockholders of Diedrich at no expense to them. The
registration statement, the prospectus/offer to purchase (and other offer
documents), the tender offer statement and the solicitation/recommendation
statement are available for free at the Commission’s web site at www.sec.gov.
Free copies of these materials are also available from the Company by mail to
Peet’s Coffee & Tea, Inc., 1400 Park Avenue, Emeryville, CA 94608,
attention: Investor Relations.
In
addition to the foregoing materials filed with the Commission, 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 is, 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/offer to purchase,
certain other offer documents, as well as the solicitation/recommendation
statement, all as described above.
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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.,
incorporated by reference to Exhibit 2.1 from Peet’s Registration
Statement on Form S-4, filed with the Securities and Exchange Commission
on November 17, 2009 *
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2.2
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Amendment
No. 1 to Agreement and Plan of Merger dated as of November 17, 2009 among
Peet’s Coffee & Tea, Inc., Marty Acquisition Sub, Inc. and Diedrich
Coffee, Inc., incorporated by reference to Exhibit 2.2 from Peet’s
Registration Statement on Form S-4, filed with the Securities and Exchange
Commission on November 17, 2009
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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.
SIGNATURE
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 17, 2009
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By:
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/s/ Thomas P. Cawley | |
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Thomas
P. 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.,
incorporated by reference to Exhibit 2.1 from Peet’s Registration
Statement on Form S-4, filed with the Securities and Exchange Commission
on November 17, 2009 *
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2.2
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Amendment
No. 1 to Agreement and Plan of Merger dated as of November 17, 2009 among
Peet’s Coffee & Tea, Inc., Marty Acquisition Sub, Inc. and Diedrich
Coffee, Inc., incorporated by reference to Exhibit 2.2 from Peet’s
Registration Statement on Form S-4, filed with the Securities and Exchange
Commission on November 17, 2009
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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.