UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)
Caribou Coffee Company, Inc.
(Name of Subject Company (Issuer))
JAB Beech Inc.
Pine Merger Sub, Inc.
(Names of Filing Persons (Offerors))
Common Stock, par value $0.01 per share
(Title of Class of Securities)
142042209
(CUSIP Number of Class of Securities)
Joachim Creus
JAB Beech Inc.
2200 Pennsylvania Avenue NW
Washington, DC 20037
Tel: (202) 507-5838
(Name, Address and Telephone Numbers of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Paul T. Schnell, Esq.
Sean C. Doyle, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
(212) 735-3000
CALCULATION OF FILING FEE
Transaction Valuation(1) | Amount of Filing Fee(2) | |
| $339,467,568 | $46,304 |
| (1) | Estimated solely for purposes of calculating the filing fee. The transaction value was determined by multiplying (x) $16.00 (i.e., the tender offer price) by (y) 21,216,723, the estimated maximum number of shares of the Company common stock to be acquired in the tender offer. |
| (2) | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2013, issued August 31, 2012, by multiplying the transaction value by 0.0001364. |
| x | Check the box if any part of the fee is offset as provided by Rule 0-11 (a)(2) of the Securities Exchange Act of 1934 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. |
| Amount Previously Paid: $46,304 | Filing Party: JAB Beech Inc. | |||
| Form or Registration No.: Schedule TO | Date Filed: December 21, 2012 |
| ¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| x | third-party tender offer subject to Rule 14d-1. |
| ¨ | issuer tender offer subject to Rule 13e-4. |
| ¨ | going-private transaction subject to Rule 13e-3. |
| ¨ | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer: ¨
This Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO (as amended, “Schedule TO”) relating to the offer by JAB Beech Inc., a Delaware corporation (“Parent”) and Pine Merger Sub, Inc., a Minnesota corporation and a wholly-owned subsidiary of Parent (“Purchaser” and, together with Parent, the “Offerors”), to purchase all outstanding shares of common stock, par value $0.01 per share (“Shares”), of Caribou Coffee Company, Inc., a Minnesota corporation (the “Company”), at a price of $16.00 per Share, net to the seller in cash (less any required withholding taxes and without interest), upon the terms and subject to the conditions set forth in the Offer to Purchase dated December 21, 2012 (together with any amendments or supplements thereto, the “Offer to Purchase”) and in the related Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”), which are annexed to and filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
All the information set forth in the Offer to Purchase, to the extent incorporated by reference therein, is hereby amended and supplemented as set forth below.
Item 11 of the Schedule TO, and the Offer to Purchase, to the extent incorporated by reference therein, is hereby amended and supplemented as set forth below.
The subsection titled “Legal Proceedings” in Section 15—”Certain Legal Matters” is amended and restated in its entirety to read as follows:
“Shortly after the announcement of the proposed Offer and prior to the launch of the Offer, three purported class action complaints were filed by purported shareholders against Parent, Purchaser and the individual directors of the Company in the District Court of the State of Minnesota, Fourth Judicial District. Specifically, on December 18, 2012, purported shareholders seeking certification of a purported class action lawsuit in the District Court of the State of Minnesota filed cases captioned Richeson v. Caribou Coffee Company, Inc., et al (the “Richeson Action”) and Greentech Research LLC v. Caribou Coffee Company, Inc., et al (the “Greentech Action”). On December 20, 2012, a similar case captioned Shah v. Tattersfield, et al (the “Shah Action”) was also filed in the District Court of the State of Minnesota, Fourth Judicial District.
On December 21, 2012, the District Court of the State of Minnesota, Fourth Judicial District, granted an order (the “Companioning Order”) pursuant to Rule 113.01 of the Minnesota Rules of General Practice companioning the Richeson Action, the Greentech Action, the Shah Action and any additional cases now pending or brought in the future that involve similar disputes arising from the same set of facts before the same judge. The foregoing description is qualified in its entirety by reference to the Companioning Order, a copy of which is filed as Exhibit (a)(5)(E) to the Schedule TO, and which is incorporated herein by reference.
Following commencement of the Offer on December 21, 2012, two additional purported class action complaints were filed by purported shareholders against Parent, Purchaser and the individual directors of the Company in the District Court of the State of Minnesota, Fourth Judicial District. Specifically, on December 21, 2012, purported shareholders seeking certification of a purported class action lawsuit in the District Court of the State of Minnesota filed cases captionedArciero v. Caffey et al. (the “Arciero Action”) andSchufman vs. Caribou Coffee Company, Inc. et al.(the “Schufman Action”).
The complaints in the Richeson Action, Greentech Action, Shah Action, Arciero Action and Schufman Action all purport to be brought individually and on behalf of all shareholders of the Company and all purportedly seek to enjoin the effectuation of the proposed transaction. The complaints contain allegations substantially similar to one another and allege that the Offer price of $16 per share is inadequate and undervalues the Company. The complaints allege that the Company’s director defendants breached their fiduciary duties to the Company’s shareholders in connection with the Offer and the Merger. Among other things, the complaints challenge the sale process and price as unfair and certain alleged deal protection provisions in the Merger Agreement. The complaints also allege that the Company, Parent and/or Purchaser aided and abetted such alleged breaches of the Company’s director defendant’s fiduciary duties.
The actions seek, among other relief: declaring the action to be a class action; declaring that the Merger Agreement was entered into in breach of the fiduciary duties of the defendants and is, therefore, unlawful and unenforceable; injunctive relief enjoining the Offer and the Merger; directing the individual defendants to exercise their fiduciary duties to obtain a transaction which is in the best interest of the Company and its shareholders; rescinding, to the extent already implemented, the Merger Agreement and the Merger; requiring disgorgement and imposing a constructive trust on all property and profits defendants receive as a result of their alleged wrongful conduct; directing the Company’s directors to adequately ensure that
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no conflict of interest exist between them and their fiduciary obligations, or if such conflicts exist, to ensure that all conflicts are resolved in the best interest of the class; awarding damages, including rescissory damages, in favor of the plaintiff and the class; awarding costs and disbursements, including reasonable attorneys’ and experts’ fees; and granting any and all further relief as the court may deem just and proper.
The foregoing description is qualified in its entirety by reference to the complaints, copies of which are filed as Exhibits (a)(5)(B), (a)(5)(C), (a)(5)(D), (a)(5)(E), (a)(5)(F) and (a)(5)(G) to the Schedule TO, which are incorporated herein by reference.”
ITEM 12. EXHIBITS
Item 12 of the Schedule TO is hereby amended and restated in its entirety as follows:
| (a)(1)(A)* | Offer to Purchase, dated December 21, 2012 | |
| (a)(1)(B)* | Form of Letter of Transmittal | |
| (a)(1)(C)* | Form of Notice of Guaranteed Delivery | |
| (a)(1)(D)* | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees | |
| (a)(1)(E)* | Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees | |
| (a)(1)(F)* | Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification), including instructions for completing the form | |
| (a)(1)(G)* | Summary Advertisement, published December 21, 2012 inThe Wall Street Journal | |
| (a)(2) | Not applicable | |
| (a)(3) | Not applicable | |
| (a)(4) | Not applicable | |
| (a)(5)(A)* | Joint Press Release of Parent and the Company, dated December 17, 2012 (incorporated by reference to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on December 17, 2012) | |
| (a)(5)(B)* | Complaint filed by James Randolph Richeson in the District Court of the State of Minnesota, Fourth Judicial District on December 18, 2012 | |
| (a)(5)(C)* | Complaint filed by Greentech Research LLC in the District Court of the State of Minnesota, Fourth Judicial District on December 18, 2012 | |
| (a)(5)(D)* | Complaint filed by Suketu Shah, in the District Court of the State of Minnesota, Fourth Judicial District on December 20, 2012 | |
| (a)(5)(E) | Order Granting Companioning of Cases, issued December 21, 2012 by District Court of the State of Minnesota, Fourth Judicial District | |
| (a)(5)(F) | Complaint filed by Mary Arciero, in the District Court of the State of Minnesota, Fourth Judicial District on December 21, 2012 | |
| (a)(5)(G) | Complaint filed by Jay Schufman, in the District Court of the State of Minnesota, Fourth Judicial District on December 21, 2012 | |
| (b) | Not applicable | |
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| (d)(1)* | Agreement and Plan of Merger, dated as of December 16, 2012, among Parent, Purchaser and the Company (incorporated by reference to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on December 17, 2012) | |
| (d)(2)* | Non-Disclosure Agreement, dated December 7, 2012, between the Company and Parent | |
| (g) | Not applicable | |
| (h) | Not applicable | |
| * | Previously filed |
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SIGNATURE
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: December 27, 2012 | JAB BEECH INC. | |||||
| By: | /s/ Joachim Creus | |||||
| Name: | Joachim Creus | |||||
| Title: | President | |||||
| PINE MERGER SUB, INC. | ||||||
| By: | /s/ Joachim Creus | |||||
| Name: | Joachim Creus | |||||
| Title: | President | |||||
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EXHIBIT INDEX
| (a)(1)(A)* | Offer to Purchase, dated December 21, 2012 | |
| (a)(1)(B)* | Form of Letter of Transmittal | |
| (a)(1)(C)* | Form of Notice of Guaranteed Delivery | |
| (a)(1)(D)* | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees | |
| (a)(1)(E)* | Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees | |
| (a)(1)(F)* | Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification), including instructions for completing the form | |
| (a)(1)(G)* | Summary Advertisement, published December 21, 2012 inThe Wall Street Journal | |
| (a)(2) | Not applicable | |
| (a)(3) | Not applicable | |
| (a)(4) | Not applicable | |
| (a)(5)(A)* | Joint Press Release of Parent and the Company, dated December 17, 2012 (incorporated by reference to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on December 17, 2012) | |
| (a)(5)(B)* | Complaint filed by James Randolph Richeson in the District Court of the State of Minnesota, Fourth Judicial District on December 18, 2012 | |
| (a)(5)(C)* | Complaint filed by Greentech Research LLC in the District Court of the State of Minnesota, Fourth Judicial District on December 18, 2012 | |
| (a)(5)(D)* | Complaint filed by Suketu Shah, in the District Court of the State of Minnesota, Fourth Judicial District on December 20, 2012 | |
| (a)(5)(E) | Order Granting Companioning of Cases, issued December 21, 2012 by District Court of the State of Minnesota, Fourth Judicial District | |
| (a)(5)(F) | Complaint filed by Mary Arciero, in the District Court of the State of Minnesota, Fourth Judicial District on December 21, 2012 | |
| (a)(5)(G) | Complaint filed by Jay Schufman, in the District Court of the State of Minnesota, Fourth Judicial District on December 21, 2012 | |
| (b) | Not applicable | |
| (d)(1)* | Agreement and Plan of Merger, dated as of December 16, 2012, among Parent, Purchaser and the Company (incorporated by reference to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on December 17, 2012) | |
| (d)(2)* | Non-Disclosure Agreement, dated December 7, 2012, between the Company and Parent | |
| (g) | Not applicable | |
| (h) | Not applicable | |
| * | Previously filed |
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