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)
January 24, 2013
(January 23, 2013)
CARIBOU COFFEE COMPANY, INC.
(Exact name of registrant as specified in its charter)
| Minnesota | 000-51535 | 41-1731219 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
3900 Lakebreeze Avenue North
Brooklyn Center, MN
(Address of principal executive offices including Zip Code)
(763) 592-2200
(Registrant’s telephone number, including area code)
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:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On January 24, 2013, Caribou Coffee Company, Inc., (the “Company”) notified the NASDAQ Stock Market (“NASDAQ”) of the consummation of the merger of Pine Merger Sub, Inc. (“Purchaser”) with and into the Company (the “Merger”) in accordance with the terms of the Agreement and Plan of Merger, dated as of December 16, 2012, among the Company, JAB Beech Inc. (“Parent”) and Purchaser (the “Merger Agreement”) and the Minnesota Business Corporation Act (the “MBCA”) and requested that NASDAQ file with the Securities and Exchange Commission (the “SEC”) a Notification of Removal from Listing and/or Registration (the “Form 25”) under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to delist and deregister the shares of common stock, par value $0.01, of the Company (the “Shares”). Pursuant to Rule 12d2-2 under the Exchange Act, the delisting of Shares from NASDAQ will be effective on February 3, 2013 and the Company’s reporting obligations under Section 12(b) of the Exchange Act will be suspended as of that date. Trading of the Shares on NASDAQ ceased as of the close of trading on January 24, 2013. The Shares will be deregistered under Section 12(b) of the Exchange Act no later than ninety (90) days, or such shorter period as the SEC may determine, after the date of the Form 25. On February 4, 2013, the Company intends to file with the SEC a Certification on Form 15 under the Exchange Act to suspend the Company’s remaining reporting obligations under the Exchange Act, which filing will result in the immediate suspension of such reporting obligations.
| Item 3.02. | Unregistered Sales of Equity Securities. |
Pursuant to the option (the “Top-Up Option”) to purchase directly from the Company 64,846,878 newly-issued Shares granted to Purchaser in the Merger Agreement, the Company issued to the Purchaser 64,846,878 Shares (the “Top-Up Shares”) for an aggregate purchase price of $1,037,550,048, of which $648,469 was paid in cash (which cash amount represents the par value of each purchased Top-Up Share) and the balance of which was paid by delivery of a promissory note. The Top-Up Shares were issued without registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon the exemption from registration set forth in Section 4(2) of the Securities Act.
| Item 3.03. | Material Modification to Rights of Security Holders. |
In connection with the consummation of Merger, each Share issued and outstanding immediately prior to the effective time of the Merger (other than (i) shares owned by Parent, Purchaser or any other affiliate of Parent that is directly or indirectly wholly owned by the ultimate parent of Parent, (ii) shares owned by the Company or any direct or indirect wholly-owned subsidiary of the Company and (iii) shares held by Company shareholders who properly demand and perfect dissenters’ rights under Minnesota law) was converted into the right to receive $16 per Share, in cash (less any required withholding taxes and without interest) (the “Merger Consideration”). At the effective time of the Merger, the Company’s shareholders immediately prior to the effective time of the Merger ceased to have any rights as shareholders in the Company (other than their rights to receive the Merger Consideration) and accordingly no longer have any interest in the Company’s future earnings and growth.
| Item 5.01. | Changes in Control of Registrant. |
On January 23, 2013, Purchaser completed its tender offer (the “Offer”) for all outstanding Shares of the Company, at a price of $16 per Share, net to the seller in cash (less any required withholding taxes and without interest) (the “Offer Price”), pursuant to the terms of the Merger Agreement. The Offer expired at 12:00 midnight, New York City time, on January 22, 2012. The Company was advised by the depositary for the Offer that, as of the expiration time of the Offer, a total of 13,554,419 Shares were
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validly tendered and not withdrawn (including Shares delivered through notices of guaranteed delivery), representing approximately 63.9% of the Shares outstanding on a fully diluted basis. On January 23, 2013, Purchaser accepted for payment all Shares that were validly tendered and not withdrawn prior to the expiration time of the Offer (such time of acceptance, the “Acceptance Time”) and has delivered payment for such Shares.
Purchaser acquired all of the remaining outstanding Shares of the Company’s common stock by means of a merger under Minnesota law. As a result of the purchase of shares in the Offer, Purchaser had sufficient voting power to approve the Merger without the affirmative vote of any other Company shareholder. In order to accomplish the Merger as a “short-form” merger, Purchaser exercised the Top-Up Option, which permits Purchaser to purchase additional shares of common stock of the Company directly from the Company for $16 per share (the same purchase price paid in the offer). The consummation of the Top-Up Option transaction took place on January 24, 2013. Following the Merger, the Company became a wholly-owned subsidiary of Parent, and each share of the Company’s outstanding common stock was cancelled and converted into the right to receive the same consideration, without interest, received by holders who tendered in the tender offer.
The $216,870,704 in aggregate cash consideration payable to holders of Shares tendered during the Offer, and all cash payable to holders of Shares for Shares to be converted into the right to receive the Offer Price upon the Merger was be provided through a mix of cash on hand, equity contributions from Parent’s existing shareholders, JAB Forest LLC and affiliates of BDT Capital Partners, LLC, and the issuance of debt to one of Parent’s affiliates.
The other information required by Item 5.01(a) of Form 8-K is contained in (i) the Company’s Solicitation/Recommendation on Schedule 14D-9 originally filed by the Company with the Securities and Exchange Commission (the “SEC”) on December 21, 2012 (the “Schedule 14D-9”), which is included as Exhibit 20.1 to this report, and (ii) the Tender Offer Statement on Schedule TO originally filed by Purchaser and Parent with the SEC on December 21, 2012 (the “Schedule TO”), which is included as Exhibit 20.2 to this report, and such information is incorporated herein by reference.
The foregoing description of certain provisions of the Merger Agreement is qualified in its entirety by reference to the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Form 8-K filed by the Company with the SEC on December 17, 2013.
The information set forth below in Item 5.02 is incorporated by reference into this Item 5.01.
Copies of the press releases issued by Parent on January 23, 2013, announcing Purchaser’s acceptance for payment of Shares validly tendered prior to the expiration of the Offer and on January 24, 2013 announcing the completion of the Merger are attached as Exhibits 99.1 and 99.2 hereto and are incorporated by reference herein.
Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.
Pursuant to the terms of the Merger Agreement, on January 24, 2013, the directors of Purchaser immediately prior to the effective time of the Merger became the directors of the Company following the Merger.
As of January 24, 2013, Joachim Creus, David Bell and Axel Bhat each assumed the role of director of the Company. Information about the new directors is contained in Annex I to the Schedule 14D-9. At the time Messrs. Creus, Bell and Bhat assumed the role of director it had not yet been determined which committees, if any, of the Board of Directors of the Company on which Messrs. Creus, Bell and Bhat would serve.
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The foregoing description of certain provisions of the Merger Agreement is qualified in its entirety by reference to the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Form 8-K filed by the Company on December 17, 2012.
The other information required by Item 5.02 of Form 8-K is contained in the Schedule 14D-9, including the Information Statement comprising Annex I thereto, which is included as Exhibit 20.1 to this report, and such information is incorporated herein by reference.
Item 5.03. Amendments to Certificate of Incorporation or Bylaws; Change of Fiscal Year.
On January 24, 2013, pursuant to the Merger, the Company’s Third Amended and Restated Articles of Incorporation were amended and restated (the “Amended Charter”) and the Company’s Amended and Restated Bylaws were amended and restated (the “Amended Bylaws”).
The Amended Charter is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
The Amended Bylaws are attached hereto as Exhibit 3.2 and are incorporated herein by reference.
| Item 8.01. | Other Events. |
On January 23, 2013, Parent issued a press release announcing that Purchaser accepted for payment in accordance with the terms of the Offer all Shares that were validly tendered and not withdrawn prior to expiration of the Offer, and that payment for such Shares would be made promptly, in accordance with the terms of the Offer. On January 24, 2013, Parent issued a press release announcing the completion of the Merger. Copies of these press releases are attached as Exhibit 99.1 and 99.2 hereto and are incorporated by reference herein.
| ITEM 9.01. | FINANCIAL STATEMENTS AND EXHIBITS. |
(d) Exhibits.
| 3.1 | Fourth Amended and Restated Articles of Incorporation, dated January 24, 2013 | |
| 3.2 | Second Amended and Restated Bylaws, dated January 24, 2013 | |
| 20.1 | Solicitation/Recommendation Statement on Schedule 14D-9 of Caribou Coffee Company, Inc. (incorporated by reference in its entirety as originally filed with the SEC on December 21, 2012) | |
| 20.2 | Tender Offer Statement on Schedule TO of Pine Merger Sub, Inc. and JAB Beech Inc. (incorporated by reference in its entirety as originally filed with the SEC on December 21, 2012) | |
| 99.1 | Press Release issued by JAB Beech Inc. on January 23, 2013 (incorporated by reference to Exhibit a(5)(O) to the Tender Offer Statement on Schedule TO, as amended, filed with the Securities and Exchange Commission by Parent and Purchaser on January 23, 2013) | |
| 99.2 | Press Release issued by JAB Beech Inc. on January 24, 2013 | |
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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.
| CARIBOU COFFEE COMPANY, INC. | ||||||
| (Registrant) | ||||||
| Dated: January 24, 2013 |
By: | /s/ Dan Lee | ||||
| Name: | Dan Lee | |||||
| Title: | Senior Vice President, General Counsel and Secretary | |||||
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INDEX TO EXHIBITS
| Exhibit Number |
Description | |
| 3.1 | Fourth Amended and Restated Articles of Incorporation, dated January 24, 2013 | |
| 3.2 | Second Amended and Restated Bylaws, dated January 24, 2013 | |
| 20.1 | Solicitation/Recommendation Statement on Schedule 14D-9 of Caribou Coffee Company, Inc. (incorporated by reference in its entirety as originally filed with the SEC on December 21, 2012) | |
| 20.2 | Tender Offer Statement on Schedule TO of Pine Merger Sub, Inc. and JAB Beech Inc. (incorporated by reference in its entirety as originally filed with the SEC on December 21, 2012) | |
| 99.1 | Press Release issued by JAB Beech Inc. on January 23, 2013 (incorporated by reference to Exhibit a(5)(O) to the Tender Offer Statement on Schedule TO, as amended, filed with the Securities and Exchange Commission by Parent and Purchaser on January 23, 2013) | |
| 99.2 | Press Release issued by JAB Beech Inc. on January 24, 2013 | |
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Exhibit 3.1
FOURTH AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CARIBOU COFFEE COMPANY, INC.
ARTICLE I
Name
The name of the corporation is: Caribou Coffee Company, Inc.
ARTICLE II
Registered Office
The registered office of the corporation is located at 90 South 7th Street, Suite 5500, Minneapolis, MN 55402.
ARTICLE III
Incorporator
The name and address of the incorporator are:
| Name |
Mailing Address | |||
| Mary S. Giesler | 90 South 7th Street, Suite 5500 Minneapolis, MN 55402 |
ARTICLE IV
Capital
The aggregate number of shares of stock that the corporation shall have the authority to issue is One Thousand (1,000) shares, par value $.01 per share.
ARTICLE V
Classes and Series
In addition to, and not by way of limitation of, the powers granted to the Board of Directors by Minnesota Statutes, Chapter 302A, the Board of Directors of the corporation shall have the power and authority to fix by resolution any designation, class, series, voting power, preference, right, qualification, limitation, restriction, dividend, time and price of redemption, and conversion right with respect to any stock of the corporation. Unless otherwise designated by the Board of Directors, all issued shares shall be deemed common stock with equal rights and preferences.
ARTICLE VI
Written Action Without Meeting
Any action required or permitted to be taken at any meeting of the Board of Directors of the corporation may be taken without a meeting by written action signed by a majority of the Board of Directors then in office, except as to those matters which require shareholder approval, in which case the written action shall be signed by all members of the Board of Directors then in office.
ARTICLE VII
Cumulative Voting Denied
No shareholder of the corporation shall be entitled to any cumulative voting rights.
ARTICLE VIII
Pre-Emptive Rights Denied
No shareholder of the corporation shall have any preferential, pre-emptive, or other rights of subscription to any shares of any class or series of stock of the corporation allotted or sold or to be allotted or sold and now or hereafter authorized, or to any obligations or securities convertible into any class or series of stock of the corporation, nor any right of subscription to any part thereof.
ARTICLE IX
Initial Board of Directors
The initial Board of Directors of the corporation shall be comprised of the following individuals:
Joachim Creus
David Bell
Axel Bhat
These individuals shall serve as the Board of Directors of the corporation until the next regular meeting of the shareholders or until their successors are elected and qualified in the manner required by the corporation’s Bylaws.
Exhibit 3.2
SECOND AMENDED AND RESTATED BYLAWS
OF
CARIBOU COFFEE COMPANY, INC.
Caribou Coffee Company, Inc., a corporation organized under Minnesota Statutes Chapter 302A (the “Corporation”).
ARTICLE I - SHAREHOLDERS
Section 1.01 Place of Meetings. Each meeting of the shareholders shall be held at the principal executive office of the Corporation or at such other place as may be designated by the Board of Directors or the Chief Executive Officer; provided, however, that any meeting called by or at the demand of a shareholder or shareholders shall be held in the county where the principal executive office of the Corporation is located.
Section 1.02 Regular Meetings. Regular meetings of the shareholders may be held on an annual or other less frequent basis as determined by the Board of Directors; provided, however, that if a regular meeting has not been held during the immediately preceding fifteen (15) months, a shareholder or shareholders holding three percent (3%) or more of the voting power of all shares entitled to vote may demand a regular meeting of shareholders by written demand given to the Chief Executive Officer or Chief Financial Officer of the Corporation. At each regular meeting the shareholders shall elect qualified successors for directors who serve for an indefinite term or whose terms have expired or are due to expire within six (6) months after the date of the meeting and may transact any other business as may properly come before them, provided, however, that no business with respect to which special notice is required by law shall be transacted unless such notice shall have been given.
Section 1.03 Special Meetings. A special meeting of the shareholders may be called for any purpose or purposes at any time by the Chief Executive Officer; by the Chief Financial Officer; by the Board of Directors or any two (2) or more members thereof; or by one (1) or more shareholders holding not less than ten percent (10%) of the voting power of all shares of the Corporation entitled to vote, who shall demand such special meeting by written notice given to the Chief Executive Officer or the Chief Financial Officer of the Corporation specifying the purposes of such meeting except that a special meeting for the purpose of considering any action to directly or indirectly facilitate or effect a business combination, including any action to change or otherwise affect the composition of the Board of Directors for that purpose, must be called by twenty-five percent (25%) or more of the voting power of all shares entitled to vote.
Section 1.04 Meetings Held Upon Shareholder Demand. Within thirty (30) days after receipt of a demand by the Chief Executive Officer or the Chief Financial Officer from any shareholder or shareholders entitled to call a meeting of the shareholders, it shall be the duty of the Board of Directors of the Corporation to cause a special or regular meeting of shareholders, as the case may be, to be duly called and held on notice no later than ninety (90) days after receipt of such
demand. If the Board of Directors fails to cause such a meeting to be called and held as required by this Section, the shareholder or shareholders making the demand may call the meeting by giving notice as provided in Section 1.06 hereof at the expense of the Corporation.
Section 1.05 Adjournments. Any meeting of the shareholders may be adjourned from time to time to another date, time and place. If any meeting of the shareholders is so adjourned, no notice as to such adjourned meeting need be given if the date, time and place at which the meeting will be reconvened are announced at the time of adjournment, and the adjourned meeting is held not more than 120 days after the date fixed for the original meeting. At any adjourned meeting at which a quorum is present, any business may be transacted which may have been transacted at the meeting as originally noticed.
Section 1.06 Notice of Meetings. Unless otherwise required by law, written notice of each meeting of the shareholders, stating the date, time and place and, in the case of a special meeting, the purpose or purposes, shall be given at least ten (10) days and not more than sixty (60) days prior to the meeting to every holder of shares entitled to vote at such meeting except as specified in Section 1.05 or as otherwise permitted by law. The business transacted at a special meeting of shareholders is limited to the purposes stated in the notice of the meeting.
Section 1.07 Waiver of Notice. A shareholder may waive notice of the date, time, place and purpose or purposes of a meeting of shareholders. A waiver of notice by a shareholder entitled to notice is effective whether given before, at or after the meeting, and whether given in writing, orally or by attendance. Attendance by a shareholder at a meeting is a waiver of notice of that meeting, unless the shareholder objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened, or objects before a vote on an item of business because the item may not lawfully be considered at that meeting and does not participate in the consideration of the item at that meeting.
Section 1.08 Voting Rights. A shareholder shall have one (1) vote for each share held which is entitled to vote. Except as otherwise required by law, a holder of shares entitled to vote may vote any portion of the shares in any way the shareholder chooses. If a shareholder votes without designating the proportion or number of shares voted in a particular way, the shareholder is deemed to have voted all of the shares in that way. The Board of Directors may fix a date not more than sixty (60) days before the date of a meeting of shareholders as the record date for the determination of the holders of shares entitled to notice of and entitled to vote at the meeting. When a record date is so fixed, only shareholders on that date are entitled to notice of and permitted to vote at that meeting of shareholders notwithstanding any transfer of shares on the books of the Corporation after any record date so fixed. If the Board of Directors fails to fix a record date for determination of the shareholders entitled to notice of and to vote at, any meeting of shareholders, the record date shall be the twentieth (20th) day preceding the date of such meeting.
Section 1.09 Proxies. A shareholder may cast, or authorize the casting of, a vote by (1) filing a written appointment of a proxy, signed by the shareholder, with an officer of the Corporation at or before the meeting at which the appointment is to be effect. The shareholder may sign or authorize the written appointment by telegram, cablegram or other means of electronic transmission setting forth or submitted with information sufficient to determine that the shareholder
authorized such transmission. Any copy, facsimile telecommunication or other reproduction of the original of either the writing or transmission may be used in lieu of the original, provided that it is a complete and legible reproduction of the entire original.
Section 1.10 Quorum. The holders of a majority of the voting power of the shares entitled to vote at a shareholders meeting are a quorum for the transaction of business at a regular or special meeting. If a quorum is present when a duly called or held meeting is convened, the shareholders present may continue to transact business until adjournment, even though the withdrawal of a number of the shareholders originally present leaves less than the proportion or number otherwise required for a quorum.
Section 1.11 Acts of Shareholders. Except as otherwise required by law or specified in the Articles of Incorporation of the Corporation, the shareholders shall take action by the affirmative vote of the holders of the greater of (a) a majority of the voting power of the shares present and entitled to vote on that item of business or (b) a majority of the voting power of the minimum number of shares entitled to vote that would constitute a quorum for the transaction of business at a duly held meeting of shareholders. A shareholder voting by proxy authorized to vote on less than all items of business considered at the meeting shall be considered to be present and entitled to vote only with respect to those items of business for which the proxy has authority to vote. A proxy who is given authority by a shareholder who abstains with respect to an item of business shall be considered to have authority to vote on that item of business.
Section 1.12 Action Without a Meeting. Any action required or permitted to be taken at a meeting of the shareholders of the Corporation may be taken without a meeting by written action signed, or consented to by authenticated electronic communication, by all of the shareholders entitled to vote on that action. The written action is effective when it has been signed, or consented to by authenticated electronic communication, by all of those shareholders, unless a different effective time is provided in the written action.
ARTICLE II - DIRECTORS
Section 2.01 Number; Qualifications. Except as authorized by the shareholders pursuant to a shareholder control agreement or unanimous affirmative vote, the business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors of one or more directors. Directors shall be natural persons. The number of directors to constitute the Board of Directors shall be determined from time to time by resolution of the Board of Directors.
Section 2.02 Term. Each director shall serve for an indefinite term that expires at the next regular meeting of the shareholders. A director shall hold office until a successor is elected and has qualified or until the earlier death, resignation, removal or disqualification of the director.
Section 2.03 Vacancies. Vacancies on the Board of Directors resulting from the death, resignation, removal or disqualification of a director may be filled by the affirmative vote of a majority of the remaining members of the Board of Directors, though less than a quorum. Vacancies on the Board of Directors resulting from newly created directorships may be filled by the affirmative vote of a majority of the directors serving at the time such directorships are created. Each person elected to fill a vacancy shall hold office until a qualified successor is elected by the shareholders at the next regular meeting or at any special meeting duly called for that purpose.
Section 2.04 Place of Meetings. Each meeting of the Board of Directors shall be held at the principal executive office of the Corporation or at such other place as may be designated from time to time by a majority of the members of the Board of Directors or by the Chief Executive Officer. A meeting may be held by conference among the directors using any means of remote communication through which all of the directors may participate with each other during the conference.
Section 2.05 Regular Meetings. Regular meetings of the Board of Directors for the election of officers and the transaction of any other business shall be held without notice at the place of and immediately after each regular meeting of the shareholders.
Section 2.06 Special Meetings. A special meeting of the Board of Directors may be called for any purpose or purposes at any time by any member of the Board of Directors by giving not less than two (2) days notice to all directors of the date, time and place of the meeting, provided that when notice is mailed, at least four (4) days notice shall be given. The notice need not state the purpose of the meeting.
Section 2.07 Waiver of Notice; Previously Scheduled Meetings. A director of the Corporation may waive notice of the date, time and place of a meeting of the Board of Directors. A waiver of notice by a director entitled to notice is effective whether given before, at or after the meeting, and whether given in writing, orally, by authenticated electronic communication, or by attendance. Attendance by a director at a meeting is a waiver of notice of that meeting, unless the director objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and thereafter does not participate in the meeting. If the day or date, time and place of a Board of Directors meeting have been provided herein or announced at a previous meeting of the Board of Directors, no notice is required. Notice of an adjourned meeting need not be given other than by announcement at the meeting at which adjournment is taken of the date, time and place at which the meeting will be reconvened.
Section 2.08 Quorum. The presence in person of a majority of the directors currently holding office shall be necessary to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of the directors present may adjourn a meeting from time to time without further notice until a quorum is present. If a quorum is present when a duly called or held meeting is convened, the directors present may continue to transact business until adjournment, even though the withdrawal of a number of directors originally present leaves less than the proportion or number otherwise required for a quorum.
Section 2.09 Acts of the Board of Directors. Except as otherwise required by law or specified in the Articles of Incorporation of the Corporation, the Board of Directors shall take action by the affirmative vote of a majority of the directors present at a duly held meeting.
Section 2.10 Participation by Remote Communication. A director may participate in a Board of Directors meeting by any means of remote communication through which the director,
other directors so participating and all directors physically present at the meeting, may participate with each other during the meeting. A director so participating shall be deemed present in person at the meeting.
Section 2.11 Absent Directors. A director of the Corporation may give advance written consent or opposition to a proposal to be acted on at a Board of Directors meeting. If the director is not present at the meeting, consent or opposition to a proposal does not constitute presence for purposes of determining the existence of a quorum, but consent or opposition shall be counted as a vote in favor of or against the proposal and shall be entered in the minutes or other record of action at the meeting, if the proposal acted on at the meeting is substantially the same or has substantially the same effect as the proposal to which the director has consented or objected.
Section 2.12 Action Without a Meeting. An action required or permitted to be taken at a Board of Directors meeting may be taken without a meeting by written action signed, or consented to by authenticated electronic communication, by all of the directors. Any action, other than an action requiring shareholder approval, if the Articles of Incorporation so provide, may be taken by written action signed, or consented to by authenticated electronic communication, by the number of directors that would be required to take the same action at a meeting of the Board of Directors at which all directors were present. The written action is effective when signed, or consented to by authenticated electronic communication, by the required number of directors, unless a different effective time is provided in the written action. When the written action is permitted to be taken by less than all directors, all directors shall be notified immediately of its text and effective date.
Section 2.13 Committees. A resolution approved by the affirmative vote of a majority of the Board of Directors may establish committees having the authority of the Board of Directors in the management of the business of the Corporation only to the extent provided in the resolution. Committees may include a special litigation committee consisting of one or more independent directors or other independent persons to consider legal rights or remedies of the Corporation and whether those rights and remedies should be pursued. Committees, other than special litigation committees and committees formed pursuant to Section 302A.673, subdivision 1, paragraph (d) of the Minnesota Statutes, as amended from time to time, shall be subject at all times to the direction and control of the Board of Directors. A committee shall consist of one or more natural persons, who need not be directors, appointed by the affirmative vote of a majority of the directors present at a duly held Board of Directors meeting. Sections 2.04, 2.06 and 2.12 hereof shall apply to committees and members of committees to the same extent as those sections apply to the Board of Directors. Minutes, if any, of committee meetings shall be made available upon request to members of the committee and to any director.
Section 2.14 Compensation. The Board of Directors may fix the compensation, if any, of directors.
ARTICLE III - OFFICERS
Section 3.01 Number and Designation. The Corporation shall have one (1) or more natural persons exercising the functions of the offices of Chief Executive Officer and Chief Financial Officer. The Board of Directors may elect or appoint such other officers or agents as it
deems necessary for the operation and management of the Corporation, with such powers, rights, duties and responsibilities as may be determined by the Board of Directors, including, without limitation, a President, one (1) or more Vice Presidents, a Secretary and a Treasurer, each of whom shall have the powers, rights, duties and responsibilities set forth in these Bylaws unless otherwise determined by the Board of Directors. Any of the offices or functions of those offices may be held by the same person.
Section 3.02 Chief Executive Officer. Unless provided otherwise by a resolution adopted by the Board of Directors, the Chief Executive Officer (a) shall have the general active management of the business of the Corporation; (b) shall, when present, preside at all meetings of the shareholders and Board of Directors; (c) shall see that all orders and resolutions of the Board of Directors are carried into effect; (d) may maintain records of and certify proceedings of the Board of Directors and shareholders; and (e) shall perform such other duties as may from time to time be assigned by the Board of Directors.
Section 3.03 Chief Financial Officer. Unless provided otherwise by a resolution adopted by the Board of Directors, the Chief Financial Officer (a) shall keep accurate financial records for the Corporation; (b) shall deposit all monies, drafts and checks in the name of and to the credit of the Corporation in such banks and depositories as the Board of Directors shall designate from time to time; (c) shall endorse for deposit all notes, checks and drafts received by the Corporation as ordered by the Board of Directors, making proper vouchers therefor; (d) shall disburse corporate funds and issue checks and drafts in the name of the Corporation, as ordered by the Board of Directors; (e) shall render to the Chief Executive Officer and the Board of Directors, whenever requested, an account of all of such officer’s transactions as Chief Financial Officer and of the financial condition of the Corporation; and (f) shall perform such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer from time to time.
Section 3.04 President. Unless otherwise determined by the Board of Directors, the President shall be the Chief Executive Officer of the Corporation. If an officer other than the President is designated Chief Executive Officer, the President shall perform such duties as may from time to time be assigned by the Board of Directors.
Section 3.05 Vice Presidents. Any one (1) or more Vice Presidents, if any, may be designated by the Board of Directors as Executive Vice Presidents or Senior Vice Presidents. During the absence or disability of the President, it shall be the duty of the highest ranking Executive Vice President, and, in the absence of any such Vice President, it shall be the duty of the highest ranking Senior Vice President or other Vice President, who shall be present at the time and able to act, to perform the duties of the President. The determination of who is the highest ranking of two (2) or more persons holding the same office shall, in the absence of specific designation of order of rank by the Board of Directors, be made on the basis of the earliest date of appointment or election, or in the event of simultaneous appointment or election, on the basis of the longest continuous employment by the Corporation.
Section 3.06 Secretary. Unless otherwise determined by the Board of Directors, the Secretary shall attend all meetings of the shareholders and all meetings of the Board of Directors, shall record or cause to be recorded all proceedings thereof in a book to be kept for that purpose,
and may certify such proceedings. Except as otherwise required or permitted by law or by these Bylaws, the Secretary shall give or cause to be given notice of all meetings of the shareholders and all meetings of the Board of Directors.
Section 3.07 Treasurer. Unless otherwise determined by the Board of Directors, the Treasurer shall be the Chief Financial Officer of the Corporation. If an officer other than the Treasurer is designated Chief Financial Officer, the Treasurer shall perform such duties as may from time to time be assigned by the Board of Directors.
Section 3.08 Authority and Duties. In addition to the foregoing authority and duties, all officers of the Corporation shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be designated from time to time by the Board of Directors. Unless prohibited by a resolution approved by the affirmative vote of a majority of the directors present, an officer elected or appointed by the Board of Directors may, without the approval of the Board of Directors, delegate some or all of the duties and powers of an office to other persons.
Section 3.09 Term. All officers of the Corporation shall hold office until their respective successors are chosen and have qualified or until their earlier death, resignation or removal. An officer may resign at any time by giving written notice to the Corporation. The resignation is effective without acceptance when the notice is given to the Corporation, unless a later effective date is specified in the notice. An officer may be removed at any time, with or without cause, by a resolution approved by the affirmative vote of a majority of the directors present at a duly held meeting of the Board of Directors. A vacancy in an office because of death, resignation, removal, disqualification or other cause may, or in the case of a vacancy in the office of Chief Executive Officer or Chief Financial Officer shall, be filled for the unexpired portion of the term by the Board of Directors.
Section 3.10 Salaries. The salaries, if any, of all officers of the Corporation shall be fixed by the Board of Directors or by the Chief Executive Officer if authorized by the Board of Directors.
ARTICLE IV - CERTIFICATE OF SHARES
Section 4.01 Certificate of Shares. Each certificate of shares of the Corporation shall be signed by the Chief Executive Officer, or the President or any Vice President, and the Chief Financial Officer, or the Secretary or any Assistant Secretary, but when a certificate is signed by a transfer agent or a registrar, the signature of any such officer upon such certificate may be facsimiles, engraved or printed. If a person signs or has a facsimile signature placed upon a certificate while an officer, transfer agent or registrar of the Corporation, the certificate may be issued by the Corporation, even if the person has ceased to serve in that capacity before the certificate is issued, with the same effect as if the person had that capacity at the date of its issue. A certificate representing shares issued by the Corporation shall, if the Corporation is authorized to issue shares of more than one (1) class or series, set forth upon the face or back of the certificate, or shall state that the Corporation will furnish to any shareholder upon request and without charge, a full statement of the designations, preferences, limitations and relative rights of the shares of each class or series authorized to be issued, so far as they have been determined, and the authority of the Board of Directors to determine the relative rights and preferences of subsequent classes or series.
Section 4.02 Declaration of Dividends and Distributions. The Board of Directors shall have the authority to declare dividends and other distributions upon the shares of the Corporation to the extent permitted by law.
Section 4.03 Transfer of Shares. Shares of the Corporation may be transferred only on the books of the Corporation by the holder thereof, in person or by such person’s attorney. In the case of certificated shares, shares shall be transferred only upon surrender and cancellation of certificates for a like number of shares. The Board of Directors, however, may appoint one or more transfer agents and registrars to maintain the share records of the Corporation and to effect transfers of shares.
Section 4.04 Record Date. The Board of Directors may fix a time, not exceeding sixty (60) days preceding the date fixed for the payment of any dividend or other distribution, as a record date for the determination of the shareholders entitled to receive payment of such dividend or other distribution, and in such case only shareholders of record on the date so fixed shall be entitled to receive payment of such dividend or other distribution, notwithstanding any transfer of any shares on the books of the Corporation after any record date so fixed.
ARTICLE V - INDEMNIFICATION
Section 5.01 Indemnification. The Corporation shall indemnify its officers and directors for such expenses and liabilities, in such manner, under such circumstances, and to such extent, as required or permitted by Minnesota Statutes, Section 302A.521, as amended from time to time, or as required or permitted by other provisions of law.
Section 5.02 Insurance. The Corporation may purchase and maintain insurance on behalf of any person in such person’s official capacity against any liability asserted against and incurred by such person in or arising from that capacity, whether or not the Corporation would otherwise be required to indemnify the person against the liability.
ARTICLE VI - MISCELLANEOUS
Section 6.01 Execution of Instruments. All deeds, mortgages, bonds, checks, contracts and other instruments pertaining to the business and affairs of the Corporation shall be signed on behalf of the Corporation by the Chief Executive Officer, or the President, or any Vice President, or by such other person or persons as may be designated from time to time by the Board of Directors. If a document must be executed by persons holding different offices or functions and one (1) person holds such offices or exercises such functions, that person may execute the document in more than one (1) capacity if the document indicates each such capacity.
Section 6.02 Advances. The Corporation may, without a vote of the directors, advance money to its directors, officers or employees to cover expenses that can reasonably be anticipated to be incurred by them in the performance of their duties and for which they would be entitled to reimbursement in the absence of an advance.
Section 6.03 Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors.
Section 6.04 Corporate Seal. The Corporation shall have no corporate seal.
ARTICLE VII - AMENDMENTS
Section 7.01 Amendments. Subject to the power of shareholders to adopt, amend or repeal these Bylaws as provided in Minnesota Statutes Section 302A.181, subdivision 3, any Bylaw may be amended or repealed by the Board of Directors at any meeting, provided that, after adoption of the initial Bylaws, the Board of Directors shall not adopt, amend or repeal any Bylaw fixing a quorum for meetings of shareholders, prescribing procedures for removing directors or filling vacancies in the Board of Directors, or fixing the number of directors or their classifications, qualifications or terms of office. The Board of Directors may adopt or amend a Bylaw that increases the number of directors.
Exhibit 99.2
JAB BEECH INC. COMPLETES ACQUISITION OF CARIBOU COFFEE COMPANY, INC.
MINNEAPOLIS, MN – January 24, 2013 —JAB Beech Inc. (“JAB”), a member of the Joh. A Benckiser Group, today announced the successful completion of its previously announced acquisition of Caribou Coffee Company, Inc. (Nasdaq: CBOU) (“Caribou”) for $16 per share, or approximately $340 million in the aggregate.
JAB acquired Caribou through a tender offer and subsequent merger. As a result of the completion of the merger, Caribou has become a wholly-owned subsidiary of JAB and the common stock of Caribou ceased trading on the NASDAQ Global Select Market on January 24, 2013.
BDT Capital Partners (“BDTCP”), a Chicago-based merchant bank that provides long-term private capital solutions to closely held companies, is a minority investor in this transaction alongside the Joh. A Benckiser Group. In addition to BDTCP’s capital investment, BDT & Company served as a financial co-advisor to the Joh. A Benckiser Group with Morgan Stanley & Co. LLC. Skadden, Arps, Slate, Meagher & Flom LLP acted as legal advisor to the Joh. A Benckiser Group in this transaction. Moelis & Co LLC served as an exclusive financial advisor to Caribou in connection with this transaction and Briggs and Morgan P.A. acted as Caribou’s legal advisor.
About The Joh. A Benckiser Group
The Joh. A Benckiser Group is a privately held group of affiliated companies focused on long term investments in companies with premium brands in the Fast Moving Consumer Goods category. The Joh. A Benckiser Group’s portfolio includes a majority stake in Coty Inc., a global leader in beauty, a majority stake in Peet’s Coffee & Tea Inc., a premier specialty coffee and tea company, a minority stake in Reckitt Benckiser Group PLC, a global leader in health, hygiene and home products and a minority investment in D.E Master Blenders 1753 N.V., an international coffee and tea company. The Joh. A Benckiser Group also owns Labelux, a luxury leather goods company with brands such as Jimmy Choo, Bally and Belstaff. The assets of the group are overseen by its three senior partners, Peter Harf, Bart Becht and Olivier Goudet.
About BDT Capital Partners
BDT Capital Partners provides family-owned and entrepreneurially led companies with long-term capital, solutions-based advice and access to an extensive network of world-class family businesses. Based in Chicago, BDT Capital Partners is a merchant bank structured to provide advice and capital that address the unique needs of closely held businesses. The firm has a $3 billion investment fund as well as an investor base with the ability to co-invest significant additional capital. Through its advisory business, BDT & Company works with family businesses to pursue their long-term strategic and financial objectives.
Forward-Looking Statements
This press release contains forward-looking statements that are not historical facts and are subject to risks and uncertainties that could cause actual results to differ materially from those described. All statements other than statements of historical fact are statements that could be deemed forward-looking statements. Forward-looking statements in this communication include statements regarding the anticipated benefits of the transaction; statements regarding the expected timing of the completion of the transaction; and any statements of assumptions underlying any of the foregoing. All forward-looking statements are based largely on current expectations and beliefs concerning future events, approvals and transactions that are subject to substantial risks and uncertainties. Factors that may cause or contribute to the actual results or outcomes being different from those expressed or implied in the forward-looking statements include are discussed in the Company’s filings with the SEC, including in its periodic reports filed on Form 10-K and Form 10-Q with the SEC. Copies of the Company’s filings with the SEC may be obtained at the “Investors” section of the Company’s website at www.cariboucoffee.com. The forward-looking statements made in this communication are made only as of the date of this communication, and the Company undertakes no obligation to update them to reflect subsequent events or circumstances.
Media Contacts:
Tom Johnson/Chuck Burgess
Abernathy MacGregor Group
tbj@abmac.com/clb@abmac.com
(212) 371-5999
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