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As filed with the
Securities and Exchange Commission on July 9, 2010
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Registration No.
333-
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
PEET’S
COFFEE & TEA, INC.
(Exact
name of Registrant as specified in its charter)
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Washington
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91-0863396
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(State
or other jurisdiction of Incorporation or organization)
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(I.R.S.
Employer Identification No.)
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1400
Park Avenue
Emeryville,
California 94608-3520
(510)
594-2100
(Address
of principal executive offices) (Zip code)
Peet’s
Coffee & Tea, Inc. 2010 Equity Incentive Plan
Peet’s
Coffee & Tea, Inc. 2000 Employee Stock Purchase Plan
_____________________________________
(Full
title of the plan)
Patrick
J. O’Dea
President
and Chief Executive Officer
Peet’s
Coffee & Tea, Inc.
1400
Park Avenue
Emeryville,
California 94608-3520
(510)
594-2100
(Name and
address of agent for service) (Telephone number, including area code, of agent
for service)
Copies
to:
Kenneth
L. Guernsey, Esq.
Cooley
LLP
101
California Street, 5
th
Floor
San
Francisco, CA 94111
(415)
693-2000
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer
¨
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Accelerated
filer
ý
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Non-accelerated
filer
¨
(Do not check if
a smaller reporting company)
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Smaller
reporting company
¨
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be Registered
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Amount
to be Registered (1)
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Proposed
Maximum
Offering
Price
per Share (2)
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Proposed
Maximum
Aggregate
Offering
Price (2)
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Amount
of
Registration
Fee
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Common
Stock,
no
par value
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3,209,582
shares (3)
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$38.025
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$122,044,355.55
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$8,701.76
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(1)
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Pursuant
to Rule 416(a) promulgated under the Securities Act of 1933, as amended
(the “Securities Act”), this Registration Statement shall also cover any
additional shares of Registrant’s Common Stock that become issuable under
the plan set forth herein by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt of
consideration that increases the number of outstanding shares of
Registrant’s Common Stock.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration fee
pursuant to Rule 457(h) promulgated under the Securities Act. The offering
price per share and the aggregate offering price are based upon the
average of the high and low prices of the Registrant’s Common Stock as
reported on the NASDAQ Global Select Market on July 7,
2010.
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(3)
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Represents
(i) 700,000 shares of Common Stock reserved for future grant under
the Registrant’s 2010 Equity Incentive Plan (the “2010 EIP”), (ii)
2,265,436 shares of Common Stock reserved for issuance upon the exercise
of outstanding options granted under Registrant’s Amended and Restated
2000 Equity Incentive Plan, as amended (the “Outstanding Awards”), as of
May 18, 2010, the date of adoption of the 2010 EIP, which may become
available for issuance under the 2010 EIP, and (iii) 244,146 shares of
stock issuable under the Registrant’s 2000 Employee Stock Purchase Plan
(“ESPP”).
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN
INFORMATION.
Not
required to be filed with this Registration Statement.
ITEM 2. REGISTRANT
INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not
required to be filed with this Registration Statement.
PART
II
ITEM 3. INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE.
The
following documents filed by Peet’s Coffee & Tea, Inc. (the “Company”, or
the “Registrant”) with the Securities and Exchange Commission are incorporated
by reference into this Registration Statement:
(a)
The
Company’s annual report on Form 10-K for the fiscal year ended January 3, 2010,
filed with the Securities and Exchange Commission on March 19, 2010 (File No.
000-32233).
(b)
The
Company’s current report on Form 8-K, filed with the Securities and Exchange
Commission on February 17, 2010 (File No. 000-32233).
(c)
The
Company’s current report on Form 8-K, filed with the Securities and Exchange
Commission on April 2, 2010 (File No. 000-32233).
(d)
The
Company’s current report on Form 8-K, filed with the Securities and Exchange
Commission on April 14, 2010 (File No. 000-32233).
(e)
The
Company’s quarterly report on Form 10-Q for the quarter ended April 4, 2010,
filed with the Securities and Exchange Commission on May 13, 2010 (File No.
000-32233).
(f)
The
Company’s current report on Form 8-K, filed with the Securities and Exchange
Commission on May 24, 2010 (File No. 000-32233).
(g)
The
Company’s current report on Form 8-K, filed with the Securities and Exchange
Commission on July 9, 2010 (File No. 000-32233).
(h)
The
description of the Company’s Common Stock which is contained in the Company’s
Registration Statement on Form S-1, as amended (File No. 333-47976), filed with
the Securities and Exchange Commission on October 13, 2000 and incorporated by
reference to Item 1 of the Registration Statement on Form 8-A, as amended
(File No. 000-32233) filed by the Company under the Exchange Act with the
Securities and Exchange Commission on January 18, 2001, including any amendment
or report filed for the purpose of updating such description.
(i)
All
other reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part of this Registration
Statement from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION
OF SECURITIES
Not
applicable.
ITEM 5. INTERESTS
OF NAMED EXPERTS AND COUNSEL
Not
applicable.
ITEM 6. INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Sections
23B.8.500 through 23B.8.600 of the Washington Business Corporation Act (“WBCA”)
authorize a court to award, or a corporation’s board of directors to grant,
indemnification to directors and officers on terms sufficiently broad to permit
indemnification under certain circumstances for liabilities arising under the
Securities Act. The directors and officers of the corporation also may be
indemnified against liability they may incur for serving in that capacity
pursuant to a liability insurance policy maintained by the registrant for this
purpose. Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director’s liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, knowing violations of law or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Article VI of the Company’s articles of incorporation provides for
indemnification of its directors, except for (i) acts or omissions that
involve intentional misconduct or a knowing violation of law by the director,
(ii) conduct violating WBCA 23B.08.310, or (iii) any transaction from
which the director will personally receive a benefit in money, property or
services to which the director is not legally entitled. The Company’s articles
of incorporation further provide that if the WBCA is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of the Company’s directors shall be deemed
eliminated or limited to the fullest extent permitted by the WBCA, as so
amended. Article XI of the Company’s bylaws provides for indemnification of its
directors and executive officers, under specified circumstances, except for
(i) in connection with a proceeding by or in the right of the Company in
which a director or executive officer is adjudged liable to the Company, or
(ii) in connection with any other proceeding charging improper personal
benefit to the director or executive officer in which the director or executive
officer is adjudged liable on the basis on the basis that they received an
improper personal benefit.
The
Company has also entered into indemnity agreements with certain officers and
directors, which, among other things, provide for indemnification of the
Company’s directors and executive officers for expenses, judgments, fines and
settlement amounts incurred by any such person in any action or proceeding
arising out of such person’s services as a director or executive officer or at
the Company’s request to the full extent permitted by Washington law. In
addition, the Company maintains directors’ and officers’ liability insurance for
the benefit of its officers and directors.
The above
discussion of the Washington law and of the Company’s articles of incorporation,
bylaws, and indemnity agreements is not intended to be exhaustive and is
qualified in its entirety by such statutes, articles of incorporation, bylaws
and indemnity agreements.
ITEM 7. EXEMPTION
FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM 8. EXHIBITS
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Exhibit
Number
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Description
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4.1
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Form
of common stock certificate. Incorporated by reference to Exhibit 4.1 to
the Company’s Amendment No. 2 to its Registration Statement on Form S-1
filed with the Securities and Exchange Commission on December 22, 2000
(File. No. 333-47976).
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5.1
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Opinion
of Cooley
llp
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21.1
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Subsidiaries
of the Registrant. Incorporated by reference to Exhibit 21.1 to
the Company’s annual report on Form 10-K for the fiscal year ended January
3, 2010, filed with the Securities and Exchange Commission on March 19,
2010 (File No. 000-32233).
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23.1
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Consent
of Cooley
llp
(included in Exhibit 5.1).
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23.2
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Consent
of Deloitte & Touche LLP (filed herewith).
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24.1
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Power
of Attorney (included on the signature page of this
Form S-8).
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99.1
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Peet’s
Coffee & Tea, Inc. 2010 Equity Incentive Plan. Incorporated
by reference to Exhibit 10.1 to the Company’s current report on Form 8-K
filed with the Securities and Exchange Commission on May 24, 2010 (File.
No. 000-32233).
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99.2
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Forms
of Stock Option Grant Notice and Stock Option Agreement under 2010 Equity
Incentive Plan. Incorporated by reference to Exhibit 10.2 to the Company’s
current report on Form 8-K filed with the Securities and Exchange
Commission on May 24, 2010 (File. No. 000-32233).
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99.3
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Forms
of Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement
under 2010 Equity Incentive Plan. Incorporated by reference to Exhibit
10.3 to the Company’s current report on Form 8-K filed with the Securities
and Exchange Commission on May 24, 2010 (File. No.
000-32233).
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99.4
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2000
Employee Stock Purchase Plan and form of Offering. Incorporated by
reference to Exhibit 10.11 to the Company’s Amendment No. 2 to its
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission on December 22, 2000 (File. No.
333-47957)
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ITEM 9. UNDERTAKINGS
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1.
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The
undersigned registrant hereby
undertakes:
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(a)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)
To
include any prospectus required by section 10(a)(3) of the Securities
Act;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement.
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided, however,
that
paragraphs (a)(i) and (a)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(b)
That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(d)
That,
for the purpose of determining liability of the registrant under the Securities
Act to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii)
Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv)
Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
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2.
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The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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3.
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Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such
issue.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Emeryville, State of California, on July 8,
2010.
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Peet’s Coffee & Tea,
Inc.
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By:
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/s/
Patrick
J. O’Dea
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Patrick
J. O’Dea
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President
and Chief Executive Officer
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POWER
OF ATTORNEY
Know All
Persons By These Presents
, that each person whose signature appears below
constitutes and appoints Patrick J. O’Dea, and Thomas P. Cawley, and each or any
one of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Patrick J. O’Dea
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Patrick
J. O’Dea
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President,
Chief Executive Officer and Director (Principal Executive
Officer)
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July
8, 2010
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/s/
Thomas P. Cawley
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Thomas
P. Cawley
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Vice
President, Chief Financial Officer and Secretary (Principal Financial and
Accounting Officer)
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July
8, 2010
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Chairman
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Jean-Michel
Valette
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July
8, 2010
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/s/
Gerald Baldwin
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Director
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Gerald
Baldwin
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July
8, 2010
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Director
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Hilary
Billings
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July
8, 2010
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Director
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David
Deno
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July
__, 2010
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/s/
Ted W. Hall
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Director
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Ted
W. Hall
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July
8, 2010
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/s/
Michael Linton
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Director
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Michael
Linton
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July
6, 2010
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/s/
Elizabeth Sartain
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Director
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Elizabeth
Sartain
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July
8, 2010
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EXHIBIT
INDEX
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Exhibit
Number
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Description
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4.1
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Form
of common stock certificate. Incorporated by reference to Exhibit 4.1 to
the Company’s Amendment No. 2 to its Registration Statement on Form S-1
filed with the Securities and Exchange Commission on December 22, 2000
(File. No. 333-47976).
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5.1
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Opinion
of Cooley
llp
.
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21.1
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Subsidiaries
of the Registrant. Incorporated by reference to Exhibit 21.1 to
the Company’s annual report on Form 10-K for the fiscal year ended January
3, 2010, filed with the Securities and Exchange Commission on March 19,
2010 (File No. 000-32233).
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23.1
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Consent
of Cooley
llp
(included in Exhibit 5.1).
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23.2
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Consent
of Deloitte & Touche LLP (filed herewith).
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24.1
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Power
of Attorney (included on the signature page of this
Form S-8).
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99.1
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Peet’s
Coffee & Tea, Inc. 2010 Equity Incentive Plan. Incorporated
by reference to Exhibit 10.1 to the Company’s current report on Form 8-K
filed with the Securities and Exchange Commission on May 24, 2010 (File.
No. 000-32233).
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99.2
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Forms
of Stock Option Grant Notice and Stock Option Agreement under 2010 Equity
Incentive Plan. Incorporated by reference to Exhibit 10.2 to the Company’s
current report on Form 8-K filed with the Securities and Exchange
Commission on May 24, 2010 (File. No. 000-32233).
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99.3
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Forms
of Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement
under 2010 Equity Incentive Plan. Incorporated by reference to Exhibit
10.3 to the Company’s current report on Form 8-K filed with the Securities
and Exchange Commission on May 24, 2010 (File. No.
000-32233).
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99.4
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2000
Employee Stock Purchase Plan and form of Offering. Incorporated by
reference to Exhibit 10.11 to the Company’s Amendment No. 2 to its
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission on December 22, 2000 (File. No.
333-47957)
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