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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
Tender Offer Statement under Section 14(d)(1) or
13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
Dreyer’s Grand Ice Cream Holdings, Inc.
(Name of Subject Company (issuer))
Nestlé S.A.
Nestlé Holdings, Inc.
Nestlé Ice Holdings, Inc.
(Names of Filing Persons (identifying status as offeror, issuer
or other person))
Class A Callable Puttable Common Stock, par value
$0.01 per Share
(Title of Class of Securities)
261877104
(CUSIP Number of Class of Securities)
Kristin Adrian, Esq.
Senior Vice President, General Counsel and Secretary
Nestlé Holdings, Inc.
c/o Nestlé USA, Inc.
800 North Brand Boulevard
Glendale, California 91203
(818) 549-6000
(Name, address, and telephone numbers of person authorized to
receive notices and communications on behalf of filing persons)
With a copy to:
Joe C. Sorenson, Esq.
Edward H. Batts, Esq.
DLA Piper Rudnick Gray Cary US LLP
2000 University Avenue
East Palo Alto, California 94303
(650) 833-2000
Calculation of Filing Fee:
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| Transaction valuation(1) |
Amount of filing fee(2) |
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| $ 2,638,466,300.70 |
$ 310,547.48 |
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| (1) |
The transaction valuation is estimated solely for purposes of
calculating the filing fee pursuant to Rule 0-11(d). The
calculation assumes the purchase of all outstanding shares of
Dreyer’s Grand Ice Cream Holdings, Inc. Class A
Callable Puttable Common Stock, par value $0.01 (the
“Shares”), not beneficially owned by
Nestlé S.A. or its subsidiaries
(“Nestlé”) at a purchase price of $83.10
per Share, in cash. As of November 21, 2005, there
were 31,750,497 outstanding Shares on a fully diluted basis
(treating as outstanding, options subject to issuance at $83.10
or less) not beneficially owned by Nestlé. |
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| (2) |
The amount of the filing fee is calculated in accordance with
Regulation 240.0-11 of the Securities Exchange Act of 1934,
as amended, and Fee Rate Advisory No. 6 issued by the
Securities and Exchange Commission on December 9, 2004.
Such fee is equal to 0.01177 percent of the value of the
transaction. |
1
þ Check the box if
any part of the fee is offset as provided by
Rule 0-11(a)(2) 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.
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Amount Previously Paid:
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$310,547.48 |
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Form or Registration No.:
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SCHEDULE TO-T |
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Filing Party:
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Nestlé S.A., CIK #0000792990 |
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Date Filed:
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November 22, 2005 |
o 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:
þ third-party
tender offer subject to Rule 14d-1.
o issuer
tender offer subject to Rule 13e-4.
þ going-private
transaction subject to Rule 13e-3.
o 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: o
This
filing relates to certain provisions set forth in the Restated
Certificate of Incorporation (the “Restated
Certificate”) of Dreyer’s Grand Ice Cream
Holdings, Inc. (“Dreyer’s”) under which
the holders of Class A Callable Puttable Common Stock (the
“Class A Shares”) of Dreyer’s have
the right to require Dreyer’s to purchase the Class A
Shares during certain periods specified in the Restated
Certificate. The tender offer which is contemplated by this
filing commenced on December 1, 2005.
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| Item 1. |
Summary Term Sheet |
Reference is made to the information set forth under Summary
Term Sheet and Questions and Answers About the Put Right
in the Notice of Put Right, which is filed herewith as
Exhibit (a)(1)(i) and incorporated herein by reference.
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| Item 2. |
Subject Company Information |
(a) Reference is made to the information set forth under
Certain Information Concerning Dreyer’s in the
Notice of Put Right, which is incorporated herein by reference.
(b) Reference is made to the information set forth under
Background of Dreyer’s in the Notice of Put Right,
which is incorporated herein by reference.
(c) Reference is made to the information set forth under
Certain Information Concerning Dreyer’s —
Price Range of Class A Shares; Dividends in the Notice of
Put Right, which is incorporated herein by reference.
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| Item 3. |
Identity and Background of Filing Person |
(a) Reference is made to the information set forth under
Certain Information Concerning the Nestlé Entities
in the Notice of Put Right, which is incorporated herein by
reference.
(b) Reference is made to the information set forth under
Certain Information Concerning the Nestlé Entities
and Schedule A (“Information Concerning the
Executive Officers and Directors of Nestlé”) in
the Notice of Put Right, which is incorporated herein by
reference.
2
(c) Reference is made to the information set forth under
Certain Information Concerning the Nestlé Entities
and Schedule A (“Information Concerning the
Executive Officers and Directors of Nestlé”) in
the Notice of Put Right, which is incorporated herein by
reference.
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| Item 4. |
Terms of the Transaction |
(a) Reference is made to the information set forth under
Summary Term Sheet, Background of Dreyer’s, Special
Factors, The Put Right, Miscellaneous Provisions Related to the
Put Right, the Call Right and a Triggering Event, and Treatment
of Special Categories of Dreyer’s Securities in the
Notice of Put Right, which is incorporated herein by reference.
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| Item 5. |
Past Contacts, Transactions, Negotiations and Agreements |
(a) Reference is made to the information set forth under
Special Factors — Going Private Rules, —
Background of Nestlé’s Investment in Dreyer’s
and — Purpose of the Put Right and
Nestlé’s Plans for Dreyer’s and
Schedule A (“Information Concerning the Executive
Officers and Directors of Nestlé”) in the Notice
of Put Right, which is incorporated herein by reference.
(b) Reference is made to the information set forth under
Special Factors — Going Private Rules, —
Background of Nestlé’s Investment in Dreyer’s
and — Purpose of the Put Right and
Nestlé’s Plans for Dreyer’s and
Schedule A (“Information Concerning the Executive
Officers and Directors of Nestlé”) in the Notice
of Put Right, which is incorporated herein by reference.
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| Item 6. |
Purposes of the Transaction and Plans or Proposals |
(a) and (c) (1) — (7) Reference is made
to the information set forth under Background of
Dreyer’s, Special Factors — Going Private
Rules, — Background of Nestlé’s Investment
in Dreyer’s, — Purpose of the Put Right and
Nestlé’s Plans for Dreyer’s and
— Certain Effects of the Exercise of the Put Right
and Certain Legal Matters — Short
Form Merger Appraisal Rights in the Notice of
Put Right, which is incorporated herein by reference.
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| Item 7. |
Source and Amount of Funds or Other Consideration |
(a) and (b) Reference is made to the information set
forth under Source and Amount of Funds in the Notice of
Put Right, which is incorporated herein by reference.
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| Item 8. |
Interest in Securities of the Subject Company |
(a) and (b) Reference is made to the information set
forth under Special Factors — Background of
Nestlé’s Investment in Dreyer’s in the Notice
of Put Right, which is incorporated herein by reference.
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| Item 9. |
Persons/ Assets, Retained, Employed, Compensated or Used |
(a) Reference is made to the information set forth under
Fees and Expenses; Persons Used in the Notice of Put
Right, which is incorporated by reference.
(b) Reference is made to the information set forth under
Fees and Expenses; Persons Used in the Notice of Put
Right, which is incorporated by reference.
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| Item 10. |
Financial Statements |
(a) The financial statements of Nestlé are not
material to the purchase of Class A Shares under the Put
Right.
(b) The pro forma financial statements of Nestlé are
not material to the purchase of Class A Shares under the
Put Right.
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| Item 11. |
Additional Information |
(a)(1) None.
(a)(2) Reference is made to the information under The Put
Right, Procedures for Exercising the Put Right, Treatment of
Special Categories of Dreyer’s Securities, Fees and
Expenses; Persons Used and Certain Legal Matters in
the Notice of Put Right, which is incorporated herein by
reference.
(a)(3) Reference is made to the information set forth under
Certain Legal Matters — Antitrust Compliance
and State Takeover Laws in the Notice of Put Right,
which is incorporated herein by reference.
(a)(4) None.
(a)(5) None.
(b) Reference is made to the Letter of Transmittal, which
is incorporated herein by reference.
(a)(1)(i) Notice of Put Right dated December 1, 2005.
(a)(1)(ii) Letter of Transmittal.
(a)(1)(iii) Notice of Guaranteed Delivery.
(a)(1)(iv) Substitute W-9 Guidelines.
(a)(1)(v) Summary Advertisement as published on December 1,
2005.
(a)(1)(vi) Press Release dated November 22, 2005.
(b) None.
(c)(i) Opinion of Merrill Lynch & Co. dated November 3,
2005.
(c)(ii) Presentation to the Board of Directors of Dryer’s
Grand Ice Cream Holdings, Inc. Regarding Fairness of the
Put Price of Class A Shares by Merrill Lynch & Co. on
November 3, 2005.
(d)(i) Governance Agreement dated as of June 26, 2003 by
and among Nestlé Holdings, Inc., Nestlé, S.A. and
Dreyer’s Grand Ice Cream Holdings, Inc., and Amendment
No. 1 thereto.
(d)(ii) Restated Certificate of Incorporation of Dreyer’s
Grand Ice Cream Holdings, Inc.
(d)(iii) Amended and Restated Sublicense Agreement for Other
Pillsbury Proprietary Information, dated as of September 1,
2002, by and between Nestlé USA-Prepared Foods Division,
Inc. and Nestlé Ice Cream Company, LLC.
(d)(iv) Amended and Restated Sublicense Agreement for Pillsbury
Trademarks and Technology, dated as of September 1, 2002,
by and among Société des Produits Nestlé S.A.,
Nestec Ltd. and Nestlé Ice Cream Company, LLC.
(d)(v) Amended and Restated Other Nestlé USA Proprietary
Information License Agreement, dated September 1, 2002, by
and between Nestlé USA — Prepared Foods Division,
Inc. and Nestlé Ice Cream Company, LLC.
(d)(vi) Amended and Restated Trademark/ Technology License
Agreement, dated September 1, 2002, by and among
Nestlé S.A., Nestec Ltd., Société des Produits
Nestlé S.A., and Nestlé Ice Cream Company, LLC.
(d)(vii) Nestlé S.A. — Dreyer’s Grand Ice
Cream Holdings, Inc. Bridge Loan Facility for up to
USD 400 million dated June 11, 2003, as amended
on October 22, 2003, March 23, 2004, June 26,
2004, December 6, 2004 and May 23, 2005 (which
increased the amount of the facility to
USD 700 million).
(d)(viii) Demand Loan Facility dated May 24, 2004, by
and between Nestlé Capital Corporation and Dreyer’s
Grand Ice Cream Holdings, Inc. for up to
USD 50 million, with Assignment by Nestlé S.A. to
Nestlé Capital Corporation of a portion of its rights and
obligations under the Bridge Loan Facility dated
June 11, 2003, as amended.
(e) None.
(f) None.
(g) None.
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(h) None.
99.1 Joint Filing Agreement
99.2 Power of Attorney
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| Item 13. |
Information Required by Schedule 13E-3 |
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Item 2. Subject Company Information |
(d) Reference is made to the information set forth under
Certain Information Concerning Dreyer’s —
Price Range of Class A Shares; Dividends in the Notice
of Put Right, which is incorporated herein by reference.
(e) Not applicable.
(f) Not applicable.
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Item 4. Terms of the Transaction |
(c) None.
(d) Reference is made to the information set forth under
Special Factors — Going Private Rules and
Certain Legal Matters — Short Form Merger
Appraisal Rights in the Notice of Put Right, which is
incorporated herein by reference.
(e) None.
(f) Not applicable.
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Item 5. Past Contacts, Transactions, Negotiations and
Agreements |
(c) Reference is made to the information set forth under
Background of Dreyer’s and Special Factors —
Background of Nestlé’s Investment in Dreyer’s
in the Notice of Put Right, which is incorporated herein by
reference.
(e) Reference is made to the information set forth under
Background of Dreyer’s, The Put Right and Special
Factors — Background of Nestlé’s Investment
in Dreyer’s in the Notice of Put Right, which is
incorporated herein by reference.
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Item 6. Purposes of the Transaction and Plans or
Proposals |
(b) Reference is made to the information set forth under
Special Factors — Purpose of the Put Right and
Nestlé’s Plans for Dreyer’s and —
Certain Effects of the Exercise of the Put Right in the
Notice of Put Right, which is incorporated herein by reference.
(c)(8) Reference is made to the information set forth under
Special Factors — Certain Effects of the Exercise
of the Put Right in the Notice of Put Right, which is
incorporated herein by reference.
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Item 7. Purposes, Alternatives, Reasons and Effects |
(a), (b) and (c) Reference is made to the information
set forth under Background of Dreyer’s, The Put Right,
Special Factors — Background of Nestlé’s
Investment in Dreyer’s, — Purpose of the
Put Right and Nestlé’s Plans for
Dreyer’s, — Certain Effects of the
Exercise of the Put Right and —
Nestlé’s and Dreyer’s Positions Regarding the
Fairness of the Put Right in the Notice of Put Right, which
is incorporated herein by reference.
(d) Reference is made to the information set forth under
Special Factors — Going Private Rules
and — Certain Effects of the Exercise of the
Put Right and Certain Legal Matters — Short
Form Merger Appraisal Rights in the Notice of Put
Right, which is incorporated herein by reference.
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Item 8. Fairness of the Transaction |
(a), (b), (c), (d), (e) and (f) Reference is made to
the information set forth under Background of Dreyer’s,
and Special Factors — Background of
Nestlé’s Investment in Dreyer’s, —
Nestlé’s and Dreyer’s Positions Regarding the
Fairness of the Put Right, and — Fairness
Opinion Regarding the Purchase Price in the Notice of Put
Right, which is incorporated herein by reference.
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Item 9. Reports, Opinions, Appraisals and Negotiations |
(a), (b) and (c) Reference is made to the information
set forth under Special Factors —
Nestlé’s and Dreyer’s Positions Regarding the
Fairness of the Put Right and — Fairness
Opinion Regarding the Purchase Price in the Notice of Put
Right, which is incorporated herein by reference.
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Item 10. Source and Amount of Funds or Other
Consideration |
(c) Reference is made to the information set forth under
Source and Amount of Funds in the Notice of Put Right,
which is incorporated herein by reference.
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Item 12. The Solicitation or Recommendation |
(d) Reference is made to the information set forth under
Certain Information Concerning Dreyer’s in the
Notice of Put Right, which is incorporated herein by reference.
(e) Reference is made to the information set forth under
Special Factors — Nestlé’s and
Dreyer’s Positions Regarding the Fairness of the Put Right
in the Notice of Put Right, which is incorporated herein by
reference. Except as set forth therein, the filing persons are
not aware of any officer, director or affiliate of Dreyer’s
or any person listed on Schedule A (“Information
Concerning the Executive Officers and Directors of
Nestlé”) to the Notice of Put Right who has made a
recommendation either in support of or against the exercise of
the Put Right.
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Item 14. Persons/Assets Retained, Employed,
Compensated or Used |
(b) None.
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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.
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Nestlé Ice
Holdings, Inc. |
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Dated: December 1, 2005
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By: /s/ Kristin Adrian
Name: Kristin Adrian
Title: Assistant Secretary |
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Nestlé Holdings,
Inc. |
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Dated: December 1, 2005
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By: /s/ Kristin Adrian
Name: Kristin Adrian
Title: Senior Vice
President,
General
Counsel & Secretary |
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Nestlé
S.A. |
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Dated: December 1, 2005
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By: /s/ Kristin Adrian
Kristin Adrian,
attorney-in-fact for
Name: H.P. Frick
Title: Senior Vice President
and
General
Counsel of Nestlé S.A. |
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Index to Exhibits
(a)(1)(i) Notice of Put Right dated December 1, 2005.
(a)(1)(ii) Letter of
Transmittal.(1)
(a)(1)(iii) Notice of Guaranteed Delivery.
(a)(1)(iv) Substitute W-9
Guidelines.(1)
(a)(1)(v) Summary Advertisement as published on December 1,
2005.
(a)(1)(vi) Press Release dated November 22,
2005.(1)
(c)(i) Opinion of Merrill Lynch & Co. dated
November 3, 2005.
(2)
(c)(ii) Presentation to the Board of Directors of Dreyer’s
Grand Ice Cream Holdings, Inc. Regarding Fairness of the
Put Price of Class A Shares by Merrill Lynch & Co. on
November 3, 2005.
(3)
(d)(i) Governance Agreement dated as of June 26, 2003 by
and among Nestlé Holdings, Inc., Nestlé, S.A. and
Dreyer’s Grand Ice Cream Holdings, Inc., and Amendment
No. 1 thereto.
(4)
(d) (ii) Restated Certificate of Incorporation of
Dreyer’s Grand Ice Cream Holdings, Inc.
(5)
(d)(iii) Amended and Restated Sublicense Agreement for Other
Pillsbury Proprietary Information, dated as of September 1,
2002, by and between Nestlé USA — Prepared Foods
Division, Inc. and Nestlé Ice Cream Company, LLC.
(6)
(d)(iv) Amended and Restated Sublicense Agreement for Pillsbury
Trademarks and Technology, dated as of September 1, 2002,
by and among Société des Produits Nestlé S.A.,
Nestec Ltd. and Nestlé Ice Cream Company, LLC.
(7)
(d)(v) Amended and Restated Other Nestlé USA Proprietary
Information License Agreement, dated September 1, 2002, by
and between Nestlé USA — Prepared Foods Division,
Inc. and Nestlé Ice Cream Company, LLC.
(8)
(d)(vi) Amended and Restated Trademark/ Technology License
Agreement, dated September 1, 2002, by and among
Nestlé S.A., Nestec Ltd., Société des Produits
Nestlé S.A., and Nestlé Ice Cream Company, LLC.
(9)
(d)(vii) Nestlé S.A. — Dreyer’s Grand Ice
Cream Holdings, Inc. Bridge Loan Facility for up to
USD 400 million dated June 11, 2003, as amended
on October 22, 2003, March 23, 2004, June 26,
2004, December 6, 2004 and May 23, 2005 (which
increased the amount of the facility to
USD 700 million).
(10)
(d)(viii) Demand Loan Facility dated May 24, 2004, by
and between Nestlé Capital Corporation and Dreyer’s
Grand Ice Cream Holdings, Inc. for up to
USD 50 million, with Assignment by Nestlé S.A. to
Nestlé Capital Corporation of a portion of its rights and
obligations under the Bridge Loan Facility dated
June 11, 2003, as amended.
(11)
99.1 Joint Filing Agreement
(12)
99.2 Power of Attorney
(12)
(1) Incorporated by reference to the identically numbered
exhibits to Amendment Number Two to the Schedule TO filed
by Nestlé S.A., Nestlé Holdings, Inc. and Nestlé
Ice Holdings, Inc. on November 22, 2005.
(2) Incorporated by reference to Appendix C of the
Notice of Put Right which constitutes Exhibit (a)(1)(i) to
this filing.
(3) Incorporated by reference to the identically numbered
exhibit to Amendment Number One to the Schedule TO filed by
Nestlé S.A., Nestlé Holdings, Inc. and Nestlé Ice
Holdings, Inc. on November 7, 2005.
(4) Incorporated by reference to Exhibit 4.1 to
Dreyer’s Grand Ice Cream Holdings, Inc.’s Current
Report on Form 8-K filed on June 27, 2003 and
Exhibit 4.2 to Dreyer’s Grand Ice Cream Holdings,
Inc.’s Annual Report on Form 10-K for the year ended
December 27, 2003 filed on March 11, 2004.
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(5) Incorporated by reference to Exhibit 3.1 to
Dreyer’s Grand Ice Cream Holdings, Inc.’s Quarterly
Report on Form 10-Q for the quarter ended June 28,
2003 filed on August 18, 2003.
(6) Incorporated by reference to Exhibit 10.6 to
Amendment No. 4 to Form S-4 Registration Statement
(File No. 333-101052) filed on February 14, 2003.
(7) Incorporated by reference to Exhibit 10.7 to
Amendment No. 4 to Form S-4 Registration Statement
(File No. 333-101052) filed on February 14, 2003.
(8) Incorporated by reference to Exhibit 10.8 to
Amendment No. 4 to Form S-4 Registration Statement
(File No. 333-101052) filed on February 14, 2003.
(9) Incorporated by reference to Exhibit 10.9 to
Amendment No. 4 to Form S-4 Registration Statement
(File No. 333-101052) filed on February 14, 2003.
(10) Incorporated by reference to Exhibit 10.29 to
Dreyer’s Grand Ice Cream Holdings, Inc.’s Quarterly
Report on Form 10-Q for the quarter ended June 28,
2003 filed on August 18, 2003; Exhibit 10.45 to
Dreyer’s Grand Ice Cream Holdings, Inc.’s Quarterly
Report on Form 10-Q for the quarter ended
September 27, 2003 filed on November 17, 2003;
Exhibit 10.46 to Dreyer’s Grand Ice Cream Holdings,
Inc.’s Quarterly Report on Form 10-Q for the quarter
ended March 27, 2004 filed on May 6, 2004;
Exhibit 10.52 to Dreyer’s Grand Ice Cream Holdings,
Inc.’s Quarterly Report on Form 10-Q for the quarter
ended June 26, 2004 filed on August 5, 2004 and
Exhibits 10.53 and 10.54 to Dreyer’s Grand Ice Cream
Holdings, Inc.’s Quarterly Report on Form 10-Q for the
quarter ended June 25, 2005 filed on August 4, 2005.
(11) Incorporated by reference to Exhibit 10.49 to
Dreyer’s Grand Ice Cream Holdings, Inc.’s Quarterly
Report on Form 10-Q for the quarter ended June 26,
2004 filed on August 5, 2004.
(12) Incorporated by reference to identically numbered
exhibits to the Schedule TO filed by Nestlé S.A.,
Nestlé Holdings, Inc., and Nestlé Ice
Holdings, Inc. on September 7, 2005.
9