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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
(Amendment No. 1):
DIEDRICH COFFEE, INC.
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
253675
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(CUSIP Number)
Alan H. Wiener, Esq.
2603 Main Street, Suite 1300, Irvine, California 92614 (714) 851-9400
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 17, 1997
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1 (b)(3) or (4), check the following
box [ ].
Note. Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 5 Pages)
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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13D/A
CUSIP No. 253675 PAGE 2 OF 5 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John E. Martin (includes The John Martin
Revocable Trust established 6/16/92)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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7 SOLE VOTING POWER
1,233,000
NUMBER OF ----------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY ----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,233,000
PERSON ----------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,233,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
18.8%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT
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SCHEDULE 13D/A
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DIEDRICH COFFEE, INC.
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ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock of Diedrich Coffee, Inc. (sometimes
referred to herein as the "Issuer"). The principal executive offices of Diedrich
Coffee, Inc. are located at 2144 Michelson Drive, Irvine, California 92612.
ITEM 2. IDENTITY AND BACKGROUND
a) Name: John E. Martin
b) Business address: 567 San Nicolas Dr.,
Newport Beach, CA 92660
c) Principal employment: Chairman of the Boards of
Directors of Diedrich Coffee, Inc. and
Newriders, Inc.
d) Principal business of Diedrich Coffee, Inc.: operator
of coffee houses; Principal business address of
Diedrich Coffee, Inc.: 2144 Michelson Dr.,
Irvine, CA 92612
e) Principal business of Newriders, Inc.: operator of
motorcycle themed restaurants; Principal business
address of Newriders,Inc.: 1040 E. Herndon Avenue,
Suite 102, Fresno, CA
f) Criminal proceedings: None
g) Civil proceedings: None
h) Citizenship: United States
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
John E. Martin used personal funds in the aggregate amount of $141,717.20 to
acquire the 50,000 shares of common stock of the Issuer which he owned as of
November 17, 1997. It is presently anticipated that John E. Martin will use
personal funds in the amount of $999,000 to purchase from the Issuer an
additional 333,000 shares of its common stock. It is presently anticipated that
John E. Martin will use personal funds and/or other consideration permitted by
the Stock Option Plan and Agreement (the "Plan") dated November 17, 1997 between
John E. Martin and the Issuer to purchase any shares pursuant to the Plan (upon
satisfaction of certain conditions set forth in the Plan including stockholder
approval).
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ITEM 4. PURPOSE OF TRANSACTION
The purpose of the acquisition of the common stock of the Issuer by John E.
Martin is for investment purposes. In connection with the Issuer's agreement
with John E. Martin to sell to him 333,000 shares of the Issuer's common stock
and the grant to John E. Martin of options to acquire up to 850,000 shares of
the Issuer's common stock (subject to satisfaction of certain conditions
including stockholder approval) pursuant to the Plan, John E. Martin was named
Chairman of the Board of Directors of the Issuer and became a member of its
Board of Directors. On November 17, 1997, the Issuer also announced that Timothy
Ryan would become President and Chief Executive Officer of the Issuer and would
also be named to the Board of Directors of the Issuer. John E. Martin and
Timothy Ryan had previously served together as officers of Taco Bell Worldwide.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
a) John E. Martin beneficially owned or has the right to acquire 1,233,000
shares of the common stock of the Issuer, of which 50,000 shares are
presently owned by John E. Martin, 333,000 shares are subject to a
right to acquire on the part of John E. Martin and 850,000 shares may
be acquired by John Martin pursuant to the Plan (subject to the
satisfaction of certain conditions including stockholder approval). The
Issuer reported 5,391,650 shares of its common stock outstanding as of
September 10, 1997. If John E. Martin were to acquire all of the shares
which he has a right to acquire (subject, in the case of shares
acquired pursuant to the Plan, to the satisfaction of certain
conditions including stockholder approval), he would own 18.8% of the
outstanding shares of common stock of the Issuer.
b) As to shares presently owned by John E. Martin, and as to the shares
which he has the right to acquire (subject, in the case of shares
acquired pursuant to the Plan, to the satisfaction of certain
conditions including stockholder approval), he would have the sole
power with respect to the voting and disposition of those shares.
c) Not Applicable.
d) Not Applicable.
e) Not applicable.
ITEM 6. CONTRACTS, AGREEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Pursuant to a Voting Agreement and Irrevocable Proxy (the "Voting Agreement")
dated November 17, 1997 between John E. Martin, D.C.H., L.P., a California
limited partnership ("CDH") and Martin Diedrich, an individual ("MRD"), DCH and
MRD
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agreed to vote all of the shares of the Issuer owned by them (2,097,304 in the
aggregate as of November 17, 1997) for approval of the Plan at a meeting of the
Issuer's stockholders to be called for the purpose of considering approval of
the Plan.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The Voting Agreement is filed as an Exhibit hereto. The Plan and Voting
Agreement are Exhibits to the Form 8-K filed by the Issuer on November 25, 1997.
Exhibit No.
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1 Voting Agreement and Irrevocable Proxy
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: November 25, 1997
/s/ JOHN E. MARTIN
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John E. Martin
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EXHIBIT INDEX
EXHIBIT
NUMBER
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1 Voting Agreement and Irrevocable Proxy
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EXHIBIT 1
VOTING AGREEMENT AND IRREVOCABLE PROXY
This Voting Agreement And Irrevocable Proxy (the "Agreement") is made
and entered into as of the 17th day of November, 1997 by and among D.C.H., L.P.,
a California limited partnership ("DCH"), Martin R. Diedrich, an individual
("MRD") and John E. Martin, an individual ("JEM").
WHEREAS, concurrently herewith, JEM is entering into a Stock Option Plan
and Agreement (the "Option Agreement") with Diedrich Coffee, Inc., a Delaware
corporation (the "Company") pursuant to which the Company agrees to grant JEM
options to purchase 850,000 shares of the Company's common stock upon the terms
and subject to the conditions set forth in the Option Agreement;
WHEREAS, the exercisability of the options granted pursuant to the
Option Agreement are conditioned upon stockholders of the Company approving the
terms of the Option Agreement and the grant of options thereunder;
WHEREAS, DCH and MRD are stockholders of the Company (individually
referred to herein as a "Stockholder" and collectively as the "Stockholders");
and
WHEREAS, each of the Stockholders owns, of record and beneficially, the
number of shares of the Company's common stock indicated next to such
Stockholder's name on Exhibit A attached hereto (all such shares being referred
to herein as the "Shares").
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, the parties
hereto hereby agree as follows:
1. Agreement to Vote and Irrevocable Proxy.
1.1 Agreement to Vote. Each Stockholder hereby agrees that at any
meeting of the stockholders of the Company, however called, such Stockholder
shall vote all such Stockholder's Shares in favor of the Option Agreement and
the grant of options thereunder.
1.2 Irrevocably Proxy. Each Stockholder hereby constitutes and appoints
JEM its true and lawful proxy and attorney-in-fact to vote at any and all
meetings of the stockholders of the Company, whether annual or special, and at
any adjournment or adjournments or postponements of any such meetings, all
Shares which such Stockholder beneficially owns as of the date hereof, in favor
of the Option Agreement and the grant of options thereunder. Such proxy shall be
limited strictly to the power to vote such Shares in the manner set forth in the
preceding sentence and shall not extend to any other matters.
The proxy and power of attorney granted herein shall be irrevocable
during the term of this Agreement, shall be deemed to be coupled with an
interest sufficient in law to support an irrevocable proxy and shall revoke all
prior proxies granted by each Stockholder.
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Each Stockholder shall not grant any proxy to any person which conflicts
with the proxy granted herein, and any attempt to do so shall be void. The power
of attorney granted herein is a durable power of attorney and shall survive the
disability or incompetence of each Stockholder.
In the event that any Stockholder fails for any reason to vote his or
its Shares in accordance with the requirements of Section 1.1 hereof, then JEM
shall have the right to vote such shares at any meeting of the Company's
stockholders in accordance with the provisions of this Section 1.2.
2. Representations and Warranties of Each Stockholder. Each Stockholder
represents and warrants, severally and not jointly, to JEM as follows:
2.1 Ownership of Shares. The Shares are owned of record and beneficially
by such Stockholder as set forth on Exhibit A and constitute all the shares of
common stock of the Company owned of record and beneficially by such
Stockholder.
2.2 Power; Binding Agreement. Such Stockholder has full legal right,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution and delivery of this Agreement by such Stockholder, and
the consummation of the transactions contemplated hereby will not violate any
other agreement to which such Stockholder is a party including, without
limitation, any voting agreement, stockholders' agreement or voting trust. This
Agreement has been duly executed and delivered by such Stockholder and
constitutes a legal, valid and binding agreement of such Stockholder,
enforceable in accordance with its terms to the fullest extent permitted by law,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally or by general
principles of equity.
2.3 Shares. Such Stockholder's Shares are fully paid. On the date hereof
such Stockholder is, and on the date of any meeting of the stockholders of the
Company the Stockholder will be, the lawful owner of the his or its Shares, free
and clear of all liens or encumbrances.
3. Covenant of the Stockholders. Except in accordance with the
provisions of this Agreement, each Stockholder agrees, while this Agreement is
in effect, not to sell, exchange, transfer, pledge, encumber, assign or
otherwise dispose of any of his or its Shares.
4. Termination. This Agreement shall terminate on the earliest of (i)
the approval of the Option Agreement and the grant of options thereunder by the
Company's stockholders in accordance with Section 3(a) of the Option Agreement,
(ii) the termination of the Option Agreement pursuant to its terms or (iii) the
first anniversary of the date hereof.
5. Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
2
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6. Severability. The provisions set forth in this Agreement are
severable. If any provision of this Agreement is held invalid or unenforceable
in any jurisdiction, the remainder of this Agreement, and the application of
such provision to other persons or circumstances, shall not be affected thereby,
and shall remain valid and enforceable in such jurisdiction, and any such
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7. Third Party Beneficiaries. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person other than the parties hereto any
rights or remedies under or by reason of this Agreement or any provision
contained herein.
8. Injunctive Relief. The parties agree that in the event of a breach
of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of such
provision, as well as to obtain damages for breach of this Agreement. By seeking
or obtaining any such relief, the aggrieved party will not be precluded from
seeking or obtaining other relief to which it may be entitled.
9. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the internal laws of the State
of Delaware.
IN WITNESS WHEREOF, each of the parties have caused this Agreement to be
duly executed and delivered on the day and year first above written.
JOHN E. MARTIN MARTIN R. DIEDRICH
_____________________________ _____________________________
John E. Martin Martin R. Diedrich
D.C.H., L.P.
By:___________________________
Paul C. Heeschen
General Partner
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EXHIBIT A
LIST OF STOCKHOLDERS AND NUMBER OF SHARES OWNED
<TABLE>
<CAPTION>
Name of Stockholder Number of Shares of Common Stock
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<S> <C>
D.C.H., L.P. 1,442,197
Martin R. Diedrich 655,107
</TABLE>
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