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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 12, 1998
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DIEDRICH COFFEE, INC.
(Exact name of registrant as specified in its charter)
2144 MICHELSON DRIVE
IRVINE, CALIFORNIA 92612
(714) 260-1600
(Address of Principal Executive Offices)
DELAWARE 33-0086628
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
STOCK OPTION PLAN AND AGREEMENT WITH TIMOTHY J. RYAN
(Full title of the plan)
------------------------
ANN WRIDE
CHIEF FINANCIAL OFFICER
DIEDRICH COFFEE, INC.
2144 MICHELSON DRIVE
IRVINE, CALIFORNIA 92612
(949) 260-1600
(Name, address, zip code, and telephone number,
including area code, of agent for service)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share 600,000 $6.125 $3,675,000 $1,084
================================================================================================
</TABLE>
(1) There is also being registered hereunder such additional shares as may
be issued pursuant to the anti-dilution provisions of the Stock Option
Plan and Agreement with Timothy J. Ryan dated November 17, 1997.
(2) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(h) and Rule 457(c) and based on the average of the
high and low prices of the Common Stock of Diedrich Coffee, Inc. as
reported on August 10, 1998 on the Nasdaq National Market.
<PAGE> 2
INTRODUCTION
This Registration Statement on Form S-8 is filed by Diedrich Coffee,
Inc. (the "Registrant") relating to 600,000 shares of the Registrant's Common
Stock, par value $0.01 per share (the "Common Stock"), issuable to Timothy J.
Ryan, Chief Executive Officer of the Registrant pursuant to the Timothy J. Ryan
Stock Option Plan and Agreement dated as of November 17, 1997 (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), and the Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Registrant's documents and public reports listed in Item 3 below,
and all subsequent public reports, are and will be available to Mr. Ryan without
charge, upon request to the Company, attention: Ann Wride, Chief Financial
Officer, at 2144 Michelson Drive, Irvine, CA 92614 (949) 260-1600.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by the
Registrant with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(a) The Registrant's annual report on Form 10-K for the year ended
January 28, 1998 filed with the Commission on April 23, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year ended January 28,
1998.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (Registration No.
000-21203) filed with the Commission on August 14, 1996, which
incorporates by reference the description of the Registrant's
Common Stock contained in the Registrant's Registration Statement
on Form S-1 (Registration No. 333-08633), as amended, including
any amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment hereto which indicates that all securities offered
hereunder 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
hereof from the date of filing of such documents.
For purposes of this Registration Statement, any statement contained
herein or in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded to the extent that a
statement contained herein or in any other subsequently filed document that also
is or is deemed to be incorporated herein by reference modifies or supersedes
such statement in such document. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
2
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware (the "GCL") provides that a Delaware
corporation has the power to indemnify its officers and directors in certain
circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer had no cause to believe his
or her conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses actually and reasonably incurred in
connection with the defense or settlement of such action or suit provided that
such director or officer acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such director or officer shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action was brought shall determine that despite the
adjudication of liability such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith; that indemnification provided for in Section 145
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; and that the corporation shall have power to purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Article VIII of the Registrant's Certificate of Incorporation currently
provides that each director shall not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the directors' duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the GCL, or (iv) for any transaction from which
the director derived an improper benefit. The Certificate of Incorporation
further provides that the Registrant shall indemnify, to the fullest extent
permitted by the GCL, any person made a party to an action or proceeding by
reason of the fact that such person was a director, officer, employee or agent
of the Registrant.
3
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Article VII of the Registrant's Bylaws provides that the Registrant may
indemnify its officers and directors to the fullest extent permitted by law.
Subject to the Registrant's Certificate of Incorporation, the Bylaws provide
that the Registrant shall indemnify directors and officers for all costs
reasonably incurred in connection with any action, suit or proceeding in which
such director or officer is made a party by virtue of his being an officer or
director of the Registrant except where such director or officer is finally
adjudged to have been derelict in the performance of his duties as such director
or officer.
The Registrant has entered into separate indemnification agreements
with its directors and officers containing provisions that provide for the
maximum indemnity allowed to directors and officers by the GCL and the
Registrant's Bylaws, subject to certain exceptions. The indemnification
agreements may require the Registrant, among other obligations, to indemnify
such directors and officers against certain liabilities that may arise by reason
of their status as directors or officers, other than liabilities arising from
willful misconduct of a culpable nature, provided that such person acted in good
faith and in a manner that he or she reasonably believed to be in or not opposed
to the best interests of the Registrant and, in the case of a criminal
proceeding, had no reasonable cause to believe that his conduct was unlawful. In
addition, the indemnification agreements provide generally that the Registrant
will, subject to certain exceptions, advance the expenses incurred by directors
and officers as a result of any proceeding against them as to which they may be
entitled to indemnification. The Registrant also maintains directors' and
officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation of the Registrant(1)
4.2 Bylaws of the Registrant(1)
4.3 Stock Option plan and Agreement with Timothy J. Ryan dated as of
November 17, 1997(2)
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the
securities being registered
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of BDO Seidman, LLP
23.3 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5
hereto)
24.1 Power of Attorney (contained on signature page hereto)
- ---------------------
(1) Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (Reg. No. 333-08633), as amended.
(2) Incorporated by reference to Registrant's definitive Proxy Statement on Form
14A filed on December 22, 1997.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
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(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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;
(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)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by a final adjudication of such issue.
5
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SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, 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 Irvine, State of California, on this 11th day of
August, 1998.
DIEDRICH COFFEE, INC.
By: /s/ ANN WRIDE
-------------------------------
Ann Wride
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Ann
Wride and John B. Bayley his true and lawful attorneys-in-fact and agents, each
acting alone, 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, each acting alone, with full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming that all said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, 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.
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
------------------ ----- ----
<S> <C> <C>
/s/ JOHN E. MARTIN Chairman of the Board August 6, 1998
- ------------------------------------
John E. Martin
/s/ TIMOTHY J. RYAN Director and President and Chief
- ------------------------------------ Executive Officer (Principal Executive August 5, 1998
Timothy J. Ryan Officer)
/s/ ANN WRIDE Vice President, Chief Financial Officer August 5, 1998
- ------------------------------------ (Principal Financial and Accounting
Ann Wride Officer)
/s/ MARTIN R. DIEDRICH Chief Coffee Officer, Vice Chairman of August 5, 1998
- ------------------------------------ Board of Directors and Secretary
Martin R. Diedrich
Director August _, 1998
- ------------------------------------
Lawrence Goelman
/s/ PAUL C. HEESCHEN Director August 6, 1998
- ------------------------------------
Paul C. Heeschen
Director August _, 1998
- ------------------------------------
Peter Churm
</TABLE>
6
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INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation of the Registrant(1)
4.2 Bylaws of the Registrant(1)
4.3 Stock Option Plan and Agreement with Timothy J. Ryan dated as of
November 17, 1997(2)
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the
securities being registered
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of BDO Seidman, LLP
23.3 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5
hereto)
24.1 Power of Attorney (contained on signature page hereto)
- ----------------
(1) Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (Reg. No. 333-08633), as amended.
(2) Incorporated by reference to Registrant's definitive Proxy Statement on Form
14A filed on December 22, 1997.
7
<PAGE> 1
EXHIBIT 5
August 11, 1998
(949) 451-3800 C 22453-00008
Diedrich Coffee, Inc.
2144 Michelson Drive
Irvine, California 92612
Re: Registration Statement on Form S-8
for Stock Option Plan and Agreement with Timothy J. Ryan
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on the date hereof, to register
under the Securities Act of 1933, as amended (the "Act"), 600,000 shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"),
available to be issued pursuant to awards granted under the Company's Stock
Option Plan and Agreement with Timothy J. Ryan (the "Plan").
For purposes of rendering this opinion, we have made such legal and
factual examinations as we have deemed necessary under the circumstances and, as
part of such examination, we have examined originals and copies, certified or
otherwise, identified to our satisfaction, of the Plan, the Company's
Certificate of Incorporation and Bylaws, and the records of corporate
proceedings and other actions taken by the Company in connection with the Plan
and the Common Stock issuable thereunder, and such other documents, corporate
records and other instruments as we have deemed necessary or appropriate. Based
upon the foregoing and in reliance thereon, and subject to (i) compliance with
applicable state securities laws and (ii) the effectiveness of the Registration
Statement pursuant to the Act, it is our opinion that the
<PAGE> 2
Diedrich Coffee, Inc.
August 11, 1998
Page 2
Common Stock, when issued and paid for in accordance with the Registration
Statement and the Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and we further consent to the use of our name under the
caption "Legal Matters" in the Prospectus forming a part of said Registration
Statement. In giving this consent, we do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the Act or
the Rules and Regulations thereunder.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
GIBSON, DUNN & CRUTCHER LLP
JBE/REA
<PAGE> 1
EXHIBIT 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Diedrich Coffee, Inc.:
We consent to the incorporation by reference in the registration statements
(Form S-8 with John E. Martin, Form S-8 with Timothy J. Ryan, Form S-8 Stock
Option Plan, Form S-3) of Diedrich Coffee, Inc. of our report dated March 28,
1998, relating to the balance sheets of Diedrich Coffee as of January 28, 1998
and January 27, 1997 and cash flows for each of the years in the two-year
period ended January 28, 1998 and all related schedules, which report appears
in the January 28, 1998 annual report on Form 10-K of Diedrich Coffee, Inc.
We consent to the reference to our firm under the heading "Experts" in the
prospectus.
/s/ KPMG Peat Marwick LLP
Orange County, California
August 11, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Diedrich Coffee, Inc.
Irvine, California
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated March
11, 1996, relating to the financial statements of Diedrich Coffee, Inc.
appearing in the Company's Annual Report on Form 10-K for the year ended
January 31, 1996.
/s/ BDO SEIDMAN, LLP
----------------------------------------
BDO SEIDMAN, LLP
Costa Mesa, California
August 11, 1998
