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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL ___, 1998
REGISTRATION NO. 333-
================================================================================
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.)
1996 STOCK INCENTIVE PLAN
(Full title of the plan)
-------------------------
TIMOTHY J. RYAN
CHIEF EXECUTIVE OFFICER
DIEDRICH COFFEE, INC.
2144 MICHELSON DRIVE
IRVINE, CALIFORNIA 92612
(714) 260-1600
(Name, address, zip code, and telephone number,
including area code, of agent for service)
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01
per share 775,000 $7.16 $5,549,000 $1,636.95
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) There is also being registered hereunder such additional shares as may
be issued pursuant to the anti-dilution provisions of the Plan.
(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 April 9, 1998 on the Nasdaq National Market.
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INTRODUCTION
------------
This Registration Statement on Form S-8 is filed by Diedrich Coffee,
Inc. (the "Registrant") relating to 775,000 shares of the Registrant's Common
Stock, par value $0.01 per share (the "Common Stock"), issuable to officers,
directors, key employees, consultants, and advisors of the Registrant pursuant
to the Diedrich Coffee, Inc. 1996 Stock Incentive Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
----------------------------------------------------
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL 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.
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 29, 1997 filed with the Commission on April 29, 1997;
(b) The Registrant's quarterly report on Form 10-Q for the quarter
ended April 30, 1997 filed with the Commission on June 13,
1997;
(c) The Registrant's quarterly report on Form 10-Q for the quarter
ended July 30, 1997 filed with the Commission on September 12,
1997;
(d) The Registrant's amended quarterly report for the quarter
ended July 30, 1997 filed on Form 10-Q/A filed with the
Commission on October 23, 1997;
(e) The Registrant's quarterly report on Form 10-Q for the quarter
ended October 29, 1997 filed with the Commission on December
11, 1997;
(f) The Registrant's report on Form 8-K filed with the Commission
on November 25, 1997; and
(g) 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.
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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.
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.
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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
provides further 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.
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*
4.2 Bylaws of the Registrant*
4.3 1996 Stock Incentive Plan*
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of
the securities being registered
23.1 Consent of KPMG Peat Marwick LLP
3
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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)
* Incorporated by reference to the Registrant's Registration Statement
on Form S-1 (Reg. No. 333-08633), as amended.
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:
(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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 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.
4
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(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
----------
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 10th day of
April, 1998.
DIEDRICH COFFEE, INC.
By: /s/ Timothy J. Ryan
---------------------------
Timothy J. Ryan
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Timothy J. Ryan 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 Director and Chairman of the Board April 10, 1998
- ----------------------------------------
John E. Martin
/s/ Timothy J. Ryan President and Chief Executive Officer April 10, 1998
- ---------------------------------------- (Principal Executive Officer)
Timothy J. Ryan
/s/ Lawrence Goelman Director April 10, 1998
- ----------------------------------------
Lawrence Goelman
/s/ John B. Bayley Vice President, Finance and April 10, 1998
- ---------------------------------------- Controller (Principal Financial and
John B. Bayley Accounting Officer)
/s/ Martin R. Diedrich Director, Vice Chairman of the Board of April 10, 1998
- ---------------------------------------- Directors and Secretary
Martin R. Diedrich
/s/ Paul C. Heeschen Director April 10, 1998
- ----------------------------------------
Paul C. Heeschen
Director , 1998
- ----------------------------------------
Peter Churm
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 Certificate of Incorporation of the Registrant*
4.2 Bylaws of the Registrant*
4.3 1996 Stock Incentive Plan*
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)
</TABLE>
* Incorporated by reference to the Registrant's Registration Statement
on Form S-1 (Reg. No. 333-08633), as amended.
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EXHIBIT 5
April 7, 1998
(714) 451-3800 C 22453-00008
Diedrich Coffee, Inc.
2144 Michelson Drive
Irvine, CA 92612
Re: Registration Statement on Form S-8 for 1996 Stock Incentive Plan
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by Diedrich Coffee, Inc., a Delaware corporation (the
"Company") with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended (the "Securities
Act") of 775,000 shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"), reserved for issuance under the Registrant's 1996
Stock Incentive Plan (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, among other things, originals
and copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary
or appropriate. For the purposes of such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
On the basis of and in reliance upon the foregoing, we are of the opinion
that assuming the Registration Statement shall have become effective pursuant
to the provisions of the Securities Act, the shares of Common Stock being
offered under the Plan, when issued and paid for in accordance with the
provisions of the Plan, will be validly issued, fully paid and nonassessable.
<PAGE> 2
Diedrich Coffee, Inc.
April 7, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such 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
<PAGE> 1
EXHIBIT 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Diedrich Coffee, Inc.:
We consent to incorporation by reference in this registration statement on
Form S-8 of Diedrich Coffee, Inc. of our report dated March 14, 1997, except for
the penultimate paragraph of note 5, which date is April 21, 1997 and note 10,
which date is April 29, 1997, relating to the balance sheet of Diedrich Coffee,
Inc. as of January 29, 1997 and the related statement of operations,
stockholders' equity, and cash flow for the year then ended, which report
appears in the January 29, 1997 annual report on Form 10-K of Diedrich Coffee,
Inc.
/s/ KPMG PEAT MARWICK LLP
Orange County, California
January 23, 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
January 26, 1998
