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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 21, 2000
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DIEDRICH COFFEE, INC.
(Exact name of registrant as specified in its charter)
2144 MICHELSON DRIVE
IRVINE, CALIFORNIA 92612
(949) 260-1600
(Address of Principal Executive Offices)
DELAWARE 33-0086628
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
DIEDRICH COFFEE, INC. 2000 NON-EMPLOYEE DIRECTORS
STOCK OPTION PLAN
(Full title of the plan)
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MATTHEW C. MCGUINNESS
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)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) SHARE(2) PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01
per share 24,000 $1.13 $27,120 $7.16
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</TABLE>
(1) There is also being registered hereunder such additional shares as may
be issued pursuant to the anti-dilution provisions of the Diedrich
Coffee, Inc. 2000 Non-Employee Directors Stock Option Plan dated
October 20, 2000.
(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 November 15, 2000 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 24,000 shares of the Registrant's Common
Stock, par value $0.01 per share (the "Common Stock"), issuable to Peter Churm,
Lawrence Goelman and Paul C. Heeschen, certain Non-Employee Directors of the
Registrant, pursuant to the Diedrich Coffee, Inc. 2000 Non-Employee Directors
Stock Option Plan dated as of October 20, 2000 (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 Messrs. Churm,
Goelman and Heeschen without charge, upon request to the Company, attention
Matthew C. McGuinness, 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
June 28, 2000 as filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b) The Registrant's quarterly report on Form 10-Q for the fiscal
quarter ended September 20, 2000, as filed with the Commission
pursuant to the Exchange Act.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year ended June
28, 2000.
(d) The description of the Registrant's Common Stock contained in
Amendment No. 1 to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-78083) filed with the
Commission on June 7, 1999, 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 Exchange Act, 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
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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.
The consolidated financial statements and schedule included in the
Company's Annual Report on Form 10-K for the year ended June 28, 2000 have been
incorporated by reference herein in reliance upon the report of KPMG LLP,
independent certified public accountants, incorporated herein, and upon the
authority of said firm as experts in accounting and auditing.
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 Delaware
General Corporation Law (the "DGCL") provides that a Delaware corporation has
the power to indemnify its officers and directors in certain circumstances.
Subsection (a) of Section 145 of the DGCL 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 DGCL 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 DGCL 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.
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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 DGCL, 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 DGCL, 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 DGCL 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 (previously
filed as Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-08633), as amended and as
declared effective by the Commission on September 11, 1996).
4.2* Bylaws of the Registrant (filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1 (Reg. No.
333-08633), as amended and as declared effective by the
Commission on September 11, 1996).
4.3 Form of Diedrich Coffee, Inc. 2000 Non-Employee Directors
Stock Option Plan dated as of October 20, 2000.
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of
the securities being registered.
23.1 Consent of KPMG LLP, independent certified public accountants.
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5
hereto).
24.1 Power of Attorney (contained on signature page hereto).
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* Incorporated herein by reference.
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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;
(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
Exchange Act that are incorporated by reference in the Registration Statement.
(2) 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
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, each filing of the
registrant's annual report pursuant to Section 13(a) or 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
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 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 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 a final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act, 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 21st day of
November, 2000.
DIEDRICH COFFEE, INC.
By: /s/ Matthew C. McGuinness
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Matthew C. McGuinness
Senior Vice President and Chief
Financial Officer (Principal
Financial and Accounting Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Matthew C. McGuinness his true and lawful attorney-in-fact and agent, 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 Commission, granting unto said attorney-in-fact and agent,
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 said attorney-in-fact and agent, 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, 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
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<S> <C> <C>
/s/ J. Michael Jenkins President and Chief Executive Officer
---------------------------- (Principal Executive Officer) November 16, 2000
J. Michael Jenkins
/s/ Matthew C. McGuinness Senior Vice President and Chief Financial Officer
---------------------------- (Principal Financial and Accounting Officer) November 16, 2000
Matthew C. McGuinness
/s/ Martin R. Diedrich Chief Coffee Officer, Secretary,
---------------------------- Vice Chairman of the Board and Director November 16, 2000
Martin R. Diedrich
/s/ Lawrence Goelman Director November 16, 2000
----------------------------
Lawrence Goelman
/s/ Paul C. Heeschen Director November 16, 2000
----------------------------
Paul C. Heeschen
</TABLE>
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<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
------------------ ----- ----
<S> <C> <C>
Director November __, 2000
----------------------------
Peter Churm
/s/ Timothy J. Ryan Director November 16, 2000
----------------------------
Timothy J. Ryan
Director November __, 2000
----------------------------
John E. Martin
</TABLE>
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1* Certificate of Incorporation of the Registrant (filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form
S-1 (Reg. No. 333-08633), as amended and as declared effective
by the Commission on September 11, 1996).
4.2* Bylaws of the Registrant (filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1 (Reg. No.
333-08633), as amended and as declared effective by the
Commission on September 11, 1996).
4.3 Form of Diedrich Coffee, Inc. 2000 Non-Employee Directors
Stock Option Plan, dated as of October 20, 2000.
5 Opinion of Gibson, Dunn & Crutcher LLP, as to the legality of
the securities being registered.
23.1 Consent of KPMG LLP, independent certified public accountants.
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5
hereto).
24.1 Power of Attorney (contained on signature page hereto).
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* Incorporated herein by reference.
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