-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KUgWOj5JQXf8rrpOXRv263m97SDBzMY2Ej/GLbWgUExIj6MBIxYHHoUgyuJTBd6r 6012pP9FEaX0/gV9Isz29A== 0000892569-01-501241.txt : 20020412 0000892569-01-501241.hdr.sgml : 20020412 ACCESSION NUMBER: 0000892569-01-501241 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20011206 EFFECTIVENESS DATE: 20011206 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DIEDRICH COFFEE INC CENTRAL INDEX KEY: 0000947661 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-FOOD STORES [5400] IRS NUMBER: 330086628 STATE OF INCORPORATION: CA FISCAL YEAR END: 0127 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-74626 FILM NUMBER: 1807474 BUSINESS ADDRESS: STREET 1: 2144 MICHELSON DRIVE STREET 2: STE A CITY: IRVINE STATE: CA ZIP: 9262682612 BUSINESS PHONE: 9492601600 MAIL ADDRESS: STREET 1: 2144 MICHELSON DRIVE CITY: IRVINE STATE: CA ZIP: 92612 S-8 1 a77716ors-8.txt FORM S-8 As filed with the Securities and Exchange Commission on December 6, 2001 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)
DELAWARE 33-0086628 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.)
2144 Michelson Drive Irvine, CA 92612 (949) 260-1600 (Address, including Zip Code, and Telephone Number, including Area Code, of Registrant's Principal Executive Offices) DIEDRICH COFFEE, INC. 2000 EQUITY INCENTIVE PLAN (Full Title of Plan) J. Michael Jenkins Diedrich Coffee, Inc. 2144 Michelson Drive Irvine, CA 92612 (949) 260-1600 (Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service) Copy to: John M. Williams, Esq. Gibson, Dunn & Crutcher LLP 4 Park Plaza Irvine, CA 92614 (949) 451-3800 CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED MAXIMUM MAXIMUM AMOUNT OFFERING AGGREGATE AMOUNT OF TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) FEE ---------------- ------------- -------- -------- --- Common Stock, 250,000 shares(3) $4.14 $1,035,000 $248 $0.01 par value per share
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement also covers such additional shares as may be issued pursuant to the anti-dilution provisions set forth in the Plan. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, based upon the average of the high and low sale prices of the Company's common stock on The Nasdaq National Market System on December 3, 2001. (3) Including the shares registered hereby, there are an aggregate of 437,500 shares are issuable under the Plan. In addition to the 250,000 shares registered hereby, 187,500 shares of the Company's common stock issuable under the Plan were previously registered under the Registration Statement on Form S-8 (Registration No. 333-52190), filed with the Securities and Exchange Commission on December 19, 2000. INTRODUCTION This Registration Statement on Form S-8 is filed by Diedrich Coffee, Inc., a Delaware corporation (the "Company"), to register an additional 250,000 shares of the Company's common stock, par value $0.01 per share, issuable under the Diedrich Coffee, Inc. 2000 Equity Incentive Plan (the "Plan"), and consists of only those items required by General Instruction E to Form S-8. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS 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, and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT In accordance with General Instruction E to Form S-8, the contents of the Company's Registration Statement on Form S-8 (Registration No. 333-52190) previously filed by the Company with the Securities and Exchange Commission on December 19, 2000 is incorporated herein by reference and made a part hereof. ITEM 8. EXHIBITS. Pursuant to General Instruction E, only those opinions and consents required by Item 8 are provided, as follows.
Exhibit No. Description - ----------- ----------- 5.1 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the additional securities being registered 23.1 Consent of KPMG LLP, independent auditors 23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1 hereto) 24.1 Power of Attorney (contained on signature page hereto)
SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company 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 December 6, 2001. DIEDRICH COFFEE, INC. By: /s/ J. Michael Jenkins ---------------------------------------- J. Michael Jenkins President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints J. Michael Jenkins and Matthew C. McGuinness his true and lawful attorneys-in-fact and agents, each acting alone, with full powers 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 powers and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as full 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 indicated on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ J. Michael Jenkins President and Chief Executive Officer December 6, 2001 - ---------------------------- J. Michael Jenkins (Principal Executive Officer) /s/ Matthew C. McGuinness Executive Vice President and December 6, 2001 - ---------------------------- Matthew C. McGuinness Chief Financial Officer (Principal Financial and Accounting Officer) /s/ Paul Heeschen Chairman of the Board - ---------------------------- Paul Heeschen December 6, 2001 /s/ Peter Churm Director - ---------------------------- Peter Churm December 6, 2001 /s/ Martin Diedrich Director - ---------------------------- Martin Diedrich December 6, 2001 /s/ Lawrence Goelman Director - ---------------------------- Lawrence Goelman December 6, 2001
EXHIBIT INDEX
Exhibit No. Description - ----------- ----------- 5.1 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the additional securities being registered 23.1 Consent of KPMG LLP, independent auditors 23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1 hereto) 24.1 Power of Attorney (contained on signature page hereto)
EX-5.1 3 a77716orex5-1.txt EXHIBIT 5.1 EXHIBIT 5.1 GIBSON, DUNN & CRUTCHER LLP 4 PARK PLAZA IRVINE, CA 92614 December 5, 2001 (949) 451-3800 C 22453-00007 Diedrich Coffee, Inc. 2144 Michelson Drive Irvine, California 92612 Re: Registration Statement on Form S-8 Pursuant to General Instruction E for 250,000 Shares of Common Stock Under the Diedrich Coffee, Inc. 2000 Equity Incentive Plan Ladies and Gentlemen: We refer to the registration statement on Form S-8 (the "Registration Statement") filed by Diedrich Coffee, Inc., a Delaware corporation (the "Company"), with the Securities and Exchange Commission (the "Commission") on the date hereof in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act") of an additional 250,000 shares of common stock of the Company, par value $0.01 per share (the "Shares"), which may be issued under the Diedrich Coffee, Inc. 2000 Equity Incentive Plan (the "Plan"). For purposes of rendering this opinion, we have examined the originals or copies identified to our satisfaction as being true and complete copies of such corporate records, certificates of officers of the Company and/or public officials and such other documents, and have made such other factual and legal investigations, as we have deemed relevant, necessary or appropriate. In such examination, we have assumed the genuineness of all signatures, the conformity to original documents of all documents submitted to us as conformed or photostatic copies and the authenticity of the originals of such copies. With respect to agreements and instruments executed by natural persons, we have assumed the legal competency and authority of such persons. As to facts material to the opinion expressed herein which were not independently established or verified by us, we have relied upon oral or written statements and representations of the Company and others. Based on our examination described above, subject to the assumptions stated above and relying on the statements of fact contained in the documents that we have examined, we are of the opinion that the Shares, when issued, delivered and paid for pursuant to and in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable. We render no opinion herein as to matters involving the laws of any jurisdiction other than the federal laws of the United States of America and the laws of the State of Delaware. We are not admitted to practice in the State of Delaware; however, we are generally familiar with the Delaware General Corporation Law as presently in effect and have made such inquiries as we consider necessary to render the foregoing opinions. This opinion is limited to the effect of the current state of the laws of the United States of America and, to the limited extent set forth above, the State of Delaware and to the current judicial interpretations thereof and to the facts bearing upon this opinion as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or interpretations thereof or such facts. 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 Securities Act or the Rules and Regulations of the Commission. Very truly yours, /s/ Gibson, Dunn & Crutcher LLP ------------------------------------ Gibson, Dunn & Crutcher LLP 2 EX-23.1 4 a77716orex23-1.txt EXHIBIT 23.1 Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors Diedrich Coffee, Inc.: We consent to the use of our report dated September 7, 2001, with respect to the consolidated balance sheets of Diedrich Coffee, Inc. and subsidiaries as of June 27, 2001 and June 28, 2000, and the related consolidated statements of operations, stockholders' equity and cash flows for the years ended June 27, 2001 and June 28,2000, the twenty-two weeks ended June 30, 1999 and the year ended January 27, 1999, and our report dated September 25, 2001, on the related financial statement schedule, incorporated herein by reference and to the incorporation herein by reference of the reference to our firm under the heading "Incorporation of Documents by Reference" incorporated herein by reference under the heading "Information Required in the Registration Statement" in the Registration Statement. /s/ KPMG LLP Orange County, California December 5, 2001 -----END PRIVACY-ENHANCED MESSAGE-----