-----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, VLO2rPmW1M8cQsb1wiDcd3Ntap8PyELewt5Vh9QjB7wiVcfkmdPJMo28KM33Eion bdWcZA95ZeBzm6Hjephx1g== 0000892569-97-003356.txt : 19971201 0000892569-97-003356.hdr.sgml : 19971201 ACCESSION NUMBER: 0000892569-97-003356 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19971128 SROS: NASD SUBJECT COMPANY: 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: 0129 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-50104 FILM NUMBER: 97729912 BUSINESS ADDRESS: STREET 1: 2144 MICHELSON DRIVE STREET 2: STE A CITY: IRVINE STATE: CA ZIP: 9262682612 BUSINESS PHONE: 7142601600 MAIL ADDRESS: STREET 1: 2144 MICHELSON DRIVE CITY: IRVINE STATE: CA ZIP: 92612 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MARTIN JOHN E CENTRAL INDEX KEY: 0001050476 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 567 SAN NICOLAS DR STREET 2: #400 CITY: NEWPORT BEACH STATE: CA ZIP: 92660 BUSINESS PHONE: 7147194990 MAIL ADDRESS: STREET 1: 567 SAN NICOLAS DR STREET 2: #400 CITY: NEWPORT BEACH STATE: CA ZIP: 92660 SC 13D/A 1 SCHEDULE 13D/A FOR JOHN E. MARTIN 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------------------- 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. - -------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK - -------------------------------------------------------------------------------- (Title of Class of Securities) 253675 - -------------------------------------------------------------------------------- (CUSIP Number) Alan H. Wiener, Esq. 2603 Main Street, Suite 1300, Irvine, California 92614 (714) 851-9400 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 17, 1997 - -------------------------------------------------------------------------------- (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) - ------------- (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). 2 13D/A CUSIP No. 253675 PAGE 2 OF 5 PAGES - -------------------------------------------------------------------------------- 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) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS PF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 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- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,233,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 18.8% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT 3 SCHEDULE 13D/A -------------- DIEDRICH COFFEE, INC. --------------------- 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). Page 3 4 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 Page 4 5 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. ----------- 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 ---------------------------- John E. Martin Page 5 6 EXHIBIT INDEX EXHIBIT NUMBER ------- 1 Voting Agreement and Irrevocable Proxy EX-1 2 VOTING AGREEMENT AND IRREVOCABLE PROXY 1 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. 2 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 3 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 3 4 EXHIBIT A LIST OF STOCKHOLDERS AND NUMBER OF SHARES OWNED
Name of Stockholder Number of Shares of Common Stock - ------------------- -------------------------------- D.C.H., L.P. 1,442,197 Martin R. Diedrich 655,107
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