-----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, CRiW9+AONicSnTCtKmN2M4L7WS8++sU+rJTmI4II7uAD50fWuptHsNEq7hQ6aV4u JXv7oT7MR2SOXSWUj4hfhg== 0000906344-07-000371.txt : 20070516 0000906344-07-000371.hdr.sgml : 20070516 20070516162337 ACCESSION NUMBER: 0000906344-07-000371 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20070516 DATE AS OF CHANGE: 20070516 GROUP MEMBERS: RICHARD S. SPENCER III 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: 0630 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-50104 FILM NUMBER: 07858102 BUSINESS ADDRESS: STREET 1: 28 EXECUTIVE PARK STREET 2: SUITE 200 CITY: IRVINE STATE: CA ZIP: 92614 BUSINESS PHONE: 9492601600 MAIL ADDRESS: STREET 1: 28 EXECUTIVE PARK STREET 2: SUITE 200 CITY: IRVINE STATE: CA ZIP: 92614 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WESTCLIFF CAPITAL MANAGEMENT LLC/CA CENTRAL INDEX KEY: 0001057396 IRS NUMBER: 000000000 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 200 7TH AVE SUITE 105 CITY: SANTA CRUZ STATE: CA ZIP: 95062 BUSINESS PHONE: 4084770422 MAIL ADDRESS: STREET 1: 200 SEVENTH AVE STREET 2: SUITE 105 CITY: SANTA CRUZ STATE: CA ZIP: 95602 SC 13D/A 1 dci13da5.txt 13D AMENDMENT 5 5-16-2007 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 5)* Diedrich Coffee, Inc. --------------------- (Name of Issuer) Common Stock ------------ (Title of Class of Securities) 253675 ------ (CUSIP Number) Audrey Fernandez-Elliott, Senior Legal Assistant Howard Rice Nemerovski Canady Falk & Rabkin, A Professional Corporation Three Embarcadero Center, 7th Floor San Francisco, CA 94111-4024 (415) 434-1600 -------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 7, 2007 ----------- (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 that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. * 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 ("Act") 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). CUSIP 253675 SCHEDULE 13D Page 2 of 8 1. Names of Reporting Persons WESTCLIFF CAPITAL MANAGEMENT, LLC I.R.S. Identification Nos. of above persons 77-0435868 (entities only) 2. Check the Appropriate Box if a Member of a Group (a) [X] (See Instructions) (b) [ ] 3. SEC Use Only 4. Source of Funds (See Instructions) N/A 5. Check if Disclosure of Legal Proceedings Is Required [ ] Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization California Number of 7. Sole Voting Power 0 Shares Beneficially 8. Shared Voting Power 208,331 Owned by Each 9. Sole Dispositive Power 0 Reporting Person With 10. Shared Dispositive Power 208,331 11. Aggregate Amount Beneficially Owned by Each 208,331 Reporting Person 12. Check if the Aggregate Amount in Row (11) Excludes Certain [ ] Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 3.7% 14. Type of Reporting Person (See Instructions) IA CUSIP 253675 SCHEDULE 13D Page 3 of 8 1. Names of Reporting Persons RICHARD S. SPENCER III I.R.S. Identification Nos. of above persons (entities only) 2. Check the Appropriate Box if a Member of a Group (a) [X] (See Instructions) (b) [ ] 3. SEC Use Only 4. Source of Funds (See Instructions) N/A 5. Check if Disclosure of Legal Proceedings Is Required [ ] Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization Number of 7. Sole Voting Power 48,750 Shares Beneficially 8. Shared Voting Power 208,331 Owned by Each 9. Sole Dispositive Power 48,750 Reporting Person With 10. Shared Dispositive Power 208,331 11. Aggregate Amount Beneficially Owned by Each 257,081 Reporting Person 12. Check if the Aggregate Amount in Row (11) Excludes Certain [ ] Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 4.4% 14. Type of Reporting Person (See Instructions) IN CUSIP 253675 SCHEDULE 13D Page 4 of 8 Item 1. Security and Issuer This statement relates to shares of Common Stock (the "Stock") of Diedrich Coffee, Inc. (the "Issuer"). The principal executive office of the Issuer is located at 2144 Michelson Drive, Irvine, California 92612. Item 2. Identity and Background The persons filing this statement and the persons enumerated in Instruction C of Schedule 13D and, where applicable, their respective places of organization, general partners, directors, executive officers and controlling persons, and the information regarding them, are as follows: (a) Westcliff Capital Management, LLC ("Westcliff LLC") and Richard S. Spencer III (together, the "Filers") are filing this Schedule 13D as a group and disclaim membership in a group with any other person. Westcliff LLC is the General Partner of, and in some cases investment advisor to, Westcliff Long/Short, L.P., Westcliff Aggressive Growth, L.P., Westcliff Partners, L.P., Westcliff Small Cap Fund, L.P., Westcliff Ventures Fund, L.P., Westcliff Fund, L.P., Westcliff Master Fund, L.P., Westcliff Foundation and Harry-Anna Investment Fund, Inc. (collectively, the "Westcliff Funds"), and Mr. Spencer is the manager and controlling owner of Westcliff LLC. The beneficial ownership of the Stock by the Westcliff Funds and Mr. Spencer no longer exceeds 5% of the outstanding Stock. As a result, Westcfliff LLC and Mr. Spencer are no longer Filers and will no longer file reports under Section 13 of the Securities Exchange Act of 1934 unless otherwise required by law to do so. (b) The business address of the Filers is: 200 Seventh Avenue, Suite 105, Santa Cruz, California 95062 (for Westcliff LLC and Mr. Spencer) (c) Present principal occupation or employment of the Filers and the name, principal business and address of any corporation or other organization in which such employment is conducted: Westcliff LLC is an investment adviser registered with the Securities and Exchange Commission. It is the investment adviser and general partner of certain investment funds (the "Westcliff Funds") and the investment adviser of other client accounts (the "Client Accounts"). Mr. Spencer is the manager and controlling owner of Westcliff LLC. Mr. Spencer served as a member of the Board of Directors of the Issuer from 2001 until May 8, 2007. (d) During the last five years, neither of the Filers has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). CUSIP 253675 SCHEDULE 13D Page 5 of 8 (e) During the last five years, neither of the Filers was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) For citizenship of the Filers, see Item 6 of the cover sheet for each Filer Item 3. Source and Amount of Funds or Other Consideration N/A Item 4. Purpose of Transaction N/A Item 5. Interest in Securities of the Issuer The beneficial ownership of the Stock by each Filer at the date hereof is reflected on that Filer's cover page. The shares of Stock reported as beneficially owned by Westcliff LLC for the purposes of this Schedule 13D consist of warrants exercisable for a total of 208,331 shares of the Stock (the "Warrants"). For the purposes of this Schedule 13D, the Warrants represent 3.7% of the Stock outstanding. The Warrants are held in the Westcliff Funds and in separately managed Client Accounts. In addition to the Warrants, the shares of Stock reported as beneficially owned by Mr. Spencer for the purposes of this Schedule 13D include options exercisable within 60 days of the date on cover page for a total of 48,750 shares of the Stock (the "Options"). For the purposes of this Schedule 13D, the Options and Warrants collectively represent 4.4% of the Stock outstanding. The Options are held by Mr. Spencer directly. The calculation of percentage of beneficial ownership was derived from the Issuer's Quarterly Report on Form 10-Q filed with the Securities Exchange Commission on April 23, 2007, in which the Issuer stated that the number of shares of its Common Stock outstanding as of April 18, 2007 was 5,438,318 shares. CUSIP 253675 SCHEDULE 13D Page 6 of 8 The Filers engaged in the following private transaction in the Stock on the date indicated, and such transaction is the only transaction in the Stock by the Filers since 60 days before date on cover page: Name of Seller Number of Shares Sold Price Per Share Date of Sale Westcliff LLC / 955,229 $3.80 May 7, 2007 Richard S. Spencer III
Represents the sale of shares of the Stock for the accounts of the Westcliff Funds in a private transaction with Sequoia Enterprises, LP and Paul C. Heeschen. On May 7, 2007, the Filers ceased to be beneficial owner of more than 5% of the Issuer's securities. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Westcliff LLC is the general partner of certain investment limited partnerships pursuant to agreements of limited partnership granting to Westcliff LLC the discretionary authority, among other things, to invest the assets of such investment limited partnerships in the Stock, to vote and dispose of Stock and to file this statement on behalf of such investment limited partnerships. Pursuant to such agreements, Westcliff LLC is entitled to allocations based on assets under management and realized and unrealized gains. Westcliff LLC is the investment adviser to certain client accounts pursuant to investment management agreements granting to Westcliff LLC the discretionary authority, among other things, to invest the assets of such client accounts in the Stock, to vote and dispose of Stock and to file this statement on behalf of such client accounts. Each Filer disclaims beneficial ownership of the Stock for purposes of Rule 16(a)-1(a)(2) under the Securities Exchange Act of 1934, except to the extent of its pecuniary interest in the Stock. Item 7. Material to Be Filed as Exhibits Agreement Regarding Joint Filing of Statement on Schedule 13D or 13G, attached hereto, which amends, restates and supersedes the Agreement previously filed. CUSIP 253675 SCHEDULE 13D Page 7 of 8 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. Date May 16, 2007 WESTCLIFF CAPITAL MANAGEMENT, LLC /s/ Richard S. Spencer III ----------------------------------- Signature Print Name Richard S. Spencer III Title Manager Date May 16, 2007 /s/ Richard S. Spencer III ----------------------------------- Signature Print Name Richard S. Spencer III EXHIBITS LIST EXHIBIT 1 AGREEMENT REGARDING JOINT FILING OF STATEMENT ON SCHEDULE 13D OR 13G CUSIP 253675 SCHEDULE 13D Page 8 of 8 EXHIBIT 1 AGREEMENT REGARDING JOINT FILING OF STATEMENT ON SCHEDULE 13D OR 13G The undersigned agree to file jointly with the Securities and Exchange Commission (the "SEC") any and all statements on Schedule 13D or Schedule 13G (and any amendments or supplements thereto) required under section 13(d) of the Securities Exchange Act of 1934, as amended, in connection with purchases by the undersigned of the securities of any issuer. For that purpose, the undersigned hereby constitute and appoint Westcliff Capital Management, LLC, a California limited liability company, as their true and lawful agent and attorney-in-fact, with full power and authority for and on behalf of the undersigned to prepare or cause to be prepared, sign, file with the SEC and furnish to any other person all certificates, instruments, agreements and documents necessary to comply with section 13(d) and section 16(a) of the Securities Exchange Act of 1934, as amended, in connection with said purchases, and to do and perform every act necessary and proper to be done incident to the exercise of the foregoing power, as fully as the undersigned might or could do if personally present. Date: May 16, 2007 WESTCLIFF CAPITAL MANAGEMENT, LLC /s/ Richard S. Spencer III /s/ Richard S. Spencer III - ---------------------------------- ---------------------------------- Signature Signature Print Name Richard S. Spencer III Print Name Richard S. Spencer III Title Manager -----END PRIVACY-ENHANCED MESSAGE-----