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Exhibit
10.1
EXECUTION VERSION
AMENDING
AGREEMENT
THIS AMENDING AGREEMENT (this
“ Agreement ”) is entered into as of
June 19, 2008, by and among Diedrich Coffee, Inc., a Delaware
corporation (the “ Company ”), and Sequoia
Enterprises, L.P., a California limited partnership (“
Sequoia ”), with reference to the following
facts:
WHEREAS, the Company and
Sequoia are parties to that certain Contingent Convertible Note
Purchase Agreement, dated as of May 10, 2004, as amended (the
“ Note Purchase Agreement ”), whereby Sequoia
extended a loan to the Company on the terms and subject to the
conditions set forth therein (the “ Loan
”);
WHEREAS, in the absence of an
Event of Default (as such term is defined in the Note Purchase
Agreement) or a Change of Control (as such term is defined in the
Note Purchase Agreement), the Loan is due and payable on
June 30, 2008 (the “ Maturity Date
”);
WHEREAS, on the terms and
subject to the conditions of the Note Purchase Agreement, the
Company is obligated under certain circumstances to issue to
Sequoia warrants for a number of shares of common stock, par value
$0.01 per share, of the Company (“ Common Stock
”) specified in the Note Purchase Agreement (the “
Note Purchase Warrants ”);
WHEREAS, as of the date
hereof, Note Purchase Warrants for the purchase of
4,219 shares of Common Stock, with an exercise price of $3.95
per share, have been issued to Sequoia and are outstanding (the
“ Outstanding Note Purchase Warrant
”);
WHEREAS, pursuant to that
certain Common Stock and Warrant Purchase Agreement, dated as of
March 14, 2001, as amended (the “ Common Stock and
Warrant Agreement ”), the Company has issued to Sequoia a
warrant to purchase, in the aggregate, 250,000 shares of
Common Stock (the “ 2001 Warrant ”) at an
exercise price of $4.80 per share (such number of shares and
exercise price having taken into account all adjustments required
under the 2001 Warrant resulting from any applicable event that
occurred prior to the date hereof), subject to adjustment in
accordance with the terms of the 2001 Warrant resulting from any
applicable event occurring after the date hereof;
WHEREAS, neither the
Outstanding Note Purchase Warrant nor the 2001 Warrant has been
exercised in part or in whole, and the expiration date for exercise
of the Note Purchase Warrants (including the Outstanding Note
Purchase Warrant) and the 2001 Warrant are June 30, 2010 and
May 8, 2011, respectively;
WHEREAS, pursuant to the
terms of this Agreement, Sequoia has agreed to extend the Maturity
Date until September 30, 2008 (the “ New Maturity
Date ”); and
WHEREAS, in consideration for
Sequoia’s willingness to extend the Maturity Date to the New
Maturity Date, the Company desires to (i) extend the
expiration date of the Note Purchase Warrants (including the
Outstanding Note Purchase Warrant) and the 2001 Warrant to
June 30, 2014,
(ii) decrease the exercise price
for both the Note Purchase Warrants (including the Outstanding Note
Purchase Warrant) and the 2001 Warrant, in each case to $3.00 per
share, and (iii) pay to Sequoia a transaction fee in the
amount of $40,000.
NOW, THEREFORE, in
consideration of the foregoing and the respective covenants and
agreements set forth herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Amendment to Note Purchase
Agreement .
(a) The def
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