<PAGE>
As filed with the Securities and Exchange Commission on July 6, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
Form S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
HINES HORTICULTURE, INC.
(Exact name of registrant as specified in its charter)
----------------
Delaware 33-0803204
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
12621 Jeffrey Road
Irvine, California 92620
(Address of Principal (Zip Code)
Executive Offices)
HINES HORTICULTURE, INC. 1998 LONG-TERM EQUITY INCENTIVE PLAN
(Full Title of the Plan)
Claudia M. Pieropan
Chief Financial Officer
12621 Jeffrey Road
Irvine, California 92620
(714) 559-4444
(Name, address including zip code, and telephone number,
including area code, of Agent for Service)
Copy to:
Michael H. Kerr, P.C.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered per share offering price fee
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share ...... 2,589,210 shares $11.00 (1) $28,481,310 $8,402
- ------------------------------------------------------------------------------------------------
</TABLE>
/(1)/ Estimated pursuant to Rule 457(c) solely for purposes of calculating
amount of registration fee, based upon the price at which the options may
be exercised.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I will be
delivered in accordance with Rule 428(b)(1) of the Securities Act of 1933, as
amended ("Securities Act"). Such documents are not required to be, and are not,
filed with the Securities and Exchange Commission ("Commission") either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents, and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of this
Form S-8, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in the Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the Hines Horticulture, Inc. 1998 Long-Term Equity
Incentive Plan (the "Plan") are available without charge by contacting:
Claudia M. Pieropan
Chief Financial Officer
Hines Horticulture, Inc.
12621 Jeffrey Road
Irvine, California 92620
(714) 559-4444
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Hines Horticulture, Inc.
(the "Registrant" or the "Corporation") with the Commission, are incorporated in
this Registration Statement by reference:
(a) The Registrant's Prospectus, dated June 22, 1998, filed pursuant
to Rule 424(b) of the Securities Act, which relates to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-51943).
(b) Hines Holdings, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998 (Registration File No. 33-99452).
(c) The description of the Registrant's common stock, par value $.01
per share (the "Common Stock"), as included under the caption "Description
of Capital Stock" in the Prospectus forming a part of the Registrant's
Registration Statement on Form S-1, initially filed with the Commission on
May 6, 1998 (Registration No. 333-51943), including exhibits, and as may be
subsequently amended from time to time, which description has been
incorporated by reference in Item 1 of the Registrant's Registration
Statement on Form 8-A, filed pursuant to Section 12 of the Securities
Exchange Act of 1934 (the "Exchange Act") on June 11, 1998 (Registration
No. 000-24439).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be part hereof from the date of
the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities. Not Applicable.
Item 5. Interests of Named Experts and Counsel. Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any transaction from which the director
derives an improper personal benefit, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) for improper payment of dividends or redemptions of shares or (iv) for any
breach of a director's duty of loyalty to the company or its stockholders. The
Registrant's Restated Certificate of Incorporation (the "Restated Certificate")
includes a provision which provides, to the fullest extent permitted by the
DGCL, no director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages arising from a breach of fiduciary duty owed
to the Corporation or its stockholders.
The Corporation's Restated Certificate provides that each person who was or
is made a party or is threatened to be made a party to or is otherwise involved
(including involvement as a witness) in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding"), by reason of
the fact that he or she is or was a director or officer of the Registrant or,
while a director or officer of the Corporation, is or was serving at the request
of the Registrant as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (an "indemnitee"),
whether the basis of such proceeding is alleged action in an official capacity
as a director or officer or in any other capacity while serving as a director or
officer, will be indemnified and held harmless by the Registrant to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Registrant to provide broader indemnification rights then permitted
prior thereto), against all
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<PAGE>
expense, liability and loss (including attorneys' fees, judgment, fines, excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
will continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators under the Restated Certificate. This right of
indemnification is a contractual right and includes the obligation of the
Corporation to pay the expenses incurred in defending any such proceeding in
advance of its final disposition (an "advance of expenses"); provided, however,
that, if and to the extent that the DGCL requires, an advance of expenses
incurred by indemnitee in his or her capacity as a director of officer (and not
in any other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) will be made
only upon delivery to the Registrant of an undertaking (an "undertaking"), by or
on behalf of such indemnitee, to repay all amounts so advanced if it will
ultimately be determined by final judicial decision from which there is no
further right to appeal (a "final adjudication") that such indemnitee is not
entitled to be indemnified for such expenses. The Registrant may, by action of
its Board of Directors, provide indemnification to employees and agents of the
Registrant with the same or lesser scope and effect as the foregoing
indemnification of directors and officers.
Item 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits. An Exhibit Index is located at page 7.
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
3.1 Restated Certificate of Incorporation of the Corporation,
incorporated by reference to Exhibit 3.1 of the Corporation's
Registration Statement on Form S-1 (Registration File No.
333-51943).
3.2 Amended and Restated Bylaws of the Corporation, incorporated by
reference to Exhibit 3.2 of the Corporation's Registration
Statement on Form S-1 (Registration File No. 333-51943).
4.1 Form of certificate representing shares of Common Stock, par value
$.01 per share, incorporated by reference to Exhibit 4.1 of the
Corporation's Registration Statement on Form S-1 (Registration
File No. 333-51943).
5.1 Opinion of Kirkland & Ellis with respect to the legality of the
shares of the Common Stock being registered hereby.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of Kirkland & Ellis (included in Exhibit 5.1).
</TABLE>
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 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; and (iii) to
include any material information with respect to the plan of distribution
not previously disclosed in this Registration Statement or any material
change to such information in this 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; and (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 Section 15(d)
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<PAGE>
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 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 herein, 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
the final adjudication of such issue.
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<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, 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 July 6, 1998.
HINES HORTICULTURE, INC.
By /s/ Claudia M. Pieropan
------------------------------------------
Claudia M. Pieropan
Chief Financial Officer, Secretary and
Treasurer
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 July 6, 1998.
Signature Title
- --------- -----
/s/ Douglas D. Allen Chairman of the Board
- ----------------------------------
Douglas D. Allen
/s/ Stephen P. Thigpen President, Chief Executive Officer
- ---------------------------------- and Director
Stephen P. Thigpen (principal executive officer)
/s/ Claudia M. Pieropan Chief Financial Officer, Secretary
- ---------------------------------- and Treasurer
Claudia M. Pieropan (principal financial and accounting
officer)
/s/ Paul R. Wood Assistant Secretary and Director
- ----------------------------------
Paul R. Wood
/s/ Thomas R. Reusche Assistant Secretary and Director
- ----------------------------------
Thomas R. Reusche
/s/ David F. Mosher Director
- ----------------------------------
David F. Mosher
/s/ Gary J. Little Director
- ----------------------------------
Gary J. Little
-6-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
<C> <S>
3.1 Restated Certificate of Incorporation of the Corporation,
incorporated by reference to Exhibit 3.1 of the Corporation's
Registration Statement on Form S-1 (Registration File No. 333-
51943).
3.2 Amended and Restated Bylaws of the Corporation, incorporated by
reference to Exhibit 3.2 of the Corporation's Registration Statement
on Form S -1 (Registration File No. 333-51943).
4.1 Form of certificate representing shares of Common Stock, $0.01 par
value per share, incorporated by reference to Exhibit 4.1 of the
Corporation's Registration Statement on Form S-1 (Registration File
No. 333-51943).
5.1 Opinion of Kirkland & Ellis with respect to the legality of the
Shares of the Common Stock being registered hereby.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of Kirkland & Ellis (included in Exhibit 5.1).
</TABLE>
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<PAGE>
KIRKLAND & ELLIS
PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS
200 East Randolph Drive
Chicago, Illinois 60601
Exhibit 5.1
To Call Writer Direct: 312 861-2000 Facsimile:
312 861-2000 312 861-2200
July 6, 1998
Hines Horticulture, Inc.
12621 Jeffrey Road
Irvine, CA 92620
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We are acting as special counsel to Hines Horticulture, Inc., a Delaware
corporation (the "Company"), in connection with the proposed registration by the
Company of 2,589,210 shares (the "Shares") of its Common Stock, par value $.01
per share (the "Common Stock"), pursuant to a Registration Statement on Form
S-8, filed with the Securities and Exchange Commission (the "Commission") on the
date hereof under the Securities Act of 1933, as amended (the "Act") (such
Registration Statement, as amended or supplemented, is hereinafter referred to
as the "Registration Statement"). The Shares are to be issued by the Company to
certain officers, directors and employees of the Company and its subsidiaries
pursuant to the Company's 1998 Long-Term Equity Incentive Plan (the "Plan").
In that connection, we have examined such corporate proceedings, documents,
records and matters of law as we have deemed necessary to enable us to render
this opinion.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the legal capacity of
all natural persons, the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, the authority of
such persons signing on behalf of the parties thereto other than the Company and
the due authorization, execution and delivery of all documents by the parties
thereto other than the Company. As to any facts material to the opinions
expressed herein, we have relied upon the statements and representations of
officers and other representations of the Company and others.
<PAGE>
KIRKLAND & ELLIS
July 6, 1998
Page 2
Our opinion expressed below is subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the enforcement of
creditors' rights generally; (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law); (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies; and (iv) any laws except the internal laws of the State of
Illinois, the General Corporation law of the State of Delaware and the federal
law of the United States of America.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we hereby advise you
that in our opinion:
(1) The Plan has been duly adopted by the Board of Directors of the
Company.
(2) The Shares are duly authorized and validly reserved for issuance
pursuant to the Plan and, when: (i) the Registration Statement becomes effective
under the Act; (ii) the Shares are issued in accordance with the terms of the
Plan; (iii) the recipient provides the full consideration for such Shares as
required by the terms of the Plan (assuming in each case the consideration
received by the Company is at least equal to $0.01 per share); and (iv)
certificates representing the Shares have been duly executed and delivered on
behalf of the Company and duly countersigned by the Company's transfer
agent/registrar, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the States of Illinois or Delaware or the federal law of the United
States be changed by legislative action, judicial decision or otherwise.
<PAGE>
KIRKLAND & ELLIS
July 6, 1998
Page 3
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
<PAGE>
EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 16, 1998, except as to Note 2,
which is as of May 8, 1998, and Note 22, which is as of June 22, 1998, appearing
on page F-2 of Hines Horticulture, Inc.'s (formerly Hines Holdings, Inc.)
Prospectus dated June 22, 1998, filed pursuant to Rule 424(b) of the Securities
Act, which relates to Hines Horticulture, Inc.'s Registration Statement on Form
S-1 (No. 333-51943).
PRICEWATERHOUSECOOPERS LLP
Costa Mesa, California
July 6, 1998
<PAGE>
EXHIBIT 23.2
Consent of Independent Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated April
5, 1996 on Hines Horticulture, Inc.'s (formerly Hines Holdings, Inc.)
financial statements for the year ended December 31, 1995 included in the
Company's Prospectus dated June 22, 1998, filed pursuant to Rule 424(b) of the
Securities Act, which relates to the Hines Horticulture Inc.'s Registration
Statement on Form S-1 (No. 333-51943), and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
Orange County, California
July 6, 1998
<PAGE>
EXHIBIT 23.3
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Hines Horticulture, Inc. (formerly Hines Holdings,
Inc.) of our report dated April 4, 1996 relating to the financial statements of
Sun Gro Horticulture Inc. for the year ended December 31, 1995.
PRICEWATERHOUSECOOPERS LLP
Seattle, Washington
July 6, 1998
