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As filed with the Securities and Exchange Commission on October 2, 1998
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HAWAIIAN NATURAL WATER COMPANY, INC.
(Exact name of Registrant as specified in its charter)
HAWAII 99-0314848
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
248 MOKAUEA STREET, HONOLULU, HAWAII 96819
(Address of principal executive offices) (Zip Code)
HAWAIIAN NATURAL WATER COMPANY, INC.
1998 STOCK OPTION PLAN
(Full title of the plan)
MARCUS BENDER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HAWAIIAN NATURAL WATER COMPANY, INC.
248 MOKAUEA STREET
HONOLULU, HAWAII 96819
(Name and address of agent for service)
(808) 832-4550
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, no par value 1,000,000(1) $4-1/4(2) $4,250,000(2) $1,254
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(1) Pursuant to Rule 416 under the Securities Act, this Registration
Statement also covers such additional shares of Common Stock as may become
issuable to prevent dilution resulting from stock splits, stock dividends
and similar events.
(2) Calculated pursuant to Rule 457(h) under the Securities Act, based upon the
average of the high and low sales prices of the Registrant's Common Stock on
September 25, 1998, as reported by the Nasdaq SmallCap Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents previously filed by Hawaiian Natural Water Company,
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") under the Securities Exchange Act of 1934 (the "Exchange Act")
are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10K-SB for the fiscal
year ended December 31, 1997;
(b) The Registrant's Quarterly Reports on Form 10Q-SB for the
quarters ended March 31, 1998 and June 30, 1998,
respectively; and
(c) The description of the Registrant's Common Stock contained in
the Company's registration statement on Form 8-A dated
April 21, 1997.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
and 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 incorporated by reference
into this Registration Statement and made a part hereof from the date of
filing of such documents. Any statement incorporated by reference herein
shall be deemed modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document that is also incorporated herein by reference
modifies or supersedes such statement. Any such 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
Article IX of the Registrant's Articles of Incorporation provides
as follows:
"Each director or officer of this corporation, and his legal
representatives, shall be indemnified by the corporation against
liabilities, expenses, counsel fees and costs reasonably incurred by him
or his estate in connection with, or arising out of, any action, suit,
proceeding or claim in which he is made a party by reason of his being or
having been such a director or officer; and any person who, at the request
of this corporation, serves as director or officer of another corporation
in which this corporation owned corporate stock, and his legal
representative, shall in like manner be indemnified by this corporation;
provided, that in neither case shall the corporation indemnify such
director or officer with respect to any matter as to which he shall be
finally adjudged liable for negligence or misconduct in the performance
of this duty to the corporation unless and only to the extent that the
Court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such Court shall deem
proper, and shall further be indemnified as to any compromise or
settlement of any such action, suit or proceeding or claim asserted
against such director or officer (including expenses, counsel fees
and costs reasonably incurred in connection therewith), provided the
Board of Directors shall have first approved such proposed compromise
settlement and determined the officer or director involved was not
guilty of negligence or misconduct; but, in taking such action, any
director involved shall not be qualified to vote thereon, and if for
this reason a quorum of the Board cannot be obtained to vote on such
matter, it shall be determined by a committee of three (3) persons
appointed by the shareholders at a duly called special meeting or a
regular meeting. In determining whether or not a director or officer
was guilty of negligence or misconduct in relation to any such matter,
the Board of Directors or committee appointed by the shareholders, as
the case may be, may rely conclusively upon an opinion of independent
counsel selected by such Board or Committee. The right to indemnification
herein provided shall not be exclusive of any other right to which such
director or officer may be lawfully entitled.
The Registrant maintains liability insurance on behalf of its officers
and directors. The Registrant has not entered into any indemnity agreements,
and has no indemnification arrangements, with any of its officers and
directors except as described above.
Item 7. Exemption from Registration Claimed
Not applicable.
II-1
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Item 8. Exhibits.
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Specimen Stock Certificate for the Registrant's
Common Stock (Incorporated by reference to Exhibit 4.1
to the Registrant's Quarterly Report on Form 10Q-SB for the
quarter ended June 30, 1997)
4.2 Reference is made to the Registrant's Registration Statement
on Form 8-A (No. 0-29280), which is incorporated herein by
reference pursuant to Item 3(c).
5.1 Opinion of Graham & James LLP re legality
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Graham & James (included in Exhibit 5.1 hereto)
24.1 Power of Attorney (included on page II-4)
99.1 1998 Stock Option Plan (including exhibits thereto) (Incorporated
by reference to Exhibit 10.1 to the Registrant's Quarterly Report on
Form 10Q-SB for the quarter ended June 30, 1998)
</TABLE>
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made pursuant to Rule 415 under the Securities Act, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in the total dollar value of securities offered, if the total
dollar value of securities offered would not exceed that which was
registered and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
""Calculation of Registration Fee'' table in the effective
registration statement;
(iii) Include any additional or changed material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement.
Provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is incorporated by reference
from periodic reports filed with the Commission by the Registrant under
the Exchange Act.
(2) That, for purposes of determining any liability under the Securities
Act, treat each such post-effective amendment as a new registration statement
of the securities offered, and the offering of such securities at that time
as the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration
any of the securities being registered that remain unsold at the termination
of the offering.
II-2
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Insofar as the indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under Item 15
above, 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.
II-3
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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 Honolulu, State of Hawaii on
September 30, 1998.
HAWAIIAN NATURAL WATER COMPANY, INC.
By /s/ Marcus Bender
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Marcus Bender
President & Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Marcus Bender and David Laeha, and
each of them, his attorneys-in-fact, each with the power of substitution, for
him in any and all capacities, to sign any amendments to this registration
statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may 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 and on the dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
President and Chief
/s/ Marcus Bender Executive Officer and
- ---------------------------------- Director (Principal September 30, 1998
Marcus Bender Executive Officer)
/s/ David Laeha Chief Financial Officer
- ---------------------------------- (Principal Financial and September 30, 1998
David Laeha Accounting Officer)
/s/ Brian Barbata
- ---------------------------------- Director September 30, 1998
Brian Barbata
/s/ Michael Chagami
- ---------------------------------- Director September 30, 1998
Michael Chagami
/s/ Keijiro Sorimachi
- --------------------------------- Director September 30, 1998
Keijiro Sorimachi
</TABLE>
II-4
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EXHIBIT 5.1
[Letterhead of Graham & James LLP]
September 30, 1998
Hawaiian Natural Water Company, Inc.
248 Mokauea Street
Honolulu, Hawaii 96819
Gentlemen:
We have acted as special counsel to Hawaiian Natural Water Company,
Inc., a Hawaii corporation (the "Company"), in connection with the
preparation of a registration statement (the "Registration Statement") on
Form S-8 relating to an aggregate of up to 1,000,000 shares of Common Stock,
no par value, of the Company (collectively, the "Option Shares"), issuable
upon the exercise of options (the "Options") which may be granted from time
to time under the Company's 1998 Stock Option Plan (the "Plan").
In connection with the opinion expressed herein, we have examined, among
other things, certified copies of the Company's Articles of Incorporation and
By-Laws, as amended to date, as well as records of corporate proceedings and
other actions taken by the Company in connection with the establishment of
the Plan. We have also examined the Plan documents, including the form of
Option Agreements (each an "Option Agreement") pursuant to which Options may
be granted.
Based upon our examination of the foregoing, and such other matters of
fact or law as we have deemed necessary for purposes hereof, it is our
opinion that:
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Hawaiian Natural Water Company, Inc.
September 30, 1998
Page 2
When issued and paid for upon exercise of the Options in accordance with
the terms and conditions of the Plan and the applicable Option Agreement, the
Option Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
GRAHAM & JAMES LLP
By: /s/ Richard P. Manson
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Richard P. Manson,
Of Counsel
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EXHIBIT 23.1
[Arthur Andersen LLP letterhead]
As independent accountants, we hereby consent to the incorporation by
reference into this registration statement of our report dated March 20,
1998, included in the Annual Report on Form 10K-SB of Hawaiian Natural Water
Company, Inc. for the year ended December 31, 1997, and to all references to
our Firm included in this registration statement.
