<PAGE> 1
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant /X/
Filed by a Party other than the Registrant / /
Check the appropriate box:
<TABLE>
<S> <C>
/X/ Preliminary Proxy Statement (Consent Statement) / / Confidential, for Use of the Commission
Only (as permitted by Rule 14a-6(e)(2))
/ / Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
</TABLE>
NATIONAL BEVERAGE CORP.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/X/ $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(i)(2) or
Item 22(a)(2) of Schedule 14A.
/ / $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
/ / Fee paid previously with preliminary materials.
/ / Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
<PAGE> 2
NATIONAL BEVERAGE CORP.
SOLICITATION OF CONSENT OF SHAREHOLDERS STATEMENT
INTRODUCTION
These materials are furnished in connection with the solicitation by
the Board of Directors of National Beverage Corp., a Delaware corporation (the
"Company"), of consents in writing for an amendment to the Company's Restated
Certificate of Incorporation. Only shareholders of record as of the close of
business on the record date will be entitled to tender their written consents
to the Company. This Solicitation of Consent of Shareholders Statement and
Consent Card are being sent to Shareholders on or about September ___, 1996.
The principal executive offices of the Company are located at One North
University Drive, Fort Lauderdale, Florida 33324 and its telephone number is
(954) 581-0922.
PURPOSE OF SOLICITATION OF CONSENT
The Company's Board of Directors has passed a resolution approving an
amendment to the Company's Restated Certificate of Incorporation. The
Company's Board of Directors is soliciting consents in writing to authorize the
proposed amendment to increase the number of authorized shares of Common Stock
from 20,000,000 to 50,000,000 shares. The full text of the proposed amendment
to the Restated Certificate of Incorporation is attached as Exhibit "A" and
incorporated herein by reference.
SOLICITATION OF WRITTEN CONSENTS
These solicitation materials are furnished in connection with the
solicitation of written consents by the Board of Directors and management of
the Company to be used as set forth herein.
Section 228 of the Delaware General Corporation Law states that,
unless otherwise provided in the certificate of incorporation, any action
required to be taken at any annual or special meeting of stockholders, or any
action that may be taken at any annual or special meeting of stockholders, may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, is signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize the Company to take such action at
a meeting at which all shares entitled to vote thereon were present and voted,
and those consents are delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business of an officer
or agent of the corporation having custody of the books in which proceedings
of meetings of stockholders are recorded. To be effective, the requisite
consents must be delivered to the Company within 60 days of the earliest dated
consent delivered to the Company.
If written consents of a majority of the Company's stockholders as of
September ___, 1996 are not received within sixty (60) days from the date on
which the Company
1
<PAGE> 3
first receives the written consent being solicited hereunder, then such written
consents shall be null and void and the request for written consents of the
shareholders for the approval of the proposed amendment to the Company's
Restated Certificate of Incorporation shall be deemed to have failed. However,
if written consents from a majority of the Company's stockholders of record
(less any such previously delivered written consents that may have been
rescinded by delivery of a written notice of rescission to the Company) are
received within such sixty (60) day period, then the proposed amendment to the
Company's Restated Certificate of Incorporation shall be approved.
Nick A. Caporella, Chairman, President and Chief Executive Officer of
the Company and the beneficial owner of 7,133,652 shares of Common Stock
(approximately 77.4% of the outstanding shares) has indicated that he will
execute a consent in favor of the proposed amendment to the Restated
Certificate of Incorporation. The Company has been advised by the American
Stock Exchange that no consent solicitation shall be effective until expiration
of fifteen days from the mailing of the consent solicitation materials.
Accordingly, upon expiration of the fifteen day period, the amendment will
have been approved by shareholders. This Solicitation of Consent of
Shareholder Statement also serves as notice for shareholders of any action
taken by less than unanimous written consent as required by Section 228(d) of
the Delaware General Corporation Law.
SUBMISSION OF WRITTEN CONSENTS
The Board of Directors of the Company has fixed the close of business
on September ___, 1996, as the record date (the "Record Date") for
determination of the shareholders of record entitled to notice of, and to
submit written consents in respect of the proposed amendment to the Company's
Restated Certificate of Incorporation. As of the Record Date, there were ____
shares of Common Stock outstanding and entitled to vote. Only holders of
record of the Company's Common Stock at the close of business on the Record
Date are entitled to notice and to submit written consents as solicited herein.
If you are a record holder of shares of Common Stock as of the close of
business on the Record Date, you may elect to consent to, withhold consent to,
or abstain, with respect to the proposal by marking the "CONSENT", "CONSENT
WITHHELD", or "ABSTAIN" box, as applicable, underneath the proposal on the
accompanying consent card.
VOTING SECURITIES AND PRINCIPAL HOLDERS
As of the Record Date, there were issued and outstanding ______ shares
of Common Stock, the only class of voting securities of the Company. Each
share of Common Stock entitles its holder to one vote.
Principal Stockholders
As of the Record Date the only persons known by the Company to own of
record or beneficially more than 5% of the outstanding Common Stock were the
following:
2
<PAGE> 4
<TABLE>
<CAPTION>
AMOUNT AND
NATURE OF
NAME AND ADDRESS BENEFICIAL PERCENT
OF BENEFICIAL OWNER TITLE OF CLASS OWNERSHIP OF CLASS
------------------- -------------- --------- --------
<S> <C> <C> <C>
Nick A. Caporella Common Stock 7,133,652(1) 77.4%
One North University Drive
Fort Lauderdale, Florida 33324
IBS Partners Ltd. Common Stock 6,937,968 75.3%
Three Riverway, Suite 440
Houston, Texas 77056
</TABLE>
(1) Includes 6,937,968 shares owned by IBS Partners Ltd. ("IBS").
IBS is a Texas limited partnership of which Mr. Caporella is
the sole general partner. By virtue of Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), Mr. Caporella would be deemed to beneficially
own the shares of Common Stock owned by IBS. Also includes
5,000 shares held by the wife of Mr. Caporella, as to which
Mr. Caporella disclaims beneficial ownership.
Management
The table below reflects as of the Record Date, the number of shares
of Common Stock beneficially owned by the directors and each executive officer
of the Company whose compensation exceeded $100,000 for fiscal year ended April
27, 1996, and the number of shares beneficially owned by all directors and
executive officers as a group:
<TABLE>
<CAPTION>
AMOUNT AND NATURE OF PERCENT
NAME OF BENEFICIAL OWNER BENEFICIAL OWNERSHIP OF CLASS
------------------------ -------------------- --------
<S> <C> <C> <C>
Nick A. Caporella 7,133,652 (1) 77.4%
Joseph G. Caporella 22,000 (2) *
S. Lee Kling 33,500 *
Joseph P. Klock, Jr. 6,000 (3) *
All executive officers and directors -- (4) 78.1%
as a group (7 in number)
</TABLE>
*Less than 1%
(1) Includes 6,937,968 shares held by IBS. Mr. Caporella is the
sole general partner of IBS. Also includes 5,000 shares held
by the wife of Mr. Caporella, as to which Mr. Caporella
disclaims beneficial ownership.
(2) Represents shares issuable upon exercise of currently
exercisable options.
(3) Includes 4,000 shares issuable upon exercise of currently
exercisable options.
(4) Includes _______ shares issuable upon exercise of currently
exercisable options.
PROPOSAL TO AMEND RESTATED CERTIFICATE OF INCORPORATION
On September , 1996, the Company's Board of Directors unanimously
approved a resolution to amend the Company's Restated Certificate of
Incorporation to increase the number of authorized shares of Common Stock from
20,000,000 shares to 50,000,000 shares. The Company currently has authorized
Twenty One Million (21,000,000) share of stock, of which 20,000,000 are
designated Common Stock and 1,000,000 are designated preferred stock.
3
<PAGE> 5
If the Amendment to the Restated Certificate of Incorporation is
approved, the Company would be authorized to issue 50,000,000 shares of Common
Stock. The proposed amendment would revise SECTION 1 of ARTICLE FOURTH of the
Company's Restated Certificate of Incorporation to read as follows:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is
Fifty One Million (51,000,000) shares, of which
fifty million (50,000,000) shall be Common Stock,
par value $.01 per share, and one million (1,000,000)
shall be preferred stock, par value $1.00 per share."
DESCRIPTION OF THE AMENDMENT TO BE APPROVED
The Company intends to amend its Restated Certificate of Incorporation
to provide for an increase in the number of authorized shares of Common Stock,
par value $.01 per share, by 30,000,000 shares, from 20,000,000 shares to
50,000,000 shares. The amendment has previously been unanimously approved by
the Company's Board of Directors. The additional shares of Common Stock will
have the same rights and privileges as the presently outstanding shares of
Common Stock. No holder of Common Stock of the Company has any preemptive
rights.
The authorized Common Stock of the Company presently consists of
20,000,000 shares of Common Stock, par value $.01 per share. As of the Record
Date, shares of such authorized shares were issued and outstanding
and shares were reserved for issuance under the Company's various stock
plans for currently outstanding stock awards.
On August 23, 1996, the Board of Directors of the Company declared a
two-for-one stock split by way of stock dividend payable to all holders of
record on September 9, 1996. The stock dividend is to be paid on October 25,
1996. Following the payment of the stock dividend, the Company will have
shares of Common Stock outstanding and shares reserved for
issuance under the Company's various stock plans for currently outstanding
stock awards. As a result of the stock dividend, the Company will have less
than 500,000 shares of Common Stock available for grant and the Board of
Directors of the Company deemed it prudent to amend the Restated Certificate of
Incorporation to increase the number of authorized shares of Common Stock
available for grant. Until such time as the Amendment is effective under
Delaware Law, the Company will not have more than 20,000,000 shares of Common
Stock outstanding at any time.
The increase in the number of authorized shares of Common Stock will
provide additional shares for issuance, without the delay and expense of
further stockholder approval, at such time or times and for such proper
corporate purposes as the Board of Directors may in the future deem advisable.
Such shares may be issued if and when the Board of Directors of the Company
decides it is in the best interest of the Company to obtain funds through the
sale of Common Stock, or if the Board should decide to declare a stock split or
stock dividend, or the Board determines to use shares of Common Stock in
connection with the possible acquisition of other products or businesses should
the opportunity arise, or in connection with the issuance of shares pursuant to
the Company's stock plans. Except for the two-for-one stock split by way of
stock dividend declared on August 23, 1996, and the issuance of shares of
common stock under
4
<PAGE> 6
Company stock plans, the Company currently has no plans or proposal to issue
any shares for any of such purposes. Unless required by applicable law, the
rules of the American Stock Exchange, Inc., the Company's Restated Certificate
of Incorporation or By-Laws, it is not anticipated that the Company will solicit
the votes of stockholders prior to the issuance of Common Stock for any of the
purposes described above.
Since the amount of the Delaware franchise taxes payable by the
Company is based in part on the number of shares of the capital stock which are
authorized by the Company's Restated Certificate of Incorporation, the increase
in the number of shares of authorized Common Stock by 30,000,000 shares, will
increase the annual franchise taxes payable by the Company per year by
approximately $10,000.00.
THE BOARD OF DIRECTORS OF THE COMPANY RECOMMENDS THAT YOU CONSENT TO THE ABOVE
PROPOSAL.
EFFECTIVENESS OF AMENDMENT
If the amendment to the Restated Certificate of Incorporation is
approved, upon filing of the Certificate of Amendment to the Certificate of
Incorporation of the Company with the Secretary of State of the State of
Delaware, the amendment will become effective.
Under applicable Delaware Law, stockholders are not entitled to
dissenters' rights of appraisal with respect to the proposed amendments to the
Company's Certificate of Incorporation.
THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Exchange Act requires the Company's executive
officers, directors and persons who own more than ten percent (10%) of a
registered class of the Company's equity securities to file reports of
ownership and changes in ownership with the Securities and Exchange Commission
(the "Commission"). Executive officers, directors and greater than ten percent
(10%) beneficial owners are required by regulation of the Commission to furnish
the Company with copies of all Section 16(a) forms so filed.
Based solely upon a review of the Forms 3, 4 and 5 and amendments
thereto and certain written representations furnished to the Company, the
Company believes that, during the fiscal year ended April 27, 1996, its
executive officers, directors and greater than ten percent (10%) beneficial
owners complied with all applicable filing requirements.
AUDITORS
The Company's independent public auditors are Coopers & Lybrand, L.L.P.
MISCELLANEOUS
All of the costs and expenses in connection with the preparation and mailing of
this Solicitation of Consent of Shareholders Statement and the solicitation of
consents will
5
<PAGE> 7
be borne by the Company. Solicitation of consents may be made by the
directors, officers and other employees of the Company and its affiliates. No
such persons will receive additional compensation for such solicitation. The
Company will request banks, brokerage houses and other custodians, nominees and
fiduciaries to forward copies of this Solicitation of Consent of Shareholders
Statement to their principals.
YOUR CONSENT IS IMPORTANT. PLEASE MARK, SIGN AND DATE THE ENCLOSED CONSENT CARD
AND RETURN IN THE ENCLOSED POSTAGE PAID ENVELOPE PROMPTLY.
By Order of the Board of Directors:
September ___, 1996 ______________________________________
NICK A. CAPORELLA
Chairman
6
<PAGE> 8
CONSENT CARD
CONSENT BY SHAREHOLDERS OF NATIONAL BEVERAGE CORP. TO ACTION WITHOUT A MEETING
This written consent is being solicited on behalf of the Board of
Directors.
The undersigned, a stockholder of record of National Beverage Corp.
(the "Company") hereby takes the action indicated below pursuant to Section 228
of the Delaware General Corporation Law, with respect to all shares of Common
Stock, par value of $.01 per share, of the Company held by the undersigned to
the proposal set forth below, without a meeting, without prior notice and
without a vote:
RESOLVED, that the Restated Certificate of Incorporation of this
Corporation be amended by changing SECTION 1, ARTICLE FOURTH thereof so that,
as amended, such Article shall be read as follows:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is
Fifty One Million (51,000,000) shares, of which fifty
million (50,000,000) shall be Common Stock, par value
$.01 per share, and one million (1,000,000) shall be
preferred stock, par value $1.00 per share."
[ ] CONSENT [ ] CONSENT WITHHELD [ ] ABSTAIN
IF NO BOX IS MARKED ABOVE, THE UNDERSIGNED WILL BE DEEMED TO CONSENT
TO SUCH PROPOSAL.
Please sign exactly as your name appears below. When shares are held
by joint tenants, both should sign. When signing as attorney, executor,
administrator, trustee or guardian, please give full title as such. If a
corporation, please sign in the full corporate name by President or other
authorized officer. If a partnership, please sign in the partnership name by
authorized person.
Dated this ___ day of _______________ , 1996.
[Label stating name of stockholder
and number of shares held]
________________________________
Signature
________________________________
Signature if held jointly
PLEASE SIGN, DATE AND RETURN THIS
WRITTEN CONSENT PROMPTLY
USING THE ENCLOSED ENVELOPE
<PAGE> 9
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NATIONAL BEVERAGE CORP.
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
_______________________________________________________
NATIONAL BEVERAGE CORP., a corporation organized and existing under
the laws of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: The name of the corporation is National Beverage Corp. (the
"Corporation"). The Corporation was originally incorporated under the same
name, and the original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on November 1, 1985, and was
restated pursuant to a Restated Certificate of Incorporation filed with the
Secretary of State of the State of Delaware on February 8, 1990, and further
amended pursuant to a Certificate of Amendment of Certificate of Incorporation
filed with the Secretary of State of the State of Delaware on December 23,
1992.
SECOND: That the Board of Directors of said Corporation at a meeting
held on September , 1996 unanimously approved a resolution proposing and
declaring advisable the following amendment to the Certificate of Incorporation
of said Corporation:
"RESOLVED, that the Certificate of Incorporation of the Corporation be
amended to increase the authorized capital of the Corporation by
deleting SECTION 1 of Article "FOURTH" thereof in its entirety and
substituting thereof a new SECTION 1 of Article "FOURTH" that shall
read as follows:
SECTION 1. Authorized Capital. The total
number of shares of stock which the Corporation shall have
authority to issue is fifty-one million (51,000,000) shares,
of which fifty million (50,000,000) shares shall be common
stock, par value $.01 per share, and one million (1,000,000)
shares shall be preferred stock, par value $1.00 per share."
THIRD: Pursuant to Section 228 of the General Corporation Law of the
State of Delaware, holders of a majority of the outstanding stock voted in
favor of said amendment and proper notice has been provided to shareholders
under Section 228(d) of the General Corporation Law of the State of Delaware.
<PAGE> 10
FOURTH: That the aforementioned amendment was duly adopted in
accordance with the applicable provisions of Section 242 of the General
Corporation Law.
IN WITNESS WHEREOF, this Certificate of Amendment has been signed and
alleged to under penalties of perjury this ___ day of _________ , 1996.
NATIONAL BEVERAGE CORP.
By: ________________________________
Nick A. Caporella
President
Attest:
________________________________
Joseph G. Caporella
Secretary
