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As filed with the Securities and Exchange Commission on April 18, 2000
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
HAUSER, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-0926801
-------- ----------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
5555 Airport Blvd.
Boulder, Colorado 80301
(303) 546-1300
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
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Hauser, Inc. 1999 Stock Incentive Plan
Hauser, Inc. 1999 Stock Purchase Plan
(Full title of the plans)
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Ralph L. Heimann
Secretary and Chief Financial Officer
5555 Airport Blvd.
Boulder, Colorado 80301
(303) 546-1300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
================ ================ ==================== ==================== ===============
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to registered (1) offering price per aggregate offering registration
be registered share (2) price (2) fee
- ---------------- ---------------- -------------------- -------------------- ---------------
Common Stock,
$0.001 par value
per share 1,000,000 $2.00 $2,000,000 $528
================ ================ ==================== ==================== ===============
</TABLE>
(1) Represents 850,000 shares of common stock of Hauser, Inc. (the "Common
Stock") issuable pursuant to the Hauser, Inc. 1999 Stock Incentive Plan
(the "Incentive Plan") and 150,000 shares of Common Stock issuable pursuant
to the Hauser, Inc. Stock Purchase Plan (the "Purchase Plan")
(collectively, the "Plans"). In addition, this Registration Statement
covers an indeterminable number of additional shares as may hereafter be
offered or issued, pursuant to the Plans, to prevent dilution resulting
from stock splits, stock dividends or similar transactions effected without
the receipt of consideration and, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the "Securities Act").
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange Commission
(the "Commission") by Hauser, Inc., a Delaware corporation (the "Company"), are
incorporated by reference into the Registration Statement:
(a) The Company's Annual Report on Form 10-K (File No. 0-17174) for the
fiscal year ending April 30, 1999, as amended by the amendment on Form
10-K/A, filed on October 27, 1999 pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
July 31, 1999, October 31, 1999 and January 31, 2000, filed pursuant to the
Exchange Act;
(c) The Company's Current Reports on Form 8-K, filed August 12, 1999,
September 9, 1999, December 14, 1999 and January 14, 2000 pursuant to the
Exchange Act; and
(d) The description of the Common Stock under the caption "Description of
Registrant's Securities to be Registered" incorporated by reference into
the Company's Registration Statement on Form 8-A, filed on October 4, 1988
pursuant to the Exchange Act and contained in the Company's Prospectus,
filed on November 5, 1986 pursuant to the Securities Act as part of the
Company's Registration Statement on Form S-18 (No. 2-99268-NY) under the
caption "Description of Securities", as amended by the information under
the caption "Description of Capital Stock" contained in the Company's
Registration Statement on Form S-2, filed on October 16, 1992 pursuant to
the Securities Act.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of the filing of such documents with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which also is
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incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being passed
upon for the Company by Willkie Farr & Gallagher. As of the date of this
Registration Statement, Harvey L. Sperry, a partner of Willkie Farr & Gallagher,
is a non-employee director of the Company and is the beneficial owner of
73,695 shares of Common Stock. Mr. Sperry may receive discretionary grants of
Common Stock in lieu of cash compensation under the Incentive Plan to the same
degree as other non-employee directors of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Delaware law, corporations may limit the liability of directors,
except in connection with the following instances: (a) breaches of the
director's duty of loyalty to the corporation or its shareholders; (b) acts or
omissions not in good faith, or involving intentional misconduct or knowing
violation of law; (c) the payment of unlawful dividends or unlawful stock
repurchases or redemptions; or (d) transactions in which the director received
an improper personal benefit. Such limitation of liability provision does not
limit the liability of a director for violation of, or otherwise relieve the
Company or its directors from the necessity of complying with, federal or state
securities laws or affect the availability of non-monetary remedies such as
injunctive relief or rescission.
The Company's Certificate of Incorporation eliminates the liability of
directors to the fullest extent permissible under Delaware law, as such law
currently exists or as it may be amended in the future. Furthermore, a provision
of Delaware law states that the indemnification provided by statute shall not be
deemed exclusive of any other rights under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
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Item 8. EXHIBITS
Exhibit No. Description of Exhibits
- ----------- -----------------------
5 Opinion of Willkie Farr & Gallagher regarding the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (included in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to the 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 the 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;
(iii) to include any 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)(i) and (a)(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 by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
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(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or 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 therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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 Boulder, State of Colorado, on this 18th day of April, 2000.
HAUSER, INC.
By: /s/ Volker Wypyszyk
------------------------------
Volker Wypyszyk
Chief Executive Officer
By: /s/ Ralph L. Heimann
------------------------------
Ralph L. Heimann
Secretary and Chief Financial
Officer (Principal Financial Officer
and Principal Accounting Officer)
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Directors
- ---------
Name Title Date
---- ----- ----
By: /s/ Volker Wypyszyk Director April 18, 2000
------------------------------
Volker Wypyszyk
By: /s/ Dean P. Stull Director April 18, 2000
------------------------------
Dean P. Stull
By: Director April 18, 2000
------------------------------
Rudolfo C. Bryce
By: Director April 18, 2000
------------------------------
William E. Coleman
By: Director April 18, 2000
------------------------------
Michael C. Davis
By: /s/ Herbert Elish Director April 18, 2000
------------------------------
Herbert Elish
By: Director April 18, 2000
------------------------------
James R. Mellor
By: /s/ Robert F. Saydah Director April 18, 2000
------------------------------
Robert F. Saydah
By: /s/ Harvey L. Sperry Director April 18, 2000
------------------------------
Harvey L. Sperry
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POWER OF ATTORNEY
Each of the undersigned officers and directors of Hauser, Inc. hereby
severally constitutes and appoints Ralph L. Heimann as the attorney-in-fact for
the undersigned, in any and all capacities, with full power of substitution, to
sign any and all pre- or post-effective amendments to this Registration
Statement, any subsequent Registration Statement for the same offering which may
be filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
and any and all pre- or post-effective amendments thereto, and to file the same
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each said attorney-in-fact may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
By: /s/ Volker Wypyszyk Chief Executive Officer, April 18, 2000
------------------------------ President and Director
Volker Wypyszyk
By: /s/ Dean P. Stull Chairman of the Board April 18, 2000
------------------------------
Dean P. Stull
By: /s/ Ralph L. Heimann Secretary and Chief Financial April 18, 2000
------------------------------ Officer (Principal Financial
Ralph L. Heimann Officer and Principal
Accounting Officer)
By: Director April 18, 2000
------------------------------
Rudolfo C. Bryce
By: Director April 18, 2000
------------------------------
William E. Coleman
By: Director April 18, 2000
------------------------------
Michael C. Davis
By: /s/ Herbert Elish Director April 18, 2000
------------------------------
Herbert Elish
<PAGE>
By: Director April 18, 2000
------------------------------
James R. Mellor
By: /s/ Robert F. Saydah Director April 18, 2000
------------------------------
Robert F. Saydah
By: /s/ Harvey L. Sperry Director April 18, 2000
------------------------------
Harvey L. Sperry
</TABLE>
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
5 Opinion of Willkie Farr & Gallagher regarding the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (included in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
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WILLKIE FARR & GALLAGHER
787 Seventh Avenue
New York, NY 10019-6099
April 18, 2000
Hauser, Inc.
5555 Airport Boulevard
Boulder, CO 80301
Ladies and Gentlemen:
We have acted as counsel to Hauser, Inc. (the "Company"), a corporation
organized under the laws of the State of Delaware, with respect to the Company's
Registration Statement on Form S-8 (the "Registration Statement") to be filed by
the Company with the Securities and Exchange Commission on or about April, 2000,
in connection with the registration under the Securities Act of 1933, as amended
(the "Act"), by the Company of 850,000 shares of the Company's common stock, par
value $0.001 per share (the "Common Stock"), issuable under the Hauser, Inc.
1999 Stock Incentive Plan (the "Incentive Plan") and 150,000 shares of Common
Stock issuable under the Hauser, Inc. 1999 Stock Purchase Plan (the "Stock
Purchase Plan" and, together with the Incentive Plan, the "Plans"). "Company
Shares" hereafter refers to shares of Common Stock issuable under the Plans.
We have examined copies of the Certificate of Incorporation and By-Laws of the
Company, the Registration Statement and resolutions adopted by the Company's
Board of Directors. We have also examined such other documents, papers, statutes
and authorities as we have deemed necessary to form a basis for the opinion
hereinafter expressed.
In our examination, we have assumed the genuineness of all signatures and the
conformity to original documents of all copies submitted to us. As to various
questions of fact material to our opinion, we have relied on statements and
certificates of officers and representatives of the Company.
Based on the foregoing, we are of the opinion that, when the Registration
Statement has become effective under the Act, the Company Shares, when duly
issued, sold and paid for in accordance with the terms of the Plans, will be
legally issued, fully paid and non-assessable.
We are qualified to practice law in the State of New York and do not purport to
be experts on, or to express any opinion herein, concerning any law, other than
the laws of the State of New York, the General Corporation Law of the State of
Delaware and the federal laws of the United States of America.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
incorporated by reference in this registration statement of our report dated
June 14, 1999 included in Hauser, Inc.'s Form 10-K for the year ended April 30,
1999 and to all references to our Firm included in this registration statement.
/s/ Arthur Anderson LLP
Denver, Colorado,
April 17, 2000
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EXHIBIT 23.2
(Contained in Exhibit 5)
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EXHIBIT 24
(Reference is made to the signature page)
