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As filed with the Securities and Exchange Commission on October 15, 1999
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HANSEN NATURAL CORPORATION
(Exact Name of Issuer as Specified in its Charter)
Delaware 39-1679918
(State of Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2380 Railroad Street, Suite 101
Corona, California 92880-5471
(Address of Principal Executive Offices) (Zip Code)
Hansen Natural Corporation Stock Option Plan
(Full Title of the Plan)
Rodney C. Sacks, Chairman
Hansen Natural Corporation
2380 Railroad Street, Suite 101
Corona, California 92880-5471
(Name and Address of Agent for Service)
(909) 739-6200
(Telephone Number, including area code, of Agent for Service)
Copy to:
Benjamin M. Polk, Esq.
Whitman Breed Abbott & Morgan LLP
200 Park Avenue
New York, New York 10166
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share* Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 $4.88 $4,880,000 $1,357
- ----------------------------------------------------------------------------------------------------
* Estimated solely for the purpose of computing the registration fee
pursuant to Rules 457(c) and (h) of the Securities Act of 1933 on the
basis of the average of the bid and asked price of the Registrant's
Common Stock on October 11, 1999 as reported on the NASDAQ Small Cap
Market System.
</TABLE>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Item 2. Registrant Information and Employee Plan Annual Information
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The Company's Annual Report on Form 10-K for the year ended
December 31, 1998, its Quarterly Reports on Form 10-Q for the periods ended
March 31 and June 30, 1999 and the description of the Common Stock contained in
Post-Effective Amendment No. 12 to the Company's Registration Statement (No.
33-35796) on Form S-3 filed August 4, 1993, are incorporated herein by
reference, and all documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this registration
statement and prior to the termination of the offering of the Shares shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of 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 incorporated or deemed to be incorporated by reference herein 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
Certain legal matters relating to the Common Stock offered hereby
are being passed upon for the Company by Whitman Breed Abbott & Morgan LLP.
Benjamin M. Polk, a member of Whitman Breed Abbott & Morgan LLP, is a member of
the Board of Directors of the Company and has received a grant of options under
the Company's Stock Option Plan For Outside Directors.
Item 6. Indemnification of Officers and Directors
Section 145 of the Delaware General Corporation Law, as amended
(the "DGCL"), permits, under certain circumstances, the indemnification of any
person with respect to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, to which
such person was or is a party or is threatened to be made a party by reason of
the fact that such person is or was a director, officer, employee, or agent of
the corporation or was serving in a similar capacity for another enterprise at
the request of the corporation. To the extent that a director, officer,
employee, or agent of the corporation has been successful in defending any such
proceeding, the DGCL provides that he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
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With respect to a proceeding by or in the right of the corporation,
such person may be indemnified against expenses (including attorney's fees) if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation. The statute provides, however,
that no indemnification is allowed in such a proceeding if such person is
adjudged liable to the corporation unless, and only to the extent that, the
court may, upon application, determine that he is entitled to indemnification
under the circumstances. With respect to proceedings other than those brought by
or in the right of the corporation, such person may be indemnified against
judgments, fines, and amounts paid in settlement, as well as expenses, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action, had no reasonable cause to believe his conduct was unlawful,
notwithstanding the outcome of the proceeding. Except with respect to mandatory
indemnification of expenses to successful defendants as described in the
preceding paragraph or pursuant to a court order, the indemnification described
in this paragraph may be made only upon a determination in each specific case by
majority vote of a quorum of directors not parties to the proceeding, by written
opinion of independent legal counsel, or by the stockholders, that the defendant
met the applicable standard of conduct described above.
The DGCL permits a corporation to advance expenses incurred by a
proposed indemnitee in advance of final disposition of the proceeding provided
the indemnitee undertakes to repay such advanced expenses if it is ultimately
determined that he is not entitled to indemnification. A corporation may
purchase insurance on behalf of an indemnitee against any liability asserted
against him in his designated capacity, whether or not the corporation itself
would be empowered to indemnify him against such liability.
Delaware law also provides that the above rights shall not be
deemed exclusive of other rights of indemnification or advancement of expenses
under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The registrant's Certificate of Incorporation and Bylaws generally
require the registrant to indemnify and advance expenses to its directors and
its officers (and permit the registrant to indemnify and advance expenses to its
employees and agents) to the fullest extent not prohibited by Section 145 of the
DGCL as the same exists or may hereafter be amended.
Section 102(b)(7) of the DGCL permits Delaware corporations in
their certificates of incorporation to eliminate or limit the personal liability
of directors to the corporation or its stockholders for monetary damages for
breaches of certain duties. Under the registrant's Certificate of Incorporation,
a director of the registrant shall, to the maximum extent currently or hereafter
permitted by section 102(b)(7) of the DGCL (or any successor provision) have no
personal liability to the registrant or its stockholders for monetary damages
for breach of fiduciary duty as a director. Section 102(b)(7) of the DGCL
provides that Delaware corporations may not eliminate or limit the liability of
a director: (i) for any breach of the director's duty of loyalty to the
registrant or its stockholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (involving certain unlawful dividends and stock
purchases or redemptions), or (iv) for any transaction from which the director
derived an improper personal benefit.
The registrant may maintain insurance covering the liability of the
registrant to its directors and officers under the terms and provisions of the
By-Laws of the registrant and covering its directors and officers for liability
incurred in their capacities as such directors and officers.
Item 7. Exemption From Registration Claimed
Not Applicable.
Item 8. Exhibits
All exhibits are filed herewith unless otherwise indicated. For a
list of the Exhibits required by this Section, see the Exhibit Index immediately
following the signature pages.
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Item 9. Required 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 this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(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)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or S-8 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining liability under the
Securities Act of 1933, 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.
(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.
(d) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) 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.
(e) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Corona, State of California, on the 24th day of
September, 1999.
HANSEN NATURAL CORPORATION
(Registrant)
By: /s/ RODNEY C. SACKS
Rodney C. Sacks, Chairman
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Rodney C. Sacks and Hilton H. Schlosberg and each acting alone, his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with respect to
this Registration Statement or any amendments or supplements hereto in the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully 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 indicated on the dates indicated.
Signature Title Date
/s/ RODNEY C. SACKS Chairman of the Board and September 24, 1999
- --------------------------- Chief Executive Officer
Rodney C. Sacks (Principal Executive Officer)
/s/ HILTON H. SCHLOSBERG Vice Chairman of the Board, September 24, 1999
- --------------------------- President; Chief Financial
Hilton H. Schlosberg Officer, Secretary and
Director (Principal Financial
and Accounting Officer)
/s/ HAROLD C. TABER Director September 24, 1999
- ---------------------------
Harold C. Taber
/s/ BENJAMIN M. POLK Director September 24, 1999
- ---------------------------
Benjamin M. Polk
/s/ NORMAN C. EPSTEIN Director September 24, 1999
- ---------------------------
Norman C. Epstein
/s/ MARK S. VIDERGAUZ Director September 24, 1999
- ---------------------------
Mark S. Vidergauz
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EXHIBIT INDEX
Set forth below is a list of Exhibits to the Company's registration
statement filed on Form S-8 either filed herewith or previously filed as
indicated and incorporated herein by reference.
Description Page
Number
in Sequential
Numbering
System
4(a) Certificate of Incorporation (filed as an exhibit to the Registration
Statement on Form S-3 (no. 33-35796)).
4(b) Amendment to Certificate of Incorporation (filed as an exhibit to
the proxy statement dated September 21, 1992).
4(c) By-Laws (filed as an Exhibit to the Registration Statement on Form
S-3 (no.33-35796)).
5 Opinion of Whitman Breed Abbott & Morgan LLP.
10(a) Hansen Natural Corporation Stock Option Plan (filed as an
exhibit to the proxy statement dated September 21, 1992).
10(b) Hansen Natural Corporation Stock Option Plan For Outside
Directors (filed as an exhibit to the proxy statement dated June 10,
1994).
10(c) Amendment to Hansen Natural Corporation Stock Option Plan (filed as
an exhibit to the proxy statement dated October 14, 1997).
10(d) Supplemental Legend to Hansen Natural Corporation Stock Option Plan
(filed as an exhibit to the Registration Statement on Form S-8 (no.
33-92526)).
10(e) Supplemental Legend to Hansen Natural Corporation Stock Option Plan
For Outside Directors (filed as an exhibit to the
Registration Statement on Form S-8 (no.33-92526)).
10(f) Amendment to Hansen Natural Corporation Stock Option Plan (filed as
an exhibit to the proxy statement dated August 24, 1999).
24(a) Consent of Whitman Breed Abbott & Morgan LLP (contained in the
opinion filed as Exhibit 5 hereto).
24(b) Consent of Deloitte & Touche.
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EXHIBITS 5 AND 24(a)
(212) 351-3000
October 12, 1999
Hansen Natural Corporation
2380 Railroad Street, Suite 101
Corona, California 92880-5471
Re: Hansen Natural Corporation/Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Hansen Natural Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of a registration statement on Form S-8
(the "Registration Statement") registering an additional 1,000,000 shares of
common stock, $.005 par value per share, of the Company (the "Common Stock")
reserved for issuance under the Company's Stock Option Plan (the "Plan").
We have examined such corporate records of the Company and other documents
and made such investigations of law as we have deemed necessary and appropriate
to render the opinion expressed herein.
Based upon the foregoing, we are of the opinion that the Common Stock to be
issued under the Plan will be, when issued and paid for in the manner
contemplated by the Plan and the related option agreements, duly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the reference to our name under the heading
"Experts" in the Prospectus included in the Registration Statement. In giving
this consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act or the Rules and
Regulations of the Commission promulgated thereunder.
Benjamin M. Polk, a member of this firm, is a director of the Company and
has been granted options to purchase Common Stock under the Company's Stock
Option Plan For Outside Directors.
Very truly yours,
/s/ WHITMAN BREED ABBOTT & MORGAN LLP
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EXHIBIT 24(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Hansen Natural Corporation on Form S-8 of our report dated March 23, 1999
included in the Annual Report on Form 10-K of Hansen Natural Corporation for the
year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
Costa Mesa, California
October 14, 1999
