1
As filed with the Securities and Exchange Commission
on September 18, 1996
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
NATIONAL BEVERAGE CORP.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE
--------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
59-2605822
--------------------------------------------------------------
(IRS Employer Identification No.)
ONE NORTH UNIVERSITY DRIVE
FORT LAUDERDALE, FLORIDA 33324
--------------------------------------------------------------
(Address of principal executive offices)
NATIONAL BEVERAGE CORP.
1991 OMNIBUS INCENTIVE PLAN
NATIONAL BEVERAGE CORP.
OUTSIDE DIRECTOR STOCK OPTION AGREEMENTS
--------------------------------------------------------------
(Full Title of the Plans)
NICK A. CAPORELLA
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
NATIONAL BEVERAGE CORP.
ONE NORTH UNIVERSITY DRIVE
FT. LAUDERDALE, FLORIDA 33324
--------------------------------------------------------------
(Name and address of agent for service)
(954) 581-0922
--------------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1) Price Fee
- ---------------------------------------------------------------------------------------------------------------------
Common Stock,
par value $0.01
per share 225,000 $18.50 $4,162,500 $1,435.35
- ---------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the amount of the
registration fee. Such estimates have been calculated in accordance
with Rule 457(h) under the Securities Act of 1933, as amended, and are
based on the closing price per share of the Registrant's Common Stock
as reported on the American Stock Exchange on September 17, 1996.
2
NOTE
An aggregate of 480,000 shares of the Common Stock, par value $0.01
per share, of National Beverage Corp., a Delaware corporation (the "Company" or
"Registrant"), issuable under the Company's 1991 Omnibus Incentive Plan were
registered on a Registration Statement on Form S-8 (Registration No. 33-95308)
filed with the Securities and Exchange Commission (the "Commission") on August
1, 1995. 220,000 additional shares issuable under this plan and 5,000 shares
issuable under Outside Director Stock Option Agreements are being registered
hereunder.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Commission pursuant to the Securities and Exchange Act of 1934, as amended (the
"Exchange Act") are hereby incorporated by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal
year ended April 27, 1996; and
2. The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A, as
amended or updated pursuant to the Exchange Act.
All documents and reports subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the
date hereof and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all shares offered hereby have been
sold or which deregisters all shares 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 statements contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or replaced for purposes hereof 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 replaces such
statement. Any statement so modified or replaced shall not be deemed, except
as so modified or replaced, to constitute a part hereof.
II-1
3
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 102(b) of the Delaware General Corporation Law
("DGCL") the Company's Restated Certificate of Incorporation provides that no
director shall be personally liable to the Company or its stockholders for
monetary damages for breach of the director's fiduciary duty, provided that, to
the extent required by the provisions of Section 102(b)(7) of the DGCL, the
provision in the Restated Certificate of Incorporation shall not eliminate or
limit the liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions), or (iv) for any transaction from which a director derived an
improper personal benefit.
In addition, as permitted by Section 145 of the DGCL, the Company's
Restated Certificate of Incorporation provides that (i) the Registrant is
required to indemnify its directors and officers and persons serving in such
capacities in other business enterprises (including, for example, subsidiaries
of the Registrant) at the Registrant's request to the maximum extent permitted
by the DGCL, including those circumstances in which indemnification would
otherwise be discretionary; (ii) the Registrant may, in its discretion,
indemnify employees and agents serving at the request of the Company where
indemnification is not required by law; (iii) the Registrant is required to
advance the expenses, as incurred, to its directors, officers and other
indemnitees in connection with defending a proceeding, provided that, if the
DGCL so requires, the payment of such expenses shall be made only upon receipt
of an undertaking by the indemnitee to repay all amounts so advanced if it
shall ultimately be determined that such person is not entitled to
indemnification; (iv) the rights conferred in the Restated Certificate of
Incorporation are not exclusive and the Registrant is authorized to enter into
indemnification agreements with its directors, officers and employees; and (v)
the Registrant may not retroactively amend the Restated Certificate of
Incorporation provisions in a way that is adverse to such directors, officers
and employees.
II-2
4
The Company also maintains director and officer liability insurance.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
See "Exhibit Index" on Page II-7.
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 of 1933, as amended (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)(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.
II-3
5
(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 of 1933, each
filing of the Registrant'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.
(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 Securities and Exchange
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 of
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-4
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Fort Lauderdale, and the
State of Florida, this 19th day of September, 1996.
NATIONAL BEVERAGE CORP.
By: /s/ Nick A. Caporella
-------------------------------------
Nick A. Caporella
Chairman of the Board, Director,
President and Chief Executive Officer
II-5
7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Nick A. Caporella and Joseph G.
Caporella, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8, and to
file the same, with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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 said
attorneys-in-fact and agents or any of them, or his 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, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the date indicated:
Signature Title Date
- --------- ----- ----
/s/ Nick A. Caporella Chairman of the Board, September 19, 1996
- ----------------------------- Director, President and
NICK A. CAPORELLA Chief Executive Officer
(principal executive and
financial officer)
/s/ S. Lee Kling Director September 19, 1996
- -------------------------------
S. LEE KLING
/s/ Joseph L. Klock, Jr. Director September 19, 1996
- ------------------------------
JOSEPH P. KLOCK, JR.
/s/ Joseph G. Caporella Director and Executive September 19, 1996
- ---------------------------- Vice President
JOSEPH G. CAPORELLA
/s/ Dean A. McCoy Vice President-Controller September 19, 1996
- ---------------------------- (principal accounting officer)
DEAN A. McCOY
II-6
8
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 Restated Certificate of Incorporation of National Beverage Corp. (incorporated by reference to Exhibit
3.1 of the Registrant's Registration Statement on Form S-1 (File No. 33-38986), filed with the
Commission on February 9, 1991.
4.2 Amended and Restated By-Laws of National Beverage Corp. (incorporated by reference to Exhibit 3.2 of
the Registrant's Registration Statement on Form S-1 (File No. 33-38986), filed with the Commission on
February 19, 1991.
4.3 1991 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.21 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (File No. 33-38986), filed with the Commission on July
26, 1991.
4.4 Amendment No. 1 to the 1991 Omnibus Incentive Plan.
4.5 Form of Stock Option Agreement for Outside Directors.
5 Opinion of Bass, Berry & Sims PLC.
23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5).
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Deloitte & Touche LLP.
24 Power of Attorney (included on page II-6).
II-7