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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 12, 1996
REGISTRATION NO. 333-11789
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BEVERAGE WORKS, INC.
(NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
CALIFORNIA 2000 95-4550937
(STATE OF JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
9800 SOUTH SEPULVEDA BLVD., SUITE 720 2431 WEST COAST HIGHWAY, SUITE 204
LOS ANGELES, CALIFORNIA 90045 NEWPORT BEACH, CALIFORNIA 92663
(310) 642-5643 (ADDRESS OF PRINCIPAL PLACE
(ADDRESS AND TELEPHONE NUMBER OF BUSINESS OR INTENDED
OF PRINCIPAL EXECUTIVE OFFICES) PRINCIPAL PLACE OF BUSINESS)
LYLE MAUL
9800 SOUTH SEPULVEDA BLVD., SUITE 720
LOS ANGELES, CALIFORNIA 90045
(310) 642-5643
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
COPIES TO:
CHARLES J. HECHT, ESQ. MITCHELL LAMPERT, ESQ.
HECHT & STECKMAN, P.C. LAMPERT & LAMPERT
60 EAST 42ND STREET, SUITE 5101 10 EAST 40TH STREET, 44TH FLOOR
NEW YORK, NEW YORK 10165-5101 NEW YORK, NEW YORK 10016
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SECURITY(2) OFFERING PRICE FEE
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Units(3)................................................... 1,150,000 $ 8.00 $ 9,200,000 $ 3,172.41
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Common Stock, no par value(4).............................. 1,150,000 -- -- $ 0.00
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Class A Warrants to purchase Common Stock(5)............... 1,150,000 -- -- $ 0.00
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Common Stock, no par value, underlying Class A Warrants
included in the Units.................................... 1,150,000 $ 8.25 $ 9,487,500 $ 3,271.55
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Common Stock, no par value, offered by Selling
Securityholders.......................................... 520,745 $ 8.00 $ 4,165,960 $ 1,436.54
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Class A Warrants to purchase Common Stock offered by
Selling Securityholders.................................. 3,000,000 $ 8.25 $ 24,750,000 $ 8,534.48
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Common Stock, no par value, underlying Class A Warrants
offered by Selling Securityholders(6).................... 3,000,000 -- -- $ 0.00
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Class B Warrants to purchase Common Stock offered by
Selling Securityholders.................................. 35,000 $ 4.50 $ 157,500 $ 54.31
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Common Stock, no par value, underlying Class B Warrants
offered by Selling Securityholders....................... 35,000 $ 4.75 $ 166,250 $ 57.33
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Representative's Unit Purchase Option...................... 100,000 $12.80 $ 1,280,000 $ 441.38
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Common Stock, no par value, in Representative's Unit
Purchase Option.......................................... 100,000 -- -- $ 0.00
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Representative's Warrants in Representative's Unit Purchase
Option................................................... 100,000 -- -- $ 0.00
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Common Stock, no par value, underlying Class G Warrants in
Representative's Unit Purchase Option.................... 100,000 $ 8.25 $ 825,000 $ 284.48
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Total....................................................................................... $ 50,032,210 $ 17,252.48
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(Continued on following page)
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(1) Pursuant to Rule 416 under the Securities Act of 1933, this Registration
Statement covers such additional indeterminate number of shares of Common
Stock as may be issued by reason of adjustments in the number of shares of
Common Stock pursuant to anti-dilution provisions contained in the
Representative's Unit Purchase Option and the Class A Warrant, Class B
Warrant and Representative's Warrant Agreements.
(2) Estimated for purposes of computing the registration fee in accordance with
Rule 457(c) and Rule 457(g) under the Securities Act of 1933.
(3) Each Unit consists of one share of Common Stock and one Class A Warrant
immediately separable upon commencement of trading. Includes 150,000 Units
pursuant to the Representative's over-allotment option.
(4) Includes 150,000 shares of Common Stock issuable pursuant to the
Representative's over-allotment option. These shares are included in the
Units. No additional registration fee is required.
(5) Includes 150,000 Class A Warrants issuable pursuant to the Representative's
over-allotment option. These Class A Warrants are included in the Units. No
additional registration fee is required.
(6) Fee for Class A Warrants offered by Selling Securityholders determined under
Rule 457(g)(1). No additional fee required.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
CALIFORNIA STATUTES
Section 317 of the California General Corporation Law, as amended, provides
for the indemnification of the Company's officers, directors, employees and
agents under certain circumstances as follows:
(a) For the purposes of this section, "agent" means any person who is
or was a director, officer, employee or other agent of corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, or was a director, officer,
employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of the predecessor corporation; "proceeding" means any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes without limitation
attorneys' fees and any expenses of establishing a right to indemnification
under subdivision (d) or paragraph (4) of subdivision (e).
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any proceeding (other
than an action by or in the right of the corporation to procure a judgment
in its favor) by reason of the fact that the person is or was an agent of
the corporation, against expenses, judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with the proceeding
if that person acted in good faith and in a manner the person reasonably
believed to be in the best interests of the corporation and, in the case of
a criminal proceeding, had no reasonable cause to believe the conduct of
the person was unlawful. The termination of any proceeding by judgment,
order, settlement, conviction, or upon a please of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed
to be in the best interests of the corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
(c) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending,
or completed action by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was an
agent of the corporation, against expenses actually and reasonably incurred
by that person in connection with the defense or settlement of the action
if the person acted in good faith, in a manner the person believed to be in
the best interests of the corporation and its shareholders.
No indemnification shall be made under this subdivision for any of the
following:
(1) In respect of any claim, issue or matter as to which the person
shall have been adjudged to be liable to the corporation in the
performance of that person's duty to the corporation and its
shareholders, unless and only to the extent that the court in which the
proceeding is or was pending shall determine upon application that, in
view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for expenses and then only to the
extent that the court shall determine.
(2) Of amounts paid in settling or otherwise disposing of a pending
action without court approval.
(3) Of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
(d) To the extent that an agent of a corporation has been successful
on the merits in defense of any proceeding referred to in subdivision (b)
or (c) or in defense of any claim, issue, or matter therein, the
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agent shall be indemnified against expenses actually and reasonably
incurred by the agent in connection therewith.
(e) Except as provided in subdivision (d), any indemnification under
this section shall be made by the corporation only if authorized in the
specific case, upon a determination that indemnification of the agent is
proper in the circumstances because the agent has met the applicable
standard of conduct set forth in subdivision (b) or (c), by any of the
following:
(1) A majority vote of a quorum consisting of directors who are not
parties to such proceeding.
(2) If such a quorum of directors is not obtainable, by independent
legal counsel in a written opinion.
(3) Approval of the shareholders (Section 153), with the shares
owned by the person to be indemnified not being entitled to vote
thereon.
(4) The court in which the proceeding is or was pending upon
application made by the corporation or the agent or the attorney or
other person rendering services in connection with the defense, whether
or not the application by the agent, attorney or other person is opposed
by the corporation.
(f) Expenses incurred in defending any proceeding may be advanced by
the corporation prior to the final disposition of the proceeding upon
receipt of an undertaking by or on behalf of the agent to repay that amount
if it shall be determined ultimately that the agent is not entitled to be
indemnified as authorized in this section. The provisions of subdivision
(a) of Section 315 do not apply to advances made pursuant to this
subdivision.
(g) The indemnification authorized by this section shall not be deemed
exclusive of any additional rights to indemnification for breach of duty to
the corporation and its shareholders while acting in the capacity of a
director or officer of the corporation to the extent the additional rights
to indemnification are authorized in an article provision adopted pursuant
to paragraph (11) of subdivision (1) of Section 204. The indemnification
provided by this section for acts, omissions, or transactions while acting
in the capacity of, or while serving as, a director or officer of the
corporation but not involving breach of duty to the corporation and its
shareholders shall not be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under any by-law, agreement,
vote of shareholders or disinterested directors, or otherwise, to the
extent the additional rights to indemnification are authorized in the
articles of the corporation. An article provision authorizing
indemnification "in excess of that otherwise permitted by Section 317" or
"to the fullest extent permissible under California law" or the substantial
equivalent thereof shall be construed to be both a provision for additional
indemnification for breach of duty to the corporation and its shareholders
as referred to in, and with the limitations required by, paragraph (11) of
subdivision (a) of Section 204 and a provision for additional
indemnification as referred to in the second sentence of this subdivision.
The rights to indemnity hereunder shall continue as to a person who has
ceased to be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of the person. Nothing
contained in this section shall affect any right to indemnification to
which persons other than the directors and officers may be entitled by
contract or otherwise.
(h) No indemnification or advance shall be made under this section,
except as provided in subdivision (d) or paragraph (4) of subdivision (e),
in any circumstance where it appears:
(1) That it would be inconsistent with a provision of the articles,
by-laws, a resolution of the shareholders, or an agreement in effect at
the time of the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other amounts were
paid, which prohibits or otherwise limits indemnification.
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
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(i) A corporation shall have power to purchase and maintain
insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in that capacity
or arising out of the agent's status as such whether or not the
corporation would have the power to indemnify the agent against that
liability under this section. The fact that a corporation owns all or
a portion of the shares of the company issuing a policy of insurance
shall not render this subdivision inapplicable if either of the
following conditions are satisfied: (1) if the articles authorize
indemnification in excess of that authorized in this section and the
insurance provided by this subdivision is limited as indemnification
is required to be limited by paragraph (11) of subdivision (1) of
Section 204; or (2)(A) the company issuing the insurance policy is
organized, licensed, and operated in a manner that complies with the
insurance laws and regulations applicable to its jurisdiction of
organization, (B) the company issuing the policy provides procedures
for processing claims that do not permit that company to be subject
to the direct control of the corporation that purchased that policy,
and (C) the policy issued provides for some manner of risk sharing
between the issuer and purchaser of the policy, on one hand, and some
unaffiliated person or persons, on the other, such as by providing
for more than one unaffiliated owner of the company issuing the
policy or by providing that a portion of the coverage furnished will
be obtained from some unaffiliated insurer or reinsurer.
(j) This section does not apply to any proceeding against any trustee,
investment manager, or other fiduciary of an employee benefit plan in that
person's capacity as such, even though the person may also be an agent as
defined in subdivision (a) of the employer corporation. A corporation shall
have power to indemnify such a trustee, investment manager, or other
fiduciary to the extent permitted by subdivision (f) of Section 207.
ARTICLES OF INCORPORATION
The Company's Articles of Incorporation provides for the indemnification of
the Company's directors under certain circumstances as follows:
PART IV
LIMITATION OF LIABILITY
The liability of the directors of this corporation for monetary
damages shall be eliminated to the fullest extent permissible under
California law.
PART V
INDEMNIFICATION OF AGENTS
This corporation is authorized to provide indemnification of agents
(as defined in Section 317 of the Corporations Code) for breach of duty to
the corporation and its stockholders through bylaw provisions or through
agreements with the agents, or both, in excess of the indemnification
otherwise permitted by Section 317 of the Corporations Code, subject to the
limits on such excess indemnification set forth in Section 204 the
Corporations Code.
BY-LAWS
The Company's By-Laws provide for the indemnification of the Company's
directors, officers, employees, or agents under certain circumstances as
follows:
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ARTICLE VI
INDEMNIFICATION OF
DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS
SECTION 1. AGENTS, PROCEEDINGS, AND EXPENSES.
For the purposes of this Article, "agent" means any person who is or
was a director, officer, employee, or other agent of this corporation, or
who is or was serving at the request of this corporation as a director,
officer, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, or who was a
director, officer, employee, or agent of a foreign or domestic corporation
that was a predecessor corporation of this corporation or of another
enterprise at the request of such predecessor corporation; "proceeding"
means any threatened, pending, or completed action or proceeding, whether
civil, criminal, administrative, or investigative; and "expenses" includes,
without limitation, attorney fees and any expenses of establishing a right
to indemnification under Section 4 or Section 5(d) of this Article VI.
SECTION 2. ACTIONS OTHER THAN BY THE CORPORATION.
This corporation shall have the power to indemnify any person who was
or is a party, or is threatened to be made a party, to any proceeding
(other than an action by or in the right of this corporation to procure a
judgment in its favor) by reason of the fact that such person is or was an
agent of this corporation, against expenses, judgments, fines, settlements,
and other amounts actually and reasonably incurred in connection with such
proceeding if that person acted in good faith and in a manner that the
person reasonably believed to be in the best interests of this corporation
and, in the case of a criminal proceeding, had no reasonable cause to
believe the conduct of that person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner that
the person reasonably believed to be in the best interests of this
corporation or that the person had reasonable cause to believe that the
person's conduct was not unlawful.
SECTION 3. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.
This corporation shall have the power to indemnify any person who was or is
a party, or is threatened to be made a party, to any threatened, pending, or
completed action by or in the right of this corporation to procure a judgment in
its favor by reason of the fact that such person is or was an agent of this
corporation, against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of that action, if such person acted
in good faith, in a manner such person believed to be in the best interests of
this corporation and its shareholders. No indemnification shall be made under
this Section 3 for the following:
(a) With respect to any claim, issue, or matter on which such
person has been adjudged to be liable to this corporation in the
performance of such person's duty to the corporation and its
shareholders, unless and only to the extent that the court in which such
proceeding is or was pending shall determine on application that, in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for expenses and then only to the
extent that the court shall determine;
(b) Amounts paid in settling or otherwise disposing of a pending
action without court approval; or
(c) Expenses incurred in defending a pending action that is settled
or otherwise disposed of without court approval.
SECTION 4. SUCCESSFUL DEFENSE BY AGENT.
To the extent that an agent of this corporation has been successful on
the merits in defense of any proceeding referred to in Section 2 or 3 of
this Article VI, or in defense of any claim, issue, or matter
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therein, the agent shall be indemnified against expenses actually and
reasonably incurred by the agent in connection therewith.
SECTION 5. REQUIRED APPROVAL.
Except as provided in Section 4 of this Article VI, any indemnification
under this Section shall be made by the corporation only if authorized in the
specific case, after a determination that indemnification of the agent is proper
in the circumstances because the agent has met the applicable standard of
conduct set forth in Section 2 or 3 by one of the following:
(a) A majority vote of a quorum consisting of directors who are not
parties to such proceeding;
(b) Independent legal counsel in a written opinion if a quorum of
directors who are not parties to such a proceeding is not available;
(c) (i) The affirmative vote of a majority of shares of this
corporation entitled to vote represented at a duly held meeting at which
a quorum is present; or
(ii) the written consent of holders of a majority of the
outstanding shares entitled to vote (for purposes of this subsection
5(c), the shares owned by the person to be indemnified shall not be
considered outstanding or entitled to vote thereon); or
(d) The court in which the proceeding is or was pending, on
application made by this corporation or the agent or the attorney or
other person rendering services in connection with the defense, whether
or not such application by the agent, attorney, or other person is
opposed by this corporation.
SECTION 6. ADVANCE OF EXPENSES.
Expenses incurred in defending any proceeding may be advanced by the
corporation before the final disposition of such proceeding on receipt of
an undertaking by or on behalf of the agent to repay such amounts if it
shall be determined ultimately that the agent is not entitled to be
indemnified as authorized in this Article VI.
SECTION 7. OTHER CONTRACTUAL RIGHTS.
The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in an official capacity and as
to action in another capacity while holding such office, to the extent such
additional rights to indemnification are authorized in the articles of the
corporation. Nothing in this section shall affect any right to
indemnification to which persons other than such directors and officers may
be entitled by contract or otherwise.
SECTION 8. LIMITATIONS.
No indemnification or advance shall be made under this Article VI,
except as provided in Section 4 or Section 5(d), in any circumstance if it
appears:
(a) That it would be inconsistent with a provision of the articles,
bylaws, a resolution of the shareholders, or an agreement in effect at
the time of the accrual of the alleged cause of action asserted in the
proceeding in which expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving settlement.
SECTION 9. INSURANCE.
This corporation may purchase and maintain insurance on behalf of any
agent of the corporation insuring against any liability asserted against or
incurred by the agent in that capacity or arising out of the
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agent's status as such, whether or not this corporation would have the
power to indemnify the agent against that liability under the provisions of
this Article VI. Notwithstanding the foregoing, if this corporation owns
all or a portion of the shares of the company issuing the policy of
insurance, the insuring company and/or the policy shall meet the conditions
set forth in section 317(i) of the Corporations Code.
SECTION 10. FIDUCIARIES OF CORPORATE EMPLOYEE BENEFIT PLAN.
This Article VI does not apply to any proceeding against any trustee,
investment manager, or other fiduciary of an employee benefit plan in that
person's capacity as such, even though that person may also be an agent of
the corporation. The corporation shall have the power to indemnify, and to
purchase and maintain insurance on behalf of any such trustee, investment
manager, or other fiduciary of any benefit plan for any or all of the
directors, officers, and employees of the corporation or any of its
subsidiary or affiliated corporations.
SECTION 11. SURVIVAL OF RIGHTS.
The rights provided by this Article VI shall continue for a person who
has ceased to be an agent and shall inure to the benefit of the heirs,
executors, and administrators of such person.
SECTION 12. EFFECT OF AMENDMENT.
Any amendment, repeal, or modification of this Article VI shall not
adversely affect an agent's right or protection existing at the time of
such amendment, repeal, or modification.
SECTION 13. SETTLEMENT OF CLAIMS.
The corporation shall not be liable to indemnify any agent under this
Article VI for (a) any amounts paid in settlement of any action or claim
effected without the corporation's written consent, which consent shall not
be unreasonably withheld, or (b) any judicial award, if the corporation was
not given a reasonable and timely opportunity to participate, at its
expense, in the defense of such action.
SECTION 14. SUBROGATION.
In the event of payment under this Article VI, the corporation shall
be subrogated to the extent of such payment to all of the rights of
recovery of the agent, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the
execution of such documents as may be necessary to enable the corporation
effectively to bring suit to enforce such rights.
SECTION 15. NO DUPLICATION OF PAYMENTS.
The corporation shall not be liable under this Article VI to make any
payment in connection with any claim made against the agent to the extent
the agent has otherwise actually received payment, whether under a policy
of insurance, agreement, vote, or otherwise, of the amounts otherwise
indemnifiable under this Article.
WRITTEN AGREEMENTS
The Company has entered into written agreements with each of its officers
and directors, including Frederik G.M. Rodenhuis and Lyle R. Maul, pursuant to
which the Company is required to indemnify each person under circumstances and
to the extent generally equivalent to those which are permissible under the
Company's By-Laws.
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ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the offering are as follows:
ITEM AMOUNT*
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Securities and Exchange Commission Registration Fee............... $ 17,252
National Association of Securities Dealers, Inc. and Blue Sky
Registration Fees............................................... 25,000
Accounting Fees and Expenses......................................
Legal Fees and Expenses...........................................
Printing, Design and Advertising..................................
Underwriters' Non-Accountable Expense Allowance...................
Miscellaneous.....................................................
--------
Total........................................................... 569,752
========
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* Estimated
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
Within the last three (3) years, the Company has issued the following
securities which were not registered under the Securities Act of 1933.
On August 2, 1995, the date of incorporation, the Company authorized the
issuance of 245,310 shares of Common Stock to its founders for $0.01 per share.
This sale was made in reliance on the exemption from registration under Section
4(2) of the 1933 Act.
On October 6, 1995, the Company issued 192,400 shares of its common stock
and 190,000 warrants to purchase shares of the Company's Common Stock,
exercisable at $8.25 per share. The gross proceeds realized from the issuance
was $76,756. 2,810,000 warrants to were issued to Imafina, S.A., a Swiss money
management firm. The gross proceeds realized from the sale was $28,000. Imafina,
S.A. sold 100,000 warrants to one of the Company's existing shareholders. These
issuances were made in reliance on the exemption from registration under Section
4(2) of the 1933 Act.
On October 31, 1995, the Company issued 14,000 shares of its Common Stock
and 15,583 warrants to purchase shares of the Company's Common Stock exercisable
at $4.50 per share to Hecht & Steckman, P.C., counsel to the Company. The gross
proceeds realized from the sale was $140.00. This issuance was made in reliance
on the exemption from registration under Section 4(2) of the 1933 Act.
On November 8, 1995, the Company acquired Heritage Brewing Company in a
stock-for-stock exchange. The Company acquired 94.85% of all of the outstanding
voting capital stock of Heritage in exchange for 142,276 shares of the Company's
Common Stock. The Heritage shareholders have an option to call the Heritage
stock if the Company does not close a public offering of the Company's common
stock realizing gross proceeds of at least $5,000,000 by December 31, 1995. The
issuance was made in reliance on the exemption from registration under Section
3(a)(9) of the 1933 Act.
On November 12, 1995, the Company authorized the issuance of 49,015 shares
of its Common Stock to John Stoner and Mark Mericle as consideration for
consulting services provided to the Company. The Company also issued 5,333
shares to Jack Stoner and Edward Hansen to reduce notes owed by Heritage. The
shares were issued in reliance on the exemption from registration under Section
4(2) of the 1933 Act.
On November 15, 1995, the Company authorized the issuance of 16,583 shares
to certain parties for consulting services previously rendered to the Company
and advances made to the Company at its pre-formation stages in the total amount
of $57,034. The issuance was made in reliance on the exemption from registration
under Section 4(2) of the 1933 Act.
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On November 20, 1995, the Company made a nonpublic offer of 400,000 shares
of Common Stock at the price of $4.00 per share. These offers and sales were
conducted by an NASD member firm in consideration for payment of commission of
9%, plus 3% nonaccountable expense allowance, of the gross proceeds. On August
28, 1996, the Company authorized the acceptance of additional subscriptions of
15,000 causing the total number of shares issued in the private placement to be
413,746. The 413,746 shares in the private placement were sold to fourteen (14)
investors realizing gross proceeds, before deducting for commissions and
expenses of $1,654,984. The private placement was made in reliance on the
exemption from registration afforded by Rule 506 of Regulation D promulgated
under the 1933 Act.
On January 22, 1996, the Company authorized the issuance of 6,500 shares of
its Common Stock to C.A. Wittwer & Associates and its designees as part of the
consideration for the license agreements between Heritage Brewing Company, a
subsidiary of the Company, and C.A. Wittwer & Associates. Heritage and the
Company have executed an agreement whereby the Company has the right to assume
the contract upon the close of a public offering by the Company realizing gross
proceeds of at least $5,000,000 on or before December 31, 1995. The sale was
made in reliance on the exemption from registration afforded by Section 4(2) of
the 1933 Act.
On May 20, 1996, the Company issued a $500,000 promissory note, secured by
all equipment, inventory and accounts receivable of the Company, and warrants to
Frederick Friedman. The note, which pays simple interest at 18% per annum,
mature on the earlier of (i) closing of a public offering by the Company with
aggregate gross proceeds of no less than $6,000,000, or (ii) December 31, 1996.
Interest is payable monthly until the principal is paid in full. The purchaser
of the note was also granted 35,000 Class B Warrants, which are registered in
this Offering, to purchase shares of the Company's Common Stock. If the Company
does not close a public offering by December 31, 1996, the purchaser is entitled
to an additional 35,000 warrants on the same terms and conditions. The sale was
made in reliance on the exemption from registration afforded by Section 4(2) of
the 1933 Act.
On August 5, 1996, the Company made a nonpublic offer of 32,500 units, each
unit consisting of two shares of the Corporation's common stock and one Class H
Warrant at the price of $10.00 per unit. These offers and sales were conducted
by an NASD member firm in consideration for payment of commission of 10% of the
gross proceeds. The offer closed after 15,000 units were subscribed by two (2)
investors realizing gross proceeds, before deducting for commissions and
expenses of $150,000. The private placement was made in reliance on the
exemption from registration afforded by Rule 506 of Regulation D promulgated
under the 1933 Act.
On September 10, 1996, the Company entered into a Share Purchase Agreement
with the shareholders of Orange Empire Brewing Company ("OEBC"), the parent of
Riverside Brewing Company. Under the terms of the Share Purchase Agreement, the
Company will issue up to 247,479 shares of its Common Stock for all of the
voting capital stock of OEBC. The Company will also issue 27,618 shares to
shareholders of Orange Empire for assuming certain Orange Empire debts and up to
130,000 shares based on Orange Empire meeting certain production levels. On
September 10, 1996, the Company entered into a Debt Exchange Agreement, which
provides that the Company will issue 24,125 shares of its Common Stock to
certain holders of OEBC's debts in return for extinguishing such debt. On
September 10, 1996, the Company and two individuals, Mike Hagerman and Norman
Kretschmar, two principals of OEBC, entered into the Brewpub Management
Agreement, whereby the two individuals will operate the brewpub. Under the
Brewpub Management Agreement, the Company will also issue 10,000 shares to these
individuals. The Share Purchase Agreement, Debt Exchange Agreement, and Brewpub
Management Agreement each provide that these respective transactions will close
on the closing of a public offering by the Company of the Company's Common Stock
realizing gross proceeds of at least $6,000,000. The issuance of shares of
Common Stock under the Share Purchase Agreement, Debt Exchange Agreement and
Brewpub Management Agreement was made in reliance on the exemption from
registration afforded by Rule 506 of Regulation D promulgated under the 1933
Act.
The Company had reasonable grounds to believe, prior to accepting the
subscription of each purchaser under all offers and sales under this Item 26
based in part on subscription agreements or investment letters
II-8
11
executed by the purchasers, that the purchasers were purchasing for investment
and not with a view to distribution. Other than in connection with the private
placements of common stock on November 20, 1995 and August 8, 1996, there were
no broker-dealers involved in any of the transactions listed above.
ITEM 27. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
------ --------------------------------------------------------------------------
1.1 [Form of] Underwriting Agreement(2)
1.2 [Form of] Agreement Among Underwriters*
1.3 [Form of] Selected Dealers Agreement*
2.1 Agreement and Plan of Reorganization dated November 8, 1995 between the
Company and Heritage Brewing Company, a California corporation, and
exhibits thereto(1)
2.2 Agreement of Partnership dated September , 1996 between Prost Partners,
L.P., a California limited partnership, and BWI-St. Stan's, Inc., a
California corporation, a wholly-owned subsidiary of the Company, and
exhibits thereto(1)
2.3 Share Purchase Agreement dated September 10, 1996 between Orange Empire
Brewing Company, Inc., a California corporation and the Company and
exhibits thereto(1)
2.4 Debt Exchange Agreement Orange Empire Brewing Company, et al, and the
Company dated September , 1996.*
3.1 Amended and Restated Articles of Incorporation of the Company(1)
3.2 By-Laws of the Company(1)
4.1 Specimen of Common Stock Certificate*
4.2 Class A Warrant Agreement*
4.3 Class B Warrant Agreement(1)
4.4 Class C Warrant Agreement (Counsel Warrants)*
4.5 Class D Warrant Agreement (Riverside Warrants)*
4.6 Representative's Warrant Agreement(2)
4.7 Class H Warrant Agreement*
4.8 Registration Rights Agreement*
4.9 $500,000 Note Agreement and Promissory Note dated May 7, 1996 between the
Company and Frederick Friedman(1)
4.10 Owens Financial Note(1)
5.1 Opinion of Hecht & Steckman, P.C. re: legality of shares*
10.1 $445,000 Small Business Administration Loan dated November 10, 1993
between Heritage and Liberty National Bank*
10.2 Equipment Lease dated , as amended, between Riverside
Brewing Company and Brewery Leasing Company(1)
10.3 Ground Lease Agreement dated June 6, 1988 between Randall and Susan Steele
and Stanislaus Brewing Company, Inc., as amended*
10.4 Riverside Brewing Company Brewery Lease with Hunsaker-Hunter dated April
1, 1995(1)
10.5 Riverside Brewing Company Brewery Lease with Hunsaker-Hunter dated
December 6, 1995(1)
10.6 Riverside Brewing Company Brewpub Lease with Kowashoji USA, Inc. dated
March 31, 1993(1)
10.7 Lease between Heritage Brewing Company and Central Business Park
Investors -- 89 dated November 3, 1993(1)
II-9
12
EXHIBIT
NUMBER DESCRIPTION
------ --------------------------------------------------------------------------
10.8 Employment Agreement between the Company and Frederik G.M. Rodenhuis(1)
10.9 Employment Agreement between the Company and Lyle R. Maul(1)
10.10 Employment Agreement between the Company and John Stoner(1)
10.11 Employment Agreement between the Company and Kathy Burke(1)
10.12 Employment Agreement between the Company and Garith Helm(1)
10.13 Distributorship Agreement dated August 20, 1996 between the Company and
Southern Wine and Spirits(1)
10.14 Distributorship Agreement dated June 6, 1995 between Riverside Brewing
Company and Wine Warehouse*
10.15 Distributorship Agreement dated August 1, 1996 between the Company and
Cabo Distributing Company, Inc.(1)
10.16 1996 Nonqualified Stock Option Plan(1)
10.17 1996 Incentive Stock Option Plan(1)
10.18 Incentive Compensation Plan*
10.19 Hussong's License Agreement dated February 3, 1996 between Heritage
Brewing Company and C.A. Wittwer & Associates(1)
10.20 Reciprocal Production and Marketing Agreement dated August 1, 1996 between
the Company and Chicago Brewing Company*
10.21 Management Agreement between Riverside Brewing Company and the Company
dated July 19, 1996(1)
21.1 List of Subsidiaries(1)
23.1 Consent of Hecht & Steckman, P.C.*
23.2 Consent of Corbin & Wertz(1)
23.3 Consent of Corbin & Wertz(1)
23.4 Consent of Corbin & Wertz(1)
27.1 Financial Data Schedule(1)
- ---------------
* To be filed by amendment.
(1) Filed as part of the original filing of the registration statement on
September 11, 1996.
(2) Filed as part of this Amendment No. 1 to the registration statement on
September 12, 1996.
ITEM 28. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes (a) to file during any
period in which offers or sales of the securities are being made, a
post-effective amendment to this registration statement including any prospectus
required by Section 10(a)(3) of the Securities Act of 1933, reflecting any facts
or events arising after the effective date of the registration statement (or
most recent post-effective amendment) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement, and including any material information with respect to the plan of
distribution not previously disclosed or any material change to such information
set forth in the registration statement. The undersigned registrant further
undertakes that, for the purpose of determining any liability under the
Securities Act of 1933, each 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. The undersigned registrant further undertakes 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.
II-10
13
B. The undersigned registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements certificates
in such denominations and registered in such names as required by the
underwriter to permit prompt delivery to each purchaser.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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 Act and will be governed by the final adjudication of
such issue.
D. For determining any liability under the Securities Act of 1933, the
registrant shall treat the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the small business issuer under Rule 424(b)(1),
or (4) or 497(h) under the Securities Act as part of this registration statement
as of the time the Commission declared it effective. For determining any
liability under the Securities Act of 1933, the registrant shall treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at that time as the initial bona fide
offering of those securities.
II-11
14
SIGNATURES
In accordance with 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 of filing on Form SB-2 and has authorized this
Amendment No. 1 to this registration statement to be signed on its behalf by
the undersigned, in the City of Newport Beach, State of California on September
12, 1996.
BEVERAGE WORKS, INC.,
a California corporation
By: /s/ Frederik G.M. Rodenhuis
-------------------------------
Frederik G.M. Rodenhuis
Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, this
Amendment No. 1 to this registration statement was signed by the following
persons in the capacities and on the dates stated.
Signature Title Date
- --------- ----- -----
/s/ Frederik G.M. Rodenhuis Chief Executive Officer, September 12, 1996
- ---------------------------- President and Director
Frederik G.M. Rodenhuis
/s/ Lyle R. Maul Chief Financial Officer September 12, 1996
- ---------------------------- and Secretary
Lyle R. Maul
II-12
15
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------ --------------------------------------------------------------------------
1.1 [Form of] Underwriting Agreement(2)
1.2 [Form of] Agreement Among Underwriters*
1.3 [Form of] Selected Dealers Agreement*
2.1 Agreement and Plan of Reorganization dated November 8, 1995 between the
Company and Heritage Brewing Company, a California corporation, and
exhibits thereto(1)
2.2 Agreement of Partnership dated September , 1996 between Prost Partners,
L.P., a California limited partnership, and BWI-St. Stan's, Inc., a
California corporation, a wholly-owned subsidiary of the Company, and
exhibits thereto(1)
2.3 Share Purchase Agreement dated September 10, 1996 between Orange Empire
Brewing Company, Inc., a California corporation and the Company and
exhibits thereto(1)
2.4 Debt Exchange Agreement Orange Empire Brewing Company, et al, and the
Company dated September , 1996.*
3.1 Amended and Restated Articles of Incorporation of the Company(1)
3.2 By-Laws of the Company(1)
4.1 Specimen of Common Stock Certificate*
4.2 Class A Warrant Agreement*
4.3 Class B Warrant Agreement(1)
4.4 Class C Warrant Agreement (Counsel Warrants)*
4.5 Class D Warrant Agreement (Riverside Warrants)*
4.6 Representative's Warrant Agreement(2)
4.7 Class H Warrant Agreement*
4.8 Registration Rights Agreement*
4.9 $500,000 Note Agreement and Promissory Note dated May 7, 1996 between the
Company and Frederick Friedman(1)
4.10 Owens Financial Note(1)
5.1 Opinion of Hecht & Steckman, P.C. re: legality of shares*
10.1 $445,000 Small Business Administration Loan dated November 10, 1993
between Heritage and Liberty National Bank*
10.2 Equipment Lease dated , as amended, between Riverside
Brewing Company and Brewery Leasing Company*
10.3 Ground Lease Agreement dated June 6, 1988 between Randall and Susan Steele
and Stanislaus Brewing Company, Inc., as amended*
10.4 Riverside Brewing Company Brewery Lease with Hunsaker-Hunter dated April
1, 1995(1)
10.5 Riverside Brewing Company Brewery Lease with Hunsaker-Hunter dated
December 6, 1995(1)
10.6 Riverside Brewing Company Brewpub Lease with Kowashoji USA, Inc. dated
March 31, 1993(1)
10.7 Lease between Heritage Brewing Company and Central Business Park
Investors -- 89 dated November 3, 1993(1)
10.8 Employment Agreement between the Company and Frederik G.M. Rodenhuis(1)
10.9 Employment Agreement between the Company and Lyle R. Maul(1)
10.10 Employment Agreement between the Company and John Stoner(1)
16
EXHIBIT
NUMBER DESCRIPTION
------ --------------------------------------------------------------------------
10.11 Employment Agreement between the Company and Kathy Burke(1)
10.12 Employment Agreement between the Company and Garith Helm(1)
10.13 Distributorship Agreement dated August 20, 1996 between the Company and
Southern Wine and Spirits(1)
10.14 Distributorship Agreement dated June 6, 1995 between Riverside Brewing
Company and Wine Warehouse*
10.15 Distributorship Agreement dated August 1, 1996 between the Company and
Cabo Distributing Company, Inc.(1)
10.16 1996 Nonqualified Stock Option Plan(1)
10.17 1996 Incentive Stock Option Plan(1)
10.18 Incentive Compensation Plan*
10.19 Hussong's License Agreement dated February 3, 1996 between Heritage
Brewing Company and C.A. Wittwer & Associates(1)
10.20 Reciprocal Production and Marketing Agreement dated August 1, 1996 between
the Company and Chicago Brewing Company*
10.21 Management Agreement between Riverside Brewing Company and the Company
dated July 19, 1996(1)
21.1 List of Subsidiaries(1)
23.1 Consent of Hecht & Steckman, P.C.*
23.2 Consent of Corbin & Wertz(1)
23.3 Consent of Corbin & Wertz(1)
23.4 Consent of Corbin & Wertz(1)
27.1 Financial Data Schedule(1)
- ---------------
* To be filed by amendment.
(1) Filed as part of the original filing of the registration statement on
September 11, 1996.
(2) Filed as part of this Amendment No. 1 to the registration statement on
September 12, 1996.