AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1998
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HORIZON ORGANIC HOLDING CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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Delaware 84-1405007
(State of Incorporation) (I.R.S. Employer Identification No.)
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6311 Horizon Lane
LONGMONT, COLORADO 80503
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(Address of Principal Executive Offices)
1998 EQUITY INCENTIVE PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
OPTIONS GRANTED OUTSIDE OF ANY PLAN
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(Full Title of the Plan)
BARNET M. FEINBLUM
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HORIZON ORGANIC HOLDING CORPORATION
6311 HORIZON LANE
LONGMONT, COLORADO 80503
(303) 530-2711
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(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
COPIES TO:
JAMES C.T. LINFIELD, ESQ.
CARRIE L. SCHIFF, ESQ.
COOLEY GODWARD LLP
2595 Canyon Boulevard, Suite 250
BOULDER, COLORADO 80302-6737
(303) 546-4000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
Common Stock (par 295,625 $ 5.30 $ 14,012,090.52 $ 4,133.57
value $0.001) 704,375 $ 16.69
288,393 $ 2.39
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and 457(h)(1). The price per
share and aggregate offering price are based upon (a) the weighted average
exercise price for shares subject to options previously granted under the
Registrant's 1998 Equity Incentive Plan and for options granted outside of
any plan pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended (the "Securities Act"), and (b) for shares granted after the date
hereof, the average of the high and low prices of the Registrant's Common
Stock on September 28, 1998, as reported on The Nasdaq National Market
(National Market).
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF REGISTRATION FEE
SHARE PRICE
- ------------------------------------------------------------------------------------------------------------------------
Shares issuable 295,625 $ 5.30 $1,566,812.50 $ 462.21
pursuant to
options
outstanding under
the 1998 Equity
Incentive Plan
- ------------------------------------------------------------------------------------------------------------------------
Shares issuable 454,375 $ 16.69 $7,583,518.75 $ 2,237.14
upon exercise of
options available
for grant under
the 1998 Equity
Incentive Plan
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Shares issuable 288,393 $ 2.39 $ 689,259.27 $ 203.33
pursuant to
options
outstanding
outside of any Plan
- ------------------------------------------------------------------------------------------------------------------------
Shares issuable 250,000 $ 16.69 $ 4,172,500.00 $ 1,230.89
under the 1998
Employee Stock
Purchase Plan
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
1.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Horizon Organic Holding Corporation (the
"Registrant") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(A) The Registrant's Prospectus dated July 2, 1998 filed pursuant to Rule
424(b) under the Securities Act that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(B) The Registrant's Quarterly Report on Form 10-Q (File No. 000-24337) for
the fiscal quarter ended June 30, 1998.
(C) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 000-24337).
(D) All reports and other documents hereafter filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all of the securities offered hereby
have been sold or which deregisters all such securities then remaining unsold.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein or contained in this Registration Statement
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, or is 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.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act").
The Registrant's Amended and Restated Certificate of Incorporation provides
for the elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Registrant and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of non-
monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant, for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for any
transaction from which the director derived an improper personal benefit, and
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision does not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
directors and executive officers pursuant to which the Registrant has agreed to
indemnify each director and executive officer against expenses and
2.
losses incurred for claims brought against them by reason of their being a
director or executive officer of the Registrant, and the Registrant maintains
directors' and officers' liability insurance.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
3.2* Amended and Restated Certificate of Incorporation.
3.4* Amended and Restated Bylaws.
4.2* Specimen stock certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Eide Bailly LLP.
23.3 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 5).
99.1* 1998 Equity Incentive Plan.
99.2* 1998 Employee Stock Purchase Plan.
99.3 Form of Incentive Stock Option Agreement between the Company and
Marc Peperzak.
99.4 Form of Non-Qualified Stock Option Agreement dated January 10,
1998.
99.5 Stock Option Agreement between the Company and Peter McGoldnick
dated August 7, 1997.
99.6 Form of Stock Option Agreement dated May 14, 1997.
99.7 Form of Stock Option Agreement dated July 9, 1996.
99.8 Stock Option Agreement between the Company and Barnet M. Feinblum
dated June 1, 1995.
99.9 Stock Option Agreement between the Company and Barnet M. Feinblum
dated June 1, 1995.
99.10 Form of Stock Option Agreement dated May 15, 1995.
99.11 Non-Qualified Stock Option Agreement between the Company and Rudra
Altman dated November 1, 1996.
3.
________________
* Filed as an exhibit to the Registration Statement on Form S-1
(Registration No. 333-51465) and incorporated herein by reference.
UNDERTAKINGS
1. The 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;
(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 with or furnished to the
Securities and Exchange Commission pursuant to Section 13 or 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.
(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 Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
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
Registrant, 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 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.
4.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Longmont, State of Colorado, on the 30th day of
September, 1998.
HORIZON ORGANIC HOLDING CORPORATION
By: /S/ Barnet M. Feinblum
_____________________________________
Barnet M. Feinblum
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Barnet M. Feinblum and Don J. Gaidano,
and each of them, as 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 and all amendments (including
post-effective amendments) to this Registration Statement, 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 full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, 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 their
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
/S/ Marcus B. Peperzak Chairman of the Board of Directors September 30, 1998
- ----------------------------------------
Marcus B. Peperzak
/S/ Barnet M. Feinblum President, Chief Executive Officer, Director September 30, 1998
- ---------------------------------------- (Principal Executive Officer)
Barnet M. Feinblum
/S/ Don J. Gaidano Vice President, Finance & Administration, September 30, 1998
- ---------------------------------------- Chief Financial Officer, and Treasurer
Don J. Gaidano (Principal Financial and Accounting Officer)
/S/ Paul B. Repetto Vice President, Marketing, Director September 30, 1998
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Paul B. Repetto
/S/ Mark A. Retzloff Vice President, Sales, Director September 30, 1998
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Mark A. Retzloff
Director September 30, 1998
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Thomas D. McCloskey, Jr.
Director September 30, 1998
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J. Thomas Clark
5.
Director September 30, 1998
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Clark R. Mandigo II
/S/ Richard L. Robinson Director September 30, 1998
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Richard L. Robinson
Director September 30, 1998
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G. Irwin Gordon
6.
EXHIBIT INDEX
Exhibit
NUMBER DESCRIPTION
3.2* Amended and Restated Certificate of Incorporation.
3.4* Amended and Restated Bylaws.
4.2* Specimen stock certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Eide Bailly LLP.
23.3 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 5).
99.1* 1998 Equity Incentive Plan.
99.2* 1998 Employee Stock Purchase Plan.
99.3 Form of Incentive Stock Option Agreement between the Company and Marc
Peperzak.
99.4 Form of Non-Qualified Stock Option Agreement dated January 10, 1998.
99.5 Stock Option Agreement between the Company and Peter McGoldnick dated
August 7, 1997.
99.6 Form of Stock Option Agreement dated May 14, 1997.
99.7 Form of Stock Option Agreement dated July 9, 1996.
99.8 Stock Option Agreement between the Company and Barnet M. Feinblum
dated June 1, 1995.
99.9 Stock Option Agreement between the Company and Barnet M. Feinblum
dated June 1, 1995.
99.10 Form of Stock Option Agreement dated May 15, 1995.
99.11 Non-Qualified Stock Option Agreement between the Company and Rudra
Altman dated November 1, 1996.
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* Filed as an exhibit to the Registration Statement on Form S-1 (Registration
No. 333-51465) and incorporated herein by reference.