UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
(Mark One)
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2005
OR
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from _____ to _____
Commission File Number 0-18761
HANSEN NATURAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 39-1679918
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1010 Railroad Street, Corona, California 92882
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (951) 739 - 6200
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
--------------------- ---------------------
Not Applicable Not Applicable
Securities registered pursuant to Section 12(g) of the Act:
Title of class
----------------
Common Stock, $0.005 par value per share
Indicate by check mark if the registrant is a well-known seasoned issuer,
as defined in Rule 405 of the Securities Act. Yes[X] No[ ].
Indicate by check mark if the registrant is not required to file reports
pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes[ ] No[X ].
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated filer or a non-accelerated filer. See definition of accelerated
filer and large accelerated filer in Rule 12b-2 of the Exchange Act. Large
accelerated filer [ X ] Accelerated filer [ ] Non-accelerated filer [ ]
Indicate by check mark whether the registrant is a shell company (as
defined by Rule 12b-2 of the Exchange Act.) Yes [ ] No [X]
The aggregate market value of the common equity held by nonaffiliates of
the registrant was $717,931,877 computed by reference to the closing sale price
for such stock on the NASDAQ Capital Market on June 30, 2005, the last business
day of the registrant's most recently completed second fiscal quarter.
The number of shares of the registrant's common stock, $0.005 par value per
share (being the only class of common stock of the registrant), outstanding on
February 10, 2006 was 22,307,006 shares.
2
HANSEN NATURAL CORPORATION
FORM 10-K
TABLE OF CONTENTS
Item Number Page Number
- ------------ -----------
PART I
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1. Business 4
1A. Risk Factors 18
1B. Unresolved Staff Comments 23
2. Properties 23
3. Legal Proceedings 23
4. Submission of Matters to a Vote of Security Holders 24
PART II
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5. Market for the Registrant's Common Equity, Related
Stockholder Matters and Issuer Purchases of Equity Securities 25
6. Selected Financial Data 26
7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 27
7A. Qualitative and Quantitative Disclosures about Market Risks 45
8. Financial Statements and Supplementary Data 45
9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure 45
9A. Controls and Procedures 46
9B. Other Information 48
PART III
10. Directors and Executive Officers of the Registrant 49
11. Executive Compensation 52
12. Security Ownership of Certain Beneficial Owners and Management
and Related Stockholder Matters 58
13. Certain Relationships and Related Transactions 61
14. Principal Accountant Fees and Services 62
PART IV
15. Exhibits, Financial Statement Schedules 63
Signatures 64
3
PART I
ITEM 1. BUSINESS
Overview
Hansen Natural Corporation was incorporated in Delaware on April 25, 1990.
Its principal place of business is at 1010 Railroad Street, Corona, California
92882 and its telephone number is (951) 739-6200. When this report uses the
words "Hansen", "HBC", "the Company", "we", "us", and "our", these words refer
to Hansen Natural Corporation and our subsidiaries other than Monster LDA
Company ("MLDA"), unless the context otherwise requires.
We are a holding company and carry on no operating business except through
our direct wholly owned subsidiaries, Hansen Beverage Company ("HBC") which was
incorporated in Delaware on June 8, 1992, and MLDA, formerly known as Hard e
Beverage Company, and previously known as Hard Energy Company and as CVI
Ventures, Inc., which was incorporated in Delaware on April 30, 1990. HBC
generates substantially all of our operating revenues.
We develop, market, sell and distribute "alternative" beverage category
natural sodas, fruit juices, energy drinks and energy sports drinks, fruit juice
smoothies and, "functional drinks", sparkling lemonades and orangeades,
non-carbonated ready-to-drink iced teas, lemonades, juice cocktails, children's
multi-vitamin juice drinks and non-carbonated lightly flavored energy waters
under the Hansen's(R) brand name. We also develop, market, sell and distribute
energy drinks under the Monster Energy(R), Lost(R) Energy, Rumba(TM) and Joker
Mad Energy(TM) brand names. We also market, sell and distribute, natural sodas,
premium natural sodas with supplements, organic natural sodas, seltzer waters
and energy drinks under the Blue Sky(R) brand name. Our fruit juices for
toddlers are marketed under the Junior Juice(R) brand name. We also market, sell
and distribute vitamin and mineral drink mixes in powdered form under the
Fizzit(TM) brand name.
The Company has two reportable segments, namely Direct Store Delivery
("DSD"), whose principal products comprise energy drinks, and Warehouse, whose
principal products comprise juice based and soda beverages. The DSD segment
develops, markets and sells products primarily through an exclusive distributor
network whereas the Warehouse segment develops, markets and sells products
primarily direct to retailers.
Corporate History
In the 1930s, Hubert Hansen and his three sons started a business to sell
fresh non-pasteurized juices in Los Angeles, California. This business
eventually became Hansen's Juices, Inc., which subsequently became known as The
Fresh Juice Company of California, Inc. ("FJC"). FJC retained the right to
market and sell fresh non-pasteurized juices under the Hansen trademark. In
1977, Tim Hansen, one of the grandsons of Hubert Hansen, perceived a demand for
pasteurized natural juices and juice blends that are shelf stable and formed
Hansen Foods, Inc. ("HFI"). HFI expanded its product line from juices to include
Hansen's(R) natural sodas. California Co-Packers Corporation (d/b/a/ Hansen
Beverage Company) ("CCC") acquired certain assets of HFI, including the right to
market the Hansen's(R) brand name, in January 1990. On July 27, 1992, HBC
acquired the Hansen's(R) brand natural soda and apple juice business from CCC.
Under our ownership, the Hansen beverage business has significantly expanded and
includes a wide range of beverages within the growing "alternative" beverage
category including in particular, energy drinks. In September 1999, we acquired
all of FJC's rights to manufacture, sell and distribute fresh non-pasteurized
juice products under the Hansen's(R) trademark together with certain additional
rights. In 2000, HBC, through its wholly-owned subsidiary, Blue Sky Natural
Beverage Co. ("Blue Sky"), which was incorporated in Delaware on September 8,
2000, acquired the natural soda business previously conducted by Blue Sky
Natural Beverage Co., a New Mexico corporation ("BSNBC"), under the Blue Sky(R)
trademark. In 2001, HBC, through its wholly-owned subsidiary Hansen Junior Juice
Company, ("Junior Juice"), which was incorporated in Delaware on May 7, 2001,
acquired the Junior Juice business previously conducted by Pasco Juices, Inc.
("Pasco") under the Junior Juice(R) trademark.
4
Industry Overview
The alternative beverage category combines non-carbonated ready-to-drink
iced teas, lemonades, juice cocktails, single serve juices and fruit beverages,
ready-to-drink dairy and coffee drinks, energy drinks, sports drinks, and
single-serve still water (flavored, unflavored and enhanced) with "new age"
beverages, including sodas that are considered natural, sparkling juices and
flavored sparkling waters. The alternative beverage category is the fastest
growing segment of the beverage marketplace according to Beverage Marketing
Corporation. According to Beverage Marketing Corporation, wholesale sales in
2005 for the alternative beverage category of the market are provisionally
estimated at $18.7 billion representing a growth rate of approximately 13.7%
over the revised estimated wholesale sales in 2004 of approximately $16.4
billion.
Products
Natural Sodas. Hansen's(R) natural sodas have been a leading natural soda
brand in Southern California for the past 25 years. In 2005, according to
Information Resources, Inc.'s Analyzer Reports for California, our natural sodas
recorded the highest sales among comparable carbonated new age category
beverages measured by unit volume in the California market. Our natural sodas
are available in fifteen regular flavors consisting of mandarin lime, key lime,
grapefruit, raspberry, ginger ale, creamy root beer, grapefruit, vanilla cola,
cherry vanilla creme, orange mango, kiwi strawberry, tropical passion, black
cherry, ginger ale and tangerine. In early 2001, we introduced a new line of
diet sodas using Splenda(R) sweetener as the primary sweetener. We initially
introduced this line in four flavors: peach, black cherry, tangerine lime, and
kiwi strawberry and have since added two additional flavors, ginger ale and
creamy root beer. Our natural sodas contain no preservatives, sodium, caffeine
or artificial coloring and are made with high quality natural flavors, citric
acid and high fructose corn syrup or, in the case of diet sodas, with Splenda(R)
and Acesulfame-K. We package our natural sodas in 12-ounce and 16-ounce aluminum
cans. In 2002, we introduced a line of natural mixers in 8-ounce aluminum cans
comprising club soda, tonic water and ginger ale.
In January 1999, we introduced a premium line of Signature Sodas in unique
proprietary 14-ounce glass bottles. This line was marketed under the Hansen's(R)
brand name, primarily through our distributor network, in six flavors. In early
2003, we repositioned this line into lower cost 12-ounce glass packaging to
market our repositioned Signature Soda line at lower price points directly to
our retail customers such as grocery chains, club stores, specialty retail
chains and mass merchandisers and to the health food sector through specialty
and health food distributors (collectively referred to as our "direct retail
customers"). Signature Soda is available in 12-ounce glass bottles in five
flavors: orange creme, vanilla creme, ginger beer, sarsaparilla and black
cherry.
In September 2000, we acquired the Blue Sky(R) natural soda business from
BSNBC. Our Blue Sky product line comprises natural sodas, premium sodas, organic
natural sodas, seltzer water, energy drinks and tea sodas. Blue Sky(R) natural
sodas are available in twelve regular flavors consisting of lemon lime,
grapefruit, cola, root beer, raspberry, cherry vanilla creme, Jamaican ginger
ale, black cherry, orange creme, Dr. Becker, grape and cream soda. We also offer
a Blue Sky(R) product line, a premium line of natural sodas which contain
supplements such as ginseng. This line is available in six flavors consisting of
ginseng creme, ginseng cola, ginseng root beer, ginseng very berry creme,
ginseng ginger ale, and ginseng cranberry-raspberry. During 1999, Blue Sky(R)
introduced a line of organic natural sodas, which are available in six flavors
consisting of prime lime cream, new century cola, orange divine, ginger gale,
black cherry cherish, and root beer. We also market a seltzer water under the
Blue Sky(R) label in three flavors: natural, lime and lemon. In 2002, we
introduced a lightly carbonated Blue Sky(R) energy drink in an 8.3-ounce slim
can. In 2004, we introduced a new line of Blue Sky(R) natural tea sodas in four
flavors consisting of Imperial Lime Green Tea, Peach Mist Green Tea, Pomegranate
White Tea and Raspberry Red Tea. The Blue Sky(R) products contain no
preservatives, sodium or caffeine (other than the energy drink) or artificial
coloring and are made with high quality natural flavors. Blue Sky(R) natural
sodas, seltzer waters and tea sodas are all packaged in 12-ounce aluminum cans
and are marketed primarily to our direct retail customers. In March 2005, we
introduced a new light line of Blue Sky sodas using natural sweeteners in four
flavors, cherry vanilla creme, creamy root, Jamaican ginger ale and wild
raspberry in 12-ounce cans. In the third quarter of 2005, we introduced a new
line of Blue Sky(R) Natural Sodas with real sugar in 12-ounce cans in four
flavors, cherry vanilla creme, cola, ginger ale and root beer. In December 2005,
we introduced a new line of Blue Sky Isotonic Sports Drinks in 16-ounce
polyethylene terephthalate ("PET") plastic bottles in three flavors, orange,
lemon lime and fruit punch.
5
In 2001, we introduced a new line of sparkling lemonades (regular and pink)
and orangeades in unique proprietary 1-liter glass bottles and towards the end
of 2002, we introduced diet versions of our regular sparkling lemonades and
orangeades, also in 1-liter glass bottles. The sparkling lemonades and
orangeades contain real juice and pulp. In 2003, we extended this line into
unique proprietary 12-ounce glass bottles in both regular and diet versions.
This product line is marketed to our direct retail customers. The contract
packer who produced these products on our behalf underwent a change of ownership
and experienced production difficulties which adversely affected this product
line. We are currently evaluating alternative packages for this line.
Hansen's Energy Drinks. In 1997, we introduced a lightly carbonated citrus
flavored Hansen's(R) energy drink in 8.3-ounce cans. Our energy drink competes
in the "functional" beverage category, namely, beverages that provide a real or
perceived benefit in addition to simply delivering refreshment. We also offered
additional flavors of energy drinks as well as functional drinks including a
ginger flavored d-stress(R) drink, an orange flavored b-well(TM) drink, a
guarana berry flavored stamina(R) drink, a grape flavored power drink, and a
berry flavored "slim-down" drink that contained no calories, in the same size
cans. We have since discontinued sales of such products. Our energy drinks
contain vitamins, minerals, nutrients, herbs and supplements (collectively
"supplements"). In 2004, we commenced to offer our Hansen's energy drink in
16-ounce cans as well. In 2001, we introduced Energade(R), a non-carbonated
energy sports drink in 23.5-ounce cans in two flavors, citrus and orange, and
subsequently introduced a third flavor, red rocker, which we have since
discontinued. We also introduced E2O Energy Water(R), a non-carbonated lightly
flavored water, in 24-ounce blue PET plastic bottles, in four flavors,
tangerine, apple, berry and lemon. We have since discontinued the apple flavor
and introduced a green tea flavor in its place. In 2002, we expanded our E2O
Energy Water(R) line with four additional flavors in clear PET plastic bottles,
mango melon, kiwi strawberry, grapefruit and green tea. We have since
discontinued the E2O Energy Water(R) line in clear PET plastic bottles. Our
Energade(R) and E2O Energy Water(R) drinks also contain different combinations
and levels of supplements. We are currently repositioning our E2O Energy
Water(R) line. At the end of 2002, we introduced a lightly carbonated diet
energy drink in 8.3-ounce cans under the Hansen's(R) Diet Red brand name. Our
Diet Red energy drink is sweetened with Splenda(R) and Acesulfame-K. We market
our energy, and Energade(R) drinks primarily through our full service
distributor network. We market our E2O Energy Water(R) drinks in blue bottles to
our direct retail customers. In 2003, we introduced a new carbonated energy
drink under the Hansen's(R) Deuce brand name, in 16-ounce cans, but with a
different flavor from our existing Hansen's(R) Energy drinks in 8.3-ounce cans.
We have since discontinued this product.
Monster Energy(R) Drinks. In 2002, we launched a new carbonated energy
drink under the Monster Energy(R) brand name, in 16-ounce cans, which was almost
double the size of our regular energy drinks in 8.3-ounce cans and the vast
majority of competitive energy drinks on the market at that time. Our Monster
Energy(R) drink contains different types and levels of supplements than our
Hansen's(R) energy drinks and is marketed through our full service distributor
network. In 2003, we introduced a low carbohydrate ("Lo-Carb") version of our
Monster Energy(R) energy drink. In 2004, we introduced 4-packs of our Monster
Energy(R) drinks including our Lo-Carb version thereof and, towards the end of
2004, we launched a new Monster Energy(R) Assault(TM) energy drink in 16-ounce
cans. During the first half of 2005, we introduced our Monster Energy(R) drinks
and Lo-Carb Monster Energy(R) in 24-ounce size cans as well as Monster
Energy(R), Lo-Carb Monster Energy(R) and Monster Energy(R) Assault(TM) in
8.3-ounce size cans. In September 2005, we introduced a new Monster Energy(R)
Khaos(TM) energy drink in 16-ounce cans. Khaos(TM) is lightly carbonated and
contains 70% juice.
6
Lost(R) Energy Drinks. In 2004, we launched a new carbonated energy drink
under the Lost(R) brand name, in 16-ounce cans. Towards the end of 2005, we
introduced a lo-carb version of Lost(R) under the Perfect 10 brand name as well
as a new Lost(R) Five-O energy drink, all in 16-ounce cans. Lost(R) Five-O
contains 50% juice and is lightly carbonated. In December 2005, we introduced
Lost(R) and Lost(R) Five-O in 24-ounce size cans. The Lost(R) brand name is
owned by Lost International LLC and the drinks are produced, sold and
distributed by us under exclusive license from Lost International LLC.
Rumba(TM) Energy Juice. In December 2004, we launched a new non-carbonated
energy juice under the Rumba(TM) brand name in 15.5-ounce cans. Rumba(TM) is a
100% juice product that targets male and female morning beverage consumers and
is positioned as a substitute for coffee, caffeinated sodas and 100% orange or
other juices.
Joker Mad Energy(TM) Drink. In the first quarter of 2005, we introduced
Joker Mad Energy(TM) drinks in 16-ounce cans. Joker Mad Energy(TM) drinks come
in both regular and lo-carb versions in 16-ounce cans.
Juice Products and Smoothies. Our fruit juice product line includes
Hansen's(R) Natural Old Fashioned Apple Juice which is packaged in 64-ounce PET
plastic bottles and 128-ounce polypropylene bottles and White Grape, Concord
Grape, Orange, and Pomegranate, Apple Strawberry and Apple Grape juice blends,
in 64-ounce PET plastic bottles. These Hansen's(R) juice products contain 100%
juice (except Pomegranate which contains 27% juice) as well as Vitamin C.
Certain of these products also contain added calcium. Hansen's(R) juice products
compete in the shelf-stable juice category. In 2002, we extended our fruit juice
and juice blend product line by introducing certain of these products in
10-ounce PET plastic bottles and in 2003 further extended our fruit juice
product line by introducing a 100% Apple Juice in aseptic pouches in a
6.75-ounce size. We also offer light juices and juice cocktails in 64-ounce PET
plastic bottles.
In March 1995, we introduced a line of fruit juice smoothie drinks in
11.5-ounce aluminum cans. Certain flavors were subsequently offered in glass and
PET plastic bottles. We have since discontinued offering smoothies in those
packages. Hansen's fruit juice smoothies have a smooth texture that is thick but
lighter than a nectar. Hansen's smoothies in 11.5-ounce aluminum cans contain
approximately 35% juice. Our fruit juice smoothies provide 100% of the
recommended daily intake for adults of Vitamins A, C & E and represented
Hansen's entry into what is commonly referred to as the "functional" beverage
category. Hansen's(R) fruit juice smoothies are available in thirteen flavors:
strawberry banana, peach berry, mango pineapple, guava strawberry, pineapple
coconut, apricot nectar, tropical passion, whipped orange, cranberry twist, as
well as the blast line comprising Island Blast, Colada Blast and Power Berry
Blast. In 2004, we repositioned our cranberry raspberry lite smoothie as part of
our new lo-carb line of smoothies. Our lo-carb smoothie line currently consists
of peach, mango and cran-raspberry flavors in 12-ounce cans.
In 2001, we introduced a new line of soy smoothies in 32- and 11-ounce
aseptic packaging in five flavors: berry splash, tropical breeze, orange dream,
lemon chiffon and peach passion. During 2004, we discontinued all of our soy
smoothies in 32-ounce aseptic packaging and four of the five flavors in 11-ounce
aseptic packaging, leaving Berry Splash, which was discontinued in 2005.
Sparkling Apple Cider. In 2002, we introduced a Sparkling Cider 100% juice
drink in a 1.5-liter Magnum glass bottle. However, due to reports of some
bottles breaking we promptly voluntarily recalled the product in the fourth
quarter of 2003. We are pursuing a claim against the third-party bottler for the
costs and losses incurred by us. We will reevaluate relaunching this product
once certain production issues are resolved and a suitable co-packer has been
identified.
7
We market the above juice and smoothie products to our direct retail
customers.
Iced Teas, Lemonades and Juice Cocktails. We introduced Hansen's(R)
ready-to-drink iced teas and lemonades in 1993. Hansen's(R) ready-to-drink iced
teas are available in three flavors: Original with Lemon, Tropical Peach and
Wildberry. Lemonades are available in one flavor: Original Old Fashioned
Lemonade. Hansen's(R) juice cocktails were introduced in 1994 and are available
in three flavors: kiwi strawberry melon, tangerine pineapple with passion fruit,
and California paradise punch. We introduced a variety 12 pack of iced teas
during the first half of 2001, which experienced limited success. We are
continuing to market this package. Hansen's(R) ready-to-drink iced teas,
lemonades and juice cocktails were packaged in 16-ounce wide-mouth glass
bottles. At the end of 2002, we converted this line from 16-ounce glass bottles
to 16-ounce polypropylene bottles and are currently reevaluating this line.
Hansen's(R) ready-to-drink iced teas are made with decaffeinated tea.
Hansen's(R) juice products and smoothies are made with high quality juices and
products that contain less than 100% fruit juice are also made with natural
flavors, high fructose corn syrup, citric acid and other ingredients.
In 1999, we introduced a line of specialty teas in 20-ounce glass bottles,
which we named our "Gold Standard" line. We subsequently introduced two
additional green tea flavors as well as two diet green tea flavors and six juice
cocktails. We have discontinued certain of the specialty teas and all of the
juice cocktails but continue to market four products, green tea, lemon green tea
and peach green tea as well as the diet peach green tea flavor. Our Gold
Standard line also contains supplements. We continue to package our Gold
Standard Line in unique 20-ounce glass bottles.
Juices for Children. In 1999, we introduced two new lines of children's
multi-vitamin juice drinks in 8.45-ounce aseptic packages. Each drink contains
eleven essential vitamins and six essential minerals. We introduce new flavors
in place of existing flavors from time to time. One of these two lines is a
dual-branded 100% juice line named Juice Blast(R) that was launched in
conjunction with Costco Wholesale Corporation ("Costco") and is sold through
Costco stores. The other line was a 10% juice line named "Hansens Natural
Multi-Vitamin Juice Slam(R) that was available to all of our customers. During
2000, we repositioned that line as a 100% juice line under the Juice Slam(R)
name and market that line to grocery store chain customers, the health food
trade, and other customers. Both the Juice Blast(R) and Juice Slam(R) lines are
marketed in 6.75-ounce aseptic packages. The Juice Slam(R) line has four flavors
and the Juice Blast(R) line has three flavors.
In May 2001, we acquired the Junior Juice(R) beverage business. The Junior
Juice(R) product line is comprised of seven flavors of 100% juice in 4.23-ounce
aseptic packages and is targeted at toddlers. Six flavors of the Junior Juice(R)
line have calcium added and all flavors have vitamin C added. The current
flavors in the Junior Juice(R) line are apple, apple berry, orange twist, apple
grape, mixed fruit, fruit punch and white grape.
Bottled Water. Our still water products were introduced in 1993 and are
primarily sold in 0.5-liter plastic bottles to the food service trade. Sales of
this product line are very limited.
Fizzit(TM) Powdered Drink Mixes. In December 2005, we introduced a new line
of vitamin and mineral drink mixes in powdered form under the Fizzit(TM) brand
name. This line includes vitamin and mineral formulas as well as functional
formulas.
8
Other Products
We continue to evaluate and, where considered appropriate, introduce
additional flavors and other types of beverages to complement our existing
product lines. We will also evaluate, and may, where considered appropriate,
introduce functional foods/snack foods that utilize similar channels of
distribution and/or are complementary to our existing products and/or to which
our brand names are able to add value.
We also develop and supply, on a limited basis, selected beverages in
different formats to a limited number of customers with the objective of
solidifying our relationship with those customers.
Manufacture and Distribution
We do not directly manufacture our products but instead outsource the
manufacture to third party bottlers and contract packers.
We purchase concentrates, juices, flavors, supplements, caps, labels,
trays, boxes and other ingredients for our beverage products which are delivered
to our various third party bottlers and co-packers. Depending on the product,
the third party bottlers or packers add filtered water and/or high fructose corn
syrup, or sucrose, or cane sugar or Splenda(R) brand sweetener, Acesulfame-K
and/or citric acid or other ingredients and supplements for the manufacture and
packaging of the finished products into approved containers in accordance with
our formulas. In the case of sodas and other carbonated beverages, the
bottler/packer adds carbonation to the products as part of the production
process.
We are generally responsible for arranging for the purchase of and delivery
to our third party bottlers and co-packers of the containers in which our
beverage products are packaged.
All of our beverage products are manufactured by various third party
bottlers and co-packers situated throughout the United States and Canada under
separate arrangements with each of such parties. The majority of our
co-packaging arrangements are on a month-to-month basis. However, certain of our
material co-packing arrangements are described below:
(a) Our agreement with Southwest Canning and Packaging, Inc. ("Southwest")
pursuant to which Southwest packages a portion of our Hansen's(R) natural sodas.
This contract continues indefinitely and is subject to termination upon 60 days
written notice from either party.
(b) Our agreement with Nor-Cal Beverage Co., Inc. ("Nor-Cal") pursuant to
which Nor-Cal packages a portion of our Hansen's(R) juices in PET plastic
bottles. This contract continues until August 2007 and is renewable annually
thereafter from year-to-year unless terminated by Hansen's not less than 60 days
before the end of the then current term.
(c) Our agreement with Seven-Up/RC Bottling Company of Southern California,
Inc. ("Seven-Up") pursuant to which Seven-Up packages a portion of our
Monster(TM) and Lost(R) brand energy drinks and a portion of our Hansen's(R)
natural sodas. This contract continues until March 2009. Upon termination prior
to such time we are entitled to recover certain equipment we have purchased and
installed at Seven-Up's facility.
(d) Our agreement with Southeast Atlantic Beverage Corporation
("Southeast") pursuant to which Southeast packages a portion of our Monster
Energy(R) and Lost(R) brand energy drinks. This contract continues until July
2007 and is renewable annually thereafter, unless terminated by either party not
less than 180 days prior to the end of the then current term.
(e) Our agreement with City Brewing Company LLC ("City Brew") pursuant to
which City Brew packages a portion of our Energade(R) energy sports drinks and
energy drinks in 16 and 24-ounce cans. This contract continues until December
2006. Either party is entitled, at any time, to terminate the agreement upon
ninety (90) days prior written notice to the other party.
9
(f) Our agreement with Pri-Pak, Inc. ("Pri-Pak") pursuant to which Pri-Pak
packages a portion of our energy drinks in 8.3-ounce cans. This contract
continues indefinitely but may be terminated at any time by either party upon
ninety (90) days prior written notice to the other.
(g) Our agreement with Gluek Brewing Company ("Gluek") pursuant to which
Gluek packages a portion of our energy drinks in 8.3, 15.5 and 16-ounce cans.
This contract continues until August 2008 and is automatically renewed for one
year periods thereafter. Either party is entitled at any time to terminate the
agreement upon 180 days prior written notice to the other party.
In certain instances, equipment is purchased by us and installed at the
facilities of our co-packers to enable them to produce certain of our products.
In general, such equipment remains our property and is to be returned to us upon
termination of the packing arrangements with such co-packers or is amortized
over a pre-determined number of cases that are to be produced at the facilities
concerned.
We pack certain products outside of the West Coast region to enable us to
produce products closer to the markets where they are sold and thereby reduce
freight costs. As volumes in markets outside of California grow, we continue to
secure additional packing arrangements closer to such markets to further reduce
freight costs.
Our ability to estimate demand for our products is imprecise, particularly
with new products, and may be less precise during periods of rapid growth,
particularly in new markets. If we materially underestimate demand for our
products or are unable to secure sufficient ingredients or raw materials
including, but not limited to, glass, PET/plastic bottles, cans, labels, flavors
or supplement ingredients or certain sweeteners, or packing arrangements, we
might not be able to satisfy demand on a short-term basis. The supplier of
sucralose has notified the Company that our purchases of sucralose during 2006
will be subject to volume limitations due to the demand for sucralose exceeding
their production capacity. While we believe that we will be able to secure
sufficient quantities of sucralose during 2006 to meet the demand for our
products that contain sucralose, we will reformulate certain of those products
that contain sucralose with alternative sweetener systems to avoid an
interruption in supply of those products, should the need arise.
Although our production arrangements are generally of short duration or are
terminable upon request, we believe a short disruption or delay would not
significantly affect our revenues since alternative packing facilities in the
United States with adequate capacity can usually be obtained for many of our
products at commercially reasonable rates and/or within a reasonably short time
period. However, there are limited packing facilities in the United States with
adequate capacity and/or suitable equipment for many of our newer products,
including Hansen's(R) brand energy drinks in 8.3-ounce and 16-ounce cans, Gold
Standard line, aseptic juice products, Energade(R), sparkling apple cider in
1.5-liter magnum glass bottles, Monster Energy(R), Lost(R), Rumba(TM) and Joker
Mad Energy(TM) energy drinks in 8.3, 15.5, 16, and 24-ounce cans and sparkling
lemonades and orangeade lines. There are also limited shrink sleeve labeling
facilities available to us in the United States with adequate capacity for our
E2O Energy Water(R). A disruption or delay in production of any of such products
could significantly affect our revenues from such products as alternative
co-packing facilities in the United States with adequate capacity may not be
available for such products either at commercially reasonable rates and/or
within a reasonably short time period, if at all. Consequently, a disruption in
production of such products could affect our revenues. We continue to seek
alternative and/or additional co-packing facilities in the United States or
Canada with adequate capacity for the production of our various products to
minimize the risk of any disruption in production.
We have entered into distribution agreements for the distribution in most
states of Hansen's(R) brand energy drinks, Monster Energy(R) drinks, Lost(R)
energy drinks, and Energade(R) energy sports drinks. Distribution levels vary
from state to state and from product to product. Certain of our products are
sold in Canada. We also sell a limited range of our products to distributors
outside of the United States, including in Mexico, the Caribbean , Central and
South America, Japan, Korea, and Saudi Arabia.
10
We continually seek to expand distribution of our products by entering into
agreements with regional bottlers or other direct store delivery distributors
having established sales, marketing and distribution organizations. Many of our
bottlers and distributors are affiliated with and manufacture and/or distribute
other soda and non-carbonated brands and other beverage products. In many cases,
such products compete directly with our products.
We continue to take steps to reduce our inventory levels in an endeavor to
lower our warehouse and distribution costs.
During 2005, we continued to expand distribution of our natural sodas and
smoothies outside of California. We expanded our national sales force to support
and grow sales, primarily of Monster Energy(R) drinks, Lost(R) energy drinks,
and Energade(R) energy sports drinks and we intend to continue to build such
sales force in 2006.
Our Blue Sky(R) products are sold primarily to the health food trade,
natural food chains and mainstream grocery store chains, through specialty
health food distributors.
We concluded exclusive contracts with the State of California ("State")
Department of Health Services, Women, Infant and Children ("WIC") Supplemental
Nutrition Branch ("DHS") to supply 100% apple juice and 100% blended juice, in
64-ounce PET plastic bottles. The contracts are each for a period of three years
with a further one-year extension option to be mutually agreed between Hansens
and the State of California. We bid the lowest net cost per unit in terms of the
wholesale price, less a rebate to the State. Formal written agreements were
signed with the State in accordance with the bid process. The contracts
commenced on July 12, 2004.
Under the contracts Hansen's is the exclusive supplier for both Apple Juice
and the blended juice category, a new WIC category, initially with our 100%
Apple Grape Juice. During 2005, our Apple Strawberry Juice was approved within
the blended juice category and became eligible for redemption under the WIC
contract in addition to our 100% Apple Grape Juice. The WIC contracts have
expanded the distribution of Hansens juices, resulting in increased exposure for
the Hansens brand. WIC-approved items are stocked by the grocery trade and by
WIC-only stores. Products are purchased by WIC consumers with vouchers given by
the DHS to qualified participants.
Our principal warehouse and distribution center and corporate offices
relocated to our current facility in October 2000. In January 2004, we leased an
additional warehouse facility in Corona to consolidate additional space that had
been leased by us on short term leases from time to time to meet our increased
warehousing needs due to increases in both sales volumes and products and
terminated the two short term leases concerned. We continue to take steps to
reduce our inventory levels wherever possible, in an endeavor to lower our
warehouse and distribution costs. (See also "PART I ITEM 2 PROPERTIES").
Raw Materials and Suppliers
The principal raw materials used by us comprise aluminum cans, glass
bottles and PET plastic bottles as well as juices, high fructose corn syrup,
sucrose and sucralose, the costs of which are subject to fluctuations. Due to
the consolidations that have taken place in the glass industry over the past few
years, the prices of glass bottles continue to increase. The prices of PET
plastic bottles and aluminum cans have increased in 2005. The prices of high
fructose corn syrup, sucrose and certain juice concentrates have also increased
in 2005. These increased costs together with increased costs primarily of energy
and gas and freight resulted in increases in certain product costs which are
ongoing and are expected to continue to exert pressure on our gross margins in
2006. We are uncertain whether the prices of these or any other raw materials or
ingredients will continue to rise in the future.
11
Generally, raw materials utilized by us in our business are readily
available from numerous sources. However, certain raw materials are manufactured
by only one company. Sucralose, which is used alone or in combination with
Acesulfame-K in the Company's low-calorie products, is purchased by us from a
single manufacturer. Certain of our cans are only manufactured by a single
company in the United States.
With regard to fruit juice and juice-drink products, the industry is
subject to variability of weather conditions, which may result in higher prices
and/or lower consumer demand for juices.
We purchase beverage flavors, concentrates, juices, supplements,
high-fructose corn syrup, cane sugar, sucrose, sucralose and other sweeteners as
well as other ingredients from independent suppliers located in the United
States and abroad.
Generally, flavor suppliers hold the proprietary rights to their flavors.
Consequently, we do not have the list of ingredients or formulae for our flavors
and certain of our concentrates readily available to us and we may be unable to
obtain these flavors or concentrates from alternative suppliers on short notice.
We have identified alternative suppliers of many of the supplements contained in
many of our beverages. However, industry-wide shortages of certain fruits and
fruit juices, and supplements and sweeteners have been and could, from time to
time in the future, be experienced, which could interfere with and/or delay
production of certain of our products.
We continually endeavor to develop back-up sources of supply for certain of
our flavors and concentrates from other suppliers as well as to conclude
arrangements with suppliers which would enable us to obtain access to certain
concentrates or flavor formulas in certain circumstances. We have been partially
successful in these endeavors. Additionally, in a limited number of cases,
contractual restrictions and/or the necessity to obtain regulatory approvals and
licenses may limit our ability to enter into agreements with alternative
suppliers and manufacturers and/or distributors.
In connection with the development of new products and flavors, independent
suppliers bear a large portion of the expense of product development, thereby
enabling us to develop new products and flavors at relatively low cost. We have
historically developed and successfully introduced new products and flavors and
packaging for our products and intend to continue developing and introducing
additional new beverages and flavors.
Competition
The beverage industry is highly competitive. The principal areas of
competition are pricing, packaging, development of new products and flavors and
marketing campaigns. Our products compete with a wide range of drinks produced
by a relatively large number of manufacturers, most of which have substantially
greater financial, marketing and distribution resources than we do.
Important factors affecting our ability to compete successfully include
taste and flavor of products, trade and consumer promotions, rapid and effective
development of new, unique cutting edge products, attractive and different
packaging, branded product advertising and pricing. We also compete for
distributors who will concentrate on marketing our products over those of our
competitors, provide stable and reliable distribution and secure adequate shelf
space in retail outlets. Competitive pressures in the alternative, energy and
functional beverage categories could cause our products to be unable to gain or
to lose market share or we could experience price erosion, which could have a
material adverse affect on our business and results.
12
Over the past five years we have experienced substantial competition from
new entrants in the energy drink category. A number of companies who market and
distribute iced teas and juice cocktails in larger volume packages, such as 16
and 20-ounce glass bottles, including Sobe, Snapple Elements, Arizona and Fuse,
have added supplements to their products with a view to marketing their products
as "functional" or "energy" beverages or as having functional benefits. We
believe that many of those products contain lower levels of supplements and
principally deliver refreshment. In addition, many competitive products are
positioned differently than our energy or functional drinks. Our smoothies and
Gold Standard lines are positioned more closely against those products.
We compete not only for consumer acceptance, but also for maximum marketing
efforts by multi-brand licensed bottlers, brokers and distributors, many of
which have a principal affiliation with competing companies and brands. Our
products compete with all liquid refreshments and with products of much larger
and substantially better financed competitors, including the products of
numerous nationally and internationally known producers such as The Coca Cola
Company, PepsiCo, Inc., Cadbury Schweppes plc, Red Bull Gmbh, Kraft Foods, Inc.
Nestle Beverage Company, Tree Top and Ocean Spray. We also compete with
companies that are smaller or primarily local in operation. Our products also
compete with private label brands such as those carried by grocery store chains,
convenience store chains, and club stores.
Our natural sodas compete directly with traditional soda products including
those marketed by The Coca-Cola Company, PepsiCo, Inc. and Cadbury Schweppes
plc, as well as with carbonated beverages marketed by smaller or primarily local
companies such as Jones Soda Co., Clearly Canadian Beverage Company, Crystal
Geyser, J.M. Smucker Company, and with private label brands such as those
carried by grocery store chains, convenience store chains and club stores.
Our fruit juice smoothies compete directly with Kern's, Jumex, Jugos del
Valle and Libby's nectars, V8 Smoothies, as well as with single serve juice
products produced by many competitors. Such competitive products are packaged in
glass and PET bottles ranging from 8- to 48-ounces in size and in 11.5-ounce
aluminum cans. The juice content of such competitive products ranges from 1% to
100%.
Our apple and other juice products compete directly with Tree Top, Mott's,
Martinelli's, Welch's, Ocean Spray, Tropicana, Minute Maid, Langers, Apple and
Eve, Seneca, Northland and also with other brands of apple juice and juice
blends, especially store brands.
Our energy drinks, including Hansen's(R) energy, Diet Red, Monster
Energy(R), Lost(R) Energy, Joker Mad Energy(TM) and Rumba(TM) Energy Juice in
8.3, 15.5, 16 and 24-ounce cans, compete directly with Red Bull, Adrenaline
Rush, Amp, Rockstar, No Fear, Full Throttle, 180, KMX, Venom, Extreme Energy
Shot, US energy, Red Devil, Rip It, Nos, Boo Koo, Lipovitan, MET-Rx, Hype, XTC,
and many other brands. In addition, certain large companies such as The
Coca-Cola Company and Pepsico Inc. market and/or distribute products in that
market segment such as Mountain Dew, Mountain Dew MDX, Vault, Adrenaline Rush,
Amp, No Fear, Full Throttle and Rockstar.
Our E2O Energy Water(R) and still water products compete directly with
Vitamin Water, Reebok, Propel, Dasani, Aquafina, Fruit2O, Evian, Crystal Geyser,
Naya, Palomar Mountain, Sahara, Arrowhead, Dannon, and other brands of flavored
water and still water especially store brands.
Sales and Marketing
We focus on consumers who seek products that are perceived to be natural
and healthy and emphasize the natural ingredients and the absence of
preservatives, sodium, artificial coloring and caffeine in our beverages (other
than our energy drinks) and the addition to most of our products, of one or more
supplements. We reinforce this message in our product packaging.
13
Our sales and marketing strategy is to focus our efforts on developing
brand awareness and trial through sampling both in stores and at events in
respect of all our beverages and drink mixes. We use our branded vehicles and
other promotional vehicles at events at which we distribute our products to
consumers for sampling. We utilize "push-pull" methods to achieve maximum shelf
and display space exposure in sales outlets and maximum demand from consumers
for our products including advertising, in store promotions and in store
placement of point of sale materials and racks, prize promotions, price
promotions, competitions, endorsements from selected public and extreme sports
figures, coupons, sampling and sponsorship of selected causes such as breast
cancer research and SPCA's as well as extreme sports teams such as the Pro
Circuit - Kawasaki Motocross team, extreme sports figures and athletes, sporting
events such as the Energy Pro Pipeline Surfing competition, marathons, 10k runs,
bicycle races, volleyball tournaments and other health and sports related
activities, including extreme sports, particularly supercross, freestyle motor
cross, surfing, skateboarding, wakeboarding, skiing, snowboarding, BMX, mountain
biking, snowmobile racing, etc. and also participate in product demonstrations,
food tasting and other related events. Posters, print, radio and television
advertising together with price promotions and coupons are also used to promote
our brands.
Additionally, in 2003 we entered into a multi-year sponsorship agreement to
advertise on the new Las Vegas Monorail ("Monorail Agreement") with the Las
Vegas Monorail Company ("LVMC") which includes the right to vend our Monster
Energy(R) drinks and natural sodas on all stations. The initial term of the
Monorail Agreement commenced in July 2004. For technical reasons the Monorail
did not operate for some months in 2004 but recommenced carrying passengers at
the end of December 2004. The initial term of the Monorail Agreement ends on the
first anniversary of its commencement date. Not less than 120 days before the
expiration of the initial term and each renewal term, as the case may be, we
have the right to renew the Monorail Agreement for a further one year term up to
a maximum of nine additional one year terms and the LVMC has the right, not
withstanding such election by us, to terminate the Monorail Agreement at the
expiration of the then current term. Due to the interruption in operations of
the Monorail, the commencement date of the initial term was extended and the
agreement commenced on January 1, 2005. We have renewed our agreement for 2006.
We believe that one of the keys to success in the beverage industry is
differentiation such as making Hansen's(R) products visually distinctive from
other beverages on the shelves of retailers. We review our products and
packaging on an ongoing basis and, where practical, endeavor to make them
different, better and unique. The labels and graphics for many of our products
are redesigned from time to time to maximize their visibility and
identification, wherever they may be placed in stores and we will continue to
reevaluate the same from time to time.
Where appropriate we partner with retailers to assist our marketing
efforts. For example, while we retain responsibility for the marketing of the
Juice Slam(R) line of children's multi-vitamin juice drinks, Costco has
undertaken partial responsibility for the marketing of the Juice Blast(R) line.
We increased expenditures for our sales and marketing programs by
approximately 55% in 2005 compared to 2004. As of December 31, 2005, we employed
363 employees in sales and marketing activities, of which 183 were employed on a
full-time basis.
14
Customers
Our customers are typically retail grocery and specialty chains,
wholesalers, club stores, drug, mass merchandisers, convenience chains, full
service beverage distributors, health food distributors and food service
customers. Sales to our various customer types for 2005 are reflected below. The
allocations below reflect changes made by the Company to the categories
historically reported.
Retail Grocery, specialty chains and wholesalers 19%
Club stores, drug & mass merchandisers 11%
Full service distributors 65%
Health food distributors 3%
Other 2%
Our customers include Dr. Pepper Bottling/7UP Bottling Group, Wal-Mart
(including Sams Club), Kalil Bottling Group, Trader Joe's, Seven-Up Companies
Northern California, Costco, Albertson's, Kroger and Safeway. A decision by any
large customer to decrease amounts purchased from the Company or to cease
carrying our products could have a material negative effect on our financial
condition and consolidated results of operations. One customer accounted for
approximately 18% and 13% of the Company's sales for the years ended December
31, 2005 and 2004, respectively.
Seasonality
Sales of ready-to-drink beverages are somewhat seasonal, with the second
and third calendar quarters accounting for the highest sales volumes. The volume
of sales in the beverage business may be affected by weather conditions. Sales
of our beverage products may become increasingly subject to seasonal
fluctuations as more sales occur outside of California with respect to the
Hansen's products. However, the energy drink category appears to be less
seasonal than traditional beverages.
Intellectual Property
We own numerous trademarks that are very important to our business.
Depending upon the jurisdiction, trademarks are valid as long as they are in use
and/or their registrations are properly maintained and they have not been found
to have become generic. Registrations of trademarks can generally be renewed as
long as the trademarks are in use. We also own the copyright in and to numerous
statements made and content appearing on the packaging of our products.
We own the Hansen's(R) trademark. This trademark is crucial to our business
and is registered in the U.S. Patent and Trademark Office and in various
countries throughout the world. We own a number of other trademarks including,
but not limited to, A New Kind a Buzz(TM) ,Unleash the Beast(R), Hansens
Energy(R), Blue Energy(R), Energade(R), Hansen's E2O Energy Water(R), Slim
Down(R), Power Formula(R), THE REAL DEAL(R), LIQUIDFRUIT(R), California's
Natural Choice(R), Medicine Man(R), Hansen's power(R), b-well(R), anti-ox(R),
d-stress(R), stamina(R), Antioxjuice Intellijuice(R), Defense(R),
Immunejuice(R), Hansen's Natural Multi-Vitamin Juice Slam(R), Juice Blast(R) ,
Red Rocker(R), Monster Energy(R), M (stylized)(R), M Monster Energy(R) and
Hansen's Natural Soda(R) in the United States and, the Hansen's(R) and
Smoothie(R) trademarks in a number of countries around the world.
We have applied to register a number of trademarks in the United States and
elsewhere including, but not limited to, Monster(TM), Assault(TM), Energy
Pro(TM), Khaos(TM), M Monster Mutant(TM), Monster Mutant(TM), Joker Mad
Energy(TM), Rumba(TM), Fizzit(TM) and Fizz Bomb(TM).
15
In September 2000, in connection with the acquisition of the Blue Sky
Natural Beverage business, we, through our wholly owned subsidiary Blue Sky,
acquired the Blue Sky(R) trademark, which is registered in the United States and
Canada.
In May 2001, in connection with the acquisition of the Junior Juice
beverage business, we, through our wholly owned subsidiary Junior Juice,
acquired the Junior Juice(R) trademark, which is registered in the United
States.
On April 4, 2000, the United States Patent and Trademark Office issued a
patent to us for an invention related to a shelf structure (rolling rack) and,
more particularly, a shelf structure for a walk-in cooler. Such shelf structure
is utilized by us to secure shelf space for and to merchandise our energy and
functional drinks in cans in refrigerated Visi coolers and walk-in coolers in
retail stores.
Government Regulation
The production, distribution and sale in the United States of many of our
products is subject to the Federal Food, Drug and Cosmetic Act; the Dietary
Supplement Health and Education Act of 1994; the Occupational Safety and Health
Act; various environmental statutes; and various other federal, state and local
statutes and regulations applicable to the production, transportation, sale,
safety, advertising, labeling and ingredients of such products. California law
requires that a specific warning appear on any product that contains a component
listed by the State as having been found to cause cancer or birth defects. The
law exposes all food and beverage producers to the possibility of having to
provide warnings on their products because the law recognizes no generally
applicable quantitative thresholds below which a warning is not required.
Consequently, even trace amounts of listed components can expose affected
products to the prospect of warning labels. Products containing listed
substances that occur naturally in the product or that are contributed to the
product solely by a municipal water supply are generally exempt from the warning
requirement. While none of our beverage products are required to display
warnings under this law, we cannot predict whether an important component of any
of our products might be added to the California list in the future. We also are
unable to predict whether or to what extent a warning under this law would have
an impact on costs or sales of our products.
Measures have been enacted in various localities and states that require
that a deposit be charged for certain non-refillable beverage containers. The
precise requirements imposed by these measures vary. Other deposit, recycling or
product stewardship proposals have been introduced in certain states and
localities and in Congress, and we anticipate that similar legislation or
regulations may be proposed in the future at the local, state and federal
levels, both in the United States and elsewhere.
Our facilities in the United States are subject to federal, state and local
environmental laws and regulations. Compliance with these provisions has not
had, and we do not expect such compliance to have, any material adverse effect
upon our capital expenditures, net income or competitive position.
Employees
As of December 31, 2005, we employed a total of 476 employees of which 290
were employed on a full-time basis. Of our 476 employees, we employ 113 in
administrative and operational capacities and 363 persons in sales and marketing
capacities. We have not experienced any work stoppages, and we consider
relations with our employees to be good.
Compliance with Environmental Laws
In California, we are required to collect redemption values from our
customers and to remit such redemption values to the State of California
Department of Conservation based upon the number of cans and bottles of certain
carbonated and non-carbonated products sold. In certain other states and Canada
where Hansen's(R) products are sold, we are also required to collect deposits
from our customers and to remit such deposits to the respective state agencies
based upon the number of cans and bottles of certain carbonated and
non-carbonated products sold in such states.
16
Available Information
Our Internet address is www.hansens.com. Information contained on our
website is not part of this annual report on Form 10-K. Our annual report on
Form 10-K and quarterly reports on Form 10-Q will be made available free of
charge on www.hansens.com, as soon as reasonably practicable after we
electronically file such material with, or furnish it to, the SEC. In addition,
you may request a copy of these filings (excluding exhibits) at no cost by
writing or telephoning us at the following address or telephone number:
Hansen Beverage Company
1010 Railroad Street
Corona, CA 92882
(951) 739-6200
(800) HANSENS
(800) 426-7367
17
ITEM 1A. RISK FACTORS
In addition to the other information in this report, you should carefully
consider the following risks. If any of the following risks actually occur, our
business, financial condition and/or operating results could be materially
adversely affected. The risk factors summarized below are not the only risks we
face. Additional risks and uncertainties not currently known to us or that we
currently deem to be immaterial also may materially adversely affect our
business, financial condition and/or operating results.
Increased competition could hurt our business.
The beverage industry is highly competitive. The principal areas of
competition are pricing, packaging, development of new products and flavors and
marketing campaigns. Our products compete with a wide range of drinks produced
by a relatively large number of manufacturers, most of which have substantially
greater financial, marketing and distribution resources than we do.
Important factors affecting our ability to compete successfully include
taste and flavor of products, trade and consumer promotions, rapid and effective
development of new, unique cutting edge products, attractive and different
packaging, branded product advertising and pricing. Our products compete with
all liquid refreshments and with products of much larger and substantially
better financed competitors, including the products of numerous nationally and
internationally known producers such as The Coca-Cola Company, Pepsico Inc.,
Cadbury Schweppes plc, Red Bull Gmbh, Kraft Foods Inc., Nestle Beverage Company,
Tree Top and Ocean Spray. We also compete with companies that are smaller or
primarily local in operation. Our products also compete with private label
brands such as those carried by grocery store chains, convenience store chains,
and club stores. There can be no assurance that we will not encounter
difficulties in maintaining our current revenues or market share or position due
to competition in the beverage industry. If our revenues decline, our business,
financial condition and results of operations could be adversely affected.
We derive a substantial portion of revenues from our energy drinks and
competitive pressure in the "energy drink" category could adversely affect our
operating results.
A substantial portion of our sales are derived from our energy drinks,
including in particular our Monster Energy(R) brand energy drinks. Our DSD
segment which comprises primarily energy drinks, represented 77.4% of net sales
for the year ended December 31, 2005. Any decrease in the sales of our Monster
Energy(R) brand energy drinks could significantly adversely affect our future
revenues and net income. Historically, we have experienced substantial
competition from new entrants in the energy drink category. Our energy drinks
compete directly with Red Bull, Adrenaline Rush, Amp, Rockstar, No Fear, Full
Throttle, 180, KMX, Venom, Extreme Energy Shot, US energy, Red Devil, Rip It,
Nos, Boo Koo, Lipovitan, MET-Rx, Hype, XTC, and many other brands. A number of
companies who market and distribute iced teas and juice cocktails in different
packages, such as 16 and 20-ounce glass bottles, including Sobe, Snapple
Elements, Arizona, Fuse, and Vitamin Water, have added supplements to their
products with a view to marketing their products as "functional" or "energy"
beverages or as having functional benefits. In addition, certain large companies
such as The Coca-Cola Company and Pepsico Inc. market and/or distribute products
in that market segment such as Mountain Dew, Mountain Dew MDX, Vault, Adrenaline
Rush, Amp, No Fear, Full Throttle, and Rockstar. Competitive pressures in the
energy drink category could impact our revenues or we could experience price
erosion or lower market share, any of which could have a material adverse affect
on our business and results.
Change in consumer preferences may reduce demand for some of our products.
There is increasing awareness and concern for the health consequences of
obesity. This may reduce demand for our non-diet beverages, which could affect
our profitability.
18
Consumers are seeking greater variety in their beverages. Our future
success will depend, in part, upon our continued ability to develop and
introduce different and innovative beverages. In order to retain and expand our
market share, we must continue to develop and introduce different and innovative
beverages and be competitive in the areas of quality and health, although there
can be no assurance of our ability to do so. There is no assurance that
consumers will continue to purchase our products in the future. Additionally,
many of our products are considered premium products and to maintain market
share during recessionary periods we may have to reduce profit margins which
would adversely affect our results of operations. Product lifecycles for some
beverage brands and/or products and/or packages may be limited to a few years
before consumers' preferences change. The beverages we currently market are in
varying stages of their lifecycles and there can be no assurance that such
beverages will become or remain profitable for us. The beverage industry is
subject to changing consumer preferences and shifts in consumer preferences may
adversely affect us if we misjudge such preferences. We may be unable to achieve
volume growth through product and packaging initiatives. We also may be unable
to penetrate new markets. If our revenues decline, our business, financial
condition and results of operations will be adversely affected.
We rely on bottlers and other contract packers to manufacture our products. If
we are unable to maintain good relationships with our bottlers and contract
packers and/or their ability to manufacture our products becomes constrained or
unavailable to us, our business could suffer.
We do not directly manufacture our products, but instead outsource such
manufacturing to bottlers and other contract packers. Although our production
arrangements are generally of short duration or are terminable upon request, in
the event of a disruption or delay, we may be unable to procure alternative
packing facilities at commercially reasonable rates and/or within a reasonably
short time period. In addition, there are limited packing facilities in the
United States with adequate capacity and/or suitable equipment for many of our
products, including Hansen's(R) brand energy drinks in 8.3-ounce and 16-ounce
cans, Gold Standard line, aseptic juice products, juices in 64-ounce PET plastic
bottles, Energade(R), Monster Energy(R), Lost(R), Rumba(TM) and Joker Mad
Energy(TM) energy drinks in 8.3, 15.5, 16, and 24-ounce cans, sparkling
lemonades and orangeades and other products. There are also limited shrink
sleeve labeling facilities available to us in the United States with adequate
capacity for our E2O Energy Water(R). A disruption or delay in production of any
of such products could significantly affect our revenues from such products as
alternative co-packing facilities in the United States with adequate capacity
may not be available for such products either at commercially reasonable rates,
and/or within a reasonably short time period, if at all. Consequently, a
disruption in production of such products could adversely affect our revenues.
We rely on bottlers and distributors to distribute our DSD products. If we are
unable to secure such bottlers and distributors and/or we are unable to maintain
good relationships with our existing bottlers and distributors, our business
could suffer.
We continually seek to expand distribution of our products by entering into
agreements with regional bottlers or other direct store delivery distributors
having established sales, marketing and distribution organizations. Many of our
bottlers and distributors are affiliated with and manufacture and/or distribute
other soda and non-carbonated brands and other beverage products including
energy drinks. In many cases, such products compete directly with our products.
The marketing efforts of our distributors are important for our success. If
our DSD brands prove to be less attractive to our existing bottlers and
distributors and/or if we fail to attract additional bottlers and distributors,
and/or our bottlers and/or distributors do not market and promote our products
above the products of our competitors, our business, financial condition and
results of operations could be adversely affected.
19
Our customers are material to our success. If we are unable to maintain good
relationships with our existing customers, our business could suffer.
Unilateral decisions could be taken by our distributors, and/or convenience
chains, grocery chains, specialty chain stores, club stores and other customers
to discontinue carrying all or any of the our products that they are carrying at
any time, which could cause our business to suffer.
One customer accounted for approximately 18% and 13% of the Companys sales
for the years ended December 31, 2005 and 2004, respectively. A decision by
that, or any other large customer, to decrease the amount purchased from the
Company or to cease carrying the Companys products could have a material adverse
effect on the Companys financial condition and consolidated results of
operations.
We have exclusive contracts with the State of California ("State")
Department of Health Services, Women, Infant and Children ("WIC") Supplemental
Nutrition Branch ("DHS") to supply 100% apple juice and 100% blended juice, in
64-ounce PET plastic bottles. The contracts are each for a period of three years
with a further one-year extension option to be mutually agreed between Hansens
and the State of California. The current contracts expire on July 11, 2007, and
we have no knowledge of whether the contracts will be extended for a further one
year, or whether we will be successful in securing any new future WIC contracts
with the State. If we are unsuccessful in securing new future WIC contracts with
the State, our revenues from those products could be materially adversely
affected.
Increases in cost or shortages of raw materials or increases in costs of
co-packing could harm our business.
The principal raw materials used by us comprise aluminum cans, glass
bottles and PET plastic bottles as well as juices, high fructose corn syrup,
sucrose and sucralose, the costs of which are subject to fluctuations. Due to
the consolidations that have taken place in the glass industry over the past few
years, the prices of glass bottles continue to increase. The prices of PET
plastic bottles and aluminum cans increased in 2005 and may increase in 2006.
The prices of high fructose corn syrup, sucrose and certain juice concentrates
have also increased during the year, particularly apple concentrate. These
increased costs, together with increased costs primarily of energy and gas and
freight resulted in increases in certain product costs which are ongoing and are
expected to continue to exert pressure on our gross margins in 2006. In
addition, certain of our co-pack arrangements allow such co-packers to increase
their charges based on certain of their own cost increases. We are uncertain
whether the prices of any of the above or any other raw materials or ingredients
will continue to rise in the future and whether we will be able to pass any of
such increases on to our customers.
In addition, some of these raw materials, such as a sucralose and certain
sizes of cans, are available from a limited number of suppliers. Sucralose,
which is used in the Company's low-calorie products, is purchased by us from a
single manufacturer. The supplier of sucralose has notified us that our
purchases of sucralose during 2006 will be subject to volume limitations due to
demand for sucralose exceeding production capacity. While we believe that our
2006 sucralose volume allocation will be sufficient to meet the demand for our
products that contain sucralose, we may need to reformulate certain of those
products that contain sucralose with alternative sweetener systems to avoid an
interruption in supply of those products, should the need arise.
We may not correctly estimate demand for our products. Our ability to
estimate demand for our products is imprecise, particularly with new products,
and may be less precise during periods of rapid growth, particularly in new
markets. If we materially underestimate demand for our products or are unable to
secure sufficient ingredients or raw materials including, but not limited to,
glass, PET plastic bottles, cans, labels, sucralose, flavors, supplements,
certain sweeteners, or packing arrangements, we might not be able to satisfy
demand on a short-term basis. Moreover, industry-wide shortages of certain juice
concentrates, supplements and sweeteners have been and could, from time to time
in the future, be experienced, which could interfere with and/or delay
production of certain of our products and could have a material adverse effect
on our business and financial results. We do not use hedging agreements or
alternative instruments to manage this risk.
20
The costs of packaging supplies are subject to price increases from time to time
and we may be unable to pass all or some of such increased costs on to our
customers.
The majority of our packaging supplies contracts allow our suppliers to
alter the costs they charge us for packaging supplies based on changes in the
costs of the underlying commodities that are used to produce those packaging
supplies, such as resin for PET bottles and aluminum for cans. These changes in
the prices we pay for our packaging supplies occur at certain predetermined
times that vary by product and supplier. Accordingly, we bear the risk of
increases in the costs of these packaging supplies, including the underlying
costs of the commodities that comprise these packaging supplies. We do not use
derivative instruments to manage this risk. If the cost of these packaging
supplies increase, we may be unable to pass these costs along to our customers
through corresponding adjustments to the prices we charge, which could have a
material adverse effect on our results of operations.
We rely upon our ongoing relationships with our key flavor suppliers. If we are
unable to source our flavors on acceptable terms from our key suppliers, we
could suffer disruptions in our business.
Generally, flavor suppliers hold the proprietary rights to their flavors.
Consequently, we do not have the list of ingredients or formulae for our flavors
and certain of our concentrates readily available to us and we may be unable to
obtain these flavors or concentrates from alternative suppliers on short notice.
Industry-wide shortages of certain juice concentrates, supplements and
sweeteners have been and could, from time to time in the future, be experienced,
which could interfere with and/or delay production of certain of our products.
If we have to replace a flavor supplier, we could experience temporary
disruptions in our ability to deliver products to our customers which could have
a material adverse effect on our results of operations.
Our intellectual property rights are critical to our success, the loss of such
rights could materially adversely affect our business.
We own numerous trademarks that are very important to our business. We also
own the copyright in and to portion of the content on the packaging of our
products. We regard our trademarks, copyrights, and similar intellectual
property as critical to our success and attempt to protect such property with
registered and common law trademarks and copyrights, restrictions on disclosure
and other actions to prevent infringement. Product packages, mechanical designs
and artwork are important to our success and we take action to protect against
imitation of our packaging and trade dress and to protect our trademarks and
copyrights as necessary. However, there can be no assurance that other third
parties will not infringe or misappropriate our trademarks and similar
proprietary rights. If we lose some or all of our intellectual property rights,
our business may be materially adversely affected.
Significant changes in government regulation may hinder sales.
The production, distribution and sale in the United States of many of our
products is subject to the Federal Food, Drug and Cosmetic Act; the Dietary
Supplement Health and Education Act of 1994; the Occupational Safety and Health
Act; various environmental statutes; and various other federal, state and local
statutes and regulations applicable to the production, transportation, sale,
safety, advertising, labeling and ingredients of such products. New statutes and
regulations may also be instituted in the future. If a regulatory authority
finds that a current or future product or production run is not in compliance
with any of these regulations, we may be fined, or such products may have to be
recalled and/or reformulated and/or packaging changed, thus adversely affecting
our financial condition and operations. California law requires that a specific
warning appear on any product that contains a component listed by the State as
having been found to cause cancer or birth defects. While none of our beverage
products are required to display warnings under this law, we cannot predict
whether an important component of any of our products might be added to the
California list in the future. We also are unable to predict whether or to what
extent a warning under this law would have an impact on costs or sales of our
products.
21
If we are unable to maintain brand image or product quality, or if we encounter
product recalls, our business may suffer.
Our success depends on our ability to maintain and build brand image for
our existing products, new products and brand extensions. We have no assurance
that our advertising, marketing and promotional programs will have the desired
impact on our products' brand image and on consumer preferences. Product quality
issues, real or imagined, or allegations of product contamination, even if fake
or unfounded, could tarnish the image of the affected brands and may cause
consumers to choose other products. We may be required from time to time to
recall products entirely or from specific co-packers, markets or batches.
Product recalls could adversely affect our profitability and our brand image. We
do not maintain recall insurance.
While we have to date not experienced any credible product liability
litigation, there is no assurance that we will not experience such litigation in
the future. In the event we were to experience product liability claims or a
product recall, our financial condition and business operations could be
materially adversely effected.
If we are not able to retain the full-time services of senior management it may
have an adverse effect on our operations and/or our operating performance until
we find suitable replacements.
Our business is dependent, to a large extent, upon the services of our
senior management. We do not maintain key person life insurance for any members
of our senior management. We currently have employment agreements with Mr. Sacks
and Mr. Schlosberg which end on December 31, 2008. The loss of services of
either of these persons or any other key members of our senior management could
adversely affect our business until a suitable replacements can be found. There
may be a limited number of personnel with the requisite skills to serve in these
positions and we may be unable to locate or employ such qualified personnel on
acceptable terms.
Weather could adversely affect our supply chain and demand for our products.
With regard to fruit juice, fruit juice concentrates and natural flavors,
the beverage industry is subject to variability of weather conditions, which may
result in higher prices and/or the nonavailability of any of such items. Sales
of our products may also be influenced to some extent by weather conditions in
the markets in which we operate, particularly in areas outside of California.
Weather conditions may influence consumer demand for certain of our beverages,
which could have an adverse effect on our results of operations.
Potential changes in accounting practices and/or taxation may adversely affect
our financial results.
We cannot predict the impact that future changes in accounting standards or
practices may have on our financial results. New accounting standards could be
issued that could change the way we record revenues, expenses, assets and
liabilities. These changes in accounting standards could adversely affect our
reported earnings. Increases in direct and indirect income tax rates could
affect after tax income. Equally, increases in indirect taxes (including
environmental taxes pertaining to the disposal of beverage containers) could
affect our products' affordability and reduce our sales.
Volatility of Stock Price may restrict sale opportunities.
22
Our stock price is affected by a number of factors, including stockholder
expectations, financial results, the introduction of new products by us and our
competitors, general economic and market conditions, estimates and projections
by the investment community and public comments by other persons and many other
factors, many of which are beyond our control. We may be unable to achieve
analysts earnings forecasts, which may be based on projected volumes and sales
of many product types and/or new products, certain of which are more profitable
than others. There can be no assurance that the Company will achieve projected
levels or mixes of product sales. As a result, our stock price is subject to
significant volatility and stockholders may not be able to sell our stock at
attractive prices.
Provisions in our organizational documents and control by insiders may prevent
changes in control even if such changes would be beneficial to other
stockholders.
Our organizational documents may limit changes in control. Furthermore, at
February 10, 2006, Mr. Sacks and Mr. Schlosberg together may be deemed to
control a maximum of 21.2% of our outstanding common stock. Consequently, Mr.
Sacks and Mr. Schlosberg could exercise significant control on matters submitted
to a vote of our stockholders, including electing directors, amending
organizational documents and approving extraordinary transactions such as a
takeover attempt, even though such actions may be favorable to the other common
stockholders.
Our cash flow may not be sufficient to fund our long term goals.
We may be unable to generate sufficient cash flow to support our capital
expenditure plans and general operating activities. In addition, the terms
and/or availability of our credit facility and/or the activities of our
creditors could affect the financing of our future growth.
Litigation or legal proceedings could expose us to significant liabilities and
thus negatively affect our financial results.
We are a party, from time to time, to various litigation claims and legal
proceedings, which could adversely affect our financial results.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None
ITEM 2. PROPERTIES
Our corporate offices and main warehouse are located at 1010 Railroad
Street, Corona, California 92882. Our lease for this facility expires in October
2010. The area of the facility is approximately 141,000 square feet.
Additionally, in January 2004 we entered into a lease for additional warehouse
space in Corona, California. The area of this facility is approximately 80,000
square feet. This lease will expire at the end of March 2008 with an option to
extend the lease until October 2010. We also rent additional warehouse space on
a short-term basis from time to time in public warehouses situated throughout
the United States and Canada.
ITEM 3. LEGAL PROCEEDINGS
In September 2004, Barrington Capital Corporation through an alleged
successor in interest, Sandburg Financial Corporation (both entities with whom
the Company has never had any dealings) served a Notice of Motion ("Motion") on
the Company and each of its subsidiaries as well as on a number of other
unrelated entities and individuals. The Motion seeks to amend a default judgment
granted against a completely unconnected company, Hansen Foods, Inc., to add the
Company and its subsidiary companies, as well as the other entities and
individuals cited, as judgment debtors. The default judgment was entered on
February 15, 1996, for $7,626,000 plus legal interest and attorneys' fees in the
sum of $211,000 arising out of a breach of contract claim that allegedly
occurred in the 1980s. Barrington Capital Corporation's/Sandburg Financial
Corporations claim is based on the misconceived and unsubstantiated theory that
the Company and its subsidiaries are alter egos and/or successors of Hansen
Foods, Inc. The Motion is based on demonstrably false allegations, misstated
legal propositions and lacks any substantial supporting evidence. The Company
and its subsidiaries are vigorously opposing the Motion and believe that the
Motion is without any merit.
23
In June 2005, the Company filed a complaint in California federal court
against North American Beverage Company ("NAB") seeking an injunction, damages
and other relief arising out of NAB's infringement of the Company's Monster
Energy(R) marks through the promotion and advertising of carbonated beverages
under the mark "Flathead Lake Monster" with the word "Monster" predominantly
displayed. In response, in July 2005, Flathead Lake Monster, Inc. ("Flathead"),
a Montana corporation which allegedly licensed the mark "Flathead Lake Monster"
to NAB, filed a complaint against the Company in federal court in Montana in
which it alleged that it is the licensor of the mark "Flathead Lake Monster" and
sought a declaration that its use of that mark for soda does not infringe the
Company's rights in its "Monster Energy" marks. Flathead's complaint also in the
alternative claimed trademark infringement by the Company "to the extent a court
finds a likelihood of confusion" between the parties marks and sought an
injunction against the Company from using the term "Monster Energy", as well as
damages and other relief. In December 2005, all of the aforesaid proceedings,
including the complaint filed by the Company as well as the complaint filed by
Flathead Lake, were settled on terms deemed to be favorable to the Company.
Furthermore, we are subject to litigation from time to time in the normal
course of business. Although it is not possible to predict the outcome of such
litigation, based on the facts known to us and after consultation with counsel,
we believe that such litigation will not have a material adverse effect on our
financial position or results of operations.
Except as described above, there are no material pending legal proceedings
to which we or any of our subsidiaries is a party or to which any of our
properties is subject, other than ordinary and routine litigation incidental to
our business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The annual meeting of stockholders of the Company was held on November 11,
2005. At the meeting, the following individuals were elected as directors of the
Company and received the number of votes set opposite their respective names:
Director Votes For Votes Withheld
- ------------------- ------------- --------------
Rodney C. Sacks 19,369,084 413,395
Hilton H. Schlosberg 19,301,847 480,632
Benjamin M. Polk 18,426,784 1,355,695
Norman C. Epstein 18,382,312 1,400,167
Harold C. Taber, Jr. 18,310,041 1,472,438
Mark S. Vidergauz 19,455,910 326,569
Sydney Selati 18,730,515 1,051,964
The stockholders approved the 2005 Hansen Natural Corporation Stock Option
Plan for Non-Employee Directors by a vote of 11,038,166 for, 735,864 against,
27,899 abstaining and 7,980,550 broker non-votes.
In addition, at the meeting our stockholders ratified the appointment of
Deloitte & Touche LLP as the independent registered public accounting firm of
the Company for the year ended December 31, 2005, by a vote of 19,627,174 for,
144,498 against, 10,807 abstaining and zero broker non-votes.
24
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS
AND ISSUER PURCHASES OF EQUITY SECURITIES
Principal Market
The Company's common stock began trading in the over-the-counter market on
November 8, 1990 and is quoted on the NASDAQ Capital Market under the symbol
"HANS". As of February 10, 2006, there were 22,307,006 shares of the Company's
common stock outstanding held by approximately 514 holders of record.
Stock Price and Dividend Information
The following table sets forth high and low bid closing quotations of our
common stock for the periods indicated (as adjusted for the stock split that
occurred on August 8, 2005 (Note 1)):
High Low
--------------- ---------------
Year Ended December 31, 2004
- ----------------------------
First Quarter $ 7.22 $ 3.96
Second Quarter $ 13.63 $ 6.76
Third Quarter $ 14.24 $ 9.07
Fourth Quarter $ 18.21 $ 11.55
Year Ended December 31, 2005
- ----------------------------
First Quarter $ 29.98 $ 16.76
Second Quarter $ 43.07 $ 26.63
Third Quarter $ 53.70 $ 40.49
Fourth Quarter $ 86.71 $ 41.98
The quotations for the common stock set forth above represent bid
quotations between dealers, do not include retail markups, mark-downs or
commissions and bid quotations may not necessarily represent actual transactions
and "real time" sale prices. The source of the bid information is the NASDAQ
Stock Market, Inc.
We have not paid cash dividends to our stockholders since our inception and
do not anticipate paying cash dividends in the foreseeable future.
25
Equity Compensation Plan Information
The following table sets forth information as of December 31, 2005 with
respect to shares of our common stock that may be issued under our equity
compensation plans.
Number of securities Number of securities
to be issued upon Weighted-average remaining available for
exercise of exercise price of future issuance under
Nutstanding options, outstanding quity compensation plans
warrants and rights options, warrants (excluding securities
(a) and rights reflected in column (a))
Plan category (b) (c)
---------------------- -------------------- ---------------------------
Equity compensation plans
approved by stockholders 3,712,600 $8.38 262,600
Equity compensation plans not
approved by stockholders - - -
---------------------- -------------------- ---------------------------
Total 3,712,600 $8.38 262,600
====================== ==================== ===========================
ITEM 6. SELECTED FINANCIAL DATA
The consolidated statements of operations data set forth below with respect
to each of the years ended December 31, 2001 through 2005 and the balance sheet
data as of December 31, for the years indicated, are derived from our audited
consolidated financial statements and should be read in conjunction with those
financial statements and notes thereto, and with the Management's Discussion and
Analysis of Financial Condition and Results of Operations included as ITEM 7 of
this Annual Report on Form 10-K.
26
(in thousands, except
per share information) 2005 2004 2003 2002 2001
- ---------------------------------------------------------------------------------------------------------------
Gross Sales* $ 415,417 $ 224,098 $ 135,655 $ 112,885 $ 97,609
Net sales $ 348,886 $ 180,341 $ 110,352 $ 92,046 $ 80,658
Gross Profit $ 182,543 $ 83,466 $ 43,775 $ 32,032 $ 27,232
Gross Profit as a
Percentage to Net
Sales 52.3% 46.3% 39.7% 35.3% 34.6%
Operating Income $ 103,443 $ 33,886 $ 9,826 $ 5,293 $ 5,551
Net income $ 62,776 $ 20,387 $ 5,930 $ 3,029 $ 3,019
Net income per
common share
Basic $ 2.85 $ 0.96 $ 0.29 $ 0.15 $ 0.15
Diluted $ 2.59 $ 0.86 $ 0.28 $ 0.14 $ 0.14
Total assets $ 163,890 $ 82,022 $ 47,997 $ 40,464 $ 38,561
Long-term debt $ 10 $ 146 $ 358 $ 3,606 $ 5,851
Stockholders' Equity $ $125,509 $ $ 58,571 $ 35,050 $ $ 28,371 $ 25,334
* Gross sales, although used internally by management as an indicator of
operating performance, should not be considered as an alternative to net sales,
which is determined in accordance with GAAP, and should not be used alone as an
indicator of operating performance in place of net sales. Additionally, gross
sales may not be comparable to similarly titled measures used by other companies
as gross sales has been defined by the Company's internal reporting
requirements. However, gross sales is used by management to monitor operating
performance including sales performance of particular products, salesperson
performance, product growth or declines and overall Company performance. The use
of gross sales allows evaluation of sales performance before the effect of any
promotional items, which can mask certain performance issues. Management
believes the presentation of gross sales allows a more comprehensive
presentation of the Companys operating performance. Gross sales may not be
realized in the form of cash receipts as promotional payment and allowances may
be deducted from payments received from customers.( See "PART II ITEM 7 -
RESULTS OF OPERATIONS").
ITEM 7. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion ("MD&A") is provided as a supplement to and should
be read in conjunction with-our financial statements and the accompanying notes
("Notes") included elsewhere in this Form 10-K. This discussion contains
forward-looking statements that are based on management's current expectations,
estimates and projections about our business and operations. Our actual results
may differ materially from those currently anticipated and expressed in such
forwardlooking statements.
This overview provides our perspective on the individual sections of MD&A.
MD&A includes the following sections:
* Our Business - a general description of our business; the value drivers of
our business; and opportunities and risks;
* Results of Operations - an analysis of our consolidated results of
operations for the three years presented in our financial statements;
27
* Liquidity and Capital Resources - an analysis of our cash flows, sources
and uses of cash and contractual obligations;
* Accounting Policies and Pronouncements - a discussion of accounting
policies that require critical judgments and estimates including newly
issued accounting pronouncements;
* Sales - details of our sales measured on a quarterly basis in both dollars
and cases;
* Inflation - information about the impact that inflation may or may not have
on our results;
* Forward Looking Statements - cautionary information about forward looking
statements and a description of certain risks and uncertainties that could
cause our actual results to differ materially from the companys historical
results or our current expectations or projections; and
* Market Risks - Information about market risks and risk management. See
("Forward Looking Statements" and "PART II ITEM 7A. - QUALITATIVE AND
QUANTITATIVE DISCLOSURES ABOUT MARKET RISKS").
Our Business
Overview
We develop, market, sell and distribute, in the main, a wide range of
branded beverages. The majority of our beverages fall within the growing
"alternative" beverage category. The principal brand names under which our
beverages are marketed are Hansen's(R), Monster Energy(R), Blue Sky(R), Junior
Juice(R), Lost(R), Rumba(TM) and Joker Mad Energy(TM). We own all of our
above-listed brand names other than Lost(R) which we produce, market, sell and
distribute under an exclusive licensing arrangement with Lost International LLC.
Our company principally generates revenues, income and cash flows by
developing, producing, marketing, selling and distributing finished beverage
products. We generally sell these products to retailers as well as distributors.
We incur significant marketing expenditures to support our brands including
advertising costs, athlete and event sponsorship fees and special promotional
events. We focus on developing brand awareness and trial through sampling both
in stores and at events. Retailers and distributors receive rebates, promotions,
point of sale materials, merchandise displays and coolers. We also use in-store
promotions and in-store placement of point-of-sale materials and racks, prize
promotions, price promotions, competitions, and sponsorship of, and endorsements
from selected public and extreme sports figures, events and causes. Consumers
receive coupons, discounts and promotional incentives. These marketing
expenditures help to enhance distribution and availability of our products as
well as awareness and increase consumer preference for our brands. Greater
distribution and availability, awareness and preference promotes long term
growth.
During 2005, we continued to expand our existing product lines and further
develop our markets. In particular, we continue to focus on developing and
marketing beverages that fall within the category generally described as the
"alternative" beverage category, with particular emphasis on energy type drinks.
We believe that one of the keys to success in the beverage industry is
differentiation such as making Hansen's(R) products visually distinctive from
other beverages on the shelves of retailers. We review our products and
packaging on an ongoing basis and, where practical, endeavor to make them
different, better and unique. The labels and graphics for many of our products
are redesigned from time to time to maximize their visibility and
identification, wherever they may be placed in stores and we will continue to
reevaluate the same from time to time.
A substantial portion of our sales are derived from "energy drinks",
particularly our Monster Energy(R) brand energy drinks. Any decrease in sales of
our energy drinks, particularly our Monster Energy(R) brand energy drinks could
significantly adversely affect our future revenues and net income. Competitive
pressure in the "energy drink" category could adversely affect our operating
results. (See "PART I ITEM 1A. - RISK FACTORS")
28
We again achieved record sales in 2005. The increase in gross and net sales
in 2005 was primarily attributable to increased sales by volume of our Monster
Energy(R) drinks, which were introduced in April 2002, including our low
carbohydrate ("lo-carb") Monster Energy(R) drinks, which were introduced in
2003, our Monster Energy(R) Assault(TM) energy drinks which were introduced in
September 2004, sales of Monster Energy(R) Khaos(TM) energy drinks, which were
introduced in August 2005, increased sales by volume of Lost(R) energy drinks
which were introduced in January 2004, and to a lesser extent, to sales of Joker
Mad Energy(TM) drinks which were introduced in January 2005, as well as
increased sales by volume of apple juice and juice blends, children's
multi-vitamin juice drinks and Rumba(TM) energy juice, which was introduced in
December 2004. The increase in gross and net sales was partially offset by
decreased sales by volume primarily of Hansen's(R) natural sodas, Hansen's(R)
energy drinks, Energade(R), and Smoothies in cans.
During the year ended December 31, 2005, sales shipped outside of
California represented 62% of our aggregate gross sales, as compared to 56% of
our aggregate gross sales for the comparable period in 2004. During the year
ended December 31, 2005, sales to distributors outside the United States
amounted to $5.6 million, as compared to $2.3 million for the year ended
December 31, 2004, which was less than 2% of gross sales for each period
respectively.
Our customers are typically retail grocery and specialty chains,
wholesalers, club stores, drug, mass merchandisers, convenience chains, full
service beverage distributors, health food distributors and food service
customers. Sales to our various customer types for 2005 are reflected below. The
allocations below reflect changes made by the Company to the categories
historically reported.
Retail Grocery, specialty chains and wholesalers 19%
Club stores, drug & mass merchandisers 11%
Full service distributors 65%
Health food distributors 3%
Other 2%
In 2004, we introduced a carbonated Lost(R) Energy drink in 16-ounce cans,
a carbonated Monster Energy(R) Assault(TM) drink in 16-ounce cans, a new line of
Blue Sky(R) natural tea sodas in 12-ounce cans, Hansen's(R) energy drinks in
16-ounce cans, Rumba(TM) Energy Juice in 15.5-once cans and also introduced a
new line of lo-carb smoothies in 11.5-ounce cans.
In 2005, we introduced a carbonated Joker Mad Energy(TM) drink in 16-ounce
cans (regular and lo-carb) a carbonated Monster Energy(R) Khaos(TM) energy drink
in 16-ounce cans, Monster Energy(R) and Lo-Carb Monster Energy(R) in 24-ounce
cans, Monster Energy(R), Lo-Carb Monster Energy(R) and Monster Energy(R)
Assault(TM) drinks in 8.3-ounce cans, a new line of Blue Sky(R) natural sodas
with real sugar, a new line of lite Blue Sky(R) natural sodas in 12-ounce cans,
a new line of non-carbonated Blue Sky(R) isotonic sports drinks in 16-ounce PET
plastic bottles, as well as new juice products and Fizzit(TM) which is a line of
vitamin and mineral drink mixes in powdered form.
Sales of our dual-branded 100% juice line named Juice Blast(R), which was
launched in conjunction with Costco and is sold through Costco stores, were $4.0
million in 2005 as compared to $2.0 million in 2004. We have and will continue
to introduce new flavors from time to time in an effort to ensure that the
variety pack remains fresh and different for consumers and retain and if
possible increase current distribution levels.
29
In September 2000, HBC, through its wholly owned subsidiary Blue Sky,
acquired the Blue Sky(R) natural soda business. The Blue Sky(R) natural soda
brand is the leading natural soda in the health food trade. Blue Sky offers
natural sodas, premium natural sodas with added ingredients such as Ginseng and
anti-oxidant vitamins, organic sodas and seltzer waters in 12-ounce cans and a
Blue Energy(R) drink in 8.3-ounce cans and in 2004 introduced a new line of Blue
Sky(R) natural tea sodas in 12-ounce cans. In 2005, we introduced a new line of
Blue Sky Lite natural sodas, a new line of Blue Sky(R) natural sodas made with
real sugar and a new line of non-carbonated Blue Sky(R) isotonic sports drinks.
In May 2001, HBC, through its wholly owned subsidiary Junior Juice,
acquired the Junior Juice(R) beverage business. The Junior Juice(R) product line
is comprised of a line of 100% juices packed in 4.23-ounce aseptic packages and
is targeted at toddlers.
During 2005, we entered into several new distribution agreements for the
sale of our products both within and outside the United States and substantially
expanded our national sales force and marketing and support staff. As discussed
under "PART I ITEM 1. - BUSINESS MANUFACTURE AND DISTRIBUTION", we anticipate
that we will continue building our national sales force in 2006 as well as our
marketing and support staff to support and grow the sales of our products.
In 2002, we introduced a Sparkling Cider 100% juice drink in a 1.5-liter
Magnum glass bottle. However, due to limited reports of some bottles breaking in
2003, we promptly recalled the product. We are pursuing a claim for the costs
and losses incurred by us. We will reevaluate relaunching this product once
certain production issues are resolved to our satisfaction and a suitable
co-packer has been identified.
During 2004, we concluded exclusive contracts with the State of California,
Department of Health Services Women, Infant and Children Supplemental Nutrition
Branch, to supply 100% Apple juice and 100% blended juice in 64-ounce PET
plastic bottles. The contracts commenced on July 12, 2004. (See "PART I ITEM 1.
BUSINESS MANUFACTURE AND DISTRIBUTION").
We continue to incur expenditures in connection with the development and
introduction of new products and flavors.
Value Drivers of our Business
We believe that the key value drivers of our business include the
following:
* Profitable Growth - We believe natural, better for you brands properly
supported by marketing and innovation, targeted to a broad consumer
base-drive profitable growth. We continue to broaden our family of
brands. In particular, we are expanding and growing our specialty
beverages and energy drinks to provide more alternatives to consumers.
We are focused on maintaining or increasing profit margins. We believe
that tailored brand, package, price and channel strategies help
achieve profitable growth. We are implementing these strategies with a
view to accelerating profitable growth.
* Cost Management - The principal focus of cost management will continue
to be on supplies and cost reduction. One key area of focus, for
example, is to decrease raw material costs, co-packing fees and
general and administrative costs as a percentage of net operating
revenues. Another key area of focus is the reduction in inventory
levels. However, due to the expansion in the number of our products as
well as increased sales levels in 2005, overall inventory levels
increased. During 2005, the costs primarily of PET plastic bottles and
aluminum cans, as well as the costs of high fructose corn syrup and
sucrose and certain packaging and freight costs also increased.
30
* Efficient Capital Structure - Our capital structure is intended to
optimize our costs of capital. We believe our strong capital position,
our ability to raise funds at low effective cost and overall low costs
of borrowing provide a competitive advantage.
We believe that, subject to increases in the costs of certain raw materials
being contained, these value drivers, when properly implemented, will result in
(1) maintaining and/or improving our gross profit margin; (2) providing
additional leverage over time through reduced expenses as a percentage of net
operating revenues; and (3) optimizing our cost of capital. The ultimate measure
of success is and will be reflected in our current and future results of
operations.
Gross and net operating revenues, gross profits, operating income, and net
income and net income per share represent key measurements of the above value
drivers. In 2005, gross operating revenues totaled $415.4 million, an 85.4%
increase over 2004. Net operating revenues totaled $348.9 million, an increase
of 93.5% over 2004. Gross profit totaled $182.5 million in 2005, a 118.7%
increase from 2004. Operating income was $103.4 million compared to $33.9
million for 2004. Net income was $62.8 million as compared to $20.4 million for
2004. Net income per diluted share was $2.59 as compared to net income per
diluted share of $.86 in 2004. These measurements will continue to be a key
management focus in 2006 and beyond. See also "Results of Operations for the
Year Ended December 31, 2005 Compared to the Year Ended December 31, 2004."
In 2005, the Company had working capital of $107.1 million compared to
$41.6 million as of December 31, 2004. In 2005, our net cash provided by
operating activities was approximately $54.6 million as compared to $20.1
million in 2004. Principal uses of cash flows are purchases of inventory,
increases in accounts receivable and other assets, acquisition of property and
equipment and trademarks. Payment of our debt and accounts payable and income
taxes payable are expected to be and remain our principal recurring use of cash
and working capital funds. (See also "PART II ITEM 7. - LIQUIDITY AND CAPITAL
RESOURCES").
Opportunities, Challenges and Risks
Looking forward, our management has identified certain challenges and risks
that demand the attention of the beverage industry and our company. Increase in
consumer and regulatory awareness of the health problems arising from obesity
and inactive lifestyles represents a challenge. We recognize that obesity is a
complex and serious public health problem. Our commitment to consumers begins
with our broad product line and a wide selection of diet, light and lo-carb
beverages, juices and juice drinks, sports drinks and waters and energy drinks.
We continuously strive to meet changing consumer needs through beverage
innovation, choice and variety.
Our historical success is attributable, in part, to our introduction of
different and innovative beverages. Our future success will depend, in part,
upon our continued ability to develop and introduce different and innovative
beverages, although there can be no assurance of our ability to do so. In order
to retain and expand our market share, we must continue to develop and introduce
different and innovative beverages and be competitive in the areas of quality,
health, method of distribution, brand image and intellectual property
protection. The beverage industry is subject to changing consumer preferences
and shifts in consumer preferences may adversely affect companies that misjudge
such preferences.
31
In addition, other key challenges and risks that could impact our companys
future financial results include, but are not limited to:
* maintenance of our brand images and product quality;
* profitable expansion and growth of our family of brands in the competitive
market place (See also "PART I ITEM 1. - BUSINESS - COMPETITION and SALES
AND MARKETING");
* restrictions on imports and sources of supply; duties or tariffs; changes
in government regulations;
* protection of our existing intellectual property portfolio of trademarks
and the continuous pursuit of new and innovative trademarks for our
expanding product lines;
* limitations on available quantities of sucralose, a non-caloric sweetener
that is used in many of our beverage products, during 2006, due to demand
for such sweetener exceeding the supplier's production capacity, as well as
limitations on available quantities of certain package containers such as
the 24-ounce cap can and copacking availability; and
* the imposition of additional restrictions.
* (See also "PART I ITEM 1A. - RISK FACTORS") for additional information
about risks and uncertainties facing our Company.
We believe that the following opportunities exist for us:
* growth potential for non-alcoholic beverage categories including energy
drinks, carbonated soft drinks, juices and juice drinks, sports drinks and
water;
* new product introductions intended to contribute to higher gross profits;
* premium packages intended to generate strong revenue growth;
* significant package, pricing and channel opportunities to maximize
profitable growth; and
* proper positioning to capture industry growth.
32
Results of Operations
Percentage Change
---------------------------
2005 2004 2003 05 vs. 04 04 vs. 03
-------------------- ------------------- ------------------- ------------- -------------
Gross sales, net of
discounts & returns * $ 415,417,282 $ 224,097,875 $ 135,655,087 85.4% 65.2%
Less: Promotional and
other allowances** 66,530,916 43,756,740 25,302,891 52.0% 72.9%
-------------------- ------------------- ------------------- ------------- -------------
Net sales 348,886,366 180,341,135 110,352,196 93.5% 63.4%
Cost of sales 166,343,118 96,874,750 66,577,168 71.7% 45.5%
-------------------- ------------------- ------------------- ------------- -------------
Gross profit 182,543,248 83,466,385 43,775,028 118.7% 90.7%
Gross profit margin 52.3% 46.3% 39.7%
Operating Expenses:
Selling, general and
administrative expenses 79,029,837 49,507,137 33,887,045 59.6% 46.1%
Amortization of trademarks 70,102 73,046 61,888 (4.0%) 18.0%
-------------------- ------------------- ------------------- ------------- -------------
Operating income 103,443,309 33,886,202 9,826,095 205.3% 244.9%
Operating income as a percent
of net sales 29.6% 18.8% 8.9%
Net nonoperating income
(expense) 1,351,272 51,995 (67,013) 2,498.8% (177.6%)
-------------------- ------------------- ------------------- ------------- -------------
Income before provision for
income taxes 104,794,581 33,938,197 9,759,082 208.8% 247.8%
Provision for income taxes 42,018,605 13,551,393 3,828,678 210.1% 253.9%
-------------------- ------------------- ------------------- ------------- -------------
Effective tax rate 40.1% 39.9% 39.2%
Net income $ 62,775,976 $ 20,386,804 $ 5,930,404 207.9% 243.8%
==================== =================== =================== ============= =============
Net income as a percent of net
sales 18.0% 11.3% 5.4%
Net income per common share:
Basic (See Note 7 to the
consolidated financial statements) $ 2.85 $ 0.96 $ 0.29 196.9% 231.0%
Diluted (See Note 7 to the
consolidated financial statements) $ 2.59 $ 0.86 $ 0.28 201.2% 207.1%
Case sales (in thousands) (in 192-ounce case equivalents)
48,214 29,760 20,421 62.0% 45.7%
* Gross sales, although used internally by management as an indicator of
operating performance, should not be considered as an alternative to net sales,
which is determined in accordance with GAAP, and should not be used alone as an
indicator of operating performance in place of net sales. Additionally, gross
sales may not be comparable to similarly titled measures used by other companies
as gross sales has been defined by the Company's internal reporting
requirements. However, gross sales is used by management to monitor operating
performance including sales performance of particular products, salesperson
performance, product growth or declines and overall Company performance. The use
of gross sales allows evaluation of sales performance before the effect of any
promotional items, which can mask certain performance issues. Management
believes the presentation of gross sales allows a more comprehensive
presentation of the Companys operating performance. Gross sales may not be
realized in the form of cash receipts as promotional payment and allowances may
be deducted from payments received from customers.
33
** Although the expenditures described in this line item are determined in
accordance with GAAP and meet GAAP requirements, the disclosure thereof does not
conform with GAAP presentation requirements. Additionally, the presentation of
promotional and other allowances may not be comparable to similar items
presented by other companies. The presentation of promotional and other
allowances facilitates an evaluation of the impact thereof on the determination
of net sales and illustrates the spending levels incurred to secure such sales.
Promotional and other allowances constitute a material portion of the marketing
activities of the Company.
Results of Operations for the Year Ended December 31, 2005 Compared to the Year
Ended December 31, 2004
Gross Sales. For the year ended December 31, 2005, gross sales were $415.4
million, an increase of $191.3 million or 85.4% higher than gross sales of
$224.1 million for the year ended December 31, 2004. The increase in gross sales
is primarily attributable to increased sales of certain of our existing products
and the introduction of new products as discussed below in "Net Sales". The
percentage increase in gross sales was lower than the percentage increase in net
sales due to a decrease in the promotional and other allowances as a percentage
of gross sales, which decreased from 19.5% for the year ended December 31, 2004
to 16.0% for the year ended December 31, 2005, although the actual amount of
promotional and other allowances increased from $43.8 million to $66.5 million
for the respective periods.
Net Sales. For the year ended December 31, 2005, net sales were $ 348.9
million, an increase of $168.5 million or 93.5% higher than net sales of $180.3
million for the year ended December 31, 2004. We again achieved record sales in
2005. The increase in gross and net sales in 2005 was primarily attributable to
increased sales by volume of our Monster Energy(R) drinks, which were introduced
in April 2002, including our low carbohydrate ("lo-carb") Monster Energy(R)
drinks, which were introduced in 2003, our Monster Energy(R) Assault(TM) energy
drinks which were introduced in September 2004, sales of Monster Energy(R)
Khaos(TM) energy drinks, which were introduced in August 2005, increased sales
by volume of Lost(R) energy drinks which were introduced in January 2004, and to
a lesser extent, to sales of Joker Mad Energy(TM) drinks which were introduced
in January 2005, as well as increased sales by volume of apple juice and juice
blends, and children's multi-vitamin juice drinks and Rumba(TM) which was
introduced in December 2004. The increase in gross and net sales was partially
offset by decreased sales by volume primarily of Hansen's Natural Sodas(R),
Hansen's(R) energy drinks, Energade(R) and Smoothies in cans. Net sales case
volumes (calculated on 192 U.S. fluid ounces of finished beverage equivalent
basis) increased from 29.8 million cases for the year ended December 31, 2004 to
48.2 million cases for the year ended December 31, 2005, an increase of 18.4
million cases or 62.0%. The overall average net sales price per case also
increased to $7.24 per case for the year ended December 31, 2005 from $6.06 for
the year ended December 31, 2004, an increase of 19.5%. The increase in the
average net sales prices per case was due to an increase in the proportion of
case sales derived from higher priced products as described below.
Net sales for the DSD segment were $270.0 million for the year ended
December 31, 2005, an increase of approximately $157.0 million or 138.8% higher
than net sales of $113.1 million for the year ended December 31, 2004. The
increase in net sales for the DSD segment was primarily attributable to
increased sales by volume of our Monster Energy(R) drinks, which were introduced
in April 2002, including our low carbohydrate ("lo-carb") Monster Energy(R)
drinks, which were introduced in 2003, our Monster Energy(R) Assault(TM) energy
drinks which were introduced in September 2004, sales of Monster Energy(R)
Khaos(TM) energy drinks, which were introduced in August 2005, increased sales
by volume of Lost energy drinks which were introduced in January 2004. The
increase in net sales was also attributable, to a lesser extent, to sales of
Joker Mad Energy(TM) drinks which were introduced in January 2005. The increase
in net sales was partially offset by lower sales by volume of Hansen's(R) energy
drinks and Energade(R).
Net sales for the Warehouse segment were $78.9 million for the year ended
December 31, 2005, an increase of approximately $11.3 million or 16.7% higher
than net sales of $67.6 million for the year ended December 31, 2004. The
increase in net sales for the Warehouse segment was primarily attributable to
increased sales by volume of Hansen's(R) apple juice and juice blends,
children's multi-vitamin juice drinks and RumbaTM energy juice, which was
introduced in December 2004. The increase in net sales was partially offset by
lower sales by volume of smoothies in cans and Hansen's(R) natural sodas.
34
Gross Profit. Gross profit was $182.5 million for the year ended December
31, 2005, an increase of $99.1 million or 118.7% over the $83.5 million gross
profit for the year ended December 31, 2004. Gross profit as a percentage of net
sales was 52.3% for the year ended December 31, 2005 which was higher than gross
profit as a percentage of net sales of 46.3% for the year ended December 31,
2004, due primarily to higher gross profit margins achieved on the increased
sales of Monster Energy(R) and Lost(R) energy drinks. Although a greater
percentage of our sales comprised products having higher gross margins than the
prior year, the increase in profit margins was partially reduced by higher
promotional payments and allowances to promote our products.
Gross profit may not be comparable to those of other entities since some
entities include all costs associated with their distribution process in cost of
sales whereas others like Hansen's exclude certain costs and instead include
such costs within another line item such as selling, general and administrative
expenses.
Distribution expenses, which include out-bound freight and warehousing
expenses after manufacture, were $22.1 million for the year ended December 31,
2005 and $12.4 million for the year ended December 31, 2004 and have been
included in operating expenses.
Total Operating Expenses. Total operating expenses were $79.1 million for
the year ended December 31, 2005, an increase of $29.5 million or 59.6% over
total operating expenses of $49.6 million for the year ended December 31, 2004.
Total operating expenses as a percentage of net sales decreased to 22.6% for the
year ended December 31, 2005, from 27.4% for the year ended December31,2004. The
increase in total operating expenses was primarily attributable to increased
selling, general and administrative expenses. The decrease in total operating
expenses as a percentage of net sales was primarily attributable to the
comparatively lower increase in selling, general and administrative expenses
than the increase in net sales.
Selling. Selling expenses were $50.8 million for the year ended December
31, 2005, an increase of $21.5 million or 73.7% over selling expenses of $29.2
million for the year ended December 31, 2004. Selling expenses as a percentage
of net sales decreased to 14.6% for the year ended December 31, 2005 from 16.2%
for the year ended December 31, 2004. The increase in selling expenses was
primarily attributable to increased distribution (freight) and storage expenses
which increased by $9.7 million, increased expenditures for trade development
activities and cooperative arrangements with our customers and distributors,
which increased by $4.2 million, increased expenditures for merchandise
displays, point-of-sale materials, and premiums, which increased by $3.0
million, increased expenditures for sponsorships and endorsements which
increased $1.7 million, increased expenditures for advertising which increased
by $1.3 million, and increased expenditures for samples, which increased by $1.2
million.
General and Administrative. General and administrative expenses were $28.3
million for the year ended December 31, 2005, an increase of $8.0 million or
39.4% over general and administrative expenses of $20.3 million for the year
ended December 31, 2004. General and administrative expenses as a percentage of
net sales decreased to 8.1% for the year ended December 31, 2005 from 11.3% for
the year ended December 31, 2004. The increase in general and administrative
expenses was primarily attributable to payroll expenses which increased by $3.6
million, distributor termination payments which increased by $1.2 million and
travel and entertainment expenses which increased by $682,000.
Amortization of Trademarks. Amortization of trademarks was $70,000 for the
year ended December 31, 2005, a decrease of $3,000 from amortization of
trademarks of $73,000 for the year ended December 31, 2004. The decrease in
amortization of trademarks was due to a reduction in the balance of definite
life trademarks.
35
Contribution Margin. Contribution margin represents net sales by segment
less the cost of sales and operating expenses which can be directly attributed
to segment net sales. Contribution margin for the DSD segment was $112.9 million
for the year ended December 31, 2005, an increase of approximately $71.8 million
or 174.4% higher than contribution margin of $41.2 million for the year ended
December 31, 2004. The increase in contribution margin for the DSD segment was
primarily attributable to the increase in net sales of Monster Energy(R) brand
energy drinks and Lost(R) energy drinks. Contribution margin for the Warehouse
segment was $6.4 million for the year ended December 31, 2005, an increase of
approximately $2.4 million or 58.5% higher than contribution margin of $4.0
million for year ended December 31, 2004. The increase in the contribution
margin for the Warehouse segment was primarily attributable to increased sales
of apple juice and juice blends.
Operating Income. Operating income was $103.4 million for the year ended
December 31, 2005, compared to $33.9 million for the year ended December 31,
2004. The $69.6 million increase in operating income was primarily attributable
to increased gross profits, which was partially offset by increased operating
expenses.
Net Nonoperating Income/(Expense). Net nonoperating income/(expense) was
$1.4 million for the year ended December 31, 2005, as compared to net
nonoperating income/(expense) of $52,000 for the year ended December 31, 2004.
Net nonoperating income/(expense) consists of interest income and interest and
financing expense. The increase in interest income was primarily attributable to
an increase in the cash balances in interest bearing accounts during the year
ended December 31, 2005. Interest income for the year ended December 31, 2005
was $1.4 million compared to interest income of $94,000 for the year ended
December 31, 2004. Interest and financing expense for the year ended December
31, 2005 was $77,000 compared to $42,000 for the year ended December 31, 2004.
The increase in interest and financing expense was primarily attributable to an
increase in capital leases entered into during 2005.
Provision for Income Taxes. Provision for income taxes for the year ended
December 31, 2005 was $42.0 million which was an increase of $28.4 million as
compared to the provision for income taxes of $13.6 million for the year ended
December 31, 2004. The increase in provision for income taxes was primarily
attributable to the increase in operating income. The effective combined federal
and state tax rate for 2005 was 40.1%, as compared to an effective tax rate of
39.9% for 2004.
Net Income. Net income was $62.8 million for the year ended December 31,
2005, which was an increase of $42.4 million as compared to net income of $20.4
million for the year ended December 31, 2004. The increase in net income was
primarily attributable to the $99.1 million increase in gross profit and an
increase of net nonoperating income/(expense) of $1.3 million for the year ended
December 31, 2005 which was partially offset by increased operating expenses of
$29.5 million and an increase in the provision for income taxes of $28.4
million.
Results of Operations for the Year Ended December 31, 2004 Compared to the
Year Ended December 31, 2003
Gross Sales. For the year ended December 31, 2004, gross sales were $224.1
million, an increase of approximately $88.4 million or 65.2% higher than gross
sales of $135.7 million for the year ended December 31, 2003. The increase in
gross sales for the year ended December 31, 2004 was primarily attributable to
increased sales by volume of certain of our existing products as well as the
introduction of new products as discussed below in "Net Sales". The percentage
increase in gross sales was comparable to the percentage increase in net sales.
The promotional and other allowances as a percentage of gross sales increased
slightly from 18.7% for the year ended December 31, 2003 to 19.5% for the year
ended December 31, 2004 as well as the actual amount of promotional and other
allowances, which increased from $25.3 million to $43.8 million for the
respective periods.
36
Net Sales. For the year ended December 31, 2004, net sales were $180.3
million, an increase of approximately $70.0 million or 63.4% higher than net
sales of $110.4 million for the year ended December 31, 2003. The increase in
gross and net sales in 2004 was primarily attributable to increased sales by
volume of Monster Energy(R) drink, which was introduced in April 2002, including
our low carbohydrate ("lo-carb") Monster Energy(R) drink which was introduced in
2003 and sales by volume of Lost energy drinks which were introduced at the
beginning of 2004, as well as increased sales by volume of apple juice, juice
blends, and Energade(R) energy sports drinks. Additionally, the increase in
gross and net sales was attributable to the increased sales prices of and
reduced allowances for smoothies in cans and natural sodas. The increase in
gross and net sales was partially offset by decreased sales by volume primarily
of Hansen's(R) energy drinks in 8.3-ounce cans, childrens multi-vitamin juice
drinks, and teas, lemonades and cocktails. Net sales case volumes increased from
20.4 million cases for the year ended December 31, 2003 to 29.8 million cases
for the year ended December 31, 2004, an increase of 9.3 million cases or 45.7%.
The overall average net sales price per case also increased to $6.06 per case
for the year ended December 31, 2004 from $5.40 per case for the year ended
December 31, 2003, an increase of 12.2%. The increase in the average net sales
prices per case was due to an increase in the proportion of case sales derived
from higher priced products.
Net sales for the DSD segment were $113.1 million for the year ended
December 31, 2004, an increase of approximately $63.6 million or 128.5% higher
than net sales of $49.5 million for the year ended December 31, 2003. The
increase in net sales for the DSD segment was primarily attributable to
increased sales by volume of Monster Energy(R) drink, which was introduced in
April 2002, including our low carbohydrate ("lo-carb") Monster Energy(R) drink
which was introduced in 2003 and sales by volume of Lost(R) energy drinks which
were introduced at the beginning of 2004, as well as increased sales by volume
of Energade(R) energy sports drinks. The increase in net sales for the DSD
segment was partially offset by decreased sales by volume primarily of
Hansen's(R) energy drinks.
Net sales for the Warehouse segment were $67.6 million for the year ended
December 31, 2004, an increase of approximately $6.7 million or 11.0% higher
than net sales of $60.9 million for the year ended December 31, 2003. The
increase in net sales of the Warehouse segment was primarily attributable to
increased sales by volume of Hansen's(R) apple juice and juice blends.
Additionally, the increase in net sales for the Warehouse segment was
attributable to the increased sales prices of and reduced allowances for
smoothies in cans and natural sodas. The increase in net sales was partially
offset by decreased sales by volume primarily of our childrens multi-vitamin
juice drinks, and teas, lemonades and cocktails.
Gross Profit. Gross profit was $83.5 million for the year ended December
31, 2004, an increase of $39.7 million or 90.7% over the $43.8 million gross
profit for the year ended December 31, 2003. Gross profit as a percentage of net
sales was 46.3% for the year ended December 31, 2004 which was higher than gross
profit as a percentage of net sales of 39.7% for the year ended December 31,
2003. Increases in gross sales volume contributed to an increase in gross profit
while a change in the Companys product and customer mix and the related increase
in the percentage of sales of higher margin products increased both gross profit
and gross profit as a percentage of net sales. This increase in profit margins
was partially reduced by higher promotional payments and allowances to promote
our products.
Gross profit may not be comparable to those of other entities since some
entities include all costs associated with their distribution process in cost of
sales whereas others exclude certain costs and instead include such costs within
another line item such as selling, general and administrative expenses.
Distribution expenses, which include out-bound freight and warehousing
expenses after manufacture, were $12.4 million and $8.3 million for the years
ended December 31, 2004 and 2003, respectively and have been included in
operating expenses.
37
Total Operating Expenses. Total operating expenses were $49.6 million for
the year ended December 31, 2004, an increase of $15.6 million or 46.0% over
total operating expenses of $33.9 million for the year ended December 31, 2003.
Total operating expenses as a percentage of net sales decreased slightly to
27.5% for the year ended December 31, 2004, from 30.8% for the year ended
December 31, 2003. The increase in total operating expenses was primarily
attributable to increased selling, general and administrative expenses. The
decrease in total operating expenses as a percentage of net sales was primarily
attributable to the comparatively lower increase in selling, general and
administrative expenses than the increase in net sales.
Selling. Selling expenses were $29.2 million for the year ended December
31, 2004, an increase of $9.1 million or 45.5% over selling expenses of $20.1
million for the year ended December 31, 2003. Selling expenses as a percentage
of net sales decreased to 16.2% for the year ended December 31, 2004 from 18.2%
for the year ended December 31, 2003. The increase in selling expenses was
primarily attributable to increased distribution (freight) and storage expenses
after manufacture, which increased by $4.1 million, increased expenditures for
trade development activities and cooperative arrangements with our customers and
distributors, which increased by $2.1 million, and increased expenditures for
merchandise displays, point-of-sale materials, and premiums, which increased by
$2.0 million
General and Administrative. General and administrative expenses were $20.3
million for the year ended December 31, 2004, an increase of $6.5 million or
47.0% over general and administrative expenses of $13.8 million for the year
ended December 31, 2003. General and administrative expenses as a percentage of
net sales decreased to 11.2% for the year ended December 31, 2004 from 12.5% for
the year ended December 31, 2003. The increase in general and administrative
expenses was primarily attributable to payroll expenses which increased by $3.3
million, professional services, consisting of legal, consulting and accounting
services primarily related to the implementation and testing required by the
Sarbanes-Oxley Act of 2002, and legal services related to protecting trademarks
which increased by $1.5 million, and travel and entertainment expenses which
increased by $622,000.
Contribution Margin. Contribution margin for the DSD segment was $41.2
million for the year ended December 31, 2004, an increase of approximately $26.3
million or 176.6% higher than contribution margin of $14.9 million for the year
ended December 31, 2003. The increase in contribution margin for the DSD
division was primarily attributable to the increase in net sales of Monster
Energy(R) brand energy drinks and Lost(R) energy drinks. Contribution margin for
the Warehouse segment was $4.0 million for the year ended December 31, 2004, an
increase of approximately $1.6 million or 66.7% higher than contribution margin
of $2.4 million for year ended December 31, 2003. The increase in the
contribution margin for the Warehouse segment was primarily attributable to
increased sales of Hansen's(R) apple juice and juice blends.
Amortization of Trademark License and Trademarks. Amortization of trademark
license and trademarks was $73,000 for the year ended December 31, 2004, an
increase of $11,000 over amortization of trademark license and trademarks of
$62,000 for the year ended December 31, 2003. The increase in amortization of
trademark license and trademarks was due to the acquisition of trademarks during
the year ended December 31, 2004.
Operating Income. Operating income was $33.9 million for the year ended
December 31, 2004, compared to $9.8 million for the year ended December 31,
2003, an increase of $24.1 million. The increase in operating income and
operating income as a percentage of net sales was attributable to higher gross
profit as well as gross profit increasing at a higher rate than the increase in
operating expenses for the year ended December 31, 2004 as compared to the year
ended December 31, 2003.
Net Nonoperating Income/(Expense). Net nonoperating income was $52,000 for
the year ended December 31, 2004, as compared to net nonoperating expense of
$67,000 for the year ended December 31, 2003. Net nonoperating income/(expense)
consists of interest income and interest and financing expense. The increase in
interest income was primarily attributable to an increase in the cash invested
in interest bearing accounts during the year ended December 31, 2004. Interest
and financing expense for the year ended December 31, 2004 was $42,000 compared
to $73,000 for the year ended December 31, 2003. The decrease in interest and
financing expense was primarily attributable to the decrease in outstanding loan
balances and lower interest rates. Interest income for the year ended December
31, 2004 was $94,000, compared to interest income of $6,000 for the year ended
December 31, 2003.
38
Provision for Income Taxes. Provision for income taxes for the year ended
December 31, 2004 was $13.6 million which was an increase of $9.7 million as
compared to the provision for income taxes of $3.8 million for the year ended
December 31, 2003. The increase in provision for income taxes was primarily
attributable to the increase in operating income. The effective combined federal
and state tax rate for 2004 was 39.9%, which was higher than the effective tax
rate of 39.2% for 2003 due to the increase in the statutory federal income tax
rate applicable to the Company's pre-tax income.
Net Income. Net income was $20.4 million for the year ended December 31,
2004, which was an increase of $14.5 million as compared to net income of $5.9
million for the year ended December 31, 2003. The increase in net income was
primarily attributable to the $39.7 million increase in gross profit and
decrease in nonoperating expense and increase in nonoperating income of $119,000
for the year ended December 31, 2004 which was partially offset by increased
operating expenses of $15.6 million and an increase in the provision for income
taxes of $9.7 million.
Liquidity and Capital Resources
Cash flows from operating activities - Net cash provided by operating
activities was $54.6 million for the year ended December 31, 2005 as compared to
$20.1 million in the comparable period in 2004. For the year ended December 31,
2005, cash provided by operating activities was primarily attributable to net
income earned including adjustments for certain non-cash expenses. In 2005, cash
provided by operating activities was reduced due to increases in accounts
receivable which was attributable to increased sales volumes as well as
increased sales to certain classes of customers who have different payment
terms, increases in inventories required to meet increased sales levels and the
increases in prepaid income taxes. Increases in inventory levels are the direct
result of increases in purchasing, which contributed to the increased balances
of accounts payable and accrued liabilities.
Purchases of inventories, increases in accounts receivable and other
assets, acquisition of property and equipment, acquisition of trademarks,
payments of accounts payable and income taxes payable are expected to remain our
principal recurring use of cash.
Cash flows from investing activities - Net cash provided by investing
activities was $3.2 million for the year ended December 31, 2005 as compared to
net cash used in investing activities of $18.8 million in the comparable period
in 2004. For the year ended December 31, 2005, cash provided by investing
activities was primarily attributable to purchases, maturities and sales of
short-term investments, and to a minor extent, the sale-leaseback of certain
vans and promotional vehicles and the sale of certain property and equipment
that was no longer operational. For both periods, cash used in investing
activities included the acquisitions of fixed assets consisting of computer and
office equipment used for sales and administrative activities, vans and
promotional vehicles and other equipment to support the marketing and
promotional activities of the Company and also for additions to trademark.
Management expects that it will continue to use portion of its cash in excess of
its requirements for operations, to purchase short-term investments and for
other corporate purposes. Management, from time to time, considers the
acquisition of capital equipment, particularly, specific items of production
equipment required to produce certain of our products, storage racks,
merchandise display racks, vans and promotional vehicles, coolers and other
promotional equipment and businesses compatible with the image of the Companys
brands, as well as the introduction of new product lines.
Cash flows from financing activities - Net cash used in financing
activities was $113,000 for the year ended December 31, 2005 as compared to net
cash provided by financing activities of $1.3 million in the comparable period
in 2004. For the year ended December 31, 2005, cash provided by financing
activities was primarily attributable to proceeds received from the issuance of
common stock pursuant to the exercise of stock options which was partially
offset by principal payments of long-term debt. The increase in payments on
long-term debt as compared to the comparable period in 2004 related to lease
payments made on vehicle leases entered into over the past year.
39
Debt and other obligations - HBC has a credit facility from Comerica Bank
("Comerica"), consisting of a revolving line of credit. Such revolving line of
credit is secured by substantially all of HBCs assets, including accounts
receivable, inventory, trademarks and certain equipment. In accordance with the
provisions of the credit facility, HBC can borrow up to $7.8 million under its
revolving line of credit. The revolving line of credit remains in full force and
effect through June 1, 2007. Interest on borrowings under the line of credit is
based on Comericas base (prime) rate minus up to 1.5% or varying LIBOR rates up
to 180 days plus an additional percentage of up to 1.5%, depending upon certain
financial ratios maintained by HBC. The Company had no outstanding borrowings on
the line of credit at December 31, 2005.
The terms of the Companys line of credit contain certain financial
covenants including certain financial ratios. The Company was in compliance with
its covenants at December 31, 2005.
If any event of default shall occur for any reason, whether voluntary or
involuntary, Comerica may declare all or any portion outstanding on the line of
credit immediately due and payable, exercise rights and remedies available to
secured parties under the Uniform Commercial Code, institute legal proceedings
to foreclose upon the lien and security interest granted or for the sale of any
or all collateral.
Noncancelable contractual obligations include our obligations under our
agreement with the Las Vegas Monorail Company and other commitments. (See also
PART II ITEM 8 - NOTE 8, COMMITMENTS & CONTINGENCIES).
Purchase commitments include obligations made by the Company and its
subsidiaries to various suppliers for raw materials used in the manufacturing
and packaging of our products. These obligations vary in terms.
The following represents a summary of the Company's contractual obligations
and related scheduled maturities as of December 31, 2005:
Payments due by period
- ----------------------------------------------------------------------------------------------------------
Obligations Total Less than 1-3 3-5 More than 5
1 year years years years
- ----------------------------------------------------------------------------------------------------------
Noncancelable contracts $ 3,265,595 $ 2,870,595 $ 395,000 $ - $ -
Long-Term Debt 109,864 109,864
Capital Lease 415,480 405,357 10,123
Operating Lease 5,110,157 1,289,343 3,154,166 666,648
Purchase Commitments 11,699,072 7,437,967 4,261,105
-------------- ------------- -------------- -------------- ---------------
$ 20,600,168 $ 12,113,126 $ 7,820,394 $ 666,648 $ -
============== ============= ============== ============== ===============
In addition to the above obligations, pursuant to a can supply agreement
between the Company and Rexam Beverage Can Company ("Rexam") dated as of January
1, 2006, the Company has undertaken to purchase a minimum volume of 24-ounce
resealable aluminum beverage cans over the four year period commencing from
January 1, 2006 through December 31, 2009. Should the Company fail to purchase
the minimum volume, the Company will be obligated to reimburse Rexam for certain
capital reimbursements on a pro rated basis. The Company's maximum liability
under this agreement is $4.3 million subject to compliance by Rexam with a
number of conditions under this agreement.
40
Management believes that cash available from operations, including cash
resources and the revolving line of credit, will be sufficient for our working
capital needs, including purchase commitments for raw materials and inventory,
increases in accounts receivable, payments of tax liabilities, debt servicing,
expansion and development needs, purchases of shares of our common stock, as
well as any purchases of capital assets or equipment for at least the next
twelve months. Based on the Company's current plans, at this time the Company
estimates that capital expenditures are likely to be less than $5 million
through December 2006. However, future business opportunities may cause a change
in this estimate.
Accounting Policies and Pronouncements
Critical Accounting Policies
The Company's consolidated financial statements are prepared in accordance
with GAAP. GAAP requires the Company to make estimates and assumptions that
affect the reported amounts in our consolidated financial statements including
various allowances and reserves for accounts receivable and inventories, the
estimated lives of long-lived assets and trademarks as well as claims and
contingencies arising out of litigation or other transactions that occur in the
normal course of business. The following summarize the most significant
accounting and reporting policies and practices of the Company:
Trademarks - Trademarks primarily represent the Companys exclusive
ownership of the Hansen's(R) trademark in connection with the manufacture,
sale and distribution of beverages and water and non-beverage products and
the Monster Energy(R) trademark in connection with the manufacture, sale
and distribution of supplements and beverages. The Company also owns in its
own right, a number of other trademarks in the United States as well as in
a number of countries around the world. The Company also owns the Blue
Sky(R) trademark, which was acquired in September 2000, and the Junior
Juice(R) trademark, which was acquired in May 2001. During 2002, the
Company adopted SFAS No. 142, Goodwill and Other Intangible Assets. Under
the provisions on SFAS No. 142, the Company discontinued amortization on
indefinite-lived trademarks while continuing to amortize remaining
trademarks over one to 20 years.
In accordance with SFAS No. 142, we evaluate our trademarks annually for
impairment or earlier if there is an indication of impairment. If there is
an indication of impairment of identified intangible assets not subject to
amortization, management compares the estimated fair value with the
carrying amount of the asset. An impairment loss is recognized to write
down the intangible asset to its fair value if it is less than the carrying
amount. The fair value is calculated using the income approach. However,
preparation of estimated expected future cash flows is inherently
subjective and is based on management's best estimate of assumptions
concerning expected future conditions. Based on managements quarterly
impairment analysis performed, the estimated fair values of trademarks
exceeded the carrying value.
Long-Lived Assets - Management regularly reviews property and equipment and
other long-lived assets, including certain identifiable intangibles, for
possible impairment. This review occurs annually, or more frequently if
events or changes in circumstances indicate the carrying amount of the
asset may not be recoverable. If there is indication of impairment of
property and equipment or amortizable intangible assets, then management
prepares an estimate of future cash flows (undiscounted and without
interest charges) expected to result from the use of the asset and its
eventual disposition. If these cash flows are less than the carrying amount
of the asset, an impairment loss is recognized to write down the asset to
its estimated fair value. The fair value is estimated at the present value
of the future cash flows discounted at a rate commensurate with
management's estimates of the business risks. No impairments were
identified during 2005, however, during 2004, management recognized an
impairment to property and equipment as discussed in Note 1 of the attached
financial statements.
41
Management believes that the accounting estimate related to impairment of
its long lived assets, including its trademarks, is a "critical accounting
estimate" because: (1) it is highly susceptible to change from period to
period because it requires company management to make assumptions about
cash flows and discount rates; and (2) the impact that recognizing an
impairment would have on the assets reported on our consolidated balance
sheet, as well as net income, could be material. Managements assumptions
about cash flows and discount rates require significant judgment because
actual revenues and expenses have fluctuated in the past and are expected
to continue to do so.
In estimating future revenues, we use internal budgets. Internal budgets
are developed based on recent revenue data and future marketing plans for
existing product lines and planned timing of future introductions of new
products and their impact on our future cash flows.
Revenue Recognition - The Company recognizes revenue when persuasive
evidence of an arrangement exists, delivery has occurred, the sales price
is fixed or reasonably determinable and collectibility is reasonably
assured. Management believes an adequate provision against net sales has
been made for estimated returns, allowances and cash discounts based on the
Company's historical experience.
Net Sales - Net sales consist of sales recorded at the time the related
products are shipped and the risk of ownership and title have passed, less
allowances for returns, spoilage, discounts and promotional allowances
recorded in accordance with Emerging Issues Task Force ("EITF") Issue No.
01-9.
Cost of Sales - Cost of sales consists of the costs of raw materials
utilized in the manufacture of our products, co-packing fees, in-bound
freight charges as well as certain internal transfer costs, warehouse
expenses incurred prior to the manufacture of the Company's finished
products and certain quality control costs. Raw materials account for the
largest portion of the cost of sales. Raw materials include cans, bottles,
other containers, ingredients and packaging materials.
Operating Expenses - Operating expenses include selling expenses such as
distribution expenses to transport our products to our customers and
warehousing expenses after manufacture, expenses including advertising,
sampling and in-store demonstration costs, material costs for merchandise
displays, point-of-sale materials and premium items, sponsorship expenses,
other marketing expenses and design expenses. Operating expenses also
include general and administrative costs such as payroll costs, travel
costs, professional service fees, depreciation and other general and
administrative costs.
Distribution expenses, which include out-bound freight and warehousing
expenses after manufacture, were $22.1 million, $12.4 million and $8.3
million for the years ended December 31, 2005, 2004, and 2003 respectively.
Advertising and Promotional Allowances - The Company accounts for
advertising production costs by expensing such production costs the first
time the related advertising takes place. In addition, the Company supports
its customers with promotional allowances, a portion of which is utilized
for marketing and indirect advertising by them. In certain instances, a
portion of the promotional allowances payable to customers based on the
levels of sales to such customers, promotion requirements or expected use
of the allowances, are estimated by the Company. If the level of sales,
promotion requirements or use of the allowances are different from such
estimates, the promotional allowances could, to the extent based on
estimates, require adjustments. The Company presents advertising and
promotional allowances in accordance with the provisions of EITF No. 01-9.
42
Accounts Receivable - The Company evaluates the collectibility of its trade
accounts receivable based on a number of factors. In circumstances where
the Company becomes aware of a specific customers inability to meet its
financial obligations to the Company, a specific reserve for bad debts is
estimated and recorded which reduces the recognized receivable to the
estimated amount the Company believes will ultimately be collected. In
addition to specific customer identification of potential bad debts, bad
debt charges are recorded based on the Companys recent past loss history
and an overall assessment of past due trade accounts receivable
outstanding.
Inventories - Inventories are stated at the lower of cost to purchase
and/or manufacture the inventory or the current estimated market value of
the inventory. The Company regularly reviews its inventory quantities on
hand and records a provision for excess and obsolete inventory based
primarily on the Company's estimated forecast of product demand and/or its
ability to sell the product(s) concerned and production requirements.
Demand for the Company's products can fluctuate significantly. Factors
which could affect demand for the Company's products include unanticipated
changes in consumer preferences, general market conditions or other
factors, which may result in cancellations of advance orders or a reduction
in the rate of reorders placed by customers and/or continued weakening of
economic conditions. Additionally, management's estimates of future product
demand may be inaccurate, which could result in an understated or
overstated provision required for excess and obsolete inventory.
Income Taxes - Current income tax expense is the amount of income taxes
expected to be payable for the current year. A deferred income tax asset or
liability is established for the expected future consequences of temporary
differences in the financial reporting and tax bases of assets and
liabilities. The Company considers future taxable income and ongoing,
prudent and feasible tax planning strategies in assessing the value of its
deferred tax assets. If the Company determines that it is more likely than
not that these assets will not be realized, the Company will reduce the
value of these assets to their expected realizable value, thereby
decreasing net income. Evaluating the value of these assets is necessarily
based on the Company's judgment. If the Company subsequently determined
that the deferred tax assets, which had been written down, would be
realized in the future, the value of the deferred tax assets would be
increased, thereby increasing net income in the period when that
determination was made. See Note 9 in Notes to Consolidated Financial
Statements.
Newly Issued Accounting Pronouncements
Information regarding newly issued accounting pronouncements is contained
in Note 1 to the Consolidated Financial Statements for the year ended December
31, 2005, which note is incorporated herein by this reference.
Sales
The table set forth below discloses selected quarterly data regarding sales for
the past five years. Data from any one or more quarters is not necessarily
indicative of annual results or continuing trends.
* Sales of beverages are expressed in unit case volume. A "unit case" means
a unit of measurement equal to 192 U.S. fluid ounces of finished beverage (24
eight-ounce servings) or concentrate sold that will yield 192 U.S. fluid ounces
of finished beverage. Unit case volume of the Company means number of unit cases
(or unit case equivalents) of beverages directly or indirectly sold by the
Company. Sales of food bars and cereals, which have been discontinued and are
not material, are expressed in actual cases.
The Company's quarterly results of operations reflect seasonal trends that
are primarily the result of increased demand in the warmer months of the year.
It has been our experience that beverage sales tend to be lower during the first
and fourth quarters of each fiscal year. Because the primary historical market
for Hansens products is California, which has a year-long temperate climate, the
effect of seasonal fluctuations on quarterly results may have been mitigated;
however, such fluctuations may be more pronounced as the distribution of
Hansen's products expands outside of California. The Companys experience with
its energy drink products, suggests that they are less seasonal than traditional
beverages. As the percentage of the Companys sales that are represented by such
products continues to increase, seasonal fluctuations will be further mitigated.
Quarterly fluctuations may also be affected by other factors including the
introduction of new products, the opening of new markets where temperature
fluctuations are more pronounced, the addition of new bottlers and distributors,
changes in the mix of the sales of its finished products and changes in and/or
increased advertising and promotional expenses. (See also "PART I ITEM 1. -
BUSINESS SEASONALITY").
43
2005 2004 2003 2002 2001
----------------- ---------------- --------------- -------------- -------------
Unit Case Volume / Case Sales (in Thousands)
Quarter 1 9,295 5,368 4,219 3,597 3,091
Quarter 2 12,368 7,605 5,356 4,977 4,171
Quarter 3 13,983 8,916 6,221 5,146 4,271
Quarter 4 12,568 7,871 4,625 3,885 3,583
----------------- -------------- --------------- -------------- -------------
Total 48,214 29,760 20,421 17,605 15,116
================= ============== =============== ============== =============
Net Revenues (in Thousands)
Quarter 1 $ 60,014 $ 31,299 $ 22,086 $ 18,592 $ 16,908
Quarter 2 85,441 46,064 28,409 26,265 22,337
Quarter 3 105,421 52,641 33,291 26,985 23,011
Quarter 4 98,010 50,337 26,566 20,204 18,402
----------------- -------------- --------------- -------------- -------------
Total $ 348,886 $ 180,341 $ 110,352 $ 92,046 $ 80,658
================= ============== =============== ============== =============
Average Price per Case
Quarter 1 $ 6.46 $ 5.83 $ 5.23 $ 5.17 $ 5.47
Quarter 2 $ 6.91 $ 6.06 $ 5.30 $ 5.28 $ 5.36
Quarter 3 $ 7.54 $ 5.90 $ 5.35 $ 5.24 $ 5.39
Quarter 4 $ 7.80 $ 6.40 $ 5.74 $ 5.20 $ 5.14
----------------- -------------- --------------- -------------- -------------
Total $ 7.24 $ 6.06 $ 5.40 $ 5.23 $ 5.34
================= ============== =============== ============== =============
Inflation
The Company does not believe that inflation had a significant impact on the
Company's results of operations for the periods presented.
Forward Looking Statements
The Private Security Litigation Reform Act of 1995 (the "Act") provides a
safe harbor for forward looking statements made by or on behalf of the Company.
Certain statements made in this report may constitute forward looking statements
(within the meaning of Section 27.A of the Securities Act 1933, as amended, and
Section 21.E of the Securities Exchange Act of 1934, as amended) regarding the
expectations of management with respect to revenues, profitability, adequacy of
funds from operations and our existing credit facility, among other things. All
statements which address operating performance, events or developments that
management expects or anticipates will or may occur in the future including
statements related to new products, volume growth, revenues, profitability,
adequacy of funds from operations, and/or the Company's existing credit
facility, earnings per share growth, statements expressing general optimism
about future operating results and non historical information, are forward
looking statements within the meaning of the Act. Without limiting the
foregoing, the words "believes", "thinks", "anticipates", "plans", "expects",
and similar expressions are intended to identify forward-looking statements.
44
Management cautions that these statements are qualified by their terms
and/or important factors, many of which are outside our control, involve a
number of risks, uncertainties and other factors, that could cause actual
results and events to differ materially from the statements made including, but
not limited to, those described in "PART I ITEM 1A. - RISK FACTORS" and other
risks detailed from time to time in the Company's reports filed with the
Securities and Exchange Commission. Such factors are not exhaustive.
Our actual results could be materially different from the results described
or anticipated by our forward-looking statements due to the inherent uncertainty
of estimates, forecasts and projections and may be better or worse than
anticipated. Given these uncertainties, you should not rely on forward-looking
statements. Forward-looking statements represent our estimates and assumptions
only as of the date that they were made. We expressly disclaim any duty to
provide updates to forward-looking statements, and the estimates and assumptions
associated with them, after the date of this report, in order to reflect changes
in circumstances or expectations or the occurrence of unanticipated events
except to the extent required by applicable securities laws.
ITEM 7A. QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISKS
In the normal course of business, our financial position is routinely
subject to a variety of risks. The principal market risks (i.e., the risk of
loss arising from adverse changes in market rates and prices) which the Company
is exposed to are fluctuations in commodity prices affecting the cost of raw
materials and changes in interest rates of the Company's long term debt and the
limited availability of certain raw materials such as sucralose. We are also
subject to market risks with respect to the cost of commodities because our
ability to recover increased costs through higher pricing is limited by the
competitive environment in which we operate. We are also subject to other risks
associated with the business environment in which we operate, including the
collectibility of accounts receivable.
At December 31, 2005, the majority of the Company's debt consisted of fixed
rather than variable rate debt. The amount of variable rate debt fluctuates
during the year based on the Company's cash requirements. If average interest
rates were to increase one percent for the year ended December 31, 2005, the net
impact on the Company's pre-tax earnings would have been insignificant. There
have been no significant changes to the Company's exposure to market risks.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required to be furnished in response to this ITEM 8 follows
the signature page hereto at pages 67 through 90.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
45
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures - Under the supervision
and with the participation of the Company's management, including our Chief
Executive Officer and Chief Financial Officer, we have evaluated the
effectiveness of the design and operation of our disclosure controls and
procedures as of the end of the period covered by this report. Based upon this
evaluation, the Chief Executive Officer and Chief Financial Officer have
concluded that the Company's disclosure controls and procedures are adequate and
effective to ensure that information we are required to disclose in reports that
we file or submit under the Securities Exchange Act of 1934 is (1) recorded,
processed, summarized and reported within the time periods specified in SEC
rules and forms and (2) is accumulated and communicated to the Company's
management, including its principal executive and principal financial officers
as appropriate to allow timely decisions regarding required disclosures.
There have been no changes in internal control over financial reporting
that occurred during the fiscal period covered by this report that have
materially affected, or are reasonably likely to materially affect, the
registrant's internal control over financial reporting.
Management's Report on Internal Control Over Financial Reporting - Company
management is responsible for establishing and maintaining adequate internal
control over financial reporting, as defined in Exchange Act Rule 13a-15(f).
Under the supervision and with the participation of company management,
including the principal executive officer and principal financial officer, the
company conducted an evaluation of the effectiveness of its internal control
over financial reporting based on the framework in Internal Control Integrated
Framework issued by the Committee of Sponsoring Organizations of the Treadway
Commission as of December 31, 2005. Based on the company's evaluation under the
framework in Internal Control - Integrated Framework, management concluded that
the company's internal control over financial reporting was effective as of
December 31, 2005.
Management's assessment of the effectiveness of internal control over
financial reporting as of December 31, 2005 has been audited by Deloitte &
Touche LLP, an independent registered public accounting firm, as stated in its
report, which is included herein.
46
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Stockholders
Hansen Natural Corporation
Corona, California
We have audited management's assessment, included in the accompanying Management
Report on Internal Control Over Financial Reporting, that Hansen Natural
Corporation and subsidiaries (the "Company") maintained effective internal
control over financial reporting as of December 31, 2005, based on criteria
established in Internal Control-Integrated Framework issued by the Committee of
Sponsoring Organizations of the Treadway Commission. The Company's management is
responsible for maintaining effective internal control over financial reporting
and for its assessment of the effectiveness of internal control over financial
reporting. Our responsibility is to express an opinion on management's
assessment and an opinion on the effectiveness of the Company's internal control
over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether effective
internal control over financial reporting was maintained in all material
respects. Our audit included obtaining an understanding of internal control over
financial reporting, evaluating management's assessment, testing and evaluating
the design and operating effectiveness of internal control, and performing such
other procedures as we considered necessary in the circumstances. We believe
that our audit provides a reasonable basis for our opinions.
A company's internal control over financial reporting is a process designed by,
or under the supervision of, the company's principal executive and principal
financial officers, or persons performing similar functions, and effected by the
company's board of directors, management, and other personnel to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
accounting principles generally accepted in the United States of America
("generally accepted accounting principles"). A company's internal control over
financial reporting includes those policies and procedures that (1) pertain to
the maintenance of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the company; (2)
provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the company are
being made only in accordance with authorizations of management and directors of
the company; and (3) provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use, or disposition of the company's
assets that could have a material effect on the financial statements.
Because of the inherent limitations of internal control over financial
reporting, including the possibility of collusion or improper management
override of controls, material misstatements due to error or fraud may not be
prevented or detected on a timely basis. Also, projections of any evaluation of
the effectiveness of the internal control over financial reporting to future
periods are subject to the risk that the controls may become inadequate because
of changes in conditions, or that the degree of compliance with the policies or
procedures may deteriorate.
In our opinion, managements assessment that the Company maintained
effective internal control over financial reporting as of December 31, 2005, is
fairly stated, in all material respects, based on the criteria established in
Internal Control-Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission. Also in our opinion, the Company
maintained, in all material respects, effective internal control over financial
reporting as of December 31, 2005, based on the criteria established in Internal
Control-Integrated Framework issued by the Committee of Sponsoring Organizations
of the Treadway Commission.
47
We have also audited, in accordance with the standards of the Public Company
Accounting Oversight Board (United States), the consolidated financial
statements and financial statement schedule listed in Item 15(b) as of and for
the year ended December 31, 2005, of the Company and our report dated March 9,
2006 expressed an unqualified opinion on those financial statements and
financial statement schedule.
DELOITTE & TOUCHE LLP
Costa Mesa, California
March 9, 2006
ITEM 9B. OTHER INFORMATION
None
48
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Directors of the Company are elected annually by the holders of the common
stock and executive officers are elected annually by the Board of Directors, to
serve until the next annual meeting of stockholders or the Board of Directors,
as the case may be, or until their successors are elected and qualified. It is
anticipated that the next annual meeting of stockholders will be held in October
or November 2006.
The members of our Board of Directors and our executive officers are as
follows:
Name Age Position
------------------------------ ------------ -------------------------------------
Rodney C. Sacks(1) 56 Chairman of the Board of Directors and
Chief Executive Officer
Hilton H. Schlosberg(1) 53 Vice Chairman of the Board of
Directors, Chief Financial Officer,
Chief Operating Officer and
Secretary
Benjamin M. Polk 55 Director
Norman C. Epstein (2,3,4) 65 Director
Sydney Selati(2) 67 Director
Harold C. Taber, Jr. (2,4) 66 Director
Mark S. Vidergauz (3) 52 Director
Mark Hall 50 President,
Monster Beverage Division
Michael B. Schott 57 Senior Vice President, National Sales,
Monster Beverage Division
Kirk Blower 55 Senior Vice President, Non-Carbonated
Products, HBC
Thomas J. Kelly 51 Vice President - Finance and
Secretary, HBC
(1) Member of the Executive Committee of the Board of Directors
(2) Member of the Audit Committee of the Board of Directors
(3) Member of the Compensation Committee of the Board of Directors
(4) Member of the Nominating Committee of the Board of Directors
Rodney C. Sacks - Chairman of the Board of Directors of the Company, Chief
Executive Officer and director of the Company from November 1990 to the present.
Member of the Executive Committee of the Board of Directors of the Company since
October 1992. Chairman and a director of HBC from June 1992 to the present.
Hilton H. Schlosberg - Vice Chairman of the Board of Directors of the
Company, President, Chief Operating Officer, Secretary, and a director of the
Company from November 1990 to the present and Chief Financial Officer of the
Company since July 1996. Member of the Executive Committee of the Board of
Directors of the Company since October 1992. Vice Chairman, Secretary and a
director of HBC from July 1992 to the present.
Benjamin M. Polk - Director of the Company from November 1990 to the
present. Assistant Secretary of HBC since October 1992 and a director of HBC
since July 1992. Partner with Schulte Roth & Zabel LLP(1) since May 2004 and
previously a partner with Winston & Strawn LLP where Mr. Polk practiced law with
that firm and its predecessors, from August 1976 to May 2004.
49
Norman C. Epstein - Director of the Company and member of the Compensation
Committee of the Board of Directors of the Company since June 1992 and member of
the Nominating Committee of the Board of Directors of the Company since
September 2004. Member and Chairman of the Audit Committee of the Board of
Directors of the Company since September 1997. Director of HBC since July 1992.
Director of Integrated Asset Management Limited, a company listed on the London
Stock Exchange since June 1998. Managing Director of Cheval Property Finance
PLC, a mortgage finance company based in London, England. Partner with Moore
Stephens, an international accounting firm, from 1974 to December 1996 (senior
partner beginning 1989 and the managing partner of Moore Stephens, New York from
1993 until 1995).
Sydney Selati - Director of the Company and member of the Audit Committee
of the Board of Directors since September 2004. Mr. Selati was a director of
Barbeques Galore Ltd. from 1997 to 2005 and was Chairman of the Board of
Directors of Galore USA since from 1988 to 2005. Mr. Selati was president of
Sussex Group Limited from 1984 to 1988.
Harold C. Taber, Jr. - Director of the Company since July 1992. Member of
the Audit Committee of the Board of Directors since April 2000 and member of the
Nominating Committee of the Board of Directors of the Company since September
2004. President and Chief Executive Officer of HBC from July 1992 to June 1997.
Consultant for The Joseph Company from October 1997 to March 1999 and for Costa
Macaroni Manufacturing Company from July 2000 to January 2002. Director of
Mentoring at Biola University from July 2002 to present.
Mark S. Vidergauz - Director of the Company and member of the Compensation
Committee of the Board of Directors of the Company since June 1998. Member of
the Audit Committee of the Board of Directors from April 2000 through May 2004.
Managing Director and Chief Executive Officer of Sage Group LLC from April 2000
to present. Managing director at the Los Angeles office of ING Barings LLC, a
diversified financial service institution headquartered in the Netherlands from
April 1995 to April 2000.
Mark Hall - President, Monster Beverage Division, joined HBC in 1997. Prior
to joining HBC, Mr. Hall spent three years with Arizona Beverages as Vice
President of Sales where he was responsible for sales and distribution of
Arizona products through a national network of beer distributors and soft drink
bottlers.
Michael B. Schott - Vice President, National Sales, Monster Beverage
Division, joined HBC in 2002. Prior to joining HBC, Mr. Schott held a number of
management positions in the beverage industry including president of Snapple
Beverage Co., SOBE Beverage Co. and Everfresh Beverages, respectively. Mr.
Schott has over 30 years of experience in sales and marketing, primarily with
beverage companies in key executive and operational roles.
Kirk Blower - Senior Vice President, Juice and Non-Carbonated Products, of
HBC since 1992. Mr. Blower has over 30 years of experience in sales and
marketing, primarily with the Coca-Cola organization.
Thomas J. Kelly - Vice President Finance and Secretary of HBC since 1992.
Prior to joining HBC, Mr. Kelly served as controller for California Copackers
Corporation. Mr. Kelly is a Certified Public Accountant and has worked in the
beverage business for over 20 years.
(1)Mr. Polk and his law firm, Schulte Roth & Zabel LLP, serve as counsel to the
Company.
50
Audit Committee and Audit Committee Financial Expert
The Company has a separately designated standing Audit Committee
established in accordance with Section 3(a)(58)(A) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). The members of the Audit Committee
are Messrs. Epstein (Chairman), Taber and Selati. The Board of Directors has
determined that Mr. Epstein is (1) an "audit committee financial expert," as
that term is defined in Item 401(h) of Regulation S-K of the Exchange Act, and
(2) independent as defined by the listing standards of NASDAQ and Section
10A(m)(3) of the Exchange Act.
Nominating Committee
The Board of Directors of the Company established a Nominating Committee in
September 2004 consisting of Norman C. Epstein and Harold C. Taber Jr. and
adopted a Nominating Committee Charter which is available on our website at
www.hansens.com.
Code of Ethics
We have adopted a Code of Ethics that applies to all our directors,
officers (including its principal executive officer, principal financial officer
and controller) and employees. The Code of Ethics and any amendment to the Code
of Ethics, as well as any waivers that are required to be disclosed by the rules
of the SEC or NASDAQ may be obtained at no cost to you by writing or telephoning
us at the following address or telephone number:
Hansen Beverage Company
1010 Railroad Street
Corona, CA 92882
(951) 739-6200
(800) HANSENS
(800) 426-7367
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires the Company's directors and
executive officers, and persons who own more than ten percent of a registered
class of the Company's equity securities, to file by specific dates with the SEC
initial reports of ownership and reports of changes in ownership of equity
securities of the Company. Executive officers, directors and greater than ten
percent stockholders are required by SEC regulation to furnish the Company with
copies of all Section 16(a) forms that they file. The Company is required to
report in this annual report on Form 10-K any failure of its directors and
executive officers and greater than ten percent stockholders to file by the
relevant due date any of these reports during the most recent fiscal year or
prior fiscal years.
To the Company's knowledge, based solely on review of copies of such
reports furnished to the Company during the year ended December 31, 2005, all
Section 16(a) filing requirements applicable to the Company's executive
officers, directors and greater than ten percent stockholders were complied
with, except that Form 4's in respect of the grant of options to purchase the
Company's stock required to be filed by each of Mark Hall, Kirk Blower, Norman
Epstein, Mark Vidergauz, and Benjamin Polk, an option exercise to purchase the
Company's stock required to be filed by Mark Hall, Tom Kelly and Kirk Blower,
the distribution of shares held by a limited partnership required to be filed by
Rodney Sacks, Hilton Schlosberg and Brandon Limited Partnership No. 2, and a
sale of shares of the Company's common stock required to be filed by Mark Hall
and Mike Schott were inadvertently filed late. The respective transactions were
subsequently filed on Form 4's.
51
ITEM 11. EXECUTIVE COMPENSATION
The following tables set forth certain information regarding the total
remuneration earned and grants of options/ made to the chief executive officer
and each of the four most highly compensated executive officers of the Company
and its subsidiaries who earned total cash compensation in excess of $100,000
during the year ended December 31, 2005. These amounts reflect total cash
compensation paid by the Company and its subsidiaries to these individuals
during the years December 31, 2003 through 2005.
SUMMARY COMPENSATION TABLE
====================================================================================================================
Long Term
ANNUAL COMPENSATION Compensation
- --------------------------------------------------------------------------------------------------------------------
Other Securities
Name and Principal Bonus(2) Annual underlying
Positions Year Salary(1)($) ($) Compensation ($) Options (#)
- --------------------------------------------------------------------------------------------------------------------
Rodney C. Sacks 2005 257,250 125,000 24,542(3) 450,000
Chairman, CEO 2004 245,000 100,000 27,948(3)
and Director 2003 225,833 35,000 19,333(3) 300,000
- --------------------------------------------------------------------------------------------------------------------
Hilton H. Schlosberg
Vice-Chairman, CFO,
COO, President, 2005 257,250 125,000 10,114(3) 450,000
Secretary and 2004 245,000 100,000 9,671(3)
Director 2003 225,833 35,000 7,753(3) 300,000
- --------------------------------------------------------------------------------------------------------------------
Mark J. Hall
President 2005 225,000 175,000 7,806(3) 250,000
Monster Beverage 2004 200,000 150,000 8,356(3) 120,000
Division 2003 175,000 70,000 9,554(3)
- --------------------------------------------------------------------------------------------------------------------
Michael Schott
Senior Vice
President National
Sales 2005 180,000 50,000 28,448(6) 62,000
Monster Beverage 2004 160,000 20,000 29,027(5) 64,000
Division 2003 140,000 50,000 24,572(4)
- --------------------------------------------------------------------------------------------------------------------
Thomas J. Kelly 2005 150,000 40,000 8,668(3) 2,000
Vice President 2004 125,000 40,000 9,319(3) 50,000
Finance 2003 115,000 15,000 6,937(3)
====================================================================================================================
(1) SALARY - Pursuant to employment agreements, Messrs. Sacks and Schlosberg
were entitled to an annual base salary of $257,250, $245,000, and $225,833 for
2005, 2004 and 2003, respectively.
(2) BONUS - Payments made in 2006, 2005 and 2004 are for bonuses accrued in
2005, 2004 and 2003, respectively.
(3) OTHER ANNUAL COMPENSATION - The cash value of perquisites of the named
persons did not total $50,000 or 10% of payments of salary and bonus for the
years shown.
(4) Includes $7,200 for auto reimbursement expense, $10,000 for housing
expenses, $1,200 for travel expenses, and $6,172 for other miscellaneous
perquisites.
(5) Includes $7,200 for auto reimbursement expense, $10,000 for housing
expenses, $4,800 for travel expenses, and $7,027 for other miscellaneous
perquisites.
(6) Includes $7,015 for auto reimbursement expenses, $9,732 for housing expenses
and $11,701 for other miscellaneous perquisites.
52
OPTION GRANTS FOR THE YEAR ENDED DECEMBER 31, 2005
====================================================================================================================================
Potential realizable value at
assumed annual rates of stock price
Individual Grants appreciation for option term(4)
- ------------------------------------------------------------------------------------------ ---------------------------------------
Number of Percent of total
Securities Options granted to Exercise or
underlying employees in base price Expiration 5% 10%
Name Options granted (#) 2005 ($/Share) Date ($) ($)
- ------------------------------------------------------------------------------------------ ----------------------------------------
Rodney C. Sacks 300,000 (1) 19.4% 26.25 3/23/2015 4,952,548 12,550,718
150,000 (3) 9.7% 67.48 11/11/2015 6,365,675 16,131,857
- ------------------------------------------------------------------------------------------ ----------------------------------------
Hilton H. Schlosberg 300,000 (1) 19.4% 26.25 3/23/2015 4,952,548 12,550,718
150,000 (3) 9.7% 67.48 11/11/2015 6,365,675 16,131,857
- ------------------------------------------------------------------------------------------ ----------------------------------------
Mark J. Hall 200,000 (1) 12.9% 26.25 3/23/2015 3,301,699 8,367,146
25,000 (2) 1.6% 43.79 9/28/2015 688,483 1,744,749
25,000 (3) 1.6% 67.48 11/11/2015 1,060,946 2,688,643
- ------------------------------------------------------------------------------------------ ----------------------------------------
Michael Schott 50,000 (1) 3.2% 26.25 3/23/2015 825,425 2,091,786
12,000 (3) 0.8% 67.48 11/11/2015 509,254 1,290,549
- ------------------------------------------------------------------------------------------ ----------------------------------------
Thomas J. Kelly 2,000 (3) 0.1% 67.48 11/11/2015 84,876 215,091
========================================================================================== ========================================
(1) Options to purchase the Company's common stock become exercisable in equal
annual increments over 5 years beginning March 23, 2006.
(2) Options to purchase the Company's common stock become exercisable in equal
annual increments over 5 years beginning September 28, 2006.
(3) Options to purchase the Company's common stock become exercisable in equal
annual increments over 5 years beginning November 11, 2006.
(4) The 5% and 10% assumed annual rates of appreciation are provided in
accordance with the rules and regulations of the SEC and do not represent our
estimates or projections of our future common stock price growth.
53
AGGREGATED OPTION EXERCISES DURING THE YEAR ENDED
DECEMBER 31, 2005 AND OPTION VALUES AT DECEMBER 31, 2005
====================================================================================================================
Number of underlying
unexercised
Options at Value of unexercised in-the-money
December 31, 2005 (#) options at December 31, 2005 ($)
--------------------------------------------------------------
Shares acquired Value Exercisable/ Exercisable/
Name on exercise (#) Realized ($) Unexercisable Unexercisable
- --------------------- ----------------- -------------- ---------------------- --------------------------------------
Rodney C. Sacks - - 400,000/710,000 (1) 30,704,200/37,437,300
- --------------------- ----------------- -------------- ---------------------- --------------------------------------
Hilton H. Schlosberg - - 400,000/710,000 (1) 30,704,200/37,437,300
- --------------------- ----------------- -------------- ---------------------- --------------------------------------
Mark J. Hall 32,000 939,360 0/362,000 (2) 0/20,077,710
- --------------------- ----------------- -------------- ---------------------- --------------------------------------
Michael Schott 40,000 1,366,040 0/182,000 (3) 0/11,886,960
- --------------------- ----------------- -------------- ---------------------- --------------------------------------
Thomas J. Kelly 14,000 533,710 0/ 50,000 (4) 0/ 3,628,260
====================================================================================================================
(1) Includes options to purchase 200,000 shares of common stock at $2.125 per
share which are exercisable at December 31, 2005, granted pursuant to Stock
Option Agreements dated February 2, 1999 between the Company and Messrs. Sacks
and Schlosberg, respectively; options to purchase 160,000 shares of common stock
at $1.785 per share of which 80,000 are exercisable at December 31, 2005,
granted pursuant to Stock Option Agreements dated July 12, 2002 between the
Company and Messrs. Sacks and Schlosberg, respectively; options to purchase
300,000 shares of common stock at $2.10 per share of which 120,000 are
exercisable at December 31, 2005 granted pursuant to Stock Option Agreements
dated May 28, 2003 between the Company and Messrs. Sacks and Schlosberg,
respectively; options to purchase 300,000 shares of common stock at $26.25 per
share of which none are exercisable at December 31, 2005 granted pursuant to
Stock Option Agreements dated March 23, 2005 between the Company and Messrs.
Sacks and Schlosberg respectively; and options to purchase 150,000 shares of
common stock at $67.48 per share of which none are exercisable at December 31,
2005 granted pursuant to Stock Option Agreements dated November 11, 2005 between
the Company and Messrs. Sacks and Schlosberg respectively.
(2) Includes options to purchase 16,000 shares of common stock at $1.785 per
share of which none are exercisable at December 31, 2005, granted pursuant to a
Stock Option Agreement dated July 12, 2002 between the Company and Mr. Hall;
options to purchase 96,000 shares of common stock at $4.075 per share of which
none are exercisable at December 31, 2005, granted pursuant to a Stock Option
Agreement dated January 15, 2004 between the Company ant Mr. Hall; options to
purchase 200,000 shares of common stock at $26.25 per share of which none are
exercisable at December 31, 2005 granted pursuant to a Stock Option Agreement
dated March 23, 2005 between the Company and Mr. Hall; options to purchase
25,000 shares of common stock at $43.79 per share of which none are exercisable
at December 31, 2005 granted pursuant to a Stock Option Agreement dated
September 28, 2005 between the Company and Mr. Hall; and options to purchase
25,000 shares of common stock at $67.48 per share of which none are exercisable
at December 31, 2005 granted pursuant to a Stock Option Agreement dated November
11, 2005 between the Company and Mr. Hall.
(3)Includes options to purchase 72,000 shares of common stock at $1.925 per
share of which none are exercisable at December 31, 2005, granted pursuant to a
Stock Option Agreement dated August 9, 2002 between the Company and Mr. Schott;
options to purchase 48,000 shares of common stock at $4.075 per share of which
none are exercisable at December 31, 2005, granted pursuant to a Stock Option
Agreement dated January 15, 2004 between the Company and Mr. Schott; options to
purchase 50,000 shares of common stock at $26.25 per share of which none are
exercisable at December 31, 2005 granted pursuant to a Stock Option Agreement
dated March 23, 2005 between the Company and Mr. Schott; and options to purchase
12,000 shares of common stock at $67.48 per share of which none are exercisable
at December 31, 2005 granted pursuant to a Stock Option Agreement dated November
11, 2005 between the Company and Mr. Schott.
(4) Includes options to purchase 8,000 shares of common stock at $1.785 per
share of which none are exercisable at December 31, 2005, granted pursuant to a
stock Option Agreement dated July 12, 2002 between the Company and Mr. Kelly;
options to purchase 40,000 shares of common stock at $4.075 per share of which
none are exercisable at December 31, 2005, granted pursuant to a Stock Option
Agreement dated January 15, 2004 between the Company and Mr. Kelly; and options
to purchase 2,000 shares of common stock at $67.48 per share of which none are
exercisable at December 31, 2005 granted pursuant to a Stock Option Agreement
dated November 11, 2005 between the Company and Mr. Kelly.
54
Employment Agreements
The Company entered into an employment agreement dated as of June 1, 2003
with Rodney C. Sacks pursuant to which Mr. Sacks renders services to the Company
as its Chairman and Chief Executive Officer for an annual base salary of
$230,000 for the 7-months ended December 31, 2003, $245,000 for 2004, with
subsequent increases of a minimum of 5% for each subsequent year, plus an annual
bonus in an amount determined at the discretion of the Board of Directors and
certain fringe benefits. The employment period commenced on June 1, 2003 and
ends on December 31, 2008.
The Company also entered into an employment agreement dated as of June 1,
2003 with Hilton H. Schlosberg pursuant to which Mr. Schlosberg renders services
to the Company as its Vice Chairman, President, Chief Operating Officer, Chief
Financial Officer and Secretary for an annual base salary of $230,000 for the
7-months ended December 31, 2003, $245,000 for 2004, with subsequent increases
of a minimum of 5% for each subsequent year, plus an annual bonus in an amount
determined at the discretion of the Board of Directors and certain fringe
benefits. The employment period commenced on June 1, 2003 and ends on December
31, 2008.
The employment agreements for Messrs. Sacks and Schlosberg, and the terms
and conditions thereof, were discussed and approved by the Compensation
Committee of the Board of Directors.
The preceding descriptions of the employment agreements for Messrs. Sacks
and Schlosberg are qualified in their entirety by reference to such agreements,
which have been filed or incorporated by reference as exhibits to this report.
Directors' Compensation
In 2005, outside directors were entitled to an annual fee of $15,000 plus
$1,500 for each meeting of the Board of Directors attended. Outside directors
were also entitled to $500 for each Board of Directors meeting attended by
telephone. Outside directors were entitled to $1,000 for each Audit committee
meeting attended in person and $500 for each Audit committee meeting attended by
telephone. The audit committee chairman earns an additional annual fee of
$5,000. Outside directors were entitled to $500 for each Compensation Committee
meeting attended in person and $250 for each Compensation Committee meeting
attended by telephone.
Compensation Committee Interlocks and Insider Participation in Compensation
Decisions
The Company's Compensation Committee is composed of Mr. Epstein and Mr.
Vidergauz. No interlocking relationships exist between any member of the
Company's Board of Directors or Compensation Committee and any member of the
board of directors or compensation committee of any other company, nor has any
such interlocking relationship existed in the past. No member of the
Compensation Committee is or was formerly an officer or an employee of the
Company.
Employee Stock Option Plans
The Company has a stock option plan (the Plan) that provided for the grant
of options to purchase up to 6,000,000 shares of the common stock of the Company
to certain key employees of the Company and its subsidiaries. Options granted
under the Plan may either be incentive stock options qualified under Section 422
of the Internal Revenue Code of 1986, as amended, or non-qualified options. Such
options are exercisable at fair market value on the date of grant for a period
of up to ten years. Under the Plan, shares subject to options may be purchased
for cash, or for shares of common stock valued at fair market value on the date
of purchase. Under the Plan, no additional options may be granted after July 1,
2001.
55
During 2001, the Company adopted the Hansen Natural Corporation 2001 Stock
Option Plan ("2001 Option Plan"). The 2001 Option Plan provides for the grant of
options to purchase up to 4,000,000 shares of the common stock of the Company to
certain key employees of the Company and its subsidiaries. Options granted under
the 2001 Stock Option Plan may be incentive stock options under Section 422 of
the Internal Revenue Code, as amended (the "Code"), nonqualified stock options,
or stock appreciation rights.
The Plan and the 2001 Option Plan are administered by the Compensation
Committee of the Board of Directors of the Company, comprised of directors who
satisfy the "non-employee" director requirements of Rule 16b-3 under the
Securities Exchange Act of 1934 and the outside director provision of Section
162(m) of the Code. Grants under the Plan and the 2001 Option Plan are made
pursuant to individual agreements between the Company and each grantee that
specifies the terms of the grant, including the exercise price, exercise period,
vesting and other terms thereof.
Outside Directors Stock Option Plans
The Company had an option plan for its outside directors ("the Directors
Plan") that provided for the grant of options to purchase up to an aggregate of
200,000 shares of common stock of the Company to directors of the Company who
are not and have not been employed by or acted as consultants to the Company and
its subsidiaries or affiliates and who are not and have not been nominated to
the Board of Directors of the Company pursuant to a contractual arrangement.
Under the Directors Plan, no additional options could be granted after July 1,
2004.
During 2005, the Company adopted the 2005 Hansen Natural Corporation Stock
Option Plan for Non-Employee Directors ("2005 Directors Plan") that provides for
the grant of options to purchase up to an aggregate of 200,000 shares of common
stock of the Company to non-employee directors of the Company. On the date of
the annual meeting of stockholders at which an eligible director is initially
elected, each eligible director is entitled to receive a one-time grant of an
option to purchase 6,000 shares of the Companys common stock exercisable at the
closing price for a share of common stock on the date of grant. Additionally, on
the fifth anniversary of the election of eligible directors elected or appointed
to the Board, and each fifth anniversary thereafter, each eligible director
shall receive an additional grant of an option to purchase 4,800 shares of the
Companys common stock. Options become exercisable in four equal installments,
with the grant immediately vested with respect to 25% of the grant and the
remaining installments vesting on the three successive anniversaries of the date
of grant; provided that all options held by an eligible director become fully
and immediately exercisable upon a change in control of the Company. Options
granted under the 2005 Directors Plan that are not exercised generally expire
ten years after the date of grant. Option grants may be made under the 2005
Directors Plan for ten years from the effective date of the Directors Plan. The
Directors Plan is a "formula plan" so that a non-employee directors
participation in the Directors Plan does not affect his status as a
"disinterested person" (as defined in Rule 16b-3 under the Securities Exchange
Act of 1934). Four eligible directors were initially granted options to purchase
4,800 shares of the Companys common stock pursuant to the 2005 Directors Plan,
(see "PART III ITEM 12 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
RELATED STOCKHOLDER MATTERS").
56
Performance Graph
The following graph shows a five-year comparison of cumulative total returns:(1)
Total Return To Shareholders
(Includes reinvestment of dividends)
ANNUAL RETURN PERCENTAGE
For the year ended December 31,
Company Name / Index Dec01 Dec02 Dec03 Dec04 Dec05
- ------------------------------------------------------------------------------------------------------------------------
HANSEN NATURAL CORP 8.39 0.50 99.48 332.42 332.90
S&P SMALLCAP 600 INDEX 6.54 (14.63) 38.79 22.65 7.68
PEER GROUP 82.83 17.06 41.59 (1.94) (16.23)
INDEXED RETURNS
For the year ended December 31,
Base
Period
Company Name / Index Dec00 Dec01 Dec02 Dec03 Dec04 Dec05
- ------------------------------------------------------------------------------------------------------------------------
HANSEN NATURAL CORP 100 108.39 108.93 217.29 939.61 4067.61
S&P SMALLCAP 600 INDEX 100 106.54 90.95 126.23 154.82 166.71
PEER GROUP 100 182.83 214.02 303.02 297.13 248.91
(1) Annual return assumes reinvestment of dividends. Cumulative total return
assumes an initial investment of $100 on December 31, 2000. The Company's
self-selected peer group is comprised of National Beverage Corporation, Clearly
Canadian Beverage Company, Triarc Companies, Inc., Leading Brands, Inc., Cott
Corporation, Northland Cranberries and Jones Soda Co. All of the companies in
the peer group traded during the entire five-year period with the exception of
Triarc Companies, Inc., which sold their beverage business in October 2000,
Jones Soda Co., which started trading in August 2000, and Northland Cranberries,
which began trading November 2001.
57
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The disclosure set forth in ITEM 5 of this report is incorporated herein.
(a) The following table sets forth information, as of February 10, 2006, in
respect of the only persons known to the Company who beneficially own more than
5% of the outstanding common stock of the Company:
Amount and Nature of Percent
Title Of Class Name and Address of Beneficial Owner Beneficial Ownership of Class
- --------------------------------------------------------------------------------------------------------
Common Stock Brandon Limited Partnership No. 1(1) 326,730 1.4%
Brandon Limited Partnership No. 2 (2) 2,383,334 10.2%
HRS Holdings, L.P. (3) 250,000 1.1%
Hilrod Holdings L.P. (4) 1,420,000 6.0%
Rodney C. Sacks (5) 4,980,064(6) 21.2%
Hilton H. Schlosberg (7) 4,902,258(8) 20.9%
Kevin Douglas, Douglas Family Trust and
James Douglas and Jean Douglas
Irrevocable Descendants' Trust(9) 1,207,122(10) 5.1%
Fidelity Low Priced Stock Fund(11) 3,096,143 13.2%
(1) The mailing address of Brandon No. 1 is 21 Dartmouth Street, 4th Floor,
London SW1 H9BP, United Kingdom. The general partners of Brandon No. 1 are
Rodney C. Sacks and Hilton H. Schlosberg.
(2) The mailing address of Brandon No. 2 is 21 Dartmouth Street, 4th Floor,
London SW1 H9BP, United Kingdom. The general partners of Brandon No. 2 are
Rodney C. Sacks and Hilton H. Schlosberg.
(3) The mailing address of HRS Holdings, L.P. ("HRS") is 1010 Railroad Street,
Corona, California 92882. The general partners of HRS are Rodney C. Sacks and
Hilton H. Schlosberg.
(4) The mailing address of Hilrod Holdings L.P. ("Hilrod") is 1010 Railroad
Street, Corona, California 92882. The general partners of Hilrod are Rodney C.
Sacks and Hilton H. Schlosberg.
(5) The mailing address of Mr. Sacks is 1010 Railroad Street, Corona, California
92882.
(6) Includes 80,000 shares of common stock owned by Mr. Sacks; 326,730 shares
beneficially held by Brandon No. 1 because Mr. Sacks is one of Brandon No. 1s
general partners; 2,383,334 shares beneficially held by Brandon No. 2 because
Mr. Sacks is one of Brandon No. 2s general partners; 250,000 shares beneficially
held by HRS because Mr. Sacks is one of HRSs general partners; and 1,420,000
shares beneficially held by Hilrod because Mr. Sacks is one of Hilrods general
partners. Also includes options to purchase 200,000 shares of common stock
exercisable at $2.125 per share, granted pursuant to a Stock Option Agreement
dated February 2, 1999 between the Company and Mr. Sacks; options presently
exercisable to purchase 180,000 shares of common stock, out of options to
purchase a total of 300,000 shares, exercisable at $2.10 per share, granted
pursuant to a Stock Option Agreement dated May 28, 2003 between the Company and
Mr. Sacks; options presently exercisable to purchase 80,000 shares of common
stock, out of options to purchase a total of 300,000 shares, exercisable at
$1.785 per share, granted pursuant to a Stock Option Agreement dated July 12,
2002 between the Company and Mr. Sacks and options presently exercisable to
purchase 60,000 shares of common stock, out of options to purchase a total of
300,000 shares, exercisable at $26.25 per share, granted pursuant to a Stock
Option Agreement dated March 23, 2005 between the Company and Mr. Sacks.
Mr. Sacks disclaims beneficial ownership of all shares deemed beneficially owned
by him hereunder except: (i) 80,000 shares of common stock; (ii) 125,000 shares
of common stock held by HRS allocable to Mr. Sacks and grantor retained annuity
trusts for the benefit of Mr. Sacks and his children; (iii) 710,000 shares of
common stock held by Hilrod allocable to Mr. Sacks and grantor retained annuity
trusts for the benefit of Mr. Sacks and his children; and (iv) the 520,000
shares of common stock presently exercisable under Stock Option Agreements.
(7) The mailing address of Mr. Schlosberg is 1010 Railroad Street, Corona,
California 92882.
58
(8) Includes 2,194 shares of common stock which are jointly owned by Mr.
Schlosberg and his wife, 326,730 shares beneficially held by Brandon No. 1
because Mr. Schlosberg is one of Brandon No. 1s general partners; 2,383,334
shares beneficially held by Brandon No. 2 because Mr. Schlosberg is one of
Brandon No. 2s general partners; 250,000 shares beneficially held by HRS because
Mr. Schlosberg is one of HRSs general partners; and 1,420,000 shares
beneficially held by Hilrod because Mr. Schlosberg is one of Hilrods general
partners. Also includes options to purchase 200,000 shares of common stock
exercisable at $2.125 per share, granted pursuant to a Stock Option Agreement
dated February 2, 1999 between the Company and Mr. Schlosberg; and options
presently exercisable to purchase 180,000 shares of common stock, out of options
to purchase a total of 300,000 shares, exercisable at $2.10 per share, granted
pursuant to a Stock Option Agreement dated May 28, 2003 between the Company and
Mr. Schlosberg; options presently exercisable to purchase 80,000 shares of
common stock, out of options to purchase a total of 300,000 shares, exercisable
at $1.785 per share, granted pursuant to a Stock Option Agreement dated July 12,
2002 between the Company and Mr. Schlosberg and options presently exercisable to
purchase 60,000 shares of common stock, out of options to purchase a total of
300,000 shares, exercisable at $26.25 per share, granted pursuant to a Stock
Option Agreement dated March 23, 2005 between the Company and Mr. Schlosberg.
Mr. Schlosberg disclaims beneficial ownership of all shares deemed beneficially
owned by him hereunder except: (i) 2,194 shares of common stock, (ii) 125,000
shares of common stock held by HRS allocable to Mr. Schlosberg and grantor
retained annuity trusts for the benefit of Mr. Schlosberg and his children;
(iii) 710,000 shares of common stock held by Hilrod allocable to Mr. Schlosberg
and grantor retained annuity trusts for the benefit of Mr. Schlosberg and his
children; and (iv) the 520,000 shares of common stock presently exercisable
under Stock Option Agreements.
(9) The mailing address of this reporting person is 1101 Fifth Avenue, Suite
360, San Rafael, California 94901.
(10) Includes 450,078 shares of common stock owned by Kevin and Michelle
Douglas; 354,033 shares of common stock owned by James Douglas and Jean Douglas
Irrevocable Descendants Trust; 400,705 shares of common stock owned by Douglas
Family Trust; and 2,306 shares of common stock owned by James E. Douglas III.
Kevin Douglas, James E. Douglas, Douglas Family Trust and James Douglas and Jean
Douglas Irrevocable Descendants Trust are deemed members of a group that shares
voting and dispositive power over the shares.
(11) The mailing address of this reporting person is 82 Devonshire Street,
Boston, Massachusetts, 02109.
(b) The following table sets forth information as to the beneficial ownership of
shares of common stock, as of February 10, 2006, held by persons who are
directors of the Company and certain executive officers, naming them, and as to
directors and all executive officers of the Company as a group, without naming
them:
Title of Class Name Amount Owned Percent of Class
- --------------------------------------------------------------------------------
Common Stock Rodney C. Sacks 4,980,064(1) 21.2%
Hilton H. Schlosberg 4,902,258(2) 20.9%
Mark J. Hall 102,000(3) *%
Michael Schott 40,500(4) *%
Kirk Blower 25,000(5) *%
Thomas J. Kelly 12,500(6) *%
Sydney Selati 8,000(7) *%
Norman Epstein 3,200(8) *%
Harold Taber 2,201(9) *%
Benjamin M. Polk 1,200(10) *%
Mark Vidergauz 1,200(10) *%
Executive Officers and Directors as a group: 11 members; 7,368,059 shares or
31.4% in aggregate(11).
*Less than 1%
59
(1) Includes 80,000 shares of common stock owned by Mr. Sacks; 326,730 shares
beneficially held by Brandon No. 1 because Mr. Sacks is one of Brandon No. 1s
general partners; 2,383,334 shares beneficially held by Brandon No. 2 because
Mr. Sacks is one of Brandon No. 2s general partners; 250,000 shares beneficially
held by HRS because Mr. Sacks is one of HRSs general partners; and 1,420,000
shares beneficially held by Hilrod because Mr. Sacks is one of Hilrods general
partners. Also includes options to purchase 200,000 shares of common stock
exercisable at $2.125 per share, granted pursuant to a Stock Option Agreement
dated February 2, 1999 between the Company and Mr. Sacks; options presently
exercisable to purchase 180,000 shares of common stock, out of options to
purchase a total of 300,000 shares, exercisable at $2.10 per share, granted
pursuant to a Stock Option Agreement dated May 28, 2003 between the Company and
Mr. Sacks; options presently exercisable to purchase 80,000 shares of common
stock, out of options to purchase a total of 300,000 shares, exercisable at
$1.785 per share, granted pursuant to a Stock Option Agreement dated July 12,
2002 between the Company and Mr. Sacks and options presently exercisable to
purchase 60,000 shares of common stock, out of options to purchase a total of
300,000 shares, exercisable at $26.25 per share, granted pursuant to a Stock
Option Agreement dated March 23, 2005 between the Company and Mr. Sacks.
Mr. Sacks disclaims beneficial ownership of all shares deemed beneficially owned
by him hereunder except: (i) 80,000 shares of common stock; (ii) 125,000 shares
of common stock held by HRS allocable to Mr. Sacks and grantor retained annuity
trusts for the benefit of Mr. Sacks and his children; (iii) 710,000 shares of
common stock held by Hilrod allocable to Mr. Sacks and grantor retained annuity
trusts for the benefit of Mr. Sacks and his children: and (iv) the 520,000
shares of common stock presently exercisable under Stock Option Agreements.
(2) Includes 2,194 shares of common stock which are jointly owned by Mr.
Schlosberg and his wife, 326,730 shares beneficially held by Brandon No. 1
because Mr. Schlosberg is one of Brandon No. 1s general partners; 2,383,334
shares beneficially held by Brandon No. 2 because Mr. Schlosberg is one of
Brandon No. 2s general partners; 250,000 shares beneficially held by HRS because
Mr. Schlosberg is one of HRSs general partners; and 1,420,000 shares
beneficially held by Hilrod because Mr. Schlosberg is one of Hilrods general
partners. Also includes options to purchase 200,000 shares of common stock
exercisable at $2.125 per share, granted pursuant to a Stock Option Agreement
dated February 2, 1999 between the Company and Mr. Schlosberg; and options
presently exercisable to purchase 180,000 shares of common stock, out of options
to purchase a total of 300,000 shares, exercisable at $2.10 per share, granted
pursuant to a Stock Option Agreement dated May 28, 2003 between the Company and
Mr. Schlosberg; options presently exercisable to purchase 80,000 shares of
common stock, out of options to purchase a total of 300,000 shares, exercisable
at $1.785 per share, granted pursuant to a Stock Option Agreement dated July 12,
2002 between the Company and Mr. Schlosberg and options presently exercisable to
purchase 60,000 shares of common stock, out of options to purchase a total of
300,000 shares, exercisable at $26.25 per share, granted pursuant to a Stock
Option Agreement dated March 23, 2005 between the Company and Mr. Schlosberg.
Mr. Schlosberg disclaims beneficial ownership of all shares deemed beneficially
owned by him hereunder except: (i) 2,194 shares of common stock, (ii) 125,000
shares of common stock held by HRS allocable to Mr. Schlosberg and grantor
retained annuity trusts for the benefit of Mr. Schlosberg and his children;
(iii) 710,000 shares of common stock held by Hilrod allocable to Mr. Schlosberg
and grantor retained annuity trusts for the benefit of Mr. Schlosberg and his
children; and (iv) the 520,000 shares of common stock presently exercisable
under Stock Option Agreements.
(3) Includes 62,000 shares of common stock owned by Mr. Hall and options
presently exercisable to purchase 40,000 shares of common stock, out of options
to purchase a total of 200,000 shares, exercisable at $26.25 per share, granted
pursuant to a Stock Option Agreement dated March 23, 2005 between the Company
and Mr. Hall.
(4) Includes 28,000 shares of common stock owned by Mr. Schott and options
presently exercisable to purchase 12,500 shares of common stock, out of options
to purchase a total of 50,000 shares, exercisable at $26.25 per share, granted
pursuant to a Stock Option Agreement dated March 23, 2005 between the Company
and Mr. Schott.
(5) Includes 25,000 shares of common stock owned by Mr. Blower.
(6) Includes 12,500 shares of common stock owned by Mr. Kelly.
(7) Includes 8,000 shares of common stock owned by Mr. Selati.
(8) Includes 2,000 shares beneficially held by Shoreland Investment because Mr.
Epstein is one of the general partners and options presently exercisable to
purchase 1,200 shares of common stock, out of options to purchase a total of
4,800 shares of common stock, exercisable at $67.48 per share, granted pursuant
to a Stock Option Agreement dated November 11, 2005 between the Company and Mr.
Epstein.
60
(9) Includes 1,001 shares of common stock owned by Mr. Taber and options
presently exercisable to purchase 1,200 shares of common stock, out of options
to purchase a total of 4,800 shares of common stock, exercisable at $67.48 per
share, granted pursuant to a Stock Option Agreement dated November 11, 2005
between the Company and Mr. Taber.
(10) Includes options presently exercisable to purchase 1,200 shares of common
stock, out of options to purchase a total of 4,800 shares of common stock,
exercisable at $67.48 per share, granted pursuant to a Stock Option Agreement
dated November 11, 2005 between the Company and Messrs. Polk and Vidergauz
respectively.
(11) Includes securities beneficially owned by all directors and executive
officers of the Company including those listed above.
There are no arrangements known to the Company, the operation of which may
at a subsequent date result in a change of control of the Company.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Benjamin M. Polk is a partner in Schulte Roth & Zabel LLP, a law firm that
has been retained by the Company since May 2004, and was previously a partner
with Winston & Strawn LLP, a law firm (together with its predecessors) that had
been retained by the company since 1992.
Mark Vidergauz is the Managing Director and Chief Executive Officer of the
Sage Group LLC, a professional services firm that is utilized by the Company
during 2005.
Rodney C. Sacks is currently acting as the sole Trustee of a trust formed
pursuant to an Agreement of Trust dated July 27, 1992 for the purpose of holding
the Hansen's(R) trademark. The Company and HBC have agreed to indemnify Mr.
Sacks and hold him harmless from any claims, loss or liability arising out of
his acting as Trustee.
During 2005, the Company purchased promotional items from IFM Group, Inc.
("IFM"). Rodney C. Sacks, together with members of his family, own approximately
27% of the issued shares in IFM. Hilton H. Schlosberg, together with members of
his family, own approximately 43% of the issued shares in IFM. Purchases from
IFM of promotional items in 2005, 2004 and 2003 were $748,725, $638,590 and
$331,478, respectively. The Company continues to purchase promotional items from
IFM Group, Inc. in 2006.
The preceding descriptions of agreements are qualified in their entirety by
reference to such agreements, which have been filed as exhibits to the Companys
reports, as applicable.
61
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Accounting Fees
Aggregate fees billed and unbilled to the company for service provided for
the years ended December 31, 2005, and 2004 by the Companys principal accounting
firm, Deloitte & Touche LLP, the member firms of Deloitte Touche Tohmatsu, and
their respective affiliates (collectively "Deloitte & Touche"):
Year ended December 31,
2005 2004
-------------------- --------------------
Audit Fees $ 559,572 $ 464,575
Audit Related Fees(1) 93,830
Tax Fees(2) 10,383 8,360
-------------------- --------------------
Total Fees(3) $ 663,785 $ 472,935
==================== ====================
(1) Audit related fees consisted of fees for consultations regarding reporting
matters under regulations of the Securities and Exchange Commission.
(2) Tax fees consisted of fees for tax consultation services including advisory
services for state tax analysis and tax audit assistance.
(3) For years ended December 31, 2005 and 2004, all of the services performed by
Deloitte & Touche have been pre-approved by the Audit Committee.
The Audit Committee has considered whether Deloitte & Touches provision of
the non-audit services covered above is compatible with maintaining Deloitte &
Touche's independence and has determined that it is.
Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of
Independent Auditors
The Audit Committee's policy is to pre-approve all audit and non-audit
services provided by the Company's independent auditors. These services may
include audit services, audit-related services, tax services and other services.
Pre-approval is generally provided for up to one year, and any pre-approval is
detailed as to the particular service or category of services and is generally
subject to a specific budget. The Audit Committee has delegated pre-approval
authority to its Chairman when necessary due to timing considerations. Any
services approved by the Chairman must be reported to the full Audit Committee
at its next scheduled meeting. The independent auditors and management are
required to periodically report to the full Audit Committee regarding the extent
of services provided by the independent auditors in accordance with the
pre-approval policies, and the fees for the services performed to date.
62
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
(a) The following documents are filed as a part of this Form 10-K
1. Index to Financial Statements filed as part of this Report
Report of Independent Registered Public Accounting Firm 67
Consolidated Balance Sheets as of December 31, 2005 and 2004 68
Consolidated Statements of Income for the years ended December 31, 2005,
2004 and 2003 69
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 2005, 2004 and 2003 70
Consolidated Statements of Cash Flows for the years ended December 31,
2005, 2004 and 2003 71
Notes to Consolidated Financial Statements for the years ended December 31,
2005, 2004 and 2003 73
2. Financial Statement Schedule
Valuation and Qualifying Accounts for the years ended December 31, 2005,
2004 and 2003 90
3.Exhibits
The Exhibits listed in the Index of Exhibits, which appears immediately
following the signature page and is incorporated herein by reference, as
filed as part of this Form 10-K
63
SIGNATURES
Pursuant to the requirements of Sections 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
HANSEN NATURAL CORPORATION
/s/ RODNEY C. SACKS Rodney C. Sacks Date: March 14, 2006
- ------------------- Chairman of the Board
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant in the capacities and on the dates indicated.
Signature Title Date
- --------- ------ ----
/s/ RODNEY C. SACKS
- ------------------------
Rodney C. Sacks Chairman of the Board of March 15, 2006
Directors and Chief Executive
Officer (principal executive
officer)
/s/ HILTON H. SCHLOSBERG
- ------------------------
Hilton H. Schlosberg Vice Chairman of the Board of March 15, 2006
Directors, President, Chief
Operating Officer, Chief
Financial Officer and Secretary
(principal financial officer,
controller and principal
accounting officer)
/s/ NORMAN C. EPSTEIN
- ------------------------
Norman C. Epstein Director March 15, 2006
/s/ BENJAMIN M. POLK
- ------------------------
Benjamin M. Polk Director March 15, 2006
/s/ SYDNEY SELATI
- ------------------------
Sydney Selati Director March 15, 2006
/s/ HAROLD C. TABER, JR.
- ------------------------
Harold C. Taber, Jr. Director March 15, 2006
/s/ MARK S. VIDERGAUZ
- ------------------------
Mark S. Vidergauz Director March 15, 2006
64
INDEX TO EXHIBITS
The following designated exhibits, as indicated below, are either filed or
furnished, as applicable herewith or have heretofore been filed or furnished
with the Securities and Exchange Commission under the Securities Act of 1933 or
the Securities Exchange Act of 1934 as indicated by footnote.
10.34 Amended and Restated Loan and Security Agreement by and between Comerica
Bank California and Hansen Beverage Company dated July 15, 2005.
10.35 Stock option Agreement dated as of November 5, 2004 by and between Hansen
Natural Corporation and Sydney Selati.
10.36 Stock option Agreement dated as of March 23, 2005 by and between Hansen
Natural Corporation and Rodney Sacks.
10.37 Stock option Agreement dated as of March 23, 2005 by and between Hansen
Natural Corporation and Hilton H. Schlosberg.
10.38 Stock option Agreement dated as of March 23, 2005 by and between Hansen
Natural Corporation and Mark Hall.
10.39 Stock option Agreement dated as of March 23, 2005 by and between Hansen
Natural Corporation and Michael Schott.
10.40 Stock option Agreement dated as of September 28, 2005 by and between
Hansen Natural Corporation and Mark Hall.
10.41 Stock option Agreement dated as of November 1, 2005 by and between Hansen
Natural Corporation and Kirk Blower.
10.42 Stock option Agreement dated as of November 11, 2005 by and between Hansen
Natural Corporation and Harold C. Taber.
10.43 Stock option Agreement dated as of November 11, 2005 by and between Hansen
Natural Corporation and Norman Epstein.
10.44 Stock option Agreement dated as of November 11, 2005 by and between Hansen
Natural Corporation and Mark Vidergauz.
10.45 Stock option Agreement dated as of November 11, 2005 by and between Hansen
Natural Corporation and Benjamin Polk.
10.46 Stock option Agreement dated as of November 11, 2005 by and between Hansen
Natural Corporation and Hilton H. Schlosberg.
10.47 Stock option Agreement dated as of November 11, 2005 by and between Hansen
Natural Corporation and Rodney Sacks.
10.48 Stock option Agreement dated as of November 11, 2005 by and between Hansen
Natural Corporation and Mark Hall.
10.49 Stock option Agreement dated as of November 11, 2005 by and between Hansen
Natural Corporation and Mike Schott.
10.50 Stock option Agreement dated as of November 11, 2005 by and between Hansen
Natural Corporation and Thomas Kelly.
21 Subsidiaries(1)
23 Independent Auditors' Consent
31.1 Certification by CEO pursuant to Rule 13A-14(a) or 15D-14(a) of the
Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
31.2 Certification by CFO pursuant to Rule 13A-14(a) or 15D-14(a) of the
Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
32.1 Certification by CEO pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
32.2 Certification by CFO pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
(1) Filed previously as an exhibit to Form 10-Q for the quarter ended June 30,
2005.
65
INDEX TO FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES
Page
-------------
HANSEN NATURAL CORPORATION AND SUBSIDIARIES
Report of Independent Registered Public Accounting Firm 67
Consolidated Balance Sheets as of December 31, 2005 and 2004 68
Consolidated Statements of Income for the years ended December 31, 2005,
2004 and 2003 69
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 2005, 2004 and 2003 70
Consolidated Statements of Cash Flows for the years ended December 31, 2005,
2004 and 2003 71
Notes to Consolidated Financial Statements for the years ended December 31,
2005, 2004 and 2003 73
Financial Statement Schedule - Valuation and Qualifying Accounts for
the years ended December 31, 2005, 2004 and 2003 90
66
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Stockholders
Hansen Natural Corporation
Corona, California
We have audited the accompanying consolidated balance sheets of Hansen Natural
Corporation and subsidiaries ("the Company") as of December 31, 2005 and 2004,
and the related consolidated statements of income, stockholders equity, and cash
flows for each of the three years in the period ended December 31, 2005. Our
audits also included the financial statement schedule listed in Item 15(b).
These financial statements and financial statement schedule are the
responsibility of the Companys management. Our responsibility is to express an
opinion on the financial statements and financial statement schedule based on
our audits.
We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of the Company as of December 31, 2005
and 2004, and the results of their operations and their cash flows for each of
the three years in the period ended December 31, 2005, in conformity with
accounting principles generally accepted in the United States of America. Also,
in our opinion, such financial statement schedule, when considered in relation
to the basic consolidated financial statements taken as a whole, presents
fairly, in all material respects, the information set forth therein.
We have also audited, in accordance with the standards of the Public Company
Accounting Oversight Board (United States), the effectiveness of the Companys
internal control over financial reporting as of December 31, 2005, based on the
criteria established in Internal Control-Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission and our report
dated March 9, 2006 expressed an unqualified opinion on management's assessment
of the effectiveness of the Company's internal control over financial reporting
and an unqualified opinion on the effectiveness of the Company's internal
control over financial reporting.
DELOITTE & TOUCHE LLP
Costa Mesa, California
March 9, 2006
67
HANSEN NATURAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
AS OF DECEMBER 31, 2005 AND 2004
2005 2004
------------------- --------------------
ASSETS
------
CURRENT ASSETS:
Cash and cash equivalents $ 61,654,284 $ 3,676,119
Short-term investments (Note 2) 11,860,665 17,300,000
Accounts receivable, net 28,751,588 12,650,055
Inventories (Note 3) 31,399,628 22,406,054
Prepaid expenses and other current assets 477,237 638,967
Prepaid income taxes 637,794
Deferred income tax asset (Note 9) 5,505,264 3,708,942
------------------- --------------------
Total current assets 140,286,460 60,380,137
PROPERTY AND EQUIPMENT, net (Note 4) 3,742,958 2,964,064
INTANGIBLE AND OTHER ASSETS:
Trademarks, net (Note 5) 19,103,049 18,351,804
Deposits and other assets 757,215 326,312
------------------- --------------------
Total intangible and other assets 19,860,264 18,678,116
------------------- --------------------
$ 163,889,682 $ 82,022,317
=================== ====================
LIABILITIES AND STOCKHOLDERS' EQUITY
-------------------------------------
CURRENT LIABILITIES:
Accounts payable $ 26,613,663 $ 14,542,753
Accrued liabilities 2,481,703 1,582,968
Accrued compensation 3,346,243 1,831,627
Current portion of long-term debt (Note 6) 515,221 437,366
Income taxes payable - 346,449
------------------- --------------------
Total current liabilities 32,956,830 18,741,163
LONG-TERM DEBT, less current portion (Note 6) 10,123 146,486
DEFERRED INCOME TAX LIABILITY (Note 9) 5,413,880 4,563,439
COMMITMENTS AND CONTINGENCIES (Note 8) - -
STOCKHOLDERS' EQUITY (Note 10):
Common stock - $0.005 par value; 30,000,000 shares
authorized; 22,607,128 shares issued, 22,193,606
outstanding in 2005; 22,239,728 shares issued, 21,826,206
outstanding in 2004 (Notes 1 and 7) 113,036 111,198
Additional paid-in capital 19,917,748 15,757,942
Retained earnings 106,292,610 43,516,634
Common stock in treasury, at cost; 413,522 shares in 2005 and 2004 (814,545) (814,545)
------------------- --------------------
Total stockholders' equity 125,508,849 58,571,229
------------------- --------------------
$ 163,889,682 $ 82,022,317
=================== ====================
See accompanying notes to consolidated financial statements.
68
HANSEN NATURAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE YEARS ENDED DECEMBER 31, 2005, 2004 AND 2003
2005 2004 2003
--------------------- --------------------- ---------------------
NET SALES $ 348,886,366 $ 180,341,135 $ 110,352,196
COST OF SALES 166,343,118 96,874,750 66,577,168
--------------------- --------------------- ---------------------
GROSS PROFIT 182,543,248 83,466,385 43,775,028
OPERATING EXPENSES:
Selling, general and administrative 79,029,837 49,507,137 33,887,045
Amortization of trademarks 70,102 73,046 61,888
--------------------- --------------------- ---------------------
Total operating expenses 79,099,939 49,580,183 33,948,933
--------------------- --------------------- ---------------------
OPERATING INCOME 103,443,309 33,886,202 9,826,095
NONOPERATING INCOME (EXPENSE):
Interest and financing expense (76,531) (41,988) (72,592)
Interest income 1,427,803 93,983 5,579
--------------------- --------------------- ---------------------
Net nonoperating income (expense) 1,351,272 51,995 (67,013)
--------------------- --------------------- ---------------------
INCOME BEFORE PROVISION FOR
INCOME TAXES 104,794,581 33,938,197 9,759,082
PROVISION FOR
INCOME TAXES (Note 9) 42,018,605 13,551,393 3,828,678
--------------------- --------------------- ---------------------
NET INCOME $ 62,775,976 $ 20,386,804 $ 5,930,404
===================== ===================== =====================
NET INCOME PER COMMON SHARE:
Basic (Note 7) $ 2.85 $ 0.96 $ 0.29
===================== ===================== =====================
Diluted (Note 7) $ 2.59 $ 0.86 $ 0.28
===================== ===================== =====================
NUMBER OF COMMON SHARES USED IN PER SHARE COMPUTATIONS:
Basic (Note 7) 22,055,983 21,333,784 20,557,420
===================== ===================== =====================
Diluted (Note 7) 24,272,235 23,619,880 21,524,314
===================== ===================== =====================
See accompanying notes to consolidated financial statements.
69
HANSEN NATURAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2005, 2004 AND 2003
Common stock Additional Treasury stock Total
--------------------------- paid-in Retained ------------------------- stockholders'
Shares Amount capital earnings Shares Amount equity
--------------- ----------- --------------- ---------------- ----------- ------------ ------------------
Balance,
January 1, 2003 20,519,528 $ 102,598 $ 11,883,265 $ 17,199,426 (413,522) $ (814,545) $ 28,370,744
Exercise of stock
options 730,200 3,650 744,780 748,430
Net income 5,930,404 5,930,404
--------------- ----------- --------------- ---------------- ----------- ------------ ------------------
Balance,
December 31, 2003 21,249,728 106,248 12,628,045 23,129,830 (413,522) (814,545) 35,049,578
Exercise of stock
options 990,000 4,950 1,714,978 1,719,928
Reduction of tax liability
in connection with the
exercise of certain
stock options 1,414,919 1,414,919
Net income 20,386,804 20,386,804
--------------- ----------- --------------- ---------------- ----------- ------------- --------------------
Balance,
December 31, 2004 22,239,728 111,198 15,757,942 43,516,634 (413,522) (814,545) 58,571,229
Exercise of stock
options 367,400 1,838 1,165,922 1,167,760
Reduction of tax liability
in connection with the
exercise of certain
stock options 2,993,884 2,993,884
Net income 62,775,976 62,775,976
--------------- ----------- --------------- ---------------- ----------- ------------- --------------------
Balance,
December 31, 2005 22,607,128 $ 113,036 $ 19,917,748 $ 106,292,610 (413,522) $ (814,545) $125,508,849
=============== =========== =============== ================ =========== ============= ====================
See accompanying notes to consolidated financial statements.
70
HANSEN NATURAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 2005, 2004 AND 2003
2005 2004 2003
------------------ ------------------ ------------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 62,775,976 $ 20,386,804 $ 5,930,404
Adjustments to reconcile net income to
net cash provided by operating activities:
Amortization of trademark 70,102 73,046 61,888
Depreciation and other amortization 1,008,629 770,413 584,197
Impairment of operating equipment 587,877
Loss on disposal of property and equipment 180,085 120,200 31,992
Deferred income taxes (945,881) (172,543) (360,524)
Provision for doubtful accounts 86,783 (116,311) 16,996
Effect on cash of changes in operating assets and liabilities
Accounts receivable (16,188,316) (7,160,761) 559,423
Inventories (8,993,574) (4,762,268) (6,000,052)
Prepaid expenses and other current assets 161,730 (157,190) 500,713
Prepaid income taxes (637,794)
Accounts payable 12,070,910 8,021,351 1,789,141
Accrued liabilities 898,735 397,626 504,383
Accrued compensation 1,514,616 948,168 573,395
Income taxes payable/receivable 2,647,435 1,114,105 1,292,458
------------------ ------------------ ------------------
Net cash provided by operating activities 54,649,436 20,050,517 5,484,414
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of held-to-maturity investments (9,642,565)
Sales and maturities of held-to-maturity investments 4,481,900
Purchases of available for sale investments (13,000,000) (23,600,000)
Sales of available for sale investments 23,600,000 6,300,000
Purchases of property and equipment (1,519,760) (1,260,068) (1,627,490)
Proceeds from sale of property and equipment 178,571 24,698 70,826
Additions to trademarks (821,347) (131,146) (995,137)
(Increase) decrease in deposits and other assets (60,869) (104,210) 114,267
------------------ ------------------ ------------------
Net cash provided by (used in) investing activities 3,215,930 (18,770,726) (2,437,534)
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments on long-term debt (1,054,961) (422,385) (3,234,445)
Proceeds from issuance of common stock 1,167,760 1,719,928 748,430
------------------ ------------------ ------------------
Net cash provided by (used in) financing activities 112,799 1,297,543 (2,486,015)
------------------ ------------------ ------------------
NET INCREASE IN CASH AND
CASH EQUIVALENTS 57,978,165 2,577,334 560,865
CASH AND CASH EQUIVALENTS, beginning of year 3,676,119 1,098,785 537,920
------------------ ------------------ ------------------
CASH AND CASH EQUIVALENTS, end of year $ 61,654,284 $ 3,676,119 $ 1,098,785
================== ================== ==================
SUPPLEMENTAL INFORMATION:
Cash paid during the year for:
Interest $ 65,119 $ 35,510 $ 76,306
================== ================== ==================
Income taxes $ 40,954,842 $ 12,538,355 $ 2,896,743
================== ================== ==================
See accompanying notes to consolidated financial statements.
71
HANSEN NATURAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)
FOR THE YEARS ENDED DECEMBER 31, 2005, 2004 AND 2003
NONCASH TRANSACTIONS:
During 2005 and 2004, the Company entered into capital leases of $996,454
and $403,902, respectively, for the acquisition of promotional vehicles.
During 2005 and 2004, the Company reduced current income taxes payable and
increased additional paid-in capital in the amount of $2,993,884 and $1,414,919,
respectively, in connection with the exercise of certain stock options.
See accompanying notes to consolidated financial statements.
72
HANSEN NATURAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2005, 2004 AND 2003
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization Hansen Natural Corporation (the "Company" or "Hansen") was
incorporated in Delaware on April 25, 1990. The Company is a holding company and
has no operating business except through its direct wholly-owned subsidiaries,
Hansen Beverage Company ("HBC") which was incorporated in Delaware on June 8,
1992 and Monster LDA Company ("MLDA") formally known as Hard e Beverage Company,
and previously known as Hard Energy Company and CVI Ventures, Inc., which was
incorporated in Delaware on April 30, 1990. HBC conducts the vast majority of
the Companys operating business and generates substantially all of the Companys
operating revenues. References herein to "Hansen" or the "Company" when used to
describe the operating business of the Company are references to the business of
HBC unless otherwise indicated, and references herein to MLDA when used to
describe the operating business of MLDA, are to the business of MLDA unless
otherwise indicated.
In addition, HBC, through its wholly-owned subsidiaries, Blue Sky Natural
Beverage Co. ("Blue Sky") and Hansen Junior Juice Company ("Junior Juice") owns
and operates the natural soda business under the Blue Sky(R) trademark and the
Junior Juice(R) beverage business under the Junior Juice trademarks,
respectively.
Nature of Operations - Hansen markets and distributes Hansen's(R) Natural
Sodas, Signature Sodas, fruit juice Smoothies, energy drinks, Energade(R) energy
sports drinks, E20 Energy Water(R), Sparkling Lemonades and Orangeades,
multi-vitamin juice drinks in aseptic packaging, Junior Juice juice, iced teas,
lemonades and juice cocktails, apple juice, cider and juice blends, Blue Sky(R)
brand carbonated beverages, Monster Energy(R) brand energy drinks, Lost(R)
Energy brand energy drinks, Rumba(TM) brand Energy Juice and Fizzit(TM) powdered
drink mixes.
Basis of Presentation - The accompanying consolidated financial statements
have been prepared in accordance with accounting principles generally accepted
in the United States of America ("generally accepted accounting principles").
Principles of Consolidation - The accompanying consolidated financial
statements include the accounts of Hansen and its wholly owned subsidiaries,
HBC, MLDA, Blue Sky and Junior Juice since their respective dates of
incorporation. All intercompany balances and transactions have been eliminated
in consolidation.
Stock Split - On August 8, 2005, the common stock of the Company was split
on a two-for-one basis through a 100% stock dividend. All per-share and
outstanding share information has been presented to reflect the stock split.
Cash and Cash Equivalents - The Company invests cash available in
various investments from time to time including, but not limited to,
investments of the following nature: auction rate securities, corporate
bank debt, commercial paper, certificates of deposit, U.S. treasury bills,
notes and bonds, money market funds and tax exempt securities including
municipal notes. Those investments that have maturity dates of ninety days
or less are included in Cash and cash equivalents whereas those investments
that have maturity dates in excess of ninety days are included in
"Short-term investments". The Company did not have any investments in
auction rate securities at December 31, 2005 but did hold such investments
at December 31, 2004. As a result, we reclassified $17.3 million from "Cash
and cash equivalents" to "Short-term investments" in our Condensed
Consolidated Balance Sheet as of December 31, 2004. This reclassification
has no impact on previously reported total current assets, total assets,
working capital, or results of operations and does not affect previously
reported cash flows from operating or financing activities. Throughout the
year, the Company had amounts on deposit at a financial institution that
exceed the depository insurance limits. The Company has not experienced any
loss as a result of these deposits and does not expect to incur any losses
in the future.
73
Inventories - Inventories are valued at the lower of first-in, first-out
(FIFO) cost or market value (net realizable value).
Property and Equipment - Property and equipment are stated at cost.
Depreciation of furniture, office equipment, equipment and vehicles is based on
their estimated useful lives (three to ten years) and is calculated using the
straight-line method. Amortization of leasehold improvements is based on the
lesser of their estimated useful lives or the terms of the related leases and is
calculated using the straight-line method.
Trademarks - Trademarks represents the Companys exclusive ownership of the
Hansens trademark in connection with the manufacture, sale and distribution of
beverages and water and non-beverage products and the Monster Energy(R)
trademark in connection with the manufacture, sale and distribution of
supplements and beverages. The Company also owns a number of other trademarks in
the United States as well as in a number of countries around the world. The
Company also owns the Blue Sky(R) trademark, which was acquired in September
2000, and the Junior Juice(R) trademark, which was acquired in May 2001. The
Company amortizes its trademarks over their useful lives of 1 to 20 years.
Long-Lived Assets - Management regularly reviews property and equipment and
other long-lived assets, including certain identifiable intangibles, for
possible impairment. This review occurs annually, or more frequently if events
or changes in circumstances indicate the carrying amount of the asset may not be
recoverable. If there is indication of impairment of property and equipment or
amortizable intangible assets, then management prepares an estimate of future
cash flows (undiscounted and without interest charges) expected to result from
the use of the asset and its eventual disposition. If these cash flows are less
than the carrying amount of the asset, an impairment loss is recognized to write
down the asset to its estimated fair value. The fair value is estimated at the
present value of the future cash flows discounted at a rate commensurate with
management's estimates of the business risks. Annually, or earlier, if there is
indication of impairment of identified intangible assets not subject to
amortization, management compares the estimated fair value with the carrying
amount of the asset. An impairment loss is recognized to write down the
intangible asset to its fair value if it is less than the carrying amount.
Preparation of estimated expected future cash flows is inherently subjective and
is based on management's best estimate of assumptions concerning expected future
conditions. For the year ended December 31, 2004, the Company recognized
impairment on operating equipment in cost of sales of $587,877. For 2005, there
was no impairment losses recorded.
Revenue Recognition - The Company recognizes revenue when persuasive
evidence of an arrangement exists, delivery has occurred, the sales price is
fixed or determinable and collectibility is reasonably assured. Management
believes an adequate provision has been made for estimated returns, allowances
and cash discounts based on the Company's historical experience, which are
accounted for as a reduction of gross sales.
Freight Costs and Reimbursement of Freight Costs - In accordance with EITF
No. 00-10, Accounting for Shipping and Handling Fees and Costs, reimbursements
of freight charges are recorded in net sales in the accompanying consolidated
statements of income. For the years ended December 31, 2005, 2004 and 2003,
freight-out costs amounted to $19.1 million, $10.7 million and $7.0 million,
respectively, and have been recorded in selling, general and administrative
expenses in the accompanying consolidated statements of income.
74
Advertising and Promotional Allowances - The Company accounts for
advertising production costs by expensing such production costs the first time
the related advertising takes place. Advertising expenses, including but not
limited to production costs, amounted to $18.0 million, $10.8 million and $7.9
million for the years ended December 31, 2005, 2004 and 2003, respectively.
Advertising expenses are included in selling, general and administrative
expenses.
Income Taxes - The Company accounts for income taxes under the provisions
of SFAS No. 109, Accounting for Income Taxes. This statement requires the
recognition of deferred tax assets and liabilities for the future consequences
of events that have been recognized in the Companys financial statements or tax
returns. Measurement of the deferred items is based on enacted tax laws. In the
event the future consequences of differences between financial reporting bases
and tax bases of the Companys assets and liabilities result in a deferred tax
asset, SFAS No. 109 requires an evaluation of the probability of being able to
realize the future benefits indicated by such asset. A valuation allowance
related to a deferred tax asset is recorded when it is more likely than not that
some portion or all of the deferred tax asset will not be realized.
Stock-Based Compensation - The Company accounts for its stock option plans
in accordance with Accounting Principles Board (APB) Opinion No.25, Accounting
for Stock Issued to Employees, and related Interpretations. Under APB Opinion
No.25, no compensation expense is recognized because the exercise price of the
Companys employee stock options equals the market price of the underlying stock
at the date of the grant. In December 2002, the Financial Accounting Standards
Board ("FASB") issued SFAS No.148, Accounting for Stock-Based
Compensation-Transition and Disclosure. Statement of Financial Accounting
Standards ("SFAS") No.148 amends SFAS No.123, Accounting for Stock-based
Compensation, and was effective immediately upon issuance. The Company follows
the requirements of APB Opinion No.25 and the disclosure-only provision of SFAS
No.123, as amended by SFAS No.148. Had compensation cost for the Companys option
plans been determined based on the fair value at the grant date for awards
consistent with the provisions of SFAS No. 123, the Companys net income and net
income per common share for the years ended December 31, 2005, 2004 and 2003
would have been reduced to the pro forma amounts indicated below. Additionally,
the effect of the stock split, which was effective August 8, 2005, has been
given effect to all years presented (Note 1).
2005 2004 2003
-------------- -------------- --------------
Net income, as reported $ 62,775,976 $ 20,386,804 $ 5,930,404
Less: total stock-based employee compensation
expense determined under fair value
based method for all awards, net of related
tax effects 2,682,562 356,156 216,250
-------------- -------------- --------------
Net income, pro forma $ 60,093,414 $ 20,030,648 $ 5,714,154
============== ============== ==============
Net income per common share, as reported:
Basic $ 2.85 $ 0.96 $ 0.29
Diluted $ 2.59 $ 0.86 $ 0.28
Net income per common share, pro forma:
Basic $ 2.72 $ 0.94 $ 0.28
Diluted $ 2.48 $ 0.85 $ 0.27
75
The fair value of each option grant is estimated on the date of grant using the
Black-Scholes option-pricing model with the following weighted-average
assumptions used:
Risk-Free
Dividend Yield Expected Volatility Interest Rate Expected Lives
----------------- --------------------------- ----------------------- ---------------------
2005 0% 62% 4.4% 7 years
2004 0% 46% 4.0% 8 years
2003 0% 12% 3.5% 8 years
Net Income Per Common Share - In accordance with SFAS No. 128, Earnings per
Share, net income per common share, on a basic and diluted basis, is presented
for all periods. Basic net income per share is computed by dividing net income
by the weighted average number of common shares outstanding . Diluted net income
per share is computed by dividing net income by the weighted average number of
common and dilutive common equivalent shares outstanding.
Concentration Risk - Certain of the Companys products utilize components
(raw materials and/or co-packing services) from a limited number of sources. A
disruption in the supply of such components could significantly affect the
Companys revenues from those products, as alternative sources of such components
may not be available at commercially reasonable rates or within a reasonably
short time period. The Company continues to take steps on an ongoing basis to
secure the availability of alternative sources for such components and minimize
the risk of any disruption in production.
One customer accounted for approximately 18% and 13% of the Company's sales
for the years ended December 31, 2005 and 2004, respectively. A decision by
that, or any other large customer, to decrease the amount purchased from the
Company or to cease carrying the Companys products could have a material adverse
effect on the Companys financial condition and consolidated results of
operations.
During 2005, 2004 and 2003, sales outside of California represented 62%,
56% and 47% of the aggregate sales of the Company, respectively.
Credit Risk - The Company sells its products nationally, primarily to
retailers and beverage distributors. The Company performs ongoing credit
evaluations of its customers and generally does not require collateral. The
Company maintains reserves for estimated credit losses, and historically, such
losses have been within managements expectations.
Fair Value of Financial Instruments - At December 31, 2005 and 2004, the
carrying values of cash, accounts receivable and accounts payable approximate
fair value because of the short maturity of these financial instruments.
Long-term debt bears interest at a rate comparable to the prime rate; therefore,
management believes the carrying amount for the outstanding borrowings at
December 31, 2005 approximates fair value.
Use of Estimates - The preparation of the consolidated financial statements
in conformity with generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
Segment Information - The Company has two reportable segments, namely
Direct Store Delivery ("DSD"), whose principal products comprise energy drinks,
and Warehouse, whose principal products comprise juice based and soda beverages.
76
Newly Issued Accounting Pronouncements - In November 2004, FASB issued
statement of Financial Accounting Standard No. 151, "Inventory Costs". The new
Statement amends Accounting Research Bulletin No. 43, Chapter 4, "Inventory
Pricing", to clarify the accounting for abnormal amounts of idle facility
expense, freight, handling costs, and wasted material. This Statement requires
that those items be recognized as current-period charges and requires that
allocation of fixed production overheads to the cost of conversion be based on
the normal capacity of the production facilities. This statement is effective
for fiscal years beginning after June 15, 2005. The adoption of this statement
will have an immaterial impact on the financial condition and results of
operations of the Company.
In December 2004, the FASB issued SFAS No. 153, Exchanges of Nonmonetary
Assets An Amendment of APB Opinion No. 29, Accounting for Nonmonetary
Transactions. This statement amends APB Opinion No. 29 to eliminate the
exception for nonmonetary exchanges of similar productive assets and replaces it
with a general exception for exchanges of nonmonetary assets that do not have
commercial substance. A nonmonetary exchange has commercial substance if the
future cash flows of the entity are expected to change significantly as a result
of the exchange. The provision in SFAS No. 153 is effective for nonmonetary
asset exchanges incurred during fiscal years beginning after June 15, 2005. The
adoption of this statement will have an immaterial impact on the financial
condition and results of operations of the Company.
In December 2004, the FASB issued SFAS No. 123 (revised 2004), Share-Based
Payment. This Statement replaces FASB Statement No. 123 and supersedes APB
Opinion No. 25. SFAS No. 123(R) will require the fair value of all stock option
awards issued to employees to be recorded as an expense over the related vesting
period. The Statement also requires the recognition of compensation expense for
the fair value of any unvested stock option awards outstanding at the date of
adoption. This standard is effective for the Company as of January 1, 2006.
Management has concluded it will adopt the modified prospective application
method. Management has not completed their evaluation of the effect of these new
rules on the Companys financial statements but expects the effect to be
material.
In May 2005, FASB issued SFAS No. 154, Accounting Changes and Error
Corrections, which establishes, unless impracticable, retrospective application
as the required method for reporting a change in accounting principle in the
absence of explicit transition requirements specific to the newly adopted
accounting principle. The statement provides guidance for determining whether
retrospective application of a change in accounting principle is impracticable.
The statement also addresses the reporting of a correction of error by restating
previously issued financial statements. SFAS No. 154 is effective for accounting
changes and corrections of errors made in fiscal years beginning after December
15, 2005. The Company does not expect adoption of this statement to have a
material impact on its financial condition or results of operations.
2. SHORT-TERM INVESTMENTS
We consider all short-term, highly liquid investments having original
maturities of three months or less to be cash equivalents. All investments with
original maturities greater than three months but less than twelve months are
considered to be short-term investments.
We classify our debt securities in one of two categories: held-to-maturity
or available-for-sale. Held-to-maturity securities are those securities in which
we have the positive intent and ability to hold until maturity. All other
securities not included in held-to-maturity are classified as
available-for-sale. No securities are held for speculative or trading purposes.
Held-to-maturity securities are recorded at amortized cost, adjusted for
the amortization of accretion of premiums or discounts. A decline in the market
value of any held-to-maturity security below cost that is deemed other than
temporary results in a reduction in carrying amount to fair value. The
impairment is charged to earnings and a new cost basis for the security is
established. Premiums and discounts are amortized or accreted over the life of
the related held-to-maturity security as an adjustment to yield using the
effective-interest method. The Company evaluates whether the decline in fair
value of its investments is other-than temporary at each quarter-end. This
evaluation consists of a review by management, and includes market pricing
information and maturity dates for the securities held, market and economic
trends in the industry and information on the investee companys financial
condition.
77
The carrying amount, gross unrealized holding gains, gross unrealized
holding losses and fair value for available-for-sale and held-to-maturity
short-term investments at December 31, 2005 and 2004 are as follows:
Continuous
Continuous Unrealized
Unrealized Loss
Gross Gross Loss Position
Unrealized Unrealized Position greater
Carrying Holding Holding Fair less than than 12
Amount Gains Losses Value 12 Months Months
-------------- ------------- ------------ ------------- ------------- -------------
December 31, 2005
- --------------------
Held-to-maturity
Debt securities of
government
sponsored
entities $ 2,951,409 $ 284 $ 152 $ 2,951,541 $ 152 $
Corporate bonds 2,209,256 1,055 2,208,201 1,055
------------- ------------- ------------ ------------- ------------- -------------
5,160,665 284 1,207 5,159,742 1,207
Available-for-sale
Municipal bonds 6,700,000 6,700,000
------------- ------------- ------------ ------------- ------------- -------------
6,700,000 6,700,000
------------- ------------- ------------ ------------- ------------- -------------
$ 11,860,665 $ 284 $ 1,207 $ 11,859,742 $ 1,207 $
============= ============= ============ ============= ============= =============
December 31, 2004
- --------------------
Available-for-sale
Debt securities of
government
sponsored
entities $ 10,300,000 $ $ $ 10,300,000 $ $
Municipal bonds 7,000,000 7,000,000
------------- ------------- ------------ ------------- ------------- -------------
$ 17,300,000 $ $ $ 17,300,000 $ $
============= ============= ============ ============= ============= =============
3. INVENTORIES
Inventories consist of the following at December 31:
2005 2004
---------------------- --------------------
Raw materials $ 10,227,362 $ 6,449,520
Finished goods 21,172,266 15,956,534
---------------------- --------------------
$ 31,399,628 $ 22,406,054
====================== ====================
78
4. PROPERTY AND EQUIPMENT
Property and equipment consist of the following at December 31:
2005 2004
--------------------- --------------------
Leasehold improvements $ 579,240 $ 268,068
Furniture and office equipment 1,700,131 1,193,741
Equipment 1,162,944 1,488,571
Vehicles 2,402,399 2,359,264
--------------------- --------------------
5,844,714 5,309,644
Less accumulated depreciation and amortization (2,101,756) (2,345,580)
--------------------- --------------------
$ 3,742,958 $ 2,964,064
===================== ====================
5. TRADEMARK AND TRADEMARK AMORTIZATIONS
As of December 31, 2004 and 2005, the trademarks were tested for impairment
in accordance with the provisions of SFAS No. 142. Fair values were estimated
based on the Company's best estimate of the expected present value of future
cash flows. No amounts were impaired at those dates. The following provides
additional information concerning the Company's trademarks as of December 31:
2005 2004
-------------------- --------------------
Amortizing trademarks $ 1,169,248 $ 1,169,248
Accumulated amortization (289,366) (219,264)
-------------------- --------------------
879,882 949,984
Nonamortizing trademarks 18,223,167 17,401,820
-------------------- --------------------
$ 19,103,049 $ 18,351,804
==================== ====================
All amortizing trademarks have been assigned an estimated finite useful
life, and are amortized on a straight-line basis over the number of years that
approximate their respective useful lives ranging from 1 to 20 years
(weighted-average life of 19 years). The straight-line method of amortization
allocates the cost of the trademarks to earnings over the period of expected
benefit. Total amortization expense during the year ended December 31, 2005 was
$70,102. As of December 31, 2005, future estimated amortization expense related
to amortizing trademarks through the year ended December 31, 2010 is:
2006 $55,739
2007 55,739
2008 55,590
2009 55,590
2010 55,590
6. DEBT
HBC has a credit facility from Comerica Bank ("Comerica"), consisting of a
revolving line of credit. Such revolving line of credit is secured by
substantially all of HBC's assets, including accounts receivable, inventory,
trademarks and certain equipment. In accordance with the provisions of the
credit facility, HBC can borrow up to $7.8 million under its revolving line of
credit. The revolving line of credit remains effect through June 1, 2007.
Interest on borrowings under the line of credit is based on Comericas base
(prime) rate minus up to 1.5% or varying LIBOR rates up to 180 days plus an
additional percentage of up to 1.5%, depending upon certain financial ratios
maintained by HBC. The Company had no outstanding borrowings on the line of
credit at December 31, 2005.
79
The terms of the Companys line of credit contain certain financial
covenants based on certain financial ratios. The Company was in compliance
with its covenants at December 31, 2005. Long-term debt consists of the
following at December 31:
2005 2004
--------------- ---------------
Note payable to Pasco Juices, Inc., collateralized by the
Junior Juice trademark, payable in quarterly installments
of varying amounts through May 2006, net of unamortized
discount (based on imputed interest rate of 4.5%) of
$2,636 and $13,329 at December 31, 2005 and 2004,
respectively $ 109,864 $ 267,390
Capital leases, collateralized by vehicles and warehouse
equipment acquired, payable over 26 to 60 months in
monthly installments at various effective interest rates
ranging from 4.3% to 9.9%, with final payments ending
from 2006 to 2008. 415,480 316,462
--------------- ---------------
525,344 583,852
Less: current portion of long-term debt (515,221) (437,366)
--------------- ---------------
$ 10,123 $ 146,486
=============== ===============
Long-term debt is payable as follows:
Years ending December 31:
2006 $ 515,221
2007 6,201
2008 3,922
-----------------
$ 525,344
=================
At December 31, 2005 and 2004, the assets acquired under capital leases had
a net book value of $1,035,046 and $402,245, net of accumulated depreciation of
$338,901 and $518,988, respectively.
Interest expense recorded, including those for capital lease obligations,
amounted to $55,576, $35,988 and $66,592 for the years ended December 31, 2005,
2004 and 2003, respectively.
7. EARNINGS PER SHARE
A reconciliation of the weighted average shares used in the basic and
diluted earnings per common share computations for the three and years ended
December 31, 2005 and 2004 is presented below:
2005 2004 2003
--------------- --------------- ---------------
Weighted-average shares outstanding:
Basic 22,055,983 21,333,784 20,557,420
Dilutive securities 2,216,252 2,286,096 966,894
--------------- --------------- ---------------
Diluted 24,272,235 23,619,880 21,524,314
=============== =============== ===============
For the years ended December 31, 2005, 2004 and 2003, options outstanding
totaling 507,200, 34,500 and 20,000 shares respectively, were excluded from the
calculations, as their effect would have been antidilutive.
80
8. COMMITMENTS AND CONTINGENCIES
Operating Leases - The Company leases its warehouse facility and corporate
offices under a 10 year lease expiring in 2010. The facility lease and certain
equipment and other noncancelable operating leases which expire through 2010.
The facility lease has scheduled rent increases which are accounted for on a
straight-line basis. Rent expense under such leases amounted to $1,080,107,
$965,730, and $660,616 for the years ended December 31, 2005, 2004 and 2003,
respectively. In January 2004, the Company entered into a lease for additional
warehouse space. This lease expires in March 2008 with an option to renew
through 2010.
Future minimum rental payments at December 31, 2005 under the operating
leases referred to above are as follows: Year ending December 31:
Year ending December 31:
2006 $ 1,289,343
2007 1,279,292
2008 986,010
2009 888,864
2010 and thereafter 666,648
--------------
$ 5,110,157
==============
Purchase Commitments - The Company has purchase commitments aggregating
approximately $11.7 million, which represent commitments made by the Company and
its subsidiaries to various suppliers of raw materials for the manufacturing and
packaging of its products. These obligations vary in terms.
In addition to the above obligations, pursuant to a can supply agreement
between the Company and Rexam Beverage Can Company ("Rexam") dated as of January
1, 2006, the Company has undertaken to purchase a minimum volume of 24-ounce
resealable aluminum beverage cans over the four year period commencing from
January 1, 2006 through December 31, 2009. Should the Company fail to purchase
the minimum volume, the Company will be obligated to reimburse Rexam for certain
capital reimbursements on a pro rated basis. The Companys maximum liability
under this agreement is $4.3 million subject to compliance by Rexam with a
number of conditions under this agreement.
The Company purchases various raw material items, including, but not
limited to, flavors, ingredients and containers, from a limited number of
resources. An interruption in supply from any of such resources could result in
the Companys inability to produce certain products for limited or possibly
extended periods of time. The aggregate value of purchases from suppliers of
such limited resources described above for the year ended December 31, 2005 was
$46.4 million.
Advertising Commitment - In March 2003, HBC entered into an advertising
display agreement ("Monorail Agreement") with the Las Vegas Monorail Company
("LVMC") in terms of which HBC was granted the right, in consideration of the
payment by HBC to LVMC of the sum of $1,000,000 per year, payable quarterly, to
advertise and promote its products on a designated four car monorail vehicle as
well as the right to sell certain of its products on all monorail stations for
payment of additional consideration.
The initial term of the Monorail Agreement commenced in July 2004. The
initial term of the Monorail Agreement ends on the first anniversary of its
commencement date. However due to interruptions in the operations of the
Monorail, the commencement date of the initial term was extended to January 1,
2005. Not less than 120 days before the expiration of the initial term and each
renewal term, as the case may be, HBC has the right to renew the Monorail
Agreement for a further one year term up to a maximum of nine additional one
year terms and the LVMC has the right, notwithstanding such election by HBC, to
terminate the Monorail Agreement at the expiration of the then current term. The
Company renewed the Monorail Agreement for an additional one-year term.
81
Licensing Agreements - The Company produces, sells and distributes Lost(R)
Energy drinks under an exclusive license with Lost International LLC. The
license agreement requires certain royalty payments to be made related to the
sale of Lost(R) brand products. Royalty expense under this agreement for the
years 2005, 2004 and 2003 was $594,803, $351,773, and $0, respectively.
Employment and Consulting Agreements - On June 1, 2003, the Company entered
into an employment agreement with Rodney C. Sacks and Hilton H. Schlosberg
pursuant to which Mr. Sacks and Mr. Schlosberg render services to the Company as
its Chairman and Chief Executive Officer, and its Vice Chairman, President and
Chief Financial Officer, respectively. The agreements provide for an annual base
salary of $230,000 each for the 7 months ended December 31, 2003, increasing to
$245,000 for the year ending December 31, 2004 and increasing by a minimum of 5%
for each subsequent twelve-month period during the employment period. In
addition, the agreement provides for an annual bonus in an amount determined at
the discretion of the Board of Directors of the Company as well as certain
fringe benefits for the period commencing June1, 2003 and ending December 31,
2008. Compensation expense related to these agreements for the years 2005, 2004
and 2003 was $ 799,156, $ 727,619 and $ 548,752, respectively.
Litigation - The Company is subject to, and involved in, claims and
contingencies related to lawsuits, and other matters arising out of the normal
course of business. In management's opinion, the ultimate liability associated
with such claims and contingencies, if any, is not likely to have a material
adverse effect on the financial condition of the Company.
In September 2004, Barrington Capital Corporation through an alleged
successor in interest, Sandburg Financial Corporation (both entities with whom
the Company has never had any dealings) served a Notice of Motion ("Motion") on
the Company and each of its subsidiaries as well as on a number of other
unrelated entities and individuals. The Motion seeks to amend a default judgment
granted against a completely unconnected company, Hansen Foods, Inc., to add the
Company and its subsidiary companies, as well as the other entities and
individuals cited, as judgment debtors. The default judgment was entered on
February 15, 1996, for $7,626,000 plus legal interest and attorneys fees in the
sum of $211,000 arising out of a breach of contract claim that allegedly
occurred in the 1980s. Barrington Capital Corporations/Sandburg Financial
Corporations claim is based on the misconceived and unsubstantiated theory that
the Company and its subsidiaries are alter egos and/or successors of Hansen
Foods, Inc. In managements opinion, the Motion is based on demonstrably false
allegations, misstated legal propositions and lacks any substantial supporting
evidence. The Company and its subsidiaries are vigorously opposing the Motion
and believe that the Motion is without any merit. The Company does not believe
the Motion will have a material adverse effect on the financial condition of the
Company.
In June 2005, the Company filed a complaint in California federal court
against North American Beverage Company ("NAB") seeking an injunction, damages
and other relief arising out of NAB's infringement of the Companys Monster
Energy(TM) marks through the promotion and advertising of carbonated beverages
under the mark "Flathead Lake Monster" with the word "Monster" predominantly
displayed. In response, in July 2005, "Flathead Lake Monster", Inc.
("Flathead"), a Montana corporation which allegedly licensed the mark "Flathead
Lake Monster" to NAB, filed a complaint against the Company in federal court in
Montana in which it alleges that it is the licensor of the mark "Flathead Lake
Monster" and sought a declaration that its use of that mark for soda does not
infringe the Companys rights in its "Monster Energy" marks. Flatheads complaint
also in the alternative claimed trademark infringement by the Company to the
extent a court finds a likelihood of confusion between the parties marks and
sought an injunction against the Company from using the term "Monster Energy",
as well as damages and other relief. In December 2005, all of the aforesaid
proceedings including the complaint filed by the Company as well as the
complaint filed by Flathead Lake were settled on terms deemed to be favorable to
the Company.
82
Guarantees - The Company from time to time enters into certain types of
contracts that contingently require the Company to indemnify parties against
third party claims. These contracts primarily relate to: (i) certain agreements
with the Company's officers, directors and employees under which the Company may
be required to indemnify such persons for liabilities arising out of their
employment relationship, (ii) certain distribution or purchase agreements under
which the Company may have to indemnify the Company's customers from any claim,
liability or loss arising out of any actual or alleged injury or damages
suffered in connection with the consumption or purchase of the Company's
products, and (iii) certain real estate leases, under which the Company may be
required to indemnify property owners for liabilities and other claims arising
from the Company's use of the applicable premises.
The terms of such obligations vary. Generally, a maximum obligation is not
explicitly stated. Because the obligated amounts of these types of agreements
often are not explicitly stated, the overall maximum amount of the obligations
cannot be reasonably estimated. Further, the Company believes that its insurance
coverage is adequate to cover any liabilities or claims arising out of such
instances referred to above. Historically, the Company has not been obligated to
make significant payments for these obligations and accordingly, the Company has
not valued these obligations on its consolidated balance sheets as of December
31, 2005 and 2004.
9. INCOME TAXES
Components of the income tax provision are as follows:
Year Ended December 31,
2005 2004 2003
---------------- ---------------- ---------------
Current income taxes:
Federal $ 35,273,920 $ 11,305,019 $ 3,386,946
State 7,690,566 2,418,917 802,256
----------------- ---------------- ---------------
42,964,486 13,723,936 4,189,202
Deferred income taxes:
Federal (1,080,085) (218,967) (290,357)
State 134,204 46,424 (70,167)
----------------- ---------------- ---------------
(945,881) (172,543) (360,524)
----------------- ---------------- ---------------
$ 42,018,605 $ 13,551,393 $ 3,828,678
================= ================ ===============
The differences between the income tax provision that would result from
applying the 35% federal statutory rate to income before provision for income
taxes and the reported provision for income taxes are as follows:
Year Ended December 31,
2005 2004 2003
---------------- ---------------- ---------------
Income tax provision using the
statutory rate $ 36,678,103 $ 11,878,369 $ 3,318,088
State taxes, net of federal tax
benefit 5,086,100 1,602,471 521,475
Permanent differences 147,986 74,374 39,895
Rate change 23,735
Other 106,416 (27,556) (50,780)
----------------- ---------------- ---------------
$ 42,018,605 $ 13,551,393 $ 3,828,678
================= ================ ===============
83
Major components of the Company's deferred tax assets (liabilities) at
December 31 are as follows:
2005 2004
------------------- -------------------
Reserve for sales returns $ 266,233 $ 385,371
Reserve for doubtful accounts 82,381 45,838
Reserve for obsolescence 358,196 410,945
Reserves for marketing development fund 1,726,762 1,542,576
Capitalization of inventory costs 183,832 199,462
State franchise tax 2,733,997 1,014,799
Accrued compensation 153,863 109,951
------------------- -------------------
Total deferred tax asset 5,505,264 3,708,942
Amortization of trademarks (4,430,284) (3,857,784)
Depreciation ( 890,746) (583,708)
Amortization of graphic design ( 92,850) (121,947)
------------------- -------------------
Total deferred tax liability (5,413,880) (4,563,439)
------------------- -------------------
Net deferred tax asset (liability) $ 91,384 $ (854,497)
=================== ===================
10. STOCK OPTIONS
The Company has four stock option plans, the Employee Stock Option Plan
(the "Plan"), the Outside Directors Stock Option Plan ("Directors Plan"), the
Hansen Natural Corporation 2001 Stock Option Plan ("2001 Option Plan"), and the
2005 Stock Option Plan for Non-Employee Directors ("2005 Directors Plan").
The Plan, as amended, provided for the granting of options to purchase not
more than 6,000,000 shares of Hansen common stock to key employees of the
Company and its subsidiaries through July 1, 2001. Stock options are exercisable
at such time and in such amounts as determined by the Compensation Committee of
the Board of Directors of the Company up to a ten-year period after their date
of grant, and no options may be granted after July 1, 2001. The option price
will not be less than the fair market value at the date of grant. As of the
expiration date, July 1, 2001, options to purchase 4,191,400 shares of Hansen
common stock had been granted under the Plan, net of options that had expired.
The Directors Plan provides for the grant of options to purchase up to
200,000 shares of common stock of the Company to directors of the Company who
are not and have not been employed by or acted as consultants to the Company and
its subsidiaries or affiliates and who are not and have not been nominated to
the Board of Directors of the Company (the "Board") pursuant to a contractual
arrangement. On the date of the annual meeting of stockholders, at which an
eligible director is initially elected, each eligible director is entitled to
receive a one-time grant of an option to purchase 12,000 shares (24,000 shares
if the director is serving on a committee of the Board) of the Companys common
stock, exercisable one-third each on the first, second and third anniversary of
the date of grant; provided, however, that options granted as of February 14,
1995, are exercisable 66 2/3% on the date of grant and 100% on July 8, 1995;
provided, further, that all options held by an eligible director become fully
and immediately exercisable upon a change in control of the Company. Options
granted under the Directors Plan that are not exercised generally expire ten
years after the date of grant. Option grants may be made under the Directors
Plan for ten years from the effective date of the Directors Plan. The Directors
Plan is a "formula plan" so that a nonemployee directors participation in the
Directors Plan does not affect his status as a "disinterested person" (as
defined in Rule 16b-3 under the Securities Exchange Act of 1934). As of December
31, 2005, options to purchase 96,000 shares of Hansen common stock had been
granted under the Directors Plan and options to purchase 104,000 shares of
Hansen common stock remained available for grant.
84
During 2001, the Company adopted the 2001 Option Plan which provides for
the grant of options to purchase up to 4,000,000 shares of the common stock of
the Company to certain key employees of the Company and its subsidiaries.
Options granted under the 2001 Option Plan may be incentive stock options under
Section 422 of the Internal Revenue Code, as amended (the "Code"), nonqualified
stock options, or stock appreciation rights. Stock options are exercisable at
such time and in such amounts as determined by the Compensation Committee of the
Board of Directors of the Company up to a ten-year period after their date of
grant. As of December 31, 2005, options to purchase 3,918,200 shares of Hansen
common stock had been granted under the 2001 Option Plan and options to purchase
81,800 shares of Hansen common stock remain available for grant under the 2001
Option Plan.
During 2005, the Company adopted the 2005 Hansen Natural Corporation Stock
Option Plan for Non-Employee Directors ("2005 Directors Plan") that provides for
the grant of options to purchase up to an aggregate of 200,000 shares of common
stock of the Company to non-employee directors of the Company. On the date of
the annual meeting of stockholders at which an eligible director is initially
elected, each eligible director is entitled to receive a one-time grant of an
option to purchase 6,000 shares of the Company's common stock exercisable at the
closing price for a share of common stock on the date of grant. Additionally, on
the fifth anniversary of the election of eligible directors elected or appointed
to the Board, and each fifth anniversary thereafter, each eligible director
shall receive an additional grant of an option to purchase 4,800 shares of the
Companys common stock. Options become exercisable in four equal installments,
with the grant immediately vested with respect to 25% of the grant and the
remaining installments vesting on the three successive anniversaries of the date
of grant; provided that all options held by an eligible director become fully
and immediately exercisable upon a change in control of the Company. Options
granted under the 2005 Directors Plan that are not exercised generally expire
ten years after the date of grant. Option grants may be made under the 2005
Directors Plan for ten years from the effective date of the Directors Plan. The
Directors Plan is a "formula plan" so that a non-employee directors
participation in the Directors Plan does not affect his status as a
"disinterested person" (as defined in Rule 16b-3 under the Securities Exchange
Act of 1934). As of December 31, 2005, options to purchase 19,200 shares of
Hansen common stock had been granted under the Directors Plan and options to
purchase 180,800 shares of Hansen common stock remained available for grant.
85
During the years ended December 31, 2005, 2004 and 2003, the Company
granted 1,546,200, 742,000 and 710,000 options to purchase shares under the 2001
Option Plan and the 2005 Directors Plan at a weighted-average grant date fair
value of $21.97, $3.34 and $0.64. Additional information regarding the plans is
as follows:
--------------------------------------------------------------------------------------------
2005 2004 2003
---------------------------- ----------------------------- -------------------------------
Weighted Weighted Weighted
-average -average -average
exercise exercise exercise
Shares price Shares price Shares price
---------------------------- ----------------------------- -------------------------------
Options
outstanding,
beginning of year 2,596,800 $ 3.05 2,939,600 $ 1.94 3,003,800 $ 1.65
Options granted 1,546,200 $ 38.21 742,000 $ 5.70 710,000 $ 2.22
Options exercised (367,400) $ 3.18 (990,000) $ 1.74 (730,200) $ 1.03
Options canceled
or expired (63,000) $ 9.09 (94,800) $ 3.02 (44,000) $ 1.77
----------- ----------- -----------
Options
outstanding,
end of year 3,712,600 $ 8.38 2,596,800 $ 3.05 2,939,600 $ 1.94
=========== =========== ===========
Option price range
end of year $ 1.51 to $ 1.51 to $ 0.57 to
$80.10 $16.25 $4.12
The following table summarizes information about fixed-price stock options
outstanding at December 31, 2005:
------------------------------------------------------------------------------
Options Outstanding Options Exercisable
------------------------------------------------------------------------------
Weighted-
Number average Weighted- Weighted-
outstanding remaining average Number average
Range of exercise at December contractual exercise exercisable at exercise
prices 31, 2005 life (in years) price December 31, 2005 price
------------------------------------------------------------------------------
$1.51 to $ 2.46 1,592,400 6 $ 2.00 827,600 $ 2.04
$4.06 to $ 9.09 527,000 8 $ 4.89 12,000 $ 4.09
$12.51 to $20.45 146,000 8 $ 15.96 10,000 $ 13.57
$26.25 to $29.59 895,000 9 $ 26.30
$42.44 to $49.71 184,000 10 $ 46.99
$67.48 to $80.10 368,200 10 $ 67.82 4,800 $ 67.48
-------------- -------------------
3,712,600 854,400
============== ===================
11. EMPLOYEE BENEFIT PLAN
Employees of Hansen Natural Corporation may participate in the Hansen
Natural Corporation 401(k) Plan, a defined contribution plan, which qualifies
under Section 401(k) of the Internal Revenue Code. Participating employees may
contribute up to 15% of their pretax salary up to statutory limits. The Company
contributes 25% of the employee contribution, up to 8% of each employees
earnings, which vest 20% each year for five years after the first anniversary
date. Matching contributions were $162,659, $98,494 and $70,518 for the years
ended December 31, 2005, 2004 and 2003, respectively.
86
12. RELATED-PARTY TRANSACTIONS
A director of the Company is a partner in a law firm that serves as counsel
to the Company and was a partner in another law firm that previously served as
counsel to the Company. Expenses incurred in connection with services rendered
by such firms to the Company during the years ended December 31, 2005, 2004 and
2003 were $331,880, $173,878 and $59,146, respectively.
A director of the Company is a managing director and Chief Executive
Officer of a company that provided investment banking services to the Company.
Expenses incurred in connection with services rendered by the Sage Group, LLC to
the Company during the year ended December 31, 2005 were $16,293.
Two directors and officers of the Company are principal owners of a company
that provides promotional materials to the Company. Expenses incurred with such
company in connection with promotional materials purchased during the years
ended December 31, 2005, 2004 and 2003 were $748,725, $638,590 and $331,478,
respectively.
13. OPERATING SEGMENTS
The Company has two reportable segments, namely Direct Store Delivery
("DSD"), whose principal products comprise energy drinks, and Warehouse, whose
principal products comprise juice based and soda beverages. The DSD segment
develops, markets and sells products primarily through an exclusive distributor
network whereas the Warehouse segment develops, markets and sells products
primarily direct to retailers. Corporate and unallocated amounts that do not
relate to DSD or Warehouse segments have been allocated to "Corporate &
Unallocated".
The net revenues derived from DSD and Warehouse segments and other
financial information related thereto for the years ended December 31, 2005,
2004 and 2003 are as follows:
87
- ------------------------------------------------------------------------------------------------------------------
Corporate &
Year Ended December 31, 2005 DSD Warehouse Unallocated Total
- ------------------------------------- ---------------- -------------- -------------- ------------------
Net sales $ 270,011,144 $ 78,875,222 $ $ 348,886,366
Contribution margin 112,943,469 6,373,787 119,317,256
Corporate & unallocated expenses (15,873,947) (15,873,947)
Operating income 103,443,309
Net nonoperating income (expense) (34,041) (10,693) 1,396,006 1,351,272
Income before provision for
income taxes 104,794,581
Depreciation & amortization 403,226 30,403 575,000 1,008,629
Trademark amortization 44,060 26,042 70,102
Corporate &
Year Ended December 31, 2004 DSD Warehouse Unallocated Total
- ------------------------------------- ---------------- -------------- -------------- ------------------
Net sales $ 113,050,278 $ 67,573,480 $ (282,623) $ 180,341,135
Contribution margin 41,151,012 4,020,973 45,171,985
Corporate & unallocated expenses (11,285,783) (11,285,783)
Operating income 33,886,202
Net nonoperating income (expense) (22,703) (16,218) 90,916 51,995
Income before provision for
income taxes 33,938,197
Depreciation & amortization 345,096 48,798 376,519 770,413
Trademark amortization 44,060 28,986 73,046
Corporate &
Year Ended December 31, 2003 DSD Warehouse Unallocated Total
- ------------------------------------- ---------------- -------------- -------------- ------------------
Net sales $ 49,468,755 $ 60,884,383 $ (942) $ 110,352,196
Contribution margin 14,872,174 2,411,996 17,284,170
Corporate & unallocated expenses (7,458,075) (7,458,075)
Operating income 9,826,095
Net nonoperating income (expense) (22,545) (44,048) (420) (67,013)
Income before provision for
income taxes 9,759,082
Depreciation & amortization 271,848 56,075 256,274 584,197
Trademark amortization 29,596 32,292 61,888
- ------------------------------------------------------------------------------------------------------------------
The accounting policy for segment information is described in Note 1,
"Organization and Summary of Significant Accounting Policies". All revenue is
derived from sales to external customers. Operating expenses that pertain to
each segment are allocated to the segment concerned.
Corporate and unallocated expenses were $15.9 million for the year ended
December 31, 2005 and included $8.3 million of payroll costs and $2.5 million of
professional service expenses including accounting and legal costs. Corporate
and unallocated expenses were $11.3 million for the year ended December 31, 2004
and included $5.6 million of payroll costs and $2.3 million of professional
service expenses including accounting and legal costs. Corporate and unallocated
expenses were $7.5 million for the year ended December 31, 2003 and included
$4.1 million of payroll costs and $1.0 million of professional service expenses
including accounting and legal costs. Certain items, including operating assets
and income taxes, are not allocated to individual segments and therefore are not
presented above.
88
One customer of the DSD segment made up approximately 18%, 13%, and 8% of
the Company's net revenues for the years ended December 31, 2005, 2004, and 2003
respectively.
The Company's net sales by product line for the years ended December 31,
2005, 2004 and 2003 were as follows:
Product Line 2005 2004 2003
- -------------------------------- ---------------------- -------------------- -------------------
DSD (primarily energy drinks) $ 270,011,144 $ 113,050,278 $ 49,468,755
Non-Carbonated (primarily
juice based beverages) 51,522,955 38,871,923 31,415,692
Carbonated (primarily soda
beverages) 27,352,267 28,418,934 29,467,749
--------------------- -------------------- -------------------
$ 348,886,366 $ 180,341,135 $ 110,352,196
====================== ==================== ===================
14. QUARTERLY FINANCIAL DATA (Unaudited)
Net Income per Common
Share (post-split)
Net Sales Gross Profit Net Income Basic Diluted
----------------- --------------- --------------- --------------- ---------------
Quarter ended:
March 31, 2005 $ 60,014,272 $ 30,329,318 $ 8,844,713 $ 0.40 $ 0.37
June 30, 2005 85,440,555 44,927,078 15,245,698 0.69 0.63
September 30, 2005 105,421,454 55,343,669 20,245,368 0.92 0.83
December 31, 2005 98,010,085 51,943,183 18,440,197 0.84 0.76
----------------- --------------- --------------- -------------- ---------------
$ 348,886,366 $ 182,543,248 $ 62,775,976 $ 2.85 $ 2.59
================= =============== =============== ============== ===============
Quarter ended:
March 31, 2004 $ 31,298,783 $ 13,907,821 $ 2,183,281 $ 0.10 $ 0.09
June 30, 2004 46,063,543 20,758,929 5,078,149 0.24 0.22
September 30, 2004 52,641,477 23,809,208 5,798,648 0.27 0.24
December 31, 2004 50,337,332 24,990,427 7,326,726 0.35 0.31
----------------- --------------- --------------- -------------- ---------------
$ 180,341,135 $ 83,466,385 $ 20,386,804 $ 0.96 $ 0.86
================= =============== =============== ============== ===============
Certain of the figures reported above may differ from previously reported
figures for individual quarters due to rounding.
On August 8, 2005, the common stock of the Company was split on a
two-for-one basis through a 100% stock dividend. Net Income per Common Share
information has been presented to reflect the stock split (Note 1).
89
HANSEN NATURAL CORPORATION AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 2005, 2004 AND 2003
Balance at Charged to Balance at
beginning cost and end of
Description of period expenses Deductions period
- ---------------- --------------------- ------------- --------------- ----------------------
Allowance for doubtful accounts, sales returns and cash discounts:
2005 $ 1,252,101 2,416,828 (2,700,569) $ 968,360
2004 $ 875,351 3,585,153 (3,208,403) $ 1,252,101
2003 $ 1,098,645 2,936,429 (3,159,723) $ 875,351
Inventory reserves:
2005 $ 955,687 74,169 (189,021) $ 840,835
2004 $ 1,236,219 184,472 (465,004) $ 955,687
2003 $ 646,439 589,780 $ 1,236,219
90
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statements No.
33-92526, No. 333-41333, No. 333-89123, No. 333-112482 and No.333-131467 of
Hansen Natural Corporation on Form S-8 of our reports dated March 9, 2006,
relating to the consolidated financial statements and financial statement
schedule of Hansen Natural Corporation and subsidiaries and management's report
on internal control over financial reporting appearing in the Annual Report on
Form 10-K of Hansen Natural Corporation for the year ended December 31, 2005.
/s/ DELOITTE & TOUCHE LLP
Costa Mesa, California
March 9, 2006
91
|
STOCK OPTION AGREEMENT |
This Stock Option Agreement ("Agreement") is made as of March 23, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Michael B. Schott ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation 2001 Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock").
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase up to 25,000 shares of Common Stock, at the purchase price of $52.50 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Natural Group") unless the employment is terminated by a member of the Hansen Natural Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Natural Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(c) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations or satisfactorily perform his duties of employment, insubordination or drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
|
3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, and provided that Holder is employed by a member of the Hansen Natural Group on the relevant date, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
5,000 |
March 23, 2006 |
|
5,000 |
March 23, 2007 |
|
5,000 |
March 23, 2008 |
|
5,000 |
March 23, 2009 |
|
5,000 |
March 23, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(d) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date of this agreement or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $8,000, assuming exercise price of $2.00 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,600 shares of Common Stock to the Company.)
(c) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers ("NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This ISO shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
7. (a) Adjustments. In the event of any change in the outstanding Common Stock of the Company by reason of any stock recapitalization, merger, consolidation, combination or exchange of shares, the kind of shares subject to the ISO and their purchase price per share (but not the number of shares) shall be appropriately adjusted consistent with such change in such manner as the Board of Directors of the Company may deem equitable. In the event of a stock dividend or stock split the kind of shares, their purchase price per share and the number of shares shall be appropriately adjusted, consistent with such change in such manner as the Board of Directors may deem equitable. Any adjustment so made shall be final and binding on Holder. No adjustments shall be made that would have the effect of modifying an ISO under Internal Revenue Code §§ 422 and 424.
(b) Notwithstanding anything else herein to the contrary, upon the occurrence of a change in control (as defined in 7(c) below), 50% of any portion of the option not theretofore exercisable, shall immediately become exercisable and such portion of the option (being the Option to purchase shares of Common Stock subject to the applicable provisions of the Plan and awarded in accordance with the Plan in terms of section 1 above) may, with the consent of the Holder, be purchased by the Company at a fair value (as defined in 7(c) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of Common Stock of the Company multiplied by the number of shares of Common Stock which Holder has the option to purchase in terms of Article 1 above.
Further, notwithstanding anything herein to the contrary if, after the occurrence of a change in control (as defined in 7(c) below) the Holder’s employment by the Hansen Natural group is terminated (unless his employment is terminated by the Hansen Natural group for cause as defined above) and on the date of termination any portion of the option has not theretofore become exercisable, then such remaining portion shall immediately become exercisable and that portion of the option (being the option to purchase shares of common stock subject to the applicable provisions of the plan and awarded in accordance with the plan in terms of section 1 above) may, with the consent of Holder, be purchased by the Company for cash at a price equal to the fair market value (defined in 7(c) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of common stock of the Company multiplied by the number of shares of common stock which Holder has the option to purchase in terms of Article 1 above.
|
(c) |
For the purposes of this Agreement |
| |
|
|
(i) |
"Change in Control" means; | |
(A) the acquisition of "Beneficial Ownership" by any person (as defined in rule 13(d) - 3 under the Securities Exchange Act 1934), corporation or other entity other than the Company or a wholly owned subsidiary of the Company of 50% or more of the outstanding Stock,
(B) the sale or disposition of substantially all of the assets of the Company, or
(C) the merger of the Company with another corporation in which the Common Stock of the Company is no longer outstanding after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for one share of the common Stock of the company on such date.
8. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to him of a certificate or certificates for such shares.
9. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Natural Group nor shall it interfere in any way with the right of any such member to terminate his employment at any time.
10. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors.
|
11. |
Tax Withholding Requirements. The Company shall have the right to require |
Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
12. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
13. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney C. Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 1372 Brys Drive, Grosse Point Woods, Michigan 48236, subject to the right of either party to designate at any time hereafter in writing some other address.
14. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
15. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
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HANSEN NATURAL CORPORATION |
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By: /s/ Rodney C. Sacks |
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|
Title: Chairman of the Board | |
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/s/ Michael B. Schott |
Michael B. Schott
EXHIBIT 31.1
CERTIFICATION PURSUANT TO RULE 13A-14(a) OR 15D-14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934, AS ADOPTED PURSUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, Rodney Sacks, certify that:
|
1. |
I have reviewed this annual report on Form 10-K of Hansen Natural Corporation; |
|
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
|
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
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4. |
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
|
a. |
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
|
b. |
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
|
c. |
evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
|
d. |
disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
|
5. |
The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): |
|
a. |
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
|
b. |
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
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Date: |
March 15, 2006 |
/s/Rodney C. Sacks |
|
|
|
Rodney C. Sacks Chairman of the Board of Directors and Chief Executive Officer |
EXHIBIT 31.2
CERTIFICATION PURSUANT TO RULE 13A-14(a) OR 15D-14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934, AS ADOPTED PURSUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, Hilton Schlosberg, certify that:
|
1. |
I have reviewed this annual report on Form 10-K of Hansen Natural Corporation; |
|
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
|
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
|
4. |
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
|
a. |
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
|
b. |
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
|
c. |
evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
|
d. |
disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
|
5. |
The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): |
|
a. |
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
|
b. |
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
|
Date: |
March 15, 2006 |
/s/ Hilton H. Schlosberg |
|
|
|
Hilton H. Schlosberg Vice Chairman of the Board of Directors, President, Chief Operating Officer, Chief Financial Officer and Secretary |
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report of Hansen Natural Corporation (the "Company") on Form 10-K for the year ended December 31, 2005 as filed with the Securities and Exchange Commission (the "Report"), the undersigned, Rodney C. Sacks, Chairman of the Board of Directors and Chief Executive Officer of the Company, certifies, pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
|
1. |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
|
2. |
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
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Date: |
March 15, 2006 |
/s/ Rodney C. Sacks |
|
|
|
Rodney C. Sacks Chairman of the Board of Directors and Chief Executive Officer |
EXHIBIT 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report of Hansen Natural Corporation (the "Company") on Form 10-K for the year ended December 31, 2005 as filed with the Securities and Exchange Commission (the "Report"), the undersigned, Hilton H. Schlosberg, Vice Chairman of the Board of Directors, President, Chief Operating Officer, Chief Financial Officer and Secretary of the Company, certifies, pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
|
1. |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
|
2. |
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
|
Date: |
March 15, 2006 |
/s/ Hilton H. Schlosberg |
|
|
|
Hilton H. Schlosberg Vice Chairman of the Board of Directors, President, Chief Operating Officer, Chief Financial Officer and Secretary |
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made as of November 5, 2004, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Sydney Selati ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock").
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase 12,000 shares of Common Stock, at the purchase price of $25.80 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Natural Group") unless the employment is terminated by a member of the Hansen Natural Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Natural Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(c) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations or satisfactorily perform his duties of employment, insubordination or drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
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3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, and provided that Holder is employed by a member of the Hansen Natural Group on the relevant date, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
4,000 |
November 5, 2006 |
|
4,000 |
November 5, 2007 |
|
4,000 |
November 5, 2008 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(d) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date of this agreement or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in any of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $8,000, assuming exercise price of $2.00 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,600 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers ("NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This ISO shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) Subject to clause 7(b) below, if the outstanding shares of stock of the Company are increased, decreased, or exchanged for a different number or kind of shares or other securities, or if additional shares or new or different shares or other securities are distributed with respect to such shares of stock or securities, through merger, consolidation, sale of all or substantially all of the property of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other distribution with respect to such shares of stock or other securities, then, to the extent permitted by the Board of the Company, an appropriate and proportionate adjustment shall be made in (1) the maximum number and kind of shares provided in clause 1 above; (2) the number and kind of shares or other securities subject to the outstanding options and tandum SARs, if any; and (3) the price for each share or other unit of any other securities subject to outstanding options without change in the aggregate purchase price or value as to which the options remain exercisable or subject to restrictions. Any adjustment under this clause 7(a) shall be made by the Board of the Company, whose determination as to what adjustments shall be made, if any, and the extent thereof, will be final, binding and conclusive. No fractional interests will be issued under this agreement resulting from any such adjustment.
(b) Notwithstanding anything else herein to the contrary, the Board of the Company may, at any time, in its sole discretion, provide that upon the occurrence of a change in control of the Company (as determined by the Board), all or a specified portion of any outstanding options not theretofore exercisable shall immediately become exercisable and that any option not exercised prior to such change in control shall be canceled.
8. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to her of a certificate or certificates for such shares.
9. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Natural Group nor shall it interfere in any way with the right of any such member to terminate her employment at any time.
10. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors.
11. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
12. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
13. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney C. Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 10 Orchard Road, Suite 200, Lake Forest, California 92630, subject to the right of either party to designate at any time hereafter in writing some other address.
14. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
15. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
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HANSEN NATURAL CORPORATION |
|
By: /s/ Rodney C. Sacks |
|
|
Title: Chairman of the Board | |
|
/s/ Sydney Selati | |
|
Sydney Selati |
|
|
STOCK OPTION AGREEMENT |
This Stock Option Agreement ("Agreement") is made as of March 23, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Rodney C. Sacks ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation 2001 Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock"), subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth below.
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase up to 150,000 shares of Common Stock, at the purchase price of $52.50 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Group") unless the employment is terminated by a member of the Hansen Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(d) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations, drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
|
3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
30,000 |
March 23, 2006 |
|
30,000 |
March 23, 2007 |
|
30,000 |
March 23, 2008 |
|
30,000 |
March 23, 2009 |
|
30,000 |
March 23, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding the above, this ISO shall be fully exercisable in the event Holder's employment with the Hansen Group is terminated by Holder for "Good Reason" (as defined below), or a member of the Hansen Group terminates his employment without "Cause" (as defined above). "Good Reason" means the Holder's termination of employment with the Hansen Group on or after a reduction in his compensation or benefits, his removal as the Company's Chairman of the Board or Chief Executive Officer, or his being assigned duties or responsibilities that are inconsistent with the dignity, importance or scope of his position with the Company.
(d) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(e) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date indicated above or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $7,000, assuming exercise price of $1.75 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,400 shares of Common Stock to the Company.)
(c) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers (NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This ISO shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) If the Company hereafter (i) declares a distribution on its shares in shares, (ii) splits its outstanding shares, (iii) combines its outstanding shares into a smaller number of securities or (iv) issues any shares or other securities by reclassification of its shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing entity), the purchase price in effect at the time of the record date for such distribution or the effective date of such subdivision, combination or reclassification shall be adjusted so that it shall equal the price determined by multiplying the purchase price by a fraction, the denominator of which shall be the number of shares outstanding immediately after giving effect to such action, and the numerator of which shall be the number of shares outstanding immediately prior to such action. Whenever the purchase price payable upon exercise of the ISO is adjusted pursuant to the preceding sentence above, the number of shares purchasable upon exercise of the ISO shall simultaneously be adjusted by multiplying the number of shares issuable upon exercise of the ISO immediately prior to the event which causes the adjustment by the purchase price in effect immediately prior to the event which causes the adjustment and dividing the product so obtained by the purchase price, as adjusted. Such adjustments shall be made successively whenever any event listed above shall occur.
(b) If, at any time, as a result of an adjustment made pursuant to paragraph 7(a) above, the Holder shall become entitled to receive any securities of the Company other than shares, the number of such other securities so receivable upon exercise of the ISO shall thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares contained in paragraph 7(a) above.
(c) If any other event contemplated in Section 10(a) of the Plan occurs, adjustments to the number and kind of shares subject to this ISO and/or to the purchase price for each share subject to this ISO may be made in accordance with Section 10(a) of the Plan.
(d) No adjustments shall be made under this Section 7 that would have the effect of modifying this ISO under Internal Revenue Code §§ 422 or 424.
(e) Whenever the purchase price or the number of shares is adjusted, as herein provided, Hansen shall within 10 business days of the event causing such adjustment give a notice setting forth the adjusted purchase price and adjusted number of shares issuable upon exercise of the ISO to be mailed to the Holder.
(f) Notwithstanding anything else herein to the contrary, upon the occurrence of a change in control (as defined in (g) below), the option or any portion thereof not theretofore exercisable, shall immediately become exercisable in its entirety and the option (being the option to purchase shares of Common Stock subject to the applicable provisions of the Plan and awarded in accordance with the Plan in terms of section 1 above) may, with the consent of Holder, be purchased by the Company for cash at a price equal to the fair market value (as defined in 7(g) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of Common Stock of the Company multiplied by the number of shares of Common Stock which Holder has the option to purchase in terms of Article 1 above.
|
(g) |
For the purposes of this agreement |
| |
|
|
(i) |
"Change in Control" means; | |
(A) the acquisition of "Beneficial Ownership" by any person (as defined in rule 13 (d) - 3 under the Securities Exchange Act 1934), corporation or other entity other than the Company or a wholly owned subsidiary of the Company of 20% or more of the outstanding Stock,
(B) the sale or disposition of substantially all of the assets of the Company, or
(C) the merger of the Company with another corporation in which the Common Stock of the Company is no longer outstanding after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for one share of the Common Stock of the Company on such date.
8. The provisions of Section 5(b) (iii) of the Plan, regarding the execution of a shareholder's agreement as a condition precedent to the Company's obligation to issue shares under the Plan, shall not apply to the ISO or any shares issued pursuant to the ISO.
9. The Company represents and warrants to Holder that (a) there are no options to purchase the Company's Common Stock, containing the same or substantially the same terms as the ISO, which are actively traded on an established market within the meaning of Internal Revenue Code §83 and the regulations promulgated thereunder; and (b) the shares of the Company's Common Stock issued upon exercise of the ISO, when issued in accordance with the terms hereof, will be duly authorized, validly issued, fully paid and nonassessable. The Company shall reserve and keep reserved out of its authorized shares of Common Stock the number of shares of Common Stock that may be issuable from time to time upon exercise of the ISO.
10. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to him of a certificate or certificates for such shares.
11. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Group nor shall it interfere in any way with the right of any such member to terminate his employment at any time.
12. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors. The Company agrees to use its reasonable efforts to obtain any necessary listing, registration, qualification, consent, approval or agreement as expeditiously as possible, and the term of this ISO shall be extended until 30 days following the date such listing, registration, qualification, consent, approval or agreement is effected or obtained. Moreover, this ISO may not be exercised if its exercise or the receipt of shares of Common Stock pursuant thereto would be contrary to applicable law.
13. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
14. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
15. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Hilton Schlosberg with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 14 Vienne, Irvine, California 92606, subject to the right of either party to designate at any time hereafter in writing some other address.
16. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
17. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
By: /s/ Hilton H. Schlosberg
|
Title: Vice Chairman |
|
/s/ Rodney C. Sacks |
Rodney C. Sacks
|
STOCK OPTION AGREEMENT |
This Stock Option Agreement ("Agreement") is made as of March 23, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Hilton H. Schlosberg ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation 2001 Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock"), subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth below.
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase up to 150,000 shares of Common Stock, at the purchase price of $52.50 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Group") unless the employment is terminated by a member of the Hansen Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(d) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations, drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
|
3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
30,000 |
March 23, 2006 |
|
30,000 |
March 23, 2007 |
|
30,000 |
March 23, 2008 |
|
30,000 |
March 23, 2009 |
|
30,000 |
March 23, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding the above, this ISO shall be fully exercisable in the event Holder's employment with the Hansen Group is terminated by Holder for "Good Reason" (as defined below), or a member of the Hansen Group terminates his employment without "Cause" (as defined above). "Good Reason" means the Holder's termination of employment with the Hansen Group on or after a reduction in his compensation or benefits, his removal as the Company's Vice Chairman of the Board of Directors, President, Chief Operating Officer, Chief Financial Officer or Secretary, or his being assigned duties or responsibilities that are inconsistent with the dignity, importance or scope of his position with the Company.
(d) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(e) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date indicated above or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $7,000, assuming exercise price of $1.75 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,400 shares of Common Stock to the Company.)
(c) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers (NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This ISO shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) If the Company hereafter (i) declares a distribution on its shares in shares, (ii) splits its outstanding shares, (iii) combines its outstanding shares into a smaller number of securities or (iv) issues any shares or other securities by reclassification of its shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing entity), the purchase price in effect at the time of the record date for such distribution or the effective date of such subdivision, combination or reclassification shall be adjusted so that it shall equal the price determined by multiplying the purchase price by a fraction, the denominator of which shall be the number of shares outstanding immediately after giving effect to such action, and the numerator of which shall be the number of shares outstanding immediately prior to such action. Whenever the purchase price payable upon exercise of the ISO is adjusted pursuant to the preceding sentence above, the number of shares purchasable upon exercise of the ISO shall simultaneously be adjusted by multiplying the number of shares issuable upon exercise of the ISO immediately prior to the event which causes the adjustment by the purchase price in effect immediately prior to the event which causes the adjustment and dividing the product so obtained by the purchase price, as adjusted. Such adjustments shall be made successively whenever any event listed above shall occur.
(b) If, at any time, as a result of an adjustment made pursuant to paragraph 7(a) above, the Holder shall become entitled to receive any securities of the Company other than shares, the number of such other securities so receivable upon exercise of the ISO shall thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares contained in paragraph 7(a) above.
(c) If any other event contemplated in Section 10(a) of the Plan occurs, adjustments to the number and kind of shares subject to this ISO and/or to the purchase price for each share subject to this ISO may be made in accordance with Section 10(a) of the Plan.
(d) No adjustments shall be made under this Section 7 that would have the effect of modifying this ISO under Internal Revenue Code §§ 422 or 424.
(e) Whenever the purchase price or the number of shares is adjusted, as herein provided, Hansen shall within 10 business days of the event causing such adjustment give a notice setting forth the adjusted purchase price and adjusted number of shares issuable upon exercise of the ISO to be mailed to the Holder.
(f) Notwithstanding anything else herein to the contrary, upon the occurrence of a change in control (as defined in (g) below), the option or any portion thereof not theretofore exercisable, shall immediately become exercisable in its entirety and the option (being the option to purchase shares of Common Stock subject to the applicable provisions of the Plan and awarded in accordance with the Plan in terms of section 1 above) may, with the consent of Holder, be purchased by the Company for cash at a price equal to the fair market value (as defined in 7(g) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of Common Stock of the Company multiplied by the number of shares of Common Stock which Holder has the option to purchase in terms of Article 1 above.
|
(g) |
For the purposes of this agreement |
| |
|
|
(i) |
"Change in Control" means; | |
(A) the acquisition of "Beneficial Ownership" by any person (as defined in rule 13 (d) - 3 under the Securities Exchange Act 1934), corporation or other entity other than the Company or a wholly owned subsidiary of the Company of 20% or more of the outstanding Stock,
(B) the sale or disposition of substantially all of the assets of the Company, or
(C) the merger of the Company with another corporation in which the Common Stock of the Company is no longer outstanding after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for one share of the Common Stock of the Company on such date.
8. The provisions of Section 5(b) (iii) of the Plan, regarding the execution of a shareholder's agreement as a condition precedent to the Company's obligation to issue shares under the Plan, shall not apply to the ISO or any shares issued pursuant to the ISO.
9. The Company represents and warrants to Holder that (a) there are no options to purchase the Company's Common Stock, containing the same or substantially the same terms as the ISO, which are actively traded on an established market within the meaning of Internal Revenue Code §83 and the regulations promulgated thereunder; and (b) the shares of the Company's Common Stock issued upon exercise of the ISO, when issued in accordance with the terms hereof, will be duly authorized, validly issued, fully paid and nonassessable. The Company shall reserve and keep reserved out of its authorized shares of Common Stock the number of shares of Common Stock that may be issuable from time to time upon exercise of the ISO.
10. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to him of a certificate or certificates for such shares.
11. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Group nor shall it interfere in any way with the right of any such member to terminate his employment at any time.
12. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors. The Company agrees to use its reasonable efforts to obtain any necessary listing, registration, qualification, consent, approval or agreement as expeditiously as possible, and the term of this ISO shall be extended until 30 days following the date such listing, registration, qualification, consent, approval or agreement is effected or obtained. Moreover, this ISO may not be exercised if its exercise or the receipt of shares of Common Stock pursuant thereto would be contrary to applicable law.
13. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
14. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
15. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 2 Nidden, Irvine, California 92715, subject to the right of either party to designate at any time hereafter in writing some other address.
16. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
17. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
By: /s/ Rodney C. Sacks
|
/s/ Hilton H. Schlosberg |
Chairman/Chief Executive Officer |
Hilton H. Schlosberg
|
STOCK OPTION AGREEMENT |
This Stock Option Agreement ("Agreement") is made as of March 23, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Mark J. Hall ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation 2001 Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock").
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase up to 100,000 shares of Common Stock, at the purchase price of $52.50 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Natural Group") unless the employment is terminated by a member of the Hansen Natural Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Natural Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(c) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations or satisfactorily perform his duties of employment, insubordination or drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
|
3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, and provided that Holder is employed by a member of the Hansen Natural Group on the relevant date, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
20,000 |
March 23, 2006 |
|
20,000 |
March 23, 2007 |
|
20,000 |
March 23, 2008 |
|
20,000 |
March 23, 2009 |
|
20,000 |
March 23, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(d) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date of this agreement or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in any of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $8,000, assuming exercise price of $2.00 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,600 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers ("NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
|
6. |
Nontransferability. |
This ISO shall not be transferable other than by will or by the |
laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) In the event of any change in the outstanding Common Stock of the Company by reason of any stock recapitalization, merger, consolidation, combination or exchange of shares, the kind of shares subject to the ISO and their purchase price per share (but not the number of shares) shall be appropriately adjusted consistent with such change in such manner as the Board of Directors of the Company may deem equitable. In the event of a stock dividend or stock split the kind of shares, their purchase price per share and the number of shares shall be appropriately adjusted, consistent with such change in such manner as the Board of Directors may deem equitable. Any adjustment so made shall be final and binding on Holder. No adjustments shall be made that would have the effect of modifying an ISO under Internal Revenue Code §§ 422 and 424.
(b) Notwithstanding anything else herein to the contrary, upon the occurrence of a change in control (as defined in 7(c) below), any portion of the option not theretofore excercisable, shall immediately become exercisable in its entirety and the option (being the Option to purchase shares of Common Stock subject to the applicable provisions of the Plan and awarded in accordance with the Plan in terms of section 1 above) may, with the consent of Holder, be purchased by the Company for cash at a price equal to the fair market value (as defined in 7(c) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of Common Stock of the Company multiplied by the number of shares of Common Stock which Holder has the option to purchase in terms of Article 1 above.
|
(c) |
For the purposes of this Agreement |
| ||||
|
|
(i) |
"Change in Control" means; |
| |||
|
|
(A) |
the acquisition of "Beneficial Ownership" by any person (as | ||||
defined in rule 13(d) - 3 under the Securities Exchange Act 1934), corporation or other entity other than the Company or a wholly owned subsidiary of the Company of 50% or more of the outstanding Stock,
(B) the sale or disposition of substantially all of the assets of the Company, or
(C) the merger of the Company with another corporation in which the Common Stock of the Company is no longer outstanding after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for one share of the common Stock of the company on such date.
8. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to him of a certificate or certificates for such shares.
9. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Natural Group nor shall it interfere in any way with the right of any such member to terminate his employment at any time.
10. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors.
11. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
12. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
13. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney C. Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 22433 Stanley Lane, Wildomar, California 92595, subject to the right of either party to designate at any time hereafter in writing some other address.
14. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
15. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
|
|
By: /s/ Rodney C. Sacks |
| |||
|
|
Title: Chairman of the Board | ||||
|
/s/ Mark J. Hall |
| ||||
|
|
Mark J. Hall |
| |||
|
STOCK OPTION AGREEMENT |
This Stock Option Agreement ("Agreement") is made as of September 28, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Mark J. Hall ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation 2001 Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock").
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase up to 25,000 shares of Common Stock, at the purchase price of $43.79 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Natural Group") unless the employment is terminated by a member of the Hansen Natural Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Natural Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(c) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations or satisfactorily perform his duties of employment, insubordination or drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
|
3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, and provided that Holder is employed by a member of the Hansen Natural Group on the relevant date, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
5,000 |
September 28, 2006 |
|
5,000 |
September 28, 2007 |
|
5,000 |
September 28, 2008 |
|
5,000 |
September 28, 2009 |
|
5,000 |
September 28, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(d) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date of this agreement or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in any of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $8,000, assuming exercise price of $2.00 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,600 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers ("NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
|
6. |
Nontransferability. |
This ISO shall not be transferable other than by will or by the laws |
of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) In the event of any change in the outstanding Common Stock of the Company by reason of any stock recapitalization, merger, consolidation, combination or exchange of shares, the kind of shares subject to the ISO and their purchase price per share (but not the number of shares) shall be appropriately adjusted consistent with such change in such manner as the Board of Directors of the Company may deem equitable. In the event of a stock dividend or stock split the kind of shares, their purchase price per share and the number of shares shall be appropriately adjusted, consistent with such change in such manner as the Board of Directors may deem equitable. Any adjustment so made shall be final and binding on Holder. No adjustments shall be made that would have the effect of modifying an ISO under Internal Revenue Code §§ 422 and 424.
(b) Notwithstanding anything else herein to the contrary, upon the occurrence of a change in control (as defined in 7(c) below), any portion of the option not theretofore excercisable, shall immediately become exercisable in its entirety and the option (being the Option to purchase shares of Common Stock subject to the applicable provisions of the Plan and awarded in accordance with the Plan in terms of section 1 above) may, with the consent of Holder, be purchased by the Company for cash at a price equal to the fair market value (as defined in 7(c) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of Common Stock of the Company multiplied by the number of shares of Common Stock which Holder has the option to purchase in terms of Article 1 above.
|
(c) |
For the purposes of this Agreement |
| ||||
|
|
(i) |
"Change in Control" means; |
| |||
|
|
(A) |
the acquisition of "Beneficial Ownership" by any person (as | ||||
defined in rule 13(d) - 3 under the Securities Exchange Act 1934), corporation or other entity other than the Company or a wholly owned subsidiary of the Company of 50% or more of the outstanding Stock,
(B) the sale or disposition of substantially all of the assets of the Company, or
(C) the merger of the Company with another corporation in which the Common Stock of the Company is no longer outstanding after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for one share of the common Stock of the company on such date.
8. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to him of a certificate or certificates for such shares.
9. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Natural Group nor shall it interfere in any way with the right of any such member to terminate his employment at any time.
10. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors.
11. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
12. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
13. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney C. Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 22433 Stanley Lane, Wildomar, California 92595, subject to the right of either party to designate at any time hereafter in writing some other address.
14. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
15. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
|
|
By: /s/ Rodney C. Sacks |
| |||
|
|
Title: Chairman of the Board | ||||
|
/s/ Mark J. Hall |
| ||||
|
|
Mark J. Hall |
| |||
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made as of November 1, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Kirk Blower ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock").
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase 2,000 shares of Common Stock, at the purchase price of $49.71 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Natural Group") unless the employment is terminated by a member of the Hansen Natural Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Natural Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(c) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations or satisfactorily perform his duties of employment, insubordination or drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
|
3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, and provided that Holder is employed by a member of the Hansen Natural Group on the relevant date, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
400 |
November 1, 2006 |
|
400 |
November 1, 2007 |
|
400 |
November 1, 2008 |
|
400 |
November 1, 2009 |
|
400 |
November 1, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(d) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date of this agreement or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in any of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $8,000, assuming exercise price of $2.00 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,600 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers ("NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This ISO shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) Subject to clause 7(b) below, if the outstanding shares of stock of the Company are increased, decreased, or exchanged for a different number or kind of shares or other securities, or if additional shares or new or different shares or other securities are distributed with respect to such shares of stock or securities, through merger, consolidation, sale of all or substantially all of the property of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other distribution with respect to such shares of stock or other securities, then, to the extent permitted by the Board of the Company, an appropriate and proportionate adjustment shall be made in (1) the maximum number and kind of shares provided in clause 1 above; (2) the number and kind of shares or other securities subject to the outstanding options and tandum SARs, if any; and (3) the price for each share or other unit of any other securities subject to outstanding options without change in the aggregate purchase price or value as to which the options remain exercisable or subject to restrictions. Any adjustment under this clause 7(a) shall be made by the Board of the Company, whose determination as to what adjustments shall be made, if any, and the extent thereof, will be final, binding and conclusive. No fractional interests will be issued under this agreement resulting from any such adjustment.
(b) Notwithstanding anything else herein to the contrary, the Board of the Company may, at any time, in its sole discretion, provide that upon the occurrence of a change in control of the Company (as determined by the Board), all or a specified portion of any outstanding options not theretofore exercisable shall immediately become exercisable and that any option not exercised prior to such change in control shall be canceled.
8. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to her of a certificate or certificates for such shares.
9. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Natural Group nor shall it interfere in any way with the right of any such member to terminate her employment at any time.
10. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors.
11. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
12. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
13. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney C. Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 3 Promontory, Dove Canyon, California 92679, subject to the right of either party to designate at any time hereafter in writing some other address.
14. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
15. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
|
By: /s/ Rodney C. Sacks |
|
|
Title: Chairman of the Board | |
|
/s/ Kirk Blower |
| |
|
|
Kirk Blower | |
STOCK OPTION AGREEMENT
|
This STOCK OPTION AGREEMENT (“Agreement”) is made as of November 11, 2005 |
by and between HANSEN NATURAL CORPORATION, a Delaware corporation (the “Company”), and Harold Taber (“Holder”).
Preliminary Recitals
A. Holder is a member of the Board of Directors of the Company (the “Board”) who: (i) is not an employee of the Company or one of its subsidiaries or affiliates, (ii) does not serve as a consultant of the Company or its subsidiaries or affiliates and (iii) the Company is not contractually obligated to nominate as a member of the Board.
B. Pursuant to the 2005 Hansen Natural Corporation Stock Option Plan For Non-Employee Directors, (the “Plan”), the Company desires to grant Holder a stock option to purchase shares of the Company’s common stock, par value $.005 per share (the “Common Stock”), subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth below.
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the stock option (the “Option”) to purchase up to 4,800 shares of Common Stock, at the purchase price of $67.48 per share (the “Exercise Price”), such Option to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The Option shall expire on the date which is the earlier of (x) ten (10) years after the date of grant or (y) three (3) months after the termination of the Holder’s membership on the Board unless the Holder’s membership on the Board terminates by reason of the death or Total Disability (as defined below) of holder. If the Holder’s membership on the Board terminates due to his death or Total Disability, then the Option may be exercised to the extent vested at any time, or from time to time, within twelve (12) months after the date of termination, but not later than the expiration date specified in Section 3 (c) below, by Holder or the person or persons to which Holder’s rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators. For purposes of this Agreement, “Total Disability” means the complete and permanent inability of Holder to perform all of his duties as a director, as determined by the Board upon the basis of such evidence, including independent medical reports and data, as the Board deems appropriate or necessary.
|
3. |
Exercise of Option. |
(a) Subject to the other terms of this Agreement regarding the exercisability of the Option, the Option may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B:
|
|
Column “A” |
Column “B” |
| |
|
Number of Shares |
Exercise Date | |||
|
|
1,200 |
November 11, 2005 | ||
|
|
1,200 |
May 1, 2006 |
| |
|
|
1,200 |
May 1, 2007 |
| |
|
|
1,200 |
May 1, 2008 |
| |
|
4,800 |
| |||
(b) This Option may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this Option is being exercised (the “Option Shares”). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this Option shall expire on November 11, 2015.
4. Payment of Exercise Price. At the time of any exercise of the Option the Exercise Price of the Option Shares shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (the shares of Common Stock to be used as payment shall be valued as of the date of exercise of the Option at the Closing Price as defined below. For example, if Holder exercises the Option for 1,200 shares at a total Exercise Price of $60,000, assuming an Exercise Price of $50.00 per share, and the Closing Price is $70.00, he may pay for the 1,200 Option Shares by transferring 857 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the Company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term “Closing Price” means, with respect to the Company’s Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers (“NASD”), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System (“NASDAQ”) or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the Option there shall be a valid and effective registration statement under the Securities Act of 1933 (“’33 Act”) and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the Option give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company’s counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the ’33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This Option shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this Option shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) Subject to Section 7(b) below, in the event of any change in the outstanding Common Stock by reason of any stock recapitalization, merger, consolidation, combination or exchange of shares, the kind of shares subject to the Option and their purchase price per share (but not the number of shares) shall be appropriately adjusted consistent with such change in such manner as the Board may deem equitable. In the event of a stock dividend or stock split the kind of shares, their purchase price per share and the number of shares shall be appropriately adjusted, consistent with such change in such manner as the Board may deem equitable. Any adjustment so made shall be final and binding.
(b) Notwithstanding anything else herein to the contrary, upon the occurrence of a Change in Control (as defined in the Plan), the Option or any portion thereof not theretofore exercisable, shall immediately become exercisable in its entirety and the Option may be purchased by the Company for cash at a price equal to the Fair Market Value (as defined in the Plan) of the Option as determined in good faith by the Board.
8. Reservation of Shares. The Company shall reserve and keep reserved out of its authorized shares of Common Stock the number of shares of Common Stock that may be issuable from time to time upon exercise of the Option.
9. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this Option prior to the date of issuance to him of a certificate or certificates for such shares.
10. No Right to Continue Membership on Board. This Agreement shall not confer upon Holder any right with respect to continuance on the Board nor shall it interfere in any way with the rights of Holder to terminate his membership on the Board at any time.
11. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board shall determine that (I) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this Option may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board. Moreover, this Option may not be exercised if its exercise or the receipt of shares of Common Stock pursuant thereto would be contrary to applicable law.
12. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
13. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this Option and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
14. Notices. Any notice hereunder to the Company shall be addressed to it at its offices at 1010 Railroad Street, Corona, California 92882, Attention: Rodney Sacks, and any notice to Holder shall be addressed to him at 1421 Brighton Street, La Habra, California 90631, subject to the right of either party to designate at any time hereafter in writing some other address.
15. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall e effective unless in writing specifically referring hereto, and signed by both parties.
16. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement, both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
|
By: /s/ Rodney C. Sacks |
|
|
Name: Rodney C. Sacks |
|
|
Title: Chairman of the Board | |
HOLDER
|
/s/ Harold Taber |
Harold Taber
STOCK OPTION AGREEMENT
|
This STOCK OPTION AGREEMENT (“Agreement”) is made as of November 11, 2005 |
by and between HANSEN NATURAL CORPORATION, a Delaware corporation (the “Company”), and Norman Epstein (“Holder”).
Preliminary Recitals
A. Holder is a member of the Board of Directors of the Company (the “Board”) who: (i) is not an employee of the Company or one of its subsidiaries or affiliates, (ii) does not serve as a consultant of the Company or its subsidiaries or affiliates and (iii) the Company is not contractually obligated to nominate as a member of the Board.
B. Pursuant to the 2005 Hansen Natural Corporation Stock Option Plan For Non-Employee Directors, (the “Plan”), the Company desires to grant Holder a stock option to purchase shares of the Company’s common stock, par value $.005 per share (the “Common Stock”), subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth below.
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the stock option (the “Option”) to purchase up to 4,800 shares of Common Stock, at the purchase price of $67.48 per share (the “Exercise Price”), such Option to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The Option shall expire on the date which is the earlier of (x) ten (10) years after the date of grant or (y) three (3) months after the termination of the Holder’s membership on the Board unless the Holder’s membership on the Board terminates by reason of the death or Total Disability (as defined below) of holder. If the Holder’s membership on the Board terminates due to his death or Total Disability, then the Option may be exercised to the extent vested at any time, or from time to time, within twelve (12) months after the date of termination, but not later than the expiration date specified in Section 3 (c) below, by Holder or the person or persons to which Holder’s rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators. For purposes of this Agreement, “Total Disability” means the complete and permanent inability of Holder to perform all of his duties as a director, as determined by the Board upon the basis of such evidence, including independent medical reports and data, as the Board deems appropriate or necessary.
|
3. |
Exercise of Option. |
(a) Subject to the other terms of this Agreement regarding the exercisability of the Option, the Option may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B:
|
|
Column “A” |
Column “B” |
| |
|
Number of Shares |
Exercise Date | |||
|
|
1,200 |
November 11, 2005 | ||
|
|
1,200 |
May 1, 2006 |
| |
|
|
1,200 |
May 1, 2007 |
| |
|
|
1,200 |
May 1, 2008 |
| |
|
4,800 |
| |||
(b) This Option may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this Option is being exercised (the “Option Shares”). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this Option shall expire on November 11, 2015.
4. Payment of Exercise Price. At the time of any exercise of the Option the Exercise Price of the Option Shares shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (the shares of Common Stock to be used as payment shall be valued as of the date of exercise of the Option at the Closing Price as defined below. For example, if Holder exercises the Option for 1,200 shares at a total Exercise Price of $60,000, assuming an Exercise Price of $50.00 per share, and the Closing Price is $70.00, he may pay for the 1,200 Option Shares by transferring 857 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the Company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term “Closing Price” means, with respect to the Company’s Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers (“NASD”), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System (“NASDAQ”) or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the Option there shall be a valid and effective registration statement under the Securities Act of 1933 (“’33 Act”) and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the Option give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company’s counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the ’33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This Option shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this Option shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) Subject to Section 7(b) below, in the event of any change in the outstanding Common Stock by reason of any stock recapitalization, merger, consolidation, combination or exchange of shares, the kind of shares subject to the Option and their purchase price per share (but not the number of shares) shall be appropriately adjusted consistent with such change in such manner as the Board may deem equitable. In the event of a stock dividend or stock split the kind of shares, their purchase price per share and the number of shares shall be appropriately adjusted, consistent with such change in such manner as the Board may deem equitable. Any adjustment so made shall be final and binding.
(b) Notwithstanding anything else herein to the contrary, upon the occurrence of a Change in Control (as defined in the Plan), the Option or any portion thereof not theretofore exercisable, shall immediately become exercisable in its entirety and the Option may be purchased by the Company for cash at a price equal to the Fair Market Value (as defined in the Plan) of the Option as determined in good faith by the Board.
8. Reservation of Shares. The Company shall reserve and keep reserved out of its authorized shares of Common Stock the number of shares of Common Stock that may be issuable from time to time upon exercise of the Option.
9. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this Option prior to the date of issuance to him of a certificate or certificates for such shares.
10. No Right to Continue Membership on Board. This Agreement shall not confer upon Holder any right with respect to continuance on the Board nor shall it interfere in any way with the rights of Holder to terminate his membership on the Board at any time.
11. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board shall determine that (I) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this Option may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board. Moreover, this Option may not be exercised if its exercise or the receipt of shares of Common Stock pursuant thereto would be contrary to applicable law.
12. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
13. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this Option and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
14. Notices. Any notice hereunder to the Company shall be addressed to it at its offices at 1010 Railroad Street, Corona, California 92882, Attention: Rodney Sacks, and any notice to Holder shall be addressed to him at Cheval Acceptances, Stanmore House, 2nd Floor, 15/19 Church Road, Stanmore, Middlesex HA7 4AR, subject to the right of either party to designate at any time hereafter in writing some other address.
15. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall e effective unless in writing specifically referring hereto, and signed by both parties.
16. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement, both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
|
By: /s/ Rodney C. Sacks |
|
|
Name: Rodney C. Sacks |
|
|
Title: Chairman of the Board | |
HOLDER
|
/s/ Norman Epstein |
Norman Epstein
STOCK OPTION AGREEMENT
|
This STOCK OPTION AGREEMENT (“Agreement”) is made as of November 11, 2005 |
by and between HANSEN NATURAL CORPORATION, a Delaware corporation (the “Company”), and Mark Vidergauz (“Holder”).
Preliminary Recitals
A. Holder is a member of the Board of Directors of the Company (the “Board”) who: (i) is not an employee of the Company or one of its subsidiaries or affiliates, (ii) does not serve as a consultant of the Company or its subsidiaries or affiliates and (iii) the Company is not contractually obligated to nominate as a member of the Board.
B. Pursuant to the 2005 Hansen Natural Corporation Stock Option Plan For Non-Employee Directors, (the “Plan”), the Company desires to grant Holder a stock option to purchase shares of the Company’s common stock, par value $.005 per share (the “Common Stock”), subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth below.
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the stock option (the “Option”) to purchase up to 4,800 shares of Common Stock, at the purchase price of $67.48 per share (the “Exercise Price”), such Option to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The Option shall expire on the date which is the earlier of (x) ten (10) years after the date of grant or (y) three (3) months after the termination of the Holder’s membership on the Board unless the Holder’s membership on the Board terminates by reason of the death or Total Disability (as defined below) of holder. If the Holder’s membership on the Board terminates due to his death or Total Disability, then the Option may be exercised to the extent vested at any time, or from time to time, within twelve (12) months after the date of termination, but not later than the expiration date specified in Section 3 (c) below, by Holder or the person or persons to which Holder’s rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators. For purposes of this Agreement, “Total Disability” means the complete and permanent inability of Holder to perform all of his duties as a director, as determined by the Board upon the basis of such evidence, including independent medical reports and data, as the Board deems appropriate or necessary.
|
3. |
Exercise of Option. |
(a) Subject to the other terms of this Agreement regarding the exercisability of the Option, the Option may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B:
|
|
Column “A” |
Column “B” |
| |
|
Number of Shares |
Exercise Date | |||
|
|
1,200 |
November 11, 2005 | ||
|
|
1,200 |
May 1, 2006 |
| |
|
|
1,200 |
May 1, 2007 |
| |
|
|
1,200 |
May 1, 2008 |
| |
|
4,800 |
| |||
(b) This Option may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this Option is being exercised (the “Option Shares”). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this Option shall expire on November 11, 2015.
4. Payment of Exercise Price. At the time of any exercise of the Option the Exercise Price of the Option Shares shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (the shares of Common Stock to be used as payment shall be valued as of the date of exercise of the Option at the Closing Price as defined below. For example, if Holder exercises the Option for 1,200 shares at a total Exercise Price of $60,000, assuming an Exercise Price of $50.00 per share, and the Closing Price is $70.00, he may pay for the 1,200 Option Shares by transferring 857 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the Company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term “Closing Price” means, with respect to the Company’s Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers (“NASD”), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System (“NASDAQ”) or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the Option there shall be a valid and effective registration statement under the Securities Act of 1933 (“’33 Act”) and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the Option give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company’s counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the ’33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This Option shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this Option shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) Subject to Section 7(b) below, in the event of any change in the outstanding Common Stock by reason of any stock recapitalization, merger, consolidation, combination or exchange of shares, the kind of shares subject to the Option and their purchase price per share (but not the number of shares) shall be appropriately adjusted consistent with such change in such manner as the Board may deem equitable. In the event of a stock dividend or stock split the kind of shares, their
purchase price per share and the number of shares shall be appropriately adjusted, consistent with such change in such manner as the Board may deem equitable. Any adjustment so made shall be final and binding.
(b) Notwithstanding anything else herein to the contrary, upon the occurrence of a Change in Control (as defined in the Plan), the Option or any portion thereof not theretofore exercisable, shall immediately become exercisable in its entirety and the Option may be purchased by the Company for cash at a price equal to the Fair Market Value (as defined in the Plan) of the Option as determined in good faith by the Board.
8. Reservation of Shares. The Company shall reserve and keep reserved out of its authorized shares of Common Stock the number of shares of Common Stock that may be issuable from time to time upon exercise of the Option.
9. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this Option prior to the date of issuance to him of a certificate or certificates for such shares.
10. No Right to Continue Membership on Board. This Agreement shall not confer upon Holder any right with respect to continuance on the Board nor shall it interfere in any way with the rights of Holder to terminate his membership on the Board at any time.
11. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board shall determine that (I) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this Option may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board. Moreover, this Option may not be exercised if its exercise or the receipt of shares of Common Stock pursuant thereto would be contrary to applicable law.
12. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
13. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this Option and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
14. Notices. Any notice hereunder to the Company shall be addressed to it at its offices at 1010 Railroad Street, Corona, California 92882, Attention: Rodney Sacks, and any notice to Holder shall be addressed to him at Sage Group LLC, 11111 Santa Monica Boulevard, Suite 2200, Los Angeles, California 90025, subject to the right of either party to designate at any time hereafter in writing some other address.
15. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall e effective unless in writing specifically referring hereto, and signed by both parties.
16. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement, both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
|
By: /s/ Rodney C. Sacks |
| |
|
Name:Rodney C. Sacks |
| |
|
Title: Chairman of the Board | ||
HOLDER
/s/ Mark Vidergauz
Mark Vidergauz
STOCK OPTION AGREEMENT
|
This STOCK OPTION AGREEMENT (“Agreement”) is made as of November 11, 2005 |
by and between HANSEN NATURAL CORPORATION, a Delaware corporation (the “Company”), and Benjamin Polk (“Holder”).
Preliminary Recitals
A. Holder is a member of the Board of Directors of the Company (the “Board”) who: (i) is not an employee of the Company or one of its subsidiaries or affiliates, (ii) does not serve as a consultant of the Company or its subsidiaries or affiliates and (iii) the Company is not contractually obligated to nominate as a member of the Board.
B. Pursuant to the 2005 Hansen Natural Corporation Stock Option Plan For Non-Employee Directors, (the “Plan”), the Company desires to grant Holder a stock option to purchase shares of the Company’s common stock, par value $.005 per share (the “Common Stock”), subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth below.
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the stock option (the “Option”) to purchase up to 4,800 shares of Common Stock, at the purchase price of $67.48 per share (the “Exercise Price”), such Option to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The Option shall expire on the date which is the earlier of (x) ten (10) years after the date of grant or (y) three (3) months after the termination of the Holder’s membership on the Board unless the Holder’s membership on the Board terminates by reason of the death or Total Disability (as defined below) of holder. If the Holder’s membership on the Board terminates due to his death or Total Disability, then the Option may be exercised to the extent vested at any time, or from time to time, within twelve (12) months after the date of termination, but not later than the expiration date specified in Section 3 (c) below, by Holder or the person or persons to which Holder’s rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators. For purposes of this Agreement, “Total Disability” means the complete and permanent inability of Holder to perform all of his duties as a director, as determined by the Board upon the basis of such evidence, including independent medical reports and data, as the Board deems appropriate or necessary.
|
3. |
Exercise of Option. |
(a) Subject to the other terms of this Agreement regarding the exercisability of the Option, the Option may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B:
|
|
Column “A” |
Column “B” |
| |
|
Number of Shares |
Exercise Date | |||
|
|
1,200 |
November 11, 2005 | ||
|
|
1,200 |
May 1, 2006 |
| |
|
|
1,200 |
May 1, 2007 |
| |
|
|
1,200 |
May 1, 2008 |
| |
|
4,800 |
| |||
(b) This Option may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this Option is being exercised (the “Option Shares”). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this Option shall expire on November 11, 2015.
4. Payment of Exercise Price. At the time of any exercise of the Option the Exercise Price of the Option Shares shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (the shares of Common Stock to be used as payment shall be valued as of the date of exercise of the Option at the Closing Price as defined below. For example, if Holder exercises the Option for 1,200 shares at a total Exercise Price of $60,000, assuming an Exercise Price of $50.00 per share, and the Closing Price is $70.00, he may pay for the 1,200 Option Shares by transferring 857 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the Company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term “Closing Price” means, with respect to the Company’s Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers (“NASD”), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System (“NASDAQ”) or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the Option there shall be a valid and effective registration statement under the Securities Act of 1933 (“’33 Act”) and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the Option give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company’s counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the ’33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This Option shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this Option shall be exercisable only by Holder.
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7. |
Adjustments. |
(a) Subject to Section 7(b) below, in the event of any change in the outstanding Common Stock by reason of any stock recapitalization, merger, consolidation, combination or exchange of shares, the kind of shares subject to the Option and their purchase price per share (but not the number of shares) shall be appropriately adjusted consistent with such change in such manner as the Board may deem equitable. In the event of a stock dividend or stock split the kind of shares, their purchase price per share and the number of shares shall be appropriately adjusted, consistent with such change in such manner as the Board may deem equitable. Any adjustment so made shall be final and binding.
(b) Notwithstanding anything else herein to the contrary, upon the occurrence of a Change in Control (as defined in the Plan), the Option or any portion thereof not theretofore exercisable, shall immediately become exercisable in its entirety and the Option may be purchased by the Company for cash at a price equal to the Fair Market Value (as defined in the Plan) of the Option as determined in good faith by the Board.
8. Reservation of Shares. The Company shall reserve and keep reserved out of its authorized shares of Common Stock the number of shares of Common Stock that may be issuable from time to time upon exercise of the Option.
9. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this Option prior to the date of issuance to him of a certificate or certificates for such shares.
10. No Right to Continue Membership on Board. This Agreement shall not confer upon Holder any right with respect to continuance on the Board nor shall it interfere in any way with the rights of Holder to terminate his membership on the Board at any time.
11. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board shall determine that (I) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this Option may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board. Moreover, this Option may not be exercised if its exercise or the receipt of shares of Common Stock pursuant thereto would be contrary to applicable law.
12. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
13. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this Option and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
14. Notices. Any notice hereunder to the Company shall be addressed to it at its offices at 1010 Railroad Street, Corona, California 92882, Attention: Rodney Sacks, and any notice to Holder shall be addressed to him at Schulte Roth & Zabel LLP 919 Third Avenue, New York, NY 10022, subject to the right of either party to designate at any time hereafter in writing some other address.
15. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall e effective unless in writing specifically referring hereto, and signed by both parties.
16. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement, both as of the day and year first above written.
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HANSEN NATURAL CORPORATION |
By: /s/ Rodney C. Sacks Name: Rodney C. Sacks
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Title: Chairman of the Board |
HOLDER
|
/s/Benjamin Polk |
Benjamin Polk
SCHEDULE A
HANSEN NATURAL CORPORATION
NOTATIONS AS TO PARTIAL OR INSTALLMENT
EXERCISE OF STOCK OPTION
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Number of |
Balance of |
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Date of |
Shares |
Shares on |
Authorized |
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Exercise |
Purchased |
Option |
Signature |
Notation Date | |||
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STOCK OPTION AGREEMENT |
This Stock Option Agreement ("Agreement") is made as of November 11, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Hilton H. Schlosberg ("Holder").
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|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation 2001 Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock"), subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth below.
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase up to 150,000 shares of Common Stock, at the purchase price of $67.48 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Group") unless the employment is terminated by a member of the Hansen Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(d) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations, drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
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3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
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|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
30,000 |
November 11, 2006 |
|
30,000 |
November 11, 2007 |
|
30,000 |
November 11, 2008 |
|
30,000 |
November 11, 2009 |
|
30,000 |
November 11, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding the above, this ISO shall be fully exercisable in the event Holder's employment with the Hansen Group is terminated by Holder for "Good Reason" (as defined below), or a member of the Hansen Group terminates his employment without "Cause" (as defined above). "Good Reason" means the Holder's termination of employment with the Hansen Group on or after a reduction in his compensation or benefits, his removal as the Company's Vice Chairman of the Board of Directors, President, Chief Operating Officer, Chief Financial Officer or Secretary, or his being assigned duties or responsibilities that are inconsistent with the dignity, importance or scope of his position with the Company.
(d) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(e) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date indicated above or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $7,000, assuming exercise price of $1.75 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,400 shares of Common Stock to the Company.)
(c) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers (NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This ISO shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
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7. |
Adjustments. |
(a) If the Company hereafter (i) declares a distribution on its shares in shares, (ii) splits its outstanding shares, (iii) combines its outstanding shares into a smaller number of securities or (iv) issues any shares or other securities by reclassification of its shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing entity), the purchase price in effect at the time of the record date for such distribution or the effective date of such subdivision, combination or reclassification shall be adjusted so that it shall equal the price determined by multiplying the purchase price by a fraction, the denominator of which shall be the number of shares outstanding immediately after giving effect to such action, and the numerator of which shall be the number of shares outstanding immediately prior to such action. Whenever the purchase price payable upon exercise of the ISO is adjusted pursuant to the preceding sentence above, the number of shares purchasable upon exercise of the ISO shall simultaneously be adjusted by multiplying the number of shares issuable upon exercise of the ISO immediately prior to the event which causes the adjustment by the purchase price in effect immediately prior to the event which causes the adjustment and dividing the product so obtained by the purchase price, as adjusted. Such adjustments shall be made successively whenever any event listed above shall occur.
(b) If, at any time, as a result of an adjustment made pursuant to paragraph 7(a) above, the Holder shall become entitled to receive any securities of the Company other than shares, the number of such other securities so receivable upon exercise of the ISO shall thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares contained in paragraph 7(a) above.
(c) If any other event contemplated in Section 10(a) of the Plan occurs, adjustments to the number and kind of shares subject to this ISO and/or to the purchase price for each share subject to this ISO may be made in accordance with Section 10(a) of the Plan.
(d) No adjustments shall be made under this Section 7 that would have the effect of modifying this ISO under Internal Revenue Code §§ 422 or 424.
(e) Whenever the purchase price or the number of shares is adjusted, as herein provided, Hansen shall within 10 business days of the event causing such adjustment give a notice setting forth the adjusted purchase price and adjusted number of shares issuable upon exercise of the ISO to be mailed to the Holder.
(f) Notwithstanding anything else herein to the contrary, upon the occurrence of a change in control (as defined in (g) below), the option or any portion thereof not theretofore exercisable, shall immediately become exercisable in its entirety and the option (being the option to purchase shares of Common Stock subject to the applicable provisions of the Plan and awarded in accordance with the Plan in terms of section 1 above) may, with the consent of Holder, be purchased by the Company for cash at a price equal to the fair market value (as defined in 7(g) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of Common Stock of the Company multiplied by the number of shares of Common Stock which Holder has the option to purchase in terms of Article 1 above.
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(g) |
For the purposes of this agreement |
| |
|
|
(i) |
"Change in Control" means; | |
(A) the acquisition of "Beneficial Ownership" by any person (as defined in rule 13 (d) - 3 under the Securities Exchange Act 1934), corporation or other entity other than the Company or a wholly owned subsidiary of the Company of 20% or more of the outstanding Stock,
(B) the sale or disposition of substantially all of the assets of the Company, or
(C) the merger of the Company with another corporation in which the Common Stock of the Company is no longer outstanding after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for one share of the Common Stock of the Company on such date.
8. The provisions of Section 5(b) (iii) of the Plan, regarding the execution of a shareholder's agreement as a condition precedent to the Company's obligation to issue shares under the Plan, shall not apply to the ISO or any shares issued pursuant to the ISO.
9. The Company represents and warrants to Holder that (a) there are no options to purchase the Company's Common Stock, containing the same or substantially the same terms as the ISO, which are actively traded on an established market within the meaning of Internal Revenue Code §83 and the regulations promulgated thereunder; and (b) the shares of the Company's Common Stock issued upon exercise of the ISO, when issued in accordance with the terms hereof, will be duly authorized, validly issued, fully paid and nonassessable. The Company shall reserve and keep reserved out of its authorized shares of Common Stock the number of shares of Common Stock that may be issuable from time to time upon exercise of the ISO.
10. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to him of a certificate or certificates for such shares.
11. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Group nor shall it interfere in any way with the right of any such member to terminate his employment at any time.
12. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors. The Company agrees to use its reasonable efforts to obtain any necessary listing, registration, qualification, consent, approval or agreement as expeditiously as possible, and the term of this ISO shall be extended until 30 days following the date such listing, registration, qualification, consent, approval or agreement is effected or obtained. Moreover, this ISO may not be exercised if its exercise or the receipt of shares of Common Stock pursuant thereto would be contrary to applicable law.
13. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
14. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
15. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 2 Nidden, Irvine, California 92603, subject to the right of either party to designate at any time hereafter in writing some other address.
16. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
17. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
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HANSEN NATURAL CORPORATION |
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By: /s/ Rodney C. Sacks |
| |
|
/s/ Hilton H. Schlosberg |
Chairman/Chief Executive Officer | ||
Hilton H. Schlosberg
|
STOCK OPTION AGREEMENT |
This Stock Option Agreement ("Agreement") is made as of November 11, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Mark J. Hall ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation 2001 Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock").
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase up to 25,000 shares of Common Stock, at the purchase price of $67.48 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Natural Group") unless the employment is terminated by a member of the Hansen Natural Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Natural Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(c) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations or satisfactorily perform his duties of employment, insubordination or drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
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3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, and provided that Holder is employed by a member of the Hansen Natural Group on the relevant date, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
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|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
5,000 |
November 11, 2006 |
|
5,000 |
November 11, 2007 |
|
5,000 |
November 11, 2008 |
|
5,000 |
November 11, 2009 |
|
5,000 |
November 11, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(d) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date of this agreement or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in any of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $8,000, assuming exercise price of $2.00 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,600 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers ("NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
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6. |
Nontransferability. |
This ISO shall not be transferable other than by will or by the laws |
of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) In the event of any change in the outstanding Common Stock of the Company by reason of any stock recapitalization, merger, consolidation, combination or exchange of shares, the kind of shares subject to the ISO and their purchase price per share (but not the number of shares) shall be appropriately adjusted consistent with such change in such manner as the Board of Directors of the Company may deem equitable. In the event of a stock dividend or stock split the kind of shares, their purchase price per share and the number of shares shall be appropriately adjusted, consistent with such change in such manner as the Board of Directors may deem equitable. Any adjustment so made shall be final and binding on Holder. No adjustments shall be made that would have the effect of modifying an ISO under Internal Revenue Code §§ 422 and 424.
(b) Notwithstanding anything else herein to the contrary, upon the occurrence of a change in control (as defined in 7(c) below), any portion of the option not theretofore excercisable, shall immediately become exercisable in its entirety and the option (being the Option to purchase shares of Common Stock subject to the applicable provisions of the Plan and awarded in accordance with the Plan in terms of section 1 above) may, with the consent of Holder, be purchased by the Company for cash at a price equal to the fair market value (as defined in 7(c) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of Common Stock of the Company multiplied by the number of shares of Common Stock which Holder has the option to purchase in terms of Article 1 above.
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(c) |
For the purposes of this Agreement |
| ||||
|
|
(i) |
"Change in Control" means; |
| |||
|
|
(A) |
the acquisition of "Beneficial Ownership" by any person (as | ||||
defined in rule 13(d) - 3 under the Securities Exchange Act 1934), corporation or other entity other than the Company or a wholly owned subsidiary of the Company of 50% or more of the outstanding Stock,
(B) the sale or disposition of substantially all of the assets of the Company, or
(C) the merger of the Company with another corporation in which the Common Stock of the Company is no longer outstanding after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for one share of the common Stock of the company on such date.
8. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to him of a certificate or certificates for such shares.
9. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Natural Group nor shall it interfere in any way with the right of any such member to terminate his employment at any time.
10. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors.
11. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
12. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
13. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney C. Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 22433 Stanley Lane, Wildomar, California 92595, subject to the right of either party to designate at any time hereafter in writing some other address.
14. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
15. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
|
|
By:/s/ Rodney C. Sacks |
| |||
|
|
Title: Chairman of the Board | ||||
|
/s/Mark J. Hall |
| ||||
|
|
Mark J. Hall |
| |||
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made as of November 11, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Thomas J. Kelly ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock").
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase 2,000 shares of Common Stock, at the purchase price of $67.48 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Natural Group") unless the employment is terminated by a member of the Hansen Natural Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Natural Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(c) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations or satisfactorily perform his duties of employment, insubordination or drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
|
3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, and provided that Holder is employed by a member of the Hansen Natural Group on the relevant date, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
400 |
November 11, 2006 |
|
400 |
November 11, 2007 |
|
400 |
November 11, 2008 |
|
400 |
November 11, 2009 |
|
400 |
November 11, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(d) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date of this agreement or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in any of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $8,000, assuming exercise price of $2.00 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,600 shares of Common Stock to the Company.)
(c) By delivering a properly executed exercise notice together with irrevocable instructions to a broker to deliver promptly to the company the amount of sale or loan proceeds necessary to pay the purchase price and applicable withholding taxes, and such other documents as the Committee may determine.
(d) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers ("NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This ISO shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) Subject to clause 7(b) below, if the outstanding shares of stock of the Company are increased, decreased, or exchanged for a different number or kind of shares or other securities, or if additional shares or new or different shares or other securities are distributed with respect to such shares of stock or securities, through merger, consolidation, sale of all or substantially all of the property of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other distribution with respect to such shares of stock or other securities, then, to the extent permitted by the Board of the Company, an appropriate and proportionate adjustment shall be made in (1) the maximum number and kind of shares provided in clause 1 above; (2) the number and kind of shares or other securities subject to the outstanding options and tandum SARs, if any; and (3) the price for each share or other unit of any other securities subject to outstanding options without change in the aggregate purchase price or value as to which the options remain exercisable or subject to restrictions. Any adjustment under this clause 7(a) shall be made by the Board of the Company, whose determination as to what adjustments shall be made, if any, and the extent thereof, will be final, binding and conclusive. No fractional interests will be issued under this agreement resulting from any such adjustment.
(b) Notwithstanding anything else herein to the contrary, the Board of the Company may, at any time, in its sole discretion, provide that upon the occurrence of a change in control of the Company (as determined by the Board), all or a specified portion of any outstanding options not theretofore exercisable shall immediately become exercisable and that any option not exercised prior to such change in control shall be canceled.
8. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to her of a certificate or certificates for such shares.
9. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Natural Group nor shall it interfere in any way with the right of any such member to terminate her employment at any time.
10. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors.
11. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
12. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
13. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney C. Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 4472 Torrey Pines Drive, Chino Hills, CA 91709, subject to the right of either party to designate at any time hereafter in writing some other address.
14. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
15. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
|
By: /s/Rodney C. Sacks |
|
|
Title: Chairman of the Board | |
|
|
/s/Thomas Kelly | |
|
Thomas Kelly |
| |
|
STOCK OPTION AGREEMENT |
This Stock Option Agreement ("Agreement") is made as of November 11, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Rodney C. Sacks ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation 2001 Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock"), subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth below.
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase up to 150,000 shares of Common Stock, at the purchase price of $67.48 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Group") unless the employment is terminated by a member of the Hansen Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(d) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations, drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
|
3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
30,000 |
November 11, 2006 |
|
30,000 |
November 11, 2007 |
|
30,000 |
November 11, 2008 |
|
30,000 |
November 11, 2009 |
|
30,000 |
November 11, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding the above, this ISO shall be fully exercisable in the event Holder's employment with the Hansen Group is terminated by Holder for "Good Reason" (as defined below), or a member of the Hansen Group terminates his employment without "Cause" (as defined above). "Good Reason" means the Holder's termination of employment with the Hansen Group on or after a reduction in his compensation or benefits, his removal as the Company's Chairman of the Board or Chief Executive Officer, or his being assigned duties or responsibilities that are inconsistent with the dignity, importance or scope of his position with the Company.
(d) Notwithstanding anything else herein to the contrary, this ISO shall expire ten years from the date of this agreement.
(e) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date indicated above or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $7,000, assuming exercise price of $1.75 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,400 shares of Common Stock to the Company.)
(c) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers (NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This ISO shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
|
7. |
Adjustments. |
(a) If the Company hereafter (i) declares a distribution on its shares in shares, (ii) splits its outstanding shares, (iii) combines its outstanding shares into a smaller number of securities or (iv) issues any shares or other securities by reclassification of its shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing entity), the purchase price in effect at the time of the record date for such distribution or the effective date of such subdivision, combination or reclassification shall be adjusted so that it shall equal the price determined by multiplying the purchase price by a fraction, the denominator of which shall be the number of shares outstanding immediately after giving effect to such action, and the numerator of which shall be the number of shares outstanding immediately prior to such action. Whenever the purchase price payable upon exercise of the ISO is adjusted pursuant to the preceding sentence above, the number of shares purchasable upon exercise of the ISO shall simultaneously be adjusted by multiplying the number of shares issuable upon exercise of the ISO immediately prior to the event which causes the adjustment by the purchase price in effect immediately prior to the event which causes the adjustment and dividing the product so obtained by the purchase price, as adjusted. Such adjustments shall be made successively whenever any event listed above shall occur.
(b) If, at any time, as a result of an adjustment made pursuant to paragraph 7(a) above, the Holder shall become entitled to receive any securities of the Company other than shares, the number of such other securities so receivable upon exercise of the ISO shall thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares contained in paragraph 7(a) above.
(c) If any other event contemplated in Section 10(a) of the Plan occurs, adjustments to the number and kind of shares subject to this ISO and/or to the purchase price for each share subject to this ISO may be made in accordance with Section 10(a) of the Plan.
(d) No adjustments shall be made under this Section 7 that would have the effect of modifying this ISO under Internal Revenue Code §§ 422 or 424.
(e) Whenever the purchase price or the number of shares is adjusted, as herein provided, Hansen shall within 10 business days of the event causing such adjustment give a notice setting forth the adjusted purchase price and adjusted number of shares issuable upon exercise of the ISO to be mailed to the Holder.
(f) Notwithstanding anything else herein to the contrary, upon the occurrence of a change in control (as defined in (g) below), the option or any portion thereof not theretofore exercisable, shall immediately become exercisable in its entirety and the option (being the option to purchase shares of Common Stock subject to the applicable provisions of the Plan and awarded in accordance with the Plan in terms of section 1 above) may, with the consent of Holder, be purchased by the Company for cash at a price equal to the fair market value (as defined in 7(g) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of Common Stock of the Company multiplied by the number of shares of Common Stock which Holder has the option to purchase in terms of Article 1 above.
|
(g) |
For the purposes of this agreement |
| |
|
|
(i) |
"Change in Control" means; | |
(A) the acquisition of "Beneficial Ownership" by any person (as defined in rule 13 (d) - 3 under the Securities Exchange Act 1934), corporation or other entity other than the Company or a wholly owned subsidiary of the Company of 20% or more of the outstanding Stock,
(B) the sale or disposition of substantially all of the assets of the Company, or
(C) the merger of the Company with another corporation in which the Common Stock of the Company is no longer outstanding after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for one share of the Common Stock of the Company on such date.
8. The provisions of Section 5(b) (iii) of the Plan, regarding the execution of a shareholder's agreement as a condition precedent to the Company's obligation to issue shares under the Plan, shall not apply to the ISO or any shares issued pursuant to the ISO.
9. The Company represents and warrants to Holder that (a) there are no options to purchase the Company's Common Stock, containing the same or substantially the same terms as the ISO, which are actively traded on an established market within the meaning of Internal Revenue Code §83 and the regulations promulgated thereunder; and (b) the shares of the Company's Common Stock issued upon exercise of the ISO, when issued in accordance with the terms hereof, will be duly authorized, validly issued, fully paid and nonassessable. The Company shall reserve and keep reserved out of its authorized shares of Common Stock the number of shares of Common Stock that may be issuable from time to time upon exercise of the ISO.
10. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to him of a certificate or certificates for such shares.
11. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Group nor shall it interfere in any way with the right of any such member to terminate his employment at any time.
12. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors. The Company agrees to use its reasonable efforts to obtain any necessary listing, registration, qualification, consent, approval or agreement as expeditiously as possible, and the term of this ISO shall be extended until 30 days following the date such listing, registration, qualification, consent, approval or agreement is effected or obtained. Moreover, this ISO may not be exercised if its exercise or the receipt of shares of Common Stock pursuant thereto would be contrary to applicable law.
13. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
14. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
15. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Hilton Schlosberg with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 14 Vienne, Irvine, California 92606, subject to the right of either party to designate at any time hereafter in writing some other address.
16. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
17. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
|
HANSEN NATURAL CORPORATION |
|
|
By: Hilton H. Schlosberg | ||
|
|
Title: Vice Chairman |
| |
|
/s/ Rodney C. Sacks |
| ||
Rodney C. Sacks
|
STOCK OPTION AGREEMENT |
This Stock Option Agreement ("Agreement") is made as of November 11, 2005, by and between Hansen Natural Corporation, a Delaware corporation (the "Company"), and Michael B. Schott ("Holder").
|
|
Preliminary Recitals |
| |
|
A. |
Holder is an employee of the Company or one of its subsidiaries or affiliates. | ||
B. Pursuant to the Hansen Natural Corporation 2001 Stock Option Plan (the "Plan"), the Company desires to grant Holder an incentive stock option to purchase shares of the Company's common stock, par value $.005 per share (the "Common Stock").
|
NOW, THEREFORE, the Company and Holder agree as follows: |
1. Grant of Incentive Stock Option. The Company hereby grants to Holder, subject to the terms and conditions set forth herein, the incentive stock option ("ISO") to purchase up to 12,000 shares of Common Stock, at the purchase price of $67.48 per share, such ISO to be exercisable and exercised as hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the termination of the Holder's employment with the Company and its subsidiaries and affiliates (the "Hansen Natural Group") unless the employment is terminated by a member of the Hansen Natural Group for Cause (as defined below) or unless the employment is terminated by reason of the death or Total Disability (as defined below) of Holder. If the Holder's employment is terminated by a member of the Hansen Natural Group for Cause, the ISO shall expire as of the date employment terminates. If the Holder's employment terminates due to his death or Total Disability, then the ISO may be exercised by Holder or the person or persons to which Holder's rights under this Agreement pass by will, or if no such person has such right, by his executors or administrators, within six months after the date of death or Total Disability, but no later than the expiration date specified in Section 3(c) below. "Cause" means the Holder's act of fraud or dishonesty, knowing and material failure to comply with applicable laws or regulations or satisfactorily perform his duties of employment, insubordination or drug or alcohol abuse, as determined by the Committee of the Hansen Natural Corporation Stock Option Plan (the "Committee"). "Total Disability" means the complete and permanent inability of Holder to perform all of his duties of employment with the Company, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary.
|
3. |
Exercise of Option |
(a) Subject to the other terms of this Agreement regarding the exercisability of the ISO, and provided that Holder is employed by a member of the Hansen Natural Group on the relevant date, the ISO may only be exercised in respect of the number of shares listed in column A from and after the exercise dates listed in column B,
|
|
Column "A" |
Column "B" |
| |
|
Number of Shares |
Exercise Date | |||
|
2,400 |
November 11, 2006 |
|
2,400 |
November 11, 2007 |
|
2,400 |
November 11, 2008 |
|
2,400 |
November 11, 2009 |
|
2,400 |
November 11, 2010 |
(b) This ISO may be exercised, to the extent exercisable by its terms, from time to time in whole or in part at any time prior to the expiration thereof. Any exercise shall be accompanied by a written notice to the Company specifying the number of shares as to which this ISO is being exercised (the "Option Shares"). Notations of any partial exercise or installment exercise, shall be made by the Company on Schedule A hereto.
|
(c) |
Notwithstanding anything else herein to the contrary, this ISO shall expire ten years |
from the date of this agreement.
(d) The Holder hereby agrees to notify the Company in writing in the event shares acquired pursuant to the exercise of this ISO are transferred, other than by will or by the laws of descent and distribution, within two years after the date of this agreement or within one year after the issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise of the ISO the purchase price of the ISO shall be paid in full to the Company in either of the following ways or in any combination of the following ways:
|
(a) |
By check or other immediately available funds. |
(b) With property consisting of shares of Common Stock. (The shares of Common Stock to be used as payment shall be valued as of the date of exercise of the ISO at the Closing Price as defined below. For example, if Holder exercises the option for 4,000 shares at a total Exercise Price of $8,000, assuming exercise price of $2.00 per share, and the Closing Price is $5.00, he may pay for the 4,000 Option Shares by transferring 1,600 shares of Common Stock to the Company.)
(c) For purposes of this Agreement, the term "Closing Price" means, with respect to the Company's Common Stock, the last sale price regular-way or, in case no such sale takes place on such date, the average of the closing bid and asked prices regular-way on the principal national securities exchange on which the securities are listed or admitted to trading; or, if they are not listed or admitted to trading on any national securities exchange, the last sale price of the securities on the consolidated transaction reporting system of the National Association of Securities Dealers ("NASD"), if such last sale information is reported on such system or, if not so reported, the average of the closing bid and asked prices of the securities on the National Association of Securities Dealers Automatic Quotation System ("NASDAQ") or any comparable system or, if the securities are not listed on NASDAQ or a comparable system, the average of the closing bid and asked prices as furnished by two members of the NASD selected from time to time by the Company for that purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of exercise of the ISO there shall be a valid and effective registration statement under the Securities Act of 1933 ("'33 Act") and appropriate qualification and registration under applicable state securities laws relating to the Option Shares being acquired, Holder shall upon exercise of the ISO give a representation that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the resale or distribution of any such shares. In the absence of such registration statement, Holder shall execute a written affirmation, in a form reasonably satisfactory to the Company, of such investment intent. Holder further agrees that he will not sell or transfer any Option Shares until he requests and receives an opinion of the Company's counsel or other counsel reasonably satisfactory to the Company to the effect that such proposed sale or transfer will not result in a violation of the '33 Act, or a registration statement covering the sale or transfer of the shares has been declared effective by the Securities and Exchange Commission, or he obtains a no-action letter from the Securities and Exchange Commission with respect to the proposed transfer.
6. Nontransferability. This ISO shall not be transferable other than by will or by the laws of descent and distribution. During the lifetime of Holder, this ISO shall be exercisable only by Holder.
7. (a) Adjustments. In the event of any change in the outstanding Common Stock of the Company by reason of any stock recapitalization, merger, consolidation, combination or exchange of shares, the kind of shares subject to the ISO and their purchase price per share (but not the number of shares) shall be appropriately adjusted consistent with such change in such manner as the Board of Directors of the Company may deem equitable. In the event of a stock dividend or stock split the kind of shares, their purchase price per share and the number of shares shall be appropriately adjusted, consistent with such change in such manner as the Board of Directors may deem equitable. Any adjustment so made shall be final and binding on Holder. No adjustments shall be made that would have the effect of modifying an ISO under Internal Revenue Code §§ 422 and 424.
(b) Notwithstanding anything else herein to the contrary, upon the occurrence of a change in control (as defined in 7(c) below), 50% of any portion of the option not theretofore exercisable, shall immediately become exercisable and such portion of the option (being the Option to purchase shares of Common Stock subject to the applicable provisions of the Plan and awarded in accordance with the Plan in terms of section 1 above) may, with the consent of the Holder, be purchased by the Company at a fair value (as defined in 7(c) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of Common Stock of the Company multiplied by the number of shares of Common Stock which Holder has the option to purchase in terms of Article 1 above.
Further, notwithstanding anything herein to the contrary if, after the occurrence of a change in control (as defined in 7(c) below) the Holder’s employment by the Hansen Natural group is terminated (unless his employment is terminated by the Hansen Natural group for cause as defined above) and on the date of termination any portion of the option has not theretofore become exercisable, then such remaining portion shall immediately become exercisable and that portion of the option (being the option to purchase shares of common stock subject to the applicable provisions of the plan and awarded in accordance with the plan in terms of section 1 above) may, with the consent of Holder, be purchased by the Company for cash at a price equal to the fair market value (defined in 7(c) below) less the purchase price payable by Holder to exercise the option as set out in Article 1 above for one (1) share of common stock of the Company multiplied by the number of shares of common stock which Holder has the option to purchase in terms of Article 1 above.
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(c) |
For the purposes of this Agreement |
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(i) |
"Change in Control" means; | |
(A) the acquisition of "Beneficial Ownership" by any person (as defined in rule 13(d) - 3 under the Securities Exchange Act 1934), corporation or other entity other than the Company or a wholly owned subsidiary of the Company of 50% or more of the outstanding Stock,
(B) the sale or disposition of substantially all of the assets of the Company, or
(C) the merger of the Company with another corporation in which the Common Stock of the Company is no longer outstanding after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for one share of the common Stock of the company on such date.
8. No Rights as Stockholder. Holder shall have no rights as a stockholder with respect to any shares of Common Stock subject to this ISO prior to the date of issuance to him of a certificate or certificates for such shares.
9. No Right to Continue Employment. This Agreement shall not confer upon Holder any right with respect to continuance of employment with any member of the Hansen Natural Group nor shall it interfere in any way with the right of any such member to terminate his employment at any time.
10. Compliance With Law and Regulation. This Agreement and the obligation of the Company to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any government or regulatory agency as may be required. If at any time the Board of Directors of the Company shall determine that (i) the listing, registration or qualification of the shares of Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body, is necessary or desirable as a condition of or in connection with the issue or purchase of shares of Common Stock hereunder, this ISO may not be exercised in whole or in part unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Board of Directors.
11. Tax Withholding Requirements. The Company shall have the right to require Holder to remit to the Company an amount sufficient to satisfy any federal, state or local withholding tax requirements prior to the delivery of any certificate or certificates for Common Stock.
12. Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of stock shall be issued upon the exercise of this ISO and the Company shall not be under any obligation to compensate Holder in any way for such fractional shares.
13. Notices. Any notice hereunder to the Company shall be addressed to it at its office at 1010 Railroad Street, Corona, California 92882, Attention: Rodney C. Sacks with a copy to Benjamin Polk, Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, and any notice hereunder to Holder shall be addressed to him at 618 Canterbury Road, Grosse Point Woods, Michigan 48236, subject to the right of either party to designate at any time hereafter in writing some other address.
14. Amendment. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by both parties.
15. Governing Law. This Agreement shall be construed according to the laws of the State of Delaware and all provisions hereof shall be administered according to and its validity shall be determined under, the laws of such State, except where preempted by federal laws.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Hansen Natural Corporation has caused this Agreement to be executed by a duly authorized officer and Holder has executed this Agreement both as of the day and year first above written.
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HANSEN NATURAL CORPORATION |
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By: /s/Rodney C. Sacks |
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Title: Chairman of the Board | |
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/s/Michael B. Schott |
Michael B. Schott
FIRST MODIFICATION TO THE AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This First Modification to the Amended and Restated Loan and Security Agreement (this "Modification") is entered into July 15, 2005 by and between Hansen Beverage Company, a Delaware corporation, ("Borrower") and COMERICA BANK ("Bank"), whose Western Division Headquarters is located at 333 West Santa Clara Street, San Jose, California.
RECITALS
This Modification is entered into upon the basis of the following facts and understandings of the parties, which facts and understandings are acknowledged by the parties to be true and accurate:
Bank and Borrower previously entered into an Amended and Restated Loan and Security Agreement dated December 1, 2004. The Amended and Restated Credit Agreement, as so modified, and as such may be otherwise modified, amended, restated, revised, supplemented or replaced from time to time prior to the date hereof shall collectively be referred to herein as the “Agreement.”
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as set forth below.
AGREEMENT
1. Incorporation by Reference. The Recitals and the documents referred to therein are incorporated herein by this reference. Except as otherwise noted, the terms not defined herein shall have the meaning set forth in the Agreement.
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2. |
Modification to the Agreement. Subject to the satisfaction of the conditions precedent as set forth in Section 3 hereof, the Agreement is hereby modified as set forth below. |
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A. |
Section 3.1 of the Agreement is hereby amended by deleting it in its entirety and replacing it with the following: |
“3.1 This Agreement shall remain in full force and effect until June 1, 2007, unless earlier terminated by notice by Borrower. Notice of such termination by Borrower shall be effectuated by mailing a registered or certified letter not less than thirty (30) days prior to the effective date of such termination, addressed to Bank at the address set forth herein and the termination shall be effective as of the date so fixed in such notice.”
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3. |
Legal Effect. |
a. Except as specifically set forth in this Modification, all of the terms and conditions of the Agreement remain in full force and effect. Except as expressly set forth herein, the execution, delivery, and performance of this Modification shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. Borrower ratifies and reaffirms the continuing effectiveness of all promissory notes, guaranties, security agreements, mortgages, deeds of trust, environmental agreements, and all other instruments, documents and agreements entered into in connection with the Agreement.
b. Borrower represents and warrants that each of the representations and warranties contained in the Agreement are true and correct as of the date of this Agreement, and that no Event of Default has occurred and is continuing.
c. The effectiveness of this Modification and each of the documents, instruments and agreements entered into in connection with this Modification is conditioned upon receipt by Bank of this Modification and any other documents which Bank may require to carry out the terms hereof.
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4. |
Miscellaneous Provisions. |
a. This is an integrated Modification and supersedes all prior negotiations and agreements regarding the subject matter hereof. All Modifications hereto must be in writing and signed by the parties.
b. This Modification may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have agreed as the date first set forth above. |
HANSEN BEVERAGE COMPANY,
a Delaware corporation
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By: /s/ Rodney C. Sacks |
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Name: Rodney C. Sacks |
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Title: Chairman of the Board |
COMERICA BANK
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By: /s/ Thomas M. Hicks |
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Thomas M. Hicks | |
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Title: Vice-President – Western Division |