SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2)
HAWAIIAN NATURAL WATER COMPANY, INC.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
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(CUSIP Number of Class of Securities)
Michael D. James
Chief Financial Officer
AMCON Distributing Company
10228 "L" Street
Omaha, Nebraska 68127
(402)331-3727
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copies to:
John A. Granda, Esq.
Stinson, Mag & Fizzell, P.C.
1201 Walnut Street
Kansas City, Missouri 64106
(816) 842-8600
September 27, 2001
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. / /
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 240.13d-7 for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
(Continued on following page(s))
(1) NAME OF REPORTING PERSONS: I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
AMCON Distributing Company; IRS No. 47-0702918
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)
(b)
(3) SEC USE ONLY
(4) SOURCE OF FUNDS (See Instructions): WC
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e): / /
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
(7) SOLE VOTING POWER 4,419,354
(8) SHARED VOTING POWER
(9) SOLE DISPOSITIVE POWER 4,419,354
(10) SHARED DISPOSITIVE POWER
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 4,419,354
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions): /x/
(13) PERCENT OF CLASS REPRESENTED TO AMOUNT IN ROW (11): 38%
(14) TYPE OF REPORTING PERSON (See Instructions): CO
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to Common Stock, no par value, of the issuer,
Hawaiian Natural Water Company, Inc., a Hawaii corporation ("Hawaiian
Natural"). The address of Hawaiian Natural's executive office is 98-746
Kuahao Place, Pearl City, Hawaii 96814.
ITEM 2. IDENTITY AND BACKGROUND.
(a) - (c) This Schedule 13D is by AMCON Distributing Company, a Delaware
corporation ("AMCON"). The name, business or residence address, and present
principal occupation or employment of each of AMCON's executive officers and
directors, and the name, principal business and address of any corporation
or other organization in which such employment is conducted are set forth in
Appendix A to this Schedule 13D which is incorporated herein by reference.
The address of AMCON's principal office is 10228 "L" Street, Omaha, Nebraska
68127.
AMCON, together with its subsidiaries, are principally in the businesses of
wholesale distribution of approximately 24,000 different consumer products
through seven distribution centers and the retail sale of health food
through AMCON's 14 retail stores.
(d) During the last five years, neither AMCON nor, to the best of AMCON's
knowledge, any of its executive officers or directors, has been convicted in
a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, neither AMCON nor, to the best of AMCON's
knowledge, any of its executive officers or directors was a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) AMCON is a Delaware corporation. Each of its executive officers and
directors is a citizen of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The funds used to purchase the Common Stock of Hawaiian Natural were
obtained from AMCON's working capital.
ITEM 4. PURPOSE OF TRANSACTION.
In November 2000, AMCON entered into a merger agreement with Hawaiian
Natural, pursuant to which Hawaiian Natural would be merged with and into,
and thereby become, a wholly-owned subsidiary of AMCON. The merger
consideration values the entire common equity interest in Hawaiian Natural
at $2,865,348, payable in common stock of AMCON, which will be priced no
lower than $6.00 and no greater than $8.00 per share based on a 20 trading
day measuring period ending three trading days before the date that the
shareholders of Hawaiian Natural vote on the merger. As a result, AMCON
will issue an aggregate of not less than 358,168 nor more than 477,558
shares in the merger. Hawaiian Natural shareholders, other than AMCON, will
own between 9.3% and 12% of AMCON's outstanding shares after giving effect
to the merger if the minimum or maximum number of shares are issued,
respectively. Hawaiian Natural optionholders and warrantholders would also
receive comparable options and warrants of AMCON but with the exercise price
and number of shares covered thereby being adjusted to reflect the exchange
ratio.
AMCON has provided Hawaiian Natural with certain interim financing pending
the consummation of the merger. AMCON loaned Hawaiian Natural $350,000 in
September 2000 and $400,000 in October 2000, which loans are evidenced by
promissory notes, bearing interest at the rate of 10% per annum, currently
due on December 31, 2001 and are secured by substantially all of Hawaiian
Natural's assets (collectively the $750,000 Notes"). In February 2001,
AMCON invested $300,000 in Hawaiian Natural through the purchase of 750,000
shares of Hawaiian Natural's common stock at a purchase price of $0.40 per
share. On June 21, 2001, AMCON loaned Hawaiian Natural an additional
$500,000, which loan is evidenced by a promissory note bearing interest at
the rate of 10% per annum, currently due on December 31, 2001, and which is
also secured by substantially all of Hawaiian Natural's assets (the
"$500,000 Note"). In the event that the merger agreement is terminated for
any reason or Hawaiian Natural defaults on its obligations under the
$750,000 Notes or the $500,000 Note, AMCON will be entitled to convert all
of those notes into Series C Convertible Preferred Stock which, among other
things, would entitle AMCON to elect a majority of Hawaiian Natural's Board
of Directors. The $750,000 Notes are also convertible upon 61 days' advance
notice into a number of shares of Hawaiian Natural's common stock determined
by dividing $2,865,348 by the number of shares of common stock that are
outstanding at the time of conversion. AMCON would thus be entitled to
receive 2,419,354 shares of Hawaiian Natural common stock upon conversion of
the 750,000 Notes assuming that the number of outstanding shares is
9,185,982 (the number of shares expected to be outstanding as of the record
date for voting on the merger). However, the 750,000 Notes are not expected
to be converted prior to the merger. The $500,000 Note is convertible at
any time at AMCON's election into Hawaiian Natural's common stock at a
conversion ratio of $0.40 per share.
The 750,000 shares purchased in February 2001 and the 1,250,000 shares
receivable by AMCON upon conversion of the $500,000 Note will participate in
the consideration to be received by Hawaiian Natural stockholders in the
merger (the "Merger Consideration"). Any shares receivable by AMCON upon
conversion of the $750,000 Notes would not participate in the Merger
Consideration.
AMCON subsequently loaned Hawaiian Natural an additional $354,483 to meet
its operating needs pursuant to a promissory note bearing interest at the
rate of 8% per annum and with a maturity date of December 31, 2001. This
note is not convertible into any capital stock of Hawaiian Natural but is
secured by substantially all of Hawaiian Natural's assets.
Except for replacing Hawaiian Natural's Board of Directors with AMCON
nominees following the merger, providing necessary working capital prior to
and following the merger, and as otherwise described above, neither AMCON
nor to the best of AMCON's knowledge, any of its executive officers or
directors have any plans or proposals relating to the purchase of additional
Hawaiian Natural securities, extraordinary transactions with Hawaiian
Natural, a sale of a material amount of assets of Hawaiian Natural, any
change in the capitalization or dividend policy of Hawaiian Natural,
changing the business or corporate structure of Hawaiian Natural, or
changing Hawaiian Natural's articles of incorporation or bylaws. The shares
of Hawaiian Natural will not be publicly traded or registered under the
Exchange Act after the merger but the AMCON shares to be issued in the
merger will be listed on AMEX.
The merger is expected to qualify as a tax-free reorganization and to be
recorded on the AMCON's books using the purchase method of accounting. The
merger is subject to various conditions, including the effectiveness of a
registration statement covering the shares to be issued in the merger which
has been filed with the Commission, the listing of such shares on AMEX and
approval of the stockholders of Hawaiian Natural. All of Hawaiian Natural's
officers and directors and any of their affiliated entities that own shares
of Hawaiian Natural's common stock (constituting approximately 35.2% of the
outstanding shares) have agreed to vote their shares in favor of the merger.
It is expected that the merger will be consummated before December 31, 2001.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) AMCON is the beneficial owner of 4,419,354 shares of Hawaiian Natural's
common stock, which, as described in Item 4 above, includes 750,000 shares
purchased from Hawaiian Natural in February 2001 and 1,250,000 shares
receivable upon conversion of the $500,000 Note. These 2,000,000 shares
represent approximately 21.7% OF Hawaiian Natural's outstanding shares of
common stock, assuming that the number of outstanding shares is 9,185,982
(which includes the 1,250,000 shares to be received by AMCON upon the
conversion of the $500,000 Note that is expected to occur prior to the
record date for voting on the merger). These shares, together with the
shares agreed to be voted by certain of Hawaiian Natural's affiliates as
described above, will represent more than 50% of Hawaiian Natural's
outstanding shares and thus ensure the requisite shareholder approval of the
Fifth Amended and Restated Agreement and Plan of Merger needed to consummate
the merger.
The above total also includes approximately 2,419,354 shares estimated to be
receivable upon conversion of the 750,000 Notes described in Item 4 above.
However, those Notes are not convertible within 60 days, those Notes are not
expected to be converted prior to the merger, and those shares would be
excluded in any event from participating in the Merger Consideration.
To the best of AMCON's knowledge, none of its executive officers or
directors beneficially own any common stock of Hawaiian Natural.
(b) AMCON possesses the sole power to dispose of all of the 4,419,354 shares
referenced in Item 2(a) above.
(c) The Fifth Amended and Restated Agreement and Plan of Merger was executed
on September 27, 2001. AMCON has not engaged in any transactions in
Hawaiian Natural's common stock during the last 60 days.
(d) and (e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO THE ISSUER'S SECURITIES.
The response to Item 4 of this Schedule 13D is incorporated herein by
reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following documents are filed as exhibits:
(1) Fifth Amended and Restated Agreement and Plan of Merger between AMCON
and Hawaiian Natural (incorporated by reference to Exhibit 2.1 of the
AMCON registration statement on Form S-4 filed on October 9, 2001).
(2) Fourth Amended and Restated 10% Secured Convertible Note due December
31, 2001 in the principal amount of $350,000 (incorporated by reference
to Exhibit 10.15 of the AMCON registration statement on Form S-4 filed
on October 9, 2001).
(3) Fourth Amended and Restated 10% Secured Convertible Note due December
31, 2001 in the principal amount of $400,000 (incorporated by reference
to Exhibit 10.16 of the AMCON registration statement on Form S-4 filed
on October 9, 2001).
(4) Amended and Restated 10% Secured Convertible Note due December 31, 2001
in the principal amount of $500,000 (incorporated by reference to
Exhibit 10.17 of the AMCON registration statement on Form S-4 filed on
October 9, 2001).
(5) Amended and Restated Secured Note, dated as of September 27, 2001, from
Hawaiian Natural in the principal amount of $354,483 (incorporated by
reference to Exhibit 10.18 of the AMCON registration statement on Form
S-4 filed on October 9, 2001).
(6) Amended and Restated Stockholder Agreement, dated as of November 7,
2000, among AMCON, AMCON Merger Sub and certain shareholders of
Hawaiian Natural (incorporated by reference to Exhibit 10.14 of the
AMCON registration statement on Form S-4 filed on October 9, 2001).
(7) Amended and Restated Certificate of Designation for Series C
Convertible Preferred Stock issuable upon conversion of Secured
Convertible Notes of Hawaiian Natural (incorporated by reference to
Exhibit 10.19 of the AMCON registration statement on Form S-4 filed on
October 9, 2001).
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief on
behalf of AMCON, as Secretary, Treasurer and Chief Financial Officer of
AMCON, I certify that the information set forth in this statement is true,
complete and correct.
Dated: October 9, 2001.
AMCON Distributing Company
By: /s/ Michael D. James
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Name: Michael D. James
Title: Secretary, Treasurer and
Chief Financial Officer
Appendix A
Directors and Executive Officers of
AMCON Distributing Company
Business and Address
Name and Position Principal at which Principal
with AMCON Occupation Occupation is Conducted
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William F. Wright, Chairman of the Board and *
Director CEO of AMCON
Jerry Fleming, President of The Healthy *
Director and Executive Edge Inc., a subsidiary
Officer of AMCON
William R. Hopper, Attorney and Consultant Of Counsel to law firm of
Director Rehm and Bennett
Suite 200, 1327 "H" Street
Lincoln, NE 68542
J. Tony Howard, President of Nebraska Beer and Wine Distributor
Director Distributing Company 13619 Industrial Road
Omaha, NE 68137
Allen D. Petersen, Chairman and CEO of Tool manufacturer
Director American Tool Companies, 2800 Higgins Road, Suite 835
Inc. Hoffman Estates, IL 60195
Kathleen M. Evans, President of AMCON *
Director and Executive
Officer
Timothy R. Pestotnik, Attorney Partner at law firm of Luce,
Director Forward Hamilton & Scripps, LLP
600 West Broadway, Suite 2600
San Diego, CA 92101
Michael D. James, Secretary, Treasurer and
Executive Officer Chief Financial Officer *
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* The business address of each AMCON executive officer is set forth under Item 2(b) above.