-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D7aC7OREkbHy5I4kA0N6Wmwhh8F7Xki12BVu+/NMbteXZc/HcYsgyHQhpyvIgADF 6KSephdBOhMxerWHx3sNIQ== 0000928465-01-500027.txt : 20010703 0000928465-01-500027.hdr.sgml : 20010703 ACCESSION NUMBER: 0000928465-01-500027 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010702 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: HAWAIIAN NATURAL WATER CO INC CENTRAL INDEX KEY: 0001025787 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & RELATED PRODUCTS [5140] IRS NUMBER: 990314848 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-54551 FILM NUMBER: 1673807 BUSINESS ADDRESS: STREET 1: 248 MOKAUCA ST STREET 2: SUITE 201 CITY: HONOLULU STATE: HI ZIP: 96819 BUSINESS PHONE: 8088324550 MAIL ADDRESS: STREET 1: 248 WOKAUEA ST CITY: HONOLULU STATE: HI ZIP: 96819 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AMCON DISTRIBUTING CO CENTRAL INDEX KEY: 0000928465 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & GENERAL LINE [5141] IRS NUMBER: 470702918 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 10228 L ST STREET 2: POST OFFICE BOX 241230 CITY: OMAHA STATE: NE ZIP: 68127 BUSINESS PHONE: 4023313727 MAIL ADDRESS: STREET 1: 10228 L STREET STREET 2: POST OFFICE 241230 CITY: OMAHA STATE: NE ZIP: 68127 EX-4 1 hnwcnote13d.txt $500,000 CONVERTIBLE NOTE THIS 10% SECURED CONVERTIBLE NOTE, AND THE SECURITIES INTO WHICH IT IS CONVERTIBLE (COLLECTIVELY, THE "SECURITIES"), HAS NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES COMMISSION OF ANY STATE UNDER APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES ARE "RESTRICTED" AND MAY NOT BE OFFERED OR SOLD UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT, OR PURSUANT TO AVAILABLE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND THE ISSUER WILL BE PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH EXEMPTIONS ARE AVAILABLE. HAWAIIAN NATURAL WATER COMPANY, INC. 10% Secured Convertible Note Due September 30, 2001 $500,000.00 June 18, 2001 FOR VALUE RECEIVED, Hawaiian Natural Water Company, Inc., a Hawaiian corporation (the "Corporation"), promises to pay to the order of AMCON Distributing Company, a Delaware corporation (the "Holder"), the principal sum of Five Hundred Thousand and NO/100 Dollars ($500,000.00), on September 30, 2001 (the "Maturity Date"), together with interest in the amount and manner hereafter provided. IT IS FURTHER AGREED THAT: 1. Interest. The Corporation promises to pay interest on the principal amount of this 10% Secured Convertible Note (the "Note") at the rate per annum of ten percent (10%), compounded quarterly. Interest will be computed on the basis of a three hundred sixty (360) day year of twelve (12), thirty (30) day months. Interest will be paid quarterly on January 1, April 1, July 1, and October 1 of each year and at maturity, with the first such interest payment to be made on July 1, 2001. 2. Method of Payment. Except with respect to the rights of conversion provided herein, and subject to Section 3 hereof, the Corporation will pay principal and interest by wire transfer of immediately-available money of the United States, or other form of payment of immediately available money of the United States as the Holder may direct the Corporation, that at the time of payment is legal tender for payment of public and private debts. Information for making the wire transfers will be provided in writing by the Holder to the Corporation. If any payment hereunder becomes due and payable on a day other than a business day, the due date thereof shall be extended to the next business day and, with respect to payments of principal, interest thereon shall be payable at the applicable rate during such extension. 3. Right to Prepay. The Corporation shall have the right to prepay all or any part of the Note; provided, however, that (i) the Corporation must give written notice to the Holder of its intention to make any such prepayment not less than five (5) and not more than ten (10) business days in advance of such prepayment, which notice must include a representation that the funds to effect the prepayment are legally available for that purpose and that representation must be supported by evidence reasonably satisfactory to the Holder that such funds will be provided to the Corporation at the time specified in the notice for prepayment, and (ii) during the period following that notice and prior to the actual prepayment, the Holder shall be entitled to exercise the conversion privilege set forth in Section 4(a) hereof, if the right to convert specified therein is available by its terms, or Section 4(b) hereof. 4. Right to Convert. (a) At any time before the close of business on the Maturity Date but after the earlier of (A) termination of the Fourth Amended and Restated Agreement and Plan of Merger (the "Merger Agreement"), dated as of June 18, 2001, among the Corporation, the Holder and AMCON Merger Sub, Inc.("Merger Sub") or (B) the occurrence of an Event of Default, the Holder may convert the outstanding principal balance and unpaid accrued interest of this Note into fully paid and non-assessable shares of Series C Convertible Preferred Stock, par value $1.00 per share, of the Corporation (the "Preferred Stock"). The price at which shares of Preferred Stock shall be delivered upon conversion (herein called the "Preferred Conversion Price") shall be $1.00 per share of Preferred Stock. (b) At any time before the close of business on the Maturity Date, the Holder may convert the outstanding principal balance and unpaid accrued interest of this Note into fully paid and non-assessable shares of common stock of the Corporation (the "Common Stock"). The price at which shares of Common Stock shall be delivered upon conversion shall be $0.40 per share; provided, however, that if the Corporation shall at any time increase or decrease the number of its outstanding shares of Common Stock or change in any way the rights and privileges of such shares by means of the payment of a stock dividend or any other distribution upon such shares payable in Common Stock, or through a stock split, subdivision, consolidation, combination, reclassification or recapitalization involving the Common Stock, then the price at which shares shall be delivered upon conversion shall be proportionately increased or decreased, as the case may be, to avoid dilution of the number and kind of shares to which the Noteholder is fairly entitled upon conversion of the Note. (c) This Note may be converted in whole, but not in part, into Preferred Stock or Common Stock or a combination thereof (referred to collectively as the "Conversion Shares") based on the terms set forth in subsections (a) and (b) of this Section 4, as the case may be. 5. Mechanics of Conversion. If the Holder desires to exercise such right of conversion, such Holder shall give written notice to the Corporation in the form attached to this Note as Exhibit A (the "Conversion Notice") of that Holder's election to convert a stated whole dollar amount of outstanding principal balance and unpaid accrued interest of the Note into shares of Preferred Stock, and/or Common Stock, as the case may be, and surrender to the Corporation, at its principal office or at such other office or agency maintained by the Corporation for such purpose, this Note. The Conversion Notice shall also contain a statement of the name or names (with addresses) in which the certificate or certificates for Preferred Stock and/or Common Stock, as the case may be, shall be issued. Notwithstanding the foregoing, the Corporation shall not be required to issue any certificates to any person other than the Holder thereof unless the Corporation has obtained reasonable assurance that such transaction is exempt from the registration requirements of, or is covered by an effective registration statement under, the Securities Act of 1933, as amended (the "Act"), and all applicable state securities laws, including, if necessary in the reasonable judgment of the Corporation or its legal counsel, receipt of an opinion to such effect from counsel reasonably satisfactory to the Corporation. In no event would such opinion be required if the shares of Preferred Stock and/or Common Stock, as the case may be, could, upon conversion, be resold pursuant to Rule 144 or Rule 144A under the Act. As promptly as practicable, and in any event within two business days, after the receipt of the Conversion Notice (the "Date of Conversion") and the surrender of the certificate or certificates representing the Conversion Shares, the Corporation shall issue and deliver, or cause to be delivered, to the Holder or his nominee or nominees, a certificate or certificates for the number of shares of Preferred Stock and/or Common Stock, as the case may be, issuable upon the conversion of this Note. Such conversion shall be deemed to have been effected as of the close of business on the Date of Conversion and the replacement Note, and the person or persons entitled to receive the shares of Preferred Stock and/or Common Stock, as the case may be, issuable upon conversion shall be treated for all purposes as the holder or holders of record of such shares of Preferred Stock and/or Common Stock, as the case may be, as of the close of business on such date. 6. Fractions of Share. The Corporation shall not be required to issue fractions of a share or scrip representing fractional shares of Preferred Stock and/or Common Stock, as the case may be, upon the exercise of any conversion right hereunder. If any fraction of a share of Preferred Stock and/or Common Stock, as the case may be, would, except for the provisions of this Section 6, be issuable upon any conversion exercise, the Corporation shall pay a cash adjustment in respect of such fraction, equal to the value of such fraction based on the Conversion Price per share of Preferred Stock. 7. Security. The obligations herein are secured by the security interest granted pursuant to that certain Second Amended and Restated 10% Convertible Note in the principal sum of $350,000.00 payable by the Corporation to Holder due on September 30, 2001 (and as such note may be further amended and/or restated). 8. Corporation Covenants. The Corporation represents, warrants, covenants and agrees that: (a) Any shares of Preferred Stock and/or Common Stock, as the case may be, delivered upon conversion of this Note shall, at the time of delivery of the certificates for such shares of Preferred Stock or Common Stock, be validly issued and outstanding and fully-paid and non- assessable shares of Preferred Stock or Common Stock free from taxes, liens and charges with respect to their purchase. Without limiting the generality of the foregoing, the Corporation covenants and agrees to take any necessary actions to assure that the par value per share of the Preferred Stock is at all times equal to or less than the then current Conversion Price per share for the Preferred Stock issuable pursuant to this Note. The Corporation further covenants and agrees that it will pay when due and payable any and all federal and state original issue stock taxes, if any, which may be payable in respect of the issue of the shares of Preferred Stock or Common Stock upon the conversion of this Note or a part hereof. Except for an amendment required pursuant to the foregoing sentence, the Certificate of Designation, Preferences and Rights of the Preferred Stock shall not be amended without the prior written consent of the Holder. (b) The Corporation shall at all times reserve and keep available a number of its authorized but unissued shares of Preferred Stock and Common Stock which will be sufficient to permit the full exercise of this Note. If at any time the number of authorized but unissued shares of Preferred Stock or Common Stock is not sufficient for this purpose, the Corporation shall take such corporate actions as may be necessary to increase its authorized but unissued shares of Preferred Stock and/or Common Stock, as the case may be, to a number of shares sufficient for such purpose. (c) (i) The Corporation is duly organized as a corporation under the laws of the State of Hawaii, it is authorized to transact business in all jurisdictions where the conduct of its business requires it to be qualified, and it is duly authorized to execute, deliver and perform under this Note without the necessity of obtaining any consents or approvals of, or the taking of any other action with respect to, any governmental agency or third party; and (ii) The financial statements submitted to Holder fairly present the financial condition of the Corporation as of the date of this Note knowing that Holder has relied thereon in granting the Loan, there have been no material adverse changes in the financial condition of the Corporation since the date of said financial statements, the Corporation has no material obligations, financial or otherwise, not disclosed to Holder, and at the present time there are no material, unrealized or anticipated losses from any present commitment of the Corporation. (d) The Corporation shall give written notice to the Holder at least 10 days prior to establishing a record date to determine the stockholders of record entitled to vote on the merger contemplated by the Merger Agreement in order to permit the Holder to exercise the right to convert this Note and vote upon such merger and to receive merger consideration pursuant to such merger. 9. Rights of Holder. The Holder of this Note shall not be entitled to vote or receive dividends or be deemed the Holder of Preferred Stock or Common Stock of the Corporation for any purpose, nor shall anything contained in this Note be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Corporation or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon a merger, conveyance or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the right to convert this Note shall have been exercised and the Preferred Stock or Common Stock purchasable upon the exercise hereof shall have become deliverable. 10. Rights Upon Exercise. Irrespective of the date Preferred Stock or Common Stock is issued and of delivery of certificates for any shares issuable upon the exercise of the conversion privilege under this Note, each person in whose name any such certificate is issued shall for all purposes be deemed to have become the holder of record of the shares represented thereby on the Date of Conversion. 11. Investment Representation; Transfer. The Holder hereby represents and warrants to the Corporation that it has purchased this Note and will purchase shares of the Preferred Stock and/or Common Stock, as the case may be, of the Corporation issuable upon conversion hereof for investment purposes only and not with a view to the distribution thereof. The Holder acknowledges that it has been advised by the Corporation that neither this Note nor the Conversion Shares has been registered under the Securities Act of 1933 or any state securities law for the reason that no distribution or public offering of this Note or the Conversion Shares is to be effected. 12. Dissolution. In case any voluntary or involuntary dissolution, liquidation or winding up of the Corporation shall at any time be proposed, the Corporation shall give at least sixty-two (62) days' prior written notice thereof to the Holder stating the date on which such event is to take place and the date (which shall be at least sixty-two (62) days after the giving of such notice) as of which the holders of Preferred Stock or Common Stock of record shall be entitled to exchange their Preferred Stock or Common Stock for securities or other property deliverable upon such dissolution, liquidation or winding up. 13. Default. Any one or more of the following shall be events of default under this Note ("Events of Default"): (a) Default shall be made: (i) in the payment of the principal or interest under this Note when due; or (ii) in due observance or performance of any other agreement contained in this Note, which is not remedied within fifteen (15) days after notice to the Corporation; (b) Any warranty, representation or agreement made or furnished to the Holder by or on behalf of the Corporation in the Merger Agreement proves to have been false in any material respect when made or furnished; or (c) The insolvency of the Corporation, the making of a general assignment for the benefit of creditors, or the filing of any voluntary or involuntary petition or commencement of any proceeding by or against the Corporation under any bankruptcy or insolvency laws. Upon the occurrence of one or more Events of Default and at any time thereafter, the Holder may, by notice in writing to the Corporation, declare the entire outstanding principal amount of the Note to be, and such entire principal amount of the Note shall thereupon become forthwith, due and payable in full together with interest accrued thereon, anything in this Note to the contrary notwithstanding. Upon the occurrence of one or more Events of Default, the Corporation agrees to pay out-of-pocket expenses, including reasonable attorneys' fees and legal expenses, whether or not suit is commenced, incurred by the Holder. If an Event of Default shall have occurred and has not been cured by the Corporation within 90 days after the occurrence thereof, then thereafter this Note shall accrue interest at the rate per annum of eighteen percent (18%), compounded quarterly and computed in accordance with Section 1 of this Note. 14. Notice. All notices and other communications from the Corporation to the Holder shall be mailed by first class registered mail, postage prepaid, to the principal business address of the Holder or other address furnished to the Corporation in writing by the Holder. All notices and other communications from the Holder to the Corporation shall be mailed by first class registered mail, postage prepaid, to the principal business address of the Corporation or other address furnished to the Holder in writing by the Corporation. All notices and other communications delivered in the manner set forth above shall be deemed delivered two (2) days after the date mailed. 15. Governing Law; Certain Waivers. This Note, without regard to the place of execution, delivery or payment, shall be construed and enforced according to and governed by the laws of the State of Delaware. The Corporation waives presentment and demand for payment, notice of dishonor, protest and notice of protest. 16. Severability. Whenever possible, each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note. HAWAIIAN NATURAL WATER COMPANY, INC. By: Marcus Bender --------------------------------- Name: Marcus Bender Title: President EXHIBIT A ---------- CONVERSION NOTICE ------------------ (To be executed by the Holder in order to Convert the Note) TO: HAWAIIAN NATURAL WATER COMPANY, INC. The undersigned hereby irrevocably elects to convert $------------ of the principal amount of, and $---------- of any accrued but unpaid interest on, the above Second Amended and Restated 10% Secured Convertible Note into (i)--- - --------- shares of Series C Preferred Stock, par value $1.00 per share, of Hawaiian Natural Water Company, Inc. (the "Company"), and (ii)---------- shares of Common Stock of the Company, in each case according to the conditions stated in such Note, as of the Conversion Date written below. Conversion Date: ---------------------------------- Applicable Conversion Price: ---------------------- Signature: ---------------------------------------- Name: --------------------------------------------- Address: ------------------------------------------ ------------------------------------------ SC 13D 2 hnwc13d.txt SCHEDULE 13-D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. _____) HAWAIIAN NATURAL WATER COMPANY, INC. ------------------------------------------------------- (Name of Issuer) Common Stock ------------------------------------------------------- (Title of Class of Securities) ------------------------------------------------------- (CUSIP Number of Class of Securities) Michael D. James Chief Financial Officer AMCON Distributing Company 10228 "L" Street Omaha, Nebraska 68127 (402)331-3727 ------------------------------------------------------- (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 June 21, 2001 ------------------------------------------------------- (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. 47-070298 (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 2,000,000 (8) SHARED VOTING POWER (9) SOLE DISPOSITIVE POWER 2,000,000 (10) SHARED DISPOSITIVE POWER (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 2,000,000 (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): 21.7% (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, present principal occupation or employment, 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 eight distribution centers and the retail sale of health food through AMCON's 14 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 of the stockholders 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, representing between 11.6% and 14.9% of AMCON's outstanding shares after giving effect to the merger. 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, due on September 30, 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, due on September 30, 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 Hawaiian Natural's common stock at the same exchange ratio as in 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 will not participate in the merger consideration. Except for replacing Hawaiian Natural's Board of Directors with AMCON nominees following the merger, providing necessary working capital 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, 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 40% of the currently outstanding shares) have agreed to vote their shares in favor of the merger. It is expected that the merger will be consummated on or before September 30, 2001. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) AMCON is the beneficial owner of 2,000,000 shares of Hawaiian Natural's common stock, which, as described in Item 4 above, consist of 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 based on a total of 7,935,982 outstanding Hawaiian Natural shares as of June 21, 2001. The above total excludes approximately 1,875,000 shares estimated to be receivable upon conversion of the 750,000 Notes described in Item 4 above because AMCON disclaims beneficial ownership of those shares since those Notes are not convertible within 60 days and those shares are excluded 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 2,000,000 shares referenced in Item 2(a) above. (c) AMCON acquired the $500,000 Note, which is convertible into 1,250,000 shares of Hawaiian Natural's common stock, on June 21, 2001. (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) Fourth Amended and Restated Agreement and Plan of Merger between AMCON and Hawaiian Natural.* (2) 10% Secured Convertible Note due September 30, 2001 in the principal amount of $350,000.* (3) 10% Secured Convertible Note due September 30, 2001 in the principal amount of $400,000.* (4) 10% Secured Convertible Note due September 30, 2001 in the principal amount of $500,000. (5) Stockholders Agreement.* * To be filed by amendment. 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: July 2, 2001. AMCON Distributing Company By: /s/ Michael D. James 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 - ----------------- ------------------ ------------------------- 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 Estate, 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 * ___ - ----------------------- * The business address of each AMCON executive officer is set forth under Item 2(b) above.
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