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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form 10-Q

 

Quarterly Report Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

For the quarterly period ended June 30, 2009

 

Commission File Number 0-18761

 

HANSEN NATURAL CORPORATION

(Exact name of Registrant as specified in its charter)

 

 

550 Monica Circle, Suite 201

Corona, California 92880

(Address of principal executive offices) (Zip code)

 

(951) 739 — 6200

(Registrant’s telephone number, including area code)

 

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   o

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes   o   No   o

 

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.  See definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

 

Indicate by check mark whether the Registrant is a shell company (as defined by Rule 12b-2 of the Exchange Act).  Yes   o   No   x

 

The Registrant had 90,630,234 shares of common stock, par value $0.005 per share, outstanding as of July 30, 2009.

 

 

Table of Contents

 

HANSEN NATURAL CORPORATION AND SUBSIDIARIES

JUNE 30, 2009

 

INDEX

 

			Page No.
Part I.	FINANCIAL INFORMATION
Item 1.	Condensed Consolidated Financial Statements (Unaudited)		3
	Condensed Consolidated Balance Sheets as of June 30, 2009 and December 31, 2008		3
	Condensed Consolidated Statements of Income for the Three- and Six-Months Ended June 30, 2009 and 2008		4
	Condensed Consolidated Statements of Cash Flows for the Six-Months Ended June 30, 2009 and 2008		5
	Notes to Condensed Consolidated Financial Statements		6
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations		29
Item 3.	Quantitative and Qualitative Disclosures About Market Risk		50
Item 4.	Controls and Procedures		51
Part II.	OTHER INFORMATION
Item 1.	Legal Proceedings		51
Item 1A.	Risk Factors		55
Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds		55
Item 3.	Defaults Upon Senior Securities		55
Item 4.	Submission of Matters to a Vote of Security Holders		56
Item 5.	Other Information		56
Item 6.	Exhibits		56
	Signatures		57

 

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PART I — FINANCIAL INFORMATION

 

ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)

 

HANSEN NATURAL CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

AS OF JUNE 30, 2009 AND DECEMBER 31, 2008

 

		June 30, 2009			December 31, 2008
ASSETS
CURRENT ASSETS:
Cash and cash equivalents		$	283,283		$	256,801
Short-term investments		30,290			29,145
Trade accounts receivable, net		101,913			45,233
Distributor receivables		23,994			90,722
Inventories		117,344			116,326
Prepaid expenses and other current assets		13,149			8,379
Prepaid income taxes		—			4,977
Deferred income taxes		9,741			9,741
Total current assets		579,714			561,324
INVESTMENTS		87,902			89,567
PROPERTY AND EQUIPMENT, net		23,835			14,389
DEFERRED INCOME TAXES		63,328			65,748
INTANGIBLES, net		29,819			28,365
OTHER ASSETS		1,899			2,444
Total Assets		$	786,497		$	761,837
LIABILITIES AND STOCKHOLDERS’ EQUITY
CURRENT LIABILITIES:
Accounts payable		$	56,489		$	64,787
Accrued liabilities		27,493			12,524
Accrued distributor terminations		3,865			102,282
Accrued compensation		4,936			6,782
Current portion of debt		772			959
Income taxes payable		8,533			—
Total current liabilities		102,088			187,334
DEFERRED REVENUE		134,134			138,187
COMMITMENTS AND CONTINGENCIES (Note 9)
STOCKHOLDERS’ EQUITY:
Common stock - $0.005 par value; 120,000 shares authorized; 97,153 shares issued and 90,630 outstanding as of June 30, 2009; 96,851 shares issued and 90,328 outstanding as of December 31, 2008		486			484
Additional paid-in capital		127,185			117,106
Retained earnings		560,535			461,680
Accumulated other comprehensive loss		(5,802		)	(10,825		)
Common stock in treasury, at cost; 6,523 shares as of June 30, 2009 and December 31, 2008, respectively		(132,129		)	(132,129		)
Total stockholders’ equity		550,275			436,316
Total Liabilities and Stockholders’ Equity		$	786,497		$	761,837

 

See accompanying notes to condensed consolidated financial statements.

 

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HANSEN NATURAL CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF INCOME

FOR THE THREE- AND SIX-MONTHS ENDED JUNE 30, 2009 AND 2008

 

		Three-Months Ended						Six-Months Ended
		June 30,						June 30,
		2009			2008			2009			2008
NET SALES		$	300,250		$	282,244		$	544,456		$	494,422
COST OF SALES		138,421			136,031			252,448			243,489
GROSS PROFIT		161,829			146,213			292,008			250,933
OPERATING EXPENSES		69,046			68,023			133,448			129,916
OPERATING INCOME		92,783			78,190			158,560			121,017
OTHER INCOME (EXPENSE):
Interest and other income, net		401			2,769			1,418			6,395
Other-than-temporary impairment of investments		—			—			(3,539		)	—
Total other income (expense)		401			2,769			(2,121		)	6,395
INCOME BEFORE PROVISION FOR INCOME TAXES		93,184			80,959			156,439			127,412
PROVISION FOR INCOME TAXES		35,895			30,727			57,584			48,369
NET INCOME		$	57,289		$	50,232		$	98,855		$	79,043
NET INCOME PER COMMON SHARE:
Basic		$	0.63		$	0.54		$	1.09		$	0.85
Diluted		$	0.60		$	0.51		$	1.04		$	0.80
WEIGHTED AVERAGE NUMBER OF SHARES OF COMMON STOCK AND COMMON STOCK EQUIVALENTS:
Basic		90,604			92,911			90,519			93,113
Diluted		95,282			97,996			95,285			98,509

 

See accompanying notes to condensed consolidated financial statements.

 

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HANSEN NATURAL CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

FOR THE SIX-MONTHS ENDED JUNE 30, 2009 AND 2008

 

		Six-Months Ended
		June 30, 2009			June 30, 2008
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income		$	98,855		$	79,043
Adjustments to reconcile net income to net cash provided by operating activities:
Amortization of trademark		44			27
Depreciation and other amortization		2,247			1,539
Loss (gain) on disposal of property and equipment		53			(5		)
Stock-based compensation		6,460			5,779
Impairment on investments		3,539			—
Deferred income taxes		—			(710		)
Tax benefit from exercise of stock options		(2,091		)	(2,174		)
Provision for doubtful accounts		140			17
Effect on cash of changes in operating assets and liabilities:
Accounts receivable		(56,645		)	(1,924		)
Distributor receivables		66,728			—
Inventories		(950		)	(25,078		)
Prepaid expenses and other current assets		(4,681		)	(6,915		)
Prepaid income taxes		4,977			—
Accounts payable		(7,320		)	14,506
Accrued liabilities		13,326			2,772
Accrued distributor terminations		(98,420		)	(260		)
Accrued compensation		(1,846		)	(1,291		)
Income taxes payable		10,624			9,178
Deferred revenue		(4,053		)	(1,381		)
Net cash provided by operating activities		30,987			73,123
CASH FLOWS FROM INVESTING ACTIVITIES:
Sales and maturities of held-to-maturity investments		19,941			—
Sales of available-for-sale investments		13,129			253,879
Purchases of held-to-maturity investments		(29,990		)	—
Purchases of available-for-sale investments		—			(106,685		)
Purchases of property and equipment		(10,579		)	(1,927		)
Proceeds from sale of property and equipment		95			6
Additions to intangibles		(1,498		)	(684		)
Decrease (increase) in other assets		555			(75		)
Net cash (used in) provided by investing activities		(8,347		)	144,514
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments on long-term debt		(883		)	(604		)
Tax benefit from exercise of stock options		2,091			2,174
Issuance of common stock		1,338			1,272
Purchases of common stock held in treasury		—			(49,966		)
Net cash provided by (used in) financing activities		2,546			(47,124		)
Effect of exchange rate changes on cash and cash equivalents		1,296			—
NET INCREASE IN CASH AND CASH EQUIVALENTS		26,482			170,513
CASH AND CASH EQUIVALENTS, beginning of period		256,801			12,440
CASH AND CASH EQUIVALENTS, end of period		$	283,283		$	182,953
SUPPLEMENTAL INFORMATION:
Cash paid during the period for:
Interest		$	34		$	22
Income taxes		$	45,636		$	40,070

 

SUPPLEMENTAL DISCLOSURE OF NON-CASH ITEMS

 

The Company entered into capital leases for the acquisition of promotional vehicles of $0.7 million and $0.3 million for the six-months ended June 30, 2009 and 2008, respectively.

 

See accompanying notes to condensed consolidated financial statements.

 

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HANSEN NATURAL CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

1.                                       BASIS OF PRESENTATION

 

Reference is made to the Notes to Consolidated Financial Statements, in the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 (“Form 10-K”), for a summary of significant accounting policies utilized by Hansen Natural Corporation (“Hansen” or the “Company”) and its consolidated subsidiaries, Hansen Beverage Company (“HBC”), Monster LDA Company, formerly known as Hard e Beverage Company and previously known as Hard Energy Company and as CVI Ventures, Inc., Monster Energy UK Limited (incorporated in the United Kingdom), Monster Energy Limited (incorporated in Ireland), Monster Energy AU Pty, Ltd. (incorporated in Australia), Monster Energy Brasil Comércio de Bebidas Ltda (incorporated in Brazil), Blue Sky Natural Beverage Co. (“Blue Sky”), Hansen Junior Juice Company (“Junior Juice”),  X-Truck, Inc. (“X-Truck”) and Epicenter Music Festival, LLC (“EMF”) and other disclosures, which should be read in conjunction with this Quarterly Report on Form 10-Q (“Form 10-Q”).  HBC conducts the vast majority of the Company’s operating business and generates substantially all of the Company’s operating revenues.

 

During the three-months ended June 30, 2009, the Company formed two marketing entities, X-Truck, in which the Company has a 66.7% ownership interest and EMF, in which the Company has a 50.01% ownership interest.  In accordance with Financial Accounting Standards Board (“FASB”) Interpretation No. 46R, “Consolidation of Variable Interest Entities — an interpretation of ARB No. 51” (“FIN 46R”), the Company determined that it is the primary beneficiary of X-Truck and EMF, as the equity-at-risk is not sufficient to support each entity’s activities and/or the Company would absorb the majority of expected losses. Accordingly, the Company has consolidated the results of both X-Truck and EMF in the accompanying condensed consolidated financial statements.  The results of operations and net assets of X-Truck and EMF at June 30, 2009 were not material to the Company’s condensed consolidated financial statements.

 

The Company’s condensed consolidated financial statements included in this Form 10-Q have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) and Securities and Exchange Commission (“SEC”) rules and regulations applicable to interim financial reporting.  They do not include all the information and footnote disclosures normally included in annual financial statements prepared in accordance with GAAP.  The information set forth in these interim condensed consolidated financial statements for the three- and six-months ended June 30, 2009 and 2008 is unaudited and reflects all adjustments, which include only normal recurring adjustments and which in the opinion of management are necessary to make the interim condensed consolidated financial statements not misleading.  Results of operations for periods covered by this report may not necessarily be indicative of results of operations for the full year.

 

The preparation of financial statements in conformity with GAAP necessarily requires management to make estimates and assumptions that affect the reported amount 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 periods.  Actual results could differ from these estimates.  Management evaluated all events and transactions occurring after the balance sheet date through the filing of this quarterly report on Form 10-Q on August 10, 2009.

 

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HANSEN NATURAL CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

2.                                       RECENT ACCOUNTING PRONOUNCEMENTS

 

On January 1, 2008, the Company adopted Statement of Financial Accounting Standard (“SFAS”) No. 157, “Fair Value Measurements” (“SFAS No. 157”), for its financial assets and liabilities. The Company’s adoption of SFAS No. 157 did not have a material impact on its financial position, results of operations or liquidity.  In accordance with FASB Staff Position (“FSP”) FAS 157-2, “Effective Date of FASB Statement No. 157” (“FSP 157-2”), the Company elected to defer until January 1, 2009 the adoption of SFAS No. 157 for all non-financial assets and liabilities that are not recognized or disclosed at fair value in the financial statements on a recurring basis. The adoption of SFAS No. 157 for those assets and liabilities within the scope of FSP 157-2 did not have a material impact on the Company’s financial position, results of operations or liquidity.

 

On January 1, 2009, the Company adopted FSP FAS 142-3, “Determination of Useful Life of Intangible Assets” (“FSP 142-3”). FSP 142-3 amends the factors that should be considered in developing the renewal or extension assumptions used to determine the useful life of a recognized intangible asset under SFAS No.142, “Goodwill and Other Intangible Assets.” FSP 142-3 also requires expanded disclosure related to the determination of intangible asset useful lives. The Company’s adoption of FSP 142-3 did not have a material impact on its financial position, results of operations or liquidity.

 

On April 1, 2009, the Company adopted FSP FAS 107-1 and Accounting Principles Board (“APB”) 28-1, “Interim Disclosures about Fair Value of Financial Instruments” (“FSP 107-1”).  FSP 107-1 amends SFAS No. 107, “Disclosures About Fair Value of Financial Instruments,” to require disclosures about fair value of financial instruments for interim reporting periods of publicly traded companies as well as in annual financial statements.  FSP 107-1 also amends APB Opinion No. 28, “Interim Financial Reporting,” to require those disclosures in summarized financial information at interim reporting periods.  FSP 107-1 does not require disclosures for earlier periods presented for comparative purposes at initial adoption.  In periods after initial adoption, FSP 107-1 requires comparative disclosures only for periods ending after initial adoption.  The Company’s adoption of FSP 107-1 did not have a material impact on its financial position, results of operations or liquidity.

 

On April 1, 2009, the Company adopted FSP FAS 115-2 and FAS 124-2, “Recognition and Presentation of Other-Than-Temporary Impairments” (“FSP 115-2”).  FSP 115-2 modifies the requirements for recognizing other-than-temporary impairment on debt securities and significantly changes the impairment model for such securities. Under FSP 115-2, a security is considered to be other-than-temporarily impaired if the present value of cash flows expected to be collected are less than the security’s amortized cost basis (the difference being defined as the “Credit Loss”) or if the fair value of the security is less than the security’s amortized cost basis and the investor intends, or more likely than not will be required, to sell the security before recovery of the security’s amortized cost basis. If an other-than-temporary impairment exists, the charge to earnings is limited to the amount of Credit Loss if the investor does not intend to sell the security, and it is more likely than not that it will not be required to sell the security, before recovery of the security’s amortized cost basis.

 

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HANSEN NATURAL CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Any remaining difference between fair value and amortized cost is recognized in other comprehensive income, net of applicable taxes. Otherwise, the entire difference between fair value and amortized cost is charged to earnings. FSP 115-2 also modifies the presentation of other-than-temporary impairment losses and increases related disclosure requirements. The Company’s adoption of FSP 115-2 did not have a material impact on its financial position, results of operations or liquidity (see Note 3).

 

On April 1, 2009, the Company adopted FSP FAS 157-4, “Determining Fair Value When the Volume and Level of Activity for the Asset or Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly” (“FSP 157-4”).  FSP 157-4 provides additional guidance for estimating fair value in accordance with SFAS No. 157, “Fair Value Measurements,” when the volume and level of activity for the asset or liability have significantly decreased.  FSP 157-4 also includes guidance on identifying circumstances that indicate a transaction is not orderly.  FSP 157-4 does not require disclosures for earlier periods presented for comparative purposes at initial adoption.  In periods after initial adoption, FSP 157-4 requires comparative disclosures only for periods ending after initial adoption.  The Company’s adoption of FSP 157-4 did not have a material impact on its financial position, results of operations or liquidity.

 

On April 1, 2009, the Company adopted SFAS No. 165, “Subsequent Events” (“SFAS No. 165”).  SFAS No. 165 establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but before financial statements are issued or are available to be issued.  Specifically, SFAS No. 165 sets forth the period after the balance sheet date during which management of a reporting entity should evaluate events or transactions that may occur for potential recognition or disclosure in the financial statements, the circumstances under which an entity should recognize events or transactions occurring after the balance sheet date in its financial statements, and the disclosure that an entity should make about events or transactions that occurred after the balance sheet date.  The Company’s adoption of SFAS No. 165 did not have a material impact on its financial position, results of operations or liquidity.

 

In June 2009, the FASB issued SFAS No. 167, “Amendments to FASB Interpretation No. 46(R)” (“SFAS No. 167”).  SFAS No. 167 amends the consolidation guidance applicable to variable interest entities and requires enhanced disclosures about an enterprise’s involvement in a variable interest entity. This statement also requires ongoing assessments of whether an enterprise is the primary beneficiary of a variable interest entity. SFAS No. 167 is effective beginning January 1, 2010. The Company is currently evaluating the effect of SFAS No. 167 on its financial position, results of operations and liquidity.

 

In June 2009, the FASB issued SFAS No. 168, “The FASB Accounting Standards Codification” and the Hierarchy of Generally Accepted Accounting Principles. This standard replaces SFAS No. 162, The Hierarchy of Generally Accepted Accounting Principles, and establishes only two levels of U.S. GAAP, authoritative and nonauthoritative. The FASB Accounting Standards Codification (the “Codification”) will become the source of authoritative, nongovernmental GAAP, except for rules and interpretive releases of the SEC, which are sources of authoritative GAAP for SEC registrants. All other non-grandfathered, non-SEC accounting literature not included in the Codification will become nonauthoritative. This standard is effective for financial

 

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HANSEN NATURAL CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

statements for interim or annual reporting periods ending after September 15, 2009. The Company will begin to use the new guidelines and numbering system prescribed by the Codification when referring to GAAP in the third quarter of fiscal 2009. As the Codification was not intended to change or alter existing GAAP, it should not have any impact on the Company’s consolidated financial statements.

 

3.                                       FAIR VALUE MEASUREMENTS

 

SFAS No. 157 provides a framework for measuring fair value and requires expanded disclosures regarding fair value measurements. SFAS No. 157 defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. SFAS No. 157 also establishes a fair value hierarchy which requires an entity to maximize the use of observable inputs, where available. The following summarizes the three levels of inputs required by the standard that the Company uses to measure fair value.

 

·                  Level 1: Quoted prices in active markets for identical assets or liabilities.

 

·                  Level 2: Observable inputs other than Level 1 prices, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the related assets or liabilities.

 

·                  Level 3: Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

 

SFAS No. 157 requires the use of observable market inputs (quoted market prices) when measuring fair value and requires a Level 1 quoted price to be used to measure fair value whenever possible.

 

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HANSEN NATURAL CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

The following tables present the fair value of the Company’s financial assets recorded at fair value on a recurring basis segregated among the appropriate levels within the fair value hierarchy, at June 30, 2009 and December 31, 2008:

 

June 30, 2009		Level 1			Level 2			Level 3			Total
Cash		$	17,779		$	—		$	—		$	17,779
Money market funds		235,513			—			—			235,513
U.S. Treasuries		59,981			—			—			59,981
Auction rate securities		—			—			88,202			88,202
Total		$	313,273		$	—		$	88,202		$	401,475
Amounts included in:
Cash and cash equivalents		$	283,283		$	—		$	—		$	283,283
Short-term investments		29,990			—			300			30,290
Investments		—			—			87,902			87,902
Total		$	313,273		$	—		$	88,202		$	401,475

 

December 31, 2008		Level 1			Level 2			Level 3			Total
Cash		$	23,944		$	—		$	—		$	23,944
Money market funds		172,558			—			—			172,558
U.S. Treasuries		80,240			—			—			80,240
Municipal securities		1,154			—			—			1,154
Auction rate securities		—			—			97,617			97,617
Total		$	277,896		$	—		$	97,617		$	375,513
Amounts included in:
Cash and cash equivalents		$	256,801		$	—		$	—		$	256,801
Short-term investments		21,095			—			8,050			29,145
Investments		—			—			89,567			89,567
Total		$	277,896		$	—		$	97,617		$	375,513

 

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HANSEN NATURAL CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

The following table provides a summary of changes in fair value of the Company’s Level 3 financial assets for the three- and six-months ended June 30, 2009:

 

		Level 3 Auction Rate Securities
Balance at December 31, 2008		$	97,617
Transfers to Level 3		—
Recognized loss included in income		(3,539		)
Unrealized gain included in other comprehensive loss		2,936
Net settlements		(10,475		)
Balance at March 31, 2009		$	86,539
Transfers to Level 3		—
Recognized loss included in income		—
Unrealized gain included in other comprehensive loss		3,163
Net settlements		(1,500		)
Balance at June 30, 2009		$	88,202

 

The Company’s Level 3 assets are comprised of municipal or educational related or other public body notes with an auction reset feature (“auction rate securities”). The majority of these notes carry an investment grade or better credit rating and are additionally backed by various federal agencies and/or monoline insurance companies. The applicable interest rate is reset at pre-determined intervals, usually every 7 to 35 days.  Liquidity for these auction rate securities was typically provided by an auction process which allowed holders to sell their notes at periodic auctions.  During the six-months ended June 30, 2009 and prior periods, the auctions for these auction rate securities failed.  The auction failures appear to have been attributable to inadequate buyers and/or buying demand and/or the lack of support from financial advisors and sponsors.  In the event that there is a failed auction, the indenture governing the security in some cases requires the issuer to pay interest at a default rate that may be above market rates for similar instruments. The securities for which auctions have failed will continue to accrue and/or pay interest at their pre-determined rates and be auctioned every 7 to 35 days until their respective auction succeeds, the issuer calls the securities, they mature or the Company is able to sell the securities to third parties. As a result, the Company’s ability to liquidate and fully recover the carrying value of its auction rate securities in the near term may be limited. Consequently, these securities, except those that were redeemed at par after June, 30, 2009, are classified as long-term investments in the accompanying condensed consolidated balance sheets.

 

At June 30, 2009, the Company held auction rate securities with a face value of $100.5 million (amortized cost basis of $96.5 million). A Level 3 valuation was performed on the Company’s auction rate securities as of June 30, 2009, which indicated an impairment of $12.3 million, a decrease of $2.6 million from $14.9 million as of December 31, 2008, resulting in a fair value of $88.2 million, which is included in short- and long-term investments.  This valuation utilized a mark to model approach which included estimates for interest rates, timing and amount of cash flows, credit and liquidity premiums, and expected holding periods for the auction rate securities.  These assumptions are typically volatile and subject to change as the underlying data sources and market conditions evolve.

 

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HANSEN NATURAL CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

On April 1, 2009, the Company adopted FSP 115-2 which amended the other-than-temporary impairment model for debt securities.

 

Under FSP 115-2, an other-than-temporary impairment must be recognized through earnings if an investor has the intent to sell the debt security or if it is more likely than not that the investor will be required to sell the debt security before recovery of its amortized cost basis.  However, even if an investor does not expect to sell a debt security, it must evaluate expected cash flows to be received and determine if a Credit Loss has occurred.  In the event of a Credit Loss and absent the intent or requirement to sell a debt security before recovery of its amortized cost, only the amount associated with the Credit Loss is recognized in income.  The amount of loss relating to other factors is recorded in accumulated other comprehensive income. FSP 115-2 also requires additional disclosures regarding the calculation of Credit Losses and the factors considered in reaching a conclusion that an investment is not other-than-temporarily impaired.

 

The Company determined that of the $12.3 million impairment of its auction rate securities, $8.3 million was temporary and $4.0 million was other-than-temporary.  The other-than-temporary impairment was deemed Credit Loss related.  Therefore, as of April 1, 2009, the date of adoption of FSP 115-2, the Company recorded no cumulative effect adjustment of non-credit related losses related to the previously recognized other-than-temporary impairment charges.  In addition, no Credit Loss was recognized through earnings related to available for sale securities during the three-months ended June 30, 2009. At June 30, 2009, $8.3 million of temporary impairment has been recorded, less a tax benefit of $3.3 million, as a component of accumulated other comprehensive loss.  The factors evaluated to differentiate between temporary impairment and other-than-temporary impairment included the projected future cash flows, credit ratings actions, and assessment of the credit quality of the underlying collateral, as well as the other factors included in the valuation model for debt securities described above.

 

Based on the Company’s ability to access cash and cash equivalents and other short-term investments and based on the Company’s expected operating cash flows, the Company does not anticipate that the current lack of liquidity of these investments will have a material effect on its liquidity or working capital.  If uncertainties in the credit and capital markets continue or there are ratings downgrades on the auction rate securities held by the Company, the Company may be required to recognize additional impairments on these investments.

 

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4.                                       INVESTMENTS

 

The following table summarizes the Company’s investments at June 30, 2009 and December 31, 2008:

 

June 30, 2009		Amortized Cost			Gross Unrealized Holding Gains			Gross Unrealized Holding Losses			Fair Value			Continuous Unrealized Loss Position less than 12 Months			Continuous Unrealized Loss Position greater than 12 Months
Held to Maturity
Short-term
U.S. Treasuries		$	29,990		$	—		$	—		$	29,990		$	—		$	—
Available-for-sale
Short-term:
Auction rate securities		$	300		$	—		$	—		$	300		$	—		$	—
Long-term:
Auction rate securities		96,160			—			8,258			87,902			—			8,258
Total		$	126,450		$	—		$	8,258		$	118,192		$	—		$	8,258

 

					Gross			Gross						Continuous Unrealized			Continuous Unrealized
					Unrealized			Unrealized						Loss Position			Loss Position
		Amortized			Holding			Holding			Fair			less than 12			greater than
December 31, 2008		Cost			Gains			Losses			Value			Months			12 Months
Held to Maturity
Short-term
U.S. Treasuries		$	19,941		$	—		$	—		$	19,941		$	—		$	—
Available-for-sale
Short-term:
Municipal securities		$	1,154		$	—		$	—		$	1,154		$	—		$	—
Auction rate securities		8,050			—			—			8,050			—			—
Long-term:
Auction rate securities		103,923			—			14,356			89,567			14,356			—
Total		$	133,068		$	—		$	14,356		$	118,712		$	14,356		$	—

 

The following table summarizes the maturities of the Company’s investments at June 30, 2009:

 

		Amortized Cost			Fair Value
Less than 1 year		$	30,290		$	30,290
Due 1 - 10 years		700			672
Due 11 - 20 years		10,525			9,637
Due 21 - 30 years		60,775			55,126
Due 31 - 40 years		24,160			22,467
Total		$	126,450		$	118,192

 

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5.                                       INVENTORIES

 

Inventories consist of the following at:

 

		June 30, 2009			December 31, 2008
Raw materials		$	33,437		$	24,454
Finished goods		83,907			91,872
		$	117,344		$	116,326

 

6.                                       PROPERTY AND EQUIPMENT, Net

 

Property and equipment consist of the following at:

 

		June 30, 2009			December 31, 2008
Land		$	1,417		$	1,417
Leasehold improvements		2,120			2,112
Furniture and fixtures		1,695			1,182
Office and computer equipment		4,704			2,998
Computer software		3,600			1,845
Equipment		10,792			3,850
Vehicles		8,677			8,175
		33,005			21,579
Less: accumulated depreciation and amortization		(9,170		)	(7,190		)
		$	23,835		$	14,389

 

7.                                       INTANGIBLES, Net

 

Intangibles consist of the following at:

 

		June 30, 2009			December 31, 2008
Amortizing trademarks		$	1,059		$	1,169
Accumulated amortization		(390		)	(456		)
		669			713
Non-amortizing intangibles		29,150			27,652
		$	29,819		$	28,365

 

All amortizing trademarks have been assigned an estimated useful life and such trademarks are amortized on a straight-line basis over the number of years that approximate their respective useful lives ranging from one to 25 years (weighted-average life of 20 years).  Amortization expense was $0.01 million for both the three-months ended June 30, 2009 and 2008, respectively.  Amortization expense was $0.02 million and $0.03 million for the six-months ended June 30, 2009 and 2008, respectively.

 

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8.                                       DISTRIBUTION AGREEMENTS

 

Pursuant to certain new and/or amended distribution agreements entered into with certain distributors, net amounts of $5.3 million and $(0.4) million due from/to such distributors were recorded during the six-months ended June 30, 2009 and 2008, respectively.  Such amounts are accounted for as deferred revenue in the condensed consolidated balance sheets at June 30, 2009 and 2008, respectively.  Deferred revenue is recognized as revenue ratably over the anticipated life of the respective distribution agreements, generally 20 years. Revenue recognized was $1.8 million and $0.5 million for the three-months ended June 30, 2009 and 2008, respectively.  Revenue recognized was $3.7 million and $1.0 million for the six-months ended June 30, 2009 and 2008, respectively.  The Company incurred termination costs to certain of its prior distributors amounting to $0.7 million and $0.2 million during the three-months ended June 30, 2009 and 2008, and $1.8 million and $0.2 million during the six-months ended June 30, 2009 and 2008, respectively. These amounts are included in operating expenses in the condensed consolidated statements of income.

 

9.                                       COMMITMENTS AND CONTINGENCIES

 

Purchase Commitments — The Company has purchase commitments aggregating approximately $84.8 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 and are due within the next 12 months.

 

The Company has noncancelable contractual obligations aggregating approximately $57.0 million, which are related primarily to sponsorships and other marketing activities.

 

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, as amended, the Company has undertaken to purchase a minimum volume of 24-ounce re-sealable aluminum beverage cans over the four year period commencing from  January 1, 2006 through December 31, 2009.  Under the terms of the agreement, if the Company fails 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 as of June 30, 2009 is $2.6 million, subject to compliance by Rexam with certain conditions.

 

In the fourth quarter of 2008, the Company entered into licensing and programming agreements with SAP America, Inc., for its global enterprise resource planning software initiative to replace its existing legacy software.  The Company also entered into agreements with Axon Solutions, Inc. and Vistex Inc. for the implementation and configuration of the SAP software.  The Company estimates the remaining cost for implementation of the initiative will be approximately $3.8 million.  The project commenced in the first quarter of 2009 with a targeted production live date in the first quarter of 2010.

 

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Litigation — In August 2006, HBC filed a lawsuit against National Beverage Company, Shasta Beverages, Inc., Newbevco Inc. and Freek’N Beverage Corp. (collectively “National”) seeking an injunction and damages for trademark infringement, trademark dilution, unfair competition and deceptive trade practices based on National’s unauthorized use of HBC’s valuable and distinctive Monster Energy® trade dress in connection with a line of energy drinks it launched under the “Freek” brand name.  In June 2007, the parties entered into a confidential settlement agreement resolving the parties’ disputes in the litigation. National subsequently repudiated the settlement agreement and HBC responded by filing a motion in the United States District Court for the Central District of California to enforce the terms of the confidential settlement agreement.  On August 14, 2007, the United States District Court entered an order enforcing the settlement agreement and permanently enjoining National from manufacturing, distributing, shipping, marketing, selling and offering to sell “Freek” energy drinks in containers using the original “Freek” trade dress that was subject to the District Court’s preliminary injunction.  National appealed the District Court’s decision to the Ninth Circuit Court of Appeals, which heard oral arguments on December 11, 2008.  No decision has been issued on the appeal.

 

In September 2006, Christopher Chavez purporting to act on behalf of himself and a class of consumers yet to be defined filed an action in the Superior Court of the State of California, City and County of San Francisco, against the Company and its subsidiaries for unfair business practices, false advertising, violation of California Consumers Legal Remedies Act, fraud, deceit and/or misrepresentation alleging that the Company misleadingly labels its Blue Sky beverages as originating in and/or being canned under the authority of a company located in Santa Fe, New Mexico.  Defendants removed this Superior Court action to the United States District Court for the Northern District of California under the Class Action Fairness Act, and filed motions for dismissal or transfer.  On June 11, 2007, the United States District Court, Northern District of California granted the Company’s motion to dismiss Chavez’s complaint with prejudice. On June 21, 2007, Chavez filed an appeal with the United States Court of Appeals for the Ninth Circuit, and the Court heard oral arguments on January 14, 2009.  Subsequently, on June 23, 2009, the Court filed a memorandum opinion reversing the opinion of the United States District Court and remanding the case to the United States District Court for further proceedings.  The Company filed an answer to the complaint on behalf of all the defendants on July 20, 2009, essentially denying the allegations set forth in the complaint.  The Company believes it has meritorious defenses to the allegations and plans a vigorous defense.

 

On July 3, 2008, the Company filed an action in the Superior Court for the State of California for Los Angeles County against St. Paul Mercury Insurance Company (“St. Paul”) due to St. Paul’s failure to reimburse the Company for certain costs and expenses incurred and paid by the Company for and in connection with the investigation and defense of various proceedings relating to certain stock option grants made by the Company, including Special Committee investigation costs (the “St. Paul Complaint”).  The Company purchased from St. Paul a directors and officers insurance policy that the Company contends covered such expenses during the pertinent time period.  St. Paul has reimbursed the Company for certain of the costs and expenses associated with the Company’s successful defense against the subject proceedings, but has refused to pay the remainder of the limits of its policy.  The St. Paul Complaint alleges that St. Paul is liable to the Company for the difference.  The Company seeks damages arising from St. Paul’s breach of the policy, punitive damages, and

 

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reimbursement of the attorneys’ fees expended in the investigation and litigation.  On August 1, 2008, St. Paul removed the lawsuit to the United States District Court for the Central District of California and shortly thereafter answered the St. Paul Complaint, denying that it has any further responsibility to the Company beyond the amount for which it had previously reimbursed the Company.  On January 30, 2009, St. Paul filed a motion for partial summary judgment on certain major issues in the litigation.  The Court entered an order on St. Paul’s motion on April 9, 2009, partially granting and partially denying its motion. The parties participated in a court-ordered mediation on June 6, 2009, pursuant to which the parties to the litigation, along with one of the Company’s excess insurance carriers that was not named as a defendant in the litigation, negotiated a comprehensive settlement in principle of the claims asserted by the Company against St. Paul in the litigation and the Company’s claims against the excess carrier.  Subsequently, certain disagreements have arisen with respect to the finalization and codification of the comprehensive settlement in principle.  If the settlement in principle is consummated, the litigation will be dismissed.  If the parties are unable to finalize the settlement in principle, the litigation will proceed.  The trial date is currently scheduled for January 2010.

 

On July 11, 2008, the Company initiated an action against Citigroup Inc., Citigroup Global Markets, Inc., and Citi Smith Barney, in the United States District Court, Central District of California, for violations of federal securities laws and the Investment Advisors Act, arising out of the Company’s purchase of auction rate securities.  The Court granted defendants’ motion to compel arbitration before the Financial Industry Regulatory Authority (“FINRA”).  The matter is now proceeding before FINRA and has been set for hearing in March 2010.

 

On August 28, 2008, the Company initiated an action against Oppenheimer Holdings Inc., Oppenheimer & Co. Inc., and Oppenheimer Asset Management Inc., in the United States District Court, Central District of California, for violations of federal securities laws and the Investment Advisors Act, arising out of the Company’s purchase of auction rate securities.  The defendants answered the complaint on October 14, 2008 denying the allegations set forth therein.  The Oppenheimer action was deemed a related case to the Company’s action against Citigroup Inc. (described above).  After the Court granted the defendants’ motion to compel arbitration in the Citigroup Inc. case, the Company stipulated to arbitration before FINRA, where the matter is now proceeding and has been set for hearing in February 2010.  The Company has voluntarily dismissed, without prejudice, its claims against Oppenheimer Asset Management, Inc. Oppenheimer Holdings, Inc. has filed a motion to be dismissed from the proceeding, which the Company intends to oppose, and which is scheduled to be heard in August 2009.

 

In May 2009, Avraham Wellman, purporting to act on behalf of himself and a class of consumers in Canada, filed a putative class action in the Ontario Superior Court of Justice, in the City of Toronto, Ontario, Canada, against the Company and its former Canadian distributor, Pepsi-Cola Canada Ltd., as defendants.  The plaintiff alleges that the defendants misleadingly packaged and labeled Monster Energy® products in Canada by not including sufficiently specific statements with respect to contra-indications and/or adverse reactions associated with the consumption of the energy drink products.  The plaintiff’s claims are against the defendants for negligence, unjust enrichment, and making misleading/false representations in violation of the Competition Act (Canada), the Food and Drugs Act (Canada) and the Consumer Protection Act, 2002 (Ontario).  The

 

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plaintiff claims general damages on behalf of the putative class in the amount of CDN$20 million, together with punitive damages of CDN$5 million, plus legal costs and interest. The plaintiff’s certification motion materials have not yet been filed.  In accordance with class action practice in Ontario, the Company will not file an answer to the claim until after the determination of the certification motion.  The Company believes that the plaintiff’s complaint is without merit and plans a vigorous defense.

 

In addition to the above matters, the Company is subject to litigation from time to time in the normal course of business, including claims from terminated distributors.  Although it is not possible to predict the outcome of such litigation, based on the facts known to the Company and after consultation with counsel, management believes that such litigation in the aggregate will likely not have a material adverse effect on the Company’s financial position or results of operations.

 

Securities Litigation - On September 11, 2008, a federal securities class action complaint styled Cunha v. Hansen Natural Corp., et al. was filed in the United States District Court for the Central District of California (the “District Court”). On September 17, 2008, a second federal securities class action complaint styled Brown v. Hansen Natural Corp., et al. was also filed in the District Court.

 

Both actions, filed by single individual shareholders purportedly on behalf of a class of purchasers of the Company’s stock during the period May 23, 2007 through November 8, 2007 (the “Class Period”), name as defendants the Company, Rodney C. Sacks (“Sacks”), and Hilton H. Schlosberg (“Schlosberg”). The allegations of both complaints are substantially similar. Plaintiffs allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Plaintiffs allege, among other things, that during the Class Period, the defendants issued materially false and misleading statements that failed to disclose that: (i) the Company’s second quarter sales results were “materially impacted by inventory loading as customers were induced to purchase more product before the Company raised its prices in its Monster Energy® drink line and its Java Monster™ drink line” (ii) the Company was “experiencing declining sales in its non-core drink lines” (iii) the Company was “experiencing production shortfalls with its Java Monster™ drink line” and (iv) as a result of the foregoing, defendants “lacked a reasonable basis for their positive statements about the Company and its prospects.” The complaints seek an unspecified amount of damages.

 

On July 14, 2009, the Court entered an order consolidating the actions and appointing lead counsel and the Structural Ironworkers Local Union #1 Pension Fund as lead plaintiff.  Pursuant to a previously entered stipulation and order, the lead plaintiff is required to file a consolidated complaint or designate one of the existing complaints as operative by no later than August 28, 2009, and defendants must respond within forty-five days from the date of service or designation of such complaint.

 

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Derivative Litigation - On October 15, 2008, a derivative complaint was filed in the United States District Court for the Central District of California (the “District Court”), styled Merckel v. Sacks, et al.  On November 17, 2008, a second derivative complaint styled Dislevy v. Sacks, et al. was also filed in the District Court.  The derivative suits were each brought, purportedly on behalf of the Company, by a shareholder of the Company who made no prior demand on the Company’s Board of Directors.

 

The Merckel complaint names as defendants certain current and former officers, directors, and employees of the Company and HBC, including Sacks, Schlosberg, Harold C. Taber, Jr., Benjamin M. Polk, Norman C. Epstein, Mark S. Vidergauz, Sydney Selati (“Selati”), Thomas J. Kelly (“Kelly”), Mark J. Hall (“Hall”), Kirk S. Blower (“Blower”), and Hilrod Holdings, L.P.  The Company is named as a nominal defendant.  The factual allegations of the complaint are substantially similar to those set forth in the two securities class action complaints described above.  The complaint also alleges, among other things, that between May 2007 and the date of the filing of the complaint, the defendants directed the Company to issue a series of improper statements concerning its business prospects. The complaint further alleges that while the Company’s shares were purportedly artificially inflated because of those improper statements, certain defendants sold Company stock while in possession of material non-public information regarding the Company’s “true” business prospects. The complaint asserts various causes of action, including breach of fiduciary duty, aiding and abetting breach of fiduciary duty, violation of Cal. Corp. Code §§ 25402 and 25403 for insider selling, and unjust enrichment. The suit seeks an unspecified amount of damages to be paid to the Company, adoption of corporate governance reforms, and equitable and injunctive relief.

 

The Dislevy complaint, which has not been served, makes substantially similar factual allegations as the Merckel complaint, but names only Sacks, Schlosberg, Selati, Kelly, Hall, and Blower as defendants.  The Dislevy complaint asserts only two causes of action:  breach of fiduciary duty and unjust enrichment.  The suit seeks an unspecified amount of damages to be paid to the Company and equitable relief.

 

On June 29, 2009, the Court entered an order consolidating the Merckel and Dislevy actions.  On July 13, 2009, the Court entered an order re-styling the consolidated actions as In re Hansen Derivative Litigation, appointing lead counsel, and establishing a schedule for the filing of a consolidated amended complaint and for defendants’ response to such complaint.  Pursuant to that order, plaintiffs must file a consolidated amended complaint forty-five days after the date on which a consolidated amended complaint in the securities class action litigation is filed, and defendants must respond to the consolidated amended complaint in the derivative action within forty-five days after it is filed.

 

Although the ultimate outcome of these matters cannot be determined with certainty, the Company believes that the complaints are without merit. The Company intends to vigorously defend against these lawsuits.

 

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10.                                 COMPREHENSIVE INCOME

 

The components of comprehensive income are as follows:

 

		Three-Months Ended June 30,						Six-Months Ended June 30,
		2009			2008			2009			2008
Net income, as reported		$	57,289		$	50,232		$	98,855		$	79,043
Other comprehensive income (loss):
Change in unrealized loss on available- for-sale securities, net of tax		1,908			(148		)	3,678			(3,376		)
Foreign currency translation adjustments		604			(7		)	1,344			(6		)
Comprehensive income		$	59,801		$	50,077		$	103,877		$	75,661

 

The components of accumulated other comprehensive loss is as follows:

 

		June 30, 2009			December 31, 2008
Accumulated net unrealized loss on available-for-sale securities, net of tax benefit of $3.3 million and $5.7 million as of June 30, 2009 and December 31, 2008, respectively		$	(4,981	)	$	(8,660	)
Foreign currency translation adjustments		(821		)	(2,165		)
Total accumulated other comprehensive loss		$	(5,802	)	$	(10,825	)

 

11.                                 STOCK-BASED COMPENSATION

 

The Company has two stock option plans under which shares were available for grant at June 30, 2009: the Hansen Natural Corporation Amended and Restated 2001 Stock Option Plan (the “2001 Option Plan”) and the 2009 Hansen Natural Corporation Stock Incentive Plan for Non-Employee Directors (the “2009 Directors Plan”). The 2009 Directors Plan was approved by the Board of Directors on April 13, 2009, and ratified by the stockholders of the Company at the annual meeting of stockholders, held on June 4, 2009, which replaced the 2005 Hansen Natural Corporation Stock Option Plan for Non-Employee Directors (the “2005 Directors Plan”).

 

The 2001 Option Plan permits the granting of options to purchase up to 22,000,000 shares of the common stock of the Company to certain key employees or non-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, non-qualified stock options or stock appreciation rights.  The Compensation Committee of the Board of Directors has sole and exclusive

 

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authority to grant stock option awards to all employees who are not new hires and to all new hires who are subject to Section 16 of the Exchange Act.  The Compensation Committee and the Executive Committee of the Board of Directors each independently has the authority to grant awards to hew hires who are not Section 16 employees.  Awards granted by the Executive Committee are not subject to approval or ratification by the Board or the Compensation Committee.  Stock options are generally exercisable up to a ten-year period after their date of grant.  As of June 30, 2009, options to purchase 17,675,600 shares of the Company’s common stock had been granted, net of cancellations, and options to purchase 4,324,400 shares of the Company’s common stock remain available for grant under the 2001 Option Plan.

 

The 2009 Directors Plan permits the granting of options to purchase up to an aggregate of 800,000 shares of common stock of the Company to non-employee directors of the Company.  The 2009 Directors Plan is administered by the Board of Directors.  Each award granted under the 2009 Directors Plan will be evidenced by a written agreement and will contain the terms and conditions that the Board of Directors deems appropriate.  The Board of Directors may grant awards on the last business day prior to the date of the annual meeting of stockholders.  Any award granted under the 2009 Directors Plan will vest, with respect to 100% of such award, in the calendar year following the calendar year in which such award is granted, on the last business day prior to the date of the annual meeting.  The Board of Directors may determine the exercise price per share of the Company’s common stock under each option, but such price may not be less than 100% of the closing price of the Company’s common stock for one share on the date an option is granted.  Option grants may be made under the 2009 Directors Plan for 10 years from June 4, 2009.  The Board of Directors may amend or terminate the 2009 Directors Plan at any time.  As of June 30, 2009, no options to purchase shares of the Company’s common stock had been granted under the 2009 Directors Plan, and options to purchase 800,000 shares of the Company’s common stock remained available for grant.

 

The 2005 Directors Plan, which was replaced by the 2009 Directors Plan, permitted the granting of options to purchase up to an aggregate of 800,000 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 was initially elected, each eligible director was entitled to receive a one-time grant of an option to purchase 24,000 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 of Directors, and each fifth anniversary thereafter, each eligible director was to receive an additional grant of an option to purchase 19,200 shares of the Company’s common stock.  Options became 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 became fully and immediately exercisable upon a change in control of the Company.  Options granted under the 2005 Directors Plan that were not exercised generally expired ten years after the date of grant.  Option grants could be made under the 2005 Directors Plan for ten years from the effective date of the 2005 Directors Plan.  The 2005 Directors Plan was a “formula plan” so that a non-employee director’s participation in the 2005 Directors Plan did not affect his status as a “disinterested person” (as defined in Rule 16b-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)).  As of June 30, 2009, options to purchase 76,800 shares of the Company’s common stock had been granted under the 2005 Directors Plan.

 

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Under the Company’s stock option plans, all grants are made at prices based on the fair value of the options on the date of grant.  Outstanding options under the 2001 Option Plan generally vest over five years from the grant date and generally expire up to ten years after the grant date. The Company recorded $3.7 million of compensation expense relating to outstanding options during both the three-months ended June 30, 2009 and 2008, respectively.  The Company recorded $6.4 million and $5.8 million of compensation expense relating to outstanding options during the six-months ended June 30, 2009 and 2008, respectively.  Refer to “Change in Estimated Forfeiture Rate” within this Note 11 for additional information.

 

The Company records compensation expense for employee stock options based on the estimated fair value of the options on the date of grant using the Black-Scholes-Merton option pricing formula with the assumptions included in the table below. The Company records compensation expense for non-employee stock options based on the estimated fair value of the options as of the earlier of (1) the date at which a commitment for performance by the non-employee to earn the stock option is reached, or (2) the date at which the non-employee’s performance is complete, using the Black-Scholes-Merton option pricing formula with the assumptions included in the table below. The Company uses historical data to determine the exercise behavior, volatility and forfeiture rate of the options.  The following weighted-average assumptions were used to estimate the fair value of options granted during the three- and six-months ended June 30, 2009 and 2008:

 

		Three-Months Ended June 30,				Six-Months Ended June 30,
		2009		2008		2009		2008
Dividend yield		0.0%		0.0%		0.0%		0.0%
Expected volatility		63%		62%		64%		62%
Risk free interest rate		2.5%		3.5%		2.3%		3.5%
Expected lives		5.5 Years		5.6 Years		5.3 Years		5.6 Years

 

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