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As filed with the Securities and Exchange Commission on April 20, 2006
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Registration
No. 333- |
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Wild Oats Markets, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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84-1100630 |
(State of Incorporation)
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(I.R.S. Employer Identification No.) |
3375 Mitchell Lane
Boulder, Colorado 80301-2244
(Address of principal executive offices)
Robert B. Dimond Equity Incentive Plan
and
Samuel M. Martin III Equity Incentive Plan
(Full titles of the plans)
Freya R. Brier
Senior Vice President
Wild Oats Markets, Inc.
3375 Mitchell Lane
Boulder, Colorado 80301-2244
(303) 440-5220
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Francis R. Wheeler, Esq.
Cooley Godward LLP
380 Interlocken Crescent
Suite 900
Broomfield, Colorado 80021-8023
(720) 566-4231
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Amount to be |
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Maximum Offering |
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Aggregate Offering |
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Amount of |
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Title of Securities to be Registered |
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Registered |
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Price Per Share (1) |
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Price (1) |
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Registration Fee |
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Common Stock, par
value $.001 per
share |
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200,000 shares |
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$ |
11.095 |
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$ |
2,219,000 |
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$ |
237.43 |
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(1) |
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant
to Rule 457(h)(1) under the Securities Act of 1933, as amended (the Securities Act). The
price per share and aggregate offering price are based upon the weighted average exercise
price of options outstanding. The following chart illustrates our calculation of the
registration fee: |
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Type of Shares |
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Number of Shares |
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Offering Price Per Share |
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Aggregate Offering Price |
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Shares issuable
pursuant to options
outstanding under
the Robert B.
Dimond Equity
Incentive Plan |
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100,000 |
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$ |
10.00 |
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$ |
1,000,000 |
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Shares issuable
pursuant to options
outstanding under
the Samuel M.
Martin III Equity
Incentive Plan |
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100,000 |
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$ |
12.19 |
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$ |
1,219,000 |
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Approximate date of commencement of proposed sale to the public: As soon as practicable after
this Registration Statement becomes effective.
TABLE OF CONTENTS
INTRODUCTION
This Registration Statement on Form S-8 is filed by Wild Oats Markets, Inc., a Delaware
corporation, (Wild Oats) and relates to 100,000 shares of the Companys Common Stock issuable
pursuant to the Companys Robert B. Dimond Equity Incentive Plan and 100,000 shares of the
Companys Common Stock issuable pursuant to the Companys Samuel M. Martin III Equity Incentive
Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Commission are incorporated by reference into this
Registration Statement:
(a) Our Annual Report on Form 10-K for the fiscal year ended December 31, 2005;
(b) Our amendments on Form 10-K/A to our Annual Report on Form 10-K for the fiscal year ended
December 31, 2005 filed on March 8, 2006.
(c) Our Quarterly Report on Form 10-Q for the quarter ended April 2, 2005, July 2, 2005 and
October 1, 2005;
(d) The description of our Common Stock contained in our registration statement on Form 8-A
filed on October 17, 1996;
(e) The description of rights to purchase our Series A Junior Participating Preferred Stock
contained in our registration statement on
Form 8-A dated May 21, 1998; and
(f) All reports and other documents filed by Wild Oats with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the
date of this Registration Statement.
Any statement contained in a document incorporated, or deemed to be incorporated, by reference
herein or contained in this Registration Statement shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is, or is deemed to be, incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law, Wild Oats has broad powers to
indemnify its directors and officers against liabilities they may incur in such capacities,
including liabilities under the Securities Act. The Companys Amended and Restated Bylaws, as
amended also provide that the Company will indemnify its directors and officers and may indemnify
its employees and other agents to the fullest extent permitted by Delaware law, provided that such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Company and, with respect to any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The Companys Amended and Restated
Certificate of Incorporation, as amended, provides for the elimination of liability for monetary
damages for breach of the directors fiduciary duty of care to the Company and its stockholders.
These provisions do not eliminate the directors duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of nonmonetary relief will remain available
under Delaware law. In addition, each director will
Page 2 of 11
continue to be subject to liability for breach of the directors duty of loyalty to the
Company, for acts or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for any transaction from which the director derived an improper personal
benefit, and for payment of dividends or approval of stock repurchases or redemptions that are
unlawful under Delaware law. The provisions do not affect a directors responsibilities under any
other laws, such as the federal securities laws or state or federal environmental laws.
The Company has entered into agreements with its directors and certain executive officers that
require the Company to indemnify such persons against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred (including expenses of a derivative action) in
connection with any proceeding, whether actual or threatened, to which any such person may be made
a party by reason of the fact that such person is or was a director or officer of the Company,
provided that such persons conduct was not knowingly fraudulent or deliberately dishonest and did
not constitute willful misconduct. The indemnification agreements also set forth certain procedures
that will apply in the event of a claim for indemnification thereunder.
The above discussion of the Companys Amended and Restated Certificate of Incorporation, as
amended, Amended and Restated Bylaws, as amended, and the Delaware General Corporation Law is only
a summary and is qualified in its entirety by the full text of each of the foregoing.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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Exhibit |
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Number |
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Description |
4.1
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Amended and Restated Certificate of Incorporation of Wild Oats (1) |
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4.2
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Certificate of Correction to Amended and Restated Certificate of Incorporation of Wild Oats (1) |
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4.3
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of Wild Oats (2) |
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4.4
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Certificate of Designations of Series A Junior Participating Preferred Stock of Wild Oats (3) |
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4.5
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Amended Certificate of Designations of Series A Junior Participating Preferred Stock of Wild
Oats (4) |
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4.6
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Amended and Restated By-Laws of Wild Oats (1) |
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4.7
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First Amendment to Amended and Restated Bylaws of Wild Oats, adopted March 24, 2006 (5) |
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4.8
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Rights Agreement dated May 22, 1998 between Wild Oats and Norwest Bank Minnesota (3) |
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4.9
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Amendment No. 1 to Rights Agreement dated February 26, 2002 between Wild Oats and Wells Fargo
Bank, N.A (6) |
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4.10
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Amendment No. 2 to Rights Agreement, dated March 24, 2006 between Wild Oats and Wells Fargo
Bank, N.A., as successor in interest to Norwest Bank Minneapolis, N.A. (5) |
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4.11
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Specimen stock certificate (7) |
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5.1
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Opinion of Cooley Godward LLP |
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23.1
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Consent of Ernst & Young LLP |
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23.2
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Consent of PricewaterhouseCoopers LLP |
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23.3
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Consent of Cooley Godward LLP (included in Exhibit 5.1) |
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24.1
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Power of Attorney |
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(1) |
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Incorporated by reference to Wild Oats Annual Report on Form 10-K for the year ended
December 28, 1996 (File No. 0-21577). |
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(2) |
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Incorporated by reference to Wild Oats Amendment No. 2 to the Registration Statement on
Form S-3, filed with the Commission on November 10, 1999 (File No. 333-88011). |
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(3) |
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Incorporated by reference to Wild Oats Form 8-K filed with the Commission on May 21, 1998
(File No. 0-21577). |
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(4) |
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Incorporated by reference to Wild Oats Form 8-K filed with the Commission on May 25, 2004
(File No. 0-21577). |
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(5) |
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Incorporated by reference to Wild Oats Form 8-K filed with the Commission on March 27,
2006. (File No. 0-21577). |
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(6) |
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Incorporated by reference to Wild Oats Annual Report on Form 10-K for the fiscal year
ended December 29, 2001 (File No. 0-21577). |
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(7) |
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Incorporated by reference to Wild Oats Registration Statement on Form S-1 filed on August
30, 1996 (File No. 333-11261). |
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Item 9. Undertakings
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The undersigned registrant hereby undertakes: |
(a) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act
if, in the aggregate, the changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the Calculation of Registration Fee table in the
effective registration statement.
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement;
(b) That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
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The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrants annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Denver, State of Colorado on April 20,
2006.
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Wild Oats Markets, Inc.
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By: |
/s/ Robert B. Dimond
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Robert B. Dimond, Chief Financial Officer |
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(Principal Financial and Accounting Officer) |
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed below by the following persons on behalf of the registrant and in the capacities and on
the dates indicated.
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Signature |
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Title |
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Date |
/s/ Perry D. Odak
Perry D. Odak |
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Chief Executive Officer
and Director (Principal
Executive Officer)
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April 20, 2006 |
/s/ Robert B. Dimond
Robert B. Dimond |
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Senior Vice President
and Chief Financial
Officer
(Principal
Financial and
Accounting Officer)
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April 20, 2006 |
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Robert G. Miller |
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Chairman of the Board
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April 20, 2006 |
Stacey Bell |
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Director |
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David M. Chamberlain |
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Director
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April 20, 2006 |
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Brian K. Devine |
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Director
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April 20, 2006 |
*
David Gallitano |
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Director
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April 20, 2006 |
*
Mark A. Retzloff |
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Director
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April 20, 2006 |
*
John A. Shields |
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Director
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April 20, 2006 |
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*By:
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/s/Freya R. Brier
Freya R. Brier, as Attorney in Fact
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Attorney in Fact
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April 20, 2006 |
Page 5 of 11
EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
4.1
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Amended and Restated Certificate of Incorporation of Wild Oats (1) |
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4.2
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Certificate of Correction to Amended and Restated Certificate of Incorporation of Wild Oats (1) |
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4.3
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of Wild Oats (2) |
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4.4
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Certificate of Designations of Series A Junior Participating Preferred Stock of Wild Oats (3) |
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4.5
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Amended Certificate of Designations of Series A Junior Participating Preferred Stock of Wild
Oats (4) |
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4.6
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Amended and Restated By-Laws of Wild Oats (1) |
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4.7
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First Amendment to Amended and Restated Bylaws of Wild Oats, adopted March 24, 2006 (5) |
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4.8
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Rights Agreement dated May 22, 1998 between Wild Oats and Norwest Bank Minnesota (3) |
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4.9
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Amendment No. 1 to Rights Agreement dated February 26, 2002 between Wild Oats and Wells Fargo
Bank, N.A (6) |
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4.10
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Amendment No. 2 to Rights Agreement, dated March 24, 2006 between Wild Oats and Wells Fargo
Bank, N.A., as successor in interest to Norwest Bank Minneapolis, N.A. (5) |
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4.11
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Specimen stock certificate (7) |
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5.1
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Opinion of Cooley Godward LLP |
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23.1
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Consent of Ernst & Young LLP |
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23.2
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Consent of PricewaterhouseCoopers LLP |
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23.3
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Consent of Cooley Godward LLP (included in Exhibit 5.1) |
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24.1
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Power of Attorney |
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(1) |
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Incorporated by reference to Wild Oats Annual Report on Form 10-K for the year ended
December 28, 1996 (File No. 0-21577). |
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(2) |
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Incorporated by reference to Wild Oats Amendment No. 2 to the Registration Statement on
Form S-3, filed with the Commission on November 10, 1999 (File No. 333-88011). |
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(3) |
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Incorporated by reference to Wild Oats Form 8-K filed with the Commission on May 21, 1998
(File No. 0-21577). |
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(4) |
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Incorporated by reference to Wild Oats Form 8-K filed with the Commission on May 25, 2004
(File No. 0-21577). |
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(5) |
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Incorporated by reference to Wild Oats Form 8-K filed with the Commission on March 27,
2006. (File No. 0-21577). |
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(6) |
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Incorporated by reference to Wild Oats Annual Report on Form 10-K for the fiscal year
ended December 29, 2001 (File No. 0-21577). |
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(7) |
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Incorporated by reference to Wild Oats Registration Statement on Form S-1 filed on August
30, 1996 (File No. 333-11261). |
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