-----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, G8OahsXaeHX/yDqClcjL0B+B0XrNRlyCutqXhfoBCHyg4ZdfljbmsDvm33nfEekT Zt3m4NIkJGfFQVMNrPZmWA== 0000899733-98-000162.txt : 19981102 0000899733-98-000162.hdr.sgml : 19981102 ACCESSION NUMBER: 0000899733-98-000162 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19981030 EFFECTIVENESS DATE: 19981030 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: WILD OATS MARKETS INC CENTRAL INDEX KEY: 0000909990 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CONVENIENCE STORES [5412] IRS NUMBER: 841100630 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-66347 FILM NUMBER: 98733484 BUSINESS ADDRESS: STREET 1: 1645 BROADWAY CITY: BOULDER STATE: CO ZIP: 80302 BUSINESS PHONE: 3034405220 MAIL ADDRESS: STREET 1: 1645 BROADWAY CITY: BOULDER STATE: CO ZIP: 80302 S-8 1 10/28/98 S-8 As Filed With the Securities and Exchange Commission on October 29, 1998 FILE 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) Delaware 84-1100630 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 1645 Broadway Boulder, Colorado 80302 ( Address of principal executive offices) (Zip Code) 1996 EQUITY INCENTIVE PLAN (As amended May 4, 1998) (Full title of the Plan) --------- Michael C. Gilliland Chief Executive Officer With copies to: Wild Oats Markets, Inc. Francis R. Wheeler, Esq. 1645 Broadway Holme Roberts & Owen LLP Boulder, Colorado 80302 1700 Lincoln, Suite 4100 (Name and address of agent for service) Denver, Colorado 80203 (303) 861-7000 (303) 440-5220 (Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------- Title of Proposed Maximum Proposed Maximum Securities to be Amount to be Offering Aggregate Amount of Registered Registered Price Per Share(1) Offering Price(1) Registration Fee - ------------------------------------------------------------------------------------------------------------------- Common Stock (par value $.001) 121,940 $ (1) $ (1) $ (1) 96,260 25.00 2,406,500.00 669.00 27,138 (3) 26.50 719,157.00 199.93 587 (4) 22.53 13,225.11 3.68 579,075 (5) 24.75 14,332,106.00 3,984.33 ------- ------------- -------- Total: 825,000 (6) 17,470,988.11 4,856.94 - -------------------------------------------------------------------------------------------------------------------
(1) In accordance with Rule 429(a) and Rule 416(b), this Registration Statement relates to 121,940 shares of Common Stock (81,293 shares prior to the three-for-two split of the Registrant's Common Stock, payable on January 7, 1998 to holders of record on December 22, 1997) covered by the Registrant's Registration Statement on Form S-3 (File No. 333-40305). Such shares are being carried forward from such earlier Registration Statement in accordance with Rule 429(b). A filing fee of $939.09 associated with such shares was previously paid with such earlier Registration Statement. Page 1 (2) Estimated solely for the purpose of calculating the registration fee for the shares being registered hereby pursant to Rule 457(h) under the Securities Act of 1933, as amended (the "Act"), based on $25.00, the price at which the options may be exercised. (3) Estimated solely for the purpose of calculating the registration fee for the shares being registered hereby pursant to Rule 457(h) under the Act, based on $26.50, the price at which the options may be exercised. (4) Estimated solely for the purpose of calculating the registration fee for the shares being registered hereby pursant to Rule 457(h) under the Act, based on $22.53, the price at which the options may be exercised. (5) Estimated solely for the purpose of calculating the registration fee for the shares being registered hereby pursant to Rule 457(c) under the Act, based on $24.75, the average of the high and low prices reported on the National Market tier of the Nasdaq Stock Market on October 27, 1998. (6) Covered by the 1996 Equity Incentive Plan. Page 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents filed by Wild Oats Markets, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated by reference into this Registration Statement: (1) The Company's annual report on Form 10-K for the fiscal year ended December 27, 1997, as amended on Form 10-K/A dated June 15, 1998. (2) The Company's Quarterly Reports on Form 10-Q for the quarters ended March 28, 1998 and June 27, 1998. (3) The Company's Current Report on Form 8-K for an event that occurred on May 5, 1998. (4) Pages F-17 through F-30 and pages F-36 through F-45 of the Company's prospectus dated October 22, 1996. (5) The description of the Company's Common Stock which is contained in the Company's registration statement filed on October 17, 1996, including any amendment or report filed for the purpose of updating such description. (6) All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part thereof from the date of filing of such reports and documents. Item 4. Description of Securities Not Applicable. Item 5. Interests of Named Experts Not Applicable. Item 6. Indemnification of Directors and Officers Under Section 145 of the Delaware General Corporation Law, the Company has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act. The Company's Bylaws 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 Company's Certificate of Incorporation 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 Page 3 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 continue to be subject for liability for breach of the director's 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 director's 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 person's 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 Company's Articles of Incorporation, Bylaws 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 Exhibit No. Description 5.1 Opinion of Holme Roberts & Owen LLP 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Deloitte & Touche LLP 23.3 Consent of Holme Roberts & Owen LLP is contained in its legality opinion filed as Exhibit 5.1 24.1 Power of Attorney 99.1 Amendment to 1996 Equity Incentive Plan Item 9. Undertakings (a) Rule 415 Offerings. The undersigned registrant hereby undertakes: (1) 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 of 1933; Page 4 (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 the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the high or low end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) 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. (b) Filings incorporating subsequent Exchange Act documents by reference. The undersigned registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Request for acceleration of effective date or filing of registration statement on Form S-8. Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Commission such indemnification is against public policy as expressed in the 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 competent jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. Page 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 Boulder, State of Colorado on October 29, 1998. WILD OATS MARKETS, INC., a Delaware corporation By: /s/ Mary Beth Lewis Mary Beth Lewis Vice President of Finance, Chief Financial Officer and Treasurer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date Michael C. Gilliland* Chief Executive Officer and Director October 29, 1998 (Principal Executive Officer) /s/ Mary Beth Lewis Mary Beth Lewis Vice President of Finance, October 29, 1998 Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) Elizabeth C. Cook* Executive Vice President, Secretary and Director October 29, 1998 John Shields* Chairman of the Board October 29, 1998 David Chamberlain* Vice Chairman of the Board October 29, 1998 David L. Ferguson* Director October 29, 1998 James B. McElwee* Director October 29, 1998 Brian K. Devine* Director October 29, 1998 - -------------------------------- *By: /s/ Mary Beth Lewis Mary Beth Lewis Attorney- in-fact Page 6 INDEX TO EXHIBITS Exhibit Number Description Page 5.1 Opinion of Holme Roberts & Owen LLP 8 23.1 Consent of PricewaterhouseCoopers LLP 10 23.2 Consent of Deloitte & Touche LLP 12 23.2 Consent of Holme Roberts & Owen LLP is contained in its legality opinion filed as Exhibit 5.1 24.1 Power of Attorney 14 99.1 Amendment to the Company's 1996 Equity Incentive Plan 16 Page 7 EX-5.1 2 OPINION OF HOLME ROBERTS & OWEN LLP Exhibit 5.1 October 29, 1998 Board of Directors of Wild Oats Markets, Inc. 1645 Broadway Boulder, Colorado 80302 Ladies and Gentlemen: Reference is made to the registration statement on Form S-8 filed with the Securities and Exchange Commission (the "Commission") on October 29, 1998 (the "Registration Statement") by Wild Oats Markets, Inc., a Delaware corporation (the "Company"), for the purpose of registering 825,000 shares of the common stock of the Company (the "Shares") under the Securities Act of 1933. As counsel for the Company, we have examined such documents and reviewed such questions of law as we have considered necessary or appropriate for the purpose of this opinion. Based on the foregoing, we are of the opinion that the Shares, when sold and delivered by the Company pursuant to the Company's 1996 Equity Incentive Plan, as amended, as described in the Registration Statement, will be legally issued, fully paid and nonassessable. We consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We do not express an opinion on any matters other than those expressly set forth in this letter. Very truly yours, Holme Roberts & Owen LLP By: /s/ Francis R. Wheeler Francis R. Wheeler Partner EX-23.1 3 CONSENT OF PRICEWATERHOUSECOOPERS LLP Exhibit 23.1 Consent of Independent Accountants We consent to incorporation by reference in the Prospectus constituting part of this registration statement on Form S- 8 of: Our report dated January 30, 1998, which appears on page 31 of the 1997 Annual Report to Shareholders of Wild Oats Markets, Inc., which is incorporated in the Wild Oats Markets, Inc.'s Annual Report on Form 10-K for the year December 27, 1997, Our report dated August 15, 1996, except for Note 1, paragraph three, as to which the date is October 15, 1996, which appears on page F-17 of the Company's Prospectus dated October 22, 1996, of the financial statements of Alfalfa's, Inc. for the year ended June 30, 1996, and Our report dated August 27, 1996, which appears on page F-36 of the Company's Prospectus dated October 22, 1996, of the financial statements of New Frontiers for the three years in the period ended December 31, 1995. We also consent to the reference to us under the deading "Experts" in such prospectus. PricewaterhouseCoopers LLP Boulder, Colorado October 26, 1998 EX-23.2 4 CONSENT OF DELOITTE & TOUCHE LLP Exhibit 23.2 Independent Auditors' Consent We consent to the incorporation by reference in this Registration Statement of Wild Oats Markets, Inc. on Form S-8 of our report dated September 6, 1995 (October 15, 1996 as to the third paragraph of Note 1), relating to the consolidated balance sheet of Alfalfa's, Inc. and subsidiaries as of June 25, 1995, and the related consolidated statements of operations, stockholders' equity, and cash flows for the years ended June 25, 1995 and June 26, 1994, appearing in Registration Statement No. 333-11261 of Wild Oats Markets, Inc. on Form S-1. Deloitte & Touche LLP Denver, Colorado October 27, 1998 EX-24.1 5 POWER OF ATTORNET Exhibit 24.1 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Mary Beth Lewis his or her attorney-in-fact, with full power of substitution, resubstitution and revocation for him or her in any and all capacities, to execute, deliver and file with the Securities and Exchange Commission (the "Commission"), for and on such person's behalf, and in any and all capacities, a registration statement on Form S-8, and all amendments (including post-effective amendments) thereto, with all exhibits thereto, and other documents in connection therewith, granting unto said attorney-in-fact full power and authority to do and perform each and every other act and thing requisite and necessary to be done as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in fact or such person's substitute or substitutes may lawfully do or cause to be done by virtue hereof. Date: October 22, 1998 /s/ Michael C. Gilliland ------------------------------------------ Michael C. Gilliland, Chief Executive Officer Date: October 22, 1998 /s/ Mary Beth Lewis ----------------------------------------------- Mary Beth Lewis, Vice President of Finance, Officer and Treasurer Date: October 22, 1998 /s/ Elizabeth C. Cook ----------------------------------------------- Elizabeth C. Cook, Executive Vice President, Director Date: October 22, 1998 /s/ John Shields ----------------------------------------------- John Shields, Chairman of the Board Date: October 22, 1998 /s/ David Chamberlain ----------------------------------------------- David Chamberlain, Vice Chairman of the Board Date: October 22, 1998 /s/ David L. Ferguson ----------------------------------------------- David L. Ferguson, Director Date: October 22, 1998 /s/ James B. McElwee ----------------------------------------------- James B. McElwee, Director Date: October 22, 1998 /s/Brian K. Devine ----------------------------------------------- Brian K. Devine, Director EX-99.1 6 AMENDMENT TO PLAN Exhibit 99.1 AMENDMENT TO WILD OATS MARKETS, INC. 1996 EQUITY INCENTIVE PLAN On August 19, 1996, the Board of Directors of Wild Oats Markets, Inc. (the "Company") adopted the 1996 Equity Incentive Plan (the "Plan") under which the Company may, from time to time, issue options exercisable for shares of the Common Stock, stock bonuses and rights to purchase restricted Common Stock of the Company. RECITALS A. The Board of Directors of the Company resolved on February 10, 1998 to increase the number of shares of the Company's Common Stock reserved for issuance upon the exercise of stock options granted under the Plan, by 825,000 shares. B. Shareholder approval to amend the Plan by increasing by 825,000 the number of shares of the Company's Common Stock reserved for issuance under the Plan upon the exercise of stock options granted under the Plan was requested and given at the Shareholders Annual Meeting on May 4, 1998. AMENDMENT 1. Section 4 of the Plan is hereby amended to insert "Two million sixty thousand one hundred forty seven (2,060,147) shares" as the number of shares reserved for issuance upon the exercise of options granted under the Plan. This number reflects the original amounts reserved under Plan on a post-split basis adjusting for splits in October 1996 and January 1998, plus the additional 825,000 shares of common stock referenced in the recitals to this Amendment. 2. The foregoing amendment is effective as of May 4, 1998. 3. Except as set forth, the Plan remains unchanged. /s/ Mary Beth Lewis Assistant Secretary -----END PRIVACY-ENHANCED MESSAGE-----