-----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, Qwk/iJof6pELQt+G1FPsDf1e/AHkdGkko1RefatuvZSJtaqKBFuz1CKUB+NWTM9T b5nW/t/y1/9GTPArSgvM/w== 0000929624-99-000113.txt : 19990127 0000929624-99-000113.hdr.sgml : 19990127 ACCESSION NUMBER: 0000929624-99-000113 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990125 EFFECTIVENESS DATE: 19990125 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WEST MARINE INC CENTRAL INDEX KEY: 0000912833 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-AUTO DEALERS & GASOLINE STATIONS [5500] IRS NUMBER: 770355502 STATE OF INCORPORATION: DE FISCAL YEAR END: 1229 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-71147 FILM NUMBER: 99512406 BUSINESS ADDRESS: STREET 1: 500 WESTRIDGE DR CITY: WATSONVILLE STATE: CA ZIP: 95076-4100 BUSINESS PHONE: 4087282700 S-8 1 FORM S-8 ================================================================================ As filed with the Securities and Exchange Commission on January 25, 1999 Registration No. 333-____ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ WEST MARINE, INC. (Exact name of issuer as specified in its charter) Delaware 77-035-5502 (State or other jurisdiction (I.R.S. employer of incorporation or organization) identification number) 500 Westridge Drive, Watsonville, California 95076-4100 (Address of principal executive offices) (Zip Code) WEST MARINE, INC. ASSOCIATES STOCK BUYING PLAN (Full title of the plan) John Edmondson West Marine, Inc. 500 Westridge Drive, Watsonville, California 95076-4100 (Name and address of agent for service) Telephone number, including area code, of agent for service: (831) 728-2700 Copy to: John F. Seegal, Esq. Orrick, Herrington & Sutcliffe LLP 400 Sansome Street San Francisco, California 94111 CALCULATION OF REGISTRATION FEE
================================================================================================== Title of Securities Amount Proposed Maximum Proposed Maximum to be to be Offering Price Per Aggregate Offering Amount of Registered Registered Share* Price* Registration Fee* - -------------------------------------------------------------------------------------------------- Common Stock 200,000 shares $11.69 $2,338,000 $650.00 ==================================================================================================
* Estimated on the basis of $11.69, the average of the high and low prices of shares on the NASDAQ National Market System on January 22, 1999. ================================================================================ INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents are incorporated by reference in this registration statement: (i) the latest annual report of West Marine, Inc. (the "Company") filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (ii) all reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Company's latest annual report; and (iii) the description of the Company's common stock set forth in the Company's Registration Statement on Form 8-A relating thereto, including any amendment or report filed for the purpose of updating such description. All documents filed by the Company after the date of this registration statement pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment (that indicates all securities offered have been sold or deregisters all securities then remaining unsold), shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Inapplicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Inapplicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Company's Certificate of Incorporation provides that its directors will not be liable to the Company or its stockholders for monetary damages for breaches of fiduciary duty, to the fullest extent permitted by law. This provision is intended to allow the Company's directors the benefit of the Delaware General Corporation law which provides that directors of Delaware corporations may be relieved of monetary liability for breaches of their fiduciary duty of care except under certain circumstances, including breach of the duty of loyalty, acts or omissions not in good faith or involving intentional misconduct or known violation of law or any transaction from which the director derived an improper personal benefit. The Company has entered into separate indemnification agreements with each of the directors and executive officers, whereby the Company agrees, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors or officers, to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified, and to obtain directors' and officers' insurance if available at reasonable terms. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Inapplicable. ITEM 8. EXHIBITS 4.1 West Marine, Inc. Associates Stock Buying Plan, as amended (incorporated by reference to Exhibit 4.1 of the registrant's Registration Statement on Form S-8, filed on February 9, 1995 (Commission File No. 33-89322)). 5.1 Opinion of Orrick, Herrington & Sutcliffe LLP. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Orrick, Herrington & Sutcliffe is included in Exhibit 5.1. ITEM 9. UNDERTAKINGS (a) 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; (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; (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; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference 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) The undersigned registrant hereby undertakes that, for 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 the 2 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) 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 Securities and Exchange 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 appropriate 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. 3 Signatures THE REGISTRANT 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 Watsonville, State of California on the 11th day of December, 1998. West Marine, Inc. (Registrant) /s/ John Edmondson - ---------------------------------- John Edmondson President and Chief Executive Officer 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 dates indicated.
Signature Title Date Principal Executive Officer: /s/ John Edmondson - ------------------------------ President and Chief Executive December 10, 1998 John Edmondson Officer Principal Financial Officer and Accounting Officer: /s/ John C. Zott - ------------------------------ Senior Vice President and December 8, 1998 John C. Zott Chief Financial Officer
4 Directors: /s/ Randolph K. Repass Director December 11, 1998 - ------------------------------ Randolph K. Repass /s/ Geoffrey A. Eisenberg Director December 10, 1998 - ------------------------------ Geoffrey A. Eisenberg /s/ Richard E. Everett Director December 11, 1998 - ------------------------------ Richard E. Everett /s/ James P. Curley Director December 15, 1998 - ------------------------------ James P. Curley /s/ Jeanne Jackson Director January 20, 1999 - ------------------------------ Jeanne Jackson /s/ David McComas Director December 9, 1998 - ------------------------------ David McComas /s/ Walter Scott Director December 9, 1998 - ------------------------------ Walter Scott /s/ Henry Wendt Director December 9, 1998 - ------------------------------ Henry Wendt A majority of the members of the Board of Directors. 5 EXHIBIT INDEX 4.1 West Marine, Inc. Associates Stock Buying Plan, as amended (incorporated by reference to Exhibit 4.1 of the registrant's Registration Statement on Form S-8, filed on February 9, 1995 (Commission File No. 33-89322)). 5.1 Opinion of Orrick, Herrington & Sutcliffe LLP. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Orrick, Herrington & Sutcliffe is included in Exhibit 5.1. EX-4.1 2 WEST MARINE, INC. ASSOCIATES STOCK BUYING PLAN EXHIBIT 4.1 AMENDMENT NO. 1 TO THE WEST MARINE, INC. ASSOCIATES STOCK BUYING PLAN WEST MARINE, INC., having adopted the West Marine, Inc. Associates Stock Buying Plan (the "Plan"), effective as of November 1, 1994, hereby amends the Plan, effective as of January 20, 1999, by deleting the numeral 100,000 from Section 3.1 and substituting the numeral 372,789 therefor. WEST MARINE, INC. hereby further amends the Plan, effective as of January 20, 1999, by deleting the word "second" from the final sentence of Section 8.1 and substituting the word "next" therefor. IN WITNESS WHEREOF, West Marine, Inc., by its duly authorized officer, has executed this Amendment No. 1 on the date indicated below. WEST MARINE, INC. Dated: January 25, 1999 By: /s/ John C. Zott -------------------------------- Title: Senior Vice President and Chief Financial Officer EX-5.1 3 OPINION OF ORRICK, HERRINGTON & SUTCLIFFE LLP EXHIBIT 5.1 January 25, 1999 West Marine, Inc. 500 Westridge Drive Watsonville, CA 95076-4100 Re: West Marine, Inc./ Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: At your request, we are rendering this opinion in connection with the proposed issuance pursuant to the West Marine, Inc. Associates Stock Buying Plan, as amended (the "Plan"), of up to 200,000 additional shares of common stock, $.001 par value ("Common Stock"), of West Marine, Inc., a Delaware corporation (the "Company"). We have examined instruments, documents, and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the following: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; and (c) the truth, accuracy, and completeness of the information, representations, and warranties contained in the records, documents, instruments, and certificates we have reviewed. Based on such examination, we are of the opinion that the 200,000 additional shares of Common Stock to be issued by the Company pursuant to the Plan are validly authorized shares of Common Stock, and, when issued in accordance with the provisions of the Plan, will be legally issued, fully paid, and nonassessable. We hereby consent to the filing of this opinion as an exhibit to this Registration Statement on Form S-8 and to the use of our name wherever it appears in said Registration Statement. In giving such consent, we do not consider that we are "experts" within the meaning of such term as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission issued thereunder with respect to any part of the Registration Statement, including this opinion, as an exhibit or otherwise. Very truly yours, ORRICK, HERRINGTON & SUTCLIFFE LLP EX-23.1 4 CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 [LOGO OF DELOITTE & TOUCHE] ___________________________ ____________________________________ Deloitte & Touche LLP 50 Fremont Street San Francisco, California 94105-2230 Telephone: (415) 247-4000 Facsimile: (415) 247-4329 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by refernce in this Registration Statement of West Marine, Inc. on Form S-8 of our report dated February 20, 1998, appearing in the Annual Report on Form 10-K of West Marine, Inc. for the year ended January 3, 1998 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/ Deloitte & Touche LLP San Francisco, California January 22, 1999 -----END PRIVACY-ENHANCED MESSAGE-----