-----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, NcU13O7QqkHRqZsJLbE05UMsC5iMP6y4TNF/tO3o6P/E8XA4QncWxQAgdiFLirfy XAt679qMbPdaj78naafOKQ== /in/edgar/work/20000608/0000929624-00-000821/0000929624-00-000821.txt : 20000919 0000929624-00-000821.hdr.sgml : 20000919 ACCESSION NUMBER: 0000929624-00-000821 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000608 EFFECTIVENESS DATE: 20000608 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WEST MARINE INC CENTRAL INDEX KEY: 0000912833 STANDARD INDUSTRIAL CLASSIFICATION: [5500 ] IRS NUMBER: 770355502 STATE OF INCORPORATION: DE FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-38882 FILM NUMBER: 651729 BUSINESS ADDRESS: STREET 1: 500 WESTRIDGE DR CITY: WATSONVILLE STATE: CA ZIP: 95076-4100 BUSINESS PHONE: 4087282700 S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on June 8, 2000 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 President and Chief Executive Officer West Marine, Inc. 500 Westridge Drive, Watsonville, California 95076-4100 (Name and address of agent for service) (831) 728-2700 (Telephone number, including area code, of agent for service) 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 Proposed Maximum to be to be Maximum Offering Aggregate Offering Amount of Registered Registered Price Per share* Price* Registration Fee - -------------------------------------------------------------------------------------------------- Common Stock 400,000 shares $ 7.88 $3,152,000.00 $832.13
================================================================================ * Estimated on the basis of $ 7.88, the average of the high and low prices of shares on June 7, 2000 on the NASDAQ National Market System on June 7, 2000. 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 Section 145 of the General Corporation Law of the State of Delaware (the "Delaware Law") authorizes a Delaware corporation to indemnify officers, directors, employees and agents of the corporation, in connection with actual or threatened actions, suits or proceedings provided that such officer, director, employee or agent acted in good faith and in a manner such officer reasonably believed to be in or not opposed to the corporation's best interests, and, for criminal proceedings, had no reasonable cause to believe his or her conduct was unlawful. This authority is sufficiently broad to permit indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The Company's Certificate of Incorporation provides for indemnification of its officers and directors to the fullest extent permitted by Delaware Law. The Company has also 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 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. 24.1 Power of Attorney (included on signature page) 99.1 West Marine, Inc. Associates Stock Buying Plan, as amended (incorporated by reference to Appendix A of the Registrant's Proxy Statement, filed on March 31, 2000 (Commission File No. 000-22512)). 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 2 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 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 2nd day of June, 2000. WEST MARINE, INC. (Registrant) /s/ John Edmondson --------------------------------------- John Edmondson President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Russell Solt and Randolph K. Repass his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof. 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 June 2, 2000 - ----------------------------------- Officer John Edmondson Principal Financial Officer and Accounting Officer: /s/ Russell Solt - ----------------------------------- Senior Vice President and June 2, 2000 Russell Solt Chief Financial Officer
4 Directors: /s/ Randolph K. Repass Director June 8, 2000 - -------------------------- Randolph K. Repass /s/ John Edmonson Director June 2, 2000 - --------------------------- John Edmonson /s/ Geoffrey A. Eisenberg Director June 2, 2000 - --------------------------- Geoffrey A. Eisenberg /s/ Richad E. Everett Director June 6, 2000 - --------------------------- Richard E. Everett /s/ James P. Curley Director June 5, 2000 - --------------------------- James P. Curley /s/ David McComas Director June 2, 2000 - --------------------------- David McComas /s/ Walter Scott Director June 3, 2000 - --------------------------- Walter Scott /s/ Henry Wendt Director June 2, 2000 - --------------------------- Henry Wendt
A majority of the members of the Board of Directors. 5 EXHIBIT INDEX 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. 24.1 Power of Attorney (included on signature page) 99.1 West Marine, Inc. Associates Stock Buying Plan, as amended (incorporated by reference to Appendix A of the Registrant's Proxy Statement, filed on March 31, 2000 (Commission File No. 000-22512)). EX-5.1 2 0002.txt OPINION OF ORRICK, HERRINGTON & SUTCLIFFE LLP EXHIBIT 5.1 Opinion of Orrick, Herrington & Sutcliffe LLP [Letterhead of Orrick, Herrington & Sutcliffe LLP] June 8, 2000 West Marine, Inc. 500 Westridge Drive Watsonville, CA 95076-4100 Re: West Marine, Inc./ Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: West Marine, Inc., a Delaware corporation, has requested our opinion in connection with a Registration Statement on Form S-8 (the "Registration Statement") to be filed by it today with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), relating to the 400,000 additional shares of Common Stock, $.001 par value, of West Marine, Inc. to be issued under the West Marine, Inc. Associates Stock Buying Plan (the "Plan"). We have examined and are relying on originals, or copies certified or otherwise identified to our satisfaction, of such corporate records and such other instruments, certificates and representations of public officials, officers and representatives of West Marine, Inc. and such other persons, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinion expressed below. Based on the foregoing, it is our opinion that the 400,000 additional shares of West Marine, Inc. issuable under the Plans are duly authorized and, when issued in accordance with the terms of the Plans, at prices in excess of the par value thereof, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. By giving such consent, we do not thereby admit that we are experts with respect to any part of the Registration Statement, including this exhibit, within the meaning of the term "expert" as used in the Act or the rules and regulations of the Commission issued thereunder. Very truly yours, /s/ ORRICK, HERRINGTON & SUTCLIFFE LLP ORRICK, HERRINGTON & SUTCLIFFE LLP EX-23.1 3 0003.txt CONSENT OF DELOITTE & TOUCHE, LLP EXHIBIT 23.1 Consent of Deloitte & Touche LLP [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 reference in Registration Statement of West Marine, Inc. on Form S-8 of our report dated February 17, 2000, appearing in the Annual Report on Form 10-K of West Marine, Inc. for the year ended January 1, 2000. /s/ DELOITTE & TOUCHE LLP San Francisco, California June 7, 2000 -----END PRIVACY-ENHANCED MESSAGE-----