S-8 1 wms8.txt FORM S-8 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on May 11, 2006, 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 registrant as specified in its charter) Delaware 77-0355502 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification 500 Westridge Drive Watsonville, California 95076-4100 (Address of Principal Executive Offices) (Zip Code) __________________________ WEST MARINE, INC. OMNIBUS EQUITY INCENTIVE PLAN (Full title of plan) __________________________ Thomas D. Twedt DOW LOHNES PLLC 1200 New Hampshire Avenue, N.W. Suite 800 Washington, D.C. 20036 (Name and Address of agent for service) Telephone number of agent for service: (202) 776-2000
CALCULATION OF REGISTRATION FEE ------------------------ --------------------- ------------------------ --------------------- ----------------------- Title Of Security Amount Being Proposed Maximum Proposed Maximum Amount Of Being Registered Registered* Offering Price Per Aggregate Offering Registration Fee Share(**) Price(**) ------------------------ --------------------- ------------------------ --------------------- ----------------------- ------------------------ --------------------- ------------------------ --------------------- ----------------------- Common Stock, 475,000 $14.65 $6,958,750.00 $744.59 $0.001 Par Value ------------------------ --------------------- ------------------------ --------------------- ----------------------- (*) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement also covers an indeterminate number of additional shares which may be offered and issued in accordance with plan terms to prevent dilution from stock splits, stock dividends or similar transactions. (**) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, based upon the average of the high and low prices of shares of common stock, par value $.001, of West Marine as reported on the Nasdaq National Market on May 10, 2006.
STATEMENT UNDER GENERAL INSTRUCTION E REGISTRATION OF ADDITIONAL SECURITIES Pursuant to General Instruction E to Form S-8 under the Securities Act of 1933, as amended, this Registration Statement is being filed by West Marine, Inc. ("West Marine") to register 475,000 additional shares of West Marine's common stock, par value $0.001 per share, (plus an indeterminate number of shares pursuant to Rule 416(a) of the Securities Act of 1933) issuable pursuant to the West Marine, Inc. Omnibus Equity Incentive Plan (the "Omnibus Plan"). Pursuant to General Instruction E, and unless otherwise noted herein, this Registration Statement incorporates by reference the contents of the previously filed registration statements on Form S-8 (File Nos. 333-10210 and 333-125291), and all exhibits thereto, relating to the Omnibus Plan, which were previously filed with the Securities and Exchange Commission on December 20, 2002 and May 27, 2005, respectively. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 5. Interests of Named Experts and Counsel. None. Item 8. Exhibits Exhibit Number Description of Exhibit 5.1 Opinion of Dow Lohnes PLLC 10.1 West Marine, Inc. Omnibus Equity Incentive Plan, as amended and restated effective May 4, 2006 (incorporated by reference to Exhibit 10.1 of West Marine's Form 8-K dated May 4, 2006 and filed May 10, 2006) 23.1 Consent of Independent Registered Public Accounting Firm 23.2 Consent of Dow Lohnes PLLC (contained in their opinion in Exhibit 5.1) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, West Marine 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 this 4th day of May, 2006. WEST MARINE, INC. By:/s/ Peter L. Harris ------------------------------- Peter L. Harris President, Chief Executive Officer and Director 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 Capacity Date /s/ Peter L. Harris --------------------------- President, Chief Executive May 4, 2006 Peter L. Harris Officer and Director (Principal Executive Officer) /s/ Peter Van Handel Vice President and Chief May 4, 2006 --------------------------- Accounting Officer Peter Van Handel (Principal Financial and Principal Accounting Officer) /s/ Randolph K. Repass Chairman of the Board and May 4, 2006 --------------------------- Director Randolph K. Repass /s/ Geoffrey A. Eisenberg Director May 4, 2006 --------------------------- Geoffrey A. Eisenberg /s/ Diane Greene Director May 4, 2006 --------------------------- Diane Greene /s/ David McComas Director May 4, 2006 --------------------------- David McComas /s/ Alice M. Richter Director May 4, 2006 --------------------------- Alice M. Richter /s/ Peter Roy Director May 4, 2006 --------------------------- Peter Roy /s/ Daniel J. Sweeney Director May 4, 2006 --------------------------- Daniel J. Sweeney /s/ William U. Westerfield Director May 4, 2006 --------------------------- William U. Westerfield Exhibit 5.1 [Dow Lohnes PLLC Letterhead] May 11, 2006 West Marine, Inc. 500 Westridge Drive Watsonville, California 95076-4100 Re: Registration Statement of Form S-8 Ladies and Gentlemen: We have acted as special counsel for West Marine, Inc., a Delaware corporation ("West Marine"), in connection with the preparation of the Registration Statement on Form S-8 (the "Registration Statement") pertaining to 475,000 shares of Common Stock, $0.001 par value per share (the "Shares"), being registered for issuance by West Marine pursuant to the West Marine, Inc. Omnibus Equity Incentive Plan (the "Omnibus Plan"). At your request, we are providing this opinion to you for filing as an exhibit to the Registration Statement. In preparing this opinion we have reviewed (i) the Registration Statement, (ii) West Marine's Certificate of Incorporation and Bylaws, as amended to date, (iii) the Omnibus Plan, and (iv) the unanimous written consent of the West Marine Board of Directors dated as of April 4, 2006, including, without limitation, the resolutions approving the issuance of the Shares. As to matters of fact relevant to our opinion, we have relied upon oral representations of officers and other representatives of West Marine, without further investigation. With respect to our examination of the foregoing documents, we have assumed: (i) the authenticity of all documents submitted to us as originals, the conformity with authentic original documents of all documents submitted to us as copies or forms, the genuineness of all signatures and the legal capacity of natural persons, and (ii) that the foregoing documents, in the forms thereof submitted for our review, have not been altered, amended or repealed in any respect material to our opinion as stated herein. We have not reviewed any documents other than the documents listed above for purposes of rendering our opinion as expressed herein, and we assume that there exists no provision of any such other document that bears upon or is inconsistent with our opinion as expressed herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we assume to be true, complete and accurate in all material respects. As to matters of law set forth below, our opinion is limited to matters of law arising under the General Corporation Law of the State of Delaware (the "Applicable Law"); provided, however, that the term Applicable Law includes only those laws and regulations that a lawyer exercising customary professional diligence would reasonably recognize as being directly applicable to the issuance and sale of the Shares pursuant to the Omnibus Plan and does not include laws of the type described in Section 19 of the Legal Opinion Accord of the American Bar Association Section of Business Law (1991). Other than as specified above, we express no opinion as to conflicts of law rules or the laws of any states or jurisdictions, including federal laws regulating securities, or the rules and regulations of stock exchanges or any other regulatory body. In rendering this opinion, we have assumed that: (i) the Registration Statement will be automatically effective when filed with the Securities and Exchange Commission (the "Commission") in accordance with Rules 456 and 462 promulgated under the Securities Act of 1933, as amended (the "Securities Act"); and (ii) the Registration Statement will be effective at the time any Shares are offered or issued under the Omnibus Plan. Based upon and subject to the foregoing and any other qualifications stated herein and assuming that (i) the Registration Statement will have become effective and comply with all applicable laws, and (ii) the Shares will be issued and sold in compliance with applicable federal and state securities laws, consistent with the terms of the Omnibus Plan and in the manner stated in the Registration Statement, we are of the opinion that the Shares, when and to the extent issued and paid for pursuant to the provisions of the Omnibus Plan, will be validly issued, fully paid and non-assessable, subject to the limitations imposed by bankruptcy, insolvency, reorganization, moratorium or similar laws and related court decisions of general applicability relating to or affecting creditors' rights generally. This opinion is as of the date hereof. We assume no obligation to advise you of any changes to the foregoing subsequent to the delivery of this opinion letter. Our opinion is expressly limited to matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to West Marine or the Shares. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to all references to our firm in the Registration Statement, provided, however, that in giving such consent we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission thereunder. Except as provided for hereinabove, without our prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other person or entity for any purpose. Very truly yours, DOW LOHNES PLLC By: /s/ Thomas D. Twedt ---------------------- Thomas D. Twedt, Member Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 30, 2006, relating to the consolidated financial statements of West Marine, Inc. and subsidiaries and management's report on the effectiveness of internal control over financial reporting, appearing in the Annual Report on Form 10-K of West Marine, Inc. and subsidiaries for the year ended December 31, 2005. /s/ Deloitte & Touche LLP -------------------------------- Deloitte & Touche LLP San Francisco, California May 11, 2006