As filed with the Securities and Exchange Commission on June 28, 2001
Registration No. 333-
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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 of Incorporation) (I.R.S. Employer Identification No.
3375 Mitchell Lane
Boulder, Colorado 80301-2244
(Address of principal executive offices)
Employee Stock Purchase Plan
Employee Equity Incentive Plans
(Full title of the plan)
Perry D. Odak
Chief Executive Officer
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
One Tabor Center
1200 Seventeenth Street, Suite 2100
Denver, Colorado 80202
(303) 606-4800
Page 1 of 8
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities to Amount to be Registered Offering Price Per Proposed Maximum Amount of Registration
be Registered Share (1) Aggregate Offering Fee
Price (1)
======================================================================================================================
Common Stock,
par value $.001 per 730,000 shares $9.00 $6,573,000 $1,643.25
share
======================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (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 and the average of the high and low prices of the Registrant's
Common Stock on June 22, 2001, as reported on Nasdaq National Market. The
following chart illustrates our calculation of the registration fee:
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Type of Shares Number of Offering Price Per Aggregate Offering
Shares Share Price
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Shares issuable pursuant
to options outstanding under
certain employee equity incentive 230,000 $8.08(a) $1,858,400
plans
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Shares issuable under the
Employee Stock Purchase Plan 500,000 $9.43(b) $4,715,000
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(a) Based on the weighted average exercise price of options outstanding.
(b) Based on the Nasdaq National Market closing price of the Registrant's
Common Stock on June 22, 2001.
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
Page 2 of 8
INTRODUCTION
This Registration Statement on Form S-8 is filed by Wild Oats Markets,
Inc., a Delaware corporation, and relates to 230,000 shares of the Company's
Common Stock issuable pursuant to certain stock option agreements entered into
by the Registrant and an additional 500,000 shares of the Company's Common Stock
issuable pursuant to the Wild Oats Markets, Inc. Employee Stock Purchase Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the Registrant with the Commission are
incorporated by reference into this Registration Statement:
(a) The Registrant's latest annual report on Form 10-K (File No.
000-21577) for the fiscal year ended December 30, 2000 filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q (File No.
000-21577) for the quarter ended March 31, 2001.
(c) The Registrant's Current Report on Form 8-K filed with the
Commission on January 4, 2001;
(d) The description of the Registrant's Common Stock contained in
the Registrant's registration statement on Form 8-A filed on October 17, 1996;
(e) The description of rights to purchase Series A Junior
Participating Preferred Stock contained in the Registrant's registration
statement on Form 8-A dated May 21, 1998; and
(f) All reports and other documents filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
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 Named Experts and Counsel
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 Amended and Restated 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
Page 3 of 8
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 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 continue to be subject to 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 Amended and Restated Certificate
of Incorporation, as amended, Amended and Restated 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
Number Description
4.1 Amended and Restated Certificate of Incorporation of the Registrant
(1)
4.2 Certificate of Correction to Amended and Restated Certificate of
Incorporation of the Registrant (1)
4.3 Certificate of Amendment to Amended and Restated Certificate of
Incorporation of the Registrant (2)
4.4 Amended and Restated By-Laws of the Registrant (1)
4.5 Rights Agreement dated May 22, 1998 between Registrant and Norwest
Bank Minnesota (3)
4.6 Specimen stock certificate (4)
4.7 Employee Stock Purchase Plan (4)
4.8 First Amendment to Employee Stock Purchase Plan
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of KPMG LLP
Page 4 of 8
23.3 Consent of Ernst & Young LLP
23.4 Consent of Cooley Godward LLP (included in Exhibit 5.1)
24.1 Power of Attorney
(1) Incorporated by reference from the Registrant's Form 10-K for the year
ended December 28, 1996. (File No. 0-21577)
(2) Incorporated by reference from the Registrant's Registration Statement
on Form S-3, as amended, filed with the Commission on November 10,
1999. (File No. 333-88011)
(3) Incorporated by reference from the Registrant's Form 10-Q for the
period ended September 30, 2000 (File No. 0-21577), filed on November
14, 2000.
(4) Incorporated by reference from the Registrant's Registration Statement
on Form S-1 filed on August 30, 1996. (File No. 333-11261)
Item 9. Undertakings
1. 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) (ss. 230.424(b) of this
chapter) 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 informa tion 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
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.
Page 5 of 8
3. 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.
Page 6 of 8
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 June 28, 2001.
WILD OATS MARKETS, INC.
By: /s/ Mary Beth Lewis
-----------------------------------------
Mary Beth Lewis, Vice President of
Finance, Chief Financial Officer and
Secretary
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
Signature Title Date
* Chief Executive Officer, President and June 28, 2001
-------------------------------------------- Director
Perry D. Odak
* Chairman of the Board June 28, 2001
--------------------------------------------
John A. Shields
* Vice Chairman of the Board June 28, 2001
--------------------------------------------
David M. Chamberlain
-------------------------------------------- Director June __, 2001
Elizabeth C. Cook
/s/ Mary Beth Lewis Vice President of Finance (principal June 28, 2001
-------------------------------------------- financial officer and principal
Mary Beth Lewis accounting officer)
* Director June 28, 2001
--------------------------------------------
Brian K. Devine
* Director June 28, 2001
--------------------------------------------
David L. Ferguson
-------------------------------------------- Director June __, 2001
Michael C. Gilliland
* Director June 28, 2001
--------------------------------------------
James B. McElwee
* Director June 28, 2001
--------------------------------------------
Morris Siegel
*By: /s/ Mary Beth Lewis
------------------------------------
Mary Beth Lewis, as Attorney in Fact
Page 7 of 8
EXHIBIT INDEX
Exhibit
Number Description
4.1 Amended and Restated Certificate of Incorporation of the Registrant
(1)
4.2 Certificate of Correction to Amended and Restated Certificate of
Incorporation of the Registrant (1)
4.3 Certificate of Amendment to Amended and Restated Certificate of
Incorporation of the Registrant (2)
4.4 Amended and Restated By-Laws of the Registrant (1)
4.5 Rights Agreement dated May 22, 1998 between Registrant and Norwest
Bank Minnesota (3)
4.6 Specimen stock certificate (4)
4.7 Employee Stock Purchase Plan (4)
4.8 First Amendment to Employee Stock Purchase Plan
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of KPMG LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Cooley Godward LLP (included in Exhibit 5.1)
24.1 Power of Attorney
(1) Incorporated by reference from the Registrant's Form 10-K for the year
ended December 28, 1996. (File No. 0-21577)
(2) Incorporated by reference from the Registrant's Registration Statement
on Form S-3, as amended, filed with the Commission on November 10,
1999. (File No. 333-88011)
(3) Incorporated by reference from the Registrant's Form 10-Q for the
period ended September 30, 2000 (File No. 0-21577), filed on November
14, 2000.
(4) Incorporated by reference from the Registrant's Registration Statement
on Form S-1 filed on August 30, 1996. (File No. 333-11261)
Page 8 of 8