As filed with the Securities and Exchange Commission on July 17, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WHOLE FOODS MARKET, INC.
(Exact name of registrant as specified in its charter)
Texas
(State of incorporation)
74-1989366
(I.R.S. employer identification no.)
601 N. Lamar Boulevard, Suite 300
Austin, Texas 78703
512-477-4455
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Glenda J. Flanagan
Chief Financial Officer
Whole Foods Market, Inc.
Austin, Texas 78703
512-477-4455
(Name, address including zip code, and telephone number, including area
code, of agents for service)
Copy to:
Bruce H. Hallett
Crouch & Hallett, L.L.P.
717 N. Harwood St., Suite 1400
Dallas, Texas 75201
(214) 953-0053
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule
34, please check the following box.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Subject to Completion, dated July 17, 1997
399,903 Shares
WHOLE FOODS MARKET, INC.
COMMON STOCK
The 399,903 shares (the "Shares") of common stock, no par value ("Common
Stock"), of Whole Foods Market, Inc., a Texas corporation (the "Company" or
"Whole Foods Market"), offered hereby are being sold by the Selling
Shareholders. See "Selling Shareholders." The Company will not receive any of
the proceeds from the sale of the Shares offered hereby.
The Shares may be offered by the Selling Shareholders from time to time in
open market transactions (which may include block transactions) or otherwise in
the over-the-counter market through the Nasdaq National Market, or in private
transactions at prices relating to prevailing market prices or at negotiated
prices. The Selling Shareholders may effect such transactions by selling the
Shares to or through broker-dealers, and such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Shareholders and/or purchasers of the Shares for whom such
broker-dealers may act as agent or to whom they sell as principal or both (which
compensation as to a particular broker-dealer might be in excess of customary
commissions). The Selling Shareholders and any broker-dealer acting in
connection with the sale of the Shares offered hereby may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Act"), in which event any discounts, concessions or commissions received by
them, which are not expected to exceed those customary in the types of
transactions involved, or any profit on resales of the Shares by them, may be
deemed to be underwriting commissions or discounts under the Act. The offering
contemplated hereby will terminate as to the Shares upon the earlier to occur of
the sale of all the Shares or July ___, 1998, pursuant to certain agreements to
which the Company and each of the Selling Shareholders are parties. See "Selling
Shareholders."
The costs, expenses and fees incurred in connection with the registration
of the Shares, which are estimated to be $15,000 (excluding selling commissions
and brokerage fees incurred by the Selling Shareholders) will be paid by the
Company, which has also agreed to indemnify certain of the Selling Shareholders
against certain liabilities, including liabilities under the Act.
Purchasers of the Shares should carefully consider the risk factors set
forth herein. See "Risk Factors" on pages 4 and 5.
The last reported sale price of the Common Stock on the Nasdaq National
Market on July ____, 1997 was $______ per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------
The date of this Prospectus is July ___, 1997.
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AVAILABLE INFORMATION
Whole Foods Market is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "1934 Act") and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Reports, proxy statements and other information concerning
the Company can be inspected and copied at the public reference facilities
maintained by the Commission at the public reference facilities maintained by
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; 7
World Trade Center, Suite 1300, New York, New York 10048; and 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. Certain reports, proxy
statements and other information filed by the Company may also be obtained at
the Commission's World Wide Web site, located at http://www.sec.gov. In
addition, such material can be inspected at the offices of the Nasdaq Stock
Market, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended September 29,
1996, as amendedby the Form 10-K/A filed on July 11, 1997 and Quarterly Reports
on Form 10-Q for the first two fiscal quarters of its 1997 fiscal year, each
filed with the Commission, are incorporated in this Prospectus by reference. All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the 1934 Act prior to the termination of the offering of the
Shares hereunder shall be deemed to be incorporated herein by reference and
shall be a part hereof from the date of the filing of such documents. Any
statements contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or replaced for purposes of this
Prospectus 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 replaces such statement. Any such statement so
modified or replaced shall not be deemed, except as so modified or replaced, to
constitute a part of this Prospectus.
Whole Foods Market will provide without charge to each person, including
any beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of the documents incorporated by reference
herein, other than exhibits to such documents not specifically incorporated by
reference. Such requests should be directed to Whole Foods Market, Inc., 601 N.
Lamar Boulevard, Suite 300, Austin, Texas 78703, Attention: Chief Financial
Officer (telephone (512) 447-4455).
NOTE
Certain statements in this Prospectus constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. These forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause that actual results, performance
or achievements of the Company to be materially different from any future
results, performance or achievements expressed or implied by these
forward-looking statements. The material factors known to the Company are
general economic and business conditions, competition with other companies,
government actions and initiatives and the other changes and factors set forth
in "Risk Factors."
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THE COMPANY
Whole Foods Market owns and operates the country's largest chain of natural
foods supermarkets, featuring food made from natural ingredients free of
unnecessary additives. The Company opened its first store in Austin, Texas in
1980 and operated 68 stores as of September 29, 1996. The Company's stores
average approximately 22,000 square feet and offer a broad selection of foods at
competitive prices with an emphasis on customer service. In comparison to
traditional supermarkets, the Company utilizes a decentralized team approach to
store operations in which pricing, buying and merchandising decisions are made
at the individual store level. The Company believes that this approach promotes
a greater level of employee involvement, resulting in improved operating
efficiency, customer service, merchandising and store presentation.
The Company has designed its stores to attract quality-oriented consumers
who are interested in health, nutrition, food safety and preserving the
environment. Product offerings include organically grown and high-grade
commercial produce; grocery products and environmentally safe household items;
meat, poultry and seafood free of growth hormones and antibiotics; bulk foods,
such as nuts, candies, dried fruit and whole unprocessed grains and cereals;
specialty gourmet foods; prepared foods, such as fresh bakery goods, soups, hot
entrees and sandwiches; vitamins, body care products and cosmetics; and
miscellaneous items including books and magazines emphasizing health and
nutrition. In addition, the Company offers a line of private label products to
further enhance its quality image and customer loyalty.
Whole Foods Market's expansion strategy is to open or acquire stores in
existing regions and in metropolitan areas where the Company believes it can
become a leading natural foods supermarket retailer.
The Company's competitors currently include other natural foods
supermarkets, traditional and specialty supermarkets, other natural foods stores
and small specialty stores. The Company has historically encountered limited
competition in its geographic markets with other stores operating in the natural
foods supermarket format; however, it has faced increased competition in recent
years from such stores, particularly in new markets, and expects to encounter
additional competition from such stores in its existing markets and in new
markets. In addition, traditional and specialty supermarkets compete with the
Company in one or more product categories and may expand more aggressively in
marketing a broad range of natural foods and thereby compete more directly with
the Company for products, customers and locations.
Whole Foods Market's principal offices are located at 601 N. Lamar
Boulevard, Suite 300, Austin, Texas 78703, (telephone (512) 447-4455).
RECENT DEVELOPMENTS
On June 9, 1997, Whole Foods Market entered into an Agreement and Plan
of Merger (the "Merger Agreement") with Amrion, Inc. ("Amrion"). Pursuant to the
Merger Agreement, a wholly owned subsidiary of the Company will merge with and
into Amrion, resulting in Amrion's becoming a wholly owned subsidiary of Whole
Foods Market. As a result of the merger, each outstanding share of Amrion common
stock will be converted into .87 shares of Whole Foods Market common stock.
Consummation of the merger with Amrion is subject to approval of the transaction
by the shareholders of each of the Company and Amrion and certain other
customary closing conditions. Whole Foods Market anticipates the closing will
occur in the last quarter of fiscal 1997 or the first quarter of fiscal 1998.
Because the merger is a stock for stock transaction and the parties intend to
account for the transaction as a pooling-of-interests, the merger is not
expected to materially impact Whole Foods Market's financial condition or
liquidity. Whole Foods Market believes that the transaction will be non-dilutive
to Whole Foods Market's results of operations for fiscal 1997 and accretive in
fiscal 1998.
Amrion is engaged in developing, producing and marketing nutriceuticals
and nutritional supplements. Amrion's products include nutriceuticals,
herbs, herbal formulas, vitamins, minerals and homeopathic medicinals. Amrion
currently markets and sells approximately 670 items under Amrion-owned
trademarks through four principal divisions, utilizing five distribution
channels which include direct marketing, specialty retail and mass
merchandising, health care professionals and international sales. Amrion
operates in one segment with four separate marketing divisions. Each division
employs a combination of marketing strategies which may include catalog and
direct mailings, print advertising, free standing inserts, package insert
programs, retail merchandising, radio, television, coupons, point of sale
materials and customer service calls.
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RISK FACTORS
Readers of this Prospectus should carefully evaluate all of the
information contained and incorporated by reference in this Prospectus, and, in
particular, the following factors:
Growth Dependent on Expansion. The Company's strategy is to expand
through a combination of new store openings and acquisitions of existing stores
as well as the possible acquisition or development of businesses with
complimentary product lines and related lines of business. Successful
implementation of this strategy is contingent on numerous conditions, some of
which are described below, and there can be no assurance that Whole Foods
Market's expansion strategy can be successfully executed.
Continued growth of Whole Foods Market will depend to a significant
degree upon its ability to open or acquire new stores in existing and new
markets and to operate these stores on a successful basis. Further, Whole Foods
Market's expansion strategy is dependent on finding suitable locations, and it
faces intense competition with other retailers for such sites. There can be no
assurance that the Company will be able to open or acquire new stores in a
timely manner and to operate them on a successful basis. In addition, there can
be no assurance that Whole Foods Market can successfully hire and train new
employees and integrate them into the programs and policies of Whole Foods
Market or adapt its distribution, management information and other operating
systems to the extent necessary to operate new or acquired stores in a
successful and profitable manner and adequately supply natural foods products to
these stores at competitive prices.
There can be no assurance that Whole Foods Market will continue to grow
through acquisitions. To the extent the Company further expands by acquiring
existing businesses, there can be no assurance that Whole Foods Market can
successfully integrate the acquired businesses into its operations and support
systems, and that the operations of acquired businesses will not be adversely
affected as Whole Foods Market's decentralized approach to store operations is
introduced.
Capital Needed for Expansion. The acquisition of existing stores and
the opening of new stores requires significant amounts of capital. In the past,
the Company's growth has been funded primarily through proceeds from public
offerings, bank debt, private placements of debt, and internally generated cash
flow. These and other sources of capital may not be available to the Company in
the future.
Quarterly Fluctuations. Whole Foods Market's quarterly results of
operations may fluctuate significantly as the result of the timing of new store
openings and the range of operating results which may be generated from newly
opened stores. Whole Foods Market expenses the pre-opening costs associated with
a new store opening during the quarter in which the store is opened.
Accordingly, quarter to quarter comparisons of results of operations have been
and will be materially impacted by the timing of new store openings. In
addition, Whole Foods Market's quarterly operating results could be adversely
affected by losses from new stores, variations in the mix of product sales,
price changes in response to competitive factors, increases in merchandise costs
and possible supply shortages.
Competition. The Company's competitors include other natural foods stores, large
and small traditional and specialty supermarkets and grocery stores. These
stores compete with Whole Foods Market in one or more product categories. In
addition, traditional and specialty supermarkets are expanding more aggressively
in marketing a broad range of natural foods and thereby competing directly with
Whole Foods Market for products, customers and locations. Some of these
potential competitors have been in business longer or have greater financial or
marketing resources than Whole Foods Market and may be able to devote greater
resources to the sourcing, promotion and sale of their products. Increased
competition may have an adverse effect on profitability as the result of lower
sales, lower gross profits, and/or greater operating costs such as marketing.
4
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Personnel Matters. Whole Foods Market is dependent upon a number of key
management and other personnel. The loss of the services of a significant number
of key personnel within a short period of time could have a material adverse
effect upon Whole Foods Market. Whole Foods Market's continued success is also
dependent upon its ability to attract and retain qualified employees to meet
Whole Foods Market's future needs. Whole Foods Market faces intense
competition for qualified personnel, many of whom are subject to offers from
competing employers, and there can be no assurance that Whole Foods Market will
be able to attract and retain such personnel. The Company does not maintain key
person insurance on any employee.
Integration of Amrion's Operations. Whole Foods Market's acquisition of Amrion
would significantly expand Whole Foods Market's current operations to include
the manufacturing of nutriceuticals and nutritional supplements and the direct
marketing of these products. There can be no assurance that the operations of
Amrion will not be adversely affected by the merger or that the current retail
stores which are customers of Amrion will continue to do business with Amrion
after it becomes a subsidiary of the Company. There can be no assurance that
Whole Foods Market can realize the expected benefits from the acquisition of
Amrion. The integration of Amrion into Whole Foods Market will require the
dedication of management resources which may temporarily detract from attention
to the day-to-day business of Whole Foods Market.
Negative Impact of Litigation Possible. From time to time Whole Foods
Market is the subject of various lawsuits arising in the ordinary course of
business. Although not currently anticipated by management, Whole Foods Market
results could be materially impacted by legal and settlement expenses related to
such lawsuits.
Non-Subscriber to Worker's Compensation Insurance. The Company is
a non-subscriber to Worker's Compensation Insurance in the State of Texas. There
is some potential for Whole Foods Market's results to be materially impacted by
medical, lost time and other costs associated with on-the-job injuries.
Self-Insurance and Adequacy of Related Reserves. Whole Foods Market
provides partially self-insured, voluntary employee benefits plans for health
care and other benefits to participating employees. The plans are designed to
provide specified levels of coverage, with excess insurance coverage provided by
a commercial insurer. There is some potential for Whole Foods Market's results
to be materially impacted by claims made in excess of reserves therefore.
Informational Picketing. Certain of Whole Foods Market's stores have
been subjected to informational picketing and negative publicity campaigns by
members of various local trade unions. These informational pickets and campaigns
may have the effect of lowering the sales volumes of new or existing stores.
5
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SELLING STOCKHOLDERS
The table below sets forth the beneficial ownership of the Company's Common
Stock by the Selling Stockholders at April 30, 1997, and after giving effect to
the sale of the shares of Common Stock offered hereby. Each of the persons named
below has sole voting and investment power with respect to the shares of Common
Stock beneficially owned by him. Unless otherwise indicated, the share numbers
in the table below represent 1% or less of the outstanding Common Stock of the
Company.
Shares Owned Shares Being Shares Owned After
Name Before the Offering Offered the Offering (1)
- ---- ------------------- -------------- ------------------
James K. Oppenheimer(2) 145,967 145,967 --
Richard Gerber(2) 26,968 26,968 --
Julie Gerber(2) 26,968 26,968 --
The Carlyle Group(3) 1,453,935 200,000 1,253,935
- --------------
(1) Assumes that all of the Shares offered hereby are sold.
(2) These holders acquired the Shares owned by them pursuant to the April 1997
acquisition of Bread of Life, Inc. and affiliated companies. Subsequent to
the acquisition, Messrs. Oppenheimer and Gerber have served as the Regional
President and Regional Vice President, respectively, of the Southern
Florida region of the Company.
(3) The Carlyle Group's beneficial ownership represented 7.6% of the
outstanding Common Stock at April 30, 1997 (6.5% after the sale of the
Shares offered hereby). The Carlyle Group acquired its Shares pursuant to
the acquisition of Fresh Fields. David W. Dupree, a Managing Director of
The Caryle Group, has served as a member of the Company's board of
directors since August 1996. The address of The Carlyle Group is 1001
Pennsylvania Avenue, N.W., Washington, D.C. 20004. The 200,000 Shares
offered by The Carlyle Group are held of record by Carlyle FFM Partners VI,
L.P.
The Company is registering the Shares of the Selling Stockholders pursuant
to certain registration rights granted to them pursuant to an Agreement and Plan
of Merger entered in connection with such acquisition. The offering of the
Shares contemplated hereby will terminate on July ___, 1998, or such earlier
date as all Shares offered hereby have been sold.
DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue 50,000,000 shares of Common Stock, no
par value, of which approximately 19,510,000 shares were outstanding as of the
close of business on April 30, 1997, and 5,000,000 shares of Preferred Stock,
$.01 par value ("Preferred Stock"), none of which are outstanding.
Holders of Common Stock are entitled to one vote per share on any matter
submitted to the vote of shareholders, and cumulative voting is prohibited in
the election of directors. Subject to preferences that may be applicable to any
outstanding Preferred Stock, the holders of Common Stock are entitled to receive
ratably such dividends, if any, as may be declared from time to time by the
Board of Directors out of funds legally available therefor. The Common Stock is
non-assessable, not redeemable, does not have any conversion rights and is not
subject to call. Holders of shares of Common Stock have no preemptive rights to
maintain their respective percentage of ownership in future offerings or sales
of stock by the Company.
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<PAGE>
The Company may issue Preferred Stock in one or more series and the Board
of Directors may designate the dividend rate, voting rights and other rights,
preferences and restrictions of each series. It is not possible to state the
actual effect of the issuance of any shares of Preferred Stock upon the rights
of holders of the Common Stock until the Board of Directors of the Company
determines the specific rights of holders of such Preferred Stock. However, such
effects might include, among other things, restricting dividends on the Common
Stock, diluting the voting power of the Common Stock, impairing the liquidation
rights of the Common Stock and delaying or preventing a change in control of the
Company without further action by the shareholders.
The Transfer Agent and Registrar for the Common Stock is Securities
Transfer Corp., Dallas, Texas.
LEGAL OPINIONS
The validity of the shares of Common Stock offered hereby has been passed
upon by Crouch & Hallett, L.L.P., Dallas, Texas.
EXPERTS
The consolidated financial statements of the Company as of September 29,
1996, and September 24, 1995, and for each of the fiscal years in the three-year
period ended September 29, 1996, have been incorporated by reference herein and
in the registration statement in reliance upon the report of KPMG Peat Marwick
LLP, independent certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing. To
the extent that KPMG Peat Marwick LLP audits and reports upon consolidated
financial statements of the Company issued at future dates, and consents to the
use of their report thereon, such financial statements also will be incorporated
by reference herein in reliance upon their reports and said authority.
7
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following expenses will be paid by the Company:
Item Amount (1)
SEC registration fee $ 3,454
Legal fees and expenses 5,000
Accounting fees 5,000
Miscellaneous 1,546
---------
Total $15,000
- --------
(1) All items other than SEC registration fee are estimated
Item 15. Indemnification of Directors and Officers.
Article 2.02-1 of the Texas Business Corporation Act provides for
indemnification of directors and officers in certain circumstances. Reference is
made to Article VII of the Bylaws of the registrant filed as an exhibit hereto.
The Company's Restated Articles of Incorporation provide that no director
shall be liable to the registrant or its shareholders for an act or omission in
such capacity as a director, except for liability as a result of (i) a breach of
the director's duty of loyalty to the registrant or its shareholders, (ii) an
act or omission not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) an transaction from which such director derived
an improper personal benefit, (iv) an act or omission for which the liability of
a director is expressly provided by law or (v) an act related to an unlawful
stock repurchase of payment of a dividend.
An insurance policy obtained by the registrant provides for indemnification
of officers and directors of the registrant and certain other persons against
liabilities and expenses incurred by any of them in certain stated proceedings
and under certain stated conditions.
Item 16. Exhibits.
2(a) --- Agreement and Plan of Merger, among the registrant, Whole Foods Market
Group, Inc., Bread of Life, Inc., and the shareholders of Bread of
Life, Inc. (1)
2(b) --- Agreement and Plan of Merger among the Registrant, Whole Foods Market
Mid- Atlantic, Inc. and Fresh Fields Markets, Inc. (2)
3(a) --- Restated Articles of Incorporation of the registrant. (3)
3(b) --- Amended and Restated Bylaws of the registrant. (4)
5 --- Opinion of Crouch & Hallett, L.L.P. (5)
23(a)--- Consent of KPMG Peat Marwick LLP. (5)
23(b)--- Consent of Crouch & Hallett, L.L.P. (included in opinion filed as
Exhibit 5).
24 --- Power of Attorney (previously filed).
- ----------------
(1) Previously filed.
II-1
<PAGE>
(2) Filed as an exhibit to Registration Statement No. 333-7719 on Form S-4 and
incorporated herein by reference.
(3) Filed as an exhibit to Registration Statement No. 33-69362 on Form S-3 and
incorporated herein by reference.
(4) Filed as an exhibit to the registrant's annual report on Form 10-K for the
fiscal year ended September 24, 1995, and incorporated herein by reference.
(5) Filed herewith.
Item 17. Undertakings.
(a) Rule 415 Offering
The registrant hereby undertakes (1) to file, during any
period in which offers or sales are being made of the Shares registered
hereby, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this 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 herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and (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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company'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
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Indemnification for Liability under the Securities Act of 1934
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.
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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-3 and has duly caused this Amendment to Form
S-3 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Austin and State of Texas on the 16th
day of July, 1997.
WHOLE FOODS MARKET, INC.
By /s/ Glenda J. Flanagan
-------------------------------------------
Glenda J. Flanagan, Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to this registration statement has been signed below by the
following persons in
the capacities and on July 16, 1997.
Signature Title
* Chairman of the Board
- ----------------------- and Director
John P. Mackey (Principal Executive Officer)
* Chief Financial Officer
- ----------------------- (Principal Financial Officer and Accounting Officer)
Glenda J. Flanagan
* Director
- -----------------------
Cristina G. Banks
* Director
- -----------------------
David W. Dupree
* Director
- -----------------------
John B. Elstrott
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* Director
- -------------------------------
Elizabeth Cogan Fascitelli
* Director
- -------------------------------
Avram J. Goldberg
* Director
- -------------------------------
Fred "Chico" Lager
Director
- -------------------------------
Linda A. Mason
Director
- -------------------------------
Ralph Z. Sorenson
* By: /s/ Glenda Flanagan
------------------------
Glenda Flanagan
Power of Attorney
II-4
<PAGE>
Exhibit 5
[CROUCH & HALLETT LETTERHEAD]
July 16, 1997
Whole Foods Market, Inc.
601 N. Lamar Blvd., Suite 300
Austin, Texas 78703
Gentlemen:
We have served as counsel for Whole Foods Market, Inc., a Texas
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 covering the sale of a maximum of 399,903 shares (the "Shares") of
Common Stock, no par value, of the Company. The Shares are to be sold from time
to time by shareholders of the Company as described in the Registration
Statement.
We have examined such documents and questions of law as we have deemed
necessary to render the opinion expressed below. Based upon the foregoing, we
are of the opinion that the Shares are duly and validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ Crouch & Hallett, LLP
<PAGE>
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Whole Foods Market, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick, LLP
Austin, Texas
July 14, 1997
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