<PAGE> 1
As filed with the Securities and Exchange Commission on January 27, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WILD OATS MARKETS, INC.
(Exact name of registrant as specified in its charter)
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<TABLE>
<S> <C>
Delaware 84-1100630
(State of Incorporation) (I.R.S. Employer Identification No.)
</TABLE>
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1645 Broadway
Boulder, Colorado 80302
(303) 440-5220
(Address and telephone number of principal executive offices)
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1996 EQUITY INCENTIVE PLAN
1993 STOCK OPTION PLAN
1991 STOCK OPTION PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Michael C. Gilliland
Chief Executive Officer
Wild Oats Markets, Inc.
1645 Broadway
Boulder, Colorado 80302
(303) 440-5220
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------------
Copies to:
James C.T. Linfield, Esq.
Carrie L. Schiff, Esq.
Cooley Godward LLP
2595 Canyon Boulevard
Suite 250
Boulder, Colorado 80302
(303) 546-4000
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE (1) PRICE(1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and Common
Stock (par value $.001) 951,123 $ 15.74 $ 14,970,446 $4,537
====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price, pursuant to Rule 457(h)
under the Securities Act of 1933, as amended (the "Act"), for shares subject to
options and stock previously granted under the Registrant's 1996 Equity
Incentive Plan, 1993 Stock Option Plan and 1991 Stock Option Plan and (b) the
Nasdaq National Market closing price, pursuant to Rule 457(h) of the Act, of
the Registrant's Common Stock on January 23, 1997, for shares subject to
options granted under the 1996 Stock Option Plan and the Employee Stock
Purchase Plan. The following chart illustrates the calculation of the
registration fee.
<TABLE>
<CAPTION>
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TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE
<S> <C> <C> <C>
Shares issuable pursuant to 233,758 $ 16.87(a) $ 3,943,498
options outstanding under the 1996
Equity Incentive Plan
- ---------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to 341,532 15.65(a) 5,344,976
options outstanding under the 1993
Stock Option Plan
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Shares issuable pursuant to 74,147 19.16(a) 1,420,657
options outstanding under the 1991
Stock Option Plan
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Shares issuable upon exercise of 173,994 14.125(b) 2,457,665
options available for grant under
the 1996 Stock Option Plan
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Shares issuable upon exercise of 127,692 14.125(b) 1,803,650
options available for grant under
the Employee Stock Purchase Plan
- ---------------------------------------------------------------------------------------------------------------
Proposed Maximum Aggregate $ 14,970,446
Offering Price
- ---------------------------------------------------------------------------------------------------------------
Registration Fee $ 4,537
===============================================================================================================
</TABLE>
(a) Weighted average exercise price.
(b) Based on the Nasdaq National Market closing price of the Registrant's
Common Stock on January 23, 1997.
================================================================================
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
2.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Wild Oats Markets, Inc. (the "Company") with
the Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's prospectus filed October 22, 1996 pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed.
(b) The description of the Company's Common Stock which is
contained in a registration statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
(c) All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") prior to the filing of a
post effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part of this registration
statement from the date of the filing of such reports and documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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 By laws require the Company to indemnify its directors and
officers, and permit the Company to indemnify its employees and other agents,
to the extent permitted by Delaware law. Under the Company's By-laws,
indemnified parties are entitled to indemnification for negligence, gross
negligence and otherwise to the fullest extent permitted by law. The By-laws
also require the Company to advance litigation expenses in the case of
stockholder derivative actions or other actions, against an undertaking by the
indemnified party to repay such advances if it is ultimately determined that
the indemnified party is not entitled to indemnification.
The Company has entered into indemnity agreements with each of its
directors and executive officers. Such indemnity agreements contain provisions
which are in some respects broader than the specific indemnification provisions
contained in Delaware law.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
3.
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EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1* Certificate of Incorporation.
4.2* Bylaws.
4.3* Specimen stock certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
23.3 Consent of Deloitte & Touche LLP.
99.1* Registrant's 1996 Equity Incentive Plan.
99.2* Registrant's 1993 Stock Option Plan.
99.3* Registrant's 1991 Stock Option Plan.
99.4* Registrant's Employee Stock Purchase Plan.
</TABLE>
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* Filed as an exhibit to the Form S-1 Registration Statement (No.
333-11261), as amended through the date hereof, and incorporated
herein by reference.
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) (Section 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 information 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.
4.
<PAGE> 5
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
bonafide offering thereof.
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.
5.
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SIGNATURES
THE REGISTRANT. 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 Boulder, State of
Colorado, on January 27, 1997.
WILD OATS MARKETS, INC.
By: /s/ Michael C. Gilliland
--------------------------------------
Michael C. Gilliland
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael C. Gilliland and Mary Beth
Lewis, and each or any one of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his 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 attorneys-in-fact and agents, and each of them, 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 might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Michael C. Gilliland Chief Executive Officer and Director January 27, 1997
--------------------------------------- (Principal Executive Officer)
Michael C. Gilliland
President and Director
---------------------------------------
S.M. Hassan
/s/ Mary Beth Lewis Chief Financial Officer and Treasurer January 27, 1997
--------------------------------------- (Principal Financial and Accounting Officer)
Mary Beth Lewis
/s/ Elizabeth C. Cook Vice President, Secretary and Director January 27, 1997
---------------------------------------
Elizabeth C. Cook
Chairman of the Board
---------------------------------------
John Shields
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ David Chamberlain Vice Chairman of the Board January 27, 1997
---------------------------------------
David Chamberlain
Director
---------------------------------------
Peter D. Behrendt
/s/ Barnet M. Feinblum Director January 27, 1997
---------------------------------------
Barnet M. Feinblum
Director
---------------------------------------
David L. Ferguson
/s/ M. Laird Koldyke Director January 27, 1997
---------------------------------------
M. Laird Koldyke
/s/ James B. McElwee Director January 27, 1997
---------------------------------------
James B. McElwee
</TABLE>
7.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1* Certificate of Incorporation.
4.2* Bylaws.
4.3* Specimen stock certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
23.3 Consent of Deloitte & Touche LLP.
99.1* Registrant's 1996 Equity Incentive Plan.
99.2* Registrant's 1993 Stock Option Plan.
99.3* Registrant's 1991 Stock Option Plan.
99.4* Registrant's Employee Stock Purchase Plan.
</TABLE>
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* Filed as an exhibit to the Form S-1 Registration Statement (No.
333-11261), as amended through the date hereof, and incorporated by
reference.
<PAGE> 1
[COOLEY GODWARD LLP]
January 27, 1997
Wild Oats Markets, Inc.
1645 Broadway
Boulder, CO 80302
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Wild Oats Markets, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to (i) 407,752 shares of the
Company's Common Stock, $.001 par value ("Common Stock"), pursuant to its 1996
Equity Incentive Plan, (ii) 341,532 shares of Common Stock pursuant to its 1993
Stock Option Plan, (iii) 74,147 shares of Common Stock pursuant to its 1991
Stock Option Plan and (iv) 127,692 shares of Common Stock, pursuant to its
Employee Stock Purchase Plan (the "Purchase Plan") (collectively, the
"Shares"). In connection with this opinion, we have examined the Registration
Statement and related Prospectus, your Certificate of Incorporation and
By-laws, as amended, and such other documents, records, certificates, memoranda
and other instruments as we deem necessary as a basis for this opinion. We
have assumed the genuineness and authenticity of all documents submitted to us
as originals, the conformity to originals of all documents submitted to us as
copies thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the 1996 Equity
Incentive Plan, the 1993 Stock Option Plan, the 1991 Stock Option Plan or the
Purchase Plan, and the Registration Statement, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain
deferred payment arrangements, which will be fully paid and nonassessable when
such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ James C. T. Linfield
--------------------------------------
James C. T. Linfield
<PAGE> 1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of the following reports on the following financial
statements included in the Wild Oats Markets, Inc.'s prospectus, as amended,
dated October 22, 1996:
- - Our report dated February 9, 1996, except for Note 2, as to which the
date is July 14, 1996 and Note 1, paragraph three, as to which the date
is October 15, 1996, which appears on page F-2 of the 1995 financial
statements of Wild Oats Markets, Inc. for the year ended December 30,
1995.
- - Our report dated August 15, 1996, except for Note 1, paragraph three,
as to which the date is October 15, 1996, which appears on page F-17 of
the financial statements of Alfalfa's, Inc. for the year ended June 30,
1996.
- - Our report dated August 29, 1996, which appears on page F-31 of the
financial statements of Kathy's Natural Foods Ranch Markets for the
period from January 1, 1994 through July 13, 1994, and
- - Our report dated August 27, 1996, which appears on page F-36 of the
financial statements of New Frontiers for the year ended December 31,
1995.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
Boulder, Colorado
January 24, 1997
<PAGE> 1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Wild Oats Markets, Inc. on Form S-8 of our report dated September 6, 1995
(October 15, 1996 as to the third paragraph of Note 1), relating to the
consolidated balance sheet of Alfalfa's, Inc. and subsidiaries as of June 25,
1995, and the related consolidated statements of operations, stockholders'
equity, and cash flows for the years ended June 25, 1995 and June 26, 1994,
appearing in Registration Statement No. 333-11261 of Wild Oats Markets, Inc. on
Form S-1.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Denver, Colorado
January 24, 1997
