As Filed With the Securities and Exchange Commission on October 29, 1998
FILE NO. 333-
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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)
Delaware 84-1100630
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1645 Broadway
Boulder, Colorado 80302
( Address of principal executive offices) (Zip Code)
1996 EQUITY INCENTIVE PLAN
(As amended May 4, 1998)
(Full title of the Plan)
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Michael C. Gilliland
Chief Executive Officer With copies to:
Wild Oats Markets, Inc. Francis R. Wheeler, Esq.
1645 Broadway Holme Roberts & Owen LLP
Boulder, Colorado 80302 1700 Lincoln, Suite 4100
(Name and address of agent for service) Denver, Colorado 80203
(303) 861-7000
(303) 440-5220
(Telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Aggregate Amount of
Registered Registered Price Per Share(1) Offering Price(1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock
(par value $.001) 121,940 $ (1) $ (1) $ (1)
96,260 25.00 2,406,500.00 669.00
27,138 (3) 26.50 719,157.00 199.93
587 (4) 22.53 13,225.11 3.68
579,075 (5) 24.75 14,332,106.00 3,984.33
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Total: 825,000 (6) 17,470,988.11 4,856.94
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(1) In accordance with Rule 429(a) and Rule 416(b), this Registration Statement
relates to 121,940 shares of Common Stock (81,293 shares prior to the
three-for-two split of the Registrant's Common Stock, payable on January 7, 1998
to holders of record on December 22, 1997) covered by the Registrant's
Registration Statement on Form S-3 (File No. 333-40305). Such shares are being
carried forward from such earlier Registration Statement in accordance with Rule
429(b). A filing fee of $939.09 associated with such shares was previously paid
with such earlier Registration Statement.
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(2) Estimated solely for the purpose of calculating the registration fee for the
shares being registered hereby pursant to Rule 457(h) under the Securities Act
of 1933, as amended (the "Act"), based on $25.00, the price at which the options
may be exercised.
(3) Estimated solely for the purpose of calculating the registration fee for the
shares being registered hereby pursant to Rule 457(h) under the Act, based on
$26.50, the price at which the options may be exercised.
(4) Estimated solely for the purpose of calculating the registration fee for the
shares being registered hereby pursant to Rule 457(h) under the Act, based on
$22.53, the price at which the options may be exercised.
(5) Estimated solely for the purpose of calculating the registration fee for the
shares being registered hereby pursant to Rule 457(c) under the Act, based on
$24.75, the average of the high and low prices reported on the National Market
tier of the Nasdaq Stock Market on October 27, 1998.
(6) Covered by the 1996 Equity Incentive Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Wild Oats Markets, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Registration Statement:
(1) The Company's annual report on Form 10-K for the fiscal year
ended December 27, 1997, as amended on Form 10-K/A dated June 15,
1998.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 28, 1998 and June 27, 1998.
(3) The Company's Current Report on Form 8-K for an event that
occurred on May 5, 1998.
(4) Pages F-17 through F-30 and pages F-36 through F-45 of the
Company's prospectus dated October 22, 1996.
(5) The description of the Company's Common Stock which is contained
in the Company's registration statement filed on October 17,
1996, including any amendment or report filed for the purpose of
updating such description.
(6) 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 that indicates that all
securities offered have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to
be part thereof from the date of filing of such reports and
documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts
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 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 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 Certificate of Incorporation 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
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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 for 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 Articles of Incorporation, 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 No. Description
5.1 Opinion of Holme Roberts & Owen LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Holme Roberts & Owen LLP is contained in its
legality opinion filed as Exhibit 5.1
24.1 Power of Attorney
99.1 Amendment to 1996 Equity Incentive Plan
Item 9. Undertakings
(a) Rule 415 Offerings.
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;
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(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 the volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the high or low end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 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;
(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 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) Filings incorporating subsequent Exchange Act documents by
reference.
The undersigned registrant hereby undertakes that, for the 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 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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Request for acceleration of effective date or filing of
registration statement on Form S-8.
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 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 competent
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-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 October 29, 1998.
WILD OATS MARKETS, INC.,
a Delaware corporation
By: /s/ Mary Beth Lewis
Mary Beth Lewis
Vice President of Finance,
Chief Financial Officer and Treasurer
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 date indicated.
Signature Title Date
Michael C. Gilliland* Chief Executive Officer and Director October 29, 1998
(Principal Executive Officer)
/s/ Mary Beth Lewis
Mary Beth Lewis Vice President of Finance, October 29, 1998
Chief Financial Officer and
Treasurer (Principal Financial
and Accounting Officer)
Elizabeth C. Cook* Executive Vice President,
Secretary and Director October 29, 1998
John Shields* Chairman of the Board October 29, 1998
David Chamberlain* Vice Chairman of the Board October 29, 1998
David L. Ferguson* Director October 29, 1998
James B. McElwee* Director October 29, 1998
Brian K. Devine* Director October 29, 1998
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*By: /s/ Mary Beth Lewis
Mary Beth Lewis
Attorney- in-fact
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INDEX TO EXHIBITS
Exhibit
Number Description Page
5.1 Opinion of Holme Roberts & Owen LLP 8
23.1 Consent of PricewaterhouseCoopers LLP 10
23.2 Consent of Deloitte & Touche LLP 12
23.2 Consent of Holme Roberts & Owen LLP
is contained in its legality opinion
filed as Exhibit 5.1
24.1 Power of Attorney 14
99.1 Amendment to the Company's 1996 Equity Incentive Plan 16
Page 7
Exhibit 5.1
October 29, 1998
Board of Directors of
Wild Oats Markets, Inc.
1645 Broadway
Boulder, Colorado 80302
Ladies and Gentlemen:
Reference is made to the registration statement on Form S-8 filed with the
Securities and Exchange Commission (the "Commission") on October 29, 1998 (the
"Registration Statement") by Wild Oats Markets, Inc., a Delaware corporation
(the "Company"), for the purpose of registering 825,000 shares of the common
stock of the Company (the "Shares") under the Securities Act of 1933.
As counsel for the Company, we have examined such documents and reviewed such
questions of law as we have considered necessary or appropriate for the purpose
of this opinion. Based on the foregoing, we are of the opinion that the Shares,
when sold and delivered by the Company pursuant to the Company's 1996 Equity
Incentive Plan, as amended, as described in the Registration Statement, will be
legally issued, fully paid and nonassessable.
We consent to the filing of this opinion with the Commission as an exhibit to
the Registration Statement.
We do not express an opinion on any matters other than those expressly set forth
in this letter.
Very truly yours,
Holme Roberts & Owen LLP
By: /s/ Francis R. Wheeler
Francis R. Wheeler
Partner
Exhibit 23.1
Consent of Independent Accountants
We consent to incorporation by reference in the Prospectus constituting part of
this registration statement on Form S- 8 of:
Our report dated January 30, 1998, which appears on page 31 of the 1997 Annual
Report to Shareholders of Wild Oats Markets, Inc., which is incorporated in the
Wild Oats Markets, Inc.'s Annual Report on Form 10-K for the year December 27,
1997,
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 Company's
Prospectus dated October 22, 1996, of the financial statements of Alfalfa's,
Inc. for the year ended June 30, 1996, and
Our report dated August 27, 1996, which appears on page F-36 of the Company's
Prospectus dated October 22, 1996, of the financial statements of New Frontiers
for the three years in the period ended December 31, 1995.
We also consent to the reference to us under the deading "Experts" in such
prospectus.
PricewaterhouseCoopers LLP
Boulder, Colorado
October 26, 1998
Exhibit 23.2
Independent Auditors' 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.
Deloitte & Touche LLP
Denver, Colorado
October 27, 1998
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mary Beth Lewis his or her
attorney-in-fact, with full power of substitution, resubstitution and revocation
for him or her in any and all capacities, to execute, deliver and file with the
Securities and Exchange Commission (the "Commission"), for and on such person's
behalf, and in any and all capacities, a registration statement on Form S-8, and
all amendments (including post-effective amendments) thereto, with all exhibits
thereto, and other documents in connection therewith, granting unto said
attorney-in-fact full power and authority to do and perform each and every other
act and thing requisite and necessary to be done as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorney-in fact or such person's substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Date: October 22, 1998 /s/ Michael C. Gilliland
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Michael C. Gilliland, Chief Executive Officer
Date: October 22, 1998 /s/ Mary Beth Lewis
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Mary Beth Lewis, Vice President of Finance,
Officer and Treasurer
Date: October 22, 1998 /s/ Elizabeth C. Cook
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Elizabeth C. Cook, Executive Vice President,
Director
Date: October 22, 1998 /s/ John Shields
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John Shields, Chairman of the Board
Date: October 22, 1998 /s/ David Chamberlain
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David Chamberlain, Vice Chairman of the Board
Date: October 22, 1998 /s/ David L. Ferguson
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David L. Ferguson, Director
Date: October 22, 1998 /s/ James B. McElwee
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James B. McElwee, Director
Date: October 22, 1998 /s/Brian K. Devine
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Brian K. Devine, Director
Exhibit 99.1
AMENDMENT TO WILD OATS MARKETS, INC.
1996 EQUITY INCENTIVE PLAN
On August 19, 1996, the Board of Directors of Wild Oats Markets, Inc. (the
"Company") adopted the 1996 Equity Incentive Plan (the "Plan") under which the
Company may, from time to time, issue options exercisable for shares of the
Common Stock, stock bonuses and rights to purchase restricted Common Stock of
the Company.
RECITALS
A. The Board of Directors of the Company resolved on February 10, 1998 to
increase the number of shares of the Company's Common Stock reserved for
issuance upon the exercise of stock options granted under the Plan, by 825,000
shares.
B. Shareholder approval to amend the Plan by increasing by 825,000 the number of
shares of the Company's Common Stock reserved for issuance under the Plan upon
the exercise of stock options granted under the Plan was requested and given at
the Shareholders Annual Meeting on May 4, 1998.
AMENDMENT
1. Section 4 of the Plan is hereby amended to insert "Two million sixty
thousand one hundred forty seven (2,060,147) shares" as the number of
shares reserved for issuance upon the exercise of options granted under
the Plan. This number reflects the original amounts reserved under Plan
on a post-split basis adjusting for splits in October 1996 and January
1998, plus the additional 825,000 shares of common stock referenced in
the recitals to this Amendment.
2. The foregoing amendment is effective as of May 4, 1998.
3. Except as set forth, the Plan remains unchanged.
/s/ Mary Beth Lewis
Assistant Secretary
