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As filed with the Securities and Exchange Commission on January 25, 1999
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
------------------------
WEST MARINE, INC.
(Exact name of issuer as specified in its charter)
Delaware 77-035-5502
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
500 Westridge Drive, Watsonville, California 95076-4100
(Address of principal executive offices) (Zip Code)
WEST MARINE, INC. ASSOCIATES STOCK BUYING PLAN
(Full title of the plan)
John Edmondson
West Marine, Inc.
500 Westridge Drive, Watsonville, California 95076-4100
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (831) 728-2700
Copy to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount Proposed Maximum Proposed Maximum
to be to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share* Price* Registration Fee*
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<S> <C> <C> <C> <C>
Common Stock 200,000 shares $11.69 $2,338,000 $650.00
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* Estimated on the basis of $11.69, the average of the high and low prices of
shares on the NASDAQ National Market System on January 22, 1999.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this registration
statement: (i) the latest annual report of West Marine, Inc. (the "Company")
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); (ii) all reports filed by the Company pursuant
to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the Company's latest annual report; and (iii) the description of the
Company's common stock set forth in the Company's Registration Statement on Form
8-A relating thereto, including any amendment or report filed for the purpose of
updating such description. All documents filed by the Company after the date of
this registration statement pursuant to Sections 13(a), 13(c), 14, and 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment (that
indicates all securities offered have been sold or deregisters all securities
then remaining unsold), shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that its directors will not
be liable to the Company or its stockholders for monetary damages for breaches
of fiduciary duty, to the fullest extent permitted by law. This provision is
intended to allow the Company's directors the benefit of the Delaware General
Corporation law which provides that directors of Delaware corporations may be
relieved of monetary liability for breaches of their fiduciary duty of care
except under certain circumstances, including breach of the duty of loyalty,
acts or omissions not in good faith or involving intentional misconduct or known
violation of law or any transaction from which the director derived an improper
personal benefit.
The Company has entered into separate indemnification agreements with each of
the directors and executive officers, whereby the Company agrees, among other
things, to indemnify them against certain liabilities that may arise by reason
of their status or service as directors or officers, to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified, and to obtain directors' and officers' insurance if available at
reasonable terms.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
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ITEM 8. EXHIBITS
4.1 West Marine, Inc. Associates Stock Buying Plan, as amended (incorporated
by reference to Exhibit 4.1 of the registrant's Registration Statement on
Form S-8, filed on February 9, 1995 (Commission File No. 33-89322)).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe is included in Exhibit 5.1.
ITEM 9. UNDERTAKINGS
(a) 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;
(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;
(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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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) The undersigned registrant hereby undertakes that, for 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 the
2
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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) 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.
3
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Signatures
THE REGISTRANT
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 Watsonville, State of California on the 11th day of
December, 1998.
West Marine, Inc.
(Registrant)
/s/ John Edmondson
- ----------------------------------
John Edmondson
President and Chief
Executive Officer
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.
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<CAPTION>
Signature Title Date
<S> <C> <C>
Principal Executive Officer:
/s/ John Edmondson
- ------------------------------ President and Chief Executive December 10, 1998
John Edmondson Officer
Principal Financial Officer
and Accounting Officer:
/s/ John C. Zott
- ------------------------------ Senior Vice President and December 8, 1998
John C. Zott Chief Financial Officer
</TABLE>
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Directors:
/s/ Randolph K. Repass Director December 11, 1998
- ------------------------------
Randolph K. Repass
/s/ Geoffrey A. Eisenberg Director December 10, 1998
- ------------------------------
Geoffrey A. Eisenberg
/s/ Richard E. Everett Director December 11, 1998
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Richard E. Everett
/s/ James P. Curley Director December 15, 1998
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James P. Curley
/s/ Jeanne Jackson Director January 20, 1999
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Jeanne Jackson
/s/ David McComas Director December 9, 1998
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David McComas
/s/ Walter Scott Director December 9, 1998
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Walter Scott
/s/ Henry Wendt Director December 9, 1998
- ------------------------------
Henry Wendt
A majority of the members of the Board of Directors.
5
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EXHIBIT INDEX
4.1 West Marine, Inc. Associates Stock Buying Plan, as amended (incorporated
by reference to Exhibit 4.1 of the registrant's Registration Statement
on Form S-8, filed on February 9, 1995 (Commission File No. 33-89322)).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe is included in Exhibit 5.1.
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EXHIBIT 4.1
AMENDMENT NO. 1 TO THE
WEST MARINE, INC.
ASSOCIATES STOCK BUYING PLAN
WEST MARINE, INC., having adopted the West Marine, Inc. Associates
Stock Buying Plan (the "Plan"), effective as of November 1, 1994, hereby amends
the Plan, effective as of January 20, 1999, by deleting the numeral 100,000 from
Section 3.1 and substituting the numeral 372,789 therefor.
WEST MARINE, INC. hereby further amends the Plan, effective as of
January 20, 1999, by deleting the word "second" from the final sentence of
Section 8.1 and substituting the word "next" therefor.
IN WITNESS WHEREOF, West Marine, Inc., by its duly authorized officer,
has executed this Amendment No. 1 on the date indicated below.
WEST MARINE, INC.
Dated: January 25, 1999 By: /s/ John C. Zott
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Title: Senior Vice President and
Chief Financial Officer
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EXHIBIT 5.1
January 25, 1999
West Marine, Inc.
500 Westridge Drive
Watsonville, CA 95076-4100
Re: West Marine, Inc./
Registration Statement on Form S-8
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Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with the
proposed issuance pursuant to the West Marine, Inc. Associates Stock Buying
Plan, as amended (the "Plan"), of up to 200,000 additional shares of common
stock, $.001 par value ("Common Stock"), of West Marine, Inc., a Delaware
corporation (the "Company").
We have examined instruments, documents, and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; and (c) the truth,
accuracy, and completeness of the information, representations, and warranties
contained in the records, documents, instruments, and certificates we have
reviewed.
Based on such examination, we are of the opinion that the 200,000
additional shares of Common Stock to be issued by the Company pursuant to the
Plan are validly authorized shares of Common Stock, and, when issued in
accordance with the provisions of the Plan, will be legally issued, fully paid,
and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to this
Registration Statement on Form S-8 and to the use of our name wherever it
appears in said Registration Statement. In giving such consent, we do not
consider that we are "experts" within the meaning of such term as used in the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission issued thereunder with respect to any part of
the Registration Statement, including this opinion, as an exhibit or otherwise.
Very truly yours,
ORRICK, HERRINGTON & SUTCLIFFE LLP
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EXHIBIT 23.1
[LOGO OF DELOITTE & TOUCHE]
___________________________ ____________________________________
Deloitte & Touche LLP
50 Fremont Street
San Francisco, California 94105-2230
Telephone: (415) 247-4000
Facsimile: (415) 247-4329
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by refernce in this Registration Statement of
West Marine, Inc. on Form S-8 of our report dated February 20, 1998, appearing
in the Annual Report on Form 10-K of West Marine, Inc. for the year ended
January 3, 1998 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
San Francisco, California
January 22, 1999
