Securities Registration: Employee Benefit Plan (s-8)
08 Junho 2017 - 6:21PM
Edgar (US Regulatory)
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As filed with the Securities and Exchange Commission on June 8, 2017
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Registration No. 33-
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UNITED STATES
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 registrant
as specified in its charter)
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Delaware
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77-0355502
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(State or other jurisdiction of Incorporation or organization)
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(I.R.S. Employer Identification No.)
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500 Westridge Drive, Watsonville, CA
95076-4100
(Address of principal executive offices)
(Zip code)
WEST MARINE, INC. AMENDED AND RESTATED
ASSOCIATES STOCK BUYING PLAN
(Full title of the plan)
Pamela J. Fields, Esq.
west
marine, inc.
500 Westridge Drive, Watsonville, CA 95076
(831) 761-4869 (Name and address of agent
for service) (Telephone number, including area code, of agent for service)
Copies to:
Scott D. Museles
Thomas D. Twedt
Shulman, Rogers, Gandal, Pordy & Ecker,
P.A.
12505 Park Potomac Avenue, 6
th
Floor
Potomac, MD 20854
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act
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Large accelerated filer
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Accelerated filer ☒
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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Emerging growth company
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If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
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CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered
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Amount to be Registered
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Proposed Maximum
Offering
Price per Share (2)
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Proposed Maximum
Aggregate
Offering Price (2)
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Amount of
Registration Fee
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Common Stock, par value
$0.001 per share
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750,000 shares
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$
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10.01
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$
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7,507,500
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$
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870.12
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(1)
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Pursuant to Rule 416(a), this Registration Statement shall also cover any additional shares of
Registrant’s Common Stock that become issuable under the plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Registrant’s
Common Stock and is deemed to register an indeterminate amount of interests in the plan pursuant to Rule 416(c).
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to
Rule 457(h). The price per share and aggregate offering price are based upon the average of the high and low prices of Registrant’s
Common Stock on June 1, 2017 as reported on the NASDAQ Global Select Market.
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ITEM 1. PLAN INFORMATION
Not required in this Registration Statement.
ITME 2. REGISTRANT INFORMATION AND EMPLOYEE
PLAN ANNUAL INFORMATION
Not required in this Registration Statement.
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE
The following documents
filed by West Marine, Inc. (the “Company” or “West Marine”) with the Securities and Exchange Commission
are incorporated by reference into this Registration Statement:
(a)
The
annual report on Form 10-K for the year ended December 31, 2016 (the “2016 Form 10-K”);
(b)
The
information incorporated by reference into the 2016 Form 10-K from the Company’s definitive proxy statement
on Schedule 14A, as filed on April 21, 2017;
(c)
The
quarterly report on Form 10-Q for the quarter ended April 1, 2017;
(d)
The
current reports on Form 8-K filed on June 5, 2017, April 14, 2017 and March 24, 2017; and
(e)
The
description of West Marine’s common stock, par value $0.001 per share, contained in the registration statement on Form 8-A,
filed September 30, 1993, including any amendment or report filed for the purpose of updating such description.
All documents filed by
us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the respective dates of filing of such documents, other than information furnished pursuant to Item
2.02 or Item 7.01 of Form 8-K or otherwise permitted by SEC rules and regulations.
ITEM 4. DESCRIPTION OF SECURITIES
See the description of contained in the Form
8-A, filed September 30, 1993, including any amendment or report filed for the purpose of updating such description.
ITEM 5. INTERESTS OF NAMED EXPERTS AND
COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS
AND OFFICERS
Section 102(b)(7) of
the General Corporation Law of the State of Delaware (the “DGCL”), provides that a corporation (in its original certificate
of incorporation or an amendment thereto) may eliminate or limit the personal liability of a director (or certain persons who,
pursuant to the provisions of the certificate of incorporation, exercise or perform duties conferred or imposed upon directors
by the DGCL) to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that
such provisions shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends
or unlawful stock purchases or redemptions), or (iv) for any transaction from which the director derived an improper personal benefit.
West Marine's certificate
of incorporation, as amended, limits the liability of directors to the fullest extent permitted by the DGCL. Section 145 of the
DGCL provides that, under certain circumstances, a corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at its request in such capacity in another corporation,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if
the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s
conduct was unlawful.
West Marine’s bylaws,
as amended, indemnifies to the fullest extent permitted by the DGCL any person made, or threatened to be made, a party to an action
or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person’s
testator or intestate is or was a director or officer of West Marine or any of its predecessors, or served any other enterprise
as a director or officer at the request of West Marine or any predecessor, including without limitation, all expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection
with the proceeding. In addition, all reasonable expenses incurred by or on behalf of such person shall be advanced
by West Marine within 20 calendar days after request by such person to West Marine, such request reasonably evidencing the expenses
incurred, for such advance from time to time, whether prior to or after final disposition of the proceeding.
West Marine also has entered
into separate indemnification agreements with each of the directors and executive officers, whereby West Marine 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. West Marine maintains directors’ and officers’
liability insurance which covers certain liabilities and expenses of West Marine’s directors and officers and covers West
Marine for reimbursement of payments to directors and officers in respect of such liabilities and expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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Exhibit
Number
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5.1
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Opinion of Shulman, Rogers, Gandal, Pordy & Ecker, P.A.
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23.1
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Consent of PricewaterhouseCoopers, LLC
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23.2
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Consent of Shulman, Rogers, Gandal, Pordy & Ecker, P.A. is contained in Exhibit 5.1 to this Registration Statement.
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24.1
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Power of Attorney is contained on the signature page.
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99.1
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West Marine, Inc. Amended and Restated Associates Stock Buying Plan (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed June 5, 2017).
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99.2
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Form of Notice of Grant of Time-Vested Restricted Stock Units and Form of Time Vested Restricted Stock Unit Agreement for Associates (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed June 5, 2017).
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99.3
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Form of Notice of Grant of Performance-Based Restricted Stock Units and Form of Performance-Based Restricted Stock Unit Agreement for Associates (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed June 5, 2017).
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99.4
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Form of Notice of Grant of Time-Vested
Restricted Stock Units and Form of Time Vested Restricted Stock Unit Agreement for Non-Employee Directors (incorporated by reference
to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed June 5, 2017).
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UNDERTAKINGS
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1.
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The undersigned registrant hereby undertakes:
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(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) 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;
Provided, however,
that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d)
of the Exchange Act that are incorporated by reference 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.
(d)
That,
for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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2.
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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.
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3.
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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.
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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 Watsonville, State of California, on June 8, 2017.
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west marine, inc.
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By:
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/s/ Matthew L. Hyde
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Title:
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President and Chief Executive Officer
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POWER OF ATTORNEY
Know
All Persons By These Presents
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that each person whose signature appears below constitutes and appoints Matthew L. Hyde
and Jeffrey L. Lasher, and each or any one of them, his 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.
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Signature
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Title
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Date
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/s/ matthew l. hyde
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President
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matthew l. hyde
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(Chief Executive Officer)
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June 8, 2017
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/s/ jeffrey l. lasher
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Chief Financial Officer
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jeffrey l. lasher
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(Principal Financial Officer)
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June 8, 2017
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/s/ barbara l. rambo
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Board Chair
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barbara l. rambo
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June 8, 2017
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/s/ randolph k. repass
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Director
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randolph
k. repass
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June 8, 2017
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/s/ dennis f. madsen
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Director
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dennis
f. madsen
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June 8, 2017
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/s/
christiana shi
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Director
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christiana
shi
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June 8, 2017
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/s/ james f. nordstrom,
jr.
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Director
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james
f. nordstrom, jr.
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June 8, 2017
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/s/
alice m. richter
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Director
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alice
m. richter
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June 8, 2017
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/s/
robert d. olsen
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Director
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robert
d. olsen
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June 8, 2017
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EXHIBIT INDEX
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Exhibit
Number
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Description
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5.1
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Opinion of Shulman, Rogers, Gandal, Pordy & Ecker, P.A
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23.1
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Consent of PricewaterhouseCoopers, LLC
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23.2
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Consent of Shulman, Rogers, Gandal, Pordy & Ecker, P.A is contained in Exhibit 5.1 to this Registration Statement.
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24.1
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Power of Attorney is contained on the signature page.
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