Securities and Exchange Commission on August 18, 2004
Registration No. 333-_____
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UNITED STATES
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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SELECT COMFORT CORPORATION
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1597886
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6105 TRENTON LANE NORTH, SUITE 100
MINNEAPOLIS, MN 55442
(Address of Principal Executive Offices) (Zip Code)
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SELECT COMFORT CORPORATION
2004 STOCK INCENTIVE PLAN
(Full title of the plan)
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MARK A. KIMBALL
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
SELECT COMFORT CORPORATION
6105 TRENTON LANE NORTH, SUITE 100
MINNEAPOLIS, MN 55442
(612) 551-7000
(Name, address and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
===================== ================ ====================== ======================== ===============
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE
- --------------------- ---------------- ---------------------- ------------------------ ---------------
Common Stock, par
value $0.01 per 3,000,000 $14.60 $43,800,000 $5,549.46
share shares(2)
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers an indeterminate
number of additional shares that may be offered or issued to prevent
dilution resulting from stock splits, stock dividends, or similar
transactions pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act. The
actual offering price could be higher or lower. The proposed maximum
offering price is based on the average high and low reported sales prices
of the Registrant's common stock as reported by the Nasdaq National Market
on August 16, 2004.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) under the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Select Comfort Corporation (the
"Registrant" or the "Company") (File No. 0-25121) with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) Annual Report on Form 10-K for the year ended January 3, 2004;
(b) Quarterly Report on Form 10-Q for the quarter ended April 3, 2004;
(c) Quarterly Report on Form 10-Q for the quarter ended July 3, 2004;
(d) Current Reports on Form 8-K dated January 9, 2004, January 14, 2004,
February 10, 2004, March 1, 2004, March 4, 2004, April 9, 2004, April
20, 2004, May 11, 2004, May 21, 2004, May 25, 2004, July 12, 2004,
July 20, 2004, August 3, 2004 and August 12, 2004;
(e) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since January 3, 2004; and
(f) The description of the Company's common stock contained in the
Company's Registration Statement on Form S-3 (File No. 333-103469)
filed February 27, 2003, as amended.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c) 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered pursuant to this Registration
Statement 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 a part hereof from the date of filing of such documents.
Any statement contained in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for the purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The Company's common stock to be offered and sold pursuant
to this Registration Statement is registered under Section 12 of the Exchange
Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of common stock offered hereby will be passed
upon for the Company by Mark A. Kimball, Senior Vice President and General
Counsel of the Company. As of August 11, 2004, Mr. Kimball beneficially owned,
directly or indirectly, 41,399 shares of common stock, including 271,498 shares
that he had the right to acquire within 60 days through the exercise of stock
options.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our restated articles of incorporation limit the liability of our directors
to the fullest extent permitted by the Minnesota Business Corporation Act.
Specifically, our directors will not be personally liable for monetary damages
for breach of fiduciary duty as directors, except liability for (i) any breach
of the duty of loyalty to us or our shareholders, (ii) acts or omissions not in
good faith or that involve intentional misconduct or a knowing violation of law,
(iii) dividends or other distributions of corporate assets that are in
contravention of certain statutory or contractual restrictions, (iv) violations
of certain Minnesota securities laws, or (v) any transaction from which the
director derives an improper personal benefit. Liability under federal
securities law is not limited by our restated articles of incorporation.
The Minnesota Business Corporation Act requires that we indemnify any
director, officer or employee made or threatened to be made a party to a
proceeding, by reason of the former or present official capacity of the person,
against judgments, penalties, fines, settlements and reasonable expenses
incurred in connection with the proceeding if certain statutory standards are
met. "Proceeding" means a threatened, pending or completed civil, criminal,
administrative, arbitration or investigative proceeding, including a derivative
action in our name. Reference is made to the detailed terms of the Minnesota
indemnification statute, Section 302A.521 of the Minnesota Business Corporation
Act, for a complete statement of such indemnification rights. Our restated
articles of incorporation and our restated bylaws also require us to provide
indemnification to the fullest extent of the Minnesota indemnification statute.
We also maintain a directors and officers insurance policy pursuant to
which our directors and officers are insured against liability for certain
actions in their capacity as directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling our company
pursuant to the foregoing provisions, we are aware 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as a part of this Registration Statement:
Exhibit No. Description
- ----------- -----------
5.1 Opinion and Consent of Mark A. Kimball (filed electronically
herewith)
23.1 Consent of KPMG LLP (filed electronically herewith)
23.2 Consent of Mark A. Kimball (included in Exhibit 5.1)
24.1 Power of Attorney (filed electronically herewith)
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 information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission 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
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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) 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, Select Comfort
certifies that it has reasonable grounds to believe that it meets all of the
requirements of 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 Plymouth, State of Minnesota, on August 11, 2004.
SELECT COMFORT CORPORATION
By: /s/Mark A. Kimball
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Mark A. Kimball, Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints William
R. McLaughlin and Mark A. Kimball, and either of them, his or her true and
lawful attorney-in-fact and agent with full powers of substitution and
re-substitution, for and in his or her name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement, and any registration statement filed under Rule
462 under the Securities Act of 1933, as amended, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on August 11, 2004 by the following
persons in the capacities indicated.
SIGNATURE TITLE
/s/William R. McLauglin Chairman of the Board, President and
- -------------------------------------- Chief Executive Officer (principal
William R. McLaughlin executive officer) and Director
/s/James C. Raabe Senior Vice President and Chief
- -------------------------------------- Financial Officer (principal
James C. Raabe financial and accounting officer)
/s/Thomas J. Albani Director
- --------------------------------------
Thomas J. Albani
/s/Patrick A. Hopf Director
- --------------------------------------
Patrick A. Hopf
/s/Christopher P. Kirchen Director
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Christopher P. Kirchen
/s/David T. Kollat Director
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David T. Kollat
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/s/Brenda J. Lauderback Director
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Brenda J. Lauderback
/s/Michael A. Peel Director
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Michael A. Peel
/s/Trudy A. Rautio Director
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Trudy A. Rautio
/s/Ervin R. Shames Director
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Ervin R. Shames
/s/Jean-Michel Valette Director
- --------------------------------------
Jean-Michel Valette
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INDEX TO EXHIBITS
NO. ITEM METHOD OF FILING
- --- ---- ----------------
5.1 Opinion of Mark A. Kimball.....................Filed herewith.
23.1 Consent of KPMG LLP............................Filed herewith.
23.2 Consent of Mark A. Kimball.....................Included in Exhibit 5.1.
24.1 Powers of Attorney.............................Filed herewith.