As filed with the Securities and Exchange Commission on June 15, 1999
Registration No. 333-_____
================================================================================
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
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 (Zip Code)
Offices)
-----------------------
SELECT COMFORT CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
-----------------------
MARK A. KIMBALL
SENIOR VICE PRESIDENT, CHIEF ADMINISTRATIVE OFFICER 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)
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
IMMEDIATELY UPON THE FILING OF THIS REGISTRATION STATEMENT
--------------------
CALCULATION OF REGISTRATION FEE
=================== ============== ========================= ========================== ================
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PRICE PER UNIT (2) OFFERING PRICE REGISTRATION FEE
------------------- -------------- ------------------------- -------------------------- ----------------
Common Stock, $.01 500,000 $7.25 $3,625,000 $1,007.75
par value per share
=================== ============== ========================= ========================== ================
(1) In addition, pursuant to Rule 416(c) 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 and sold as a
result of anti-dilution provisions described in the above-referenced
employee benefit plan.
(2) Estimated pursuant to Rule 457(c) under the Securities Act solely for the
purpose of calculating the amount of the registration fee, based on the
average between the high and low sales prices of the Registrant's Common
Stock on June 9, 1999 on the over-the-counter market, as reported by the
Nasdaq National Market.
================================================================================
PART I
INFORMATION REQUIRED
IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
have been or will be sent or given to participants as specified by Rule
428(b)(1) under the Securities Act.
1
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
RECENT DEVELOPMENTS
In a June press release, the Company disclosed that 1999 second quarter
earnings may be significantly below analysts' consensus estimate of $0.15 per
share. Additionally, recent sales trends have been materially disappointing and
the Company may report a loss for the quarter.
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:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
January 2, 1999;
(2) The Company's Amended Annual Report on Form 10-K/A for the fiscal year
ended January 2, 1999;
(3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 3, 1999;
(4) All other reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since January
2, 1999; and
(5) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on November 30,
1998 under the Exchange Act, including any amendments or reports filed for the
purpose of updating such description.
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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities that may be offered under the Select Comfort
Corporation 1999 Employee Stock Purchase Plan will be passed upon for the
Company by Oppenheimer Wolff & Donnelly LLP, Minneapolis, Minnesota.
2
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation limit the liability of its
directors to the fullest extent permitted by the Minnesota Business Corporation
Act. Specifically, directors of the Company 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 the Company or its 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 the Company's Articles
of Incorporation.
Minnesota Statutes, Section 302A.521 provides that a Minnesota business
corporation shall indemnify any director, officer, employee or agent of the
corporation made or threatened to be made a party to a proceeding, by reason of
the former or present official capacity (as defined) of the person, against
judgments, penalties, fines, settlements and reasonable expenses incurred by the
person 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 one by or in
the right of the corporation. Section 302A.521 contains detailed terms regarding
such right of indemnification and reference is made thereto for a complete
statement of such indemnification rights. The Company's Articles of
Incorporation and Bylaws also require the Company to provide indemnification to
the fullest extent of the Minnesota indemnification statute.
The Company also maintains a directors and officers insurance policy
pursuant to which directors and officers of the Company are insured against
liability for certain actions in their capacity as directors and officers.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable. No securities are to be re-offered or resold pursuant to
this Registration Statement.
ITEM 8. EXHIBITS.
EXHIBIT NO.
5.1 Opinion of Oppenheimer Wolff & Donnelly LLP (filed herewith).
23.1 Consent of KPMG Peat Marwick LLP (filed herewith).
23.2 Consent of Oppenheimer Wolff & Donnelly LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 6 of this Registration Statement).
3
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment hereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this 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) under the Securities Act of 1933, as amended
(the "Securities Act") 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 this
Registration Statement or any material change to such
information in this Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above
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
Exchange Act that are incorporated by reference in this
Registration Statement.
(2) 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 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, 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 this 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.
4
(c) 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
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
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 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 Minneapolis, State of Minnesota, on June 10, 1999.
SELECT COMFORT CORPORATION
By: /s/ Daniel J. McAthie
Daniel J. McAthie
President and Chief Executive Officer
(principal executive officer)
By: /s/ James C. Raabe
James C. Raabe
Chief Financial Officer
(principal financial and accounting officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Daniel
J. McAthie and James C. Raabe, and each of them, his or her true and lawful
attorney-in-fact and agent with full powers of substitution and resubstitution,
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 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 June 10, 1999 by the following persons
in the capacities indicated.
SIGNATURE TITLE
/s/ Daniel J. McAthie President and Chief Executive Officer
Daniel J. McAthie and Director
/s/ Patrick A. Hopf Chairman of the Board and Director
Patrick A. Hopf
/s/ H. Robert Hawthorne Vice Chairman of the Board and Director
H. Robert Hawthorne
/s/ Thomas J. Albani Director
Thomas J. Albani
6
Director
Christopher P. Kirchen
Director
David T. Kollat
/s/ William J. Lansing Director
William J. Lansing
Director
Lawrence P. Murphy
/s/ Ervin R. Shames Director
Ervin R. Shames
/s/ Jean-Michel Valette Director
Jean-Michel Valette
7
INDEX TO EXHIBITS
NO. ITEM METHOD OF FILING
- ----- ---------------------------------------------- --------------------------
5.1 Opinion of Oppenheimer Wolff & Donnelly LLP... Filed herewith.
23.1 Consent of KPMG Peat Marwick LLP.............. Filed herewith.
23.2 Consent of Oppenheimer Wolff & Donnelly LLP... Included in Exhibit 5.1.
24.1 Power of Attorney............................. Included on page 6 of this
Registration Statement.
EXHIBIT 5.1
[Oppenheimer Wolff & Donnelly LLP Letterhead]
June 15, 1999
Select Comfort Corporation
6105 Trenton Lane North, Suite 100
Minneapolis, Minnesota 55442
RE: SELECT COMFORT CORPORATION
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Select Comfort Corporation, a Minnesota corporation
(the "Company"), in connection with the registration by the Company of: 500,000
shares (collectively, the "Shares") of common stock, $.01 par value per share
(the "Common Stock") of the Company, issuable under the Company's 1999 Employee
Stock Purchase Plan (the "Plan"), pursuant to a Registration Statement on Form
S-8 filed with the Securities and Exchange Commission on June 15, 1999 (the
"Registration Statement").
In acting as counsel for the Company and arriving at the opinions expressed
below, we have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein. In
connection with our examination, we have assumed the genuiness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of all natural persons and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and limitations stated
herein, it is our opinion that:
1. The Company has the authority to issue the Shares in the manner and under
the terms set forth in the Registration Statement.
2. The Shares have been duly authorized and, when issued, delivered and paid
for in accordance with the Plan as set forth in the Registration Statement,
will be validly issued, fully paid and non-assessable.
We express no opinion with respect to laws other than those of the State of
Minnesota and the federal laws of the United States of America, and we assume no
responsibility as to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement.
Very truly yours,
OPPENHEIMER WOLFF & DONNELLY LLP
/s/ Oppenheimer Wolff & Donnelly LLP
1
EXHIBIT 23.1
The Board of Directors
Select Comfort Corporation
We consent to the use of our reports incorporated herein by reference in this
Registration Statement on Form S-8.
KPMG PEAT MARWICK LLP
/s/ KPMG Peat Marwick LLP
Minneapolis, Minnesota
June 15, 1999