[DESCRIPTION] POST EFFECTIVE AMD. ON FORM S-8 TO FORM S-4
As filed with the Securities and Exchange Commission on June 17, 1996
Registration No. 333-02903
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT ON FORM S-8
TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
E&B MARINE INC. 1983 STOCK OPTION PLAN
(Full title of the plan)
Randolph K. Repass
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: (408) 728-2700
Copy to:
Richard V. Smith, Esq.
Orrick, Herrington & Sutcliffe
400 Sansome Street
San Francisco, California 94111
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INTRODUCTORY STATEMENT
West Marine, Inc. ("West Marine") hereby amends its Registration Statement on
Form S-4 (No. 333-02903), effective June 17, 1996, (the "S-4") by filing this
Post-Effective Amendment on Form S-8 (the "Post-Effective Amendment") relating
to shares of the common stock, $0.001 par value, of West Marine ("West Marine
Common Stock"), issuable upon the exercise of stock options granted under the
E&B Marine Inc. 1983 Stock Option Plan (the "E&B Plan").
On June 17, 1996, a wholly owned subsidiary of West Marine merged with and into
E&B Marine Inc. ("E&B"). As a result of such merger (the "Merger"), E&B became
a wholly-owned subsidiary of West Marine and each share of the common stock,
$.001 par value, of E&B ("E&B Common Stock") outstanding immediately prior to
the Merger was converted into the right to receive 0.15157 of a share of West
Marine Common Stock. The amount of West Marine Common Stock entitled to be
received pursuant to the Merger for each then outstanding share of E&B Common
Stock is hereinafter referred to as the "Merger Consideration." As a result of
the Merger, each option previously granted under the E&B Plan has been assumed
by West Marine on the same terms and subject to the same conditions as before
the Merger, except that (a) the shares subject to such option are the number of
shares of West Marine Common Stock (rounded down to the nearest whole share)
determined by multiplying the number of shares of E&B Common Stock previously
covered by such option by 0.15157 and (b) the exercise price per share of West
Marine Common Stock at which such option is exercisable is an amount (rounded up
to the nearest whole cent) equal to the exercise price per share of E&B Common
Stock subject to such option divided by 0.15157.
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
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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
Article Sixth, Section 2 of the Company's Certificate of Incorporation
provides that directors of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, to the fullest extent permitted by the General Corporation Law of
the State of Delaware. Article V of the Company's By-laws provides for
indemnification of officers and directors to the full extent and in the manner
permitted by Delaware law. Section 145 of the Delaware General Corporation Law
makes provision for such indemnification in terms sufficiently broad to cover
officers and directors under certain circumstances for liabilities arising under
the Securities Act of 1933, as amended (the "Securities Act").
The Company has entered into indemnification agreements with each of its
directors and officers which provide indemnification under certain circumstances
for acts and omissions which may not be covered by any directors' and officers'
liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 E&B Marine Inc. 1983 Stock Option Plan, as amended.
4.2 Form of Nonqualified Stock Option Agreement.
4.3 Form of Incentive Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of Deloitte & Touche LLP.
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23.2 Consent of Orrick, Herrington & Sutcliffe is included in Exhibit 5.1.
24.1 Power of Attorney of Directors.
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
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1934 (and, where applicable, each filing of the 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
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 17th day of
June, 1996.
West Marine, Inc.
(Registrant)
/s/Randolph K. Repass
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Randolph K. Repass
Chairman of the Board
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
dated indicated.
Signature Title Date
Principal Executive Officer:
/s/Crawford L. Cole
- -----------------------------
Crawford L. Cole President and June 17, 1996
Chief Executive
Officer
Principal Financial Officer and
Accounting Officer:
/s/John C. Zott
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John C. Zott Senior Vice June 17, 1996
President, Finance,
and Chief Financial
Officer
Directors:
/s/Randolph K. Repass
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Randolph K. Repass Director June 17, 1996
/s/Crawford L. Cole
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Crawford L. Cole Director June 17, 1996
/s/James P. Curley
- ----------------------------
James P. Curley Director June 12, 1996
/s/Geoffrey A. Eisenberg
- -----------------------------
Geoffrey A. Eisenberg Director June 17, 1996
/s/Richard E. Everett
- ----------------------------
Richard E. Everett Director June 17, 1996
/s/Walter Scott
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Walter Scott Director June 12, 1996
/s/Ronald P. Young
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Ronald P. Young Director June 13, 1996
A majority of the members of the Board of Directors.
EXHIBIT INDEX
4.1 E&B Marine Inc. 1983 Stock Option Plan, as amended.
4.2 Form of Nonqualified Stock Option Agreement.
4.3 Form of Incentive Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe is included in Exhibit 5.1.
24.1 Power of Attorney of Directors.
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