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As filed with the Securities and Exchange Commission on September 28, 1998.
Registration No. ____________
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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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WHEREHOUSE ENTERTAINMENT, INC.
(Exact name of registrant as specified in its charter)
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Delaware 95-4608339
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
19701 Hamilton Avenue
Torrance, California 90502
(Address of principal executive offices)
1998 Stock Incentive Plan
(Full title of the plan)
ROBERT S. KELLEHER
Chief Financial Officer
Wherehouse Entertainment, Inc.
19701 Hamilton Avenue
Torrance, California 90502
(Name and address of agent for service)
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Telephone number, including area code, of agent for service: (310) 538-2314
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Copy to:
C. James Levin
O'MELVENY & MYERS LLP
400 South Hope Street
Los Angeles, California 90071-2899
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
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Common Stock, 600,000(1) $ 8.94(2) $5,364,000(2) $1,850(2)
par value $.01 shares
per share
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(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above, options and other rights to purchase or acquire
the shares of Common Stock covered by this Registration Statement and,
pursuant to Rule 416(c), an additional indeterminate number of shares
which by reason of certain events specified in the Plan may become subject
to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee were calculated based upon the book
value of the Common Stock computed as of July 31, 1998.
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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 (plan information and registrant information) will be sent or given
to employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, which include the statement
of availability required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part
II hereof), taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Wherehouse Entertainment, Inc. (the
"Company") filed with the Securities and Exchange Commission are incorporated
herein by reference:
(a) Annual Report on Form 10-K for the Company's fiscal year ended
January 31, 1998.
(b) Company Quarterly Reports on Form 10-Q for the quarters ended April
30, 1998 and July 31, 1998, the Company's Current Report on Form 8-K
dated September 22, 1998, and all other reports filed by the Company
pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act
of 1934 (the "Exchange Act") since the end of the fiscal year covered
by the Annual Report referred to above; and
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form 8A dated July 27, 1997, and any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into the prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document, all or a portion of which is incorporated or deemed to be incorporated
by reference herein, shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock, par value $.01 per share, (the
"Common Stock") is registered pursuant to Section 12 of the Exchange Act, and,
therefore, the description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the General Corporation Law of
Delaware, the Company's Bylaws provide for indemnification of directors of the
Company against expenses (including attorneys' fees) and other amounts paid in
settlement
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actually and reasonably incurred by them in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, in which any such person was or is a party or
is threatened to be made a party, if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interest of the Company and, with respect to any criminal action or proceeding,
if such person had no reasonable cause to believe his conduct was unlawful. In
the case of an action or suit by or in the right of the Company, such a person
may not be indemnified in respect of any claim, issue or matter as to which he
has been adjudged liable for negligence or misconduct in the performance of his
duty to the Company, unless and only to the extent the court in which such
action or suit was brought determines that such person is fairly and reasonably
entitled to indemnity for such expenses as such court may deem proper. In each
case, indemnification shall be made only upon specific authorization of a
majority of disinterested directors, by written opinion of independent legal
counsel or by the shareholders, unless the director has been successful on the
merits or otherwise in defense of any such action or suit, in which case he
shall be indemnified without such authorization. The Company's Bylaws require
the Company to pay the expenses incurred by a director in defending or
investigating a threatened or pending action, suit or proceeding in advance of
the final disposition of such action, suit or proceeding upon receipt by the
Company of an undertaking by or on behalf of such director to repay such amount
if it is ultimately determined that he or she is not entitled to
indemnification. The advancement of expenses, as well as indemnification,
pursuant to the Company's Bylaws is not exclusive of any other rights which
those seeking indemnification or advancement of expenses from the Company may
have.
The Company's Certificate of Incorporation eliminates personal
liability of directors to the Company or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for: (i) any breach of the
duty of loyalty to the Company or its shareholders; (ii) acts or omissions not
in good faith or which involve intentional misconduct or knowing violations of
law; (iii) liability under Section 174 of the Delaware General Corporation Law
relating to certain unlawful dividends and stock repurchases; or (iv) any
transaction from which the director derived an improper personal benefit.
The Company's Bylaws permit the Company to purchase and
maintain insurance on behalf of any director of the Company against liability
asserted against him or her in any such capacity, whether or not the Company
would have the power to indemnify him against such liability under the
provisions of the Bylaws. However, the Company maintains liability insurance
providing coverage only with respect to claims made against directors as to
which they are entitled to be indemnified by the Company.
Pursuant to a Management Services Agreement, the Company has
agreed to indemnify and hold harmless Mr. Antonio C. Alvarez, II and the support
employees named therein from and against any and all actions, claims, damages,
and liabilities, including the costs of investigating, preparing or defending
any such action or claim, as and when incurred, arising out of such party's
acceptance of or the performance or non-performance of its material obligations
under the Management Services Agreement; provided, however, that such indemnity
does not apply to any such action, claim, damage, liability or cost to the
extent it is found to have resulted from gross negligence or willful misconduct
of that party or to constitute a breach of the Management Services Agreement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index.
ITEM 9. UNDERTAKINGS
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(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 (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; and
(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 by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") that are incorporated by
reference in the 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; and
(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 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 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 6 above,
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
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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,
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 Torrance, State of California, on September 28,
1998.
By: /s/ ANTONIO C. ALVAREZ, II
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Antonio C. Alvarez, II
Its: Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Antonio C. Alvarez, II, Robert S. Kelleher and Mehdi Mahdavi his or her
true and lawful attorneys-in-fact and agents, each acting alone, with full
powers of substitution and resubstitution, for him or her and in his or her
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, each acting alone, full power and authority to do
and perform each and every act and thing requisite and 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
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, 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 below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ ANTONIO C. ALVAREZ, II (Principal Executive Officer September 25, 1998
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Antonio C. Alvarez, II and Director)
/S/ ROBERT S. KELLEHER (Principal Financial Officer) September 25, 1998
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Robert S. Kelleher
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/s/ MEHDI MAHDAVI (Principal Accounting Officer September 25, 1998
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Mehdi Mahdavi or Controller)
/s/ ROBERT C. DAVENPORT Director September 25, 1998
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Robert C. Davenport
/s/ JONATHAN GALLEN Director September 25, 1998
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Jonathan Gallen
/s/ JOSEPH J. RADECKI, JR. Director September 25, 1998
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Joseph J. Radecki, Jr.
/s/ JOSEPH B. SMITH Director September 25, 1998
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Joseph B. Smith
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Wherehouse Entertainment, Inc. 1998 Stock Incentive Plan.
Incorporated by reference to the Company's Definitive Proxy
Statement on Schedule 14A, which was filed with the Commission on
September 25, 1998.
4.2 Form of Nonqualified Stock Option Award Agreement.
4.3 Form of Incentive Stock Option Award Agreement.
5. Opinion of O'Melveny & Myers (re legality of Common Stock to be issued).
24.1 Consent of Ernst & Young LLP.
24.2 Consent of O'Melveny & Myers (included in Exhibit 5).
25. Power of Attorney (included in this Registration Statement under
"Signatures").
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