As filed with the Securities and Exchange Commission on April 17, 2002,
Registration No. 333-4712
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
West Marine, Inc.
(Exact name of registrant as specified in its charter)
Delaware 77-035-5502
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
500 Westridge Drive 95076-4100
Watsonville, California (Zip Code)
(Address of Principal Executive Offices)
WEST MARINE, INC.
NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of plan)
DOW, LOHNES & ALBERTSON, PLLC
Counsel
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036
(Name and Address of agent for service)
Telephone number of agent for service:
(202) 776-2000
CALCULATION OF REGISTRATION FEE
======================== ===================== ======================== ===================== =======================
Title Of Security Amount Being Proposed Maximum Proposed Maximum Amount of
Being Registered Registered* Offering Price Per Aggregate Offering Registration Fee
Share (**) Price (**)
- ------------------------ --------------------- ------------------------ --------------------- -----------------------
- ------------------------ --------------------- ------------------------ --------------------- -----------------------
Common Stock, 100,000 $23.54 $2,354,000 $216.57
$0.001 Par Value
======================== ===================== ======================== ===================== =======================
(*) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers an indeterminate number of additional
shares which may be offered and issued in accordance with the Plan terms to
prevent dilution from stock splits, stock dividends or similar
transactions.
(**) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933.
STATEMENT UNDER GENERAL INSTRUCTION E
REGISTRATION OF ADDITIONAL SECURITIES
The Registrant previously filed a Registration Statement on Form S-8 with
the Securities and Exchange Commission on May 9, 1996 (File No. 333-4712)
(the "Previous Form S-8") in connection with the registration of 50,000 shares
of common stock of the Registrant (plus an indeterminate number of shares
pursuant to Rule 416(a) of the Securities Act of 1933 (the "Securities Act"))
issued under the West Marine, Inc. Nonemployee Director Stock Option Plan (the
"Option Plan").
Pursuant to General Instruction E to Form S-8, this Registration
Statement is filed by the Registrant solely to register an additional 100,000
shares of the Registrant's common stock (plus an indeterminate number of shares
pursuant to Rule 416(a) of the Securities Act) issuable pursuant to the Option
Plan. Pursuant to General Instruction E, and unless otherwise noted herein, this
Registration Statement incorporates by reference the contents of the Previous
Form S-8, including all exhibits thereto and all periodic reports that the
Registrant filed after the Previous Form S-8, or will file after this
Registration Statement, to maintain current information about the Registrant.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 5. Interests of Named Experts and Counsel.
None.
Item 8. Exhibits
EXHIBIT INDEX
Exhibit Number Description of Exhibit Page
- -------------- ---------------------- ----
5 Opinion of Dow, Lohnes & Albertson, PLLC 5
23.1 Consent of Independent Auditors' 7
23.2 Consent of Dow, Lohnes & Albertson, PLLC 5
(contained in their opinion in Exhibit 5)
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 this 16th day of
April, 2002.
WEST MARINE, INC.
By: /s/ John Edmondson
----------------------
John Edmondson
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement to be signed by the following persons in the capacities and on the
dates indicated.
Signature Capacity Date
- --------- ------- ----
/s/ John Edmondson President, Chief Executive April 12, 2002
- ------------------ Officer and Director
John Edmondson
/s/ Richard E. Everett Chief Operating Officer April 12, 2002
- ---------------------- and Director
Richard E. Everett
/s/ Russell Solt Executive Vice President April 12, 2002
- ---------------- and Chief Financial Officer
Russell Solt (Principal Financial Officer)
/s/ Eric Nelson Vice President, Finance April 12, 2002
- --------------- and Chief Accounting Officer
Eric Nelson (Principal Accounting Officer)
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/s/ Randolph K. Repass Director April 12, 2002
- ----------------------
Randolph K. Repass
/s/ Geoffrey A. Eisenberg Director April 12, 2002
- -------------------------
Geoffrey A. Eisenberg
/s/ David McComas Director April 12, 2002
- -----------------
David McComas
/s/ Peter Roy Director April 12, 2002
- -------------
Peter Roy
/s/ Daniel J. Sweeney Director April 14, 2002
- ---------------------
Daniel J. Sweeney
/s/ William U. Westerfield Director April 12, 2002
- --------------------------
William U. Westerfield
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Exhibit 5
[Dow, Lohnes & Albertson, PLLC Letterhead Appears Here]
April 16, 2002
West Marine, Inc.
500 Westridge Drive
Watsonville, California 95076-4100
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as special counsel for West Marine, Inc., a Delaware
corporation ("West Marine"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed by
you with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, pertaining to an additional 100,000 shares
(the "Shares") of Common Stock, $0.001 par value per share, being issued by West
Marine pursuant to the West Marine, Inc. Nonemployee Director Stock Option Plan
(the "Plan"). At your request, we are providing this opinion to you for filing
as Exhibit 5 to the Registration Statement.
In preparing this opinion we have examined originals or copies, certified
or otherwise identified to our satisfaction, of (a) the Registration Statement;
(b) West Marine's Certificate of Incorporation and Bylaws; (c) the Plan; and
(d) certain records of West Marine's corporate proceedings as reflected in its
minute and stock books, including, without limitation, the resolutions of West
Marine relating to the Plan and the issuance of the Shares thereunder.
As to matters of fact relevant to our opinion, we have relied upon oral and
written statements and representations of officers and other representatives of
West Marine without further investigation. In our examination of the foregoing
documents, we have assumed: (i) the authenticity of all documents submitted to
us as originals, the conformity with authentic original documents of all
documents submitted to us as certified or photostatic copies or forms, the
authenticity of the originals of such latter documents, the genuineness of all
signatures and the legal capacity of natural persons, the due execution and
delivery of all documents where due execution and delivery are a prerequisite
to the effectiveness thereof, and (ii) that the foregoing documents, in the
forms thereof submitted for our review, have not been altered, amended or
repealed in any respect material to our opinion as stated herein. We have not
reviewed any documents other than the documents listed above for purposes of
rendering our opinion as expressed herein, and we assume that there exists no
provision of any such other document that bears upon or is inconsistent with
our opinion as expressed herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements, representations and information set forth therein
and the additional matters recited or assumed herein, all of which we assume to
be true, complete and accurate in all material respects.
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We are members of the Bar of the District of Columbia and do not purport to
be experts on, or generally familiar with, or certified to express legal
conclusions based upon, the laws of any other jurisdiction, other than the
Delaware General Corporation Law and the laws of the United States to the
extent applicable hereto. Accordingly, as to matters of law set forth below,
our opinion is limited to matters of law under the laws of the District of
Columbia, the laws of the United States to the extent applicable hereto and the
Delaware General Corporation Law. We express no opinion as to conflicts of law
rules or the laws of any states or jurisdictions, including federal laws
regulating securities or other federal laws, or the rules and regulations of
stock exchanges or any other regulatory body, other than as specified above.
Based upon the foregoing, subject to the other qualifications stated herein
and assuming that (i) the Registration Statement will have become effective and
comply with all applicable laws, and (ii) the Shares will be issued and sold in
compliance with applicable federal and state securities laws and in the manner
stated in the Registration Statement, we are of the opinion that the Shares,
when and to the extent issued and paid for pursuant to the provisions of the
Plan, will be validly issued, fully paid and non-assessable.
We assume no obligation to advise you of any changes to the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and shall not be quoted in whole
or in part or otherwise referred to, nor filed with or furnished to or relied
upon by any governmental agency or other person or other entity, without the
prior written consent of this firm. Our opinion is expressly limited to the
matters set forth above and we render no opinion, whether by implication or
otherwise, as to any other matters relating to West Marine or the Shares.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement, provided, however, that in giving such consent we do
not admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933 or the Rules and
Regulations of the Commission thereunder.
Very truly yours,
DOW, LOHNES & ALBERTSON, PLLC
By: /s/ Jonathan B. Hill
--------------------
Jonathan B. Hill
Member
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-4712 of West Marine, Inc. on Form S-8
of our report dated March 4, 2002, appearing in the Annual Report on Form 10-K
of West Marine, Inc. for the year ended December 29, 2001.
/s/ Deloitte & Touche LLP
- -------------------------
Deloitte & Touche LLP
San Francisco, California
April 16, 2002
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