Form 10-K/A, 12-31-05
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(X) ANNUAL REPORT PURSUANT TO SECTION 13 OR SECTION 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2005
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR SECTION 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-21577
WILD OATS MARKETS, INC.
(Exact name of registrant as specified in its charter)
Delaware |
84-1100630 |
(State or other
jurisdiction of |
(I.R.S. Employer
Identification Number) |
Incorporation
or organization) |
|
3375 Mitchell Lane
Boulder, Colorado 80301
(Address of principal executive offices, including zip code)
(303) 440-5220
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Title of Each Class
Common Stock, $0.001 par value
Indicate by check mark if the registrant is a well-known seasoned
issuer, as defined in Rule 405 of the Securities Act:
Yes ( )
No ( X )
Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 or Section 15(d) of the Act:
Yes ( )
No ( X )
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing requirements for the past 90
days:
Yes ( X )
No ( )
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best
of registrant’s knowledge, in definitive proxy or information statements incorporated
by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
( )
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, or a non-accelerated filer. See definition of
"accelerated filer and large accelerated filer" in Rule 12b-2 of the Exchange
Act. (Check one):
Large Accelerated
Filer ( )
Accelerated
Filer ( X )
Non-Accelerated
Filer ( )
Indicate by check mark whether the registrant is a shell company (as
defined in Rule 12-b of the Exchange Act). Yes
( )
No ( X )
The aggregate market value of the voting and non-voting common stock of
the registrant held by non-affiliates of the registrant based on the closing price at
which such stock was sold as reported by NASDAQ National Market on July 1, 2005 was
approximately $162,254,139. For purposes of this calculation, executive
officers, directors and 5% or greater stockholders are deemed to be affiliates of the
registrant.
As of February 20, 2006, the registrant had outstanding 28,443,272
shares of common stock, par value $0.001 per share.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the definitive Proxy Statement for the Registrant’s
Annual Meeting of Stockholders to be held on May 2, 2006, have been incorporated by
reference into Part III of this report.
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A to our Annual Report on Form 10-K for the fiscal
year ended December 31, 2005, originally filed with the Securities and Exchange Commission
on March 1, 2006, amends the cover page to include the check box relating to "whether
the registrant is a shell company," and to modify the certifications set forth in
Exhibit numbers 31.1 and 31.2 to conform to the form required by Item 601(b)(31)(i) of
Regulation S-K. This Amendment No. 1 does not change any information contained in other
items as originally filed on March 1, 2006. This Amendment No. 1 does not reflect events
that have occurred after the original filing on Form 10-K.
PART IV.
Item 15.
EXHIBITS AND FINANCIAL STATEMENT
SCHEDULES
(a) |
The following are filed as a part
of this Report on Form 10-K: |
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(1) |
Reports of Independent Registered Public
Accounting Firms |
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Consolidated Statements of Operations |
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Consolidated Statements of Comprehensive
Income (Loss) |
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Consolidated Balance Sheets |
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Consolidated Statements of Changes in
Stockholders’ Equity |
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Consolidated Statements of Cash Flows |
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Notes to Consolidated Financial Statements |
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(2) |
Financial Statement Schedules – No
schedules are required. |
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(3) |
The following exhibits to this Form 10-K are
filed pursuant to the requirements of Item 601 of Regulation S-K: |
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Exhibit |
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Number |
Description of Document |
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3(i).1.(a)** |
Amended and Restated Certificate of Incorporation of the Registrant. (1) |
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3(i).1.(b)** |
Certificate of Correction to Amended and Restated Certificate of Incorporation of
the Registrant. (1) |
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3(i).1.(c)** |
Certificate of Amendment to Amended and Restated Certificate of Incorporation of
the Registrant. (2) |
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3(ii).1** |
Amended and Restated By-Laws of the Registrant. (1) |
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4.1** |
Reference is made to Exhibits 3(i) through
3(ii).1. |
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4.2** |
Specimen stock certificate. (3) |
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4.3** |
Rights Agreement dated May 22, 1998 between Registrant and Norwest Bank
Minnesota. (10) |
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10.1** |
Form of Indemnity Agreement between the Registrant and its directors and
executive officers, with related schedule. (3) |
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10.2#** |
1996 Equity Incentive Plan, including forms of Options granted to employees and
non-employee directors thereunder. (3) |
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10.3#** |
Amendment to 1996 Equity Incentive Plan. (4) |
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10.4#** |
Second Amendment to 1996 Equity Incentive Plan. (5) |
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10.5#** |
1996 Employee Stock Purchase Plan. (3) |
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10.6#** |
Amendment to 1996 Employee Stock Purchase Plan. (5) |
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10.7#** |
1993 Stock Option Plan. (3) |
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10.8#** |
1991 Stock Option Plan. (3) |
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10.9#** |
Employee Stock Ownership Plan. (3) |
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10.10#** |
Wild Oats Markets, Inc. Deferred Compensation Plan. (6) |
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10.11#** |
Employment Agreement dated March 6, 2001 between Perry D. Odak and the
Registrant. (7) |
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10.12#** |
Amendment to Employment Agreement dated March 6, 2001 between Perry D. Odak and
the Registrant. (5) |
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10.13#** |
Stock Purchase Agreement dated March 6, 2001 between Perry D. Odak and the
Registrant. (7) |
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10.14#** |
Stephen Kaczynski Equity Incentive Plan. (8) |
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10.15#** |
Employment Agreement dated April 24, 2001 between Stephen P. Kaczynski and the
Registrant. (8) |
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10.16#** |
Employment Agreement dated May 21, 2001 between Bruce Bowman and the Registrant.
(8) |
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10.17#** |
Amendment to Employment Agreement dated May 21, 2001 between Bruce Bowman and the
Registrant. (5) |
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10.18#** |
Bruce Bowman Equity Incentive Plan. (8) |
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10.19#** |
Severance Agreement dated November 7, 2002 between Bruce Bowman and the
Registrant. (11) |
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10.20#** |
Severance Agreement dated November 7, 2002 between Freya Brier and the
Registrant. (11) |
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10.21#** |
Severance Agreement dated November 7, 2002 between Stephen Kaczynski and the
Registrant. (11) |
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10.22#** |
Severance Agreement dated November 7, 2002 between Peter Williams and the
Registrant. (11) |
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10.23** |
Wild
Oats Markets, Inc. 2001 Non-officer/Non-director Equity Incentive Plan. (5) |
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10.24** |
Amended and
Restated Stockholders Agreement between the Registrant and certain parties named therein
dated August 1996. (3) |
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10.25** |
Registration
Rights Agreement between the Registrant and certain parties named therein dated July 12,
1996. (3) |
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10.26#** |
Second
Amendment to Employment Agreement between Wild Oats Markets, Inc. and Perry D. Odak, dated
June 19, 2002. (9) |
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10.27#** |
Third
Amendment to Employment Agreement between Wild Oats Markets, Inc. and Perry D. Odak, dated
August 12, 2002. (9) |
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10.28#** |
Fourth
Amendment to Employment Agreement, dated May 10, 2005, between Perry D. Odak and the
Registrant. (17) |
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10.29#** |
Employment
Agreement dated April 26, 2005 between Robert B. Dimond and the Registrant. (17) |
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10.30#** |
Robert
B. Dimond Equity Incentive Plan. (17) |
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10.31#** |
Severance
Agreement dated May 9, 2005 between Robert B. Dimond and Registrant. (17) |
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10.32** |
Assignment
of Kaczynski Employment Agreement dated June 29, 2002, between Registrant and Sparky, Inc.
(9) |
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10.33** |
Loan
and Security Agreement, dated March 31, 2005, by and among Wild Oats Markets, Inc., Bank
of America, N.A., as agent, and the lenders identified therein. (17) |
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10.34** |
Termination
and Release Agreement, dated March 31, 2005, under the Second Amended and Restated Credit
Agreement, dated as of February 26, 2003, as amended by and among Wild Oats Markets, Inc.,
the lenders identified therein and Wells Fargo Bank National Association, as
administrative agent. (17) |
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10.35** |
Waiver,
dated March 28, 2005, to the Second Amended and Restated Credit Agreement, dated as of
February 26, 2003, as amended by and among Wild Oats Markets, Inc., the lenders identified
therein and Wells Fargo Bank National Association, as administrative agent. (17) |
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10.36** |
Waiver,
dated March 31, 2005, to the Second Amended and Restated Credit Agreement, dated as of
February 26, 2003, as amended by and among Wild Oats Markets, Inc., the lenders identified
therein and Wells Fargo Bank National Association, as administrative agent. (17) |
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10.37** |
Second
Amended and Restated Credit Agreement dated as of February 26, 2003, among Registrant, the
lenders named therein and Wells Fargo Bank National Association, as Administrative Agent.
Portions have been omitted pursuant to a request for confidential treatment. (11) |
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10.38** |
Joinder
Agreement dated as of December 12, 2003, among Bank of America, N.A., to the Second
Amended and Restated Credit Agreement among Registrant, the lenders named therein and
Wells Fargo Bank National Association, Registrant and Wells Fargo. (12) |
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10.39** |
First
Amendment to Second Amended and Restated Credit Agreement, dated as of May 21, 2004, by
and among Wild oats Markets, Inc., the lenders identified therein and Wells Fargo Bank
National Association, as administrative agent. (13) |
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10.40** |
Second
Amendment to Second Amended and Restated Credit Agreement, dated as of August 3, 2004, by
and among Wild Oats Markets, Inc., the lenders identified therein and Wells Fargo Bank
National Association, as administrative agent. (14) |
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10.41** |
Third
Amendment to Second Amended and Restated Credit Agreement, dated as of November 4, 2004,
by and among Wild Oats Markets, Inc., the lenders identified therein and Wells Fargo Bank
National Association, as administrative agent. Portions have been omitted pursuant to a
request for confidential treatment. (15) |
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10.42** |
Agreement
for Distribution of Product between Wild Oats Markets, Inc. and United Natural Foods, Inc.
dated January 9, 2004. Portions have been omitted pursuant to a request for confidential
treatment. (12) |
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10.43** |
Memorandum
of Understanding between Tree of Life, Inc. and Wild Oats Markets, Inc. dated November 19,
2003. Portions have been omitted pursuant to a request for confidential treatment. (12) |
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10.44** |
Amended
Certificate of Designations of Series A Junior Participating Preferred Stock of Wild Oats
Markets, Inc. (13) |
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10.45** |
Indenture,
dated as of June 1, 2004, between Wild Oats Markets, Inc. and U.S. Bank National
Association, as Trustee, and Form of 3.25% Senior Convertible Debenture due 2034 of Wild
Oats Markets, Inc. (15) |
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10.46** |
Registration
Rights Agreement, dated as of June 1, 2004, between Wild Oats Markets, Inc. and J. P.
Morgan Securities Inc., as representative of the initial purchasers of the debentures. (15) |
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10.47** |
Form
of Restricted Stock Unit Agreement used to evidence Restricted Stock Units granted under
the Wild Oats Markets, Inc. 1996 Equity Incentive Plan. (16) |
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21.1** |
List
of subsidiaries. (12) |
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23.1+ |
Consent
of Ernst & Young LLP. |
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23.2 |
Consent
of PricewaterhouseCoopers LLP. |
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31.1+ |
Certification
of the Chief Executive Officer pursuant to Rule 13a-14(a) / 15d-14(a) under the Securities
Exchange Act of 1934, as amended. |
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31.2+ |
Certification
of the Chief Financial Officer pursuant to Rule 13a-14(a) / 15d-14(a) under the Securities
Exchange Act of 1934, as amended. |
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32.1+ |
Certification
of the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
(18 U.S.C. Section 1350). |
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32.2+ |
Certification
of the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
(18 U.S.C. Section 1350). |
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# |
Management Compensation Plan. |
** |
Previously filed. |
+ |
Included herewith. |
(1) |
Incorporated by reference from the
Registrant’s Form 10-K
for the year ended December 28, 1996 (File No. 0-21577). |
(2) |
Incorporated by reference from the
Registrant’s Amendment
No. 2 to the Registration Statement on Form S-3 filed with the Commission on November 10,
1999 (File No. 333-88011). |
(3) |
Incorporated by reference from the
Registrant’s Registration
Statement on Form S-1 (File No. 333-11261) filed on August 30, 1996. |
(4) |
Incorporated by reference from the
Registrant’s Registration
Statement on Form S-8 (File No. 333-66347) filed on October 30, 1998. |
(5) |
Incorporated by reference from the
Registrant’s Form
10-K for the year ended December 29, 2001 (File No. 0-21577), filed on March 27, 2002. |
(6) |
Incorporated by reference from the
Registrant’s Form
10-K for the year ended January 1, 2000 (File No. 0-21577). |
(7) |
Incorporated by reference from the
Registrant’s Form
10-Q for the period ended March 31, 2001 (File No. 0-21577). |
(8) |
Incorporated by reference from the
Registrant’s Form
10-Q for the period ended June 30, 2001 (File No. 0-21577). |
(9) |
Incorporated by reference from the
Registrant’s Form
10-Q for the period ended June 29, 2002 (File No. 0-21577). |
(10) |
Incorporated by reference from the
Registrant’s Form 8-K
filed on May 5, 1998 (File No. 0-21577). |
(11) |
Incorporated by reference from the
Registrant’s Form
10-K for the year ended December 28, 2002 (File No. 0-21577). |
(12) |
Incorporated by reference from the
Registrant’s Form
10-K for the year ended December 27, 2003 (File No. 0-21577). |
(13) |
Incorporated by reference from the
Registrant’s report
dated May 25, 2004 on Form 8-K (File No. 0-21577). |
(14) |
Incorporated by reference from the
Registrant’s Form
10-Q for the period ended June 26, 2004 (File No. 0-21577). |
(15) |
Incorporated by reference from the
Registrant’s Registration
Statement on Form S-3 filed with the Commission on August 20, 2004 (File No.
333-18406). |
(16) |
Incorporated by reference from the
Registrant’s Form
10-Q for the period ended September 25, 2004 (File No. 0-21577). |
(17) |
Incorporated by reference from the
Registrant’s Form
10-Q for the period ended April 2, 2005 (File No. 0-21577). |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
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Wild Oats Markets, Inc. |
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(Registrant) |
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| Date: March 7, 2006 |
By: /s/ Robert B. Dimond |
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Robert B. Dimond |
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Chief Financial Officer |
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(Principal Financial and Accounting Officer) |