As filed with the Securities and Exchange Commission on June 18, 2003
Registration No. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
UNITED NATURAL FOODS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 05-0376157
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
260 Lake Road
Dayville, CT 06241
(Address of Principal Executive Offices) (Zip Code)
__________________________
United Natural Foods, Inc. 2002 Stock Incentive Plan
(Full Title of the Plan)
__________________________
Steven H. Townsend
President and Chief Executive Officer
United Natural Foods, Inc.
260 Lake Road
Dayville, CT 06241
(Name and Address of Agent for Service)
(860) 779-2800
(Telephone Number, Including Area Code, of Agent for Service)
With a Copy to:
Paul V. Rogers, Esq.
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004
(202) 662-6000
__________________________
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Proposed Proposed
Title of Each Class of Amount to be Maximum Offering Maximum Aggregate Amount of
Securities to be Registered Registered (1) Price Per Share (2) Offering Price (2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.01 per share ........ 1,400,000 shares $26.91 $37,674,000 $3,050
=======================================================================================================================
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), the number of shares of Common Stock registered hereby
is subject to adjustment to prevent dilution by reason of any stock
dividend, stock split, recapitalization or other similar transaction.
(2) Calculated in accordance with Rule 457(h) under the Securities Act on the
basis of the average of the high and low sales prices per share of Common
Stock on June 11, 2003, as reported by the Nasdaq National Market.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents will
not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this registration statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act of 1933, as amended (the
"Securities Act"). These documents and the documents incorporated by reference
pursuant to Item 3 of Part II of this registration statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates by reference into this registration
statement the following documents filed by it with the Commission:
1. Annual Report on Form 10-K for the fiscal year ended July 31, 2002,
filed with the Commission on October 28, 2002;
2. Quarterly Report on Form 10-Q for the fiscal quarter ended January
31, 2003, filed with the Commission on March 17, 2003
3. Quarterly Report on Form 10-Q for the fiscal quarter ended October
31, 2002, filed with the Commission on December 13, 2002;
4. Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2003, filed with the Commission on June 16, 2003.
5. Current Reports on Form 8-K, filed with the Commission on August 7,
2002, December 3, 2002, December 6, 2002, January 3, 2003, March 6,
2003 and June 4, 2003.
6. Description of the Registrant's common stock, par value $0.01 per
share, contained in the Registrant's Registration Statement on Form
8-A filed with the Commission on October 11, 1996;
7. Certificate of Designation of Preferences and Rights of Series A
Preferred Stock of the Registrant;
8. Rights Agreement between the Registrant and Continental Stock
Transfer and Trust Company; and
9. All reports filed by the Registrant with the Commission under
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since July 31, 2002.
In addition, all documents and reports filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this registration statement and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of the filing of such documents or reports.
Any statement contained in a document 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 superseded, to constitute a part of this registration
statement.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made a party by reason of such position, if such person
shall have acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful; provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Article Ninth of the Registrant's Amended and Restated Certificate of
Incorporation provides that a director or officer of the Registrant (a) shall be
indemnified by the Registrant against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement reasonably incurred in
connection with any litigation or other legal proceeding (other than an action
by or in the right of the Registrant) brought against him by virtue of his
position as a director or officer of the Registrant if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful, and (b)
shall be indemnified by the Registrant against all expenses (including
attorneys' fees) and amounts paid in settlement reasonably incurred in
connection with any action by or in the right of the Registrant by virtue of his
position as a director or officer of the Registrant if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, except that no indemnification shall be made with
respect to any such matter as to which such director or officer shall have been
adjudged to be liable to the Registrant, unless a court determines that, despite
such adjudication but in view of all the circumstances of the case, such person
is entitled to indemnity for such expenses. Notwithstanding the foregoing, to
the extent that a director or officer has been successful, on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, he is required to be indemnified by the Registrant against all
expenses (including attorneys' fees) incurred in connection therewith. Expenses
incurred in defending a civil or criminal action, suit or proceeding shall be
advanced by the Registrant to a director or officer, at his request, upon
receipt of an undertaking by the director or officer to repay such amount if it
is ultimately determined that he is not entitled to indemnification.
Indemnification is required to be made unless the Registrant determines
(in the manner provided in the Amended and Restated Certificate of
Incorporation) that the applicable standard of conduct required for
indemnification has not been met. In the event of a determination by the
Registrant that the director or officer did not meet the applicable standard of
conduct required for indemnification, or if the Registrant fails to make an
indemnification payment within 60 days after such payment is claimed by such
person, such person is permitted to petition a court to make an independent
determination as to whether such person is entitled to indemnification. As a
condition precedent to the right of indemnification, the director or officer
must give the Registrant notice of the action for which indemnity is sought and
the Registrant has the right to participate in such action or assume the defense
thereof.
Article Ninth of the Registrant's Amended and Restated Certificate of
Incorporation further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the General Corporation Law of
the State of Delaware is amended to expand the indemnification permitted to
directors or officers, the Registrant must indemnify those persons to the
fullest extent permitted by such law as so amended.
The Company has purchased a general liability insurance policy which
covers certain liabilities of directors and officers of the Company arising out
of claims based on acts or omissions in their capacity as directors or officers.
Article Eighth of the Registrant's Amended and Restated Certificate of
Incorporation provides that, except to the extent that the General Corporation
Law of the State of Delaware prohibits the elimination or limitation of
liability of directors for breaches of fiduciary duty, no director of the
Registrant shall be personally liable to the Registrant or its stockholders for
monetary damages for any breach of fiduciary duty as a director.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description
----------- -----------
3.1 Amended and Restated Certificate of Incorporation of the
Registrant (1)
3.2 Amended and Restated By-Laws of the Registrant (1)
4.1 Specimen Certificate for shares of Common Stock, $0.01
par value, of the Registrant. (1)
4.2 Certificate of Designation of Preferences and Rights of
Series A
Preferred Stock of the Registrant. (2)
4.3 Rights Agreement between the Registrant and Continental
Stock Transfer and Trust Company. (2)
5.1 Opinion of Covington & Burling (4)
23.1 Consent of KPMG LLP (4)
23.2 Consent of Covington & Burling (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 United Natural Foods, Inc. 2002 Stock Incentive Plan (3)
----------
(1) Incorporated by reference to the Registrant's Registration
Statement on Form S-1 (File No. 333-11349).
(2) Incorporated by reference to the Registrant's Registration
Statement on Form 8-A, filed on March 2, 2002.
(3) Incorporated by reference to the Registrant's Definitive Proxy
Statement on Form DEF 14A for the fiscal year ended July 31, 2002,
filed on October 28, 2002.
(4) Filed herewith.
Item 9. Undertakings
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. 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) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3 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.
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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
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.
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.
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 Dayville, State of Connecticut, on this 18th day of
June, 2003.
UNITED NATURAL FOODS, INC.
By: /s/ Steven H Townsend
-------------------------
Steven H. Townsend
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below under the heading
"Signature" constitutes and appoints Steven H. Townsend and Rick D. Puckett, or
any of them, his true and lawful attorney-in-fact and agent with full power of
substitution and re-substitution, for him and in his name, place and stead, in
any and all capacities to sign any or all Registration Statements on Form S-8
with respect to any securities to be offered and issued by United Natural Foods,
Inc., a Delaware corporation (the "Registrant"), pursuant to any employee
benefit plan (as such term is defined in the General Instructions to Form S-8)
of the Registrant and any or all amendments to any such Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, 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 for
all intents and purposes as he 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 on the 18th day of June, 2003, by the
following persons in the capacities indicated.
Signature Title
--------- -----
/s/ Michael S. Funk Chair of the Board
-----------------------
Michael S. Funk
/s/ Thomas B. Simone Vice Chair of the Board
-----------------------
Thomas B. Simone
/s/ Steven H. Townsend President, Chief Executive Officer and
----------------------- Director (principal executive officer)
Steven H. Townsend
/s/ Rick D. Puckett Vice President, Chief Financial
----------------------- Officer and Treasurer (principal
Rick D. Puckett financial and accounting officer)
/s/ Kevin T. Michel President of Western Region and
----------------------- Director
Kevin T. Michel
/s/ Gordon D. Barker Director
-----------------------
Gordon D. Barker
/s/ Joseph M. Cianciolo Director
-----------------------
Joseph M. Cianciolo
/s/ Gail A. Graham Director
-----------------------
Gail A. Graham
/s/ James P. Heffernan Director
-----------------------
James P. Heffernan
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
3.1 Amended and Restated Certificate of Incorporation of the
Registrant (1)
3.2 Amended and Restated By-Laws of the Registrant (1)
4.1 Specimen Certificate for shares of Common Stock, $0.01 par value,
of the Registrant. (1)
4.2 Certificate of Designation of Preferences and Rights of Series A
Preferred Stock of the Registrant. (2)
4.3 Rights Agreement between the Registrant and Continental Stock
Transfer and Trust Company. (2)
5.1 Opinion of Covington & Burling (4)
23.1 Consent of KPMG LLP (4)
23.2 Consent of Covington & Burling (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 United Natural Foods, Inc. 2002 Stock Incentive Plan (3)
----------
(1) Incorporated by reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-11349).
(2) Incorporated by reference to the Registrant's Registration Statement
on Form 8-A, filed on March 2, 2002.
(3) Incorporated by reference to the Registrant's Definitive Proxy
Statement on Form DEF 14A for the fiscal year ended July 31, 2002,
filed on October 28, 2002.
(4) Filed herewith.