-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OtgsqwdH9HttLnBkQvasmNIpR+Gr7Rle1qKpkJfhoHqfcSl1coivp74B84qtAxqF UScJlJENueZXZ9/waJMB5w== 0001171520-05-000138.txt : 20050321 0001171520-05-000138.hdr.sgml : 20050321 20050321124723 ACCESSION NUMBER: 0001171520-05-000138 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050321 DATE AS OF CHANGE: 20050321 EFFECTIVENESS DATE: 20050321 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNITED NATURAL FOODS INC CENTRAL INDEX KEY: 0001020859 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & GENERAL LINE [5141] IRS NUMBER: 050376157 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-123462 FILM NUMBER: 05693587 BUSINESS ADDRESS: STREET 1: PO BOX 999 STREET 2: 260 LAKE RD CITY: DAYVILLE STATE: CT ZIP: 06241 BUSINESS PHONE: 8607792800 MAIL ADDRESS: STREET 1: PO BOX 999 STREET 2: 260 LAKE RD CITY: DAYVILLE STATE: CT ZIP: 06241 S-8 1 eps11765.txt UNITED NATURAL FOODS, INC. As filed with the Securities and Exchange Commission on March 21, 2005 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. 2004 Equity Incentive Plan (Full Title of the Plan) Steven H. Townsend Chair of the Board, 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 Maximum Proposed Title of Each Class of Amount to be Offering Price Per Maximum Aggregate Amount of Securities to be Registered Registered (1) Share (2) Offering Price (2) Registration Fee - ----------------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 per share ......... 1,000,000 shares $29.00 $29,000,000 $3,674.30 =======================================================================================================================
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, 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 March 16, 2005, 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) under the Securities Act of 1933, as amended. 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. 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 United Natural Foods, Inc. (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, 2004, filed with the Commission on October 14, 2004; 2. Quarterly Reports on Form 10-Q for the fiscal quarter ended October 31, 2004, filed with the Commission on December 10, 2004, and for the fiscal quarter ended January 31, 2005, filed with the Commission on March 14, 2005; 3. Current Reports on Form 8-K, filed with the Commission on March 3, 2005 and March 4, 2005; 4. 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, including any amendment or report filed for the purpose of updating such description; and 5. 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, since July 31, 2004. 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. Further, nothing in this registration statement shall be deemed to incorporate information furnished but not filed on Form 8-K. The Registrant promptly will provide without charge to each person to whom a prospectus is delivered a copy of any or all information that has been incorporated herein by reference (not including exhibits to the information that is incorporated by reference unless such exhibits are specifically incorporated by reference into such information) upon the written or oral request of such person directed to the Treasurer of the Registrant at its principal offices, 260 Lake Road, Dayville, Connecticut 06241, Telephone: (860) 779-2800. 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 The list of Exhibits is incorporated herein by reference to the Index of Exhibits. 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. 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. (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 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. (h) 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 21st day of March, 2005. UNITED NATURAL FOODS, INC. By: -------------------- Steven H. Townsend Chair of the Board, 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 21st day of March, 2005, by the following persons in the capacities indicated. Signature Title --------- ----- -------------------------- Chair of the Board, President, Chief Steven H. Townsend Executive Officer and Director (principal executive officer) -------------------------- Vice President, Chief Financial Rick D. Puckett Officer and Treasurer (principal financial and accounting officer) -------------------------- Vice Chair of the Board and Lead Thomas B. Simone Independent Director -------------------------- Director Michael S. Funk -------------------------- President of United Distribution and Richard Antonelli Director -------------------------- Director Gordon D. Barker -------------------------- Director Joseph M. Cianciolo Signature Title --------- ----- -------------------------- Director Gail A. Graham -------------------------- Director James P. Heffernan EXHIBIT INDEX
Incorporated by Reference ---------------------------------------------------- Exhibit Filing Date Filed Number Exhibit Description Form File No. Exhibit Herewith - ------------------------------------------------------------------------------------------------------------------------------- 4.1 Amended and Restated Certificate of 10-Q 000-21531 3.1 3/14/2005 Incorporation 4.2 Certificate of Amendment to the Amended and 10-Q 000-21531 3.2 3/14/2005 Restated Certificate of Incorporation 4.3 Amended and Restated By-Laws 10-K 000-21531 3.3 10/29/2002 4.4 Specimen Certificate of Common Stock 10-K 000-21531 4.1 10/14/2004 5.1 Opinion of Covington & Burling X 23.1 Consent of KPMG LLP X 23.2 Consent of Covington & Burling (included in X Exhibit 5.1) 24.1 Power of Attorney (included on signature page) X 99.1 United Natural Foods, Inc. 2004 Equity 10-Q 000-21531 10.1 12/10/2004 Incentive Plan 99.2 Form of Restricted Stock Agreement pursuant X to United Natural Foods, Inc. 2004 Equity Incentive Plan
EX-5.1 2 ex5-1.txt Exhibit 5.1 [LETTERHEAD OF COVINGTON & BURLING] March 14, 2005 United Natural Foods, Inc. 260 Lake Road Dayville, CT 06241 Re: Registration Statement on Form S-8 Ladies and Gentlemen: This opinion is furnished to you in connection with a Registration Statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), for the registration of 1,000,000 shares of Common Stock, par value $0.01 per share (the "Shares"), of United Natural Foods, Inc., a Delaware corporation (the "Company"), issuable in connection with the equity awards granted under the Company's 2004 Equity Incentive Plan (the "2004 Plan"). In this connection, we have examined signed copies of the Registration Statement as filed with the Commission. We have also examined and relied upon the 2004 Plan, minutes of meetings of the stockholders and the Board of Directors of the Company as provided to us by the Company, record books of the Company as provided to us by the Company, and the Certificate of Incorporation and Bylaws of the Company, each as restated and/or amended to date, and such other documents as we have deemed necessary for purposes of rendering the opinions hereinafter set forth. We have assumed that all signatures are genuine, that all documents submitted to us as originals are authentic and that all copies of documents submitted to us conform to the originals. We have assumed further that the Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and legal right to issue the Shares. Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when such Shares are issued and paid for in accordance with the terms of the 2004 Plan as contemplated by the Registration Statement, such Shares will be validly issued, fully paid and non-assessable. We are members of the bar of the District of Columbia. We do not express any opinion herein on any laws other than the law of the District of Columbia and the Federal law of the United States of America. United Natural Foods, Inc. March 14, 2005 Page 2 Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein. We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission. Very truly yours, /S/ COVINGTON & BURLING EX-23.1 3 ex23-1.txt Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors United Natural Foods, Inc.: We consent to incorporation by reference in the Registration Statements on Form S-8 of United Natural Foods, Inc. of our reports dated August 26, 2004, relating to the consolidated balance sheets of United Natural Foods, Inc. and Subsidiaries as of July 31, 2004 and 2003 and the related consolidated statements of income, stockholders' equity and cash flows for each of the years in the three-year period ended July 31, 2004, and the related schedule, which reports appear in the July 31, 2004 annual report on Form 10-K of United Natural Foods, Inc. Providence, Rhode Island March 18, 2005 -----END PRIVACY-ENHANCED MESSAGE-----