-----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, A0RJPvY8qEKU0RvRwMlfchlo4w5m/I6LQIuur7SRQAYfDhBayvwe3tAZTqWXsxT1 BqDkj1jla8eHAhltxnQNTQ== 0000929624-97-001509.txt : 19971211 0000929624-97-001509.hdr.sgml : 19971211 ACCESSION NUMBER: 0000929624-97-001509 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971210 EFFECTIVENESS DATE: 19971210 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CENTRAL GARDEN & PET COMPANY CENTRAL INDEX KEY: 0000887733 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MISCELLANEOUS NONDURABLE GOODS [5190] IRS NUMBER: 680275553 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-41931 FILM NUMBER: 97735844 BUSINESS ADDRESS: STREET 1: 3697 MT DIABLO BLVD SUITE 300 CITY: LAFAYETTE STATE: CA ZIP: 94549 BUSINESS PHONE: 5102834573 MAIL ADDRESS: STREET 2: 3697 MT DIABLO BLVD SUITE 310 CITY: LAFAYETTE STATE: CA ZIP: 94549 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on December 10, 1997 Registration No. 333-___________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ___________________________ CENTRAL GARDEN & PET COMPANY (Exact name of issuer as specified in its charter) Delaware 68-0275553 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 3697 Mt. Diablo Boulevard, Lafayette, California 94549 (Address of principal executive offices) (Zip Code) CENTRAL GARDEN & PET COMPANY 1993 OMNIBUS EQUITY INCENTIVE PLAN (Full title of the plan) William E. Brown Central Garden & Pet Company 3697 Mt. Diablo Boulevard, Lafayette, California 94549 (Name and address of agent for service) Telephone number, including area code, of agent for service: (510) 283-4573 Copy to: John F. Seegal, Esq. Orrick, Herrington & Sutcliffe LLP 400 Sansome Street San Francisco, California 94111 Calculation of Registration Fee
======================================================================================================================== Proposed Proposed Maximum Maximum Title of Securities to Amount to Be Offering Price per Aggregate Amount of Be Registered Registered Share* Offering Price* Registration Fee* - ------------------------------------------------------------------------------------------------------------------------ Common Stock, and 2,000,000 shares $ 27.5625 $ 55,125,000.00 $ 16,705.00 Options to Purchase Common Stock ========================================================================================================================
* Estimated solely for the purpose of calculating the registration fee on the basis of $ 27.5625 per share, the average of the high and low prices for the Common Stock on December 8, 1997 as reported by NASDAQ. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents are incorporated by reference in this registration statement: (i) the latest annual report of Central Garden & Pet Company (the "Registrant") filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (ii) all other reports filed by the Registrant pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in clause (i) above; and (iii) the description of the Registrant's common stock set forth in the Registrant's Registration Statement on Form 8-A relating thereto, including any amendment or report filed for the purpose of updating such description. All documents filed by the Registrant after the date of this registration statement pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment (that indicates all securities offered have been sold or deregisters all securities then remaining unsold), shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Inapplicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Inapplicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant's Certificate of Incorporation provides that its directors will not be liable to the Registrant or its stockholders for monetary damages for breaches of fiduciary duty, to the fullest extent permitted by law. This provision is intended to allow the Registrant's directors the benefit of the Delaware General Corporation law which provides that directors of Delaware corporations may be relieved of monetary liability for breaches of their fiduciary duty of care except under certain circumstances, including breach of the duty of loyalty, acts or omissions not in good faith or involving intentional misconduct or known violation of law or any transaction from which the director derived an improper personal benefit. The Registrant has entered into separate indemnification agreements with each of the directors and executive officers, whereby the Registrant agrees, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors or officers, to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified, and to obtain directors' and officers' insurance if available at reasonable terms. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Inapplicable. 2 ITEM 8. EXHIBITS 4.1 The Central Garden & Pet Company 1993 Omnibus Equity Incentive Plan, as amended (and incorporated by reference to Exhibits 4.1 to the Registrant's Registration Statements on Form S-8, Commission File Nos. 33-72326, 33- 89216 and 333-1238). 4.2 Form of Nonqualified Stock Option Agreement (incorporated by reference to Exhibit 4.2 to the Registrant's Registration Statement on Form S-8, Commission File No. 33-72326). 4.3 Form of Restricted Stock Agreement (incorporated by reference to Exhibit 4.3 to the Registrant's Registration Statement on Form S-8, Commission File No. 33-72326). 5.1 Opinion of Orrick, Herrington & Sutcliffe LLP. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit 5.1. 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; (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 registration statement is on Form S-3 or Form S-8 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 (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 section 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. (c) 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. 4 Signatures THE REGISTRANT 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 Lafayette, State of California on the 9th of December, 1997. Central Garden & Pet Company (Registrant) /s/ William E. Brown - ---------------------------------- William E. Brown Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date Principal Executive Officer: /s/ William E. Brown - ---------------------------------- Chairman of Board December 9, 1997 William E. Brown and Chief Executive Officer Principal Financial Officer and Accounting Officer /s/ Robert B. Jones - ---------------------------------- Vice President and Chief December 9, 1997 Robert B. Jones Financial Officer 5 Directors: /s/ William E. Brown - ---------------------------------- William E. Brown Director December 9, 1997 /s/ Lee D. Hines, Jr. - ---------------------------------- Lee D. Hines, Jr. Director December 9, 1997 /s/ Daniel P. Hogan - ---------------------------------- Daniel P. Hogan Director December 9, 1997 /s/ Glenn W. Novotny - ---------------------------------- Glenn W. Novotny Director December 9, 1997 A majority of the members of the Board of Directors. 6 EXHIBIT INDEX 4.1 The Central Garden & Pet Company 1993 Omnibus Equity Incentive Plan, as amended (and incorporated by reference to Exhibits 4.1 to the Registrant's Registration Statements on Form S-8, Commission File Nos. 33-72326, 33- 89216 and 333-1238). 4.2 Form of Nonqualified Stock Option Agreement (incorporated by reference to Exhibit 4.2 to the Registrant's Registration Statement on Form S-8, Commission File No. 33-72326). 4.3 Form of Restricted Stock Agreement (incorporated by reference to Exhibit 4.3 to the Registrant's Registration Statement on Form S-8, Commission File No. 33-72326). 5.1 Opinion of Orrick, Herrington & Sutcliffe LLP. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit 5.1. 7 EX-4.1 2 AMENDMENT #3 TO 1993 OMNIBUS EQUITY INCENTIVE PLAN EXHIBIT 4.1 AMENDMENT NO. 3 TO THE CENTRAL GARDEN & PET COMPANY 1993 OMNIBUS EQUITY INCENTIVE PLAN CENTRAL GARDEN & PET COMPANY, having adopted the Central Garden & Pet Company 1993 Omnibus Equity Incentive Plan (the "Plan"), effective as of October 19, 1993, and amended the Plan on two subsequent occasions, hereby again amends the Plan, effective as of November 6, 1997, by deleting the numeral 2,000,000 from the first sentence of Section 4.1 thereof and substituting the numeral 4,000,000 therefor. IN WITNESS WHEREOF, Central Garden & Pet Company, by its duly authorized officer, has executed this Amendment No. 3 to the Plan on the date indicated below. CENTRAL GARDEN & PET COMPANY Dated: December 9, 1997 By /s/ Robert B. Jones ---------------------------------- Title Vice President and Chief Financial Officer EX-5.1 3 OPINION OF ORRICK, HERRINGTON & SUTCLIFFE LLP EXHIBIT 5.1 December 10, 1997 Central Garden & Pet Company 3697 Mt. Diablo Boulevard Lafayette, California 94549 Re: Registration Statement on Form S-8 - Central Garden & Pet Company 1993 Omnibus Equity Incentive Plan, As Amended Ladies and Gentlemen: At your request, we are rendering this opinion in connection with the proposed issuance pursuant to the Central Garden & Pet Company 1993 Omnibus Equity Incentive Plan, as amended (the "Plan"), of up to 2,000,000 additional shares of common stock, $.01 par value ("Common Stock"), of Central Garden & Pet Company, a Delaware corporation (the "Company"). We have examined instruments, documents, and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the following: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; and (c) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed. Based on such examination, we are of the opinion that the 2,000,000 additional shares of Common Stock to be issued by the Company pursuant to the Plan are validly authorized shares of Common Stock, and, when issued in accordance with the provisions of the Plan, will be legally issued, fully paid, and nonassessable. We hereby consent to the filing of this opinion as an exhibit to this Registration Statement on Form S-8 and to the use of our name wherever it appears in said Registration Statement. In giving such consent, we do not consider that we are "experts" within the meaning of such term as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission issued thereunder with respect to any part of the Registration Statement, including this opinion, as an exhibit or otherwise. Very truly yours, /s/ Orrick, Herrington & Sutcliffe LLP ORRICK, HERRINGTON & SUTCLIFFE LLP EX-23.1 4 CONSENT OF DELOITTE & TOUCHE EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Central Garden & Pet Company on Form S-8 of our reports dated November 4, 1997, appearing in the Annual Report on Form 10-K of Central Garden & Pet Company for the year ended September 27, 1997. /s/ Deloitte & Touche LLP San Francisco, California December 10, 1997 -----END PRIVACY-ENHANCED MESSAGE-----