** 
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 SECURITIESEXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2005

OR

(  ) TRANSITION REPORT PURSUANT TO SECTION 13 OR SECTION 15(d) OF THESECURITIES 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 seasonedissuer, as defined in Rule 405 of the Securities Act:

  Yes        ( **** )        No       ( **X** ) 

Indicate by check mark if the registrant is not required to filereports 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 reportsrequired to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 duringthe preceding 12 months (or for such shorter period that the registrant was required tofile such reports), and (2) has been subject to such filing requirements for the past 90days:

  Yes        ( **X** )       No         (** ** )

 

Indicate by check mark if disclosure of delinquent filers pursuant toItem 405 of Regulation S-K is not contained herein, and will not be contained, to the bestof registrant’s knowledge, in definitive proxy or information statements incorporatedby 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 acceleratedfiler, an accelerated filer, or a non-accelerated filer. See definition of"accelerated filer and large accelerated filer" in Rule 12b-2 of the ExchangeAct. (Check one):

  Large AcceleratedFiler      ( **** )        AcceleratedFiler      ( **X** )          Non-AcceleratedFiler      ( **** )
 
Indicate by check mark whether the registrant is a shell company (asdefined in Rule 12-b of the Exchange Act).  Yes         ( **** )         No        ( **X** )

 

The aggregate market value of the voting and non-voting common stock ofthe registrant held by non-affiliates of the registrant based on the closing price atwhich such stock was sold as reported by NASDAQ National Market on July 1, 2005 wasapproximately $**162,254,139**. For purposes of this calculation, executiveofficers, directors and 5% or greater stockholders are deemed to be affiliates of theregistrant.

 

As of February 20, 2006, the registrant had outstanding 28,443,272shares of common stock, par value $0.001 per share.

 

** 
DOCUMENTS INCORPORATED BY REFERENCE

Portions of the definitive Proxy Statement for the Registrant’sAnnual Meeting of Stockholders to be held on May 2, 2006, have been incorporated byreference 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 fiscalyear ended December 31, 2005, originally filed with the Securities and Exchange Commissionon March 1, 2006, amends the cover page to include the check box relating to "whetherthe registrant is a shell company," and to modify the certifications set forth inExhibit numbers 31.1 and 31.2 to conform to the form required by Item 601(b)(31)(i) ofRegulation S-K. This Amendment No. 1 does not change any information contained in otheritems as originally filed on March 1, 2006. This Amendment No. 1 does not reflect eventsthat 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:(1)Reports of Independent Registered Public    Accounting FirmsConsolidated Statements of OperationsConsolidated Statements of Comprehensive    Income (Loss)Consolidated Balance SheetsConsolidated Statements of Changes in    Stockholders’ EquityConsolidated Statements of Cash FlowsNotes to Consolidated Financial Statements(2)Financial Statement Schedules – No    schedules are required. (3)The following exhibits to this Form 10-K are    filed pursuant to the requirements of Item 601 of Regulation S-K:**Exhibit****Number****Description of Document**3(i).1.(a)**Amended and Restated Certificate of Incorporation of the Registrant. (1)3(i).1.(b)**Certificate of Correction to Amended and Restated Certificate of Incorporation of    the Registrant. (1)3(i).1.(c)**Certificate of Amendment to Amended and Restated Certificate of Incorporation of    the Registrant. (2)3(ii).1**Amended and Restated By-Laws of the Registrant. (1)4.1**Reference is made to Exhibits 3(i) through    3(ii).1.4.2**Specimen stock certificate. (3)4.3**Rights Agreement dated May 22, 1998 between Registrant and Norwest Bank    Minnesota. (10)10.1**Form of Indemnity Agreement between the Registrant and its directors and    executive officers, with related schedule. (3)10.2#**1996 Equity Incentive Plan, including forms of Options granted to employees and    non-employee directors thereunder. (3)10.3#**Amendment to 1996 Equity Incentive Plan. (4)10.4#**Second Amendment to 1996 Equity Incentive Plan. (5)10.5#**1996 Employee Stock Purchase Plan. (3)10.6#**Amendment to 1996 Employee Stock Purchase Plan. (5)10.7#**1993 Stock Option Plan. (3)10.8#**1991 Stock Option Plan. (3)10.9#**Employee Stock Ownership Plan. (3)10.10#**Wild Oats Markets, Inc. Deferred Compensation Plan. (6)10.11#**Employment Agreement dated March 6, 2001 between Perry D. Odak and the    Registrant. (7)10.12#**Amendment to Employment Agreement dated March 6, 2001 between Perry D. Odak and    the Registrant. (5)10.13#**Stock Purchase Agreement dated March 6, 2001 between Perry D. Odak and the    Registrant. (7)10.14#**Stephen Kaczynski Equity Incentive Plan. (8)10.15#**Employment Agreement dated April 24, 2001 between Stephen P. Kaczynski and the    Registrant. (8)10.16#**Employment Agreement dated May 21, 2001 between Bruce Bowman and the Registrant.    (8)10.17#**Amendment to Employment Agreement dated May 21, 2001 between Bruce Bowman and the    Registrant. (5)10.18#**Bruce Bowman Equity Incentive Plan. (8)10.19#**Severance Agreement dated November 7, 2002 between Bruce Bowman and the    Registrant. (11)10.20#**Severance Agreement dated November 7, 2002 between Freya Brier and the    Registrant. (11)10.21#**Severance Agreement dated November 7, 2002 between Stephen Kaczynski and the    Registrant. (11)10.22#**Severance Agreement dated November 7, 2002 between Peter Williams and the    Registrant. (11)10.23**
Wild    Oats Markets, Inc. 2001 Non-officer/Non-director Equity Incentive Plan. (5)10.24**
Amended and    Restated Stockholders Agreement between the Registrant and certain parties named therein    dated August 1996. (3)10.25**
Registration    Rights Agreement between the Registrant and certain parties named therein dated July 12,    1996. (3)10.26#**
Second    Amendment to Employment Agreement between Wild Oats Markets, Inc. and Perry D. Odak, dated    June 19, 2002. (9)10.27#**
Third    Amendment to Employment Agreement between Wild Oats Markets, Inc. and Perry D. Odak, dated    August 12, 2002. (9)10.28#**
Fourth    Amendment to Employment Agreement, dated May 10, 2005, between Perry D. Odak and the    Registrant. (17)10.29#**
Employment    Agreement dated April 26, 2005 between Robert B. Dimond and the Registrant. (17)10.30#**
Robert    B. Dimond Equity Incentive Plan. (17)10.31#**
Severance    Agreement dated May 9, 2005 between Robert B. Dimond and Registrant. (17)10.32**
Assignment    of Kaczynski Employment Agreement dated June 29, 2002, between Registrant and Sparky, Inc.    (9)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)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)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) 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)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)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)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)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)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)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)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)10.44**
Amended    Certificate of Designations of Series A Junior Participating Preferred Stock of Wild Oats    Markets, Inc. (13)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)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)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)21.1**
List    of subsidiaries. (12)23.1+
Consent    of Ernst & Young LLP.23.2
Consent    of PricewaterhouseCoopers LLP.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. 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.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).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).
** **
#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 SecuritiesExchange Act of 1934, the registrant has duly caused this report to be signed on itsbehalf by the undersigned, thereunto duly authorized.

 
Wild Oats Markets, Inc.(Registrant)Date: March 7, 2006 By: /s/ Robert B. DimondRobert B. DimondChief Financial Officer(Principal Financial and Accounting Officer)
 
 

 

 

 

 
 

 

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