-----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, M1TuzbJiBU2GBqthvBJnsVut9kJL18v4VGKFPawha4mKonILDSnR1lWrMNNdXreI iCUkn2Zy/JDdA/iORrMRJQ== 0001047469-97-001312.txt : 19971022 0001047469-97-001312.hdr.sgml : 19971022 ACCESSION NUMBER: 0001047469-97-001312 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971021 EFFECTIVENESS DATE: 19971021 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PRICESMART INC CENTRAL INDEX KEY: 0001041803 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-MISCELLANEOUS RETAIL [5900] IRS NUMBER: 330628530 STATE OF INCORPORATION: DE FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-38345 FILM NUMBER: 97698675 BUSINESS ADDRESS: STREET 1: 4649 MORENA BLVD CITY: SAN DIEGO STATE: CA ZIP: 92117 BUSINESS PHONE: 6195814530 MAIL ADDRESS: STREET 1: 4649 MORENA BLVD CITY: SAN DIEGO STATE: CA ZIP: 92117 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on October 21, 1997 Registration No. _________ =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 PRICESMART, INC. (Exact name of registrant as specified in its charter) DELAWARE 33-0628530 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 4649 MORENA BOULEVARD SAN DIEGO, CALIFORNIA 92117 (619) 581-4530 (Address of principal executive offices, including zip code, and telephone number) THE 1997 STOCK OPTION PLAN OF PRICESMART, INC. (Full title of the plans) Copies to: ROBERT E. PRICE SCOTT N. WOLFE, ESQ. CHAIRMAN, PRESIDENT AND LATHAM & WATKINS CHIEF EXECUTIVE OFFICER 701 "B" STREET PRICESMART, INC. SAN DIEGO, CALIFORNIA 92101 4649 MORENA BOULEVARD (619) 236-1234 SAN DIEGO, CALIFORNIA 92117 (619) 581-4530 (Name, address, including zip code, and telephone number,including area code, of agent for service) CALCULATION OF REGISTRATION FEE
======================================================================================================================== Amount Proposed Maximum Proposed Maximum Amount of Title of Securities to be Offering Price Aggregate Offering Registration to be Registered Registered(1) Per Share Price Fee - ------------------------------------------------------------------------------------------------------------------------ Common Stock, $.0001 par value . . . . 700,000 (2) $9,385,513.77 $2,844.10 ========================================================================================================================
(1) A maximum of 700,000 shares of common stock were reserved for issuance under The 1997 Stock Option Plan of PriceSmart, Inc. (the "Plan"). All shares reserved for issuance under the Plan are being registered hereunder. (2) This estimate is made pursuant to Rule 457(h) solely for purposes of calculating the registration fee, and is determined according to the following offering price information: (i) under the Plan 297,811 shares of common stock are subject to outstanding options with an exercise price of $8.59 per share, 237,100 shares of common stock are subject to outstanding options with an exercise price of $17.88 per share, 18,456 shares of common stock are subject to outstanding options with an exercise price of $9.06 per share, 7,862 shares of common stock are subject to outstanding options with an exercise price of $10.68 per share, 7,862 shares of common stock are subject to outstanding options with an exercise price of $9.16 per share, 5,557 shares of common stock are subject to outstanding options with an exercise price of $9.49 per share, 4,261 shares of common stock are subject to outstanding options with an exercise price of $11.64 per share, 2,832 shares of common stock are subject to outstanding options with an exercise price of $11.88 per share, 2,409 shares of common stock are subject to outstanding options with an exercise price of $14.69 per share and the remaining 115,850 shares of common stock are reserved for issuance upon exercise of options to be granted in the future. Pursuant to Rule 457(h), for all shares of common stock being registered hereunder with an exercise price which cannot be presently determined (115,850 shares of common stock under the Plan), the Proposed Maximum Offering Price Per Share is $18.07 per share of common stock, which is based on the average of the high and low prices for the Company's common stock as reported on the Nasdaq National Market on October 17, 1997. =============================================================================== Page 1 of 11 Exhibit Index on Page 8 PART I ITEM 1. PLAN INFORMATION. Not required to be filed with this Registration Statement. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Not required to be filed with this Registration Statement. PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Securities and Exchange Commission (the "Commission") by PriceSmart, Inc., a Delaware corporation (the "Company"), are hereby incorporated by reference in this Registration Statement: (a) The Registration Statement on Form 10 filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") on July 3, 1997, as amended by Amendment No. 1 to Form 10 filed on August 1, 1997 and Amendment No. 2 to Form 10 filed on August 13, 1997 (the "Registration Statement on Form 10"); (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the effective date of the Registration Statement on Form 10; and (c) The description of the Company's common stock, par value $.0001 per share (the "Common Stock"), contained in the Registration Statement on Form 10, including any amendment or report filed for the purpose of updating such description. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date this Registration Statement is filed with the Commission 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 a part of it from the respective dates of filing of such documents. 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. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. 2 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Articles Eighth and Ninth of the Amended and Restated Certificate of Incorporation of the Company (the "Company Certificate") and Article VIII of the Amended and Restated Bylaws of Company (the "Company Bylaws," with Articles Eighth and Ninth of the Company Certificate an Aricle VIII of the Company Bylaws hereinafter referred to as the "Director Liability and Indemnification Provisions") limit the personal liability of the Company's directors to the Company or its stockholders for monetary damages for breach of fiduciary duty. The Director Liability and Indemnification Provisions define and clarify the rights of certain individuals, including the Company's directors and officers, to indemnification by the Company in the event of personal liability or expenses incurred by them as a result of certain litigation against them. Such provisions are consistent with Section 102(b)(7) of the General Corporation Law of the State of Delaware (the "DGCL"), which is designed, among other things, to encourage qualified individuals to serve as directors of Delaware corporations by permitting Delaware corporations to include in their articles or certificates of incorporation a provision limiting or eliminating directors' liability for monetary damages and with other existing DGCL provisions permitting indemnification of certain individuals, including directors and officers. The limitations of liability in the Director Liability and Indemnification Provisions may not affect claims arising under the federal securities laws. In performing their duties, directors of a Delaware corporation are obligated as fiduciaries to exercise their business judgment and act in what they reasonably determine in good faith, after appropriate consideration, to be the best interests of the corporation and its stockholders. Decisions made on that basis are protected by the "business judgment rule." The business judgment rule is designed to protect directors from personal liability to the corporation or its stockholders when business decisions are subsequently challenged. However, the expense of defending lawsuits, the frequency with which unwarranted litigation is brought against directors and the inevitable uncertainties with respect to the outcome of applying the business judgment rule to particular facts and circumstances mean that, as a practical matter, directors and officers of a corporation rely on indemnity from, and insurance procured by, the corporation they serve as a financial backstop in the event of such expenses or unforeseen liability. The Delaware legislature has recognized that adequate insurance and indemnity provisions are often a condition of an individual's willingness to serve as director of a Delaware corporation. The DGCL has for some time specifically permitted corporations to provide indemnity and procure insurance for its directors and officers. Set forth below is a description of the Director Liability and Indemnification Provisions. Such description is intended as a summary only and is qualified in its entirety by reference to the Company Certificate and the Company Bylaws. ELIMINATION OF LIABILITY IN CERTAIN CIRCUMSTANCES. Article Ninth of the Company Certificate protects directors against monetary damages for breaches of their fiduciary duty of care, except as set forth below. Under the DGCL, absent Article Ninth directors could generally be held liable for gross negligence for decisions made in the performance of their duty of care but not for simple negligence. Article Ninth eliminates director liability for negligence in the performance of their duties, including gross 3 negligence. Directors remain liable for breaches of their duty of loyalty to the Company and its stockholders, as well as acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law and transactions from which a director derives improper personal benefit. Article Ninth does not eliminate director liability under Section 174 of the DGCL, which makes directors personally liable for unlawful dividends or unlawful stock repurchases or redemptions and expressly sets forth a negligence standard with respect to such liability. While Article Ninth provides directors with protection from awards of monetary damages for breaches of the duty of care, it does not eliminate the directors' duty of care. Accordingly, Article Ninth will have no effect on the availability of equitable remedies such as an injunction or rescission based upon a director's breach of the duty of care. The provisions of Article Ninth which eliminate liability as described above will apply to officers of the Company only if they are directors of the Company and are acting in their capacity as directors, and will not apply to officers of the Company who are not directors. The elimination of liability of directors for monetary damages in the circumstances described above may deter persons from bringing third-party or derivative actions against directors to the extent such actions seek monetary damages. INDEMNIFICATION AND INSURANCE. Under Section 145 of the DGCL, directors and officers as well as other employees and individuals may be indemnified against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation--a "derivative action") if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard of care is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with defense or settlement of such an action, and the DGCL requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the Company. Article VIII of the Company Bylaws provides that all directors and officers of the Company are entitled to indemnification as set forth in the Company Certificate. Article Eighth of the Company Certificate provides that each person who was or is made a party to, or is involved in any action, suit or proceeding by reason of the fact that he is or was a director, officer of employee of the Company will be indemnified by the Company against all expenses and liabilities, including counsel fees, paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding 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 Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Article Eighth also provides that the right of indemnification shall be in addition to and not exclusive of all other right to which such director, officer or employee may be entitled. Policies of insurance may be obtained and maintained by the Company under which its directors and officers will be insured against certain expenses in connection with the defense of, and certain liabilities which might be imposed as a result of, actions, suits or proceedings to which they are parties by reason of being or having been such directors or officers. 4 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. See Exhibit Index on page 8 hereof. 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, as amended (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 and 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 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, 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. 5 (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. 6 SIGNATURES Pursuant to the requirements of the Securities Act, 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 San Diego, State of California, on October 21, 1997. PriceSmart, Inc. By: /s/ ROBERT E. PRICE ----------------------------------------- Robert E. Price Chairman, President and Chief Executive Officer POWER OF ATTORNEY Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below authorizes Robert E. Price and Karen J. Ratcliff, and either of them, with full power of substitution and resubstitution, his/her true and lawful attorneys-in-fact, for him/her in any and all capacities, to sign any amendments (including post-effective amendments) to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith, with the Commission. SIGNATURE TITLE DATE --------- ----- ---- /s/ ROBERT E. PRICE - ------------------------- Chairman, President and Chief October 21, 1997 Robert E. Price Executive Officer (principal executive officer) /s/ KAREN J. RATCLIFF - ------------------------- Chief Financial Officer October 21, 1997 Karen J. Ratcliff (principal financial officer) /s/ DANIEL L. BROCKMAN - ------------------------- Senior Vice President--Finance October 21, 1997 Daniel L. Brockman and Chief Accounting Officer (principal accounting officer) /s/ THEODORE WALLACE - ------------------------- Executive Vice President and October 21, 1997 Theodore Wallace Chief Operating Officer /s/ KATHERINE L. HENSLEY - ------------------------- Director October 21, 1997 Katherine L. Hensley /s/ LEON C. JANKS - ------------------------- Director October 21, 1997 Leon C. Janks /s/ LAWRENCE B. KRAUSE - ------------------------- Director October 21, 1997 Lawrence B. Krause /s/ GILBERT A. PARTIDA - ------------------------- Director October 21, 1997 Gilbert A. Partida 7 EXHIBIT INDEX EXHIBIT PAGE - ------- ---- 4.1 The 1997 Stock Option Plan of PriceSmart, Inc. (the "Plan"). -- (Incorporated by reference to Exhibit 10.1 to the Company's Registration Statement on Form 10 filed with the Commission.) 5.1 Opinion of Latham & Watkins. 9 23.1 Consent of Ernst & Young LLP. 11 23.2 Consent of Latham & Watkins (included in Exhibit 5.1 hereto). -- 24.1 Power of Attorney (included on signature page hereto). -- 8 EX-5.1 2 CONSENT OF LATHAM & WATKINS EXHIBIT 5.1 [LETTERHEAD OF LATHAM & WATKINS] October 21, 1997 PriceSmart, Inc. 4649 Morena Boulevard San Diego, California 92117 Re: Form S-8 Registration Statement; 700,000 Shares of Common Stock ------------------------------- Ladies and Gentlemen: In connection with the registration by PriceSmart, Inc., a Delaware corporation (the "Company"), of 700,000 shares of common stock, par value $.0001 per share (the "Shares"), of the Company to be issued pursuant to The 1997 Stock Option Plan of PriceSmart, Inc. (the "Plan") under the Securities Act of 1933, as amended (the "Act"), on a Registration Statement on Form S-8 filed with the Securities and Exchange Commission on October 21, 1997 (as amended from time to time, the "Registration Statement"), you have requested our opinion with respect to the matters set forth below. In our capacity as your counsel in connection with such registration, we are familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization, issuance and sale of the Shares, and for the purposes of this opinion, have assumed such proceedings will be timely completed in the manner presently proposed. In addition, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and instruments, as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to us as copies. PriceSmart, Inc. October 21, 1997 Page 2 We are opining herein as to the effect on the subject transaction only of the General Corporation Law of the State of Delaware, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or any other laws, or as to any matters of municipal law or the laws of any other local agencies within the state. Subject to the foregoing, it is our opinion that as of the date hereof the Shares have been duly authorized, and, upon the issuance of and payment for the Shares in accordance with the terms set forth in the Plan, the Shares will be validly issued, fully paid and nonassessable. We consent to your filing this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ LATHAM & WATKINS -------------------- Latham & Watkins EX-23.1 3 CONSENT OF ERNEST & YOUNG EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1997 Stock Option Plan of PriceSmart, Inc. of our report dated July 2, 1997, with respect to the financial statements and schedule included in the Information Statement on Form 10 dated August 15, 1997, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP --------------------- ERNST & YOUNG LLP San Diego, California October 20, 1997 -----END PRIVACY-ENHANCED MESSAGE-----