As filed with the Securities and Exchange Commission on February 4, 1997.
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PRICE/COSTCO, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0572969
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
999 Lake Drive
Issaquah, Washington 98027
(Address of Principal Executive Offices)(Zip Code)
PRICECOSTCO 401(K) RETIREMENT PLAN
PRICECOSTCO 401(K) PLAN FOR CALIFORNIA UNION EMPLOYEES
(Full title of the plans)
---------------------
Richard J. Olin
Vice President
Price/Costco, Inc.
999 Lake Drive
Issaquah, Washington 98027
(206) 313-8100
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
David R. Wilson
Foster Pepper & Shefelman
1111 Third Avenue, Suite 3400
Seattle, Washington 98101
(206) 447-4400
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be to be offering price aggregate registration
registered(1) registered(2) per share(3) offering price(3) fee(3)
- --------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par 5,000,000 $25.188 $125,940,000 $38,164
value shares
================================================================================================================================
(1) In addition, pursuant to Rule 416(c) under the 1933 Act, this
Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plans described
herein.
Page 1 of _____
Exhibit Index on Page ____
(2) Pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the
"1933 Act"), the amount of shares to be registered is the maximum
amount of shares issuable herein. As of December 31, 1996, there were
(i) 4,770,000 shares issuable under the PriceCostco 401(k) Retirement
Plan, and (ii) 230,000 shares issuable under the PriceCostco 401(k)
Plan for California Union Employees (collectively the "Plans"). The
figures herein represent good faith estimates of the aggregate number
of shares of Common Stock of the Registrant which may be purchased by
participants pursuant to the plans.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended. The
price per share is estimated to be $25.188, based on the average of
the high sales price ($25.50) and the low sales price ($24.875) for
the registrant's Common Stock as reported on the NASDAQ National Market
on January 30, 1997.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with Rule 428 under the Securities Act of 1933, as
amended, and the instructional Note to Part I of Form S-8, the information
required by Part I to be contained in the Section 10(a) prospectus has been
omitted from this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Price/Costco, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 1, 1996;
(2) Quarterly Report on Form 10-Q for the quarter ended November 24, 1996; and
(3) The description of the Registrant's Common Stock, $0.01 par value,
contained in the Registrant's Registration Statement on Form 8-A, dated
October 19, 1993, filed pursuant to Section 12 of the Securities Exchange
Act of 1934 (the "Exchange Act"), including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The Restated Certificate of Incorporation of the Registrant (the
"Certificate of Incorporation") and the Amended and Restated Bylaws of the
Registrant (the "Bylaws") provide for indemnification of present and former
directors and officers of the Registrant, The Price Company ("Price") and Costco
Wholesale Corporation ("Costco") and persons serving as directors, officers,
employees or agents of another corporation or entity at the request of the
Registrant, Price or Costco (each, an "Indemnified Party"), each to the fullest
extent permitted by the Delaware General Corporation Law (the "DGCL"). Section
145 of the DGCL allows indemnification of specified persons by Delaware
corporations, and describes requirements and limitations on such powers of
indemnification. The Registrant has included in the Certificate of Incorporation
and the Bylaws provisions which require the Registrant to indemnify an
Indemnified Party if the standard of conduct and other requirements set forth
therein and by the DGCL are met.
Indemnified Parties are specifically indemnified in the Certificate of
Incorporation and the Bylaws (the "Indemnification Provisions") from expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with an action, suit or proceeding (i) by reason of the fact that
he or she is or was a director or officer of the Registrant, Price or Costco or
served as a director, officer, employee or agent at the request of the
Registrant, Price or Costco or (ii) by or in right of the Registrant, Price or
Costco, provided that indemnification is permitted only with judicial approval
if the Indemnified Party is adjudged to be liable to the Registrant. Such
Indemnified Party must have acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the subject
corporation and, with respect to any criminal action or proceeding, must have
had no reasonable cause to believe his or her conduct was unlawful. Any
indemnification must be authorized based on a determination that the
indemnification is proper as the applicable standard of conduct has been met by
the Indemnified Party. Such determination will be made by a majority vote of a
quorum of the Board consisting of directors not a party to the suit, action or
proceeding, by a written opinion of independent legal counsel or by the
stockholders. In the event that a determination is made that a director or
officer is not entitled to indemnification under the Indemnification Provisions,
the Indemnification Provisions provide that the Indemnified Party may seek a
judicial determination of his or her rights to indemnification. The
Indemnification Provisions further provide that the Indemnified Party is
entitled to indemnification for and advancement of, all expenses (including
attorneys' fees) incurred in any proceeding seeking to collect from the
Registrant an indemnity claim or advancement of expenses under the
Indemnification Provisions whether or not such Indemnified Party is successful.
The Registrant will pay expenses incurred by a director or officer of
the Registrant, or a former director or officer of Price of Costco, in advance
of the final disposition of an action, suit or proceeding, if he or she
undertakes to repay amounts advanced if it is ultimately determined that he or
she is not entitled to be indemnified by the Registrant. The Indemnification
Provisions are expressly not exclusive of any other rights of indemnification or
advancement of expenses pursuant to the Bylaws or any agreement, vote of the
stockholders or disinterested directors or pursuant to judicial direction.
The Registrant is authorized to purchase insurance on behalf of an
Indemnified Party for liabilities incurred, whether or not the Registrant would
have the power or obligation to indemnify him or her pursuant to the Certificate
of Incorporation or the DGCL. The Registrant has obtained such insurance.
The Registrant has entered into indemnification agreements with all of
its directors providing for the foregoing.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
4.1 PriceCostco 401(k) Retirement Plan
4.2 PriceCostco 401(k) Plan for California Union Employees
4.3 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3(a) of the Registrant's
Annual Report on Form 10-K for the fiscal year ended September
1, 1996)
4.3 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3(b) of the Registrant's Annual Report on
Form 10-K for the fiscal year ended September 1, 1996)
5.1 Opinion of Foster Pepper & Shefelman
15.1 Letter of Arthur Andersen LLP regarding unaudited interim
financial information (included in its consent filed as
Exhibit 23.1)
23.1 Consent of Arthur Andersen LLP
23.1 Consent of Foster Pepper & Shefelman (included in its opinion
filed as Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
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 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 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 Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in this 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
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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 each filing of the 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 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.
(d) The undersigned registrant hereby undertakes that it will submit
the Plans and any amendments thereto to the Internal Revenue Service (the "IRS")
in a timely manner and will make all changes required by the IRS to qualify the
Plans.
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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 Issaquah, State of Washington on
January 30, 1997.
PRICE/COSTCO, INC.
By: /s/ James D. Sinegal
James D. Sinegal
President, Chief Executive Officer and Director
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Jeffrey H. Brotman, James D. Sinegal, Richard A. Galanti and Richard J. Olin, or
any of them, as attorneys-in-fact with full power of substitution, to execute in
the name and on behalf of each person, individually and in each capacity stated
below, and to file, any and all amendments to this Registration Statement,
including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on January 30, 1997.
/s/ Jeffrey H. Brotman
Jeffrey H. Brotman Chairman of the Board of Directors
/s/ James D. Sinegal
James D. Sinegal President, Chief Executive Officer and
Director (Principal Executive Officer)
/s/ Richard A. Galanti
Richard A. Galanti Executive Vice President, Chief Financial Officer
and Director (Principal Financial Officer)
/s/ Richard D. DiCerchio
Richard D. DiCerchio Executive Vice President and Director
/s/ David S. Petterson
David S. Petterson Senior Vice President and Corporate Controller
(Principal Accounting Officer)
/s/ Hamilton E. James
Hamilton E. James Director
/s/ Richard M. Libenson
Richard M. Libenson Director
/s/ John W. Meisenbach
John W. Meisenbach Director
/s/ Fredrick O. Paulsell, Jr.
Fredrick O. Paulsell, Jr. Director
/s/ Jill S. Ruckelshaus
Jill S. Ruckelshaus Director
/s/ Charles T. Munger
Charles T. Munger Director
PriceCostco 401(k) Retirement Plan. Pursuant to the requirements of the
Securities Act of 1933, the trustees of the PriceCostco 401(k) Retirement Plan
have duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Issaquah, State of
Washington, on January 30, 1997.
PRICECOSTCO 401(K) RETIREMENT PLAN
By: /s/ Richard A. Galanti
Richard A. Galanti
Its: Plan Administrator
PriceCostco 401(k) Plan for California Union Employees. Pursuant to the
requirements of the Securities Act of 1933, the trustees of the PriceCostco
401(k) Plan for California Union Employees have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Issaquah, State of Washington, on January 30,
1997.
PRICECOSTCO 401(K) PLAN FOR CALIFORNIA
UNION EMPLOYEES
By: /s/ Richard A. Galanti
Richard A. Galanti
Its: Plan Administrator
INDEX TO EXHIBITS
Exhibit Description Page
4.1 PriceCostco 401(k) Retirement Plan
4.2 PriceCostco 401(k) Plan for California Union Employees
4.3 Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3(a)
of the Registrant's Annual Report on Form 10-K for
the fiscal year ended September 1, 1996)
4.3 Amended and Restated Bylaws of the Registrant (incorporated by reference to
Exhibit 3(b) of the Registrant's Annual Report on Form 10-K for the fiscal year
ended September 1, 1996)
5.1 Opinion of Foster Pepper & Shefelman
15.1 Letter of Arthur Andersen LLP regarding unaudited interim financial information
(included in its consent filed as Exhibit 23.1)
23.1 Consent of Arthur Andersen LLP
23.1 Consent of Foster Pepper & Shefelman (included in its opinion filed as Exhibit
5.1)
24.1 Power of Attorney (included on the signature page of this Registration
Statement)