As filed with the Securities and Exchange Commission on August 10, 1998
Registration No. _________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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.)
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4649 MORENA BLVD.
SAN DIEGO, CALIFORNIA 92117
(619) 581-4530
(Address of principal executive offices, including zip code, and
telephone number)
THE 1998 EQUITY PARTICIPATION PLAN OF PRICESMART, INC.
(Full title of the plans)
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GILBERT A. PARTIDA Copies to:
President and Chief Executive Officer SCOTT N. WOLFE, ESQ.
PRICESMART, INC. LATHAM & WATKINS
4649 MORENA BLVD. 701 "B" STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92117 SAN DIEGO, CALIFORNIA 92101
(619) 581-4530 (619) 236-1234
(Name, address, including zip code, and
telephone number, including area code, of
agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share Price Fee
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Common Stock, $.0001 par value 700,000(1) $15.00(2) $10,500,000(2) $3,098
(1) A maximum of 700,000 shares of common stock, $.0001 par value per share
(the "Common Stock"), were reserved for issuance under The 1998 Equity
Participation Plan of PriceSmart, Inc. (the "Plan"). All shares reserved
for issuance under the Plan are being registered hereunder.
(2) The exercise price cannot be presently determined for any of the 700,000
shares of Common Stock reserved for issuance under the Plan. Accordingly,
pursuant to Rule 457(h), the Proposed Maximum Offering Price Per Share is
$15.00 per share of Common Stock, which is based on the average of the high
and low prices for the Common Stock as reported on the Nasdaq National
Market on August 5, 1998.
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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 previously 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 Annual Report on Form 10-K filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") on November 26, 1997 (the "Annual Report on Form 10-K");
(b) The Quarterly Reports on Form 10-Q filed pursuant to the
Exchange Act on January 14, 1998, April 14, 1998 and July 15,
1998;
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the effective date of the Annual Report
on Form 10-K; and
(c) The description of the Company's Common Stock contained in the
Registration Statement on Form 10 filed with the Commission on
July 3, 1997, together with the amendments thereto filed with
the Commission on August 1, 1997 and August 13, 1997.
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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, the
Company has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under
the Securities Act.
The Company's Amended and Restated Certificate of Incorporation and
Bylaws provide that the Company will indemnify its directors and officers to
the fullest extent permitted by Delaware law. Delaware law permits, but does
not require, a corporation to indemnify officers, directors, employees or
agents and expressly provides that the indemnification provided for under
Delaware law shall not be deemed exclusive of any indemnification right under
any bylaw, vote of stockholders or disinterested directors, or otherwise.
Delaware law permits indemnification against expenses and certain other
liabilities arising out of legal actions brought or threatened against such
persons for their conduct on behalf of the Company, provided that each such
person acted in good faith and in a manner that he or she reasonably believed
was in or not opposed to the Company's best interests and in the case of a
criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. Delaware law does not allow indemnification of directors in the
case of an action by or in the right of the Company (including stockholder
derivative suits) unless the directors successfully defend the action or
indemnification is ordered by the court. The Company is a party to
indemnification agreements with each of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company 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");
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(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 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 with or furnished to the Commission by the Company 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.
(b) The undersigned Company 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 Company pursuant to the foregoing provisions, or otherwise,
the Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director,
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officer or controlling person in connection with the securities being
registered, the Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
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 August 5, 1998.
PriceSmart, Inc.
By: /s/ GILBERT A. PARTIDA
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Gilbert A. Partida
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Gilbert A. Partida his true and lawful
attorney-in-fact, acting alone, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments including post-effective amendments
and any registration statement filed pursuant to Rule 462(b) under the
Securities Act to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, hereby ratifying and confirming all that said attorney-in-fact or
his substitute, may lawfully do or cause to be done by virtue hereof.
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.
Signature Title Date
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/s/ ROBERT E. PRICE Chairman of the Board August 5, 1998
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Robert E. Price
/s/ GILBERT A. PARTIDA President, Chief Executive Officer and August 5, 1998
- ----------------------------- Director (Principal Executive Officer)
Gilbert A. Partida
/s/ KAREN J. RATCLIFF Executive Vice President and Chief August 5, 1998
- ----------------------------- Financial Officer (Principal Financial
Karen J. Ratcliff Officer and Principal Accounting
Officer)
/s/ RAFAEL BARCENAS Director August 5, 1998
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Rafael Barcenas
/s/ KATHERINE L. HENSLEY Director August 5, 1998
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Katherine L. Hensley
/s/ JEON C. JANKS Director August 5, 1998
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Jeon C. Janks
/s/ LAWRENCE B. KRAUSE Director August 5, 1998
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Lawrence B. Krause
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EXHIBIT INDEX
EXHIBIT PAGE
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4.1 The 1998 Equity Participation Plan of PriceSmart, Inc. --
5.1 Opinion of Latham & Watkins. --
23.1 Consent of Ernst & Young LLP. --
23.2 Consent of Latham & Watkins (included in Exhibit 5.1 --
hereto).
24.1 Power of Attorney (included on signature page hereto). --
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