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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 8, 2000
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PRICESMART, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 5900 33-0628530
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(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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4649 MORENA BOULEVARD
SAN DIEGO, CALIFORNIA 92117
(858) 581-4530
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
NOTICE TO: COPIES TO:
GILBERT A. PARTIDA SCOTT N. WOLFE, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER ROBERT E. BURWELL, ESQ.
PRICESMART, INC. LATHAM & WATKINS
4649 MORENA BOULEVARD 701 B STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92117 SAN DIEGO, CALIFORNIA 92101
(858) 581-4530 (619) 236-1234
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (1) PRICE FEE
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Common Stock, par value $0.0001 per share 25,157 $ 37.625 $946,532 $ 250
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(1) Estimated in accordance with Rule 457(c) solely for purposes of
computing the amount of the registration fee based on the average of the
high and low sales prices of the common stock as reported on the Nasdaq
National Market on May 4, 2000.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
SEC is effective. This prospectus is not an offer to sell these securities and
it is not a solicitation of an offer to buy these securities in any state where
the offer or sale is not permitted.
SUBJECT TO COMPLETION--DATED MAY 8, 2000
PROSPECTUS
25,157 SHARES
PRICESMART, INC.
COMMON STOCK
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This prospectus relates to up to 25,157 shares of our common stock, par
value $0.0001 per share, which may be offered for sale by the selling
stockholder named in this prospectus. The shares of common stock being offered
were previously issued to the selling stockholder. The shares of common stock to
which this prospectus relates may be sold from time to time by the selling
stockholder directly or through one or more broker-dealers, in one or more
transactions on the Nasdaq National Market, in the over-the-counter market, in
negotiated transactions or otherwise, at prices related to the prevailing market
prices or at negotiated prices. We will not receive any of the proceeds from the
sale of the shares of common stock sold by the selling stockholder. We will bear
all expenses of the offering of common stock, except that the selling
stockholder will pay any applicable underwriting fees, discounts or commissions
and transfer taxes, as well as all fees and disbursements of their counsel and
experts.
Our common stock is listed on the Nasdaq National Market under the
symbol "PSMT." On May 5, 2000, the last sale price of our common stock as
reported on the Nasdaq National Market was $37.75.
SEE "RISK FACTORS" BEGINNING ON PAGE 2 FOR FACTORS THAT YOU SHOULD
CONSIDER BEFORE INVESTING IN THE SHARES OF OUR COMMON STOCK.
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These securities have not been approved by the SEC or any state
securities commission, nor have these organizations determined that this
prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is ________, 2000.
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The terms "PriceSmart," "we," "our" and "us" refer to PriceSmart, Inc.,
a Delaware corporation. All references in this prospectus to "common stock"
refer to our common stock, par value $0.0001 per share.
PRICESMART
We own and operate U.S.-style membership shopping warehouses under joint
venture arrangements in Central America and the Caribbean using the trade name
"PriceSmart" (and, in the country of Panama, "PriceCostco"). As of April 13,
2000, there were ten warehouse stores in operation (three in Panama, two each in
the Dominican Republic and El Salvador, and one each in Guatemala, Costa Rica,
and Honduras) of which we own a majority interest. Also, there were five
warehouse stores in operation (four in China and one in Saipan) licensed to and
operated by local business people.
The warehouses sell basic consumer goods with an emphasis on quality,
low prices and efficient operations. By offering low prices on merchandise, the
warehouses seek to generate sufficient sales volumes to operate profitably at
relatively low gross margins. The typical no-frills warehouse-type buildings
range in size from 45,000 to 55,000 square feet and are located in urban areas
to take advantage of dense populations and relatively higher levels of
disposable income. Product selection includes perishable foods and basic
consumer products. The target customers are consumers and small businesses. The
shopping format includes an annual membership fee that varies by market from $20
to $35. Typically, we enter into licensing and technology transfer agreements
with a joint venture company (whose minority stockholders are local business
people) pursuant to which we provide our know-how package, which includes
training and management support, as well as access to our computer software
systems. The license also includes the right to use the "PriceSmart" mark and
other trademarks.
RISK FACTORS
You should carefully consider the following risk factors, in addition to
the other information included in this prospectus, before purchasing our shares
of common stock. Each of these risks could adversely affect our business,
operating results and financial condition, as well as adversely affect the value
of an investment in our common stock.
OUR FINANCIAL PERFORMANCE IS DEPENDENT ON INTERNATIONAL OPERATIONS.
Our financial performance is subject to risks inherent in operating and
expanding our international membership concept. These risks include:
- changes in tariffs and taxes,
- the imposition of governmental controls,
- trade restrictions,
- greater difficulty and costs associated with international sales
and the administration of an international merchandising
business,
- limitations on U.S. company ownership in foreign countries,
- permitting and regulatory compliance,
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- the financial and other capabilities of our business partners
and licensees, and
- general political as well as economic and business conditions.
WE ARE DEPENDENT ON FOREIGN BUSINESS PARTNERS AND LICENSEES.
Several of the risks associated with our international merchandising
business may be within the control (in whole or in part) of our business
partners and licensees or may be affected by the acts or omissions of our
business partners and licensees. Some of our business partners and licensees
have had limited experience operating membership stores that sell consumer
goods. We cannot give you any assurance that our membership store concept will
be implemented effectively or that these business partners and licensees will
effectively help us penetrate their respective markets. In the event one or more
of our business partners or licensees are displeased with their relationship
with us, these business partners or licensees could seek to terminate their
relationships with us or make claims against us alleging that we acted, or
failed to act, in a manner that damaged them. We cannot assure you that a
dissatisfied business partner or licensee would not file litigation against us,
that we would prevail in the litigation or that the litigation would not have a
material adverse affect on our business.
ANY FAILURE BY US TO MANAGE OUR GROWTH COULD ADVERSELY AFFECT OUR BUSINESS.
We began an aggressive growth strategy in fiscal 1999 through the
completion of joint venture agreements in Central America and the Caribbean. As
of April 13, 2000, we have opened five new warehouses in fiscal 2000 and intend
to open five additional warehouses this fiscal year. The success of this
strategy will depend to a significant degree on our ability to (1) expand our
operations through the opening of new warehouses, (2) operate new warehouses on
a profitable basis and (3) maintain positive comparable warehouse net sales.
These new markets may present operational, competitive, regulatory and
merchandising challenges that are similar to, or different from those currently
encountered by us. There can be no assurance that we will be able to adapt our
operations to support these expansion plans or that these new warehouses will be
profitable.
Our ability to open new warehouses on a timely basis will also depend on
a number of factors, some of which may be beyond our control, including our
ability to:
- locate suitable warehouse sites,
- negotiate acceptable lease or acquisition terms,
- construct sites timely, and
- obtain financing in a timely manner and with satisfactory terms.
Our growth strategy also will require us to hire, train and retain
skilled managers and personnel to support our growth, and we may experience
difficulties hiring employees who possess the training and experience necessary
to operate our new warehouses, particularly in foreign markets where language,
education and cultural factors may impose particular challenges. We might not be
able to open the planned number of new warehouses according to our schedule or
continue to attract, develop and retain the personnel necessary to pursue our
growth strategy. Failure to do so could have a material adverse affect on our
business and results of operations.
In addition, we will need to continually evaluate the adequacy of our
existing systems and procedures, including warehouse management, financial and
inventory control and distribution systems.
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Moreover, as we grow, we will need to continually analyze the sufficiency of our
inventory distribution methods and may require additional facilities in order to
support our planned growth. There can be no assurance that we will adequately
anticipate all the changing demands that our expanding operations will impose on
these systems. Our failure to update our internal systems or procedures as
required could have a material adverse affect on our business and results of
operations.
WE FACE SIGNIFICANT COMPETITION.
Our international merchandising businesses compete with exporters,
wholesalers, other membership merchandisers, local retailers and trading
companies in various international markets. If we are unable to successfully
compete with these entities, it could have a material adverse affect on our
business, financial condition and operating results.
A FEW OF OUR STOCKHOLDERS HAVE SUBSTANTIAL CONTROL OVER OUR VOTING STOCK.
As of April 13, 2000, Robert E. Price, who is the Chairman of our Board,
and Sol Price, a significant stockholder of ours and father of Robert E. Price,
beneficially owned approximately 43.5% of our outstanding common stock. As a
result, these stockholders will effectively control the outcome of all matters
submitted to our stockholders for approval, including the election of directors.
In addition, this ownership could discourage the acquisition of our common stock
by potential investors, and could have an anti-takeover effect, possibly
depressing the trading price of our common stock.
THE LOSS OF KEY PERSONNEL COULD HARM OUR BUSINESS.
Given the early stage of development of our business, we depend to a
large extent on the performance of our senior management team and other key
employees for strategic business direction. If we lost the services of any
members of our senior management or other key employees, it could have a
material adverse affect on our business, financial condition and operating
results.
WE ARE SUBJECT TO VOLATILITY IN FOREIGN CURRENCY EXCHANGE.
Through our joint ventures, we conduct international operations
primarily in Central America and the Caribbean, and we are subject to both
economic and political instabilities that cause volatility in foreign currency
exchange. During fiscal 1999, we opened warehouses in three foreign countries
through joint venture arrangements. For fiscal 1999, 28% of our net warehouse
sales were in foreign currencies. This amount is expected to increase
significantly in fiscal 2000 to nearly 70%. We plan to open warehouses in
additional foreign countries that may involve similar economic and political
risks as well as challenges that may be different from those currently
encountered by us. We believe that because our present operations and expansion
plans involve numerous countries and currencies, our exposure from any one
currency devaluation would not significantly affect operating results.
Nonetheless, there can be no assurance that we will not experience a materially
adverse affect on our financial condition as a result of the economic and
political risks of conducting an international merchandising business.
Foreign currencies in most Central American and Caribbean countries have
historically devalued against the U.S. dollar and are expected to continue to
devalue. Managing foreign exchange is critical for operating successfully in
these markets and we manage our risks through a combination of hedging
currencies through non-deliverable forward exchange contracts, or NDFs, and
internal hedging procedures. As of April 13, 2000, we had no NDF's outstanding
as they had expired on April 10, 2000. However, we will continue to purchase
NDF's where necessary to mitigate foreign exchange losses, but due to the
volatility and lack of derivative financial instruments in the countries we
operate in, significant
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risk from unexpected devaluation of local currencies exist. Foreign exchange
transaction losses realized year-to-date through April 13, 2000 (including the
cost of NDF's) was approximately $1,124,000.
YEAR 2000 PROBLEMS COULD DISRUPT OUR BUSINESS.
Many software programs may not recognize calendar dates beginning in the
Year 2000. This problem could cause computers or machines that utilize date
dependent software to either shut down or provide incorrect information. As of
the date of this prospectus, we have not experienced any material Year 2000
problems. However, if we or any company that we conduct business with fails to
mitigate internal or external Year 2000 risks, we may temporarily be unable to
engage in business activities, which could have a material adverse affect on our
business, financial condition and operating results.
OUR FORWARD-LOOKING STATEMENTS MAY PROVE TO BE WRONG.
Some of the information under the caption "Risk Factors" and elsewhere
in this prospectus are forward-looking statements. These forward-looking
statements include, but are not limited to, statements about our plans,
objectives, expectations and intentions, and other statements contained in this
prospectus that are not historical facts. When used in this prospectus, the
words "expects," "anticipates," "intends," "plans," "believes," "seeks,"
"estimates" and similar expressions are generally intended to identify
forward-looking statements. Because these forward-looking statements involve
risks and uncertainties, there are important factors that could cause actual
results to differ materially from those expressed or implied by these
forward-looking statements.
USE OF PROCEEDS
We are registering the shares of our common stock offered by this
prospectus for the account of the selling stockholder identified in the section
of this prospectus entitled "Selling Stockholder." All of the net proceeds from
the sale of our common stock by this prospectus will go to the stockholder who
offers and sells its shares of our common stock. We will not receive any part of
the proceeds from the sale of these securities.
SELLING STOCKHOLDER
Pursuant to an agreement between PriceSmart and Victor E. Mouttet
Limited, a Republic of Trinidad and Tobago company, we agreed to issue 25,157
shares of our common stock to Victor E. Mouttet Limited, the selling
stockholder, as consideration for its sale of all of its shares of PSMT
Trinidad/Tobago Limited, a Republic of Trinidad and Tobago company, to us. We
also agreed to file a registration statement covering the shares issued to the
selling stockholder with the SEC. Because the selling stockholder may sell all
or part of its shares of our common stock under this prospectus and since this
offering is not being underwritten on a firm commitment basis, we cannot
estimate the number and percentage of shares of our common stock that the
selling stockholder will hold at the end of the offering covered by this
prospectus.
The selling stockholder does not have any position, office or other
material relationship with us or any of our affiliates, nor has it had any
position, office or material relationship with us or any of our affiliates
within the past three years. The selling stockholder will not own greater than
one percent of our common stock after this offering.
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PLAN OF DISTRIBUTION
The selling stockholder may from time to time offer and sell its shares
of our common stock offered by this prospectus. We have registered the selling
stockholder's shares for resale to provide it with freely tradable securities.
However, registration does not necessarily mean that the selling stockholder
will offer and sell any of its shares.
Offer and Sale of Shares. The selling stockholder, or its pledgees,
donees, transferees or other successors in interest, may offer and sell their
shares of our common stock in one or more of the following manners:
- on the Nasdaq National Market or other exchanges on which our
common stock is traded at the time of sale,
- in the over-the-counter market or otherwise at prices and at
terms then prevailing or at prices related to the then current
market price, or
- in privately negotiated transactions.
The selling stockholder, or its pledgees, donees, transferees or other
successors in interest, may sell their shares of our common stock in one or more
of the following transactions:
- a block trade in which the broker or dealer will attempt to sell
the shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction,
- a broker or dealer may purchase as principal and resell the
shares for its own account under this prospectus, or
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers.
The selling stockholder may accept and, together with any agent of the
selling stockholder, reject in whole or in part any proposed purchase of the
shares of our common stock offered by this prospectus.
Brokers and Dealers. The selling stockholder may select brokers or
dealers to sell its shares of our common stock. Brokers or dealers of the
selling stockholder may arrange for other brokers or dealers to participate in
selling the shares. The selling stockholder may give the brokers or dealers
commissions or discounts in amounts to be negotiated immediately before any
sale. In connection with these sales, these brokers or dealers, any other
participating brokers or dealers, and some pledgees, donees, transferees and
other successors in interest, may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933. In addition, any
securities covered by this prospectus that qualify for sale pursuant to Rule 144
of the Securities Act of 1933 may be sold under Rule 144 rather than under this
prospectus.
Commissions. The selling stockholder will pay any sales commissions or
other sellers' compensation applicable to these transactions.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended August 31, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
consolidated financial statements are incorporated by reference in reliance on
Ernst & Young LLP's report, given on their authority as experts in accounting
and auditing.
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LEGAL MATTERS
The legality of our common stock offered by this prospectus will be
passed upon for PriceSmart by Latham & Watkins, of San Diego, California.
WHERE TO FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy materials we have filed
with the SEC at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of its public reference room. Our SEC filings also
are available to the public on the SEC's Internet site at www.sec.gov. In
addition, you may obtain a copy of our SEC filings at no cost by writing or
telephoning our General Counsel at:
PriceSmart, Inc.
4649 Morena Boulevard
San Diego, California 92117
(858) 581-4530
The SEC allows us to "incorporate by reference" in this prospectus
information we file with the SEC, which means that we may disclose important
information in this prospectus by referring you to the document that contains
the information. The information incorporated by reference is considered to be a
part of this prospectus, and later information filed with the SEC will update
and supersede this information. PriceSmart incorporates by reference the
documents listed below and any future filings it makes with the SEC under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, until
the offering of securities covered by this prospectus is completed:
- The Annual Report on Form 10-K of PriceSmart for the fiscal year
ended August 31, 1999,
- The Quarterly Report on Form 10-Q of PriceSmart for the quarter
ended November 30, 1999,
- The Quarterly Report on Form 10-Q of PriceSmart for the quarter
ended February 29, 2000,
- The description of our common stock contained in our
Registration Statement on Form 10 filed with the SEC on July 3,
1997, and
- The description of our common stock contained in our Amended
Registration Statement on Form 10 filed with the SEC on
August 13, 1997.
We have filed with the SEC a registration statement on Form S-3 under
the Securities Act of 1933, relating to the securities that may be offered by
this prospectus. This prospectus is a part of that registration statement, but
does not contain all of the information in the registration statement. For more
detail concerning PriceSmart and any securities offered by this prospectus, you
may examine the registration statement and the exhibits filed with it at the
offices of the SEC.
You should rely only on the information provided or incorporated by
reference in this prospectus or in the applicable supplement to this prospectus.
You should not assume that the information in this prospectus and the applicable
supplement is accurate as of any date other than the date on the front cover of
the document.
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We have not authorized any person to make a statement that differs from
what is in this prospectus. If any person does make a statement that differs
from what is in this prospectus, you should not rely on it. This prospectus is
not an offer to sell, nor is it seeking an offer to buy, these securities in any
state where the offer or sale is not permitted. The information in this
prospectus is complete and accurate as of its date, but the information may
change after that date.
TABLE OF CONTENTS
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PAGE
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PriceSmart 2
Risk Factors 2
Use of Proceeds 5
Selling Stockholder 5
Plan of Distribution 6
Experts 7
Legal Matters 7
Where to Find Additional Information 7
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PRICESMART, INC.
25,157 SHARES
COMMON STOCK
PR O S P E C T U S
__________, 2000
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of expenses incurred in
connection with this Registration Statement. All such expenses will be paid by
PriceSmart, Inc. (the "Company").
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SEC Registration Fee ................. $ 250
Printing and Mailing Costs ........... 5,000
Legal Fees and Expenses .............. 15,000
Accounting Fees and Expenses ......... 5,000
Miscellaneous ........................ 4,750
TOTAL ................... $30,000
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All of the above items except the registration fee are estimates.
Item 15. 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 16. Exhibits.
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).
Item 17. Undertakings.
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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.
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 end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(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 this registration statement;
provided, however, that subparagraphs (i) and (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 SEC
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 relating to the securities offered herein, 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.
The undersigned Registrant hereby further undertakes that, for the
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 that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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 existing provisions or otherwise, the Registrant has
been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act of 1933 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
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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 of 1933 and will be
governed by the final adjudication of such issue.
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SIGNATURES
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-3, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereto
duly authorized, in the City of San Diego, State of California, on the 5th day
of May, 2000.
PriceSmart, INC.
By: /S/ GILBERT A. PARTIDA
----------------------------------------
Gilbert A. Partida
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Each person whose signature appears below hereby constitutes and
appoints Gilbert A. Partida his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution for him in any and all capacities,
to sign any and all amendments (including post-effective amendments) to this
Registration Statement, or any registration statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act
of 1933, and to file the same, with exhibits thereto and other documents in
connection therewith or in connection with the registration of the common stock
offered hereby under the Securities Exchange Act of 1934, with the SEC, granting
unto such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary in connection with such
matters and hereby ratifying and confirming all that such attorney-in-fact and
agent or his substitutes may do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ ROBERT E. PRICE Chairman of the Board May 5, 2000
- ------------------------------------
Robert E. Price
/S/ GILBERT A. PARTIDA President, Chief Executive Officer and Director May 5, 2000
- ------------------------------------ (Principal Executive Officer)
Gilbert A. Partida
/S/ ALLAN C. YOUNGBERG Executive Vice President and May 5, 2000
- ------------------------------------ Chief Financial Officer
Allan C. Youngberg (Principal Financial and Accounting Officer)
/S/ RAFAEL E. BARCENAS Director May 5, 2000
- ------------------------------------
Rafael E. Barcenas
</TABLE>
II-3
<PAGE> 15
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ JAMES F. CAHILL Director May 5, 2000
- ------------------------------------
James F. Cahill
/S/ KATHERINE L. HENSLEY Director May 5, 2000
- ------------------------------------
Katherine L. Hensley
/S/ LEON C. JANKS Director May 5, 2000
- ------------------------------------
Leon C. Janks
/S/ LAWRENCE B. KRAUSE Director May 5, 2000
- ------------------------------------
Lawrence B. Krause
</TABLE>
II-4
<PAGE> 16
EXHIBIT INDEX
The following exhibits are filed as part of this Registration Statement
on Form S-3 or are incorporated herein by reference.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
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).
</TABLE>
- ----------------------
* Filed herewith.
<PAGE> 1
EXHIBIT 5.1
[LATHAM & WATKINS LETTERHEAD]
May 8, 2000
PriceSmart, Inc.
4649 Morena Boulevard
San Diego, California 92117
Re: PriceSmart, Inc. Registration Statement on Form S-3 - 25,157 Shares
of Common Stock, Par Value $0.0001 Per Share
Ladies and Gentlemen:
In connection with the registration by PriceSmart, Inc., a Delaware
corporation (the "Company") of 25,157 shares of common stock of the Company, par
value $0.0001 per share (the "Stock"), under the Securities Act of 1933, as
amended, on the Registration Statement on Form S-3 filed or to be filed with the
Securities and Exchange Commission on or about May 8, 2000, 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 Stock, 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.
We are opining herein as to the effect on the subject transaction only
of the General Corporate Law of the State of Delaware, including statutory and
reported decisional law thereunder, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of any other laws.
Subject to the foregoing, it is our opinion that as of the date of this
opinion, the Stock has been duly authorized, validly issued and is fully paid
and nonassessable.
We consent to your filing this opinion as an exhibit to the Registration
Statement and to the reference to our firm contained under the heading "Legal
Matters."
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of PriceSmart, Inc. for
the registration of 25,157 shares of its common stock and to the incorporation
by reference therein of our report dated November 3, 1999, incorporated by
reference in its Annual Report on Form 10-K for the year ended August 31, 1999
filed with the Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
San Diego, California
May 5, 2000
