AS FILED WITH THE COMMISSION ON JANUARY 9, 1997
REGISTRATION NO. 333-________
============================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
PRIME RETAIL, INC.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
Maryland 52-1836258
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
100 East Pratt Street
Nineteenth Floor
Baltimore, Maryland 21202
- --------------------------------------- ----------
(Address of principal executive offices) (zip code)
Prime Retail, Inc. 1994 Stock Incentive Plan
Prime Retail, Inc. 1995 Stock Incentive Plan
Consulting Agreement dated July 3, 1996 between
Prime Retail, L.P. and Marvin Traub Associates, Inc.
----------------------------------------------------
(Full title of the Plans)
C. Alan Schroeder
Senior Vice President and General Counsel
Prime Retail, Inc.
100 East Pratt Street
Nineteenth Floor
Baltimore, Maryland 21202
---------------------------------------
(Name and address of agent for service)
(410) 234-0782
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
===================================================================================================================================
<CAPTION>
<S> <C> <C> <C> <C>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED (1) REGISTERED (1) PRICE PER SHARE (2) AGGREGATE OFFERING PRICE (2) REGISTRATION FEE
- ----------------------------- ------------------ ------------------------ ---------------------------- ------------------
Common Stock, $.01 par value 1,215,000 shares $12.5625 $15,263,437.50 $4,265.28
- ------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------
<FN>
(1) This is the total number of shares which may be offered based on the shares reserved under the Plans on the filing date of
this Registration Statement. Pursuant to Rule 416, this Registration Statement shall also be deemed to cover any additional
shares offered under the Plans in order to reflect share splits, share dividends, mergers and other capital changes.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely for the purpose of calculating the amount of the
registration fee based upon the average of the high and low sales prices reported per share of the Common Stock on the Nasdaq
National Market on January 7, 1997, which was $12.5625.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not being filed with or included in this Form S-8 (by
incorporation by reference or otherwise) in accordance with the rules and
regulations of the Securities and Exchange Commission (the "SEC"). These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Prime Retail, Inc. (the "Registrant") hereby incorporates the following
documents herein by reference:
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended December 31, 1995, as amended by Form 10-K/A-1 dated May 3, 1996, filed
with the SEC pursuant to Section 13(a) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act");
(b) All other reports filed by the Registrant pursuant to Sections
13(a) or 15(d) of the Exchange Act on or after December 31, 1995; and
(c) The description of the Registrant's Common Stock, $.01 par value
per share (the "Common Stock"), contained in the Registrant's registration
statement on Form 8-A filed pursuant to Section 12(g) of the Exchange Act,
including any subsequent amendment or any report or other filing with the SEC
updating such description.
In addition, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated herein by
reference and to be a part hereof from the date 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 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters relating to the validity of the shares
of Common Stock offered hereby are being passed upon by Winston & Strawn,
Chicago, Illinois. The Honorable James R. Thompson, a director of the
Registrant, is a partner and the Chairman of the Executive Committee of Winston
& Strawn.
-2-
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Articles of
Incorporation, as amended, and By-laws, as amended, authorize the Registrant to
indemnify its present and former directors and officers and to pay or reimburse
expenses for such individuals in advance of the final disposition of a
proceeding to the maximum extent permitted from time to time under Maryland law.
The Maryland General Corporation Law under which the Registrant is organized
provides that indemnification of a person who is a party, or threatened to be
made a party, to legal proceedings by reason of the fact that such a person is
or was a director, officer, employee or agent of a corporation, or is or was
serving as a director, officer, employee or agent of a corporation or other firm
at the request of a corporation, against expenses, judgments, fines and amounts
paid in settlement, is mandatory in certain circumstances and permissive in
others, subject to authorization by the board of directors, so long as a person
seeking indemnification acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation and, with
respect to criminal proceedings, had no reason to believe that his or her
conduct was unlawful.
The Registrant's officers and directors are also indemnified
pursuant to the partnership agreement governing Prime Retail, L.P. and their
respective employment agreements.
The Registrant has purchased an insurance policy which
purports to insure the officers and directors of the Registrant against certain
liabilities incurred by them in the discharge of their functions as such
officers and directors except for liabilities resulting from their own
malfeasance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 Prime Retail, Inc. 1994 Stock Incentive Plan (incorporated by
reference to the same titled exhibit in the Registrant's registration
statement on Form S-11 (Registration No. 33-68536))
4.2 Prime Retail, Inc. 1995 Stock Incentive Plan (incorporated by reference
to the same titled exhibit in the Registrant's registration statement
on Form S-11 (Registration No. 333-1666))
4.3 Consulting Agreement dated July 3, 1996 between Prime Retail, L.P. and
Marvin Traub Associates, Inc.
4.4 Form of certificate for the Registrant's Common Stock, par value $.01
per share (incorporated by reference to the same titled exhibit
in the Registrant's Registration Statement on Form S-11
(Registration No. 33-68536))
5.1 Opinion of Winston & Strawn as to the legality of the securities
being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Winston & Strawn (included in their opinion filed as
Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page hereof)
-3-
<PAGE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of 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;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply the information required to be included in a
post-effective amendment by such 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
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 Registrant hereby further 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 Section 15(d) of the
Exchange Act (and, where applicable, each filing of the annual report of the
employee benefit plans 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 SEC 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.
-4-
<PAGE>
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 Baltimore, Maryland on the 9th day of January, 1997.
PRIME RETAIL, INC.
By: /s/ C. Alan Schroeder
----------------------------------------
C. Alan Schroeder
Senior Vice President and General Counsel
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Abraham Rosenthal, William H.
Carpenter, Jr., Robert P. Mulreaney and C. Alan Schroeder as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including posteffective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on January 9, 1997 by the following
persons in the capacities indicated:
Signature Title
--------- -------
/s/ Michael W. Reschke Chairman of the Board and Director
- -----------------------------
Michael W. Reschke
/s/ Abraham Rosenthal Chief Executive Officer (Principal
- ----------------------------- Executive Officer) and Director
Abraham Rosenthal
/s/ William H. Carpenter, Jr. President, Chief Operating
- ------------------------------ Officer and Director
William H. Carpenter, Jr.
/s/ Robert P. Mulreaney Executive Vice President --
- ------------------------------ Chief Financial Officer and Treasurer
Robert P. Mulreaney (Principal Financial Officer and
Principal Accounting Officer)
/s/ Terence C. Golden Director
- ------------------------------
Terence C. Golden
/s/ Kenneth A. Randall Director
- ------------------------------
Kenneth A. Randall
/s/ James R. Thompson Director
- ------------------------------
James R. Thompson
/s/ Marvin S. Traub Director
- ------------------------------
Marvin S. Traub
-5-
<PAGE>
EXHIBIT INDEX
-------------
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- ------ ----------- ------
4.1 Prime Retail, Inc. 1994 Stock Incentive Plan (incorporated by
reference to the same titled exhibit in the Registrant's
registration statement on Form S-11 (Registration No. 33-68536))
4.2 Prime Retail, Inc. 1995 Stock Incentive Plan (incorporated by
reference to the same titled exhibit in the Registrant's
registration statement on Form S-11 (Registration No. 333-1666))
4.3 Consulting Agreement dated July 3, 1996 between Prime Retail, L.P.
and Marvin Traub Associates, Inc.
4.4 Form of certificate for the Registrant's Common Stock, par value
$.01 per share (incorporated by reference to the same titled
exhibit in the Registrant's Registration Statement on Form S-11
(Registration No. 33-68536))
5.1 Opinion of Winston & Strawn as to the legality of the securities
being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Winston & Strawn (included in their opinion filed as
Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page hereof)
-6-
EXHIBIT 4.3
July 3, 1996
Marvin Traub Associates, Inc.
535 Madison Avenue
3rd Floor
New York, New York 10022
RE: CONSULTING AGREEMENT
Gentlemen:
On November 1, 1993, The Prime Group, Inc. (the "Company") and Marvin
Traub Associates, Inc. ("MTA") entered into a letter agreement of that date
pursuant to which MTA agreed to provide certain consulting and advisory services
on behalf of the Company in connection with the Company's general marketing
concepts, shopping center development activities and retail tenant relations
(the "1993 Agreement"). Since the date of the 1993 Agreement, the retail
division of the Company formed Prime Retail, L.P. ("Prime"), a separate public
entity, to engage in retail development activities. The purpose of this letter
is to confirm that all of the Company's rights and obligations under the 1993
Agreement have been assigned to Prime, and that the services currently provided
by MTA pursuant to the 1993 Agreement are provided on behalf of Prime and shall
continue to be provided on behalf of Prime pursuant to the following terms and
conditions specified herein. Upon full execution of this letter agreement by
Prime and MTA, this letter agreement shall supersede the 1993 Agreement in its
entirety.
1. Engagement. Prime retains MTA to perform, and MTA hereby agrees to
perform, consulting and advisory services for Prime during the Term (as
hereinafter defined) in connection with Prime's general marketing concepts,
shopping center development activities and retail tenant relations. In addition
to the foregoing, Prime may seek to engage MTA on behalf of itself and its
affiliates in respect of additional real estate activities both in the United
States and abroad on such terms and conditions as the parties shall mutually
agree.
Such consulting and advisory services shall be performed at such times
(to be consistent with other contractual commitments of MTA) and at such
locations as shall be mutually satisfactory to MTA and Prime. MTA is being
engaged as an independent contractor and will not be an agent of Prime, and,
except as provided in Paragraph 5 hereof, directors, officers and employees of
MTA shall act solely on behalf of MTA and shall not be directors, officers,
employees or agents of Prime.
-7-
<PAGE>
Marvin Traub Associates, Inc.
July 3, 1996
Page 2
The services to be performed by MTA hereunder shall be performed by
Marvin S. Traub.
2. Cash Compensation and Expenses. Prime shall pay to MTA $5,000 per
month for its services during the Term. Prime will not withhold any wage or
employment taxes in respect to such compensation, but will issue MTA information
reports relating thereto, as required by applicable law and regulations.
MTA also will be reimbursed by Prime for all reasonable business and
travel expenses incurred or paid by MTA during the Term in the course of MTA's
performance of services for Prime hereunder, promptly following submission of
customary documentation therefor.
3. Stock Options. Upon Marvin S. Traub's initial election as a director
of Prime Retail, Inc., Prime Retail, Inc. granted to MTA options to acquire
15,000 shares of common stock of Prime Retail, Inc. at a per share exercise
price equal to the initial public offering price of shares of Prime Retail
Inc.'s common stock (the "First Grant"). The options granted pursuant to the
First Grant are exercisable at any time or from time to time from the date of
grant until ninety (90) days after Marvin S. Traub ceases to be a director of
Prime Retail, Inc. In addition to the foregoing, Prime Retail, Inc. shall grant
to MTA options to acquire an additional 30,000 shares of common stock of Prime
Retail, Inc. at the close of business on July 3, 1996 at a per share exercise
price equal to the "Fair Market Value" per share of common stock of Prime
Retail, Inc. as determined in accordance with Section 2.13(b) of the Prime
Retail, Inc. 1995 Stock Incentive Plan (the "Second Grant"). The options granted
pursuant to the Second Grant shall be exercisable at any time or from time to
time from the date of grant until ninety (90) days after Marvin S. Traub ceases
to be a director of Prime Retail, Inc.
4. Term. The term (the "Term") of MTA's consultancy hereunder shall
commence on the date hereof and shall end at such time as Marvin S. Traub shall
cease to serve as a director of Prime Retail, Inc.
5. Directorship. Marvin S. Traub agrees to continue to serve as a
member of the board of directors of Prime Retail, Inc.
-8-
<PAGE>
Marvin Traub Associates, Inc.
July 3, 1996
Page 3
6. Confidential Information. During the Term, MTA shall, and shall
cause its directors, officers and employees to, keep secret and retain in
strictest confidence, and shall not use for its benefit or the benefit of
others, nor permit its directors, officers or employees to use for their benefit
or the benefit of others, any and all confidential information relating to Prime
disclosed to MTA in the course of its consultancy, including, without
limitation, trade secrets, customer lists and other secret or confidential
aspects of Prime's business, and
MTA shall not disclose such information, nor permit its directors, officers or
employees to disclose such information to anyone outside Prime or any of its
affiliates, except in the performance by MTA of its services hereunder or as
required by law in connection with any judicial or administrative proceeding or
inquiry (provided prior written notice thereof is given by MTA to Prime) or with
Prime's prior written consent, unless such information is known generally to the
public or the trade through sources other than MTA's (or its directors',
officers' or employees') unauthorized disclosure.
7. Entire Agreement. This Agreement contains the entire Agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all other agreements (including the 1993 Agreement) and
understandings with respect thereto, oral or otherwise.
8. Amendment. No amendment, modification or waiver of this agreement or
any of its provisions shall be binding unless made in writing and signed by both
parties hereto, except in the case of a waiver or consent, which shall be signed
by the party against which enforcement is sought.
9. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely within such state.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of when which when taken together shall constitute one and
the same instrument.
-9-
<PAGE>
Marvin Traub Associates, Inc.
July 3, 1996
Page 4
If the foregoing accurately reflects the agreement between us, please
confirm your approval and acceptance of the terms and conditions of the
agreement set forth herein by signing the enclosed copy of this letter and
returning it to the undersigned.
Very truly yours,
PRIME RETAIL, L.P.
By: Prime Retail, Inc.
By: /s/ C. Alan Schroeder
----------------------------
C. Alan Schroeder
Senior Vice President -
General Counsel and Secretary
Agreed and Accepted as of
the Date Written Above:
MARVIN TRAUB ASSOCIATES, INC.
By: /s/ Marvin S. Traub
-------------------
Marvin S. Traub
Chairman
/s/ Marvin S. Traub
- ---------------------
Marvin S. Traub
j:\legal\jills\po\mta.agr
-10-
EXHIBIT 5.1
January 8, 1997
Prime Retail, Inc.
100 East Pratt Street
Nineteenth Floor
Baltimore, Maryland 21202
Re: Registration Statement on Form S-8 of Prime
Retail, Inc. (the "Registration Statement")
Ladies and Gentlemen:
We have acted as special counsel for Prime Retail, Inc., a
Maryland corporation (the "Company"), in connection with the registration on
Form S-8 of the offer and sale of (i) up to 1,185,000 shares (the "Incentive
Option Shares") of the Company's Common Stock, par value $.01 per share ("Common
Stock"), issuable upon exercise of certain stock options ("Incentive Options")
that have been or may be issued pursuant to the Prime Retail, Inc. 1994 Stock
Incentive Plan and 1995 Stock Incentive Plan (collectively, the "Plans") and
(ii) an additional 30,000 shares of Common Stock (the "Consulting Option Shares"
and, together with the Incentive Option Shares, the "Shares") issuable upon
exercise of certain stock options (the "Consulting Options" and, collectively
with Incentive Options, the "Options") that have been issued pursuant to that
certain Consulting Agreement dated July 3, 1996 (the "Agreement") between Prime
Retail, L.P. and Marvin Traub Associates, Inc.
This opinion is delivered in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Act").
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of: (i) the Registration Statement, as filed with the Securities
and Exchange Commission (the "Commission"); (ii) the Amended and Restated
Articles of Incorporation of the Company, as currently in effect; (iii) the
By-Laws of the Company, as currently in effect; (iv) the Plans and the Agreement
and (v) resolutions of the Board of Directors of the Company relating to, among
other things, the issuance of the Shares pursuant to the Plans and the Agreement
and the filing of the Registration Statement. We have also examined such other
documents as we have deemed necessary or appropriate as a basis for the opinion
set forth below.
-11-
<PAGE>
Prime Retail, Inc.
January 8, 1997
Page 12
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents. We have also assumed
that the Board of Directors of the Company, or a duly authorized committee
thereof, will have approved the issuance of each Option pursuant to the Plans
prior to the issuance thereof. As to any facts material to this opinion which we
did not independently establish or verify, we have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others.
Based upon and subject to the foregoing, we are of the opinion
that all Shares issued pursuant to Options granted under the Plans and the
Agreement will be, upon payment of the specified exercise price therefor,
legally issued, fully paid and non-assessable shares of Common Stock.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving such consent,
we do not concede that we are experts within the meaning of the Act or the rules
and regulations thereunder or that this consent is required by Section 7 of the
Act.
Very truly yours,
/s/ Winston & Strawn
-12-
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Prime Retail Stock Incentive Plans of our report dated
January 30, 1996, with respect to the consolidated financial statements of Prime
Retail, Inc., included in its Annual Report (Form 10-K/A-1) for the year ended
December 31, 1995 and our reports dated January 30, 1996 and November 14, 1996,
with respect to the statements of revenue and certain expenses of Grove City
Factory Shops and the JMJ Acquired Properties, respectively, for the year ended
December 31, 1995, included in the Prime Retail, Inc. Current Report on Form
8-K/A dated December 31, 1996, both filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Baltimore, Maryland
January 8, 1997
-13-
