Exhibit 10.36(b)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of June 3, 2000 (this
"AGREEMENT"), is by and between PSC, S.A., a Panamanian corporation ("INVESTOR")
and PriceSmart, Inc., a Delaware corporation (the "COMPANY").
R E C I T A L S
WHEREAS, the Investor will, pursuant to the terms of the Stock Purchase
Agreement, dated as of June 3, 2000, by and among the Company, the Investor and
the Investor's shareholders (the "PURCHASE AGREEMENT"), receive shares of common
stock, par value $.0001 per share ("Common Stock"), of the Company as
consideration for the sale by Investor to the Company of all of the shares of
PSMT Caribe, Inc., a British Virgin Islands corporation ("PSMT Caribe") held by
Investor; and
WHEREAS, the Company has agreed, as a condition precedent to Investor's
obligations under the Purchase Agreement, to grant the Investor certain
registration rights; and
WHEREAS, the Company and the Investor desire to define the registration
rights of the Investor on the terms and subject to the conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
COMMISSION: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
EXCHANGE ACT: shall mean the Securities Exchange Act of 1934, as
amended;
HOLDER: shall mean the Investor and any permitted assignee of the
Registrable Securities;
PERSON: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
REGISTER, REGISTERED and REGISTRATION: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
REGISTRABLE SECURITIES: shall mean (A) shares of Common Stock owned by
the Investor and (B) any capital stock of the Company issued as a dividend or
other distribution with respect to, or in exchange for or in replacement of the
Common Stock referred to in clause (A);
REGISTRATION EXPENSES: shall mean all expenses incurred by the Company
in compliance with Section 2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company, which shall be paid in any
event by the Company), but not including the fees and expenses of counsel to the
Holders;
SECURITY, SECURITIES: shall have the meaning set forth in Section 2(1)
of the Securities Act;
SECURITIES ACT: shall mean the Securities Act of 1933, as amended; and
SELLING EXPENSES: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders and the fees and expenses of
counsel to the Holders.
SECTION 2. REGISTRATION RIGHTS
(a) REGISTRATION.
The Company, as promptly as practicable after the Closing (as defined
in the Purchase Agreement) but in any event within 20 days following the
Closing, shall file with the Commission a registration statement on Form S-3
(the "INITIAL REGISTRATION STATEMENT"), with respect to the offering and sale or
other disposition of one half of the total of Issued Shares issued to each
Investor rounded up to the next whole share (collectively, the "REGISTERED
ISSUED SHARES"). The balance of the Issued Shares issued to each Investor, which
shall not be covered by such Initial Registration Statement, shall be referred
to herein collectively as the "INITIALLY UNREGISTERED ISSUED SHARES."
Upon the earlier of the following events (each a "TRIGGERING EVENT"):
(i) any time after six months after the Closing if the average closing price of
the Common Stock on the Nasdaq stock market for any 10 day consecutive trading
period after the Closing is less than $35.00; or (ii) one-year anniversary of
the Closing, then the Company as promptly as practicable after the Triggering
Event but in any event within 20 days of the Triggering Event, shall file with
the Commission a registration statement or an amendment to the Initial
Registration Statement, if applicable, with respect to the offering and sale or
other disposition of the Initially Unregistered Issued Shares.
In addition, if, prior to the occurrence of a Triggering Event and the
registration of the Initially Unregistered Issued Shares in accordance with the
preceding paragraph, the Company shall determine to register any of its equity
securities for the account of a selling shareholder (other than a registration
for the 306,748 shares of Common Stock described in Section 4.5 of the Purchase
Agreement and other than a registration in which the Initially Unregistered
Issued Shares may not be properly included pursuant to the rules and regulations
of the Commission), the Company will include all the Initially Unregistered
Issued Shares in such registration.
The registration statements referred to in this Section 2(a) are
collectively referred to in this Agreement as the "REGISTRATION STATEMENT".
(b) ASSIGNMENT.
The registration rights set forth in this Section 2 may not be
assigned, in whole or in part, to any transferee of Registrable Securities
without the prior written consent of the Company, provided, however, that such
consent shall not be unreasonably withheld and, provided, further, no consent
shall be required for any transfer to an affiliate of Investor, including an
affiliate of one of Investor's shareholders and, provided, further, that any
such assignee of the registration rights agrees to be bound by the terms and
conditions of this Agreement.
(c) RESTRICTIONS ON REGISTRATIONS.
If at any time or from time to time after the effective date of the
Registration Statement, the Company notifies the Holders in writing of the
existence of a Potential Material Event (as defined below), the Holders shall
not offer or sell any Registrable Securities or engage in any other transaction
involving or relating to Registrable Securities, from the time of the giving of
written notice with respect to a Potential Material Event until the Holders
receive written notice from the Company that such Potential Material Event
either has been disclosed to the public or no longer constitutes a Potential
Material Event. If a Potential Material Event shall occur prior to the date the
Registration Statement is filed, then notwithstanding Section 2(a) above, the
Company's obligation to file the Registration Statement shall be delayed without
penalty until such Potential Material Event either has been disclosed to the
public or no longer constitutes a Potential Material Event. A "Potential
Material Event" shall mean the Company's Board of Directors has determined, in
good faith and in its reasonable business judgment in consultation with legal
counsel to the Company that: (i) the Registration Statement would require the
public disclosure of material non-public information concerning any pending or
ongoing material transaction or negotiations involving the Company which, in the
opinion of outside legal counsel to the Company, is not yet required to be
publicly disclosed, and (ii) such disclosure would materially interfere with
such transaction or negotiations or have a material adverse effect on the
Company. In no event shall the suspension of the Registration Statement (or the
permissible delay in filing a Registration Statement) exceed 90 days as a result
of a Potential Material Event. The Company represents that, as of the date
hereof, no Potential Material Event exists.
(d) Expenses.
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Section 2 shall be borne by the
Company, and all Selling Expenses shall be borne by the Holders of the
securities so registered pro rata on the basis of the number of their shares so
registered.
(e) Procedures.
In the case of each registration effected by the Company pursuant to
this Section 2, the Company will keep the Holders, as applicable, advised in
writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will:
(i) keep such registration effective until such time as the
Holders have completed the distribution described in the registration statement
relating thereto;
(ii) furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to time may
reasonably request;
(iii) notify each Holder of Registrable Securities covered by
such registration at any time when a prospectus relating thereto is required to
be delivered under the Securities Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(iv) list the Registrable Securities on the automated
quotation system and/or securities exchanges upon which the Common Stock is
listed;
(v) use its best efforts to register or qualify the
Registrable Securities under the securities or blue sky laws of those
jurisdictions within the United States which the Investor reasonably request,
except that the Company shall not be required to file a general consent to
service of process or to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to taxation in
any jurisdiction; and
(vi) use its best efforts to comply with the Securities Act,
the Exchange Act and all applicable rules and regulations of the Commission.
(f) INDEMNIFICATION.
(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each person
controlling each of the Holders, with respect to each registration which has
been effected pursuant to this Section 2 against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or the Exchange Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each of the Holders, each of its officers,
directors and partners, and each person controlling each of the Holders for any
legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission based upon written information
furnished to the Company by the Holders or underwriter and stated to be
specifically for use therein.
(ii) Each of the Holders will, if Registrable Securities held
by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each person who controls the Company, each other
stockholder that includes shares of Common Stock in such registration statement
(each, an "OTHER STOCKHOLDER") and each of their officers, directors, and
partners, and each person controlling such Other Stockholder against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document made by such Holder in writing, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements by such Holder therein not misleading, and will
reimburse the Company and such Other Stockholders, directors, officers,
partners, persons, or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein; PROVIDED, HOWEVER, that the
obligations of each of the Holders hereunder shall be limited to an amount equal
to the net proceeds to such Holder of securities sold as contemplated herein.
(iii) Each party entitled to indemnification under this
Section 2(e) (the "INDEMNIFIED PARTY") shall give notice to the party required
to provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that
counsel for the Indemnifying Party, who shall conduct the defense of such
claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld) and the
Indemnified Party may participate in such defense at such party's expense
(unless the Indemnified Party shall have reasonably concluded that there may
be a conflict of interest between the Indemnifying Party and the Indemnified
Party in such action, in which case the fees and expenses of counsel shall be
at the expense of the Indemnifying Party), and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 2 unless
the Indemnifying Party is materially prejudiced thereby. No Indemnifying
Party, in the defense of any such claim or litigation shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the
claim in question as an Indemnifying Party may reasonably request in writing
and as shall be reasonably required in connection with the defense of such
claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(e)
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue (or alleged untrue) statement of a material fact or the
omission (or alleged omission) to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(v) The foregoing indemnity agreement of the Company and
Holders is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage made in a preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement in question becomes effective or the amended prospectus
filed with the Commission pursuant to Commission Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity or contribution agreement shall not inure to the
benefit of any Holder if a copy of the Final Prospectus was furnished to the
Holder and was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act.
(g) INFORMATION BY THE HOLDERS. Each of the Holders holding
securities included in any registration shall furnish to the Company such
information regarding such Holder and the distribution proposed by such
Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Section 2.
(h) INFORMATION BY THE HOLDERS.
(i) Each of the Holders shall cooperate as reasonably
requested by the Company with the Company in connection with the preparation of
the registration statement, and for so long as the Company is obligated to file
and keep effective the registration statement, shall provide to the Company, in
writing, for use in the registration statement, all such information regarding
such Holder and its plan of distribution of the Registrable Securities as may be
reasonably necessary to enable the Company to prepare the registration
statement and prospectus covering the Registrable Securities, to maintain the
currency and effectiveness thereof and otherwise to comply with all
applicable requirements of law in connection therewith.
(ii) During such time as such Holder may be engaged in a
distribution of the Registrable Securities, such seller shall comply with
Regulation M promulgated under the Exchange Act and pursuant thereto it shall,
among other things; (x) not engage in any stabilization activity in connection
with the securities of the Company in contravention of such regulation; (y)
distribute the Registrable Securities under the registration statement solely in
the manner described in the registration statement; (z) cease distribution of
such Registrable Securities pursuant to such registration statement upon receipt
of written notice from the Company that the prospectus covering the Registrable
Securities contains any untrue statement of a material fact or omits a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(i) RULE 144 REPORTING.
With a view to making available the benefits of certain rules and regulations of
the Commission which may permit the sale of restricted securities to the public
without registration, the Company agrees to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("RULE 144");
(ii) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to
such reporting requirements; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 and of the Securities Act
and the Exchange Act, a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents so filed as the Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing the Holder to sell any such securities without registration.
SECTION 3. MISCELLANEOUS
(a) DIRECTLY OR INDIRECTLY. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, U.S.A. (without giving
effect to the choice of law principles thereof) which are applicable to
contracts made and to be performed entirely within such State.
(c) SECTION HEADINGS. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part hereof.
(d) NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be mailed,
telecopied, sent by overnight courier or delivered to the party to receive such
notice at the address specified on the signature page hereto or at such other
address as any party may designate by giving ten (10) days advance written
notice to all other parties. All such notices and communications shall, when
mailed, telecopied or sent by overnight courier, be effective when deposited in
the mails, delivered to the courier, or transmitted by telecopier with
confirmation of transmission, respectively.
(e) REPRODUCTION OF DOCUMENTS. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Investor
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Investor may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investor in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties.
(g) ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement constitutes
the entire understanding of the parties hereto and supersedes all prior and
contemporaneous understandings and agreements among such parties with respect to
subject matter hereof. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, with (and only with) the written consent
of the Company and the Investor holding a majority of the then outstanding
Registrable Securities.
(h) SEVERABILITY. In the event that any part or parts of this Agreement
shall be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not affect the remaining
provisions of this Agreement, which shall remain in full force and effect.
(i) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(j) EXPENSES. Each of the parties shall pay its own fees and expenses
incurred in entering into this Agreement. If any arbitration or other action at
law or equity is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
(k) ARBITRATION. All disputes and claims concerning the validity,
interpretation, performance, termination and/or breach of this Agreement
("Dispute(s)") shall be referred for final resolution to arbitration in Miami,
Florida, U.S.A. under the UNCITRAL Rules ("Rules") as administered by the
American Arbitration Association. The parties hereby agree that arbitration
hereunder shall be the parties' exclusive remedy and that the arbitration
decision and award, if any, shall be final, binding upon, and enforceable
against, the parties, and may be confirmed by the judgment of a court of
competent jurisdiction. In the event of any conflict between the Rules and this
Section, the provisions of this Section shall govern.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PRICESMART:
PriceSmart, Inc.,
a Delaware corporation
By: /s/ Kurt A. May
----------------
Name: Kurt A. May
-----------
Title: Chief Operating Officer
------------------------
Address for Notice:
4649 Morena Boulevard
San Diego, CA 92117
Telecopy: (858) 581-4707
Attn:
----------------------------------
INVESTOR:
PSC, S.A.,
a Panamanian corporation
By: /s/ Edgar Zurcher
------------------
Name: Edgar Zurcher
-------------
Title: President
---------
Address for Notice:
P.O. Box 4066
San Jose 1000 Costa Rica
Attn: E. Zurcher
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]