EXHIBIT 10.23
PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is made this 28th day of July,
1998, between Cost-U-Less Inc. (the "Company"), a Washington corporation and
Kula Fund Limited (the "Purchaser"), a Vanuatu registered company.
RECITALS
A. The Company is proposing to sell shares of its Common Stock (the
"Common Stock") in an initial public offering (the "Public Offering") as set
forth in Amendment No. 3 to Registration Statement on Form S-1 as filed with the
Securities and Exchange Commission (the "SEC") on June 23, 1998 and subsequent
amendments to such registration statement filed with the SEC to and including
the date of this Agreement (the "Registration Statement"). The Registration
Statement is currently being reviewed by the SEC and the Company contemplates
conducting the Public Offering upon the effectiveness of the Registration
Statement.
B. The Company desires to sell to the Purchaser and the Purchaser desires
to purchase from the Company 160,000 shares of Common Stock in a transaction
exempt from registration under the Securities Act of 1933, as amended (the "1933
Act") pursuant to Regulation S under such 1933 Act and to consummate such
transaction simultaneously with the closing of the Public Offering.
C. The Company also desires to sell to the Purchaser for consideration of
$100 a warrant to purchase 117,000 shares of Common Stock on the terms and
conditions set forth in the form of Warrant attached hereto as Exhibit A (the
"Warrant").
D. The Company has executed the Agreement concurrently with the
underwriting agreement contemplated in connection with the Public Offering.
AGREEMENT
In consideration of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
1. Purchase and Sale of Shares
1.1 Purchase and Sale
On the basis of the representations, warranties and agreements herein
contained, but subject to the conditions herein set forth, the Company agrees to
issue and sell to the Purchaser and the Purchaser agrees to purchase from the
Company, (a) 160,000 shares of Common Stock (the "Shares") at a purchase price
per share equal to the price the Common Stock is initially offered to the public
in the Public Offering, and (b) the Warrant at a price of $100.
1.2 Closing
Delivery of the definitive certificates for the Shares shall be made
against payment of the purchase price therefor by the Purchaser by certified or
official bank check payable to the order of the Company or by wire transfer of
funds to the account of the Company at the date and time of the closing of the
public offering as contemplated in the underwriting agreement between the
Company and the representatives of the underwriters (the "Closing" and the
"Closing Date"). Delivery of the Warrant shall be made against payment of the
price therefor at the Closing.
2. Representations and Warranties of the Company
The Company hereby represents and warrants to the Purchaser as follows:
2.1 Existence and Qualification
The Company is a corporation duly organized, validly existing and
authorized to transact business in the corporate form under the laws of the
State of Washington. The Company is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction where standing to so
qualify or be in good standing as a foreign corporation could reasonably be
expected to have a material adverse effect on it business, operations,
properties or condition (financial or otherwise), or its ability to perform its
obligations under this Agreement.
2.2 Power and Authority
The Company has all corporate power and authority necessary to own,
operate or lease its properties and assets and to conduct its business as now
conducted by it. The Company has all corporate power and authority necessary to
issue the Shares and the Warrant and to execute, deliver, and perform its
obligations under this Agreement under the Warrant.
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2.3 Corporate Action
The Company has taken all corporate action required to authorize the
issuance of the Shares and the Warrant and the execution, delivery and
performance of the Agreement and of the Warrant. The Company has duly executed
and delivered the Agreement. The Warrant and the certificates representing the
Shares have been duly and properly authorized.
2.4 Consents; Governmental Approvals
No consent or approval of any person, firm or corporation, and no
consent, license, approval or authorization of, or registration, filing or
declaration with, any governmental authority is required to be obtained or made
by or on behalf of the Company in connection with the issuance and sale of the
Shares or the Warrant, the execution, delivery or performance of the Agreement
or the completion of the transactions contemplated thereby, except for (i) the
approval of the Board of Directors of the Company, and (ii) filings with the SEC
and Nasdaq.
2.5 Binding Effect
The Agreement is, and the Warrant when executed will be, a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally or limitations on the availability of
equitable remedies and except as rights to indemnification and contribution may
be limited under federal and state securities laws.
2.6 Absence of Conflicts
The issuance of the Shares and the Warrant and the execution, delivery
and performance of the Agreement by the Company do not and will not (i) conflict
with or violate any provision of its Articles of Incorporation or Bylaws, (ii)
conflict with or result in a violation, breach or default by the Company under
(x) any provision of any existing statute, law, rule or regulation binding on it
or any order, judgment, award, decree, license or authorization of any court or
governmental instrumentality, authority, bureau or agency binding on it, or (y)
any material provision of any mortgage, indenture, lease or other contract,
agreement, instrument or undertaking to which it is a party or will be a party
immediately after the Closing, or by which or to which it or any of its property
or assets is now or immediately after the Closing will be bound or subject, or
(iii) result in the creation or imposition of any lien, encumbrance or other
charge on any of its properties or assets.
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2.7 No Defaults
None of the Company or its subsidiaries is, or immediately after the
Closing will be, in default under or in violation of (i) its Articles of
Incorporation or Bylaws, (ii) any agreement or instrument to which it is a party
relating to its indebtedness for borrowed money, (iii) any other agreement or
instrument to which it is a party, (iv) any statute, rule, writ, injunction,
judgment, decree, order or regulation of any court or governmental authority
having jurisdiction over it, or (v) any license, permit, certification or
approval requirement of any customer, supplier, governmental authority or other
person, in any way that could reasonably be expected to have a material adverse
effect on the business, operations, properties, assets or condition (financial
or otherwise) of the Company or the Company's ability to perform its obligations
under any of such agreements.
2.8 Capitalization and Stockholders
The entire authorized, issued and outstanding capital stock of the
Company was as set forth in the Registration Statement, on and as of the dates
indicated therein. Immediately after the Closing, all outstanding shares of
capital stock will be duly and validly issued and, except as described in the
Registration Statement, there will be no options, warrants or other rights
outstanding involving the issuance of any additional shares of capital stock of
the Company.
2.9 Registration Statement
The Company has furnished to the Purchaser a true and correct copy of
the Registration Statement. The Registration Statement, at the time it was
filed with the SEC, did not contain any untrue statement of a material fact, or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Registration Statement when filed with the
SEC complied in all material respects with the applicable requirements of the
1933 Act.
2.10 Financial Statements
The financial statements of the Company included in the Registration
Statement comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except as
may be otherwise indicated in such financial statements or the notes thereto)
and fairly present in all material
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respects the financial position of the Company as of the dates thereof and the
results of operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments).
2.11 No Material Adverse Change
Since March 31, 1998, there has been no material adverse change in the
businesses, properties, prospects, operations or financial condition of the
Company and its Subsidiaries, except as otherwise disclosed or reflected in the
Registration Statement, or otherwise disclosed in writing to the Purchasers on
or before the Closing Date.
2.12 Brokers
The Company represents and warrants that, except with respect to the
employment by the Company of Cruttenden Roth Incorporated as an agent and the
employment of Streamline Capital Corporation as financial adviser, it has
employed no brokers, agents or finders in carrying on the negotiations relating
to this Agreement or to the transactions herein contemplated.
2.13 Status of Shares
The Shares, upon issuance by the Company following receipt of the
consideration provided for herein and satisfaction of the other conditions set
forth herein, will be duly authorized, fully paid and nonassessable. The shares
issuable on exercise of the Warrant will be, when issued in accordance with the
terms of the Warrant, duly authorized, fully paid and nonassessable.
2.14 Securities Compliance
(a) The Company is a Domestic Issuer (as that term is defined in Rule
902 of Regulation S of the 1933 Act).
(b) Except with respect to securities offered and sold in the Public
Offering, neither the Company nor any of its affiliates, nor any person acting
on its or their behalf, has made or will make:
(i) any offer to sell, or any solicitation of an offer to buy, any of
Shares or Warrants to a U.S. Person or a person in the United States, or
(ii) any sale of the Shares or Warrants unless, at the time the buy
order was or will have been originated, the purchaser was outside the
United
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States or the Company, its affiliates, and any person acting on its or
their behalf reasonably believe that the purchaser is outside the United
States.
(c) During the period in which the Shares or Warrants are offered for
sale, neither it nor any of its affiliates, nor any person acting on its or
their behalf has made or will make any Directed Selling Efforts (as that term is
defined in Rule 902 of Regulation S of the 1933 Act), or has taken or will take
any action that would cause the exclusion from registration afforded by
Regulation S to be unavailable for the offer and sale of the Shares or the
Warrants.
(d) The Company is not an open-end investment company or unit
investment trust registered or required to be registered or closed-end
investment company required to be registered, but not registered, under the
United States Investment Company Act of 1940.
(e) The Company will refuse to register any transfer of the Shares or
the Warrant if such transfer is not made in accordance with the legend set forth
in Section 3.1(f) hereof.
3. Representations and Warranties of the Purchaser
The Purchaser represents and warrants to the Company as follows:
3.1 Status of the Purchaser; Regulation S
(a) The Purchaser acknowledges that the Shares and Warrant have not
been and will not be registered under the 1933 Act, or any applicable state
securities law, and therefore constitute "restricted securities" within the
meaning of Rule 144 thereof, and that the contemplated issuance may not be
offered or sold in the United States or for the account or benefit of U.S.
Persons (as described below) in reliance on an exclusion from such registration
pursuant to Regulation S of the 1933 Act;
(b) The Purchaser understands that if it decides to offer, sell or
otherwise transfer any of the Shares, the Warrant or the shares issuable on
exercise of the Warrant, it will not offer, sell or otherwise transfer any of
such securities, directly or indirectly, unless (i) the disposition is to the
Company; (ii) the disposition is made outside the United States in compliance
with the requirements of Rule 903 or Rule 904 of Regulation S, if available (or
such successor rule or regulation as then in effect); (iii) there is in effect a
registration statement under the 1933 Act covering such proposed disposition and
such disposition is made in accordance with such registration statement and any
applicable state securities laws; (iv) the disposition
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complies in all respects with Rule 144 or Rule 145 under the 1933 Act and any
applicable state securities laws, or (v) in a transaction that does not require
registration under the 1933 Act and any applicable state securities laws and it
has, prior to such disposition, furnished to the Company an opinion of counsel
of recognized standing reasonably satisfactory to the Company;
(c) The Purchaser will not engage in hedging transactions with regard
to the Shares or Warrant during the one year "distribution compliance period"
beginning on the date of the Closing unless in compliance with the 1933 Act;
(d) The Purchaser (i) is not a U.S. Person (as such term is defined in
Regulation S) and is not acquiring the Shares or Warrant for the account or
benefit of a U.S. Person and (ii) was not offered, did not execute and did not
deliver this Agreement while in the United States;
(e) The Shares and Warrant are being acquired for investment purposes,
not as a nominee or agent, and not with a view to any resale, distribution or
other disposition of the Shares or Warrant, of any part thereof, in violation of
the 1933 Act or applicable state securities laws;
(f) The Purchaser is an "accredited investor" as that term is defined
in Rule (501(a) under the 1933 Act, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Shares and Warrant,
has so evaluated the merits and risks of such investment and is able to bear the
economic risk of such investment and, at the present time, is able to afford a
complete loss of such investment.
(g) The Purchaser understands that upon the original issuance thereof,
and until such time as the same is no longer required under applicable
requirements of the 1933 Act or applicable state securities laws, certificates
representing the Shares, and all certificates issued in exchange therefore or in
substitution thereof, shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY,
(B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, IF AVAILABLE, (C) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN
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COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, (D) IN A TRANSACTION
THAT COMPLIES IN ALL RESPECTS WITH THE REQUIREMENTS OF RULE 144 OR RULE 145
UNDER THE SECURITIES ACT, IF AVAILABLE, AND IN COMPLIANCE WITH ANY STATE
SECURITIES LAWS, (E) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS AND,
PRIOR TO SUCH DISPOSITION, THE HOLDER HAS FURNISHED TO THE COMPANY AN
OPINION OF COUNSEL OF RECOGNIZED STANDING REASONABLY SATISFACTORY TO THE
COMPANY.
THE HOLDER HEREOF MAY NOT ENGAGE IN ANY HEDGING TRANSACTIONS WITH
RESPECT TO THE SECURITIES EVIDENCED HEREBY FOR A PERIOD OF ONE YEAR FROM
THE DATE OF ORIGINAL ISSUANCE UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
(i) The Purchaser acknowledges that the Company will refuse to
register any transfer of the Shares or Warrant if such transfer is not made in
accordance with the legend set forth in subparagraph (g) above.
3.2 Authorization and Execution
The purchase of the Shares and Warrant to be acquired hereunder has
been duly and properly authorized by the Purchaser by all necessary action and
the Agreement have been duly executed and delivered by it and neither the
purchase of the Shares and the Warrant to be acquired hereunder nor the
execution and performance of the Agreement conflicts with or violates its
operating agreement or any law, regulation or court order applicable to it or
any other agreement to which it is subject.
3.3 The Purchaser's Investigation
The Purchaser has made such examination, review and investigation of
facts and circumstances necessary to evaluate the purchase of the Shares and
Warrant to be acquired hereunder as it has deemed necessary or appropriate and
has made its own investment determination and analysis based upon such
information as the Purchaser deemed sufficient to enter into this Agreement and
not based on any statements or representations by the Company.
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3.4 Organization
The Purchaser is duly organized, validly existing and in good standing
under the laws of Vanuatu. The Purchaser has all requisite power and authority
to own and lease its properties and to carry on its business as presently
conducted except where a lack of such power would not reasonably be expected to
have a material adverse effect upon the financial condition, business, or
results of operations of the Purchaser. The Purchaser has all the power and
authority necessary to execute, deliver and perform its obligations under the
Agreement.
3.5 Consents; Governmental Approvals
No consent or approval of any person, firm or corporation, and no
consent, license, approval or authorization of, or registration, filing or
declaration with, any governmental authority is required to be obtained or made
by or on behalf of the Purchaser in connection with the purchase of the Shares
and Warrant, the execution, delivery or performance by the Purchaser of any of
the Agreements or the completion of the transactions contemplated thereby.
3.6 Binding Effect
The Agreement is a legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally or limitations on the availability of equitable
remedies and except as rights to indemnification and contribution may be limited
under federal and state securities laws.
4. Conditions to Obligations of the Purchaser
The obligation of the Purchaser to purchase Shares and Warrant
hereunder on the Closing Date shall be subject to the satisfaction of each of
the following conditions precedent on the Closing Date:
4.1 No Governmental Proceeding or Litigation
At the Closing Date, no order, injunction, decree or judgment of any
court or administrative agency shall be in effect which restrains or prohibits
the transactions contemplated hereby, and no suit, action, investigation,
inquiry or proceeding by any governmental body, or legal or administrative
proceeding by any governmental body shall have been instituted, or threatened in
writing, which questions the validity or legality of the transactions
contemplated hereby.
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4.2 Additional Documents
The Purchaser shall have received all such agreements, documents,
instruments, approvals, certificates, legal opinions and information as the
Purchaser shall reasonably request in connection with this Agreement, the
Shares, the Warrant and the transactions herein and therein contemplated, all of
which shall be in form and in substance reasonably satisfactory to the
Purchaser.
4.3 Public Offering
The closing of the Public Offering shall have occurred.
5. Conditions to the Company's Obligations
The obligations of the Company to consummate the sale of the Shares and the
Warrant shall be subject to the satisfaction, on or before the Closing Date, of
the following conditions:
5.1 No Governmental Proceeding or Litigation
At the Closing Date, no order, injunction, decree or judgment of any
court or administrative agency shall be in effect which restrains or prohibits
the transactions contemplated hereby, and no suit, action, investigation,
inquiry or proceeding by any governmental body, or legal or administrative
proceeding by any governmental body shall have been instituted, or threatened in
writing, which questions the validity or legality of the transactions
contemplated hereby.
5.2 Additional Documents
The Company shall have received all such agreements, documents,
instruments, approvals, certificates, legal opinions and information as the
Company shall reasonably request in connection with this Agreement, the Shares,
the Warrant and the transactions herein and therein contemplated, all of which
shall be in form and in substance reasonably satisfactory to the Company and its
counsel.
5.3 Public Offering
The closing of the Public Offering shall have occurred.
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6. Survival and Indemnification
6.1 Survival of Agreements
The representations and warranties of the Company set forth in Section
2 and of the Purchaser set forth in Section 3 hereof shall survive the Closing
until the second anniversary of the date of this Agreement.
6.2 Indemnification by the Company
The Company shall indemnify and hold harmless the Purchaser from and
against any and all Losses suffered or incurred by the Purchaser as a result of
the breach or incorrectness of any representation and warranty of the Company
set forth in Section 2 of this Agreement. The Purchaser shall promptly notify
the Company in writing of the occurrence of any event, or of its discovery of
any facts, which in the Purchaser's opinion entitle or may entitle it to
indemnification hereunder. The Purchaser's failure to do so shall not preclude
it from seeking indemnification hereunder from the Company unless such failure
has materially prejudiced the Company's ability to defend as provided herein.
With respect to any threatened or asserted claims of third parties, the Company
shall have the right to defend such claims by counsel of their choosing and to
direct or control the defense and settlement thereof. The Purchaser shall
cooperate in all reasonable respects with such counsel. In no event shall the
indemnification obligations of the Company exceed the aggregate sale price of
the Shares sold by the Company pursuant to this Agreement, plus reasonable legal
fees and expenses.
6.3 Indemnification by the Purchaser
The Purchaser shall indemnify and hold harmless the Company from and
against any and all Losses suffered or incurred by the Company as a result of
the breach or incorrectness of any representation and warranty of the Purchaser
set forth in Section 3 of this Agreement. The Company shall promptly notify the
Purchaser in writing of the occurrence of any event, or of its discovery of any
facts, which in the Company's opinion entitle or may entitle it to
indemnification hereunder. The Company's failure to do so shall not preclude it
from seeking indemnification hereunder from the Purchaser unless such failure
has materially prejudiced the Purchaser's ability to defend as provided herein.
With respect to any threatened or asserted claims of third parties, the
Purchaser shall have the right to defend such claims by counsel of its choosing
and to direct or control the defense and settlement thereof. The Company shall
cooperate in all reasonable respects with such counsel. In no event shall the
indemnification obligations of the Purchaser exceed the
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aggregate purchase price of the Shares purchased by the Purchaser pursuant to
this Agreement.
7. Termination
This Agreement shall be terminated and of no further force and effect upon
(a) the mutual agreement of the Company and the Purchaser or (b) the failure of
the Closing to occur hereunder by July 31, 1998.
8. Miscellaneous
8.1 No Waiver; Modifications in Writing
(a) No failure or delay on the part of the Company or the Purchaser in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
the Purchaser at law or in equity. No waiver of or consent to any departure by
the Company or the Purchaser from any provision of this Agreement shall be
effective unless in writing and signed by the party entitled to the benefit
thereof. No amendment, modification or termination of any provision of this
Agreement shall be effective unless in writing and signed by or on behalf of the
Company and the Purchaser. Any amendment, supplement or modification of or to
any of this Agreement, any waiver of any provision of this Agreement, and any
consent to any departure from the terms of any provision of this Agreement,
shall be effective only in the specific instance and for the specific purpose
for which made or given.
8.2 Notices
All notices and demands provided for hereunder shall be in writing, ad
shall be given by registered or certified mail, return receipt requested,
telecopy, courier service or personal delivery, and, if to the Purchaser,
addressed to the Purchaser at:
Kula Fund Limited
2nd Floor, Law House
Kumul Highway
PO Box 166
Port Vila, Vanuatu
Attention: Liam Cully
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or to such other address as the Purchaser may designate to the Company in
writing and, if to the Company, addressed to the Company at:
Cost-U-Less, Inc.
12410 S.E. 32nd Street
Bellevue, Washington 98005
Attention: Michael J. Rose
or to such other address as the Company may designate in writing. All such
notices and demands shall be deemed given when received.
8.3 Execution in Counterparts
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.
8.4 Binding Effect; Assignment
The rights of the Purchaser or the Company under this Agreement may
not be assigned to any other Person except with the prior written consent of the
other parties hereto. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement, and
their respective successors and permitted assigns. This Agreement shall be
binding upon the Company and the Purchaser, and their respective successors and
permitted assigns.
8.5 GOVERNING LAW
This Agreement shall be deemed to be a contract made under the laws of
the State of Washington, and for all purposes shall be construed in accordance
with the laws of said state, without regard to principles of conflicts of laws.
8.6 Severability of Provisions
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
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8.7 Headings
The Articles and Section headings used or contained in this Agreement
are for convenience of reference only and shall not affect the construction of
this Agreement.
8.8 No Reliance
Each party hereto acknowledges that it has obtained separate advice
with respect to the legal, tax and accounting consequences of the transactions
contemplated by this Agreement, and that it has neither sought nor relied upon
any such advice from any other party hereto or its Affiliates.
8.9 Entire Agreement
This Agreement and agreements executed contemporaneously herewith
constitute the entire agreement among the parties with respect to the purchase
and sale of the Shares and the Warrant to be acquired by the Purchaser
hereunder, and, as of the date hereof, there are no promises or undertakings
with respect thereto relative to the subject matter hereof not expressly set
forth or referred to herein.
8.10 Further Assurances
Each of the Company and the Purchaser will execute and deliver or
cause to be executed and delivered such further instruments and do or cause to
be done such further acts as may be reasonably necessary to carry out its
obligations under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
COST-U-LESS, INC.
By: /s/ MICHAEL J. ROSE
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Name: Michael J. Rose
Title: President
KULA FUND LIMITED
By: /s/ ASHLEY EMBERSON-BAIN
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Name: Ashley Emberson Bain
Title: Managing Director
Pacific Capital Partners Limited
General Manager, Kula Fund Limited
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