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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
COST-U-LESS, INC.
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(Exact name of Registrant as specified in its charter)
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Washington 91-1615590
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
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12410 S.E. 32nd Street
Bellevue, Washington 98005
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of If this form relates to the registration of a
a class of securities pursuant to Section class of securities pursuant to Section 12(g)
12(b) of the Exchange Act and is effective of the Exchange Act and is effective pursuant
pursuant to General Instruction A.(c), to General Instruction A.(d), please check the
please check the following box. [_] following box. [X]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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None
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $0.001 par value per share
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(Title of Class)
Page 1 of 4
Exhibit Index on Page 4
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
For a description of the Common Stock being registered, reference is made
to the section entitled "Description of Capital Stock" included in the
Prospectus (the "Prospectus") dated June 23, 1998 contained in the Registrant's
Amendment No.3 to the Registration Statement on Form S-1, File No.333-52459,
filed with the Securities and Exchange Commission on June 23, 1998 (the
"Registration Statement"). A copy of pages 49-51 of the Prospectus are attached
as Exhibit 3 to this filing pursuant to Rule 12b-23 under the Securities
Exchange Act of 1934, as amended.
ITEM 2. EXHIBITS
The following exhibits are filed as a part of this Registration Statement:
Exhibit No. Description
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1 Amended and Restated Articles of Incorporation of the
Registrant. (Incorporated by reference to Exhibit 3.1
to the Registration Statement.)
2 Amended and Restated Bylaws of the Registrant.
(Incorporated by reference to Exhibit 3.2 to the
Registration Statement.)
3 Pages 49-51 of the Prospectus
Page 2 of 4
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Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the Registrant has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
COST-U-LESS, INC.
/s/ Allan Youngberg
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Vice President - Chief Financial Officer,
Secretary and Treasurer
Dated: 6/29/98
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Page 3 of 4
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EXHIBIT INDEX
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Exhibit No. Description Sequential
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1 Amended and Restated Articles of Incorporation of the Registrant. --
(Incorporated by reference to Exhibit 3.1 to the Registration
Statement.)
2 Amended and Bylaws of the Registrant. (Incorporated by reference to --
Exhibit 3.2 to the Registration Statement.)
3 Pages 49-51 of the Prospectus Filed
herewith
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Page 4 of 4
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EXHIBIT 3
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 25,000,000 shares of
Common Stock, $0.001 par value per share, and 2,000,000 shares of Preferred
Stock, $0.001 par value per share. The following summary description of the
Company's capital stock is qualified in its entirety by reference to the
Restated Articles and the Company's Restated Bylaws (the "Restated Bylaws"),
copies of which are filed as exhibits to the Registration Statement of which
this Prospectus forms a part.
COMMON STOCK
As of May 1, 1998, the Common Stock was held of record by 83 persons and
entities, and a total of 1,999,961 shares were outstanding or committed for
issuance. In addition, 41 persons held options to purchase up to 454,819
shares of Common Stock.
Holders of Common Stock are entitled to one vote per share on all matters
submitted to a vote of shareholders. Subject to preferences that may be
applicable to any outstanding shares of Preferred Stock, the holders of Common
Stock are entitled to receive ratably such dividends, if any, as may be
declared by the Board of Directors out of funds legally available for the
payment of dividends. See "Dividend Policy." In the event of a liquidation,
dissolution or winding up of the Company, the holders of Common Stock are
entitled to share ratably in all assets remaining after payment of liabilities
and liquidation preferences of any outstanding shares of Preferred Stock.
Holders of Common Stock have no preemptive rights and no rights to convert
their Common Stock into any other securities, and there are no redemption
provisions with respect to such shares. All the outstanding shares of Common
Stock are fully paid and nonassessable. The rights, preferences and privileges
of holders of Common Stock are subject to, and may be adversely affected by,
the rights of holders of shares of any series of Preferred Stock that the
Company may designate and issue in the future.
ROSE WARRANT
In 1991, the Company issued to Michael J. Rose and Kendrick Chamberlin, for
nominal consideration, a warrant to purchase an aggregate of 29,518 shares of
Common Stock at an exercise price of $2.37 per share (the "Rose Warrant"). In
1992, Mr. Rose acquired Mr. Chamberlin's share of the Rose Warrant. The Rose
Warrant is currently exercisable and expires in 2001. The Rose Warrant has
conversion rights and rights in the event of a reclassification of the
Company's Common Stock.
REPRESENTATIVE'S WARRANT
The Company has agreed to sell to the Representative or its designees, for
nominal consideration, a warrant (the "Representative's Warrant") to purchase
up to 160,000 shares of the Company's Common Stock at an exercise price equal
to 120% of the public offering price. The Representative's Warrant is
exercisable for a period of four years, beginning one year from the date of
this Prospectus. At any time during this period, the holder of the
Representative's Warrant shall have the right to require the Company, at the
Company's expense (including reasonable expenses incurred in connection with
Blue Sky qualifications), to prepare and file a registration statement so as
to permit the public offering of the Common Stock underlying the
Representative's Warrant, such registration statement to be kept effective for
a period of up to 120 days. See "Underwriting."
KULA FUND WARRANT
Upon completion of the Offering, the Company expects to appoint a
representative of CDC to the Board of Directors and to sell to the Kula Fund,
for nominal consideration, a warrant to purchase 117,000 shares of Common
Stock at an exercise price equal to 120% of the public offering price, such
warrant to be exercisable for a period of four years. See "Certain
Transactions" and "Underwriting."
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PREFERRED STOCK
The Board of Directors has the authority to issue up to 2,000,000 shares of
Preferred Stock in one or more series and to fix the powers, designations,
preferences and relative, participating, optional or other rights thereof,
including dividend rights, conversion rights, voting rights, redemption terms,
liquidation preferences and the number of shares constituting each such
series, without any further vote or action by the Company's shareholders. No
shares of Preferred Stock have been issued. The issuance of Preferred Stock
could have one or more of the following effects: (i) restrict any Common Stock
dividends if Preferred Stock dividends have not been paid, (ii) dilute the
voting power and equity interest of holders of Common Stock to the extent that
any series of Preferred Stock has voting rights or is convertible into Common
Stock or (iii) prevent current holders of Common Stock from participating in
the Company's assets upon liquidation until any liquidation preferences
granted to holders of Preferred Stock are satisfied. In addition, the issuance
of Preferred Stock may, under certain circumstances, have the effect of
discouraging a change in control of the Company by, for example, granting
voting rights to holders of Preferred Stock that require approval by the
separate vote of the holders of Preferred Stock for any amendment to the
Restated Articles or any reorganization, consolidation or merger (or other
similar transaction involving the Company). As a result, the issuance of
Preferred Stock may discourage bids for the Company's Common Stock at a
premium over the market price therefor and could have a material adverse
effect on the market value of the Common Stock. The Board of Directors does
not currently intend to issue any shares of Preferred Stock. See "Risk
Factors--Antitakeover Considerations."
WASHINGTON ANTITAKEOVER STATUTE
Washington law imposes restrictions on certain transactions between a
corporation and certain significant shareholders. Chapter 23B.19 of the
Washington Business Corporation Act (the "WBCA") prohibits a "target
corporation," with certain exceptions, from engaging in certain significant
business transactions with a person or group of persons that beneficially owns
10% or more of the voting securities of the target corporation (an "Acquiring
Person") for a period of five years after such acquisition, unless the
transaction or acquisition of shares is approved by a majority of the members
of the target corporation's board of directors prior to the time of
acquisition. Such prohibited transactions include, among other things, a
merger or consolidation with, disposition of assets to, or issuance or
redemption of stock to or from, the Acquiring Person, termination of 5% or
more of the employees of the target corporation as a result of the Acquiring
Person's acquisition of 10% or more of the shares or allowing the Acquiring
Person to receive any disproportionate benefit as a shareholder. After the
five-year period, a "significant business transaction" may take place as long
as it complies with certain "fair price" provisions of the statute. A
corporation may not "opt out" of this statute. This provision may have the
effect of delaying, deterring or preventing a change in control of the
Company. See "Risk Factors--Antitakeover Considerations."
CERTAIN PROVISIONS IN RESTATED ARTICLES
The Restated Articles provide for the division of the Company's Board of
Directors into three classes, as nearly equal in number as possible, each for
a three-year term, with one class being elected each year by the Company's
shareholders. See "Management--Directors, Director Nominees, Executive
Officers and Key Employees." Directors may be removed only for cause and only
by a vote of not less than two-thirds of the shares of the Company's capital
stock entitled to vote on an election of the director whose removal is sought.
The Restated Articles require that certain business combinations (including
a merger, share exchange or the sale, lease, exchange, mortgage, pledge,
transfer or other disposition of a substantial part of the Company's assets)
be approved by the holders of not less than two-thirds of the outstanding
shares, unless such business combination shall have been approved by a
majority of Continuing Directors (defined as those individuals who were
members of the Board of Directors on May 11, 1998 or were elected thereafter
on the recommendation of a majority of the Continuing Directors), in which
case the affirmative vote required shall be a majority of the outstanding
shares.
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Under the Restated Articles, the shareholders may call a special meeting
only upon the request of holders of at least 25% of the outstanding shares.
The Restated Articles also provide that changes to certain provisions of the
Articles of Incorporation, including those regarding amendment of certain
provisions of the Restated Bylaws or Restated Articles, the classified Board
of Directors, special voting provisions for business combinations and special
meetings of shareholders, must be approved by the holders of not less than
two-thirds of the outstanding shares.
It is possible that these provisions in the Restated Articles may have the
effect of delaying, deterring or preventing a change in control of the
Company.
DIRECTOR AND OFFICER INDEMNIFICATION AND LIABILITY
The Restated Articles include a provision that limits the liability of the
Company's directors to the fullest extent permitted by the WBCA as it
currently exists or as it may be amended in the future. Consequently, subject
to the WBCA, no person shall be liable to the Company or its shareholders for
monetary damages resulting from such person's conduct as a director of the
Company. Amendments to the Restated Articles may not adversely affect any
right of a director of the Company with respect to acts or omissions occurring
prior to such amendment. Section 23B.08.320 of the WBCA provides that the
Restated Articles may not limit any director's liability for acts or omissions
involving intentional misconduct or knowing violations of law, unlawful
distributions or transactions from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. In addition, Washington law provides for broad indemnification by
the Company of its officers and directors. The Restated Bylaws implement this
indemnification to the fullest extent permitted by law. Insofar as the
indemnification for liabilities arising under the Securities Act may be
permitted to directors or officers of the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services L.L.C.
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