-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WBJmfaqcV8O1mybtX7cHhkR/ifrkoG49Vw+44780SZ2qCNZ5Ko9POMMBkdK5k2M/ ZvF/5pz4s39g1RHpmxu/rg== 0000907303-99-000022.txt : 19990831 0000907303-99-000022.hdr.sgml : 19990831 ACCESSION NUMBER: 0000907303-99-000022 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19990830 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990830 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COSTCO COMPANIES INC CENTRAL INDEX KEY: 0000909832 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-VARIETY STORES [5331] IRS NUMBER: 330572969 STATE OF INCORPORATION: CA FISCAL YEAR END: 0830 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-04355 FILM NUMBER: 99702917 BUSINESS ADDRESS: STREET 1: 999 LAKE DRIVE CITY: ISSAQUAH STATE: WA ZIP: 98027- BUSINESS PHONE: (206)-313-8100 MAIL ADDRESS: STREET 1: 999 LAKE DRIVE CITY: ISSAQUAD STATE: WA ZIP: 98027 FORMER COMPANY: FORMER CONFORMED NAME: PRICE/COSTCO INC DATE OF NAME CHANGE: 19930728 8-K 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): August 30, 1999 COSTCO WHOLESALE CORPORATION (Exact name of registrant as specified in its charter) Washington 0-20355-99 91-1223280 (State or other jurisdiction (Commission File No.) (IRS Employer of incorporation) Identification No.) 999 Lake Drive, Issaquah, Washington 98027 (Address of principal executive office) (425) 313-8100 (Registrant's telephone number including area code) Item 5. Other Events Reorganization and Reincorporation in Washington On August 30, 1999, Costco Companies, Inc., a Delaware corporation ("CCI") completed a corporate reorganization by merging itself with and into Costco Wholesale Corporation, a Washington corporation and wholly owned subsidiary of CCI (the "Company"), with the Company resulting as the surviving entity (the "Reorganization"). The primary effects of the Reorganization are that: (i) the Company is now the new parent company of the organization which includes The Price Company, a California corporation and former wholly owned subsidiary of CCI; (ii) the shareholders of CCI, who approved the Reorganization at CCI's last annual shareholders' meeting, are now shareholders of the Company; and (iii) the state of legal domicile of the parent company of the organization has changed from Delaware to Washington. The Reorganization will not result in any change in the Company's business, management, employees, fiscal year, assets or liabilities, location of any of the facilities (including corporate headquarters) and will not result in any relocation of management or other employees. Pursuant to the Plan and Agreement of Merger between the Company and CCI, each share of CCI common stock has been automatically converted into one share of common stock of the Company. Shareholders are not required to exchange their existing stock certificates representing shares of CCI common stock for stock certificates representing shares of common stock of the Company. The Company has succeeded to CCI as obligor on CCI's previously issued Zero Coupon Convertible Subordinated Notes due 2017 and CCI's 7-1/8% Senior Notes due 2005 (together, the "Notes") by execution of supplemental indentures with the trustee for the Notes. Effective August 30, 1999, CCI will no longer file reports with the Securities and Exchange Commission (the "Commission") under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"). Effective as of such date, the Company, which succeeds to the reporting obligations of CCI under the Exchange Act pursuant to Rule 12g-3 thereunder, will file reports with the Commission under the Exchange Act. The outstanding securities of the Company are registered under Section 12(g) of the Exchange Act, and the Company's common stock will trade on the National Tier of the Nasdaq Stock Market under the symbol "COST". Item 7. Financial Statements and Exhibits (c) Exhibits Set forth below is a list of exhibits included as part of this Current Report. Exhibit Number Description of Exhibit 2.1 Plan and Agreement of Merger between Costco Companies, Inc. and Costco Wholesale Corporation, dated August 27, 1999. 3.1 Amended and Restated Articles of Incorporation of Costco Wholesale Corporation. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. COSTCO WHOLESALE CORPORATION By: /s/ Richard A. Galanti Richard A. Galanti Executive Vice President and Chief Financial Officer EXHIBIT INDEX Exhibit Number Description of Exhibit 2.1 Plan and Agreement of Merger between Costco Companies, Inc. and Costco Wholesale Corporation, dated August 27, 1999. 3.1 Amended and Restated Articles of Incorporation of Costco Wholesale Corporation. EX-2.1 2 EXHIBIT 2.1 PLAN AND AGREEMENT OF MERGER BETWEEN COSTCO WHOLESALE CORPORATION AND COSTCO COMPANIES, INC. This Plan and Agreement of Merger (this "Agreement") is entered into this 27th day of August, 1999, by and between Costco Wholesale Corporation, a Washington corporation (the "Surviving Corporation"), and Costco Companies, Inc., a Delaware corporation ("CCI"). The Surviving Corporation and CCI are sometimes referred to jointly as the "Constituent Corporations." RECITALS A. Each of the Constituent Corporations are corporations organized and existing under the laws of the respective states as indicated in the first paragraph of this Agreement. B. The shareholders and directors of each of the Constituent Corporations have deemed it advisable for the mutual benefit of the Constituent Corporations and their respective shareholders that CCI be merged into the Surviving Corporation pursuant to the provisions of the Washington Business Corporation Act, Title 23B of the Revised Code of Washington and the Delaware General Corporation Law (the "Merger"). C. It is intended that the Merger shall qualify as a tax-free reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended. NOW, THEREFORE, in accordance with the laws of the states of Washington and Delaware, the Constituent Corporations agree that, subject to the following terms and conditions, (i) CCI shall be merged into the Surviving Corporation, (ii) the Surviving Corporation shall continue to be governed by the laws of the state of Washington, and (iii) the terms of the Merger, and the mode of carrying them into effect, shall be as follows: ARTICLE I ARTICLES OF SURVIVING CORPORATION The Articles of Incorporation of CWC as in effect immediately prior to the Effective Time of the Merger shall constitute the "Articles" of the Surviving Corporation within the meaning of Section 23B.01.400(1) of the Washington Business Corporation Act and Section 104 of the Delaware General Corporation Law. ARTICLE II APPOINTMENT OF AGENT FOR SERVICE OF PROCESS Pursuant to Section 252(d) of the Delaware General Corporation Law, the Surviving Corporation irrevocably appoints the Secretary of State of Delaware to accept service of process in any proceeding to enforce against the Surviving Corporation any obligation of CCI's as well as for enforcement of any obligation of the Surviving Corporation arising from the merger. The Delaware Secretary of State shall mail a copy of such process to Costco Wholesale Corporation, Attn: Legal Department, 999 Lake Drive, Issaquah, WA 98027. ARTICLE III CONVERSION OF SHARES CCI Shares. At the Effective Time of the Merger each outstanding share of the common stock of CCI shall automatically convert to one share of common stock of Costco Wholesale Corporation. It will not be necessary for shareholders of CCI to exchange their existing stock certificates for stock certificates of the Surviving Corporation. Surviving Corporation Shares. At the Effective Time of the Merger each outstanding share of the common stock of the Surviving Corporation held by CCI immediately prior to the Effective Time shall be automatically canceled and returned to the status of authorized but unissued shares. ARTICLE IV BYLAWS The Bylaws of the Surviving Corporation shall be the governing Bylaws. ARTICLE V DIRECTORS AND OFFICERS The directors and officers of CCI shall be the directors and officers of the Surviving Corporation. ARTICLE VI EFFECT OF THE MERGER The effect of the Merger shall be as provided by the applicable provisions of the laws of Washington and Delaware. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time of the Merger: the separate existence of CCI shall cease; the Surviving Corporation shall possess all assets and property of every description, and every interest therein, wherever located, and the rights, privileges, immunities, powers, franchises, and authority of a public as well as a private nature, of all of the Constituent Corporations, all obligations belonging to or due any of the Constituent Corporations shall be vested in and become the obligations of, the Surviving Corporation without further act or deed; title to any real estate or any interest therein vested in any of the Constituent Corporations shall be vested in and become the obligations of the Surviving Corporation without further act or deed; title to any real estate or any interest therein shall not revert or in any way be impaired by reason of the Merger; all rights of creditors and all liens upon any property of any of the Constituent Corporations shall be preserved unimpaired; and the Surviving Corporation shall be liable for all the obligations of the Constituent Corporations and any claim existing, or action or proceeding pending, by or against any of the Constituent Corporations may be prosecuted to judgment with right of appeal, as if the Merger had not taken place. If at any time after the Effective Time of the Merger the Surviving Corporation shall consider it to be advisable that any further conveyances, agreements, documents, instruments, and assurances of law or any other things are necessary or desirable to vest, perfect, confirm, or record in the Surviving Corporation the title to any property, rights, privileges, powers, and franchises of the Constituent Corporations or otherwise to carry out the provisions of this Agreement, the proper directors and officers of the Constituent Corporations last in office shall execute and deliver, upon the Surviving Corporation's request, any and all proper conveyances, agreements, documents, instruments, and assurances of law, and do all things necessary or proper to vest, perfect, or confirm title to such property, rights, privileges, powers, and title to such property, rights, privileges, powers, and franchises in the Surviving Corporation, and otherwise to carry out the provisions of this Agreement. ARTICLE VII EFFECTIVE TIME OF THE MERGER As used in this Agreement, the "Effective Time of the Merger" shall mean the time at which executed counterparts of this Agreement or conformed copies thereof, together with duly executed Certificates or Articles of Merger have been duly filed by the Constituent Corporations in the office of the Washington Secretary of State pursuant to Section 23B.1 1.050 of the Washington Business Corporation Act and the Office of the Delaware Secretary of State pursuant to Section 252 of the Delaware General Corporation Law, or at such time thereafter as is provided in such Certificate or Articles of Merger. ARTICLE VIII TERMINATION This Agreement may be terminated and the Merger abandoned by mutual consent of the directors of the Constituent Corporations at any time prior to the Effective Time of the Merger. ARTICLE IX NO THIRD PARTY BENEFICIARIES Except as otherwise specifically provided herein, nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person, firm, or corporation, other than the Constituent Corporations and their respective shareholders, any rights or remedies under or by reason of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Plan and Agreement of Merger to be executed as of the date first above written. COSTCO WHOLESALE CORPORATION ("CWC"), a Washington corporation By /s/ James D. Sinegal James D. Sinegal, President ATTEST: By /s/ Richard J. Olin Richard J. Olin, Assistant Secretary COSTCO WHOLESALE CORPORATION ("CWC"), a Delaware corporation By /s/ James D. Sinegal James D. Sinegal, President and CEO ATTEST: By /s/ Richard J. Olin Richard J. Olin, Assistant Secretary EX-3.1 3 AMENDMENDED AND RESTATED ARTICLES OF INCORPORATION OF COSTCO WHOLESALE CORPORATION ARTICLE I The name of this corporation is: COSTCO WHOLESALE CORPORATION ARTICLE II 2.1 Classes. The total number of shares of all classes of stock which this corporation shall have authority to issue is one billion (1,000,000,000), consisting of: (a) Nine hundred million (900,000,000) shares of common stock, the par value of each of which is $0.01 (the "Common Stock"). (b) One hundred million (100,000,000) shares of preferred stock, the par value of each of which is $0.01 (the "Preferred Stock"). 2.2 Preferred Stock. The preferences, limitations and relative rights of the Preferred Stock are undesignated. The board of directors is authorized to designate one or more series within the Preferred Stock, and the designation and number of shares within each series, and shall determine the preferences, limitations, and relative rights of any shares of Preferred Stock, or of any series of Preferred Stock, before issuance of any shares of that class or series. The board of directors is authorized to amend these Articles as provided in RCW 23B.06.020 to effect the designation of rights of any series of Preferred Stock. ARTICLE III 3.1 No Preemptive Rights. The shareholders of this corporation have no preemptive rights to acquire additional shares of this corporation. 3.2 No Cumulative Voting. The right to cumulate votes in the election of directors shall not exist with respect to shares of stock of this corporation. 3.3 Special Meetings of Shareholders. The shareholders of this corporation shall have no right to call a special meeting of the shareholders of this corporation for any purpose or purposes and special meetings of shareholders of this corporation may only be called by a majority of the board of directors or the Chairman, the President, any Executive Vice President or the Secretary of this corporation or shareholders owning aggregate at least 10% of all votes entitled to be cast on any issue proposed to be considered at the proposed special meeting. ARTICLE IV The number of directors which shall constitute the whole board of directors of this corporation shall be fixed by, or in the manner provided in the bylaws of this corporation, as the same may be amended from time to time. ARTICLE V The board of directors shall be divided into three classes: Class I, Class II, and Class III. Such classes shall be as nearly equal in number of directors as possible. Each director shall serve for a term ending at the third annual shareholders' meeting following the annual meeting at which such director was elected. The directors, the class to which they are elected, and the year in which their term expires, are as follows: Director Class Year in Which Term Expires ---------------------------------------------------------------------- James D. Sinegal I 2000 Jeffrey H. Brotman I 2000 Richard A. Galanti I 2000 Hamilton E. James II 2001 Frederick O. Paulsell, Jr. II 2001 Jill A. Ruckelshaus II 2001 Benjamin S. Carson II 2001 Richard M. Libenson III 2002 John W. Meisenbach III 2002 Charles T. Munger III 2002 Richard D. DiCerchio III 2002 At each annual election, the directors chosen to succeed those whose terms then expire shall be identified as being of the same class as the directors they succeed, unless, by reason of any intervening changes in the authorized number of directors, the board of directors shall designate one or more directorships whose terms then expire as directorships of another class in order more nearly to achieve equality in the number of directors among the classes. When the board of directors fills a vacancy resulting from the death, resignation or removal of a director, the director chosen to fill that vacancy shall be of the same class as the director he succeeds. Notwithstanding any of the foregoing provisions of Article V, in all cases, including upon any change in the authorized number of directors, each director then continuing to serve as such will nevertheless continue as a director of the class of which he is a member, until the expiration of his current term or his earlier death, resignation or removal. Any vacancy to be filled by reason of an increase in the number of directors may be filled by the board of directors for a term of office continuing only until the next election of directors by the shareholders. Notwithstanding anything contained in this Article V to the contrary, the classification of directors as provided in this Article V may be altered or eliminated only by an amendment to this Article approved by two-thirds of the votes entitled to be cast by each voting group entitled to vote on such amendment. ARTICLE VI A director of this corporation shall not be personally liable to the corporation or its shareholders for monetary damages for conduct as a director, except for liability of the director (i) for acts or omissions that involve intentional misconduct by the director or a knowing violation of law by the director, (ii) for conduct violating RCW 23B.08.310 of the Washington Business Corporation Act, or (iii) for any transaction from which the director will personally receive a benefit in money, property or services to which the director is not legally entitled. If the Washington Business Corporation Act is amended in the future to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of this corporation shall be eliminated or limited to the full extent permitted by the Washington Business Corporation Act, as so amended, without any requirement of further action by the shareholders. ARTICLE VII The corporation shall indemnify any individual made a party to a proceeding because that individual is or was a director of the corporation and shall advance or reimburse the reasonable expenses incurred by such individual in advance of final disposition of the proceeding, without regard to the limitations in RCW 23B.08.510 through 23B.08.550 of the Washington Business Corporation Act, or any other limitation which may hereafter be enacted to the extent such limitation may be disregarded if authorized by the Articles of Incorporation, to the full extent and under all circumstances permitted by applicable law. Any repeal or modification of this Article by the shareholders of this corporation shall not adversely affect any right of any individual who is or was a director of the corporation which existed at the time of such repeal or modification. ARTICLE VIII Subject to the rights of holders of any series of Preferred Stock then outstanding, any director, or the entire board of directors, may be removed from office only for cause and only by the affirmative vote of the holders of a majority of the voting power of all shares of this corporation entitled to vote for the election of directors. As used herein, "for cause" means either (i) conviction of a felony by a court of competent jurisdiction and such conviction is no longer subject to direct appeal or (ii) adjudication for gross negligence or dishonest conduct in the performance of a director's duty to this corporation by a court of competent jurisdiction and such adjudication is no longer subject to direct appeal. Notwithstanding anything to the contrary, this Article may be altered or eliminated only by amendment to this Article approved by two-thirds of the votes entitled to be cast by each voting group entitled to vote on such amendment. ARTICLE IX Amendment of the articles of incorporation, approval of a plan of merger or share exchange, authorization of the sale, lease, exchange or other disposition of all, or substantially all of the corporation's property, otherwise than in the usual and regular course of business, and authorization of the dissolution of the corporation, shall be approved by each voting group entitled to vote thereon by a simple majority of all the votes entitled to be cast by that voting group. ARTICLE X The street address of the registered office of this corporation is: 999 Lake Drive Issaquah, Washington 98027 and the name of its registered agent at that address is: Patrick J. Callans EXECUTED this 27th day of August, 1999. /s/ Joel Benoliel By: Joel Benoliel Title: Corporate Secretary CONSENT TO APPOINTMENT AS REGISTERED AGENT I, Patrick J. Callans, hereby consent to serve as registered agent, in the State of Washington, for the corporation herein named. I understand that as agent for the corporation, it will be my responsibility to accept service of process in the name of the corporation; to forward corporate license renewal mailings to the corporation; and to immediately notify the office of the Secretary of State in the event of my resignation or of any change in the registered office address of the corporation for which I am agent. Dated as of the 27th day of August, 1999. /s/ Patrick J. Callans Patrick J. Callans Address of Registered Agent: 999 Lake Drive Issaquah, Washington 98027 -----END PRIVACY-ENHANCED MESSAGE-----