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.
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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.
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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
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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.
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.
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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,
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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.
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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.
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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
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.
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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
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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
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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
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EXECUTED this 27th day of August, 1999.
/s/ Joel Benoliel
By: Joel Benoliel
Title: Corporate Secretary
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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
