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:
Xxxxx Xxxxxxxxxx, 000 Xxxx Xxxxx, Xxxxxxxx, XX 00000.
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/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, President
ATTEST:
By /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, Assistant Secretary
COSTCO WHOLESALE CORPORATION ("CWC"),
a Delaware corporation
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, President and CEO
ATTEST:
By /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, Assistant Secretary
