CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
PRICE/COSTCO, INC.
Price/Costco, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That, in accordance with Section 141(f) of the General Corporation
Law of the State of Delaware, the Board of Directors of Price/Costco, Inc. duly
adopted by unanimous consent setting forth a proposed amendment of the
Certificate of Incorporation of said corporation, declaring said amendment to be
advisable. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this
corporation be amended by striking Article FIRST in its
entirety and replacing therefore: "FIRST: The name of the
corporation is Costco Companies, Inc."
SECOND: That, in accordance with Section 211 of the General Corporation
Law of the State of Delaware, the stockholders of Price/Costco, Inc. duly
adopted said amendment by a majority vote at the Company's annual meeting.
THIRD: That said amendment was duly adopted in accordance with provisions
of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Price/Costco, Inc. has caused this Certificate to be
signed by James D. Sinegal, its President, and by Joel Benoliel, its Secretary,
this 3rd day of February, 1997.
BY: /s/ James D. Sinegal
-----------------------------------------
James D. Sinegal, President
ATTEST: /s/ Joel Benoliel
-------------------------------------
Joel Benoliel, Secretary
RESTATED CERTIFICATE OF INCORPORATION
OF
COSTCO COMPANIES, INC.
FIRST: The name of the Corporation is Costco Companies, Inc. (hereinafter
the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at that address is The Corporation
Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware (the "GCL").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 1,000,000,000, which shall consist of 900,000,000
shares of Common Stock, each having a par value of one penny ($.01) (the "Common
Stock") and 100,000,000 shares of Preferred Stock, each having a par value of
one penny ($.01) (the "Preferred Stock").
The Board of Directors is hereby authorized from time to time to provide by
resolution for the issuance of shares of Preferred Stock in one or more series
not exceeding in the aggregate the number of shares of Preferred Stock
authorized by this Certificate of Incorporation, as amended from time to time;
and to determine with respect to each such series the voting powers, if any
(which voting powers, if granted, may be full or limited), designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions relating thereto, including
without limiting the generality of the foregoing, the voting rights relating to
shares of Preferred Stock of any series (which may be one or more votes per
share or a fraction of a vote per share, which may vary over time and which may
be applicable generally or only upon the happening and continuance of stated
events or conditions), the rate of dividend to which holders of Preferred Stock
of any series may be entitled (which may be cumulative or noncumulative), the
rights of holders of Preferred Stock of any series in the event of liquidation,
dissolution or winding up of the affairs of the Corporation, the rights, if any,
of holders of Preferred Stock of any series to convert or exchange such shares
of Preferred Stock or such series for shares of any other class or series of
capital stock or for any other securities, property or assets of the Corporation
or any subsidiary (including the determination of the price or prices or the
rate or rates applicable to such rights to convert or exchange and the
adjustment thereof, the time or times during which the right to convert or
exchange shall be applicable and the time or times during which a particular
price or rate shall be applicable), whether or not the shares of that series
shall be redeemable and, if so, the terms and conditions of such redemption,
including
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the date or dates upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates, and whether any shares of that
series shall be redeemed pursuant to a retirement or sinking fund or otherwise
and the terms and conditions of such obligation.
Before the Corporation shall issue any shares of Preferred Stock of any
series, a certificate setting forth a copy of the resolution or resolutions of
the Board of Directors, fixing the voting powers, designations, preferences, the
relative, participating optional or other rights, if any, and the
qualifications, limitations and restrictions if any, relating to the shares of
Preferred Stock of such series, and the number of shares of Preferred Stock of
such series authorized by the Board of Directors to be issued shall be made
under seal of the Corporation and signed by and shall be filed and a copy
thereof recorded in the manner prescribed by the GCL. The Board of Directors is
further authorized to increase or decrease (but not below the number of such
shares of such series then outstanding) the number of shares of any series
subsequent to the issuance of the shares of that series.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(b) The directors shall have concurrent power with the stockholders
to make, alter, amend, change, add to or repeal the Bylaws of the Corporation.
(c) The number of directors of the Corporation shall be as from time
to time fixed by, or in the manner provided in, the Bylaws of the Corporation.
Election of directors need not be by written ballot unless the Bylaws so
provide.
(d) In addition to the powers and authority herein before or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the GCL,
this Certificate of Incorporation, and any Bylaws adopted by the stockholders;
PROVIDED, HOWEVER, that no Bylaws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if such
Bylaws had not been adopted.
SIXTH: Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the GCL) outside the State of Delaware at
such
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place or places as may be designated from time to time by the Board of Directors
or in the Bylaws of the Corporation.
SEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statues, and all rights conferred upon
stockholders herein are granted subject to this reservation.
EIGHTH: The directors shall be divided into three classes, designated as
Class I, Class II and Class III. Initially, Class I directors shall be elected
for a one-year term, Class II directors for a two-year term and Class III
directors for a three-year term. At any annual meeting of stockholders held
during or after 1994, successors to the class of directors whose term expires at
that annual meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so the number of directors in each class is as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. A director
shall hold office until the annual meeting for the year in which such director's
term expires and until such director's successor shall be elected and shall
qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Unless the Bylaws of the Corporation
provide otherwise, any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of
Directors then in office, provided that a quorum is present, and any other
vacancy occurring in the Board of Directors may be filled by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of such
director's predecessor.
NINTH: Notwithstanding anything else contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
662/3 percent of the combined voting power of all of the Voting Stock, voting
together as a single class, shall be required to alter, amend, rescind or repeal
Article EIGHTH of this Certificate of Incorporation.
"Voting Stock" shall mean the securities of the Corporation which are
entitled to vote generally for the election of directors of the Corporation.
TENTH: (a) Subject to Article TENTH (c), the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director or
officer of the Corporation or a Predecessor Corporation (as hereinafter
defined), or is or was serving at the request of the
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Corporation or a Predecessor Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan of other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interest of the Corporation or such Predecessor Corporation (as the case may
be), and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, or itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation or
such Predecessor Corporation (as the case may be), and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) Subject to Article TENTH (c), the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation or Predecessor Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director or officer of the Corporation or
a Predecessor Corporation, or is or was serving at the request of the
Corporation or a Predecessor Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation or such Predecessor Corporation (as the case may be); except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation or
such Predecessor Corporation (as the case may be) unless and only to the extent
that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) Any indemnification under this Article TENTH (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set
forth in Article TENTH (a) or Article TENTH (b), as the case may be. Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, event if obtainable,
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion, or (iii) by the
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stockholders. To the extent, however, that a present or former director or
officer or the Corporation or a Predecessor Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Article TENTH (a) or Article TENTH (b), or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith, without
the necessity of authorization in the specific case.
(d) Notwithstanding any contrary determination in the specific case under
Article TENTH (c), and notwithstanding the absence of any determination
thereunder, any present or former director or officer of the Corporation or a
Predecessor Corporation may apply to any court of competent jurisdiction in the
State of Delaware for indemnification to the extent otherwise permissible under
Article TENTH (a) and Article TENTH (b). The basis of such indemnification by a
court shall be a determination by such court that indemnification of such person
is proper in the circumstances because he has met the applicable standards of
conduct set forth in Article TENTH (a) or Article TENTH (b), as the case may be.
Neither a contrary determination in the specific case under Article TENTH (c)
nor the absence of any determination thereunder shall be a defense to such
application or create a presumption that such person seeking indemnification has
not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Article TENTH (d) shall be given to the
Corporation promptly upon the filing of such application. If successful, in
whole or in part, such person seeking indemnification shall also be entitled to
be paid the expense of prosecuting such application.
(e) Expenses incurred by a person who is or was a director or officer of
the Corporation or a Predecessor Corporation in defending or investigation a
threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation as authorized in this Article TENTH.
(f) The indemnification and advancement of expenses provided by or granted
pursuant to this Article TENTH shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, it
being the policy of the Corporation that indemnification of the persons
specified in Article TENTH (a) and Article TENTH (b) shall be made to the
fullest extent permitted by law. The provisions of this Article TENTH shall not
be deemed to preclude the indemnification of any person who is not specified in
Article TENTH (a) or Article TENTH (b) but
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whom the Corporation has the power or obligation to indemnify under the
provisions of the GCL, or otherwise.
(g) The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation or a Predecessor
Corporation, or is or was serving at the request of the Corporation or a
Predecessor Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power or the obligation to indemnify him against such
liability under the provisions of this Article TENTH or of Section 145 of the
GCL.
(h) For purposes of this Article TENTH, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if it separate existence had continued, would
have had power and authority to indemnify its directors or officers, so that any
person who is or was a director or officer of such constituent corporation, or
is or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation partnership, joint venture,
trust, employee benefit plan or other enterprise, shall stand in the same
position under the provisions of this Article TENTH with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued. For purposes
of this Article TENTH, references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references to
"serving at the request of the Corporation or a Predecessor Corporation" shall
include any service as a director, officer, employee or agent of the Corporation
or a Predecessor Corporation which imposes duties on, or involves services by,
such person with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation or such Predecessor
Corporation" as referred to in this Article TENTH. For purposes of this Article
TENTH, a "Predecessor Corporation" shall mean The Price Company, a California
corporation, and Costco Wholesale Corporation, a Washington corporation, in each
case, as such corporation existed prior to the Effective Time (as defined in the
Agreement and Plan or Reorganization dated as of June 15, 1993 by and among the
Corporation, The Price Company and Costco Wholesale Corporation). For purposes
of any determination under Article TENTH (c), a person shall be deemed to have
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to him by
the officers of the Corporation or another
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enterprise in the course of their duties, or on the advice of legal counsel for
the Corporation or another enterprise or on information or records given or
reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Corporation or another enterprise. The term "another
enterprise" as used in this Article TENTH (h) shall mean any other corporation
of any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The provisions of this
Article TENTH (h) shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Article TENTH (a) or (b), as the case may be.
(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article TENTH shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director
or officer of the Corporation or a Predecessor Corporation and shall inure to
the benefit of the heirs, executors and administrators of such a person.
(j) Notwithstanding anything contained in this Article TENTH to the
contrary, except for proceedings to enforce rights to indemnification ( which
shall be governed by Article TENTH (d)), the Corporation shall not be obligated
to indemnify any person in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized
or consented to by the Board of Directors of the corporation or a Predecessor
Corporation.
(k) The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred
in this Article TENTH to directors and officers of the Corporation.
ELEVENTH: No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the GCL or (iv) for any transaction from
which the director derived an improper personal benefit. Any repeal or
modification of this Article ELEVENTH by the stockholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification with respect to
acts or omissions occurring prior to such repeal or modification.
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