PREFERRED STOCK SUBSCRIPTION AGREEMENT
between
The TJX Companies, Inc.
as Issuer
and
Melville Corporation,
as Subscriber
Dated as of November 17, 1995
TABLE OF CONTENTS
1. Definitions............................................................1
1.1. Incorporation of Purchase Agreement Definitions............1
1.2. Cross Reference Table......................................1
1.3. Certain Definitions........................................2
2. issuance of preferred shares...........................................3
2.1. Issuance...................................................3
2.2. Time and Place of Closing..................................3
2.3. Delivery...................................................3
3. Representations and Warranties of Issuer...............................3
3.1. Corporate Matters, etc.....................................3
3.2. Litigation, etc............................................6
3.3. Disclosure.................................................6
3.4. Change in Condition........................................6
3.5. Tax Matters................................................8
4. Representations and Warranties of Subscriber...........................9
4.1. Corporate Matters..........................................9
4.2. Authorization and Enforceability...........................9
4.3. Non-Contravention, etc.....................................9
4.4. Investment Intent.........................................10
4.5. Litigation................................................11
5. Access to Premises and Information....................................11
6. Conditions to the Obligation to Close of Issuer.......................11
6.1. Representations, Warranties and Covenants.................12
6.2. Conditions under Purchase Agreement.......................12
6.3. Other Agreements..........................................12
7. Conditions to the Obligation to Close of subscriber...................12
7.1. Representations, Warranties and Covenants.................12
7.2. Conditions under Purchase Agreement.......................13
7.3. Other Agreements..........................................13
7.4. Opinion of Counsel........................................13
8. Miscellaneous.........................................................13
8.1. Entire Agreement; Waivers.................................13
8.2. Amendment or Modification.................................13
8.3. Survival..................................................13
8.4. Knowledge.................................................14
8.5. Successors and Assigns....................................14
8.6. Notices...................................................14
8.7. Headings, etc.............................................15
8.8. Third-Party Beneficiaries.................................15
8.9. Preparation for Closing...................................15
8.10. Counterparts..............................................15
8.11. Governing Law.............................................15
8.12. Termination...............................................15
EXHIBITS
Exhibit A - Certificate of Designation of Series D Cumulative Preferred Stock
Exhibit B - Certificate of Designation of Series E Cumulative Preferred Stock
PREFERRED STOCK SUBSCRIPTION AGREEMENT
This Preferred Stock Subscription Agreement (this "Agreement") is made as
of the 17th day of November, 1995, between The TJX Companies, Inc., a Delaware
corporation (the "Issuer"), and Melville Corporation, a New York corporation
(the "Subscriber").
Recitals
1. Issuer and Subscriber are parties to a Stock Purchase Agreement
dated as of October 14, 1995 (as amended, the "Purchase Agreement") pursuant
to which Issuer has agreed to purchase from the Subscriber, and the Subscriber
has agreed to sell to Issuer, all of the issued and outstanding shares of
capital stock (the "Target Shares") of Marshalls of Roseville, Minn., Inc., a
Minnesota corporation.
2. As part of the Purchase Price for the Target Shares, Issuer has
agreed to issue and sell to the Subscriber, and the Subscriber has agreed to
acquire and accept from Issuer, the Preferred Shares (as defined below).
Agreement
Therefore, in consideration of the foregoing and the mutual agreements
and covenants set forth below and in the Purchase Agreement, the parties
hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement:
1.1. Incorporation of Purchase Agreement Definitions. Capitalized
terms used in this Agreement and not otherwise defined herein shall have the
same meanings herein as the meanings ascribed to such terms in the Purchase
Agreement.
1.2. Cross Reference Table. The following terms defined in this
Agreement in the Sections set forth below shall have the respective meanings
therein defined:
Term Definition
"Conversion Shares" Section 3.1.2
"Issuer" Preamble
"Purchase Agreement" Recitals
"Securities Act" Section 4.4(b)
"Subscriber" Preamble
"Target Shares" Recitals
1.3. Certain Definitions. The following terms shall have the following
meanings:
1.3.1. Common Stock. The term "Common Stock shall mean the Common
Stock, par value $1 per share, of Issuer.
1.3.2. Commission. The term "Commission shall mean the
Securities and Exchange Commission.
1.3.3. Exchange Act. The term "Exchange Act shall mean the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
1.3.4. Exchange Act Documents. The term "Exchange Act Documents
shall mean each of the following:
(i) Issuer's Annual Reports on Form 10-K for each of its
fiscal years ended January 28, 1995, January 29, 1994 and January
30, 1993;
(ii) Issuer's Quarterly Reports on Form 10-Q for the fiscal
quarters ended April 29, 1995 and July 29, 1995;
(iii) Issuer's proxy or information statement relating to
meetings of, or actions taken without a meeting by, the
stockholders of Issuer since January 28, 1995; and
(iv) the Current Reports on Form 8-K and all other reports,
statements and schedules filed by Issuer under the Exchange Act
since January 28, 1995.
1.3.5. Preferred Shares. The term "Preferred Shares shall mean
the Series D Shares and the Series E Shares.
1.3.6. Securities Act. The term "Securities Act is defined in
Section 3.2.
1.3.7. Series D Preferred Stock. The term "Series D Preferred
Stock shall mean the Series D Cumulative Convertible Preferred Stock,
par value $1 per share, of Issuer containing the terms and provisions
set forth in the Certificate of Designation attached hereto as Exhibit A.
1.3.8. Series E Preferred Stock. The term "Series E Preferred
Stock shall mean the Series E Cumulative Convertible Preferred Stock,
par value $1 per share, of Issuer containing the terms and provisions
set forth in the Certificate of Designation attached hereto as Exhibit B.
1.3.9. Series D Shares. The term "Series D Shares shall mean
250,000 shares of Series D Preferred Stock.
1.3.10. Series E Shares. The term "Series E Shares shall mean
1,500,000 shares of Series E Preferred Stock.
2. issuance of preferred shares.
2.1. Issuance. Upon the terms, subject to the conditions, and in
reliance on the representations, warranties and covenants set forth herein,
Issuer agrees to issue and sell to Subscriber, and Subscriber agrees to
acquire and accept from Issuer, the Preferred Shares at the Closing as part of
the Purchase Price.
2.2. Time and Place of Closing. The closing of the issuance and sale
of the Preferred Shares (the "Closing) shall take place at the same location
as, and contemporaneously with, the closing under the Purchase Agreement (the
day on which the Closing takes place being referred to herein as the "Closing
Date).
2.3. Delivery. At the Closing, Issuer will deliver to Subscriber a
certificate or
certificates evidencing all of the Series D Shares registered in the name of
Subscriber and a separate certificate or certificates evidencing all of the
Series E Shares registered in the name of Subscriber.
3. Representations and Warranties of Issuer. In order to induce Subscriber
to enter into and perform this Agreement and to consummate the transactions
contemplated hereby, Issuer represents and warrants to Subscriber as follows:
3.1. Corporate Matters, etc.
3.1.1. Incorporation and Authority of Issuer. Issuer is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite power and
authority, corporate and otherwise, to enter into this Agreement, to
carry out and perform its obligations hereunder, to consummate the
transactions contemplated hereby and to carry on its business as
currently conducted, except for the failure to have any power and
authority (other than corporate power and authority) that has not had
and could not reasonably be expected to have a Material Adverse Effect
on Issuer. Issuer is duly qualified or licensed to do business as a
foreign corporation, and is in good standing as such, in all
jurisdictions where the nature of Issuer's activities or its ownership
or leasing of property require such qualification, except for such
failures to be so qualified as have not had and will not have a Material
Adverse Effect on Issuer. Issuer has heretofore furnished to Subscriber
a true and complete copy of the Charter and By-laws of Issuer in the
form currently in effect and as will be in effect as of the Closing.
3.1.2. Authorization and Enforceability. This Agreement has been
duly authorized, executed and delivered by Issuer and is Enforceable
against Issuer. When issued in accordance with the terms of this
Agreement, the Preferred Shares will be duly authorized, validly issued,
fully paid and nonassessable and will be free and clear of any Lien or
other right or claim (or any restriction on transfer or voting) and will
not be subject to any preemptive or similar rights. Issuer has
authorized and reserved for issuance upon conversion or redemption of
the Preferred Shares a sufficient number of shares of Common Stock (the
"Conversion Shares), and the Conversion Shares will, upon such issuance
in accordance with the terms of the Charter of Issuer, be duly
authorized, validly issued, fully paid and nonassessable and will be
free and clear of any Lien or other right or claim (or any restriction on
transfer or voting) and will not be subject to any preemptive or similar
rights.
3.1.3. Non-Contravention, etc.
(a) No approval, consent, waiver, authorization or other order
of, and no filing, registration, qualification or recording with, any
Governmental Authority or any other Person is required to be obtained or
made by or on behalf of Issuer or any of its Subsidiaries in connection
with the execution, delivery or performance of this Agreement and the
consummation of the transactions contemplated hereby, except for (i)
satisfaction of the requirements of the Hart-Scott-Rodino Antitrust
Improvements of 1976, as amended (the "HSR Act) and (ii) any item
required to be obtained from or made with any Person other than a
Governmental Authority the failure to obtain or make which, individually
or in the aggregate, have and could reasonably be expected to have
neither a Material Adverse Effect on Issuer nor a material adverse
effect on the ability of Issuer to consummate the transactions
contemplated hereby. Neither the execution, delivery and performance of
this Agreement nor the consummation of any of the transactions
contemplated hereby (including, without limitation, performance by
Issuer of its obligations under the other Closing Agreements and its
obligations in respect of the Preferred Shares in accordance with their
terms) does or will constitute, result in or give rise to (i) a breach
or violation or default under any Legal Requirement applicable to Issuer
or any of its Subsidiaries (assuming the accuracy of the representations
and warranties of Subscriber in Section 4.4), (ii) a breach of or a
default under any Charter or By-Laws provision of Issuer or any of its
Subsidiaries, (iii) the acceleration of the time for performance of any
obligation under any Contractual Obligation of Issuer or any of its
Subsidiaries, (iv) the imposition of any Lien upon or the forfeiture of
any asset of Issuer or any of its Subsidiaries, (v) a breach of or a
default under any Contractual Obligation of Issuer or any of its
Subsidiaries, or (vi) termination, right of termination, modification of
terms or change in benefits or burdens under any Contractual Obligation
of Issuer or any of its Subsidiaries, other than in the case of clauses
(i), (iii), (iv), (v) and (vi) such as, individually or in the
aggregate, have and could reasonably be expected to have neither a
Material Adverse Effect on Issuer nor a material adverse effect on the
ability of Issuer to consummate the transactions contemplated hereby
(including, without limitation, Issuer's ability to perform its
obligations under the other Closing Agreements and its obligations in
respect of the Preferred Shares in accordance with their terms).
(b) Neither the execution, delivery or performance of this
Agreement, the consummation of the transactions contemplated hereby
(including, without limitation, performance by Issuer of its obligations
under the other Closing Agreements and its obligations in respect of the
Preferred Shares in accordance with their terms), nor the terms of the
Preferred Shares, do or will constitute, result in or give rise to a
breach or violation of or default under the Series A Agreements (as
defined in the Standstill and Registration Rights Agreement) or any
provision of the General Corporation Law of the State of Delaware.
3.1.4. Capitalization. The authorized capital stock of Issuer
consists of 150,000,000 shares of Common Stock and 5,000,000 shares of
preferred stock, par value $1 per share ("Issuer Preferred Stock), and
of such shares of Issuer Preferred Stock 250,000 shares have been
designated as Series A Cumulative Convertible Preferred Stock (the
"Series A Preferred Stock), 1,650,000 shares have been designated as
Series C Cumulative Convertible Preferred Stock (the "Series C Preferred
Stock), 250,000 shares have been designated as Series D Preferred Stock
and 1,500,000 shares have been designated as Series E Preferred Stock.
As of September 30, 1995, there were issued and outstanding 72,407,253
shares of Common Stock, 250,000 shares of Series A Stock and 1,650,000
shares of Series C Stock. Other than the issued and outstanding Issuer
Preferred Stock and other than equity securities of Issuer issued to
directors, officers or employees of Issuer or its Subsidiaries in
connection with their service to Issuer or its Subsidiaries ("Employee
Securities), as of September 30, 1995, there were no other securities of
Issuer outstanding convertible into or exchangeable for capital stock or
other voting securities of Issuer or any other outstanding options or
rights to acquire capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities
of Issuer. All outstanding shares of capital stock of Issuer have been
duly authorized and validly issued and are fully paid and nonassessable.
Except as contemplated by this Agreement or as set forth in this Section
and except for changes since September 30, 1995 resulting from the grant
or exercise of Employee Securities since such date, there are
outstanding (a) no shares of capital stock or other voting securities of
Issuer, (b) no securities of Issuer convertible into or exchangeable for
shares of capital stock or voting securities of Issuer, and (c) no
options or other rights to acquire from Issuer, and no obligation of
Issuer to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities
of Issuer (the items in clauses (a), (b) and (c) being referred to
collectively as the "Issuer Securities). Except as set forth in the
Charter of Issuer or in connection with Employee Securities, there are
no outstanding obligations of Issuer or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any Issuer Securities.
3.2. Litigation, etc. There is no Action against Issuer or any of its
Subsidiaries, pending or, to the knowledge of Issuer, threatened, which could
reasonably be expected to have a Material Adverse Effect on Issuer. There is
no Action pending or, to the knowledge of Issuer, threatened, that seeks
recission of, seeks to enjoin the consummation of, or otherwise relates to,
this Agreement or any of the transactions contemplated hereby and that could
reasonably be expected to have a Material Adverse Effect on Issuer or a
material adverse effect on Issuer's ability to consummate the transactions
contemplated hereby. No Governmental Order specifically directed at Issuer or
any of its Subsidiaries has been issued which has had or could reasonably be
expected to have a Material Adverse Effect on Issuer.
3.3. Disclosure. Issuer has heretofore delivered to Subscriber true and
complete copies of each of the Exchange Act Documents and each registration
statement of Issuer filed pursuant to the Securities Act of 1933, as amended
(the "Securities Act), since January 28, 1995. Each Exchange Act Document,
when filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading. Each such registration statement,
as amended or supplemented, if applicable, filed pursuant to the Securities
Act as of the date such registration statement or amendment thereto became
effective did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading. The consolidated financial statements, and
the related notes thereto, included in the Exchange Act Documents were
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods specified therein (except for such
changes as are noted therein, all of which changes have been concurred in by
Coopers) and present fairly in all material respects the financial position of
Issuer and its Subsidiaries as of the dates indicated therein and the results
of their operations and cash flows for the periods covered thereby, subject in
the case of interim financial statements to an absence of footnotes and to
normal year-end audit adjustments which will not in the aggregate be material.
3.4. Change in Condition. Except for the matters set forth in Schedule
3.4 or in connection with the sale of all of the issued and outstanding
capital stock of Hit or Miss, Inc. or as contemplated by this Agreement, the
Purchase Agreement or any other Closing Agreement, since July 29, 1995:
(a) The business of Issuer has been conducted only in the
ordinary course of business consistent with past practice;
(b) Neither Issuer nor any of its Subsidiaries has, except in
the ordinary course of business consistent with past practice:
(i) incurred or otherwise become liable in respect of any
Debt or become liable in respect of any Guarantee, other than Debt
or any Guarantee between Issuer and its wholly owned Subsidiaries
or between wholly owned Subsidiaries of Issuer;
(ii) mortgaged or pledged any Asset or subjected any
material Asset to any Lien;
(iii) declared or made any Distribution (other than (A)
cash dividends on its capital stock in usual amounts, (B)
repurchases of outstanding capital stock through Issuer's publicly
announced share repurchase program and other repurchases not
material in amount and (C) Distributions from any Subsidiary of
Issuer to Issuer);
(iv) sold, leased to others or otherwise disposed of any of
its material Assets except as contemplated by clause (iii) of this
Section 3.4(b));
(v) purchased a material amount of Equity Securities of any
Person other than of a direct or indirect wholly owned Subsidiary
of Issuer, or a material amount of assets (other than inventory)
of any Person or assets constituting a business, or been party to
any merger, consolidation or other business combination or entered
into any Contractual Obligation relating to any such purchase,
merger, consolidation or business combination;
(vi) made any loan, advance or capital contribution to or
investment in any Person material in amount other than loans,
advances or capital contributions to or investments in or to its
wholly owned Subsidiaries and other than advances to suppliers in
the ordinary course of business;
(vii) canceled or compromised any Debt or claim in any
material amount other than those between Issuer and a wholly owned
Subsidiary or between wholly owned Subsidiaries of Issuer or owed
by Issuer or any wholly owned Subsidiary of Issuer;
(viii) sold, transferred, licensed or otherwise disposed of
any material intellectual or intangible property rights;
(ix) waived or released or permitted to lapse any right of
material value; or
(x) instituted, settled or agreed to settle any material
Action;
(c) Neither Issuer nor any of its Subsidiaries has had any
change in its relationships with its employees, agents, customers or
suppliers, except as has not and could not reasonably be expected to
have a Material Adverse Effect;
(d) Except for Employee Securities, there has been no amendment
of any material provision of any Equity Security of Issuer;
(e) Neither Issuer nor any of its Affiliates has entered into
any Contractual Obligation to do any of the things referred to in
clauses (a) through (d) above; and
(f) No Material Adverse Effect on Issuer has occurred.
3.5. Tax Matters.
3.5.1. To Issuer's knowledge, (a) all material Tax Returns
required to be filed on or before the date hereof by, or with respect to
Issuer or any Subsidiary have been duly and timely filed (taking into
account extensions); (b) no position is reflected in a Tax Return
referred to in (a) for which the applicable limitation period has not
expired (and for which a closing agreement has not been entered into)
which (x) was not, at the time such Tax Return was filed, supported by
substantial authority (as determined for purposes of Section 6662 of the
Code, or any predecessor provision, and any comparable provisions of
applicable federal, state, or local tax statutes, rules or regulations)
and (y) would have a Material Adverse Effect if decided against the
taxpayer; (c) Issuer and its Subsidiaries have timely paid, withheld or
made provision for all Taxes shown as due and payable on any Tax Return
and have timely paid, withheld, or made provision for all material
Taxes, whether or not shown on any Tax Return; (d) no Liens for Taxes
upon the assets of Issuer or any Subsidiary exist; (e) no claim has ever
been made by an authority in a jurisdiction where any of Issuer and its
Subsidiaries does not file Tax Returns that it is or may be subject to
taxation by that jurisdiction.
3.5.2. Issuer and each of its Subsidiaries is a member of the
affiliated group, within the meaning of Section 1504(a) of the Code, of
which Issuer is the common parent (the "Affiliated Group), and such
Affiliated Group files a consolidated federal Income Tax Return.
Neither Issuer nor any of its Subsidiaries has at any time been a member
of an affiliated group filing a consolidated federal Income Tax Return
other than a group, the common parent of which is Issuer. To Issuer's
knowledge, all Income Taxes shown on any Tax Return of the Affiliated
Group have been paid for each taxable period during which any of Issuer
and its Subsidiaries was a member of the Affiliated Group.
3.5.3. To Issuer's knowledge, each of Issuer and its Subsidiaries
has withheld and paid all material Taxes required to have been withheld
and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder, foreign person, or other
third party.
3.5.4. Other than the proposed assessment made by the IRS
regarding the receipt of construction allowances, there is no dispute or
claim concerning any material Tax liability of any of Issuer and its
Subsidiaries either (A) claimed or raised by any taxing authority in
writing or (B) as to which Issuer has knowledge based upon personal
contact with any agent of such taxing authority.
4. Representations and Warranties of Subscriber. In order to induce Issuer
to enter into and perform this Agreement and to consummate the transactions
contemplated hereby, Subscriber represents and warrants to Issuer as follows
(and, as provided in Section 4.4, agrees with Issuer):
4.1. Corporate Matters. Subscriber is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
and has all requisite corporate power and authority to enter into this
Agreement, to carry out and perform its obligations hereunder and to
consummate the transactions contemplated hereby.
4.2. Authorization and Enforceability. This Agreement has been duly
authorized, executed and delivered by Subscriber and is Enforceable against
Subscriber.
4.3. Non-Contravention, etc. No approval, consent, waiver,
authorization or other order of, and no filing, registration, qualification or
recording with, any Governmental Authority or any other Person (other than any
party to any Lease-In other than the Company or any Subsidiary) is required to
be obtained or made by or on behalf of Subscriber or the Company or any of its
Subsidiaries in connection with the execution, delivery or performance of this
Agreement and the consummation of the transactions contemplated hereby, except
for (i) satisfaction of the requirements of the HSR Act, (ii) items listed on
Schedule 4.1.4 to the Purchase Agreement, which shall have been obtained or
made and shall be in full force and effect at the Closing (subject to the
materiality exception set forth at the end of the next sentence) and (iii) any
other of the foregoing items required to be obtained from or made with any
Person other than any Governmental Authority the failure to obtain or make
which, individually or in the aggregate, have and could reasonably be expected
to have neither a Material Adverse Effect nor a material adverse effect on the
ability of Subscriber to consummate the transactions contemplated hereby.
Except as set forth on Schedule 4.1.4 to the Purchase Agreement, neither the
execution, delivery and performance of this Agreement nor the consummation of
any of the transactions contemplated hereby (including, without limitation,
the execution, delivery and performance of the other Closing Agreements) does
or will constitute, result in or give rise to (i) a breach or violation or
default under any Legal Requirement applicable to Subscriber, the Company or
any of its Subsidiaries, (ii) a breach of or a default under any Charter or
By-Laws provision of Subscriber, the Company or any of its Subsidiaries, (iii)
the acceleration of the time for performance of any obligation under any
Contractual Obligation (other than any Lease-In) of Subscriber, the Company or
any of its Subsidiaries, (iv) the imposition of any Lien upon or the
forfeiture of any Asset, other than any Asset held under any Lease-In, (v) a
breach of or a default under any Contractual Obligation (other than any
Lease-In) of Subscriber, the Company or any of its Subsidiaries, or (vi) right
to any severance payments other than by operation of law (including without
limitation if such payments become due only if employment is terminated
following the Closing), termination, right of termination, modification of
terms or change in benefits or burdens under any Contractual Obligation (other
than any Lease-In), other than in the case of clauses (i) through (vi) such as,
individually or in the aggregate, have and could reasonably be expected to
have neither a Material Adverse Effect nor a material adverse effect on the
ability of Subscriber to consummate the transactions contemplated hereby.
4.4. Investment Intent.
(a) Subscriber is acquiring the Preferred Shares hereunder for
its own account, for investment, and not with a view to, or for sale in
connection with, any distribution thereof within the meaning of the
Securities Act (as hereafter defined).
(b) Subscriber understands and agrees that the Preferred Shares
and, if any are issued, the Conversion Shares will not be registered or
qualified under the Securities Act or state "blue-sky or other
securities laws and therefore cannot be resold unless they are
registered under the Securities Act and applicable state laws or unless
an exemption from such registration requirement is available.
(c) Subscriber is able to bear the economic risk of holding the
Preferred Shares and, if any are issued, the Conversion Shares for an
indefinite period of time and is experienced and has such knowledge and
experience in financial and business matters that it is capable of
evaluating the risks and merits of acquiring the Preferred Shares, and,
if any are issued, the Conversion Shares. Subscriber acknowledges that
the Preferred Shares and, if any are issued, the Conversion Shares will
bear a legend to the effect that transfers are restricted unless (i) the
transfer is exempt from the registration requirements under the
Securities Act and Issuer receives an opinion of counsel reasonably
satisfactory to Issuer to that effect or (ii) the transfer is made
pursuant to an effective registration statement under the Securities Act.
(d) Subscriber understands that Issuer is under no obligation to
effect a registration of the Preferred Shares or, if any are issued, the
Conversion Shares under the Securities Act, except to the extent set
forth in the Standstill and Registration Rights Agreement.
(e) Subscriber is an Accredited Investor within the definition
set forth in Rule 501(a) of the Securities Act.
(f) Nothing in this Section 4.4 shall limit or qualify the
representations, warranties, covenants or agreements made by Issuer
herein or in the Purchase Agreement or any other Closing Agreement or in
any certificate or document delivered pursuant hereto or thereto.
Issuer acknowledges and agrees that the purpose of this Section 4.4 is
solely to ensure that the sale of the Preferred Shares pursuant hereto
complies with the distribution restrictions of the Securities Act and the
distribution restrictions of other applicable securities laws.
4.5. Litigation. There is no Action against the Company or any
Subsidiary, pending or, to the knowledge of Subscriber, threatened, which
could reasonably be expected to have a Material Adverse Effect, except for
such of the foregoing as are described in Schedule 4.17 to the Purchase
Agreement. Except as set forth on Schedule 4.17 to the Purchase Agreement,
there is no Action pending or, to the knowledge of Subscriber, threatened with
respect to which Subscriber or any of its Affiliates, on the one hand, and the
Company or any of its Subsidiaries, on the other hand, are or would be
parties. There is no Action pending or, to the knowledge of Subscriber,
threatened, that seeks rescission of, seeks to enjoin the consummation of, or
otherwise relates to, this Agreement or any of the transactions contemplated
hereby and that could reasonably be expected to have a Material Adverse Effect
or a material adverse effect on Subscriber's ability to consummate the
transactions contemplated hereby. No Governmental Order specifically directed
at the Company or any of its Subsidiaries has been issued which has had or
could reasonably be expected to have a Material Adverse Effect.
5. Access to Premises and Information. Prior to the Closing, Issuer will
permit Subscriber and its representatives to have access to its premises and
documents, books and records and to make copies during normal business hours
(or to have copies made and delivered to Subscriber) of such financial and
operating data and other information with respect to Issuer and its
Subsidiaries as Subscriber or any of its representatives shall reasonably
request; provided, however, that Subscriber and its representatives shall not
have any such access to, or right to copies of, any competitively sensitive
information of Issuer or any of its Affiliates. In addition, Issuer shall
cause its management (including senior officers) to be available to Subscriber
at such times, and from time to time, as Subscriber may reasonably request in
connection with the transactions contemplated hereby and to discuss the
business and affairs of Issuer and its Subsidiaries; provided, however, that
Subscriber shall not be entitled to receive as a result of such availability
any competitively sensitive information of Issuer or any of its Affiliates.
In addition, so long as the Standstill and Registration Rights Agreement
remains in effect, Issuer will deliver to Subscriber copies of all of Issuer's
filings with the Commission pursuant to the Exchange Act or the Securities Act
no later than five Business Days following the date on which the same are
filed with the Commission.
6. Conditions to the Obligation to Close of Issuer. The obligation of
Issuer at the Closing to issue and sell the Preferred Shares is subject to the
satisfaction, at or prior to the Closing, of all the following conditions,
compliance with which, or the occurrence of which, may be waived prior to the
Closing in writing by Issuer in its sole discretion:
6.1. Representations, Warranties and Covenants.
6.1.1. Continued Accuracy of Representations and Warranties. All
representations and warranties of Subscriber contained in this Agreement
that include qualifications as to materiality or Material Adverse Effect
shall be true and correct as of the Closing and all other
representations and warranties of Subscriber contained in this Agreement
shall be true and correct in all material respects as of the Closing, in
each case with the same force and effect as if such representations and
warranties were made at and as of the Closing.
6.1.2. Performance of Agreements. Subscriber shall have
performed and satisfied in all material respects all covenants and
agreements required by this Agreement to be performed or satisfied by it
at or prior to the Closing.
6.1.3. Closing Certificate. At the Closing, Subscriber shall
furnish to Issuer an unqualified certificate, signed by the President or
Chief Financial Officer of Subscriber, dated the Closing Date, to the
effect that the conditions specified in Sections 6.1.1 and 6.1.2 hereof
have been satisfied.
6.2. Conditions under Purchase Agreement. All conditions to the
closing under the Purchase Agreement set forth in Section 7 thereof shall have
been satisfied or waived in accordance with the provisions of said Section 7.
6.3. Other Agreements. At or prior to the Closing, Subscriber shall
have entered into the Standstill and Registration Rights Agreement, such
agreement being in substantially the form thereof attached as an exhibit to
the Purchase Agreement without change other than such changes as may be
reasonably satisfactory to Issuer.
7. Conditions to the Obligation to Close of subscriber. The obligations of
Subscriber at the Closing to acquire and accept the Preferred Shares is
subject to the satisfaction, at or prior to the Closing, of all of the
following conditions, compliance with which, or the occurrence of which, may
be waived prior to the Closing in writing by Subscriber in its sole discretion:
7.1. Representations, Warranties and Covenants.
7.1.1. Continued Accuracy of Representations and Warranties. All
representations and warranties of Issuer contained in this Agreement
that include qualifications as to materiality or Material Adverse Effect
shall be true and correct as of the Closing and all other
representations and warranties of Issuer contained in this Agreement
shall be true and correct in all material respects as of the Closing, in
each case with the same force and effect as if such representations and
warranties were made at and as of the Closing.
7.1.2. Performance of Agreements. Issuer shall have performed
and satisfied in all material respects all covenants and agreements
required by this Agreement to be performed or satisfied by Issuer at or
prior to the Closing.
7.1.3. Officer's Certificate. At the Closing, Issuer shall
furnish to Subscriber an unqualified certificate signed by the President
or Senior Vice President - Finance and Chief Financial Officer of Issuer
dated the Closing Date, to the effect that the conditions specified in
Sections 7.1.1 and 7.1.2 hereof have been satisfied.
7.2. Conditions under Purchase Agreement. All conditions to the
closing under the Purchase Agreement set forth in Section 8 thereof shall have
been satisfied or waived in accordance with the provisions of said Section 8.
7.3. Other Agreements. At or prior to the Closing, Issuer shall have
entered into the Standstill Agreement and Registration Rights Agreement, such
agreement being in substantially the form thereof attached as an exhibit to
the Purchase Agreement without change other than such changes as may be
reasonably satisfactory to Subscriber.
7.4. Opinion of Counsel. Issuer shall have furnished Subscriber with
favorable opinions of Ropes & Gray and Jay Meltzer, Senior Vice President,
General Counsel and Secretary of Issuer, each dated the Closing Date in
substantially the forms of Exhibits D-1 and D-2 to the Purchase Agreement.
8. Miscellaneous.
8.1. Entire Agreement; Waivers. This Agreement, the other Closing
Agreements, the Confidentiality Agreement and the Purchase Agreement
constitute the entire agreement among the parties hereto pertaining to the
subject matter hereof and thereof and supersede all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties with respect to such subject matter. No waiver of any
provision of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar), shall constitute a
continuing waiver unless otherwise expressly provided nor shall be effective
unless in writing and executed (i) in the case of a waiver by Issuer, by
Issuer and (ii) in the case of a waiver by Subscriber, by Subscriber.
8.2. Amendment or Modification. The parties hereto may not amend or
modify this Agreement except in such manner as may be agreed upon by a written
instrument executed by Issuer and Subscriber.
8.3. Survival. All representations, warranties, covenants and
agreements made by or on behalf of any party hereto in this Agreement or
pursuant to any document, certificate or other instrument referred to herein
or delivered in connection with the transactions contemplated hereby shall
survive for the General Survival Period as specified in Section 10 of the
Purchase Agreement except for the representations and warranties in Sections
3.1.2 and 3.1.3(b) (but only insofar as Section 3.1.3(b) relates to the
General Corporation Law of the State of Delaware).
8.4. Knowledge. Whenever reference is made in this Agreement to the
knowledge of any Person with respect to any matter, it is understood that such
knowledge extends only to the officers of such Person (and in the case of
Subscriber, the officers of the Company or any of its Subsidiaries) having
responsibility for the areas of such Person's (and in the case of Subscriber,
also the Company's or any of its Subsidiaries') business covering such matter,
which officers have made an inquiry that is reasonably appropriate to
determine the accuracy of the statement in question.
8.5. Successors and Assigns. All the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective transferees, successors and permitted assigns
(each of which such transferees, successors and assigns shall be deemed to be
a party hereto for all purposes hereof); provided, however, that (i) neither
Issuer nor Subscriber may assign or transfer (by operation of law or otherwise)
any of its rights or obligations hereunder without the prior written consent
of the other and (iii) no transfer or assignment by any party shall relieve
such party of any of its obligations hereunder.
8.6. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if in writing (including telecopy or
similar teletransmission), addressed as follows:
If to Subscriber to it at:Melville Corporation
One Theall Road
Rye, New York 10580
Telecopier: 914-925-4052Attention: Chief
Executive Officer, Chief Financial
Officer and General Counsel
With a copy to: Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telecopier: 212-450-5744
Attention: Dennis S. Hersch
If to Issuer to it at: The TJX Companies, Inc.
770 Cochituate Road
Framingham, MA 01701
Telecopier: 508-390-2457
Attn: President and General Counsel
With a copy to: Ropes & Gray
One International Place
Boston, MA 02110
Telecopier: 617-951-7050
Attention: Arthur G. Siler, Esq.
Unless otherwise specified herein, such notices or other communications shall
be deemed received (a) in the case of any notice or communication sent other
than by mail, on the date actually delivered to such address (evidenced, in
the case of delivery by overnight courier, by confirmation of delivery from
the overnight courier service making such delivery, and in the case of a
telecopy, by receipt of a transmission confirmation form or the addressee's
confirmation of receipt), or (b) in the case of any notice or communication
sent by mail, three Business Days after being sent, if sent by registered or
certified mail, with first-class postage prepaid. Each of the parties hereto
shall be entitled to specify a different address by giving notice as aforesaid
to each of the other parties hereto.
8.7. Headings, etc. Section and subsection headings are not to be
considered part of this Agreement, are included solely for convenience, are
not intended to be full or accurate descriptions of the content thereof and
shall not affect the construction hereof.
8.8. Third-Party Beneficiaries. Nothing in this Agreement is intended
or shall be construed to entitle any Person other than the parties or their
respective permitted transferees, successors and assigns hereby to any claim,
cause of action, remedy or right of any kind.
8.9. Preparation for Closing. Each party will use its reasonable best
efforts to bring about the fulfillment of each of the conditions precedent to
the obligations of the other parties hereto set forth in this Agreement.
8.10. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts each of
which shall be deemed an original, but all of which together shall constitute
but one and the same instrument.
8.11. Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic substantive law of the State of New York,
without giving effect to any choice or conflict of law provision or rule that
would cause the application of the law of any other jurisdiction.
8.12. Termination. This Agreement may be terminated by Issuer and
Subscriber by mutual written consent at any time prior to the Closing, and
this Agreement shall automatically terminate immediately upon the termination
of the Purchase Agreement in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Preferred Stock Subscription Agreement to be
executed, as of the date first above written by their respective officers
thereunto duly authorized.
SUBSCRIBER: MELVILLE CORPORATION
By____________________________
Name:
Title:
ISSUER: THE TJX COMPANIES, INC.
By____________________________
Name:
Title: