Exhibit B
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF SERIES E CUMULATIVE CONVERTIBLE PREFERRED STOCK
$1.00 PAR VALUE PER SHARE
of
THE TJX COMPANIES, INC.
Pursuant to Section 151(g)
of the General Corporation Law
of the State of Delaware
We, Steven R. Wishner, Vice President - Finance, and Jay H. Meltzer,
Secretary, of The TJX Companies, Inc. (hereinafter called the "Corporation), a
corporation organized and existing under and by virtue of the provisions of
the General Corporation Law of the State of Delaware,
Do HEREBY CERTIFY:
FIRST: The restated certificate of incorporation, as amended (the
"Certificate of Incorporation), of the corporation authorizes the issuance of
5,000,000 shares of Preferred Stock, $1.00 par value per share ("Preferred
Stock), in one or more series, and further authorizes the Board of Directors
from time to time to provide by Resolution for the issuance of shares of
Preferred Stock in one or more series not exceeding the aggregate number of
shares of Preferred Stock authorized by the Certificate of Incorporation 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, the relative, participating, optional or other rights, and the
qualifications, limitations and restrictions appertaining thereto.
SECOND: The Finance Committee of the Board of Directors of the
corporation, pursuant to authority conferred on such committee by the Board of
Directors (which fixed the voting rights with respect to the shares designated
herein), at a meeting duly called and held on November 15, 1995 did duly adopt
the following Resolution authorizing the creation and issuance of a series of
said Preferred Stock to be known as "Series E Cumulative Convertible Preferred
Stock, said Series E Cumulative Convertible Preferred Stock to be convertible
into the common stock, $1.00 par value per share (the "Common Stock), of the
corporation:
RESOLVED: that the Finance Committee of the Board of Directors,
pursuant to authority conferred on such Committee by the Board of Directors
(which fixed the voting rights with respect to the shares designated herein)
by the provisions of the Second Restated Certificate of Incorporation, as
amended (the "Certificate of Incorporation), of the Corporation, hereby
authorizes the issuance of a series of cumulative convertible Preferred Stock
of the Corporation and hereby fixes the voting powers, designations,
preferences, the relative, participating, optional and other rights, and the
qualifications, limitations and restrictions appertaining thereto in addition
to those set forth in said Certificate of Incorporation, as follows:
1. Designation and Number. The designation of Preferred Stock created by
this Resolution shall be Series E Cumulative Convertible Preferred Stock,
$1.00 par value per share, of The TJX Companies, Inc. (the "Corporation)
(hereinafter referred to as the "Series E Preferred Stock), and the number of
shares constituting such series shall be 1,500,000, which number may not be
increased but may be decreased (but not below the number of shares of Series E
Preferred Stock then outstanding) from time to time by the Board of Directors.
All shares of Series E Preferred Stock which shall have been issued and
reacquired in any manner by the Corporation (excluding, until the Corporation
elects to retire them, shares which are held as treasury shares but including
shares redeemed, shares purchased and retired, shares converted pursuant to
Section 4 hereof and shares exchanged for any other security of the
Corporation) shall not be reissued and shall, upon the making of any necessary
filing with the Secretary of State of Delaware have the status of authorized
but unissued shares of the Corporation's Preferred Stock, without designation
as to series, and thereafter may be issued, but not as shares of Series E
Preferred Stock.
2. Dividend Rights.
(a) General. The holders of shares of Series E Preferred Stock shall be
entitled to receive, in preference to the holders of shares of Common Stock
and any other stock ranking as to dividends junior to the Series E Preferred
Stock, when and as declared by the Board of Directors, out of funds legally
available therefor, cumulative cash dividends, accruing from and after the
date of original issuance of the Series E Preferred Stock at an annual rate of
$7.00 per share, and no more, as long as shares of Series E Preferred Stock
remain outstanding. Dividends shall be payable quarterly in arrears, on
January 1, April 1, July 1 and October 1 in each year commencing on the first
of such four dates which follows the date of initial issuance of the Series E
Preferred Stock (each, a "Dividend Payment Date). Each dividend will be
payable to holders of record as they appear on the stock register of the
Corporation on the record date therefor, not exceeding 60 days nor less than
10 days preceding the payment date thereof, as shall be fixed by the Board of
Directors. Dividends in arrears may be declared and paid at any time, without
reference to any Dividend Payment Date, to holders of record on such date, not
exceeding 60 days preceding the payment date thereof, as may be fixed by the
Board of Directors of the Corporation. Dividends payable on the Series E
Preferred Stock (i) for any period greater or less than a full dividend period,
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months and (ii) for each full quarterly dividend period, shall be computed by
dividing the annual dividend rate by four. Dividends on shares of Series E
Preferred Stock shall be cumulative and shall accrue on a daily basis from the
date of original issuance thereof whether or not there shall be funds legally
available for the payment thereof and whether or not such dividends are
declared. Holders of shares of the Series E Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or stock, in
excess of Full Cumulative Dividends on such shares. No interest or sum of
money in lieu of interest shall be payable in respect of any dividend payment
or payments which may be in arrears.
(b) Requirements for Dividends on Senior Preferred Stock. The
Corporation shall not (i) declare or pay or set apart for payment any
dividends or distributions on shares of Series E Preferred Stock (other than
dividends paid in shares of stock ranking junior to any series of Preferred
Stock ranking senior to the Series E Preferred Stock as to dividends) or (ii)
make any purchase or redemption of, or any sinking fund payment for the
purchase or redemption of, shares of Series E Preferred Stock (other than a
purchase or redemption made by issue or delivery of any stock ranking junior
to any series of Preferred Stock ranking senior to the Series E Preferred
Stock as to dividends or upon liquidation, dissolution or winding up) unless
Full Cumulative Dividends on all outstanding shares of any series of Preferred
Stock ranking senior to Series E Preferred Stock through the most recent
dividend payment date prior to the date of payment of such dividend or
distribution, or effective date of such purchase, redemption or sinking fund
payment, shall have been paid in full or declared and a sufficient sum set
apart for payment thereof.
(c) Requirements for Dividends on Parity Preferred Stock. If there
shall be outstanding shares of any other class or series of Preferred Stock
ranking on a parity with the Series E Preferred Stock as to dividends, no
dividends, except as described in the next sentence, shall be declared or paid
or set apart for payment on any such other series for any period unless Full
Cumulative Dividends on the Series E Preferred Stock through the most recent
Dividend Payment Date have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is set apart for such
payment. If dividends on the Series E Preferred Stock and on any other series
of Preferred Stock ranking on a parity as to dividends with the Series E
Preferred Stock are in arrears, all dividends declared upon shares of the
Series E Preferred Stock and all dividends declared upon such other series
shall be declared pro rata so that the amounts of dividends per share declared
on the Series E Preferred Stock and such other series shall in all cases bear
to each other the same ratio that Full Cumulative Dividends per share at the
time on the shares of Series E Preferred Stock and on such other series bear
to each other.
(d) Requirements for Dividends on Junior Stock. The Corporation shall
not (i) declare or pay or set apart for payment any dividends or distributions
on any stock ranking as to dividends junior to the Series E Preferred Stock
(other than dividends paid in shares of stock ranking junior to the Series E
Preferred Stock as to dividends) or (ii) make any purchase or redemption of,
or any sinking fund payment for the purchase or redemption of, any stock
ranking as to dividends or upon liquidation, dissolution or winding up junior
to the Series E Preferred Stock (other than a purchase or redemption made by
issue or delivery of any stock ranking junior to the Series E Preferred Stock
as to dividends or upon liquidation, dissolution or winding up) unless Full
Cumulative Dividends on all outstanding shares of Series E Preferred Stock
through the most recent Dividend Payment Date prior to the date of payment of
such dividend or distribution, or effective date of such purchase, redemption
or sinking fund payment, shall have been paid in full or declared and a
sufficient sum set apart for payment thereof; provided, however, that unless
prohibited by the terms of any other outstanding series of Preferred Stock,
any moneys theretofore deposited in any sinking fund with respect to any
Preferred Stock of the Corporation in compliance with this Section 2(d) and
the provisions of such sinking fund may thereafter be applied to the purchase
or redemption of such Preferred Stock in accordance with the terms of such
sinking fund regardless of whether at the time of such application Full
Cumulative Dividends on all outstanding shares of Series E Preferred Stock
through the most recent Dividend Payment Date shall have been paid in full or
declared and a sufficient sum set apart for payment thereof.
3. Liquidation Preferences.
(a) Senior Preferred Stock. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, before any payment or distribution of the assets of the
Corporation (whether from capital or surplus) shall be made to or set apart
for the holders of the Series E Preferred Stock upon liquidation, dissolution
or winding up, the holders of each class or series of Preferred Stock ranking
senior to the Series E Preferred Stock upon liquidation, dissolution or
winding up shall be entitled to receive full payment of their liquidation
preferences.
(b) Order of Payments among Parity Preferred Stock. In the event of
any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, before any payment or distribution of the assets of
the Corporation (whether from capital or surplus) shall be made to or set
apart for the holders of any class or series of stock of the Corporation
ranking junior to the Series E Preferred Stock upon liquidation, dissolution or
winding up, the holders of the shares of Series E Preferred Stock and the
holders of each other class or series of Preferred Stock ranking on a parity
with Series E Preferred Stock upon liquidation, dissolution or winding up
shall be entitled to receive liquidation payments according to the following
priorities:
First,
The holders of the shares of Series E Preferred Stock shall receive $100
per share and the holders of shares of each such other class or series of
Preferred Stock shall receive the full respective liquidation preferences
(including any premiums) to which they are entitled; and
Second,
The holders of shares of Series E Preferred Stock and the holders of
shares of each such other class or series of Preferred Stock shall each
receive an amount equal to Full Cumulative Dividends with respect to their
respective shares through and including the date of final distribution to such
holders, but such holders shall not be entitled to any further payment.
No payment (in either of the First step or Second step provided above) on
account of any liquidation, dissolution or winding up of the Corporation shall
be made to holders of any such other class or series of Preferred Stock or to
the holders of Series E Preferred Stock unless there shall likewise be paid at
the same time to the holders of the Series E Preferred Stock and the holders
of each such other class or series of Preferred Stock like proportionate
amounts of the same payments (as to each of the First step or the Second step
above), such proportionate amounts to be determined ratably in proportion to
the full amounts to which the holders of all outstanding shares of Series E
Preferred Stock and the holders of all outstanding shares of each such other
class or series of Preferred Stock are respectively entitled (in either the
First step or the Second step, as the case may be) with respect to such
distribution.
For purposes of this Section 3, neither a consolidation or merger of the
Corporation with or into another corporation nor a merger of any other
corporation with or into the Corporation or a sale or transfer of all or any
part of the Corporation's assets for cash, securities or other property will
be deemed a liquidation, dissolution or winding up of the Corporation.
(c) Junior Stock. After payment shall have been made in full to the
holders of Series E Preferred Stock and to the holders of each such other
class or series of Preferred Stock as provided in this Section 3 upon
liquidation, dissolution or winding up of the Corporation, any other series or
class or classes of stock ranking junior to the Series E Preferred Stock upon
liquidation, dissolution or winding up shall, subject to the respective terms
and provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed upon such liquidation, dissolution
or winding up, and the holders of Series E Preferred Stock shall not be
entitled to share therein.
4. Conversion.
(a) Automatic Conversion. Unless earlier converted at the option of
the holder in accordance with the provisions of Section 4(b), on the Automatic
Conversion Date each outstanding share of the Series E Preferred Stock shall
convert automatically (the "Automatic Conversion) into (i) shares of Common
Stock at the Exchange Rate in effect on the Automatic Conversion Date and (ii)
the right to receive an amount in cash equal to Full Cumulative Dividends on
such share to the Automatic Conversion Date.
(b) Optional Conversion by Holder. Shares of Series E Preferred Stock
may be converted, in whole or in part, at the option of the holder thereof
("Optional Conversion), at any time after the Initial Issuance Date and not
later than the close of business on the Business Day prior to the Automatic
Conversion Date, into shares of Common Stock at the Upper Exchange Rate.
Optional Conversion of shares of Series E Preferred Stock may be
effected by delivering certificates evidencing such shares, together with
written notice of conversion and a proper assignment of such certificates to
the Corporation or in blank (and, if applicable, payment of an amount equal to
the dividend payable on such shares), to the office of any transfer agent for
the Series E Preferred Stock or to any other office or agency maintained by
the Corporation for that purpose and otherwise in accordance with the Optional
Conversion procedures established by the Corporation. Each Optional
Conversion shall be deemed to have been effected immediately prior to the
close of business on the date on which the foregoing requirements shall have
been satisfied (the "Optional Conversion Date").
(c) Mechanics of Conversion.
(i) Upon surrender in accordance with the aforesaid provisions of the
certificate for any shares so converted (duly endorsed or accompanied by
appropriate instruments of transfer), the holder of record of such shares
shall be entitled to receive the applicable number of shares of Common Stock
(calculated to the nearest 1/1,000,000th of a share) (and cash representing
fractional share settlements in respect thereof) at the applicable Exchange
Rate plus Full Cumulative Dividends thereon, without interest.
(ii) Before any holder of shares of Series E Preferred Stock shall
receive certificates for shares of Common Stock in respect of the conversion
of shares of Series E Preferred Stock (or cash representing fractional share
settlements in respect thereof) such holder shall surrender the certificate or
certificates of shares of Series E Preferred Stock duly endorsed if required
by the Corporation, at the office of the Corporation and, if certificates for
shares of Common Stock are to be received by such holder, shall state in
writing the name or names and the denominations in which such holder wishes
the certificate or certificates for the Common Stock to be issued. The
Corporation will, as soon as practicable after receipt thereof, issue and
deliver to such holder, or such holder's designee or designees, a certificate
or certificates for the number of shares of Common Stock to which such holder
shall be entitled as aforesaid, together with a certificate or certificates
representing any shares of Series E Preferred Stock which are not to be
converted, but which shall have constituted part of the certificate or
certificates for shares of Series E Preferred Stock so surrendered.
(iii) The Corporation's obligation to deliver shares of Common Stock and
provide funds upon conversion in accordance with this Section 4 shall be
deemed fulfilled if, on or before a conversion date, the Corporation shall
deposit with a bank or trust company, or an affiliate of a bank or trust
company, having an office or agency in New York, New York and having a capital
and surplus of at least $50,000,000 according to its last published statement
of condition, or shall set aside or make other reasonable provision for the
issuance of, such number of shares of Common Stock as are required to be
delivered by the Corporation pursuant to this Section 4 upon the occurrence of
the related conversion of Series E Preferred Stock and for cash required to be
paid in lieu of the issuance of fractional share amounts and Full Cumulative
Dividends payable in cash on the shares of Series E Preferred Stock to be
converted as required by this Section 4, in trust for the account of the
holders of such shares of Series E Preferred Stock to be converted (and so as
to be and continue to be available therefor), with (in the case of deposits
with a bank or trust company) irrevocable instructions and authority to such
bank or trust company that such shares and funds be delivered upon conversion
of the shares of Series E Preferred Stock so to be converted. If on the
Automatic Conversion Date shares of Common Stock and funds (if any) necessary
for the conversion shall have been irrevocably either set aside by the Company
separate and apart from its other funds or assets in trust for the account of
the holders of the shares of Series E Preferred Stock to be converted (and so
as to be and continue to be available therefor) or the Company shall have made
other reasonable provision therefor, then, notwithstanding that the
certificates evidencing any shares of the Series E Preferred Stock so subject
to conversion shall not have been surrendered, the shares represented thereby
shall be deemed no longer outstanding, dividends with respect to such shares
shall cease to accrue on the date fixed for conversion (provided that holders
of shares of Series E Preferred Stock at the close of business on a record
date for any payment of dividends shall be entitled to receive Full Cumulative
Dividends payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion of such shares following such record date and
prior to such Dividend Payment Date) and all rights with respect to such
shares shall forthwith after such date cease and terminate, except for the
rights of the holders to receive the shares of Common Stock and funds (if any)
payable pursuant to this Section 4 without interest upon surrender of their
certificates therefor. Holders of shares of Series E Preferred Stock at the
close of business on a dividend payment record date shall be entitled to
receive the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the Optional Conversion of such shares following
such record date and prior to such Dividend Payment Date. However, shares of
Series E Preferred Stock surrendered for Optional Conversion after the close of
business on a dividend payment record date and before the opening of business
on the corresponding Dividend Payment Date must be accompanied by payment in
cash of an amount equal to the dividend payable on such shares on such
Dividend Payment Date. A holder of shares of Series E Preferred Stock on a
dividend record date who (or whose transferee) surrenders any such shares for
conversion into shares of Common Stock on the corresponding Dividend Payment
Date will receive the dividend payable by the Corporation on such shares of
Series E Preferred Stock on such Dividend Payment Date, and the converting
holder need not include payment of the amount of such dividend upon surrender
of shares of Series E Preferred Stock for conversion. Except as provided
above, upon any conversion of shares of Series E Preferred Stock, the
Corporation shall make no payment or allowance for unpaid dividends, whether
or not in arrears, on such shares of Series E Preferred Stock as to which
conversion has been effected or for dividends or distributions on the shares
of Common Stock issued upon such conversion.
(iv) Holders of shares of Series E Preferred Stock that are converted
shall not be entitled to receive dividends declared and paid on such shares of
Common Stock, and such shares of Common Stock shall not be entitled to vote,
until such shares of Common Stock are issued upon the surrender of the
certificates representing such shares of Series E Preferred Stock and upon
such surrender such holders shall be entitled to receive such dividends
declared and paid on such shares of Common Stock subsequent to such conversion
date. Amounts payable in cash in respect of the shares of Series E Preferred
Stock or in respect of such shares of Common Stock shall not bear interest.
(v) Each conversion of shares of Series E Preferred Stock into Common
Stock shall be deemed to have been made as of the close of business on the
applicable conversion date, so that the rights of the holder of such shares of
Series E Preferred Stock shall, to the extent of such conversion, cease at
such time and the person or persons entitled to receive shares of the Common
Stock upon conversion of such shares shall be treated for all purposes as
having become the record holder or holders of the Common Stock at such time;
provided, however, that if an event that results in an adjustment to the
Exchange Rate is declared or occurs with respect to the shares of Common
Stock, and the record date for any such action is on or after the close of
business on the date on which notice of such conversion is given, but prior to
the close of business on the date of such conversion, then the person or
persons entitled to receive shares of the Common Stock upon conversion of
shares of Series E Preferred Stock shall be treated for purposes of such
action as having become the record holder or holders of the Common Stock at
the close of business on the Trading Day next preceding the date on which
notice of such conversion is given.
(vi) The Corporation will pay any and all taxes that may be payable in
respect of the issuance or delivery of shares of Common Stock upon conversion
of shares of Series E Preferred Stock pursuant hereto. The Corporation shall
not, however, be required to pay any tax which may be payable in respect of
any transfer involved in the delivery of shares registered in a name other
than the name in which such shares of Series E Preferred Stock were formerly
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the Corporation the
amount of any such tax, or has established, to the satisfaction of the
Corporation, that such tax has been paid.
(d) Adjustments to the Exchange Rate. The Exchange Rate shall be
subject to adjustment from time to time as provided below in this paragraph
(d).
(i) If the Corporation shall pay or make a dividend or other
distribution with respect to its Common Stock in shares of Common Stock
(including by way of reclassification of any shares of its Common Stock)
to all holders of Common Stock, the Exchange Rate in effect at the
opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by multiplying such Exchange Rate by a
fraction of which the numerator shall be the sum of the number of shares
of Common Stock outstanding at the close of business on the date fixed
for such determination plus the total number of shares of Common Stock
constituting such dividend or other distribution, and of which the
denominator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination, such
increase to become effective immediately after the opening of business
on the day following the date fixed for such determination.
(ii) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Exchange Rate in
effect at the opening of business on the day following the day upon
which such subdivision becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of Common Stock
shall be combined into a smaller number of shares of Common Stock, the
Exchange Rate in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately reduced, such increases or reductions, as the case may
be, to become effective immediately after the opening of business on the
day following the day upon which such subdivision or combination becomes
effective.
(iii) If the Corporation shall, after the date hereof, issue rights or
warrants, in each case other than the Rights, to all holders of its
Common Stock entitling them (for a period not exceeding 45 days from the
date of such issuance) to subscribe for or purchase shares of Common
Stock at a price per share less than the Fair Market Value of the Common
Stock on the record date for the determination of stockholders entitled
to receive such rights or warrants, then in each case the Exchange Rate
shall be adjusted by multiplying the Exchange Rate in effect on such
record date, by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such issuance, plus the number
of additional shares of Common Stock offered for subscription or
purchase pursuant to such rights or warrants, and of which the
denominator shall be the number of shares of Common Stock outstanding on
the date of issuance of such rights or warrants, immediately prior to
such issuance, plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock
so offered for subscription or purchase pursuant to such rights or
warrants would purchase at such Fair Market Value (determined by
multiplying such total number of shares by the exercise price of such
rights or warrants and dividing the product so obtained by such Fair
Market Value). Such adjustment shall become effective at the opening of
business on the Business Day next following the record date for the
determination of stockholders entitled to receive such rights or
warrants. To the extent that shares of Common Stock are not delivered
after the expiration of such rights or warrants, the Exchange Rate shall
be readjusted to the Exchange Rate which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made
upon the basis of the issuance of rights or warrants in respect of only
the number of shares of Common Stock actually delivered.
(iv) If the Corporation shall pay a dividend or make a distribution to
all holders of its Common Stock consisting of evidences of its
indebtedness or other assets (including shares of capital stock of the
Corporation other than Common Stock but excluding any cash dividends or
any dividends or other distributions referred to in clauses (i) and (ii)
above), or shall issue to all holders of its Common Stock rights or
warrants to subscribe for or purchase any of its securities (other than
those referred to in clause (iii) above and other than Rights), then in
each such case the Exchange Rate shall be adjusted by multiplying the
Exchange Rate in effect on the record date for such dividend or
distribution or for the determination of stockholders entitled to
receive such rights or warrants, as the case may be, by a fraction of
which the numerator shall be the Fair Market Value per share of the
Common Stock on such record date, and of which the denominator shall be
such Fair Market Value per share of Common Stock less the fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive) as of such record date of the portion of the assets
or evidences of indebtedness so distributed, or of such subscription
rights or warrants, applicable to one share of Common Stock. Such
adjustment shall become effective on the opening of business on the
Business Day next following the record date for such dividend or
distribution or for the determination of stockholders entitled to
receive such rights or warrants, as the case may be.
(v) Any share of Common Stock issuable in payment of a dividend or
other distribution shall be deemed to have been issued immediately prior
to the close of business on the record date for such dividend or other
distribution for purposes of calculating the number of outstanding
shares of Common Stock under subparagraph (ii) above.
(vi) Anything in this paragraph (d) notwithstanding, the Corporation
shall be entitled to make such upward adjustments in the Exchange Rate,
in addition to those required by this paragraph (d), as the Corporation
in its sole discretion shall determine to be advisable, in order that
any stock dividends, subdivision of shares, distribution of rights to
purchase stock or securities, or distribution of securities convertible
into or exchangeable for stock (or any transaction which could be treated
as any of the foregoing transactions pursuant to Section 305 of the
Internal Revenue Code of 1986, as amended) hereafter made by the
Corporation to its stockholders shall not be taxable.
(vii) In any case in which this paragraph (d) shall require that an
adjustment as a result of any event become effective at the opening of
business on the Business Day next following a record date and the date
fixed for conversion pursuant to paragraph (a) occurs after such record
date, but before the occurrence of such event, the Corporation may in
its sole discretion elect to defer the following until after the
occurrence of such event: (A) issuing to the holder of any shares of
Series E Preferred Stock surrendered for conversion the additional
shares of Common Stock issuable upon such conversion over the shares of
Common Stock issuable before giving effect to such adjustment; and (B)
paying to such holder any amount in cash in lieu of a fractional share
of Common Stock pursuant to Section 5(d).
(viii)For purposes hereof, an "adjustment in the Exchange Rate means,
and shall be implemented by, an adjustment of the nature and amount
specified, effected in the manner specified, in each of the Upper
Exchange Rate, the Middle Exchange Rate and the Lower Exchange Rate. If
an adjustment is made to the Exchange Rate pursuant to this paragraph
(d), a proportionate adjustment in the same direction shall also be made
on the Automatic Conversion Date to the Current Market Price solely to
determine which of clauses (a), (b) or (c) of the definition of Exchange
Rate will apply on the Automatic Conversion Date. Such adjustment shall
be made by multiplying the Current Market Price by a fraction of which
the numerator shall be the Exchange Rate immediately after such
adjustment pursuant to this paragraph (d) and the denominator shall be
the Exchange Rate immediately before such adjustment. All adjustments
to the Exchange Rate shall be calculated to the nearest 1/1,000,000th
of a share of Common Stock. No adjustment in the Exchange Rate shall be
required unless such adjustment would require an increase or decrease of
at least one percent in the Exchange Rate; provided, however, that any
adjustments which by reason of this subparagraph are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All adjustments to the Exchange Rate shall be made
successively.
(ix) Before taking any action that would cause an adjustment increasing
the Exchange Rate such that the conversion price (for purposes of this
paragraph (d), an amount equal to the liquidation value per share of
Series E Preferred Stock divided by the Upper Exchange Rate as in effect
from time to time) would be below the then par value of the Common
Stock, the Corporation will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Corporation may
validly and legally issue fully paid and nonassessable shares of Common
Stock at the Upper Exchange Rate as so adjusted.
(e) Adjustment for Certain Consolidations or Mergers. In case of any
consolidation or merger to which the Corporation is a party (other than a
merger or consolidation in which the Corporation is the continuing corporation
and in which the Common Stock outstanding immediately prior to the merger or
consolidation remains unchanged), or in case of any sale or transfer to
another corporation of the property of the Corporation as an entirety or
substantially as an entirety, or in case of any statutory exchange of
securities with another corporation (other than in connection with a merger or
acquisition), proper provision shall be made so that each share of the Series
E Preferred Stock shall, after consummation of such transaction, be subject to
(i) conversion at the option of the holder into the kind and amount of
securities, cash or other property receivable upon consummation of such
transaction by a holder of the number of shares of Common Stock into which
such share of Series E Preferred Stock would have been converted if the
conversion had occurred immediately prior to consummation of such transaction
(based on the Exchange Rate in effect immediately prior to such consummation)
and (ii) conversion on the Automatic Conversion Date into the kind and amount
of securities, cash or other property receivable upon consummation of such
transaction by a holder of the number of shares of Common Stock into which
such share of Series E Preferred Stock would have been converted if the
conversion on the Automatic Conversion Date had occurred immediately prior to
the date of consummation of such transaction (based on the Exchange Rate in
effect immediately prior to such consummation); assuming in each case that
such holder of Common Stock failed to exercise rights of election, if any, as
to the kind or amount of securities, cash or other property receivable upon
consummation of such transaction (provided that if the kind or amount of
securities, cash or other property receivable upon consummation of such
transaction is not the same for each nonelecting share, then the kind and
amount of securities, cash or other property receivable upon consummation of
such transaction for each nonelecting share shall be deemed to be the kind and
amount so receivable per share by a plurality of the nonelecting shares). The
kind and amount of securities into which the shares of the Series E Preferred
Stock shall be convertible after consummation of such transaction shall be
subject to adjustment as described in paragraph (d) following the date of
consummation of such transaction. The Corporation may not become a party to
any such transaction unless the terms thereof are consistent with the
foregoing.
(f) Notice of Adjustments. Whenever the Exchange Rate is adjusted as
provided in paragraph (d), the Corporation shall:
(i) Forthwith compute the adjusted Exchange Rate and prepare a
certificate signed by the Chief Financial Officer, any Vice President, the
Treasurer or the Controller of the Corporation setting forth the adjusted
Exchange Rate, the method of calculation thereof in reasonable detail and
the facts requiring such adjustment and upon which such adjustment is
based, which certificate shall be prima facie evidence of the correctness
of the adjustment, and file such certificate forthwith with the Transfer
Agent;
(ii) Make a prompt public announcement stating that the Exchange
Rate has been adjusted and setting forth the adjusted Exchange Rate; and
(iii) Promptly mail a notice (stating that the Exchange Rate has
been adjusted and the facts requiring such adjustment and upon which such
adjustment is based and setting forth the adjusted Exchange Rate) to the
holders of record of the outstanding shares of the Series E Preferred
Stock at or prior to the time the Corporation mails an interim statement
to its stockholders covering the fiscal quarter during which the facts
requiring such adjustment occurred but in any event within 45 days of the
end of such fiscal quarter.
(g) Prior Notice of Certain Events. In case:
(i) the Corporation shall (1) declare any dividend (or any other
distribution) on its Common Stock, other than a dividend payable solely in
cash in an amount such that the aggregate cash dividend per share of Common
Stock in any fiscal quarter does not exceed 3.75% of the Current Market Price
of the Common Stock on the Trading Day next preceding the date of declaration
of such dividend, or (2) declare or authorize a redemption or repurchase of in
excess of 10% of the then outstanding shares of Common Stock; or
(ii) the Corporation shall authorize the granting to all holders of
Common Stock of rights or warrants to subscribe for or purchase any shares of
stock of any class or of any other rights or warrants (other than Rights); or
(iii) of any reclassification of Common Stock (other than a subdivision
or combination of the outstanding Common Stock, or a change in par value, or
from par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Corporation is a party and for which
approval of any stockholders of the Corporation shall be required, or of the
sale or transfer of all or substantially all of the assets of the Corporation
or of any compulsory share exchange where the Common Stock is converted into
other securities, cash or other property; or
(iv) of the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
then the Corporation shall cause to be filed with the Transfer Agent and each
office or agency maintained for conversion of shares of Series E Preferred
Stock, and shall cause to be mailed to the holders of record of the Series E
Preferred Stock, at their last addresses as they shall appear upon the stock
transfer books of the Corporation, at least 15 days prior to the applicable
record date hereinafter specified, a notice stating (x) the date on which a
record (if any) is to be taken for the purpose of such dividend, distribution,
redemption, repurchase or granting of rights or warrants or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution, redemption, rights or warrants are
to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange, liquidation,
dissolution or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled
to exchange their shares of Common Stock for securities or other property
(including cash) deliverable upon such reclassification, consolidation,
merger, sale, transfer, share exchange, liquidation, dissolution or winding
up. No failure to mail such notice or any defect therein or in the mailing
thereof shall affect the validity of the corporate action required to be
specified in such notice.
(h) Dividend or Interest Reinvestment Plans; Other. Notwithstanding the
foregoing provisions, the issuance of any shares of Common Stock pursuant to
any plan providing for the reinvestment of dividends or interest payable on
securities of the Corporation and the investment of additional optional
amounts in shares of Common Stock under any such plan, and the issuance of any
shares of Common Stock or options or rights to purchase such shares pursuant
to any employee benefit plan or program of the Corporation, or pursuant to any
option, warrant, right or exercisable, exchangeable or convertible security
outstanding as of the date the Series E Preferred Stock was first designated,
shall not be deemed to constitute an issuance of Common Stock or exercisable,
exchangeable or convertible securities by the Corporation to which any of the
adjustment provisions described above applies. There shall be no adjustment
of the Exchange Rate in case of the issuance of any stock (or securities
convertible into or exchangeable for stock) of the corporation except as
described in this Section 4. Except as expressly set forth in this Section 4,
if any action would require adjustment of the Exchange Rate pursuant to more
than one of the provisions described above, only one adjustment shall be made
and such adjustment shall be the amount of adjustment which has the highest
absolute value.
(i) For purposes of this Section 4, the number of shares of Common
Stock at any time outstanding shall not include any shares of Common Stock
then owned or held, directly or indirectly through a subsidiary, by or for the
account of the Corporation.
5. Reservation of Shares; Listing of Shares, Etc.
(a) Reservation of Shares. The Corporation shall at all times reserve
and keep available, out of its authorized and unissued stock, solely for the
purpose of effecting the conversion of the Series E Preferred Stock, the full
number of shares of its Common Stock deliverable upon conversion of all shares
of Series E Preferred Stock not theretofore converted.
(b) Listing of Shares. If any shares of Common Stock required to be
reserved for purposes of conversion of the Series E Preferred Stock hereunder
require registration with or approval of any governmental authority under any
Federal or State law before such shares may be issued upon conversion, the
Corporation will in good faith and as expeditiously as possible endeavor to
cause such shares to be duly registered or approved, as the case may be. If
the Common Stock is listed on the New York Stock Exchange or any other national
securities exchange, the Corporation will, as expeditiously as possible, if
permitted by the rules of such exchange, cause to be listed and keep listed on
such exchange, upon official notice of issuance, all shares of Common Stock
issuable upon conversion of the Series E Preferred Stock.
(c) Shares Issued on Conversion to be Fully Paid, Etc. The shares of
Common Stock issuable upon conversion of the shares of Series E Preferred
Stock, when the same shall be issued in accordance with the terms hereof, are
hereby declared to be and shall be fully paid and nonassessable shares of
Common Stock in the hands of the holders thereof.
(d) No Fractional Shares. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued upon conversion of Series E
Preferred Stock. Instead of any fractional share of Common Stock that would
otherwise be issuable upon conversion of any shares of Series E Preferred
Stock, the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to the same fraction of the Closing
Price of a share of Common Stock (or, if there is no such Closing Price, the
fair market value of a share of Common Stock, as determined or prescribed by
the Board of Directors) at the close of business on the Trading Day
immediately preceding the date of conversion.
(e) Other Action. If the Corporation shall take any action affecting
the Common Stock, other than action described in Section 4, that in the
opinion of the Board of Directors would materially adversely affect the
conversion rights of the holders of the shares of Series E Preferred Stock,
the Exchange Rate for the Series E Preferred Stock may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors may determine to be equitable in the circumstances.
6. Voting Rights. Other than as required by applicable law, the Series E
Preferred Stock shall not have any voting powers either general or special
except that:
(a) Unless a greater vote or consent shall then be required by law,
the affirmative vote or consent of two-thirds of the votes to which the
holders of the outstanding shares of the Series E Preferred Stock, and each
other series of Preferred Stock of the Corporation similarly affected, if any,
voting together as a single class, are entitled shall be necessary for
authorizing, effecting or validating the amendment, alteration or repeal of
any of the provisions of the Certificate of Incorporation (including any
Certificate of Designations, Preferences and Rights or any similar document
relating to any series of Preferred Stock) of the Corporation, including any
amendment or supplement thereto, if such would materially and adversely affect
the preferences, rights, powers or privileges, qualification, limitations and
restrictions of the Series E Preferred Stock and any such other series of
Preferred Stock; provided, however, that the creation, issuance or increase in
the amount of authorized shares of any series of Preferred Stock ranking on a
parity with or junior to the Series E Preferred Stock as to the payment of
dividends or upon liquidation, dissolution or winding up will not be deemed to
materially and adversely affect such rights, powers or privileges,
qualification, limitations and restrictions.
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of
two-thirds of the votes to which the holders of the outstanding shares of the
Series E Preferred Stock, and all other series of Preferred Stock of the
Corporation ranking on parity with shares of the Series E Preferred Stock
(either as to dividends or upon liquidation, dissolution or winding up) as to
which like voting rights have been conferred, voting together as a single
class, are entitled shall be necessary to create, authorize or issue, or
reclassify any authorized stock of the Corporation into, or create, authorize
or issue any obligation or security convertible into or evidencing a right to
purchase, any shares of any class or series of stock of the Corporation
ranking prior to the Series E Preferred Stock or ranking prior to any other
class or series of Preferred Stock of the Corporation which ranks on a parity
with the Series E Preferred Stock as to dividends or upon liquidation,
dissolution or winding up.
(c) Whenever, at any time or times, dividends payable on the shares of
Series E Preferred Stock shall be in arrears in an amount equal to at least
six full quarterly dividends on shares of the Series E Preferred Stock at the
time outstanding, the holders of the outstanding shares of Series E Preferred
Stock shall have the exclusive right, voting together as a class with holders
of shares of any one or more other series of Preferred Stock ranking on a
parity with the Series E Preferred Stock (either as to dividends or upon
liquidation, dissolution or winding up) upon which like voting rights have
been conferred and are then exercisable, to elect two (2) directors of the
Corporation for one-year terms at the Corporation's next annual meeting of
stockholders and at each subsequent annual meeting of stockholders. If the
right to elect directors shall have accrued to the holders of the Series E
Preferred Stock more than 90 days prior to the date established for the next
annual meeting of stockholders, the President of the Corporation shall, within
20 days after delivery to the Corporation at its principal office of a written
request for a special meeting signed by the holders of at least 10% of all
outstanding shares of the Series E Preferred Stock, call a special meeting of
the holders of Series E Preferred Stock to be held within 60 days after the
delivery of such request for the purpose of electing such additional
directors. Upon the vesting of such right of the holders of Series E
Preferred Stock, the maximum authorized number of members of the Board of
Directors shall automatically be increased by two and the two vacancies so
created shall be filled by vote of the holders of the outstanding shares of
Series E Preferred Stock (either alone or together with the holders of shares
of any one or more other such series of Preferred Stock entitled to vote in
such election) as set forth above. The right of the holders of Series E
Preferred Stock to elect members of the Board of Directors of the Corporation
as aforesaid shall continue until such time as all dividends in arrears on the
Series E Preferred Stock shall have been paid in full or declared and set apart
for payment, at which time such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the event of each and every
subsequent default of the character above described.
(d) Upon termination of such special voting rights attributable to all
holders of the Series E Preferred Stock and any other such series of Preferred
Stock ranking on a parity with the Series E Preferred Stock as to dividends or
upon liquidation, dissolution or winding up and upon which like voting rights
have been conferred and are exercisable, the term of office of each director
elected by the holders of shares of Series E Preferred Stock and such parity
Preferred Stock (a "Preferred Stock Director) pursuant to such special voting
rights shall immediately terminate and the number of directors constituting
the entire Board of Directors shall be reduced by the number of Preferred
Stock Directors. Any Preferred Stock Director may be removed by, and shall
not be removed otherwise than by, a majority of the votes to which the holders
of the outstanding shares of Series E Preferred Stock and all other such
series of Preferred Stock ranking on a parity with the Series E Preferred
Stock with respect to dividends who were entitled to participate in such
Preferred Stock Directors election, voting as a single class, are entitled.
If the office of any Preferred Stock Director becomes vacant by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, the remaining Preferred Stock Director may choose a successor who
shall hold office for the unexpired term in respect of which such vacancy
occurred.
(e) In connection with any right to vote, each holder of Series E
Preferred Stock shall be entitled to one vote for each share held (the holders
of shares of any other series of Preferred Stock being entitled to such number
of votes, if any, for each share of stock held as may be granted to them).
7. Ranking. The Common Stock shall rank junior to the Series E Preferred
Stock as to dividends and upon liquidation, dissolution or winding up, as
described in Sections 2 and 3. The Series A Preferred Stock and Series C
Preferred Stock shall rank senior to the Series E Preferred Stock, and the
Series D Preferred Stock shall rank on a parity with the Series E Preferred
Stock, as to dividends and upon liquidation, dissolution or winding up, in
each case as described in Section 2 or 3, respectively, provided that the
Series E Preferred Stock shall so rank on a parity with the Series C Preferred
Stock at such times as there shall be no shares of Series A Preferred Stock
outstanding. Any other class or series of stock of the Corporation shall be
deemed to rank:
(a) prior to the Series E Preferred Stock, as to dividends or upon
liquidation, dissolution or winding up as described in Section 3,
respectively, if the holders of such class shall be entitled to the receipt of
dividends or of amounts distributable upon such a liquidation, dissolution or
winding up, as the case may be, in preference or priority to the holders of
the Series E Preferred Stock;
(b) on a parity with the Series E Preferred Stock, as to dividends or
upon liquidation, dissolution or winding up as described in section 3,
respectively, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share thereof be different from those of
the Series E Preferred Stock, if the holders of such class of stock and the
Series E Preferred Stock shall be entitled to the receipt of dividends or of
amounts distributable upon such a liquidation, dissolution or winding up, as
the case may be, in proportion to their respective amounts of accrued and
unpaid dividends per share or liquidation prices, without preference or
priority one over the other; and
(c) junior to the Series E Preferred Stock, as to dividends or upon
liquidation, dissolution or winding up as described in section 3,
respectively, if the holders of Series E Preferred Stock shall be entitled to
receipt of dividends or of amounts distributable upon such a liquidation,
dissolution or winding up, as the case may be, in preference or priority to the
holders of shares of such stock.
8. Definitions. For purposes of this Certificate of Designations,
Preferences and Rights of Series E Preferred Stock, the following terms shall
have the meanings indicated:
(a) "Automatic Conversion is defined in Section 4(a).
(b) "Automatic Conversion Date shall mean the third anniversary of
the Initial Issuance Date.
(c) "Base Number shall mean the number derived from dividing $100 by
the Initial Common Stock Price.
(d) "Business Day shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the State of New York or The
Commonwealth of Massachusetts are authorized or obligated by law or executive
order to close or a day which is or is declared a national or New York or
Massachusetts state holiday.
(e) "Closing Price with respect to any securities on any day shall
mean the closing sale price regular way on such day or, in case no such sale
takes place on such day, the average of the reported closing bid and asked
prices, regular way, in each case on the New York Stock Exchange, or, if such
security is not listed or admitted to trading on such Exchange, on the
principal national securities exchange or quotation system on which such
security is quoted or listed or admitted to trading, or, if not quoted or
listed or admitted to trading on any national securities exchange or quotation
system, the average of the closing bid and asked prices of such security on
the over-the-counter market on the day in question as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System, or a
similarly generally accepted reporting service, or if not so available, in such
manner as furnished by any New York Stock Exchange member firm selected from
time to time by the Board of Directors for that purpose.
(f) "Current Market Price shall mean the average of the daily
Closing Prices per share of Common Stock for the ten consecutive Trading Days
immediately prior to the date in question, provided, however, that, if any
event that results in an adjustment of the Exchange Rate occurs during the
period beginning on the first day of such ten-day period and ending on the
applicable conversion date, the Current Market Price as determined pursuant to
the foregoing shall be appropriately adjusted to reflect the occurrence of
such event.
(g) The "Exchange Rate shall be equal to (a) if the Current Market
Price on the date of determination is equal to or greater than 120% of the
Initial Common Stock Price (the "Threshold Common Stock Price), the number of
shares of Common Stock equal to 0.83333333 of the Base Number (the "Upper
Exchange Rate), (b) if the Current Market Price on the date of determination
is less than the Threshold Common Stock Price but greater than the Initial
Common Stock Price, the number of shares of Common Stock having a value
(determined at the Current Market Price) equal to the Initial Preferred Stock
Price (the "Middle Exchange Rate), and (c) if the Current Market Price on the
date of determination is equal to or less than the Initial Common Stock Price,
a number of shares of Common Stock (the "Lower Exchange Rate) equal to the
Base Number; provided that for all purposes relating to optional conversion by
a holder pursuant to Section 4(b) the Exchange Rate shall be equal to the
Upper Exchange Rate. The Exchange Rate is subject to adjustment as set forth
in Section 4(d).
(h) "Fair Market Value on any day shall mean the average of the
daily Closing Prices of a share of Common Stock of the Corporation on the five
(5) consecutive Trading Days selected by the Corporation commencing not more
than 20 Trading Days before, and ending not later than, the earlier of the day
in question and the day before the "ex date with respect to the issuance or
distribution requiring such computation. The term "'ex' date, when used with
respect to any issuance or distribution, means the first day on which the
Common Stock trades regular way, without the right to receive such issuance or
distribution, on the exchange or in the market, as the case may be, used to
determine that day's Closing Price.
(i) "Full Cumulative Dividends shall mean, with respect to the
Series E Preferred Stock, or any other capital stock of the Corporation, as of
any date the aggregate amount of all then accumulated, accrued and unpaid
dividends payable on such shares of Series E Preferred Stock, or other capital
stock, as the case may be, in cash, whether or not earned or declared and
whether or not there shall be funds legally available for the payment thereof.
(j) "Initial Common Stock Price shall mean $15.4375 per share of
Common Stock.
(k) "Initial Issuance Date" shall mean the date on which shares of
Series E Preferred Stock are initially issued by the Company.
(l) "Initial Preferred Stock Price" shall mean $100 per share.
(m) "Lower Exchange Rate" is defined in the definition of "Exchange
Rate".
(n) "Middle Exchange Rate" is defined in the definition of "Exchange
Rate".
(o) "Optional Conversion is defined in Section 4(b).
(p) "Optional Conversion Date is defined in Section 4(b).
(q) "Record Date shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common
Stock have the right to receive any cash, securities or other property or in
which the Common Stock (or other applicable security) is exchanged or
converted into any combination of cash, securities or other property, the date
fixed for determination of stockholders entitled to receive such cash,
securities of other property (whether such dated is fixed by the Board of
Directors or by statute, contract or otherwise), and with respect to any
subdivision or combination of the Common Stock,
the effective date of such subdivision or combination.
(r) "Rights shall mean the rights of the Corporation which are
issuable under the Rights Agreement, or rights to purchase any capital stock
of the Corporation under any successor shareholder rights plan or plan adopted
in replacement of the Rights Agreement.
(s) "Rights Agreement" shall mean any agreement similar to the
Corporation's previous Rights Agreement dated as of April 26, 1988 between the
Corporation and State Street Bank and Trust Company, as Rights Agent, as the
same may be amended from time to time.
(t) "Series A Preferred Stock" shall mean the Corporation's New Series
A Cumulative Convertible Preferred Stock.
(u) "Series C Preferred Stock" shall mean the Corporation's $3.125
Series C Cumulative Convertible Preferred Stock.
(v) "Series D Preferred Stock" shall mean the Corporation's Series D
Cumulative Convertible Preferred Stock.
(w) "Threshold Common Stock Price is defined in the definition of
"Exchange Rate".
(x) "Trading Day shall mean (x) if the applicable security is listed
or admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or such other
national securities exchange is open for business or (y) if the applicable
security is quoted on the National Market System of the National Association
of Securities Dealers Automated Quotation System, a day on which trades may be
made on such National Market System or (z) if the applicable security is not
so listed, admitted for trading or quoted, any day other than a Saturday or
Sunday or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(y) "Transfer Agent shall mean State Street Bank and Trust Company,
or any other national or state bank or trust company having combined capital
and surplus of at least $100,000,000 and designated by the Corporation as the
transfer agent and/or registrar of the Series E Preferred Stock, or if no such
designation is made, the Corporation.
(z) "Upper Exchange Rate" is defined in the definition of "Exchange
Rate".
IN WITNESS WHEREOF, The TJX Companies, Inc., has caused this Certificate
of Designation to be signed by its Vice President - Finance and its Secretary
this 16th day of November, 1995.
THE TJX COMPANIES, INC.
By: /s/ STEVEN R. WISHNER
Steven R. Wishner
Vice President - Finance
Attest: /s/ JAY H. MELTZER
Jay H. Meltzer
Secretary