EXHIBIT 10.2
STANDSTILL AND REGISTRATION RIGHTS AGREEMENT
This Standstill Agreement (the "Agreement"), dated as of ___________, 1995,
is between Melville Corporation, a New York corporation ("Subscriber"), and The
TJX Companies, Inc., a Delaware corporation ("Issuer").
WHEREAS, simultaneously with the execution of this Agreement, Subscriber is
acquiring shares of Issuer's Series D Cumulative Convertible Preferred Stock,
par value $1.00 per share (the "Series D Preferred Stock") and shares of
Issuer's Series E Cumulative Convertible Preferred Stock, par value $1.00 per
share (the "Series E Preferred Stock" and together with the Series D Preferred
Stock, the "Preferred Stock"), pursuant to a Preferred Stock Subscription
Agreement dated as of the date hereof (the "Subscription Agreement") between
Subscriber and Issuer;
WHEREAS, Subscriber and Issuer entered into the Subscription Agreement
pursuant to, and in connection with the transactions contemplated by, the Stock
Purchase Agreement dated as of October 14, 1995 (the "Purchase Agreement")
between Subscriber and Issuer; and
WHEREAS, Issuer and Subscriber desire to establish in this Agreement
certain conditions of Subscriber's relationship with Issuer;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Subscription Agreement and the Purchase Agreement,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; REPRESENTATIONS AND WARRANTIES
SECTION 1.01 Definitions. Except as otherwise specified herein, defined
terms used in this Agreement shall have the respective meanings assigned to such
terms in the Purchase Agreement. Unless otherwise specified all references to
"days" shall be deemed to be references to calendar days.
SECTION 1.02 Representations and Warranties of Issuer. Issuer represents
and warrants to Subscriber as follows:
(a) The execution, delivery and performance by Issuer of this
Agreement and the consummation by Issuer of the transactions contemplated
by this Agreement are within its corporate powers and have been duly
authorized by all necessary corporate action on its part. This Agreement
constitutes a legal, valid and binding agreement of Issuer enforceable
against Issuer in accordance with its terms (i) except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally, including the effect of statutory and other laws
regarding fraudulent conveyances and preferential transfers, and (ii)
subject to the limitations imposed by general equitable principles
(regardless of whether such enforceability is considered in a proceeding at
law or in equity); and
(b) The execution, delivery and performance of this Agreement by
Issuer does not and will not contravene or conflict with or constitute a
default under Issuer's Charter or By-laws.
SECTION 1.03 Representations and Warranties of Subscriber. Subscriber
represents and warrants to Issuer as follows:
(a) The execution, delivery and performance by Subscriber of this
Agreement and the consummation by Subscriber of the transactions
contemplated by this Agreement are within its corporate powers and have
been duly authorized by all necessary corporate action on its part. This
Agreement constitutes a legal, valid and binding agreement of Subscriber
enforceable against Subscriber in accordance with its terms (i) except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, including the effect of statutory and other
laws regarding fraudulent conveyances and preferential transfers, and (ii)
subject to the limitations imposed by general equitable principles
(regardless of whether such enforceability is considered in a proceeding at
law or in equity);
(b) The execution, delivery and performance of this Agreement by
Subscriber does not and will not contravene or conflict with or constitute
a default under Subscriber's Charter or By-laws; and
(c) Subscriber "beneficially owns" (as such term is defined in Rule
13d-3 under the Exchange Act) the shares of the Preferred Stock issued to
it pursuant to the Subscription Agreement and neither Subscriber nor any
"affiliate" or "associate" (such terms being used in this Agreement as such
terms are defined in Rule 12b-2 under the Exchange Act), owns any other
Voting Securities (as defined in Section 2.01 herein).
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ARTICLE II
TERM
SECTION 2.01 Term. The term (the "Term") of this Agreement shall commence
on the date hereof and shall continue until the date on which the Voting Power
of the Voting Securities, on a fully diluted basis, beneficially owned by
Subscriber shall represent less than three percent (3%) of the Total Voting
Power. For the purposes of this Agreement (i) the term "Voting Securities"
shall mean any securities entitled to vote generally in the election of
directors of Issuer, or any direct or indirect rights or options to acquire any
such securities or any securities (including without limitation the Preferred
Stock) convertible or exercisable into or exchangeable for such securities,
whether or not such securities are so convertible, exercisable or exchangeable
at the time of determination, (ii) the term "Voting Power" shall mean the voting
power in the general election of directors of Issuer, and (iii) the term "Total
Voting Power" shall mean the total combined Voting Power of all the Voting
Securities then outstanding and entitled to vote; provided, however, that for
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purposes of this Agreement, the Voting Power of the Preferred Stock on any date
shall mean the voting power of the shares of the Issuer's common stock, par
value $1.00 per share ("Common Stock"), into which the shares of Preferred Stock
would be convertible on such date, assuming for this purpose only that the
Automatic Conversion Date (as defined in the Series D Preferred Stock and the
Series E Preferred Stock, respectively) were such date, at the Exchange Rate (as
so defined) then in effect.
ARTICLE III
STANDSTILL AND VOTING PROVISIONS
SECTION 3.01 Restrictions of Certain Actions by Subscriber. During the
Term, Subscriber will not, and will cause each of its affiliates and associates
not to, singly or as part of a partnership, limited partnership, syndicate or
other group (as those terms are used in Section 13(d)(3) of the Exchange Act),
directly or indirectly:
(a) acquire, offer to acquire, or agree to acquire, by purchase, gift
or otherwise, any Voting Securities, except pursuant to a stock split,
stock dividend, rights offering, recapitalization, reclassification or
similar transaction;
(b) make or in any way participate in any "solicitation" of "proxies"
to vote (as such terms are defined in Rule 14a-1 under the Exchange Act),
solicit any consent or communicate with or seek to advise or influence any
person or entity with respect to the voting of any Voting Securities or
become a "participant" in any "election contest" (as such terms are defined
or used in Rule 14a-11 under the Exchange Act) with respect to Issuer;
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(c) form, join or encourage the formation of, any "person" within the
meaning of Section 13(d)(3) of the Exchange Act with respect to any Voting
Securities; provided that this Section 3.01(c) shall not prohibit any such
arrangement solely among Subscriber and any of its wholly-owned
Subsidiaries;
(d) deposit any Voting Securities into a voting trust or subject any
such Voting Securities to any arrangement or agreement with respect to the
voting thereof; provided that this Section 3.01(d) shall not prohibit any
such arrangement solely among Subscriber and any of its wholly-owned
Subsidiaries;
(e) initiate, propose or otherwise solicit stockholders of the Issuer
for the approval of any stockholder proposal with respect to Issuer as
described in Rule 14a-8 under the Exchange Act, or induce or attempt to
induce any other person to initiate any such stockholder proposal;
(f) seek election to or seek to place a representative on the Board
of Directors of Issuer or seek the removal of any member of the Board of
Directors of Issuer;
(g) call or seek to have called any meeting of the stockholders of
Issuer;
(h) otherwise act to seek to control, direct or influence the
management, policies or affairs of Issuer;
(i) except as otherwise provided in Section 4.02 or Article V, sell
or otherwise transfer in any manner any Voting Securities to any "person"
(within the meaning of Section 13(d)(3) of the Exchange Act) who to the
knowledge of Subscriber beneficially owns or who as a result of such sale
or transfer will beneficially own at least three percent (3%) of the Total
Voting Power or who, without the approval of the Board of Directors of
Issuer, has proposed a business combination or similar transaction with, or
a change of control of, Issuer or who has proposed a tender offer for
Voting Securities or who has discussed with Subscriber the possibility of
proposing a business combination or similar transaction with, or a change
in control of, Issuer or a tender offer for Voting Securities; provided,
however, that insofar as this clause (i) has application to a sale or other
transfer by Subscriber to an institutional investor pursuant to Section
4.01, the reference to the words "three percent (3%)" shall be deemed to be
deleted from this clause (i) and replaced with the words "five percent
(5%)";
(j) solicit, seek to effect, negotiate with or provide any
information to any other party with respect to, or make any statement or
proposal, whether written or oral, to the Board of Directors of Issuer or
any director or officer of Issuer or otherwise
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make any public announcement or proposal whatsoever with respect to, any
form of business combination transaction involving Issuer, including,
without limitation, a merger, exchange offer or liquidation of Issuer's
assets, or any acquisition, disposition, restructuring, recapitalization or
similar transaction with respect to Issuer; or
(k) instigate or encourage any third party to do any of the
foregoing.
If Subscriber or any of its affiliates or associates owns or acquires any
Voting Securities in violation of this Agreement, such Voting Securities shall
immediately be disposed of to persons who are not affiliates or associates
thereof but only in compliance with the provisions of this Section 3.01;
provided, however, that Issuer may also pursue any other available remedy to
which it may be entitled as a result of such violation.
SECTION 3.02 Voting. (a) During the Term, whenever Subscriber (or any of
its affiliates or associates) shall have the right to vote their Voting
Securities, Subscriber (and any such affiliates or associates) shall (i) be
present, in person or represented by proxy, at all stockholder meetings of
Issuer so that all Voting Securities beneficially owned by it and its affiliates
and associates shall be counted for the purpose of determining the presence of a
quorum at such meetings, and (ii) subject to Section 3.02(b) below, vote or
cause to be voted, or consent with respect to, all Voting Securities
beneficially owned by it and its affiliates and associates in the manner
recommended by Issuer's Board of Directors, except that during any period or at
any time when there shall be in full force and effect a valid order or judgment
of a court of competent jurisdiction or a ruling, pronouncement or requirement
of the New York Stock Exchange, Inc. ("NYSE") to the effect that the foregoing
provisions of this Section 3.02 are invalid, void, enforceable or not in
accordance with NYSE policy, then Subscriber will, if so requested by the Board
of Directors of Issuer, vote or cause to be voted all of its Voting Securities
beneficially owned by it and its affiliates and associates in the same
proportion as the votes cast by or on behalf of the other holders of Issuer's
Voting Securities.
(b) Notwithstanding anything to the contrary contained in Section 3.02(a)
above, Subscriber shall have the right to vote freely, without regard to any
request or recommendation of the Board of Directors of Issuer, with respect to
the matters specified in Section 7 of the Certificate of Designations
establishing the terms of the Series D Preferred Stock and Section 7 of the
Certificate of Designations establishing the terms of the Series E Preferred
Stock.
ARTICLE IV
TRANSFER RESTRICTIONS
SECTION 4.01 Right of First Offer. (a) If Subscriber desires to transfer
any Voting Securities, it shall in each case comply with the provisions of
Section 3.01 and give written notice ("Subscriber's Notice") to Issuer (i)
stating that it desires to make such transfer, and
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(ii) setting forth the number of shares of Voting Securities proposed to be
transferred (the "Offered Shares"), the cash price per share that Subscriber
proposes to be paid for such Offered Shares (the "Offer Price"), and the other
material terms and conditions of such transfer. Subscriber's Notice shall
constitute an irrevocable offer by Subscriber to sell to Issuer the Offered
Shares at the Offer Price in cash.
(b) Within 5 Business Days after receipt of Subscriber's Notice, Issuer
may elect to purchase all (but not less than all) of the Offered Shares at the
Offer Price in cash by delivery of a notice ("Issuer's Notice") to Subscriber
stating Issuer's irrevocable acceptance of the Offer.
(c) If Issuer fails to elect to purchase all of the Offered Shares within
the time period specified in Section 4.01(b), then Subscriber may, subject to
compliance with the provisions of Section 3.01, within a period of 120 days
following the expiration of the time period specified in Section 4.01(b),
transfer (or enter into an agreement to transfer) all or any Offered Shares for
cash; provided, that if the purchase price per share to be paid by any purchaser
of the Offered Shares is less than 90% of the Offer Price (the "Reduced Transfer
Price"), Subscriber shall promptly provide written notice (the "Reduced Transfer
Price Notice") to Issuer of such intended transfer (including the material terms
and conditions thereof) and Issuer shall have the right, exercisable by delivery
of a written election notice to Subscriber within five Business Days of receipt
of such notice, to purchase such Offered Shares at the Reduced Transfer Price.
(d) If Issuer fails to elect to purchase the Offered Shares at the Offer
Price (or, if applicable, the Reduced Transfer Price) within the relevant time
period specified in Section 4.01(b) (or, if applicable, Section 4.01(c)) and
Subscriber shall not have transferred or entered into an agreement to transfer
the Offered Shares prior to the expiration of the 120-day period specified in
Section 4.01(c), the right of the first offer under this Section 4.01 shall
again apply in connection with any subsequent transfer of such Offered Shares.
(e) Any purchase of Voting Securities by Issuer pursuant to this Section
4.01 shall be on a mutually determined closing date which shall be not less than
30 days nor more than 45 days after the last notice is given with respect to
such purchase. The closing shall be held at 10:00 A.M., local time, at the
principal office of Issuer, or at such other time or place as the parties
mutually agree.
(f) On the closing date, Subscriber shall deliver (i) certificates
representing the shares of Voting Securities being sold, free and clear of any
Lien, and (ii) such other documents, including evidence of ownership and
authority, as Issuer may reasonably request. The purchase price shall be paid by
wire transfer of immediately available funds no later than 2:00 P.M. on the
closing date.
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(g) This Section 4.01 shall not apply to Subscriber's sale of Voting
Securities in an underwritten public offering registered under the Securities
Act pursuant to Article V.
SECTION 4.02 Rights Pursuant to a Tender Offer. Subscriber shall have the
right to sell or exchange all its Voting Securities pursuant to a tender or
exchange offer for at least a majority of the Voting Securities (an "Offer").
However, prior to such sale or exchange, Subscriber shall give Issuer the
opportunity to purchase such Voting Securities in the following manner:
(i) Subscriber shall give notice (the "Tender Notice") to Issuer in
writing of its intention to sell or exchange Voting Securities in response
to an Offer no later than three calendar days prior to the latest time
(including any extensions) by which Voting Securities must be tendered in
order to be accepted pursuant to such Offer, specifying the amount of
Voting Securities proposed to be tendered by Subscriber (the "Tendered
Shares") and the purchase price per share specified in the Offer at the
time of the Tender Notice.
(ii) Issuer shall have the right to purchase all, but not part, of
the Tendered Shares exercisable by giving written notice (an "Exercise
Notice") to Subscriber at least two calendar days prior to the latest time
after delivery of the Tender Notice by which Voting Securities must be
tendered in order to be accepted pursuant to the Offer (including any
extensions thereof) and depositing in escrow (or similar arrangement) a sum
in cash sufficient to purchase all Tendered Shares at the price then being
offered in the Offer, without regard to any provision thereof with respect
to proration or conditions to the offeror's obligation to purchase. The
delivery by Issuer of an Exercise Notice and deposit of funds as provided
above in response to a Tender Notice will, except as provided below,
constitute an irrevocable agreement by Issuer to purchase, and Subscriber
to sell, the Tendered Shares in accordance with the terms of this Section
4.02, whether or not the Offer or any other tender or exchange offer (a
"Competing Tender Offer") for Voting Securities that was outstanding during
the Offer is consummated.
(iii) The purchase price to be paid by Issuer for any Voting
Securities purchased by it pursuant to this Section 4.02 shall be the
highest price offered or paid in the Offer or in any Competing Tender
Offer. For purposes hereof, the price offered or paid in a tender or
exchange offer for Voting Securities shall be deemed to be the price
offered or paid pursuant thereto, without regard to any provisions thereof
with respect to proration or conditions to the offeror's obligation to
purchase. If the purchase price per share specified in the Offer includes
any property other than cash (the "Offer Noncash Property"), the purchase
price per share at which Issuer shall be entitled to purchase all, but not
part, of the Tendered Shares shall be (y) the amount of cash per share, if
any, specified in such Offer (the "Cash Portion"), plus (z) an amount
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of cash per share equal to the value of the Offer Noncash Property per
share (the "Cash Value of Offer Noncash Property"), as determined in good
faith by the mutual agreement of the parties hereto, or if the parties
cannot agree, by a nationally recognized investment banking firm selected
by mutual agreement of the parties. If Issuer exercises its right of first
refusal by giving an Exercise Notice, the closing of the purchase of the
Voting Securities with respect to such right (the "Closing") shall take
place at 3:00 p.m., local time (or, if earlier, two hours before the latest
time by which Voting Securities must be tendered in order to be accepted
pursuant to the Offer), on the last day on which Voting Securities must be
tendered in order to be accepted pursuant to the Offer (including any
extensions thereof) (the "Latest Tender Date"), and Issuer shall pay the
purchase price for the Voting Securities specified above. Subscriber shall
be entitled to rescind its Tender Notice at any time prior to the Latest
Tender Date by Notice in writing to Issuer; provided, however, that if on
or before the Latest Tender Date, Issuer publicly announces that Issuer has
approved, proposed or entered into an agreement with respect to (either
individually or together with any other persons) a recapitalization,
reorganization or business combination with respect to Issuer or all or
substantially all of its assets, Subscriber shall be entitled to rescind
its Tender Notice by notice in writing to Issuer at any time prior to the
Closing on the Latest Tender Date. If Subscriber rescinds its Tender
Notice pursuant to the immediately preceding sentence, Issuer's Exercise
Notice with respect to such Offer shall be deemed to be immediately
rescinded and Subscriber's disposition of its Voting Securities in response
to the Offer with respect to which the Tender Notice is rescinded or any
other Offer shall again be subject to all of the provisions of this Section
4.02.
(iv) If Issuer does not exercise its right of first refusal set
forth in this Section 4.02 within the time specified for such exercise by
giving an Exercise Notice, then Subscriber shall be free to accept, for all
its Voting Securities, the Offer with respect to which the Tender Notice
was given (including any increases and extensions thereof).
SECTION 4.03 Assignment of Rights. Issuer may assign any of its rights of
first refusal under this Article IV to any Subsidiary or Affiliate of Issuer
without the consent of Subscriber, provided, however, that no such assignment
shall relieve Issuer of any of its obligations pursuant to this Article IV. In
the event that Issuer elects to exercise a right of first refusal under this
Article IV, Issuer may specify in its Exercise Notice (or thereafter prior to
purchase) another such Person as its designee to purchase the Voting Securities
to which such notice relates.
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ARTICLE V
REGISTRATION RIGHTS
SECTION 5.01 Registration Upon Request. At any time commencing on the
date hereof and continuing thereafter, Subscriber shall have the right to make
written demand upon Issuer, on not more than two separate occasions (subject to
the provisions of this Section 5.01), to register under the Securities Act,
shares of Series E Preferred Stock or shares of Common Stock received by
Subscriber upon conversion or redemption of shares of Preferred Stock (such
shares of Series E Preferred Stock and Common Stock being referred to as the
"Subject Stock"), and Issuer shall use its best efforts to cause such shares to
be registered under the Securities Act as soon as reasonably practicable so as
to permit the sale thereof promptly; provided, however, that each such demand
shall cover at least $40 million liquidation preference of Series E Preferred
Stock (or any balance thereof exceeding $15 million) or 2 million shares of
Common Stock (subject to adjustment for stock splits, reverse stock splits,
stock dividends and similar events after the date hereof). In connection
therewith, Issuer shall prepare, and within 120 days of the receipt of the
request, file, on Form S-3 if permitted or otherwise on the appropriate form, a
registration statement under the Securities Act to effect such registration.
Subscriber agrees to provide all such information and materials and to take all
such action as may be reasonably required in order to permit Issuer to comply
with all applicable requirements of the Securities Act, the rules and
regulations thereunder and the Securities and Exchange Commission (the "SEC")
and to obtain any desired acceleration of the effective date of such
registration statement. If the offering to be registered is to be underwritten,
the managing underwriter shall be selected by Subscriber and shall be reasonably
satisfactory to Issuer and Subscriber shall enter into an underwriting agreement
containing customary terms and conditions. Notwithstanding the foregoing,
Issuer (i) shall not be obligated to prepare or file more than one registration
statement other than for purposes of a stock option or other employee benefit or
similar plan during any twelve-month period and (ii) shall be entitled to
postpone for a reasonable period of time, the filing of any registration
statement otherwise required to be prepared and filed by Issuer if (A) Issuer
is, at such time, conducting or about to conduct an underwritten public offering
of securities and is advised by its managing underwriter or underwriters in
writing (with a copy to Subscriber), that such offering would, in its or their
opinion, be materially adversely affected by the registration so requested, or
(B) Issuer determines in its reasonable judgment and in good faith that the
registration and distribution of the shares of Subject Stock would interfere
with any announced or imminent material financing, acquisition, disposition,
corporate reorganization or other material transaction of a similar type
involving Issuer. In the event of such postponement, Subscriber shall have the
right to withdraw the request for registration by giving written notice to
Issuer within 20 days after receipt of the notice of postponement (and, in the
event of such withdrawal, such request shall not be counted for purposes of
determining the number of registrations to which Subscriber is entitled pursuant
to this Section 5.01). Issuer shall not grant to any other holder of its
securities, whether currently outstanding or issued in the future (other than as
provided in the Share Purchase Agreement dated as of
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April 15, 1992 among Issuer and the other parties thereto and the Exchange
Agreement dated as of August 20, 1992 among the same parties, as presently in
effect, relating to Issuer's former Series A Cumulative Convertible Preferred
Stock and its New Series A Cumulative Convertible Preferred Stock (collectively,
the "Series A Agreements")), any incidental or piggyback registration rights
with respect to any registration statement filed pursuant to a demand
registration under this Section 5.01. Without the prior consent of Subscriber
(other than as provided in the Series A Agreements), Issuer will not permit any
other holder of its securities to participate in any offering made pursuant to a
demand registration under this Section 5.01.
In the event that Issuer does not redeem all of the then outstanding shares
of Series D Preferred Stock pursuant to Section 4(b) of the Certificate of
Designation of the Series D Preferred Stock (unless Subscriber shall have
elected to convert any such shares following receipt of notice of redemption
pursuant to Section 4(a) of such Certificate), (i) Subscriber shall be entitled
to an additional demand right under the first sentence of this Section 5.01,
subject to the minimum offering amounts requirement referred to above and (ii)
Issuer shall, from time to time, at Subscriber's reasonable request, provide an
opportunity for senior officers of Subscriber to meet with senior officers of
Issuer to discuss the business and affairs of Issuer.
SECTION 5.02 Incidental Registration Rights. If Issuer proposes to
register any of its Common Stock under the Securities Act (other than (i)
pursuant to Section 5.01 hereof, (ii) securities to be issued pursuant to a
stock option or other employee benefit or similar plan, and (iii) securities
proposed to be issued in exchange for other securities or assets (other than
cash) or in connection with a merger or consolidation with another corporation),
Issuer shall, as promptly as practicable, give written notice to Subscriber of
Issuer's intention to effect such registration. If, within 15 days after
receipt of such notice, Subscriber submits a written request to Issuer
specifying not less than one million shares of Common Stock constituting Subject
Stock that are then beneficially owned by Subscriber and that Subscriber
proposes to sell or otherwise dispose of in accordance with this Section 5.02,
Issuer shall use its best efforts to include the shares specified in
Subscriber's request in such registration. Subscriber may exercise its rights
under this Section 5.02 on no more than three separate occasions; provided that
if the number of securities that Subscriber had initially requested be included
in a registration under this Section 5.02 is reduced pursuant to clause (C)
below and Subscriber withdraws from such registration, then Subscriber's request
shall not be counted as one of such three requests. If the offering pursuant to
such registration statement is to be made by or through underwriters, the
Subscriber and such underwriter shall execute an underwriting agreement in
customary form. If the managing underwriter reasonably determines in good faith
and advises Subscriber that the inclusion in the registration statement of all
the Common Stock proposed to be included by all holders of Common Stock entitled
to participate (other than on a demand basis) would interfere with the
successful marketing of the securities proposed to be registered, then Issuer
will include in such registration that number of such shares of Common Stock
which does not exceed the number which such managing underwriter
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reasonably determines in good faith can be sold without interfering with the
successful marketing of the securities proposed to be registered based upon the
following order of priority: (A) first, the securities Issuer proposes to sell,
(B) second, the securities any participant exercising demand registration rights
proposes to sell and (C) third, the securities of each other Person who is
entitled to participate (other than on a demand basis) in such registration
(including Subscriber) on a pro rata basis based on the number of shares of
Common Stock owned by each such Person; provided that if the number of
securities that Subscriber had initially requested be included in a registration
under this Section 5.02 is reduced pursuant to clause (C), Subscriber may
withdraw all securities from such registration. No registration effected under
this Section 5.02 shall relieve Issuer of its obligation to effect any
registration upon request under Section 5.01. If Subscriber has been permitted
to participate in a proposed offering pursuant to this Section 5.02, Issuer
thereafter may determine either not to file a registration statement relating
thereto, or to withdraw such registration statement, or otherwise not to
consummate such offering, without any liability hereunder. Any underwriters
participating in a distribution of Subject Stock pursuant to Sections 5.01 and
5.02 hereof shall use all reasonable efforts to effect as wide a distribution as
is reasonably practicable, and in no event shall any sale (other than a sale to
underwriters making such a distribution) of shares of Subject Stock be made
knowingly to any person (including its affiliates or associates and any group in
which that person or its affiliates or associates shall be a member if
Subscriber or underwriters know of the existence of such a group or affiliate or
associate) that, after giving effect to such sale, would beneficially own at
least three percent (3%) of the Total Voting Power. Subscriber shall use all
reasonable efforts to secure the agreement of the underwriters, in connection
with any underwritten offering of its Subject Stock, to comply with the
foregoing.
SECTION 5.03 Registration Mechanics. In connection with any offering of
shares of Subject Stock registered pursuant to Section 5.01 and 5.02 herein,
Issuer shall (i) furnish to Subscriber such number of copies of any prospectus
(including preliminary and summary prospectuses) and conformed copies of the
registration statement (including amendments or supplements thereto and, in each
case, all exhibits) and such other documents as it may reasonably request, but
only while Issuer shall be required under the provisions hereof to cause the
registration statement to remain current; (ii)(A) use its best efforts to
register or qualify the Subject Stock covered by such registration statement
under such blue sky or other state securities laws for offer and sale as
Subscriber shall reasonably request and (B) keep such registration or
qualification in effect for so long as the registration statement remains in
effect; provided, however, that Issuer shall not be obligated to qualify to do
business as a foreign corporation under the laws of any jurisdiction in which it
shall not then be qualified or to file any general consent to service of process
in any jurisdiction in which such a consent has not been previously filed or
subject itself to taxation in any jurisdiction wherein it would not otherwise be
subject to tax but for the requirements of this Section 5.03; (iii) use its best
efforts to cause all shares of Subject Stock covered by such registration
statement to be registered with or approved by such other federal or state
government agencies or authorities as may be necessary in the opinion of counsel
to Issuer to enable Subscriber to consummate
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the disposition of such shares of Subject Stock; (iv) at any time when a
prospectus relating thereto is required to be delivered under the Securities Act
notify Subscriber upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances under which they were
made, and (subject to the good faith determination of Issuer's Board of
Directors as to whether to permit sales under such registration statement), at
the request of Subscriber promptly prepare and furnish to it a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, in the light of the circumstances under which
they were made; (v) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC; (vi) use its best efforts to list, if required
by the rules of the applicable securities exchange or, if securities of the same
class are then so listed, the Subject Stock covered by such registration
statement on the New York Stock Exchange or on any other securities exchange on
which Subject Stock is then listed; and (vii) before filing any registration
statement or any amendment or supplement thereto, and as far in advance as is
reasonably practicable, furnish to Subscriber and its counsel copies of such
documents. In connection with the closing of any offering of Subject Stock
registered pursuant to Section 5.01 or 5.02, Issuer shall (x) furnish to the
underwriter, if any, unlegended certificates representing ownership of the
Subject Stock being sold in such denominations as requested and (y) instruct any
transfer agent and registrar of the Subject Stock to release any stop transfer
orders with respect to such Subject Stock. Upon any registration becoming
effective pursuant to Section 5.01 or 5.02, Issuer shall use its best efforts to
keep such registration statement effective for a period of 60 days (or 90 days,
if Issuer is eligible to use a Form S-3, or successor form) or such shorter
period as shall be necessary to effect the distribution of the Subject Stock.
Subscriber agrees that upon receipt of any notice from Issuer of the
happening of any event of the kind described in subdivision (iv) of this Section
5.03, it will forthwith discontinue its disposition of Subject Stock pursuant to
the registration statement relating to such Subject Stock until its receipt of
the copies of the supplemented or amended prospectus contemplated by subdivision
(iv) of this Section 5.03 and, if so directed by Issuer, will deliver to Issuer
all copies then in its possession of the prospectus relating to such Subject
Stock current at the time of receipt of such notice. If Subscriber's
disposition of Subject Stock is discontinued pursuant to the foregoing sentence,
unless Issuer thereafter extends the effectiveness of the registration statement
to permit dispositions of Subject Stock by Subscriber for an aggregate of 60
days (or 90 days, if Issuer is eligible to use a Form S-3, or successor form),
whether or not consecutive, the registration statement shall not be counted for
purposes of determining the number of registrations to which Subscriber is
entitled pursuant to Section 5.01.
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SECTION 5.04 Expenses. Subscriber shall pay all agent fees and
commissions and underwriting discounts and commissions related to shares of
Subject Stock being sold by Subscriber and the fees and disbursements of its
counsel and accountants and Issuer shall pay all fees and disbursements of its
counsel and accountants in connection with any registration pursuant to this
Article V. All other fees and expenses in connection with any registration
statement (including, without limitation, all registration and filing fees, all
printing costs, all fees and expenses of complying with securities or blue sky
laws) shall (i) in the case of a registration pursuant to Section 5.01, be borne
by Issuer and (ii) in the case of a registration pursuant to Section 5.02, be
shared pro rata based upon the respective market values of the securities to be
sold by Issuer, Subscriber and any other holders participating in such offering
provided, that Subscriber shall not pay any expenses relating to work that would
otherwise be incurred by Issuer including, but not limited to, the preparation
and filing of periodic reports with the SEC.
SECTION 5.05 Indemnification and Contribution. In the case of any
offering registered pursuant to this Article V, Issuer agrees to indemnify and
hold Subscriber, each underwriter, if any, of the Subject Stock under such
registration and each person who controls any of the foregoing within the
meaning of Section 15 of the Securities Act, and any officer, employee or
partner of the foregoing, harmless against any and all losses, claims, damages
or liabilities (including reasonable legal fees and other reasonable expenses
incurred in the investigation and defense thereof) to which they or any of them
may become subject under the Securities Act or otherwise (collectively
"Losses"), insofar as any such Losses shall arise out of or shall be based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement relating to the sale of such Subject
Stock (as amended if Issuer shall have filed with the SEC any amendment
thereof), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the prospectus relating to the sale of such Subject
Stock (as amended or supplemented if Issuer shall have filed with the SEC any
amendment thereof or supplement thereto), or the omission or alleged omission to
state therein a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading,
provided, however, that the indemnification contained in this Section 5.05 shall
not apply to such Losses which shall arise out of or shall be based upon any
such untrue statement or alleged untrue statement, or any such omission or
alleged omission, which shall have been made in reliance upon and in conformity
with information furnished in writing to Issuer by Subscriber or any such
underwriter, as the case may be, specifically for use in connection with the
preparation of the registration statement or prospectus contained in the
registration statement or any such amendment thereof or supplement therein.
In the case of each offering registered pursuant to this Article V,
Subscriber agrees and each underwriter, if any, participating therein shall
severally agree, substantially in the same manner and to the same extent as set
forth in the preceding paragraph, to indemnify and hold harmless Issuer and each
person, if any, who controls Issuer within the meaning of Section 15
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of the Securities Act, and the directors and officers of Issuer, with respect to
any statement in or omission from such registration statement or prospectus
contained in such registration statement (as amended or as supplemented, if
amended or supplemented as aforesaid) if such statement or omission shall have
been made in reliance upon and in conformity with information furnished in
writing to Issuer by Subscriber or such underwriter, as the case may be,
specifically for use in connection with the preparation of such registration
statement or prospectus contained in such registration statement or any such
amendment thereof or supplement thereto.
Notwithstanding the provisions of this Section 5.05, no underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and the Subscriber
registering shares pursuant to Section 5.01 or Section 5.02 shall not be
required to contribute any amount in excess of the amount by which the total
price at which the securities of the Subscriber were offered to the public (less
underwriters' discounts and commissions) exceeds the amount of any damages which
the Subscriber has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
Each party indemnified under this Section 5.05 shall, promptly after
receipt of notice of the commencement of any claim against such indemnified
party in respect of which indemnity may be sought hereunder, notify the
indemnifying party in writing of the commencement thereof. The failure of any
indemnified party to so notify an indemnifying party shall not relieve the
indemnifying party from any liability in respect of such action which it may
have to such indemnified party on account of the indemnity contained in this
Section 5.05, unless (and only to the extent) the indemnifying party was
prejudiced by such failure, and in no event shall such failure relieve the
indemnifying party from any other liability which it may have to such
indemnified party. In case any action in respect of which indemnification may
be sought hereunder shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it may desire,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof through counsel reasonably satisfactory to the indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under this Section 5.05 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, other than reasonable costs of investigation (unless
such indemnified party reasonably objects to such assumption on the grounds that
there may be defenses available to it which are different from or in addition to
those available to such indemnifying party in which event such indemnified
party, and any other indemnified party to which any different or additional
defenses apply, shall be reimbursed by the indemnifying party for the reasonable
expenses incurred in connection with retaining one separate legal counsel for
all such indemnified
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parties). No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any claim or pending or threatened proceeding in respect of which
the indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability arising
out of such claim or proceeding.
If the indemnification provided for in this Section 5.05 is unavailable to
an indemnified party or is insufficient to hold such indemnified party harmless
from any Losses in respect of which this Section 5.05 would otherwise apply by
its terms (other than by reason of exceptions provided herein), then each
applicable indemnifying party, in lieu of indemnifying such an indemnified
party, shall have a joint and several obligation to contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative benefits received by and
fault of the indemnifying party, on the one hand, and such indemnified party, on
the other hand, in connection with the offering to which such contribution
relates as well as any other relevant equitable considerations. The relative
benefit shall be determined by reference to, among other things, the amount of
proceeds received by each party from the offering to which such contribution
relates. The relative fault shall be determined by reference to, among other
things, each party's relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, and the opportunity to
correct and prevent any statement or omission. The amount paid or payable by a
party as a result of any Losses shall be deemed to include any legal or other
fees or expenses incurred by such party is connection with any investigation or
proceeding, to the extent such party would have been indemnified for such
expenses if the indemnification provided for in this Section 5.05 was available
to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5.05 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1993 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
SECTION 5.06 Limitations on Registration Rights. Notwithstanding anything
to the contrary in this Article V, all rights of Subscriber under this Article V
shall be subject to the provisions of the Series A Agreements. To the extent
that any of the provisions of this Article V conflict with any provisions of the
Series A Agreements, the provisions of the Series A Agreements shall control and
there shall be no breach of or default under Article V of this Agreement to the
extent the performance of any term of Article V of this Agreement would cause a
breach of or default under either of the Series A Agreements.
SECTION 5.07 Holdback Agreements. If and to the extent requested by the
managing underwriter or underwriters, in the case of any underwritten public
offering, Subscriber agrees
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not to effect, except as part of such registration, any sale of shares of Common
Stock or Preferred Stock during the 14 days prior to, and during the 90-day
period beginning on, the effective date of such registration statement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Enforcement. Subscriber, on the one hand, and Issuer, on the
other, acknowledge and agree that irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically its provisions in any court having jurisdiction,
this being in addition to any other remedy to which they may be entitled at law
or in equity.
SECTION 6.02 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.
SECTION 6.03 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.
SECTION 6.04 Survival. All representations, warranties, covenants and
agreements made by or on behalf of any party hereto in this Agreement shall
survive the execution and delivery of this Agreement and the Closing.
SECTION 6.05 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 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 any of its rights or obligations hereunder
without the prior written consent of the other (except as set forth in Section
4.03) and (iii) no transfer or assignment by any party shall relieve such party
of any of its obligations hereunder.
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SECTION 6.06 Severability. If any provision of this Agreement is held by
a court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is declared to be the intention of
the parties that they would have executed the remaining provisions without
including any that may be declared unenforceable.
SECTION 6.07 Headings. Descriptive headings are for convenience only and
will not control or affect the meaning or construction of any provision of this
Agreement.
SECTION 6.08 Counterparts. For the convenience of the parties, any number
of counterparts of this Agreement may be executed by the parties, and each such
executed counterpart will be an original instrument.
SECTION 6.09 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 Seller, to it at: Melville Corporation
One Theall Road
Rye, New York 10580
Telecopier: 914-925-4052
Attention: 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.
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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.
SECTION 6.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive law of the State of
Delaware, 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.
SECTION 6.11 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 have caused this Standstill and
Registration Rights Agreement to be executed as of the date first referred to
above.
THE TJX COMPANIES, INC.
By: ____________________________________
Name:
Title:
MELVILLE CORPORATION
By: ____________________________________
Name:
Title:
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