Standstill and Registration Rights Agreement
This Standstill Agreement (the "Agreement"), dated as of November 17,
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 (as amended, 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 1.1 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 1.2 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 1.3 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).
Article II
Term
Section 2.4 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 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 3.5 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;
(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 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 3.6 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 4.7 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 (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.
(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 4.8 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 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 4.9 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.
Article V
Registration Rights
Section 5.10 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 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 5.11 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 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 5.12 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 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.
Section 5.13 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 5.14 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
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 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 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
Section 5.15 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 5.16 Holdback Agreements. If and to the extent requested by
the managing underwriter or underwriters, in the case of any underwritten
public offering, Subscriber agrees 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 6.17 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 6.18 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 6.19 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 6.20 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 6.21 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.
Section 6.22 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 6.23 Headings. Descriptive headings are for convenience only
and will not control or affect the meaning or construction of any provision of
this Agreement.
Section 6.24 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 6.25 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
Xxx Xxxxxx Xxxx
Xxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Chief Executive Officer, Chief
Financial
Officer and General Counsel
With a copy to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
If to Issuer to it at: The TJX Companies, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopier: 000-000-0000
Attn: President and General Counsel
With a copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier: 000-000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Unless otherwise specified herein, such notices or other communications shall
be deemed received (a) in the case of any notice or communication sent other
than by mail, on the date actually delivered to such address (evidenced, in
the case of delivery by overnight courier, by confirmation of delivery from
the overnight courier service making such delivery, and in the case of a
telecopy, by receipt of a transmission confirmation form or the addressee's
confirmation of receipt), or (b) in the case of any notice or communication
sent by mail, three Business Days after being sent, if sent by registered or
certified mail, with first-class postage prepaid. Each of the parties hereto
shall be entitled to specify a different address by giving notice as aforesaid
to each of the other parties hereto.
Section 6.26 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 6.27 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:
