EXHIBIT 2
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This AMENDMENT NO. 1 (the "Amendment") to the Rights Agreement (the "Rights
Agreement") dated as of July 10, 1997 between BJ's Wholesale Club, Inc., a
Delaware corporation (the "Company"), and First Chicago Trust Company of New
York, a New York corporation, as Rights Agent (the "Rights Agent"), is entered
into as of the 4th day of February, 1999. Capitalized terms not otherwise
defined herein shall have the respective meanings given to them in the Rights
Agreement.
RECITALS
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company to amend the Rights Agreement as set forth herein.
WHEREAS, the Company has requested that the Rights Agreement be amended in
accordance with Section 27 of the Rights Agreement, as set forth herein, and the
Rights Agent is willing to amend the Rights Agreement as set forth herein.
AGREEMENT
NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as
follows:
1. The WHEREAS clause of the Rights Agreement is hereby amended and restated
to read in its entirety as follows:
"WHEREAS, on July 10, 1997 the Board of Directors of the Company (the
"Board" or "Board of Directors") authorized and declared a dividend
distribution of one Right for each share of Common Stock (as hereinafter
defined) of the Company outstanding at the close of business on July 10,
1997 (the "Record Date"), and authorized the issuance of one Right (as such
number may hereinafter be adjusted pursuant to the provisions of Section
11(p) hereof) for each share of Common Stock of the Company issued between
the Record Date (whether originally issued or delivered from the Company's
treasury) and the earlier of the Distribution Date or the Expiration Date,
each Right initially representing the right to purchase one one-thousandth
of a share of Series A Junior Participating Preferred Stock of the Company
having the rights, powers and preferences set forth in the form of
Certificate of Designations attached hereto as Exhibit A, upon the terms
and subject to the conditions hereinafter set forth (the "Rights");"
2. Section 1(i) of the Rights Agreement is hereby deleted in its entirety and
replaced with the following:
"(i) Intentionally omitted."
3. Section 1(p) of the Rights Agreement is hereby deleted in its entirety and
replaced with the following:
"(p) Intentionally omitted."
4. The penultimate sentence of Section 3(a) of the Rights Agreement is hereby
amended and restated to read in its entirety as follows:
"In the event that an adjustment in the number of Rights per share of
Common Stock has been made pursuant to Sections 11(i) or 11(p) hereof, at
the time of distribution of the Right Certificates, the Company shall make
the necessary and appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Rights Certificates representing only whole
numbers of Rights are distributed and cash is paid in lieu of any
fractional Rights."
5. Section 4(b) of the Rights Agreement is hereby amended and restated to read
in its entirety as follows:
"(b) Any Rights Certificate issued pursuant to Section 3, Section
11(i) or Section 22 hereof that represents Rights beneficially owned by
persons known to be: (i) an Acquiring Person or an Associate or Affiliate
of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any
such Associate or Affiliate) who becomes a transferee after the Acquiring
Person becomes such, or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for consideration)
from the Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights or
(B) a transfer which the Board of Directors of the Company has determined
is part of a plan, arrangement or understanding that has as a primary
purpose or effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof upon
transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the extent
feasible) the following legend:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring Person
or an Affiliate or Associate of an Acquiring Person (as such terms are
defined in
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the Rights Agreement). Accordingly, this Rights Certificate and the
Rights represented hereby may become null and void in the
circumstances specified in Section 7(e) of such Agreement."
6. Section 7(a) of the Rights Agreement is hereby amended and restated to read
in its entirety as follows:
"(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the restrictions
on exercisability set forth in Section 9(c), Section 11(a)(iii) and Section
23(a) hereof) in whole or in part at any time after the Distribution Date
upon surrender of the Rights Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly executed, to
the Rights Agent at the office of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price with respect
to the total number of one one-thousandths of a share (or other shares,
securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the earliest of (i)
the Final Expiration Date, (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof (the "Redemption Date") or (iii) the time
at which such Rights are exchanged as provided in Section 24 hereof (the
earliest of (i), (ii) and (iii) being herein referred to as the "Expiration
Date")."
7. Section 11(a)(ii) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(ii) Subject to Section 24 of this Agreement, in the event that any
Person, alone or together with its Affiliates or Associates, becomes an
Acquiring Person, then, promptly following the first occurrence of such
event, proper provision shall be made so that each holder of a Right
(except as provided below and in Section 7(e) hereof) shall thereafter have
the right to receive (subject to the last sentence of Section 23(a)), upon
exercise thereof at the then current Purchase Price in accordance with the
terms of this Agreement, in lieu of a number of one one-thousandths of a
share of Preferred Stock, such number of shares of Common Stock of the
Company that equals the result obtained by (x) multiplying the then current
Purchase Price by the then number of one one-thousandths of a share of
Preferred Stock for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event, and (y) dividing that
product (which, following such first occurrence, shall thereafter be
referred to as the "Purchase Price" for each Right and for all purposes of
this Agreement) by 50% of the current market price (determined pursuant to
Section 11(d) hereof) per share of Common Stock on the date of such first
occurrence (such number of shares, the "Adjustment Shares")."
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8. Section 11(f) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(f) If as a result of an adjustment made pursuant to Section
11(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any securities other than
Preferred Stock, thereafter the number of such other securities so
receivable upon exercise of any Right and the Purchase Price thereof shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Preferred Stock contained in Sections 11(a), (b), (c), (e), (g), (h), (i),
(j), (k) and (m), and the provisions of Sections 7, 9, 10, 13 and 14 hereof
with respect to the Preferred Stock shall apply on like terms to any such
other securities; provided, however, that the Company shall not be liable
for its inability to reserve and keep available for issuance upon exercise
of the Rights pursuant to Section 11(a)(ii) a number of shares of Common
Stock greater than the number then authorized by the Company's certificate
of incorporation but not outstanding or reserved for other purposes."
9. Section 13(a) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(a) In the event that, at any time after a Person has become an
Acquiring Person, (x) the Company shall consolidate with, or merge with and
into, any other Person (other than a Subsidiary of the Company in a
transaction that complies with Section 11(o) hereof), and the Company
shall not be the continuing or surviving corporation of such consolidation
or merger, (y) any Person (other than a Subsidiary of the Company in a
transaction that complies with Section 11(o) hereof) shall consolidate
with, or merge with or into, the Company, and the Company shall be the
continuing or surviving corporation of such consolidation or merger and, in
connection with such consolidation or merger, all or part of the
outstanding shares of Common Stock shall be changed into or exchanged for
stock or other securities of any other Person or cash or any other property
(other than a merger or consolidation in which the shares of Common Stock
of the Company outstanding immediately prior to such merger or
consolidation are changed into or exchanged for shares of common stock
representing more than 75% of the voting power of such other Person), or
(z) the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one transaction or a
series of related transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions each of which
complies with Section 11(o) hereof), then, and in each such case, proper
provision shall be made so that: (i) each holder of a Right, except as
provided in Section 7(e) hereof, shall thereafter have the right to
receive,
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upon the exercise thereof at the then current Purchase Price in accordance
with the terms of this Agreement, such number of validly authorized and
issued, fully paid, non-assessable and freely tradeable shares of Common
Stock of the Principal Party (as such term is hereinafter defined), not
subject to any liens, encumbrances, rights of first refusal or other
adverse claims, as shall be equal to the result obtained by (1) multiplying
the then current Purchase Price by the number of one one-thousandths of a
share of Preferred Stock for which a Right is exercisable immediately prior
to the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii)
Event has occurred prior to the first occurrence of a Section 13 Event,
multiplying the number of such one one-thousandths of a share for which a
Right was exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event by the Purchase Price in effect immediately prior
to such first occurrence), and (2) dividing that product (which, following
the first occurrence of a Section 13 Event, shall be referred to as the
"Purchase Price" for each Right and for all purposes of this Agreement) by
50% of the current market price (determined pursuant to Section 11(d)(i)
hereof) per share of the Common Stock of such Principal Party on the date
of consummation of such Section 13 Event; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such Section 13
Event, all the obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be deemed to refer to
such Principal Party, it being specifically intended that the provisions of
Section 11 hereof shall apply only to such Principal Party following the
first occurrence of a Section 13 Event; (iv) such Principal Party shall
take such steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to its shares of Common Stock thereafter deliverable
upon the exercise of the Rights; and (v) the provisions of Section
11(a)(ii) hereof shall be of no effect following the first occurrence of
any Section 13 Event."
10. Section 13(d) of the Rights Agreement is hereby deleted in its entirety.
11. Section 22 of the Rights Agreement is hereby amended and restated to add
the following sentence at the end thereof:
"In addition, in connection with the issuance or sale of shares of Common
Stock following the Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with respect to shares of
Common Stock so issued or sold pursuant to the exercise of stock options or
under any employee plan or arrangement, or upon the exercise, conversion or
exchange of securities issued by the Company prior to the Distribution
Date, and (b) may, in any other case, if deemed necessary or appropriate by
the Board of Directors of the Company, issue Rights Certificates
representing the appropriate number of Rights in connection
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with such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued if, and to the extent that, the Company shall
be advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such Rights Certificate
shall be issued if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof."
12. Section 23(a) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(a) The Board of Directors of the Company may, at its option, at any
time prior to the earlier of (i) the close of business on the tenth
Business Day (or such later date as may be determined by the Board of
Directors of the Company pursuant to clause (i) of the first sentence of
Section 3(a) with respect to the Distribution Date) following the Stock
Acquisition Date (or, if the Stock Acquisition Date shall have occurred
prior to the Record Date, the close of business on the tenth Business Day
following the Record Date) or (ii) the Final Expiration Date, redeem all
but not less than all the then outstanding Rights at a redemption price of
$.01 per Right, as such amount may be appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the
"Redemption Price"). The redemption of the Rights by the Board may be made
effective at such time, on such basis and with such conditions as the Board
of Directors in its sole discretion may establish. The Company may, at its
option, pay the Redemption Price in cash, shares of Common Stock (based on
the "current market price," as defined in Section 11(d)(i) hereof, of the
Common Stock at the time of redemption) or any other form of consideration,
or any combination of any of the foregoing, deemed appropriate by the Board
of Directors of the Company. Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not be exercisable after the
first occurrence of a Section 11(a)(ii) Event until such time as the
Company's right of redemption hereunder has expired."
13. Section 23(c) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(c) In the event of a redemption of the Rights in accordance with
this Agreement, the Company may, at its option, discharge all of its
obligations with respect to the Rights by (i) issuing a press release
announcing the manner of redemption of the Rights in accordance with this
Agreement and (ii) mailing payment of the Redemption Price to the
registered holders of the Rights at their last addresses as they appear on
the registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the Transfer Agent of the
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Common Shares, and upon such action, all outstanding Rights and Right
Certificates shall be null and void without any further action by the
Company."
14. Section 27 of the Rights Agreement is hereby amended and restated to read
in its entirety as follows:
"Section 27. Supplements and Amendments. Except as provided in the
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penultimate sentence of this Section 27, for so long as the Rights are then
redeemable, the Company may, in its sole and absolute discretion, and the
Rights Agent shall, if the Company so directs, supplement or amend any
provision of this Agreement in any respect without the approval of any
holders of the Rights. At any time when the Rights are no longer
redeemable, except as provided in the penultimate sentence of this Section
27, the Company may, and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of any holders of
Rights in order (i) to cure any ambiguity or (ii) to correct or supplement
any provision contained herein which may be defective or inconsistent with
any other provisions herein, provided that no such supplement or amendment
shall adversely affect the interests of the holders of Rights as such
(other than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person). Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section 27, the Rights
Agent shall execute such supplement or amendment. Notwithstanding anything
contained in this Agreement to the contrary, no supplement or amendment
shall be made which changes the Redemption Price or the Final Expiration
Date. Prior to the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of the holders of
Common Stock."
15. Section 31 of the Rights Agreement is hereby amended and restated to read
in its entirety as follows:
"Section 31. Severability. If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated; provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid, void or
unenforceable and the Board determines in its good faith judgment that
severing the invalid, void or unenforceable language from this Agreement
would adversely affect the purpose or effect of this Agreement, the right
of redemption set forth in Section 23 hereof shall be reinstated and shall
not expire until the close of business on the tenth day following the date
of such determination by the Board of Directors of the Company."
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16. Except as amended hereby, the Rights Agreement shall remain unchanged and
shall remain in full force and effect.
17. This Amendment may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective duly authorized representatives as of the date first above
written.
BJ'S WHOLESALE CLUB, INC.
By: /s/ Xxxxx X. Forward
-----------------------------------
Name: Xxxxx X. Forward
Title: Executive Vice President and
Chief Financial Officer
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
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