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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): June 6, 1995
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THE TJX COMPANIES, INC.
(Exact name of Registrant as specified in charter)
DELAWARE 1-4908 04-2207613
(State or other (Commission File (I.R.S employer
jurisdiction of Number) Identification No.)
Incorporation)
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770 Cochituate Road, Framingham, MA 01701
(Address of Principal Executive Offices) (Zip Code)
(508) 390-1000
Registrant's Telephone number including area code
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ITEM 5. OTHER EVENTS.
On June 6, 1995, the Registrant amended its By-Laws. The complete text
of the By-Laws, as amended, is included as Exhibit 3.
In addition, a form of Underwriting Agreement is filed herewith in
connection with a Registration Statement on Form S-3 (File No. 33-60059) filed
by the Registrant on June 7, 1995. The form of Underwriting Agreement refers
specifically to the Registrant's sale of Notes pursuant to a Preliminary
Prospectus Supplement and Prospectus, each dated June 13, 1995, filed with the
Commission pursuant to Rule 424(b)(3) under the Securities Act of 1933.
On June 1, 1995 the Registrant issued a press release containing sales
information for the month ended May 27, 1995. As set forth in the press
release, while consolidated sales increased 8% over the same period in 1994,
consolidated comparable store sales decreased 2% from last year's level. The
difficult U.S. apparel environment experienced in the first quarter of 1995,
which contributed to a 2% decrease in consolidated comparable store sales and a
decline in net income from the first quarter of 1994, continued into the
Registrant's second quarter.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) EXHIBITS.
Exhibit Number Title
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1 Form of Underwriting Agreement by and between
the Registrant and Salomon Brothers Inc, for
itself and the other several Underwriters named
therein.
3 (ii) By-Laws of the Registrant, as amended through
June 6, 1995.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE TJX COMPANIES, INC.
/s/ DONALD G. CAMPBELL
By ______________________________
Donald G. Campbell
Senior Vice President-Finance
Date: June 12, 1995
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EXHIBIT INDEX
Exhibit Number Description
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1 Form of Underwriting Agreement by and between the
Registrant and Salomon Brothers Inc, for itself
and the other several Underwriters named therein.
3 (ii) By-Laws of the Registrant, as amended through
June 6, 1995.
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The TJX Companies, Inc.
Underwriting Agreement
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
The TJX Companies, Inc., a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representative") are acting as
representative, the principal amount of its securities identified in Schedule I
hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of September 15, 1993, between the Company and The First National Bank
of Chicago, as trustee (the "Trustee"). If the firm or firms listed in Schedule
II hereto include only the firm or firms listed in Schedule II hereto, then the
terms "Underwriters" and "Representative", as used herein, shall each be deemed
to refer to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter, as set forth in this
Section 1.
(a) If the offering of the Securities is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for
the use of Form S-3 under the Securities Act of 1933, as
amended (the "Securities Act") and has filed with the
Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth
in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Securities Act of the
offering and sale of the Securities. The Company may have
filed one or more amendments thereto, and may have used a
Preliminary Final Prospectus (as defined below), each of which
has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering
of the Securities is a Delayed Offering and, although the
Basic Prospectus (as defined below) may not include all the
information with respect to the Securities and the offering
thereof required by the Securities Act and the rules
thereunder to be included in the Final Prospectus (as defined
below), the Basic Prospectus includes all such information
required by the Securities Act and the rules thereunder to be
included therein as of the Effective Date (as defined below).
The Company will next file with the Commission pursuant to
Rules 415 and 424(b)(2) or (5) a final
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supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent
the Representative shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time (as defined below) or, to the
extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(ii) The Company meets the requirements for
the use of Form S-3 under the Securities Act and has filed
with the Commission a registration statement (the file number
of which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the
Securities Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of such
registration statement, an amendment to such registration
statement, including the form of final prospectus supplement.
In the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Securities Act and the rules thereunder to be included in the
Final Prospectus with respect to the Securities and the
offering thereof. As filed, such final prospectus supplement
or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all
other such required information, with respect to the
Securities and the offering thereof and, except to the extent
the Representative shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement (as
defined below) did or will, and when the Final Prospectus is first
filed (if required) in accordance with Rule 424(b) and on the Closing
Date, the Final Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the
Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the respective rules thereunder; on the
Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material
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respects with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) any information relating to the
Underwriters that was contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representative specifically for inclusion in the Registration Statement
or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) contained in the Registration
Statement at the Effective Date including, in the case of a Non-Delayed
Offering, any Preliminary Final Prospectus. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the
Basic Prospectus. "Final Prospectus" shall mean the prospectus
supplement relating to the Securities that is first filed pursuant to
Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus,
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred
to in paragraph (a), including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective), and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule 424",
"Rule 430A" and "Regulation S-K" refer to such rules or regulation
under the Securities Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Securities Act on or before the
Effective Date of the Registration
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Statement or the issue date of the Basic Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration
statement, with the result that, pursuant to Rules 415 and 430A, all
information (other than Rule 430A Information) with respect to the
securities so offered must be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an
offering of securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration statement, with
the result that only information required pursuant to Rule 415 need be
included in such registration statement at the effective date thereof
with respect to the securities so offered. Whether the offering of the
Securities is a Non-Delayed Offering or a Delayed Offering shall be
set forth in Schedule I hereto.
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of Delaware,
has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Company
and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Final Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business or
operations of the Company and its subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws
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affecting creditors' rights generally and (ii) may be limited by
equitable principles of general applicability.
(h) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and duly paid for by the Underwriters
pursuant to this Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) may be
limited by equitable principles of general applicability.
(i) When issued, the Securities will conform to the
description contained in the Final Prospectus under the caption
"Description of Notes."
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Securities and the Indenture will not violate any provision of
applicable law or conflict with or result in a default under or
pursuant to the certificate of incorporation or by-laws of the Company
or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Securities and the Indenture, except registration under the Securities
Act of the Securities and under the Trust Indenture Act of the
Indenture and such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Securities.
(k) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, other than any such violation or default that would not have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole.
(l) There has not occurred any material adverse change, or any
development that would reasonably be expected to cause a material
adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Final Prospectus; and
there have been no transactions entered into by the Company or any of
its subsidiaries which are required to be disclosed in the Final
Prospectus, other than those set forth in the Final Prospectus.
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(m) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Final Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Final Prospectus (or required to be filed under the
Exchange Securities Act if upon such filing they would be incorporated
by reference therein), as amended or supplemented, or to be filed as
exhibits to the Registration Statement that are not described or filed
as required.
(n) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Final Prospectus, except to
the extent that the failure to obtain or file would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole. Except as set forth in the Final Prospectus, the
Company has not been notified in writing that any federal or state
authorities intend to modify, suspend or revoke any such consents,
authorizations, approvals, orders, certificates or permits or that such
authorities or any other governmental agencies are conducting any
material investigation of the Company or any subsidiary or related
parties other than in the ordinary course of administrative review. The
Company and its subsidiaries own, or are licensed or otherwise have
sufficient right to use, all material trademarks or trade names in or
necessary for the conduct of their business as described in the Final
Prospectus. No material claims have been asserted against the Company
or any of its subsidiaries by any person to the use of any trademarks
or trade names or challenging or questioning the validity or
effectiveness of any such trademark or trade name. The use, in
connection with the business and operations of the Company and its
subsidiaries, of their trademarks and trade names does not infringe on
the rights of any person, other than infringements which, singly or in
the aggregate, would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business or
operations of the Company and its subsidiaries, taken as a whole.
(o) There are no contracts or documents of the Company or any
of its subsidiaries that are required to be filed as exhibits to the
Registration Statement or to any documents incorporated by reference
therein by the Securities Act or the Exchange Act or by the rules and
regulations of the Commission thereunder that have not been so filed.
(p) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, except for such certificates, authorizations and permits
the failure to possess which would not result in a material adverse
change in the condition, financial or otherwise, or in the earnings,
business or
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operations of the Company and its subsidiaries, taken as a whole, and
neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, except as described in or
contemplated by the Final Prospectus.
(q) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(r) The Company and its subsidiaries are (i) in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole.
(s) Each of the Company and its subsidiaries has title in fee
simple to all real property and good and marketable title to all
personal property owned by them that is material to the business of the
Company and its subsidiaries, taken as a whole, in each case free and
clear of all liens, charges, encumbrances or restrictions except such
as (i) are referred to in the Final Prospectus, (ii) do not materially
affect the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the Company
and its subsidiaries, or (iii) were incurred in the ordinary course of
business and are not, singly or in the aggregate, material to the
condition, financial or otherwise, or on the earnings, business or
operations of the Company and its subsidiaries, taken as a whole; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases (except as the enforceability thereof may be limited by the
effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors and the effect of general principles
of equity) with such exceptions as are not material, singly or in the
aggregate, and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and
its subsidiaries, in each case except as described in or contemplated
by the Final Prospectus.
(t) The accountants who have certified or shall certify the
certified financial statements filed or to be filed with the Commission
as part of the Registration Statement
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and the Final Prospectus are independent accountants as required by the
Securities Act. The consolidated financial statements of the Company
and its subsidiaries (together with the related notes thereto) included
in the Registration Statement present fairly the financial position and
results of operations of the Company and its subsidiaries at the
respective dates and for the respective periods to which they apply,
subject to normal year-end adjustments. Such financial statements have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved except
as otherwise stated therein.
(u) There are no holders of securities (debt or equity) of the
Company or any of its subsidiaries, or holders of rights, options, or
warrants to obtain securities of the Company or any of its
subsidiaries, who have the right to have securities held by them
registered by the Company under the Securities Act in connection with
the offering of the Securities and there are no holders of debt
securities of the Company or any of its subsidiaries, or holders of
rights, options or warrants to obtain debt securities of the Company or
any of its subsidiaries, who have the right to have debt securities
held by them registered by the Company under the Securities Act.
(v) The Company has complied with all provisions of Section
517.075, Florida Statutes, relating to doing business with the
Government of Cuba or with any person or any affiliate located in Cuba.
(w) The Securities, when issued, will be rated as "investment
grade securities" by a "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(x) The net sales of the Company and T.J. Maxx of Texas, Inc.,
T.J. Maxx of PA, Inc., T.J. Maxx of Illinois, Inc., Hit or Miss, Inc.,
Chadwicks of Boston, Ltd., NBC First Realty Corp., NBC Second Realty
Corp., NBC Fourth Realty Corp. and NBC Sixth Realty Corp.
(collectively, excluding the Company, the "Significant Subsidiaries"),
determined in accordance with generally accepted accounting principles,
accounted for not less than 90% of the net sales of the Company and its
subsidiaries, taken as a whole, for the fiscal year ended January 28,
1995 and the thirteen weeks ended April 29, 1995. The total assets of
the Company and the Significant Subsidiaries, determined in accordance
with generally accepted accounting principles, accounted for not less
than 90% of the total assets of the Company and its subsidiaries, taken
as a whole, as of April 29, 1995.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later
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date not later than four business days after such specified date as the
Representative shall designate), which date and time may be postponed by
agreement between the Representative and the Company or as provided in Section 8
hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representative for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representative of the
purchase price thereof to or upon the order of the Company by certified or
official bank check or checks drawn on, or wire transferred to, an account
designated in writing by the Company and payable in immediately available funds.
Delivery of the Securities shall be made at such location as the Representative
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Securities shall be registered in such
names and in such denominations as the Representative may request not less than
two full business days in advance of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representative of such
timely filing. The Company will promptly advise the Representative (i)
when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact
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or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the
Securities Act or the Exchange Act or the respective rules thereunder,
the Company promptly will (i) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission
or effect such compliance and (ii) supply any supplemented Prospectus
to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder covering
twelve-month periods beginning, in each case, not later than the first
day of the Company's fiscal quarter next following the "effective date"
(as defined in Rule 158 under the Securities Act) of the Registration
Statement with respect to each sale of Securities. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after
the close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the period
covered thereby.
(d) The Company will furnish to the Representative and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits and all amendments thereto and all
documents incorporated by reference therein) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the
Securities Act, as many copies of any Preliminary Final Prospectus and
the Final Prospectus and any supplement thereto as the Representative
may reasonably request.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdiction as the
Representative may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the business date set forth on Schedule I hereto,
the Company will not, without the consent of the Representative, offer,
sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Securities).
(g) The Company shall furnish to the Representative such
relevant documents and certificates of officers of the Company relating
to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or
supplements thereto, the Indenture, the Securities, this Agreement, and
the performance by the Company of its obligations hereunder or
thereunder as the Representative may from time to time reasonably
request.
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(h) The Company shall notify the Representative promptly in
writing of any downgrading, or of its receipt of any notice of any
intended or potential downgrading or of any review for possible change
that does not indicate the direction of the possible change, in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(i) The Company will, whether or not any sale of Securities is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including:
(i) the preparation and filing of the Registration Statement, any
Preliminary Final Prospectus and the Final Prospectus and all
amendments and supplements thereto, (ii) the preparation, issuance and
delivery of the Securities, (iii) the fees and disbursements of the
Company's counsel and accountants and of the Trustee and its counsel,
(iv) the qualification of the Securities under securities or Blue Sky
laws in accordance with the provisions of Section 4(e), including
filing fees and the fees and disbursements of Latham & Watkins, counsel
for the Representative, in connection therewith and in connection with
the preparation of any Blue Sky or Legal Investment Memoranda, (v) the
printing and delivery to the Representative in quantities as
hereinabove stated of copies of the Registration Statement and all
amendments thereto and of any Preliminary Final Prospectus and the
Final Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Representative of copies of any Blue Sky
or Legal Investment Memoranda, (vii) any fees payable to rating
agencies for the rating of the Securities, (viii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., including fees and
disbursements of Latham & Watkins, counsel for the Representative, in
connection therewith, and (ix) any out-of-pocket expenses incurred by
the Representative approved in advance by the Company.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representative agrees in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
12:00 Noon on the business day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b);
and no stop order suspending the
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effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representative the
opinion of Ropes and Gray, special counsel for the Company, dated the Closing
Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Final Prospectus, as
then amended or supplemented, and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole;
(ii) each of the Significant Subsidiaries is a subsidiary
of the Company, has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Delaware, has the
corporate power and authority to own its property and to conduct its
business as described in the Final Prospectus, as then amended or
supplemented, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) may be
limited by equitable principles of general applicability;
(v) the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and duly paid for by the Underwriters
pursuant to this Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws
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affecting creditors' rights generally and (ii) may be limited
by equitable principles of general applicability;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Securities, and the Indenture will not
violate any provision of applicable law or conflict with or
result in a default under or pursuant to the certificate of
incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is an
exhibit to the Registration Statement, or any judgment, order
or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Securities, and the Indenture, except such as
may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Securities;
(vii) the statements (1) in the Final Prospectus, as
then amended or supplemented, under the captions "Description
of Notes" and "Description of the Debt Securities," (2) in the
Registration Statement under Item 15, and (3) in "Item 3 -
Legal Proceedings" of the Company's most recent annual report
on Form 10-K incorporated by reference in the Final
Prospectus, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(viii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Final Prospectus (or
required to be filed under the Exchange Act if upon such
filing they would be incorporated by reference therein), as
then amended or supplemented, and that are not so described or
of any statutes, regulations, contracts or other documents
that are required to be described in the Registration
Statement or the Final Prospectus (or required to be filed
under the Exchange Act if upon such filing they would be
incorporated by reference therein), as then amended or
supplemented, or to be filed as exhibits to such Registration
Statement that are not described, filed or incorporated as
required;
(ix) such counsel is of the opinion ascribed to it in
the Final Prospectus, as then amended or supplemented, under
the caption "United States Federal Taxation";
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(x) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended;
(xi) such counsel has participated in discussions
with various representatives of the Company and Coopers &
Lybrand L.L.P., independent public accountants for the
Company, in certain of which your representatives and counsel
also participated, at which the business and affairs of the
Company and the contents of the Registration Statement, the
Final Prospectus and any amendment thereof or supplement
thereto were discussed. Such counsel also has made inquiries
of representatives of the Company and its accountants as to
whether there have been any material changes in the affairs of
the Company since the date that the Registration Statement
became effective. There is no assurance that all material
facts as to the Company and its affairs were disclosed to such
counsel or that their familiarity with the Company is such
that they have necessarily recognized the materiality of such
facts as were disclosed to them, and they have to a large
extent relied upon statements of representatives of the
Company as to materiality of the facts disclosed to them.
Except with respect to the description referred to in
subparagraphs (vii) and (ix) above, such counsel is not
passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Final Prospectus.
Based upon such counsel's participation in the
foregoing discussions, the foregoing inquiries and their
examination of the documents referred to above and such other
documents as came to their attention as a result of such
discussions and inquiries such counsel is of the opinion that
(1) each document, if any, filed pursuant to the Exchange Act
and incorporated by reference in the Final Prospectus, as then
amended or supplemented (except for financial statements and
schedules included therein as to which such counsel need not
express any opinion), complied when so filed as to form in all
material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder and (2) the
Registration Statement and Final Prospectus, as then amended
or supplemented, if applicable (except for financial
statements and schedules included therein as to which such
counsel need not express any opinion), comply as to form in
all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
Further, such counsel has no reason to believe that (3)
(except for financial statements and schedules as to which
such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the form
T-1 heretofore referred to) the Registration Statement, as
then amended, if applicable, when it became effective
contained, and as of the date such opinion is delivered,
contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading and
(4) (except for financial statements and schedules as to which
such counsel need not express any belief) the Final
Prospectus, as then amended or supplemented, if
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applicable, as of the date such opinion is delivered contains
any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(xii) the Registration Statement has become
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the
Commission.
The opinion of Ropes & Gray described in this paragraph (b)
shall be rendered to you at the request of the Company and shall so state
therein.
Ropes and Gray will not be required to deliver the opinions
set forth in subparagraphs (ii) and (viii) and clauses (3) and (4) of
subparagraph (vii) of this paragraph (b)(i) if Jay Meltzer, Esq., the General
Counsel of the Company, delivers such opinions to you. If Mr. Meltzer elects to
deliver the opinions set forth in the immediately preceding sentence, Mr.
Meltzer's opinion shall also include the opinion contained in subparagraph (vi)
of this paragraph (b) with respect to any agreement or other instrument binding
upon the Company or any of its subsidiaries that is not an exhibit to the
Registration Statement.
(c) The Representative shall have received from Latham &
Watkins, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representative may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a
certificate of the Company, signed by the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that the signer of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
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(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) The Representative shall have received letters from
Coopers & Lybrand L.L.P., independent public accountants, dated as of
the Execution Time and the Closing Date (in the latter case
constituting an affirmation of the statements set forth in the
former), in form and substance reasonably satisfactory to the
Representative, with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Final Prospectus.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been 2.
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or 3. any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representative, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g)(2) under the
Securities Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
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The documents required to be delivered by this Section 5 shall
be delivered at the office of Latham & Watkins counsel for the Underwriters, at
885 Third Avenue, New York, New York, on the Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 5 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expense (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of either the Securities Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act,
the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i) any breach or alleged breach of any representation, warranty
or agreement of the Company contained in this Agreement or (ii) any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission thereof or supplement thereto, to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action, as incurred; provided, however,
that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity
with written information relating to the Underwriters that was
furnished to the Company by the Underwriters specifically for use in
connection with the preparation thereof. This indemnity agreement will
be in addition to any liability which the Company may otherwise have;
provided further that the Company shall not be liable to any
Underwriter and each person, if any, who controls any Underwriter as
aforesaid with respect to the Basic Prospectus or the Final Prospectus
to the extent such loss, claim, damage or liability results from the
fact that such Underwriter sold Securities to a person who was not sent
or given, prior to or concurrently with written confirmation of such
sale, a copy of the Final Prospectus or the Final Prospectus as amended
or supplemented in each case where such delivery is required by the
Securities Act, if the Company has previously
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furnished copies thereof to such Underwriter and the loss, claim,
damage or liability of such Underwriter is caused by such untrue
statement or omission that was corrected in such Final Prospectus or
Final Prospectus as amended or supplemented.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the
Company within the meaning of either the Securities Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with reference to (i) any breach or alleged
breach of any representation, warranty or agreement of such Underwriter
contained in this Agreement or (ii) written information relating to
such Underwriter furnished to the Company through the Representative
specifically for use in the preparation of the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the
cover page and the third and fourth paragraph under the heading
"Underwriting" in any Preliminary Final Prospectus and in the Final
Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity and you, as the Representative,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under the Section 7, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party will relieve the indemnifying party of liability
under this Section 7 only to the extent actually prejudiced by such
omission and will not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be a legal defense available to it
and/or other indemnified parties which is different from or additional
to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable
to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the
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immediately preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party shall have authorized the employment of
counsel for the indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel with respect to matters
of local law or for the purpose of allowing pro hac vice appearance
only) for all such indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriters and such control person of the
Underwriters, such firm shall be designated in writing by Salomon
Brothers Inc. In the case of any such firm for the Company, such firm
shall be designated in writing by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any 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 on claims that are the subject
matter of such proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Securities; provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among Underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company and of the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses), and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether
any alleged untrue statement
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or omission relates to information provided by the Company or the
Underwriters. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 7, each person who controls an Underwriter within the
meaning of either the Securities Act or the Exchange Act and each
director, officer, employee and agent of such Underwriter shall have
the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Securities
Act or the Exchange Act, and each officer of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representative shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the New York
Stock Exchange or trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal of New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the offering or
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delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto, after the date hereof).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representative, will be
mailed, delivered or telefaxed and confirmed to Salomon Brothers Inc at Seven
World Trade Center, New York, New York 10048, Attention: Pam Kendall, (telefax
number: 212-783-2274), with a copy to Latham & Watkins, 885 Third Avenue, New
York, New York 10128, Attention: Kirk A. Davenport, Esq. (telefax number:
212-751-4864), or, if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to the Company at 770 Cochituate Road, Framingham,
Massachusetts, 01701, Attention: General Counsel (telefax number 508-390-2457),
with a copy to Ropes & Gray, One International Place, Boston, Massachusetts
02110, Attention: Arthur G. Siler, Esq. (telefax number: 617-951-7050).
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
[signature page follows]
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
The TJX Companies, Inc.
By:_______________________
Title:
The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I
hereto.
Salomon Brothers Inc
By:___________________________________
Vice President
For itself and the other several Underwriters, if
any, named in Schedule II to the foregoing
Agreement.
22
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SCHEDULE I
Underwriting Agreement dated: June ____, 1995
Registration Statement No.: 33-60059
Representative: Salomon Brothers Inc
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include
accrued interest or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: Delayed Offering
Date referred to in Section 4(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):___________ .
24
SCHEDULE II
Principal Amount of
Underwriters Securities to be Purchased
- ------------ --------------------------
SALOMON BROTHERS INC $
BA SECURITIES, INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
-----------
Total: $
===========
1
[As amended through 6/6/95]
THE TJX COMPANIES, INC.
------------
BY-LAWS
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ARTICLE I
Certificate of Incorporation
The name, location of the principal office or place of business in the
State of Delaware, and the nature of the business or objects or purposes of the
corporation shall be as set forth in its certificate of incorporation. These
by-laws, the powers of the corporation and of its directors and stockholders,
and all matters concerning the management of the business and conduct of the
affairs of the corporation shall be subject to such provisions in regard
thereto, if any, as are set forth in the certificate of incorporation; and the
certificate of incorporation is hereby made a part of these by-laws. In these
by-laws, references to the certificate of incorporation mean the provisions of
the certificate of incorporation (as that term is defined in the General
Corporation Law of the State of Delaware) of the corporation as from time to
time in effect, and references to these by-laws or to any requirement or
provision of law mean these by-laws or such requirement or provision of law as
from time to time in effect.
ARTICLE II
Annual Meeting of Stockholders
The annual meeting of stockholders shall be held either (i) at 11:00
a.m. on the first Tuesday in June in each year, unless that day be a legal
holiday at the place where the meeting is to be held, in which case the meeting
shall be held at the same hour on the next succeeding day not a legal holiday,
or (ii) at such other date and time as shall be designated from time to time by
the board of directors and stated in the notice of the meeting, at which the
stockholders shall elect a board of directors and transact such other business
as may be required by law or these by-laws or as may properly come before the
meeting.
ARTICLE III
Special Meetings of Stockholders
Except as otherwise required by law and or as fixed pursuant to the
provisions of Article FOURTH of the certificate of incorporation relating to the
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, special meetings of the
stockholders may be called only by the chairman of the board, the president, or
the
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board of directors pursuant to a resolution approved by a majority of the
entire board of directors. Such call shall state the time, place and purposes of
the meeting.
ARTICLE IV
Place of Stockholders' Meetings
The annual meeting of the stockholders, for the annual election of
directors and other purposes, shall be held at such place within or without the
State of Delaware as the board of directors shall fix for such meeting.
Adjourned meetings of the stockholders shall be held at such places and at such
times as the board of directors shall fix. Special meetings of the stockholders,
and adjourned special meetings of the stockholders, shall be held at such places
within or without the State of Delaware and such time as the board of directors
shall fix.
ARTICLE V
Notice of Stockholders' Meetings
Except as may be otherwise required by law, by the certificate of
incorporation or by other provisions of these by-laws, and subject to the
provisions of Article XXII, a written notice of each meeting of stockholders,
stating the place, day and hour thereof and the purposes for which the meeting
is called, shall be given, at least ten days before the meeting, to each
stockholder entitled to vote thereat, by leaving such notice with him or at his
residence or usual place of business, or by mailing it, postage prepaid,
addressed to such stockholder at his address as it appears upon the books of the
corporation. Such notice shall be given by the secretary, or in case of the
death, absence, incapacity or refusal of the secretary, by some other officer or
by a person designated by the board of directors.
ARTICLE VI
Quorum and Action of Stockholders
Any action required or permitted to be taken by the stockholders of the
corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
At any meeting of the stockholders, a quorum for the election of
directors or for the consideration of any question shall consist of a majority
of the stock issued and outstanding; except in any case where a larger quorum is
required by law, by the certificate of incorporation or by these by-laws. Stock
owned by the corporation, if any, shall not be deemed outstanding for this
purpose. In any case any meeting may be adjourned from time to time by a
majority of the votes properly cast upon the question, whether or not a quorum
is present, and the meeting may be held as adjourned without further notice.
When a quorum for the election of any director is present at any
meeting, a plurality of the votes properly cast for election to such office
shall elect to such office. When a quorum for the consideration of a question is
present at any meeting, a majority of the votes properly cast upon the
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question shall decide the question; except in any case where a larger vote is
required by law, by the certificate of incorporation or by these by-laws.
ARTICLE VII
Proxies and Voting
Except as otherwise provided in the certificate of incorporation, and
subject to the provisions of Article XXV, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by proxy for
each share of the capital stock held by such stockholder, but no proxy shall be
voted on after three years from its date, unless the proxy provides for a longer
period; and except where the transfer books of the corporation shall have been
closed or a date shall have been fixed as a record date for the determination of
the stockholders entitled to vote, as provided in Article XXV, no share of stock
shall be voted on at any election for directors which has been transferred on
the books of the corporation within twenty days next preceding such election of
directors. Shares of the capital stock of the corporation belonging to the
corporation shall not be voted upon directly or indirectly.
Persons holding stock in a fiduciary capacity shall be entitled to vote
the shares so held, or to give any consent permitted by law, and persons whose
stock is pledged shall be entitled to vote, or to give any consent permitted by
law, unless in the transfer by the pledgor on the books of the corporation he
shall have expressly empowered the pledgee to vote thereon, in which case only
the pledgee or his proxy may represent said stock and vote thereon or give any
such consent.
The secretary shall prepare and make, at least ten days before every
election of directors, a complete list of the stockholders entitled to vote at
said election, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder during ordinary
business hours, at the place where said election is to be held, for said ten
days, and shall be produced and kept at the time and place of election during
the whole time thereof, and subject to the inspection of any stockholder who may
be present. The original or duplicate stock ledger shall be the only evidence as
to who are stockholders entitled to examine such list or to vote in person or by
proxy at such election.
ARTICLE VIII
OMITTED
ARTICLE IX
Board of Directors
The whole board of directors shall consist of not less than three nor
more than fifteen directors. Within such limits the whole number of directors
shall be fixed from time to time, subject to the provisions of Article XXI
hereof, by action of the board of directors.
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Except as otherwise fixed pursuant to the provisions of Article FOURTH
of the certificate of incorporation relating to the rights of the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under specified
circumstances, the number of directors of the corporation shall be fixed from
time to time by or pursuant to these by-laws. The directors, other than those
who may be elected by the holders of any class or series of stock having
preference over the Common Stock as to dividends or upon liquidation, shall be
classified, with respect to the time for which they severally hold office, into
three classes, designated Class I, Class II and Class III, as nearly equal in
number as possible, with the term of office of one Class expiring each year. At
the annual meeting of stockholders in 1985, directors of Class I shall be
elected to hold office for a term expiring at the next succeeding annual
meeting, directors of Class II shall be elected to hold office for a term
expiring at the second succeeding annual meeting and directors of Class III
shall be elected to hold office for a term expiring at the third succeeding
annual meeting, with the members of each Class to hold office until their
successors are elected and qualified. At each subsequent annual meeting of the
stockholders of the Corporation, the successors to the Class of directors whose
term expires at such meeting shall be elected to hold office for a term expiring
at the annual meeting of stockholders held in the third year following the year
of their election.
References in these by-laws to the whole board of directors mean the
whole number fixed as herein or in the certificate of incorporation provided,
irrespective of the number at the time in office.
Each newly created directorship resulting from any increase in the
number of directors may be filled only as provided in Article XXI for the
filling of a vacancy in the office of a director.
No director need be a stockholder.
Except as otherwise fixed pursuant to the provisions of Article FOURTH
of the certificate of incorporation relating to the rights of holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, nominations for the election of directors may be
made by the board of directors or a committee appointed by the board of
directors or by any stockholder entitled to vote in the election of directors
generally. However, any stockholder entitled to vote in the election of
directors generally may nominate one or more persons for election as directors
at a meeting only if written notice of such stockholder's intent to make such
nomination or nominations has been personally delivered to or otherwise received
by the secretary of the corporation not later than (i) with respect to an
election to be held at an annual meeting of stockholders, ninety days prior to
the anniversary date of the immediately preceding annual meeting, and (ii) with
respect to an election to be held at a special meeting of stockholders for the
election of directors, the close of business on the tenth day following the date
on which notice of such meeting is first given to stockholders. Each such notice
shall set forth: (a) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission; and (e)
the consent of each nominee to serve as a director of the corporation if so
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elected. The presiding officer of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing procedure.
ARTICLE X
Powers of the Board of Directors
The board of directors shall have and may exercise all the powers of
the corporation; except such as are conferred upon the stockholders by law, by
the certificate of incorporation or by these by-laws.
ARTICLE XI
Committees
The board of directors may at any time and from time to time, by
resolution adopted by a majority of the whole board, designate, change the
membership of or terminate the existence of any committee or committees,
including if desired any executive committee, each committee to consist of two
or more of the directors of the corporation. Each such committee shall have such
name as may be determined from time to time by resolution adopted by a majority
of the whole board of directors and shall have and may exercise such powers of
the board of directors in the management of the business and affairs of the
corporation, including power to authorize the seal of the corporation to be
affixed to all papers which may require it, as may be determined from time to
time by resolution adopted by a majority of the whole board. All minutes of
proceedings of committees shall be available to the board of directors on its
request.
In the absence or disqualification of any member of such committee or
committees the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in place of such absent or disqualified member.
ARTICLE XII
Meetings of the Board of Directors
Regular meetings of the board of directors may be held without call or
formal notice at such places either within or without the State of Delaware and
at such times as the board may from time to time determine. A regular meeting of
the board of directors may be held without call or formal notice immediately
after and at the same place as the annual meeting of the stockholders.
Special meetings of the board of directors may be held at any time and
at any place either within or without the State of Delaware when called by the
chairman of the board (if any), the president, the treasurer or two or more
directors, reasonable notice thereof being given to each director by the
secretary, or in the case of the death, absence, incapacity or refusal of the
secretary, by the officer or directors calling the meeting, or without call or
formal notice if each director then in office is either present or waives notice
as provided in Article XXII. In any case it shall be deemed sufficient notice to
a director to send notice by mail at least forty-eight hours or by telegram
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at least twenty-four hours before the meeting addressed to him at his usual or
last known business or residence address or to give notice to him in person
either by telephone or by handing him a written notice at least twenty-four
hours before the meeting.
ARTICLE XIII
Quorum and Action of Directors
At any meeting of the board of directors, except in any case where a
larger quorum or the vote of a larger number of directors is required by law, by
the certificate of incorporation or by these by-laws, a quorum for any election
or for the consideration of any question shall consist of a majority of the
directors then in office, but in any case not less than two directors; but any
meeting may be adjourned from time to time by a majority of the votes cast upon
the question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice. When a quorum is present at any meeting, the
votes of a majority of the directors present and voting shall be requisite and
sufficient for election to any office, and a majority of the directors present
and voting shall decide any question brought before such meeting, except in any
case where a larger vote is required by law, by the certificate of incorporation
or by these by-laws.
ARTICLE XIV
Consent by Directors or Committees
To the extent permitted by law, whenever a vote or resolution at a
meeting of the board of directors or of any committee thereof is required or
permitted to be taken in connection with any corporate action by any provision
of law or of the certificate of incorporation or of these by-laws, such meeting
and such vote or resolution may be dispensed with and such corporate action may
be taken without such meeting, vote or resolution, if a written consent to such
corporate action is signed by all members of the board or of such committee, as
the case may be, and such written consent if filed with the minutes of the
proceedings of the board or of such committee.
ARTICLE XV
Chairman of the Board of Directors
A chairman of the board may be elected annually from among the
directors by the board of directors at its first meeting following the annual
meeting of the stockholders and shall serve until the first meeting of the board
of directors following the next annual meeting of the stockholders and until his
successor is elected, or until he dies, resigns, is removed or replaced or
becomes disqualified.
The chairman of the board (if any) shall preside at all meetings of the
stockholders and of the board of directors at which he is present, except that
if there is no chairman or in the absence of the chairman, or at the request of
the chairman, the president shall preside. The chairman (if any) shall have such
other duties and powers as may be designated from time to time by the board of
directors.
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ARTICLE XVI
Officers and Agents
The officers of the corporation shall be a president, a treasurer, a
secretary, and such other officers, if any, as the board of directors may in its
discretion elect. The board of directors may delegate to the chief executive
officer the authority to appoint assistant vice presidents, assistant
treasurers, assistant secretaries and such agents, if any, as he may in his
discretion determine to appoint. So far as is permitted by law any two or more
offices may be held by the same person. The chief executive officer may appoint
such officers of the divisions of the corporation as he in his discretion shall
determine, the officers of divisions not being officers of the corporation.
Officers of the divisions may also be appointed officers of the corporation by
the board of directors or by the chief executive officer as above provided.
Subject to law, to the certificate of incorporation and to the other
provisions of these by-laws, each officer elected by the board of directors or
appointed by the chief executive officer shall have, in addition to the duties
and powers herein set forth, such duties and powers as are commonly incident to
his office and such duties and powers as the board of directors or the chief
executive officer may from time to time designate.
Officers elected by the board of directors shall be elected annually at
its first meeting following the annual meeting of the stockholders. Officers
appointed by the chief executive officer shall be appointed annually by the
chief executive officer on the day of the annual meeting of the stockholders.
Additional officers may be elected by the board of directors or appointed by the
chief executive officer at any time.
Each officer elected by the board of directors shall hold office until
the first meeting of the board of directors following the next annual meeting of
the stockholders and until his successor is elected or appointed and qualified,
or until he sooner dies, resigns, is removed or replaced or becomes
disqualified. Each officer and agent appointed by the chief executive officer
shall retain his authority at the pleasure of the chief executive officer.
ARTICLE XVII
President
The president shall be the chief executive officer of the corporation
with ultimate responsibility for the corporation's planning and operations, both
financial and operational subject to the policies and direction of the board of
directors.
ARTICLE XVIII
Chief Financial Officer
The chief financial officer is responsible for execution of all
financial policies, plans, procedures and controls of the corporation, and the
maintenance of books and records with respect thereto, including accounting and
treasury functions, internal audit, budgets, borrowings, securities offerings,
investments, tax reporting and financial reporting all subject to the control of
the board
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of directors and the president. The chief financial officer shall have such
other duties and powers as may be designated from time to time by the board of
directors and the president.
ARTICLE XIX
Secretary and Treasurer
The secretary shall record all the proceedings of the meetings of the
stockholders and the board of directors, in a book or books to be kept for that
purpose, and in his absence from any such meeting a temporary secretary shall be
chosen who shall record the proceedings thereof.
The secretary shall have charge of the stock ledger (which may,
however, be kept by any transfer agent or agents of the corporation), an
original or duplicate of which shall at all times during the usual hours for
business be open to the examination of every stockholder at the principal office
of the corporation. The secretary shall have such other duties and powers as may
be designated from time to time by the board of directors or by the chief
executive officer.
The treasurer shall be in charge of the funds and valuable papers of
the corporation and shall have such other duties and powers as may be designated
from time to time by the board of directors, by the chief executive officer or
by the chief financial officer.
ARTICLE XX
Resignations and Removals
Any director or officer may resign at any time by delivering his
resignation in writing to the president or the secretary or to a meeting of the
board of directors, and such resignation shall take effect at the time stated
therein, or if no time be so stated then upon its delivery, and without the
necessity of its being accepted unless the resignation shall so state. Except as
otherwise fixed pursuant to the provisions of Article FOURTH of the certificate
of incorporation relating to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, any director may
be removed from office, without cause, only by the affirmative vote of the
holders of 66 2/3% of the combined voting power of the then outstanding shares
of stock entitled to vote generally in the election of directors, voting
together as a single class. The board of directors may at any time, by vote of a
majority of the directors present and voting, terminate or modify the authority
of any agent.
ARTICLE XXI
Vacancies
Except as otherwise fixed pursuant to the provisions of Article FOURTH
of the certificate of incorporation relating to the rights of the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect directors under specified circumstances,
newly created directorships resulting from any increase in the number of
directors and any vacancies on the board of directors resulting from death,
resignation, disqualification, removal or other cause shall be filled solely by
the affirmative vote of a majority
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of the remaining directors then in office, even though less than a quorum of the
board of directors, or by a sole remaining director. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the Class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been elected and qualified. No decrease in the number of directors constituting
the board of directors shall shorten the term of any incumbent director. If the
office of any officer becomes vacant, by reason of death, resignation, removal
or disqualification, a successor may be elected or appointed by the board of
directors by vote of a majority of the directors present and voting. Each such
successor officer shall hold office for the unexpired term, and until his
successor shall be elected or appointed and qualified, or until he sooner dies,
resigns, is removed or replaced or becomes disqualified. The board of directors
shall have and may exercise all its powers notwithstanding the existence of one
or more vacancies in the whole board, subject to any requirements of law or of
the certificate of incorporation or of these by-laws as to the number of
directors required for a quorum or for any vote, resolution or other action.
ARTICLE XXII
Waiver of Notice
Whenever any notice is required to be given by law or under the
provisions of the certificate of incorporation or of these by-laws, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein or otherwise fixed for the
meeting or other event for which notice is waived, shall be deemed equivalent to
such notice.
ARTICLE XXIII
Certificates of Stock
Every holder of stock in the corporation shall be entitled to have a
certificate, signed by, or in the name of the corporation by, the president or a
vice president and by the treasurer or an assistant treasurer or the secretary
or an assistant secretary of the corporation, certifying the number of shares
owned by him in the corporation; provided, however, that where such certificate
is signed (1) by a transfer agent or an assistant transfer agent or (2) by a
transfer clerk acting on behalf of the corporation and a registrar, the
signature of the president, vice president, treasurer, assistant treasurer,
secretary or assistant secretary may be facsimile. In case any officer or
officers who shall have signed or whose facsimile signature or signatures shall
have been used on, any such certificate or certificates shall cease to be such
officer or officers of the corporation, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the corporation, such certificate or certificates may nevertheless be adopted by
the corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such officer or officers
of the corporation, and any such issue and delivery shall be regarded as an
adoption by the corporation of such certificate or certificates. Certificates of
stock shall be in such form as shall, in conformity to law, be prescribed from
time to time by the board of directors.
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ARTICLE XXIV
Transfer of Shares of Stock
Subject to applicable restrictions upon transfer, if any, title to a
certificate of stock and to the shares represented thereby shall be transferred
only by delivery of the certificate properly endorsed, or by delivery of the
certificate accompanied by a written assignment of the same, or a written power
of attorney to sell, assign or transfer the same or the shares represented
thereby, properly executed; but the person registered on the books of the
corporation as the owner of shares shall have the exclusive right to receive the
dividends thereon and, except as provided in Article VII with respect to stock
which has been pledged, to vote thereon as such owner or to give any consent
permitted by law, and shall be held liable for such calls and assessments, if
any, as may lawfully be made thereon, and except only as may be required by law,
may in all respects be treated by the corporation as the exclusive owner
thereof. It shall be the duty of each stockholder to notify the corporation of
his post office address.
ARTICLE XXV
Transfer Books; Record Date
The board of directors shall have power to close the stock transfer
books of the corporation for a period not exceeding fifty days preceding the
date of any meeting of stockholders or the date for payment of any dividend or
the date for the allotment of rights or the date when any change or conversion
or exchange of capital stock shall go into effect or for a period of not
exceeding fifty days in connection with obtaining the consent of stockholders
for any purpose; provided, however, that in lieu of closing the stock transfer
books as aforesaid, the board of directors may fix in advance a date, not
exceeding fifty days preceding the date of any meeting of stockholders, or any
other of the above mentioned events, or a date in connection with obtaining such
consent, as a record date for the determination of the stockholders entitled to
notice of, and to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend, or to any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or
exchange of capital stock, or to give such consent, and in such case such
stockholders and only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend, or
to receive such allotment of rights, or to exercise such rights, or to give such
consent, as the case may be, notwithstanding any transfer of any stock on the
books of the corporation after any such record date fixed as aforesaid.
ARTICLE XXVI
Loss of Certificates
In the case of the alleged loss or destruction or the mutilation of a
certificate of stock, a duplicate certificate may be issued in place thereof,
upon such terms in conformity with law as the board of directors may prescribe.
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ARTICLE XXVII
Seal
The corporate seal of the corporation shall, subject to alteration by
the board of directors, consist of a flat-faced circular die with the word
"Delaware", together with the name of the corporation and the year of its
organization, cut or engraved thereon. The corporate seal of the corporation may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE XXVIII
Execution of Papers
Except as the board of directors may generally or in particular cases
authorize the execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts and other obligations made,
accepted or endorsed by the corporation shall be signed by the president or by
one of the vice presidents or by the treasurer.
ARTICLE XXIX
Fiscal Year
Except as from time to time otherwise provided by the board of
directors, the fiscal year of the corporation shall terminate on the last
Saturday in January of each year.
ARTICLE XXX
Amendments
The board of directors and the stockholders shall each have the power
to adopt, alter, amend and repeal these by-laws; and any by-laws adopted by the
directors or the stockholders under the powers conferred hereby may be altered,
amended or repealed by the directors or by the stockholders; provided, however,
that these by-laws shall not be altered, amended or repealed by action of the
stockholders, and no by-law shall be adopted by action of the stockholders,
without the affirmative vote of the holders of at least 66 2/3% of the voting
power of all the shares of the corporation entitled to vote generally in the
election of directors, voting together as a single class.
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