<PAGE>
As filed with the Securities and Exchange Commission on July 10, 1997
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BJ'S WHOLESALE CLUB, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-3360747
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
One Mercer Road, Natick, Massachusetts 01760
Address of Principal Executive Offices) (Zip Code)
1997 REPLACEMENT STOCK INCENTIVE PLAN
1997 STOCK INCENTIVE PLAN
1997 DIRECTOR STOCK OPTION PLAN
(Full Titles of the Plans)
John J. Nugent
President
BJ's Wholesale Club, Inc.
One Mercer Road
Natick, Massachusetts 01760
(Name and Address of Agent for Service)
(508) 651-7400
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
---------- ---------- --------- ----- ---
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 3,650,000 $8.60(2) $31,390,000(2) $9,512.13
$.01 par value shares(1)
(including the
associated
Preferred Stock
Purchase Rights)
====================================================================================
</TABLE>
(1) Consists of (i) 150,000 shares issuable under the 1997 Director Stock
Option Plan, (ii) 500,000 shares issuable under the 1997 Replacement Stock
Incentive Plan, (iii) 1,000,000 shares issuable under the 1997 Stock
Incentive Plan, and (iv) 2,000,000 shares initially issuable under the 1997
Replacement Stock Incentive Plan. Following the expiration of the 1997
Replacement Stock Incentive Plan, the unissued balance of the shares
issuable under the 1997 Replacement Stock Incentive Plan (up to 2,000,000
shares) will be issuable under the 1997 Stock Incentive Plan.
(2) Calculated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of 1933
based on the book value of the shares of BJ's Wholesale Club, Inc., as of
April 26, 1997, the latest practicable date prior to the date of filing
the Registration Statement.
================================================================================
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's 1997 Replacement Stock Incentive Plan,
1997 Stock Incentive Plan and 1997 Director Stock Option Plan pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). The following documents, which are
on file with the Commission, are incorporated in this Registration
Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par
value per share (the "Common Stock"), contained in a registration statement
filed under the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
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<PAGE>
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The legality of the Common Stock being offered hereby will be passed
upon for the Company by Hale and Dorr LLP, Boston, Massachusetts.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite an adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
The Registrant has entered or will enter into indemnification
agreements with each of its directors and officers indemnifying them against
expenses, settlements, judgments and fines incurred in connection with any
threatened, pending or completed action, suit, arbitration or proceeding, where
the individual's involvement is by reason of the fact that such person is or was
a director or officer of the Registrant or served at the request of the
Registrant as a director of another organization (except that
II-2
<PAGE>
indemnification is not provided against judgments and fines in a derivative suit
unless permitted by Delaware law). An individual may not be indemnified if such
person is found not to have acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Registrant, except to the extent Delaware law permits broader contractual
indemnification. These indemnification agreements provide procedures,
presumptions and remedies intended to strengthen the indemnification rights
beyond those provided by the Registrant's Amended and Restated Certificate of
Incorporation (the "Certificate"), and by Delaware law.
The Certificate provides that each person who was or is made a party
to, or is involved in, any action, suit, proceeding or claim by reason of the
fact that he or she is or was a director, officer or employee of the Registrant
(or is or was serving at the request of the Registrant as a director, officer,
trustee, employee or agent of any other enterprise, including service with
respect to employee benefit plans) shall be indemnified and held harmless by the
Registrant to the full extent permitted by Delaware law, as in effect from time
to time, against all expenses (including attorneys' fees and expenses),
judgments, fines, penalties and amounts to be paid in settlement incurred by
such person in connection with the investigation, preparation to defend or
defense of such action, suit, proceeding or claim.
The rights to indemnification and the payment of expenses provided by
the Certificate do not apply to any action, suit, proceeding or claim initiated
by or on behalf of a person otherwise entitled to the benefit of such
provisions. Any person seeking indemnification under the Certificate shall be
deemed to have met the standard of conduct required for such indemnification
unless the contrary shall be established. The Certificate provides that the
rights to indemnification and the payment of expenses provided thereby shall not
be exclusive of any other right which any person may have or acquire under any
statute, provision of the Certificate or the Registrant's By-laws, or otherwise.
Any repeal or modification of such indemnification provisions shall not
adversely affect any right or protection of a director or officer with respect
to any conduct of such director or officer occurring prior to such repeal or
modification.
Section 102(b) of the Delaware General Corporation Law, as amended,
permits a corporation to include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law (relating to
unlawful payment of dividend and unlawful stock purchase and redemption) or (iv)
for any transaction from which the director derived an improper personal
benefit. The Certificate provides that directors shall be exculpated from
liability as provided under Delaware law.
II-3
<PAGE>
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
------------
1. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual
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<PAGE>
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Natick, Massachusetts on the 10th day of July, 1997.
BJ'S WHOLESALE CLUB, INC.
By: /s/ John J. Nugent
-------------------
John J. Nugent
President
POWER OF ATTORNEY
We, the undersigned officers and directors of BJ's Wholesale Club, Inc.
hereby severally constitute Herbert J. Zarkin, Edward J. Weisberger, Sarah M.
Gallivan and Mark G. Borden, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement on
Form S-8 filed herewith and any and all subsequent amendments to said
Registration Statement, and generally to do all such things in our names and
behalf in our capacities as officers and directors to enable BJ's Wholesale
Club, Inc. to comply with all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by said attorneys, or any of them, to said Registration Statement and any and
all amendments thereto.
II-6
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John J. Nugent President and Director July 10, 1997
- -------------------------- (Principal Executive
John J. Nugent Officer)
/s/ Frank D. Forward Treasurer (Principal July 10, 1997
- -------------------------- Financial and
Frank D. Forward Accounting Officer)
/s/ Herbert J. Zarkin Director July 10, 1997
- --------------------------
Herbert J. Zarkin
/s/ Edward J. Weisberger Director July 10, 1997
- --------------------------
Edward J. Weisberger
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
-------- -----------
4.1 Amended and Restated Certificate of Incorporation of the Registrant
4.2 Amended and Restated By-Laws of the Registrant
4.3(1) Specimen Certificate of Common Stock, $.01 par value per share, of
the Registrant
4.4(1) Form of Rights Agreement to be entered into between the Registrant
and the Rights Agent thereunder
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
- -----------------
(1) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-1 (Registration No. 333-25511)
II-8
<PAGE>
EXHIBIT 4.1
-----------
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BJ'S WHOLESALE CLUB, INC.
The Certificate of Incorporation of BJ's Wholesale Club, Inc. (which was
originally incorporated in Delaware on November 1, 1996), is hereby amended and
restated, pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, to read in its entirety as follows:
ARTICLE I
The name of the Corporation is BJ's Wholesale Club, Inc.
ARTICLE II
The registered office of the Corporation in the State of Delaware is
located at 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 200,000,000 shares, consisting of 180,000,000
shares of Common Stock, $.01 par value per share (the "Common Stock"), and
20,000,000 shares of Preferred Stock, $.01 par value per share (the "Preferred
Stock").
ARTICLE V
5.1. The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Amended and Restated Certificate of
Incorporation, to provide for the issuance of the shares of Preferred Stock in
series and, by filing a certificate pursuant to the applicable law of the State
of Delaware, to establish from time to time the number of shares to be included
in each such series, and to fix the designations, powers, preferences and rights
of the shares of each such series and the qualifications, limitations
<PAGE>
or restrictions thereof. Except as may be required by law, the shares in any
series of Preferred Stock or any shares of stock of any other class need not be
identical. Such authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(i) The number of shares constituting that series and the
distinctive designation of that series;
(ii) Whether that series shall have dividend rights and, if so, the
dividend rate on the shares of that series, whether dividends shall be
cumulative, and, if so, from which date or dates, and the relative rights
of priority, if any, of payment of dividends on shares of that series;
(iii) Whether that series shall have voting rights in addition to the
voting rights provided by law and, if so, the terms of such voting rights;
(iv) Whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such conversion or
exchange, including provision for adjustment of the conversion or exchange
rate in such events as the Board of Directors shall determine;
(v) Whether or not the shares of that series shall be redeemable
and, if so, the terms and conditions of such redemption, including the
manner of selecting shares for redemption if less than all shares are to be
redeemed, the date or dates upon or after which they shall be redeemable,
and the amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption dates;
(vi) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the terms and
amount of such sinking fund;
(vii) The right of the shares of that series to the benefit of any
conditions or restrictions upon the actions, conditions or affairs of the
Corporation or any subsidiary, including without limitation: (a)
conditions or restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issuance of any additional stock
(including additional shares of such series or any other series) and upon
the payment of dividends or the making of other distributions on, or the
purchase, redemption or other acquisition by the Corporation or any
subsidiary of, any outstanding stock of the Corporation, and (b) conditions
or restrictions in the nature of financial covenants;
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<PAGE>
(viii) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of
shares of that series; and
(ix) Any other powers, or other designations, preferences or
relative, participating, optional or other special rights, qualifications,
limitations or restrictions of that series.
5.2. Any preferential dividends on outstanding shares of any series of
Preferred Stock shall be paid, or declared and set apart for payment, before any
dividends shall be paid or declared and set apart for payment on outstanding
shares of Common Stock or any other series of Preferred Stock not entitled to
preferential dividends with respect to such series. Except as otherwise
provided by the resolution or resolutions providing for the issue of any series
of Preferred Stock, if upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets available for
distribution to holders of shares of Preferred Stock of all series shall be
insufficient to pay such holders the full preferential amount to which they are
entitled, then such assets shall be distributed ratably among the shares of all
series of Preferred Stock in accordance with the respective preferential amounts
(including unpaid cumulative dividends, if any) payable with respect thereto.
5.3. Shares of any series of Preferred Stock which have been redeemed
(whether through the operation of a sinking fund or otherwise) or which, if
convertible or exchangeable, have been converted into or exchanged for shares of
stock of any other class or classes shall have the status of authorized and
unissued shares of Preferred Stock of the same series and may be reissued as a
part of the series of which they were originally a part or may be reclassified
and reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors or as part of any other
series of Preferred Stock, all subject to the conditions and the restrictions on
issuance set forth in the resolution or resolutions adopted by the Board of
Directors providing for the issue of any series of Preferred Stock.
5.4. Subject to the provisions of any applicable law, this Amended and
Restated Certificate of Incorporation and the resolution or resolutions
providing for the issue of any series of Preferred Stock, the holders of
outstanding shares of Common Stock shall exclusively possess voting power for
the election of directors and for all other purposes, each holder of record of
shares of Common Stock being entitled to one vote for each share of Common Stock
standing in such holder's name on the books of the Corporation.
5.5. Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, after payment shall
have been made to the holders of Preferred Stock of the full amount of dividends
to which they shall be entitled pursuant to the resolution or resolutions
providing for the issue of any series of Preferred Stock, the holders of Common
Stock shall be entitled, to the exclusion of the
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<PAGE>
holders of Preferred Stock of any and all series, to receive such dividends as
from time to time may be declared by the Board of Directors.
5.6. Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, in the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment shall have been made to the holders of Preferred
Stock of the full amount to which they shall be entitled pursuant to the
resolution or resolutions providing for the issue of any series of Preferred
Stock, the holders of Common Stock shall be entitled, to the exclusion of
holders of Preferred Stock of any and all series, to share ratably according to
the number of shares of Common Stock held by them, in all remaining assets of
the Corporation available for distribution.
ARTICLE VI
Subject to the terms of any series of Preferred Stock or any other
securities of the Corporation with respect to the voting of shares of such
series or of such other securities, as the case may be, following the spin-off
of the Corporation by Waban Inc., a Delaware corporation ("Waban"), 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 stockholders of the
Corporation and may not be effected by any consent in writing by such
stockholders. Subject to any such terms of any series of Preferred Stock or any
such other securities of the Corporation, special meetings of stockholders of
the Corporation may be called only as provided in the By-laws of the
Corporation.
ARTICLE VII
The books of the Corporation may (subject to any statutory requirements) be
kept outside the State of Delaware as may be designated by the Board of
Directors or in the Bylaws of the Corporation.
ARTICLE VIII
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by law and this Amended and Restated
Certificate of Incorporation, and all rights conferred upon stockholders herein
are granted subject to this reservation.
ARTICLE IX
9.1. Subject to the rights of the holders of any series of Preferred Stock
or any other securities of the Corporation to elect additional directors under
specified circumstances, the directors of the Corporation shall be classified,
with respect to the time for which they severally hold office, into three
classes, as nearly equal in number
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<PAGE>
as possible, as shall be provided in the By-laws of the Corporation, one class
whose term expires at the annual meeting of stockholders to be held in calendar
year 1998, another class whose term expires at the annual meeting of
stockholders to be held in calendar year 1999, and another class whose term
expires at the annual meeting of stockholders to be held in calendar year 2000,
with each class to hold office until its successors are elected and qualified.
The classes shall be initially comprised of directors serving on the Board of
Directors on the effective date of the filing of this Amended and Restated
Certificate of Incorporation, and the membership of each class shall be
initially determined by the Board of Directors at (or prior to) such time. At
each annual meeting of the stockholders of the Corporation, the date of which
shall be fixed by or pursuant to the By-laws of the Corporation, the successors
of the class of directors whose term expires at that 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. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director. Any director elected to fill a newly created directorship or
any vacancy on the Board of Directors resulting from any death, resignation,
removal or other cause 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.
9.2. Except as otherwise provided by the terms of any series of Preferred
Stock or any other securities of the Corporation with respect to directorships
which may be established upon specified circumstances and filled by the vote of
such series or such other securities, as the case may be, any director of the
Corporation may be removed from office only for cause and only by the
affirmative vote of the holders of at least 67% of the then outstanding shares
of Common Stock. For purposes of this Section 9.2 "cause" shall mean the willful
and continuous failure of a director to substantially perform such director's
duties to the Corporation (other than any such failure resulting from incapacity
due to physical or mental illness) or the willful engaging by a director in
gross misconduct materially and demonstrably injurious to the Corporation.
ARTICLE X
The Corporation shall, to the maximum extent permitted from time to time
under the law of the State of Delaware, indemnify and upon request shall advance
expenses to any person who is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit, proceeding or claim,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was or has agreed to be a director or officer of the
Corporation or while a director or officer is or was serving at the request of
the Corporation as a director, officer, partner, trustee, employee or agent of
any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorneys' fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred in connection with the investigation,
preparation to defend or
-5-
<PAGE>
defense of such action, suit, proceeding or claim; provided, however, that the
foregoing shall not require the Corporation to indemnify or advance expenses to
any person in connection with any action, suit, proceeding, claim or
counterclaim initiated by or on behalf of such person. Such indemnification
shall not be exclusive of other indemnification rights arising under any by-law,
agreement, vote of directors or stockholders or otherwise and shall inure to the
benefit of the heirs and legal representatives of such person. Any person
seeking indemnification under this Article X shall be deemed to have met the
standard of conduct required for such indemnification unless the contrary shall
be established. Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection of a director or
officer of the Corporation with respect to any acts or omissions of such
director or officer occurring prior to such repeal or modification.
ARTICLE XI
A director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that exculpation from liability is not permitted under the
Delaware General Corporation Law as in effect at the time such liability is
determined. No amendment or repeal of this Article XI shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
ARTICLE XII
The election of directors need not be by ballot unless the By-laws shall so
require.
ARTICLE XIII
In addition to any other considerations which the Board of Directors may
lawfully take into account in determining whether to take or to refrain from
taking corporate action on any matter, including proposing any matter to the
stockholders of the Corporation, the Board of Directors may take into account
the interests of creditors, customers, employees and other constituencies of the
Corporation and its subsidiaries and the effect thereof upon communities in
which the Corporation and its subsidiaries do business.
ARTICLE XIV
In furtherance and not in limitation of the powers conferred by law or in
this Amended and Restated Certificate of Incorporation, the Board of Directors
(and any committee of the Board of Directors) is expressly authorized to take
such action or actions as the Board or such committee may determine to be
reasonably necessary or desirable to (A) encourage any person to enter into
negotiations with the Board of Directors and management of the
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<PAGE>
Corporation with respect to any transaction which may result in a change in
control of the Corporation which is proposed or initiated by such person or (B)
contest or oppose any such transaction which the Board of Directors or such
committee determines to be unfair, abusive or otherwise undesirable with respect
to the Corporation and its business, assets or properties or the stockholders of
the Corporation, including, without limitation, the adoption of such plans or
the issuance of such rights, options, capital stock, notes, debentures or other
evidence of indebtedness or other securities of the Corporation, which rights,
options, capital stock, notes, evidences of indebtedness and other securities
(i) may be exchangeable for or convertible into cash or other securities on such
terms and conditions as may be determined by the Board of Directors (or any such
committee) and (ii) may provide for the treatment of any holder or class of
holders thereof designated by the Board of Directors (or any such committee) in
respect of the terms, conditions, provisions and rights of such securities which
is different from, and unequal to, the terms, conditions, provisions and rights
applicable to all other holders thereof.
ARTICLE XV
15.1. In addition to any requirements of law and any other provisions
of this Amended and Restated Certificate of Incorporation or the terms of any
series of Preferred Stock or any other securities of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Amended and Restated Certificate of Incorporation or the terms of any series of
Preferred Stock or any other securities of the Corporation), following the spin-
off of the Corporation by Waban, the affirmative vote of the holders of 80% or
more of the then outstanding shares of Common Stock of the Corporation shall be
required (x) to authorize any amendment, alteration or repeal of any provision
of Article VI, Article IX, Article XIII, Article XIV or this Article XV, or (y)
to adopt any provision in this Amended and Restated Certificate of Incorporation
which is inconsistent with Article VI, Article IX, Article XIII or Article XIV
or this Article XV.
15.2. In furtherance and not in limitation of the power conferred upon
the Board of Directors by law, the Board of Directors shall have power to make,
adopt, alter, amend and repeal from time to time By-laws of the Corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to amend, alter and repeal, in accordance with Section 15.3 hereof, By-laws made
by the Board of Directors.
15.3. In addition to any requirements of law and any other provisions
of this Amended and Restated Certificate of Incorporation or the terms of any
series of Preferred Stock or any other securities of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Amended and Restated Certificate of Incorporation or the terms of any series of
Preferred Stock or any such other securities of the Corporation), any amendment,
alteration or repeal of any provision of the By-laws by the stockholders of the
Corporation shall require the affirmative vote of the holders of 80% of the then
outstanding shares of Common Stock of the Corporation. In addition, the
affirmative
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<PAGE>
votes of said holders shall be required to permit the stockholders to adopt any
provision of the Certificate of Incorporation which is inconsistent with any
provision of the By-laws.
IN WITNESS WHEREOF, BJ'S WHOLESALE CLUB, INC. has caused this Certificate
to be signed in its name and on its behalf by its President this 10th day of
July, 1997.
BJ'S WHOLESALE CLUB, INC.
By: /s/ John J. Nugent
-----------------------------------
President
-8-
<PAGE>
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
BJ'S WHOLESALE CLUB, INC.
------------------------------
BJ's Wholesale Club, Inc., a corporation organized and existing under the
laws of the State of Delaware (hereinafter called the "Corporation"), hereby
certifies that the following resolution was adopted by the Board of Directors of
the Corporation by unanimous written consent in lieu of a meeting on July 10,
1997:
RESOLVED: That pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, as amended, the Board of Directors hereby creates a series of
Preferred Stock, $.01 par value per share (the "Preferred Stock"), of the
Corporation and hereby states the designation and number of shares, and fixes
the relative rights, preferences and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
----------------------
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be one hundred thousand (100,000). Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, that
--------
no decrease shall reduce the number of shares of Series A Preferred Stock to a
number less than the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series A Preferred Stock.
<PAGE>
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
A Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock, par value $.01
per share (the "Common Stock"), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds of the Corporation legally available for the payment of
dividends, quarterly dividends payable in cash on the last day of each fiscal
quarter of the Corporation in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $10 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share amount of
all cash dividends, and 1,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. In the event the Corporation shall
at any time declare or pay any dividend on the Series A Preferred Stock payable
in shares of Series A Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series A Preferred Stock (by
reclassification or otherwise than by payment of a dividend in shares of Series
A Preferred Stock) into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event under
clause (b) of the first sentence of this Section 2(A) shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Series A Preferred Stock that were outstanding immediately prior to
such event and the denominator of which is the number of shares of Series A
Preferred Stock outstanding immediately after such event.
2
<PAGE>
(B) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock) and the Corporation shall pay such
dividend or distribution on the Series A Preferred Stock before the dividend or
distribution declared on the Common Stock is paid or set apart; provided that,
in the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $10 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
-------------
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a
3
<PAGE>
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event. In the event the Corporation shall at any time declare or pay any
dividend on the Series A Preferred Stock payable in shares of Series A Preferred
Stock, or effect a subdivision, combination or consolidation of the outstanding
shares of Series A Preferred Stock (by reclassification or otherwise than by
payment of a dividend in shares of Series A Preferred Stock) into a greater or
lesser number of shares of Series A Preferred Stock, then in each such case the
number of votes per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Series A Preferred Stock that were outstanding immediately prior to such event
and the denominator of which is the number of shares of Series A Preferred Stock
outstanding immediately after such event.
(B) Except as otherwise provided herein, in the Certificate of
Incorporation or by law, the holders of shares of Series A Preferred Stock and
the holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Preferred Stock shall be
in arrears in an amount equal to six quarterly dividends thereon, the holders of
the Series A Preferred Stock, voting as a separate series from all other series
of Preferred Stock and classes of capital stock, shall be entitled to elect two
members of the Board of Directors in addition to any Directors elected by any
other series, class or classes of securities and the authorized number of
Directors will automatically be increased by two. Promptly thereafter, the
Board of Directors of this Corporation shall, as soon as may be practicable,
call a special meeting of holders of Series A Preferred Stock for the purpose of
electing such members of the Board of Directors. Said special meeting shall in
any event be held within 45 days of the occurrence of such arrearage.
(ii) During any period when the holders of Series A Preferred Stock,
voting as a separate series, shall be entitled and shall have exercised their
right to elect two Directors, then and during such time as such right continues
(a) the then authorized number of Directors shall be increased by two, and the
holders of Series A Preferred Stock, voting as a separate series, shall be
entitled to elect the additional Directors so provided for, and (b) each such
additional Director shall not be a member of any existing class of the Board of
Directors, but shall serve until the next annual meeting of stockholders for the
election of Directors, or until his successor shall be elected and shall
qualify, or until his right to hold such office terminates pursuant to the
provisions of this Section 3(C).
4
<PAGE>
(iii) A Director elected pursuant to the terms hereof may be
removed with or without cause by the holders of Series A Preferred Stock
entitled to vote in an election of such Director.
(iv) If, during any interval between annual meetings of stockholders
for the election of Directors and while the holders of Series A Preferred Stock
shall be entitled to elect two Directors, there is no such Director in office by
reason of resignation, death or removal, then, promptly thereafter, the Board of
Directors shall call a special meeting of the holders of Series A Preferred
Stock for the purpose of filling such vacancy and such vacancy shall be filled
at such special meeting. Such special meeting shall in any event be held within
45 days of the occurrence of such vacancy.
(v) At such time as the arrearage is fully cured, and all dividends
accumulated and unpaid on any shares of Series A Preferred Stock outstanding are
paid, and, in addition thereto, at least one regular dividend has been paid
subsequent to curing such arrearage, the term of office of any Director elected
pursuant to this Section 3(C), or his successor, shall automatically terminate,
and the authorized number of Directors shall automatically decrease by two, the
rights of the holders of the shares of the Series A Preferred Stock to vote as
provided in this Section 3(C) shall cease, subject to renewal from time to time
upon the same terms and conditions, and the holders of shares of the Series A
Preferred Stock shall have only the limited voting rights elsewhere herein set
forth.
(D) Except as set forth herein, or as otherwise provided by law, holders of
Series A Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends
paid
5
<PAGE>
ratably on the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a parity
with the Series A Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
-----------------
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received $1000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such
6
<PAGE>
payment, provided that the holders of shares of Series A Preferred Stock shall
be entitled to receive an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount
to be distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all such
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up.
(B) Neither the consolidation, merger or other business combination of the
Corporation with or into any other corporation nor the sale, lease, exchange or
conveyance of all or any part of the property, assets or business of the
Corporation shall be deemed to be a liquidation, dissolution or winding up of
the Corporation for purposes of this Section 6.
(C) In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the aggregate amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under the proviso
in clause (1) of paragraph (A) of this Section 6 shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. In the event the Corporation shall
at any time declare or pay any dividend on the Series A Preferred Stock payable
in shares of Series A Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series A Preferred Stock (by
reclassification or otherwise than by payment of a dividend in shares of Series
A Preferred Stock) into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of paragraph (A) of this Section 6 shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Series A Preferred Stock that were outstanding immediately
prior to such event and the denominator of which is the number of shares of
Series A Preferred Stock outstanding immediately after such event.
Section 7. Consolidation, Merger, etc. Notwithstanding anything to the
---------------------------
contrary contained herein, in case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any
7
<PAGE>
other property, then in any such case each share of Series A Preferred Stock
shall at the same time be similarly exchanged or changed into an amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
1,000 times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event. In
the event the Corporation shall at any time declare or pay any dividend on the
Series A Preferred Stock payable in shares of Series A Preferred Stock, or
effect a subdivision, combination or consolidation of the outstanding shares of
Series A Preferred Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series A Preferred Stock) into a greater or lesser number
of shares of Series A Preferred Stock, then in each such case the amount set
forth in the first sentence of this Section 7 with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Series A Preferred Stock that were outstanding immediately prior to such event
and the denominator of which is the number of shares of Series A Preferred Stock
outstanding immediately after such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall
-------------
not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to
----
the payment of dividends and the distribution of assets, junior to all series of
any other class of the Preferred Stock issued either before or after the
issuance of the Series A Preferred Stock, unless the terms of any such series
shall provide otherwise.
Section 10. Amendment. At such time as any shares of Series A Preferred
---------
Stock are outstanding, the Certificate of Incorporation, as amended, of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
8
<PAGE>
Section 11. Fractional Shares. Series A Preferred Stock may be issued in
-----------------
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of holders
of Series A Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Corporation by its President this 10th day of July, 1997.
BJ'S WHOLESALE CLUB, INC.
By: /s/ John J. Nugent
-------------------------------------
John J. Nugent
President
9
<PAGE>
EXHIBIT 4.2
-----------
BY-LAWS
OF
BJ'S WHOLESALE CLUB, INC.
SECTION 1. LAW, CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1. These by-laws are subject to the Certificate of Incorporation of the
Corporation. In these by-laws, references to law, the Certificate of
Incorporation and by-laws mean the law, the provisions of the Certificate of
Incorporation of the Corporation and these by-laws as from time to time in
effect.
SECTION 2. STOCKHOLDERS
2.1. Annual Meeting. The annual meeting of stockholders shall be held
--------------
at such date and time as shall be designated by the Board of Directors and
stated in the notice of the meeting, at which meeting the stockholders shall
elect directors and transact such other business as may be required by law or
these by-laws or as may properly come before the meeting.
At any annual meeting of stockholders, only such business shall be
conducted as shall have been brought before the annual meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder who complies with
the procedures set forth below in this paragraph. For business properly to be
brought by a stockholder before an annual meeting, the stockholder must have
given timely notice thereof in proper written form to the secretary. To be
timely, a stockholder's notice must be delivered to, or mailed and received by,
the secretary at the principal executive offices of the Corporation not less
than 70 days nor more than 90 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than 20 days, or delayed by more
than 70 days, from such anniversary date, notice by the stockholder to be timely
must be so delivered or received not earlier than the ninetieth day prior to
such annual meeting and not later than the close of business on the later of the
seventieth day prior to such annual meeting or the tenth day following the day
on which public announcement of the date of such meeting is first made. To be
in proper written form, a stockholder's notice shall set forth in writing as to
each matter the stockholder proposes to bring before the annual
<PAGE>
meeting: (i) a brief description of the business desired be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting; (ii) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business; (iii) the person or persons who are
the beneficial owner of such shares, if different in any respect from the record
owner; (iv) the class and number of shares of the Corporation which are
beneficially owned by the stockholder and any other persons referred to in the
preceding clause (iii); and (v) any material interest of the stockholder or such
other persons in such business. The chairman of the annual meeting shall, if the
facts warrant, determine that business was not properly brought before the
annual meeting in accordance with the provisions of this Section 2.1 and, if he
should so determine, he shall so declare to the annual meeting and any such
business not properly brought before the annual meeting shall not be transacted.
2.2. Special Meetings. Subject to the provisions of any series of
----------------
preferred stock or any other securities of the Corporation with respect to the
voting of such series or such other securities, a special meeting of the
stockholders may be called only by notice given by the chairman, the president
or a majority of the Board of Directors. Only such business as is specified in
the notice of a special meeting of stockholders shall come before such meeting.
Any such notice shall state the place, date, hour and purposes of the meeting.
2.3. Place of Meeting. All meetings of the stockholders shall be held at
----------------
such place within or without the State of Delaware as may be determined from
time to time by the chairman, the president or the Board of Directors. Any
adjourned session of any meeting of the stockholders shall be held at the place
designated in the vote of adjournment.
2.4. Notice of Meetings. Except as otherwise provided by law, a written
------------------
notice of each meeting of stockholders stating the place, day and hour thereof
and, in the case of a special meeting, the purposes for which the meeting is
called, shall be given not less then ten nor more than 60 days before the
meeting, to each stockholder entitled to vote thereat, and to each stockholder
who, by law, by the Certificate of Incorporation or by these by-laws, is
entitled to notice, by leaving such notice with him or at his residence or usual
place of business, or by depositing it in the United States mail, postage
prepaid, and addressed to such stockholder at his address as it appears in the
records of the Corporation. Such notice shall be given by the secretary, or by
an officer or person designated by the Board of Directors, or in the case of a
special meeting by the officer calling the meeting or by the Board of Directors,
as the case may be. As to any adjourned session of any meeting of stockholders,
notice of the adjourned meeting need not be given if the time and place thereof
are announced at the meeting at which the adjournment was taken except that if
the adjournment is for more than 30 days or if after the adjournment a new
record date is set for the adjourned session, notice of any such adjourned
session of the meeting shall be given in the manner heretofore described.
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<PAGE>
No notice of any meeting of stockholders or any adjourned session thereof need
be given to a stockholder if a written waiver of notice, executed before or
after the meeting or such adjourned session by such stockholder, is filed with
the records of the meeting or if the stockholder attends such meeting without
objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any meeting of the stockholders or any
adjourned session thereof need be specified in any written waiver of notice.
2.5. Quorum of Stockholders. At any meeting of the stockholders a quorum
----------------------
as to any matter shall consist of a majority of the votes entitled to be cast on
the matter, except where a larger quorum is required by law, by the Certificate
of Incorporation or by these by-laws. 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. If a quorum is present at an original meeting, a quorum
need not be present at an adjourned session of that meeting. Shares of its own
stock belonging to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of any such corporation to vote stock
held by it in a fiduciary capacity.
2.6. Action by Vote. When a quorum is present at any meeting, a plurality
--------------
of the votes properly cast for election to any office shall elect to such office
and a majority of the votes properly cast upon any question other than an
election to an office shall decide the question, except when a larger vote is
required by law, by the Certificate of Incorporation or by these by-laws. No
ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
2.7. Proxy Representation. Every stockholder may authorize another person
--------------------
or persons to act for him by proxy in all matters in which a stockholder is
entitled to participate, whether by waiving notice of any meeting, objecting to
or voting or participating at a meeting or expressing consent or dissent without
a meeting. Every proxy must be signed by the stockholder or by his duly
authorized attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. The authorization of a proxy may but
need not be limited to specified action; provided, however, that if a proxy
limits its authorization to a meeting or meetings of stockholders, unless
otherwise specifically provided such
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proxy shall entitle the holder thereof to vote at any adjourned session but
shall not be valid after the final adjournment thereof.
2.8. Inspectors. The Board of Directors or the chairman of the meeting
----------
shall appoint one or more inspectors of election and any substitute inspectors
to act at the meeting or any adjournment thereof. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors shall
determine the number of shares of stock outstanding and the voting power of
each, the shares of stock represented at the meeting, the existence of a quorum,
the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all stockholders. On request of the chairman of the
meeting, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them.
2.9. List of Stockholders. The secretary shall prepare and make available,
--------------------
at least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares registered
in his name. The 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 meeting.
SECTION 3. BOARD OF DIRECTORS
3.1. Number. Except as otherwise fixed by or pursuant to the Certificate
------
of Incorporation, the number of directors which shall constitute the whole board
shall be determined from time to time by vote of a majority of the Board of
Directors, provided that the number thereof may not be less than three.
3.2. Tenure. Except as otherwise provided by law, by the Certificate of
------
Incorporation or by these by-laws, the directors, other than those who may be
elected upon specified circumstances by the holders of shares of any series of
Preferred Stock or any other securities of the Corporation, shall be classified,
with respect to the time for which they severally hold office, into three
classes as nearly equal in number as possible: one class whose term expires at
the annual meeting of stockholders to be held in calendar 1998, another class
whose term expires at the annual meeting of stockholders to be held in calendar
1999 and another class whose term expires at the annual meeting of stockholders
to be held in calendar 2000, with each class to hold office until its successors
are elected and qualified. The classes (and the membership of each class) shall
be initially comprised as provided in the Certificate of Incorporation. If the
number
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of directors is changed by the Board of Directors, any newly created
directorships or any decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal as possible; provided, however,
that no decrease in the number of directors shall shorten the term of any
incumbent director. At each annual meeting of stockholders, subject to the
aforesaid rights of the holders of any Preferred Stock or any other securities
of the Corporation, the successors of the class of directors whose term expires
at that 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, with such class to hold office until its successors are elected
and qualified. Directors need not be stockholders.
3.3. Notification of Nominations. Subject to the rights of the holders of
---------------------------
any shares of any series of Preferred Stock or any other securities of the
Corporation to elect directors upon specified circumstances, nominations for the
election of directors may be made by the Board of Directors or by any
stockholder entitled to vote for the election of directors. Any stockholder
entitled to vote for the election of directors at a meeting may nominate persons
for election as directors by giving timely notice thereof in proper written form
to the secretary. To be timely, a stockholder's notice must be delivered to, or
mailed and received by, the secretary at the principal executive offices of the
Corporation not less than 70 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than 20 days,
or delayed by more than 70 days, from such anniversary date, notice by the
stockholder to be timely must be so delivered or received not earlier than the
ninetieth day prior to such annual meeting and not later than the close of
business on the later of the seventieth day prior to such annual meeting or the
tenth day following the day on which public announcement of the date of such
meeting is first made. To be timely, a stockholder's notice of nominations of
persons for election to the Board of Directors at a special meeting of
stockholders at which a vacant newly created directorship is to be filled must
be delivered to the secretary at the principal executive offices of the
Corporation not earlier than the ninetieth day prior to such special meeting and
not later than the close of business on the later of the seventieth day prior to
such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. To be
in proper written form, a stockholder's notice shall set forth in writing: (a)
as to each nominee proposed by such stockholder (i) the name and address of each
nominee, (ii) such other information regarding each nominee as would have been
required to be included in a proxy statement filed pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (or any successor
provisions of law) had each nominee been nominated, or intended to be nominated,
by the Board of Directors, and (iii) the consent of each nominee to be named as
a nominee and to serve as a director if so elected; and (b) as to the
stockholder giving the notice (i) the name and address of, and the class and
number of shares of the Corporation held by, the stockholder who intends to make
the nomination and the beneficial owner, if any, on whose behalf the
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nomination is being made, (ii) 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, (iii) 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. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the secretary the information required to be set forth
in a stockholder's notice of nomination which pertains to the nominee. The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a director of the Corporation. In the event
that a stockholder seeks to nominate one or more directors, the secretary shall
appoint one or more inspectors to determine whether a stockholder has complied
with this Section 3.3. If the inspectors shall determine that a stockholder has
not complied with this Section 3.3, the inspectors shall direct the chairman of
the meeting to declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the by-laws, and the chairman shall
so declare to the meeting and the defective nomination shall be disregarded.
3.4. Powers. The business and affairs of the Corporation shall be managed
------
by or under the direction of the Board of Directors who shall have and may
exercise all the powers of the Corporation and do all such lawful acts and
things as are not by law, the Certificate of Incorporation or these by-laws
directed or required to be exercised or done by the stockholders.
3.5. Vacancies. Subject to the rights of the holders of any shares of any
---------
series of Preferred Stock or any other securities of the Corporation to elect
directors upon specified circumstances, any vacancies on the Board of Directors
resulting from death, resignation or removal shall only be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors, or by a sole remaining
director, and newly created directorships resulting from any increase in the
number of directors shall be filled by the Board of Directors, or if not so
filled, by the stockholders at the next annual meeting thereof or at a special
meeting called for that purpose in accordance with these by-laws. 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. The Board of Directors shall
have and may exercise all their powers notwithstanding the existence of one or
more vacancies in their number, 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 or other actions.
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<PAGE>
3.6. Committees. The Board of Directors may (a) designate, change the
----------
membership of or terminate the existence of any committee or committees, each
committee to consist of one or more of the directors; (b) designate one or more
directors as alternate members of any such committee who may replace any absent
or disqualified member at any meeting of the committee; and (c) determine the
extent to which each such committee shall have and may exercise the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, including the power to authorize the seal of the Corporation to be
affixed to all papers which require it and the power and authority to declare
dividends or to authorize the issuance of stock; excepting, however, such powers
which by law, by the Certificate of Incorporation or by these by-laws the Board
of Directors is prohibited from so delegating. In the absence or
disqualification of any member of such committee and his alternate, if any, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Except as the Board of Directors may otherwise
determine, any committee may make rules for the conduct of its business, but
unless otherwise provided by the Board or such rules, its business shall be
conducted as nearly as may be in the same manner as is provided by these by-laws
for the conduct of business by the Board of Directors. Each Committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
upon request.
3.7. Regular Meetings. Regular meetings of the Board of Directors may be
----------------
held without call or notice at such places within or without the State of
Delaware and at such times as the Board of Directors may from time to time
determine; provided, however, that notice of the first regular meeting following
any such determination shall be given to absent directors. In addition, regular
meetings of the Board of Directors may be held without call or notice
immediately after and at the same place as the annual meeting of stockholders.
3.8. Special Meetings. Special meetings of the Board of Directors may be
----------------
held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the chairman, the
president or by a majority of the directors, reasonable notice thereof being
given to each director by the secretary, the chairman, the president or any one
of the directors calling the meeting.
3.9. Notice. It shall be reasonable and sufficient notice to a director to
------
send notice by mail at least 48 hours or by telegram at least 24 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 or by telephone at least 24 hours
before the meeting. Notice of a meeting need not be given to any director if a
written waiver of notice, executed by him before or after the meeting, is filed
with the records of the meeting, or to any director who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him. Neither notice of a meeting nor a waiver of
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<PAGE>
a notice need specify the purposes of the meeting.
3.10. Quorum. Except as may be otherwise provided by law, by the
------
Certificate of Incorporation or by these by-laws, at any meeting of the Board of
Directors a majority of the directors then in office shall constitute a quorum;
a quorum shall not in any case be less than one-third of the total number of
directors constituting the whole Board of Directors. 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.
3.11. Action by Vote. Except as may be otherwise provided by law, by the
--------------
Certificate of Incorporation or by these by-laws, when a quorum is present
at any meeting the vote of a majority of the directors present shall be the act
of the Board of Directors.
3.12. Action Without a Meeting. Any action required or permitted to be
------------------------
taken at any meeting of the Board of Directors or a committee thereof may be
taken without a meeting if all the members of the Board of Directors or of such
committee, as the case may be, consent thereto in writing, and such writing or
writings are filed with the records of the meetings of the Board of Directors or
of such committee. Such consent shall be treated for all purposes as the act of
the Board of Directors or of such committee, as the case may be.
3.13. Participation in Meetings by Conference Telephone. Members of the
-------------------------------------------------
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other or by any other means
permitted by law. Such participation shall constitute presence in person at such
meeting.
3.14. Compensation. In the discretion of the Board of Directors, each
------------
director may be paid such fees for his services as director and be reimbursed
for his reasonable expenses incurred in the performance of his duties as
director as the Board of Directors from time to time may determine. Nothing
contained in this Section 3.14 shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving reasonable
compensation therefor.
SECTION 4. OFFICERS AND AGENTS
4.1. Enumeration; Qualification. The officers of the Corporation shall be
--------------------------
a chairman, a president, a treasurer, a secretary and such other officers, if
any, as the Board of Directors from time to time may in its discretion elect or
appoint including without limitation one or more vice presidents and a
controller. The Corporation may
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<PAGE>
also have such agents, if any, as the Board of Directors from time to time may
in its discretion choose. Any officer may be but none need be a director or
stockholder. Any two or more offices may be held by the same person. Any officer
may be required by the Board of Directors to secure the faithful performance of
his duties to the Corporation by giving bond in such amount and with sureties or
otherwise as the Board of Directors may determine.
4.2. Powers. Subject to law, to the Certificate of Incorporation and to
------
the other provisions of these by-laws, each 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 additional duties and powers as the Board of
Directors may from time to time designate.
4.3. Election. The officers may be elected by the Board of Directors at
--------
their first meeting following the annual meeting of the stockholders or at any
other time. At any time or from time to time the directors may delegate to any
officer their power to elect or appoint any other officer or any agents.
4.4. Tenure. Each officer shall hold office until the first meeting of the
------
Board of Directors following the next annual meeting of the stockholders and
until his respective successor is chosen and qualified unless a shorter period
shall have been specified by the terms of his election or appointment, or in
each case until he sooner dies, resigns, is removed or becomes disqualified.
Each agent shall retain his authority at the pleasure of the Board of Directors,
or the officer by whom he was appointed or by the officer who then holds agent-
appointive power.
4.5. Chairman of the Board of Directors; President and Vice President. The
----------------------------------------------------------------
chairman of the board shall participate in matters of planning and policy, both
financial and operational. The chairman shall preside at all meetings of the
stockholders and of the Board of Directors at which he is present, except that
in the absence of the chairman, or at the request of the chairman, the president
shall preside. The chairman shall have such other duties and powers as may be
designated from time to time by the Board of Directors.
Each vice chairman, if any, shall have such duties and powers as shall be
designated from time to time by the Board of Directors.
Unless the Board of Directors otherwise specifies, the president shall be
the chief executive officer and shall have direct charge of all business
operations of the Corporation and, subject to the control of the Board of
Directors, shall have general charge and supervision of the business of the
Corporation.
Any vice presidents shall have such duties and powers as shall be set forth
in these by-laws or as shall be designated from time to time by the Board of
Directors or by the president.
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<PAGE>
4.6. Chief Financial Officer; Treasurer and Assistant Treasurers. The
-----------------------------------------------------------
chief financial officer shall be responsible for execution of all financial
policies, plans, procedures and controls of the Company, 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 of Directors, the president and the chairman. The chief financial
officer shall have such other duties and powers as may be designated from time
to time by the Board of Directors, the president or the chairman.
The treasurer shall be in charge of the funds and valuable papers of the
Company and shall have such other duties and powers as may be designated from
time to time by the Board of Directors, by the president or by the chief
financial officer. If no controller is elected, the treasurer shall, unless the
Board of Directors otherwise specifies, also have the duties and powers of the
controller.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the Board of Directors, the president or the
treasurer.
4.7. Controller and Assistant Controllers. If a controller is elected, he
------------------------------------
or she shall, unless the Board of Directors otherwise specifies, be the chief
accounting officer of the Corporation and be in charge of its books of account
and accounting records, and of its accounting procedures. The controller shall
have such other duties and powers as may be designated from time to time by the
Board of Directors, the president or the treasurer.
Any assistant controller shall have such duties and powers as shall be
designated from time to time by the Board of Directors, the president, the
treasurer or the controller.
4.8. Secretary and Assistant Secretaries. The secretary shall record all
-----------------------------------
proceedings of the stockholders, of the Board of Directors and of committees of
the Board of Directors in a book or series of books to be kept therefor and
shall file therein all actions by written consent of stockholders or directors.
In the absence of the secretary from any meeting, an assistant secretary, or if
there be none or he is absent, a temporary secretary chosen at the meeting,
shall record the proceedings thereof. Unless a transfer agent has been
appointed, the secretary shall keep or cause to be kept the stock and transfer
records of the Corporation, which shall contain the names and record addresses
of all stockholders and the number of shares registered in the name of each
stockholder. He shall have such other duties and powers as may from time to
time be designated by the Board of Directors or the president.
Any assistant secretaries shall have such duties and powers as shall be
designated from time to time by the Board of Directors, the president or the
secretary.
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SECTION 5. RESIGNATIONS AND REMOVALS
5.1. Any director or officer may resign at any time by delivering his
resignation in writing to the chairman, the president, the secretary or to a
meeting of the Board of Directors. Such resignation shall be effective upon
receipt unless specified to be effective at some other time, and without in
either case the necessity of its being accepted unless the resignation shall so
state. Members of the Board of Directors may be removed only as provided in the
Certificate of Incorporation. The Board of Directors may at any time remove any
officer either with or without cause. The Board of Directors may at any time
terminate or modify the authority of any agent.
SECTION 6. VACANCIES
6.1. If the office of the chairman, the president, the treasurer or the
secretary becomes vacant, the Board of Directors may elect a successor by vote
of a majority of the directors then in office. If the office of any other
officer becomes vacant, any person or body empowered to elect or appoint that
officer may choose a successor. Each such successor shall hold office for the
unexpired term, and in the case of the president, the treasurer and the
secretary, until a successor is chosen and qualified or in each case until he or
she sooner dies, resigns, is removed or becomes disqualified. Any vacancy of a
directorship shall be filled as specified in Section 3.5 of these by-laws.
SECTION 7. CAPITAL STOCK
7.1. Stock Certificates. Each stockholder shall be entitled to a
------------------
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the Certificate of Incorporation and the by-laws, be prescribed from time to
time by the Board of Directors. Such certificate shall be signed by (i) the
chairman or vice chairman, if any, or the president or a vice president and (ii)
the treasurer or an assistant treasurer or the secretary or an assistant
secretary. Any or all of the signatures on the certificate may be a facsimile.
In case an officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed on such certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the time of its issue.
7.2. Loss of Certificate. In the case of the alleged theft, loss,
-------------------
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the Corporation against any claim on account thereof, as
the Board of Directors may prescribe.
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SECTION 8. TRANSFER OF SHARES OF STOCK
8.1. Transfer on Books. Subject to the restrictions, if any, stated or
-----------------
noted on the stock certificate, shares of stock may be transferred on the books
of the Corporation by the surrender to the Corporation or its transfer agent of
the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
Board of Directors or the transfer agent of the Corporation may reasonably
require. Except as may be otherwise required by law, by the Certificate of
Incorporation or by these by-laws, the Corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to receive notice
and to vote or to give any consent with respect thereto and to be held liable
for such calls and assessments, if any, as may lawfully be made thereon,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been properly transferred on the books of the Corporation.
It shall be the duty of each stockholder to notify the Corporation of his
post office address.
8.2. Record Date. In order that the Corporation may determine the
-----------
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than 60 nor less than ten days before the date of such meeting. If
no such record date is fixed by the Board of Directors, the record date for
determining the stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be not
more than 60 days prior to such payment, exercise or other action. If no such
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
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SECTION 9. CORPORATE SEAL
9.1. Subject to alteration by the Board of Directors, the seal of the
Corporation shall consist of a flat-faced circular die with the word "Delaware"
and the name of the Corporation cut or engraved thereon, together with such
other words, dates or images as may be approved from time to time by the Board
of Directors.
SECTION 10. EXECUTION OF PAPERS
10.1. 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 or other obligations made,
accepted or endorsed by the Corporation shall be signed by the chairman, the
president, a vice president or the treasurer.
SECTION 11. FISCAL YEAR
11.1. The fiscal year of the Corporation shall end on the last Saturday of
January of each year.
SECTION 12. AMENDMENTS
12.1. Subject to any special voting requirements contained in the
Certificate of Incorporation, these by-laws may be adopted, amended or repealed
by vote of a majority of the entire Board of Directors at any meeting thereof.
The stockholders shall have the power to amend, alter or repeal any provision of
these by-laws only to the extent and in the manner provided in the Certificate
of Incorporation.
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HALE AND DORR LLP
COUNSELLORS AT LAW
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
EXHIBIT 5.1
July 10, 1997
BJ's Wholesale Club, Inc.
One Mercer Road
Natick, Massachusetts 01760
Re: 1997 Replacement Stock Incentive Plan
1997 Stock Incentive Plan
1997 Director Stock Option Plan
---------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an aggregate of 3,650,000 shares of Common Stock, $.01 par value per
share (the "Shares"), of BJ's Wholesale Club, Inc., a Delaware corporation (the
"Company"), issuable under the Company's 1997 Replacement Stock Incentive Plan,
1997 Stock Incentive Plan and 1997 Director Stock Option Plan (collectively, the
"Plans").
We have examined the Amended and Restated Certificate of Incorporation of
the Company, the By-Laws of the Company, as amended, and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the Shares in accordance with the Plans, to register and qualify the
Shares for sale under all applicable state securities or "blue sky" laws.
<PAGE>
BJ's Wholesale Club, Inc.
July 10, 1997
Page 2
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts, the Delaware
General Corporation Law statute and the federal laws of the United States of
America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and, when the Shares are issued
and paid for in accordance with the terms and conditions of the Plans, the
Shares will be validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein under the caption "Interests of Named Experts and Counsel." In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Waban Inc., of our report dated February 25, 1997, except as to the
information presented in Note A, for which the date is April 18, 1997, on our
audits of the combined financial statements of BJ's Wholesale Club, Inc. as of
January 25, 1997 and January 27, 1996, and for the three years ended January 25,
1997, January 27, 1996 and January 28, 1995.
/s/ COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
July 10, 1997
