<PAGE>
As filed with the Securities and Exchange Commission on July 30, 1997
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HOMEBASE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 33-0109661
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
3345 Michelson Drive, Irvine, California 92715
(Address of Principal Executive Offices) (Zip Code)
1989 STOCK INCENTIVE PLAN
1997 STOCK INCENTIVE PLAN
(Full Titles of the Plans)
Allan P. Sherman
President and Chief Executive Officer
HomeBase, Inc.
3345 Michelson Drive
Irvine, California 92715
(Name and Address of Agent for Service)
(714) 442-5000
(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, 2,500,000 $8,375(2) $20,937,500(2) $6,345
$.01 par value shares(1)
(including the
associated
Preferred Stock
Purchase Rights)
- ----------------------------------------------------------------------------------------
Common Stock, 1,000,000 N/A N/A N/A
$.01 par value shares(3)
(including the
associated
Preferred Stock
Purchase Rights)
========================================================================================
</TABLE>
(1) Consists of (i) 1,000,000 shares issuable under the 1997 Stock Incentive
Plan and (ii) 1,500,000 shares initially issuable under the 1989 Stock
Incentive Plan. Following the expiration of the 1989 Stock Incentive Plan,
the unissued balance of the shares issuable under the 1989 Stock Incentive
Plan (up to 2,500,000 shares) will be issuable under the 1997 Stock
Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee, and
based on the average of the high and low prices of the Common Stock on the
New York Stock Exchange on July 29, 1997 in accordance with Rules 457(c)
and 457(h) under the Securities Act of 1933.
(3) These 1,000,000 shares were originally registered on June 19, 1995 in
connection with the Registrant's 1989 Stock Incentive Plan pursuant to a
Registration Statement on Form S-8 (File No. 33-60335) (the "1995
Registration Statement"). The registration fee paid at that time for such
shares was $5,344.83. The Registrant is transferring such 1,000,000 shares
from the 1995 Registration Statement. The Registrant has filed a Post-
Effective Amendment No. 1 to the 1995 Registration Statement reflecting
such transfer. Such shares are initially issuable under the 1989 Stock
Incentive Plan. Following the expiration of the 1989 Stock Incentive Plan,
the unissued balance of the shares issuable under the 1989 Stock Incentive
Plan (up to 2,500,000 shares) will be issuable under the 1997 Stock
Incentive Plan.
================================================================================
<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 1989 Stock Incentive Plan and 1997
Stock Incentive 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.
II-1
<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 Restated Certificate of Incorporation,
as amended (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
II-4
<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 City of Irvine, California on the 30th day of July, 1997.
HOMEBASE, INC.
By: /s/ Allan P. Sherman
---------------------------------
Allan P. Sherman
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of HomeBase, Inc. hereby
severally constitute Herbert J. Zarkin, Allan P. Sherman and John L. Price, 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 HomeBase, 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/ Herbert J. Zarkin Chairman of the Board July 30, 1997
- -------------------------------- of Directors
Herbert J. Zarkin
/s/ Allan P. Sherman President, Chief July 30, 1997
- -------------------------------- Executive Officer and
Allan P. Sherman Director (Principal
Executive Officer)
/s/ William B. Langsdorf Executive Vice President July 30, 1997
- -------------------------------- and Chief Financial
William B. Langsdorf Officer (Principal
Financial and
Accounting Officer)
Director July , 1997
- --------------------------------
John D. Barr
* Director July 30, 1997
- --------------------------------
Arthur F. Loewy
* Director July 30, 1997
- --------------------------------
Lorne R. Waxlax
/s/ Edward J. Weisberger Director July 30, 1997
- --------------------------------
Edward J. Weisberger
</TABLE>
* By: /s/ Edward J. Weisberger
---------------------------
Edward J. Weisberger
Attorney-in-Fact
II-7
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
-------- -----------
4.1 Restated Certificate of Incorporation of the Registrant, as amended
4.2 By-Laws, as amended, of the Registrant
4.3(1) Rights Agreement, dated as of May 23, 1989, between the Registrant
and Morgan Shareholder Services Trust Company, as Rights Agent
4.4(2) Specimen Certificate of Common Stock, $.01 par value per share, of
the Registrant
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 in the signature pages of this
Registration Statement)
24.2 Power of Attorney
_________________
(1) Incorporated herein by reference to the Registrant's Form 10 (#1-10259)
(2) Incorporated herein by reference to the Registrant's Form S-3
(#333-25511-01)
II-8
<PAGE>
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
of
HOMECLUB, INC.
The Certificate of Incorporation of HomeClub, Inc. (which was originally
incorporated in Delaware on July 25, 1985), 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 Waban 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 190,000,000
shares of Common Stock, $.01 par value per share (the "Common Stock"), and
10,000,000 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 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 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
<PAGE>
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;
(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
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<PAGE>
(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 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 his 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 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.
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<PAGE>
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 Zayre Corp., a Delaware corporation ("Zayre"), 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
8.1. In addition to any affirmative vote required by law or by this
Certificate of Incorporation or by the terms of any series of Preferred Stock or
any other securities of the corporation, following the spin-off of the
Corporation by Zayre, the affirmative vote of the holders of not less than 80%
of the outstanding shares of Common Stock of the corporation and the affirmative
vote of the holders of not less than 67% of the outstanding shares of Common
Stock held by stockholders other than a Related Person shall be required for the
approval or authorization of any Business Combination; provided, however, that
-------- -------
the 80% and 67% voting requirements shall not be applicable if:
(i) The Continuing Directors by a two-thirds vote (a) have expressly
approved in advance either the acquisition of outstanding shares of stock,
or the issue or sale by the Corporation of shares of stock, that caused the
Related
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<PAGE>
Person to become a Related Person and (b) in advance of such acquisition or
issue or sale have determined that the 80% and 67% voting requirements of
this Section 8.1 shall not be applicable to any Business Combinations with
such Related Person; or
(ii) The Continuing Directors have approved the Business Combination;
or
(iii) The Business Combination is a merger or consolidation and the
cash or fair market value (as determined conclusively by the Board of
Directors) of each of the property, securities or other consideration to be
received per share by the holders of Common Stock in the Business
Combination is not less than the greater of (A) the highest per share price
(with appropriate adjustments for recapitalizations and for stock splits,
stock dividends and like distributions, such distributions to be valued as
of the distribution date) paid by the Related Person in acquiring any of
its holdings of Common Stock within the three-year period preceding the
earlier of the date the Business Combination is consummated or the date of
the first public announcement of the proposal of the Business Combination
plus an amount equal to the difference, if positive, between interest
----
compounded annually from the date on which the Related Person became such
through the date on which such Business Combination is consummated at a
rate per annum equal to the publicly announced base rate of interest of
Citibank, N.A. (or such other bank headquartered in New York, New York or
Boston, Massachusetts as may be selected by the continuing Directors), as
such rate is in effect from time to time, less (II) the aggregate amount of
----
any cash dividends paid and the fair market value (as determined
conclusively by the Board of Directors) of any dividends paid in other than
cash, on each share of Common Stock (with appropriate corresponding
adjustments) during the period referred to in the preceding clause (I) or
(B) the market value of the Common Stock on the date the proposed Business
Combination is announced or the date on which the Related Person became
such (whichever is higher). The form of consideration to be paid to holders
of Common Stock in such Business Combination must consist of either cash or
the form of non-cash consideration used to acquire the largest number of
shares acquired by the Related Person prior to consummation of the
Business. Combination. For purposes of this clause (iii), the term "other
consideration to be received" shall include, without limitation, Common
Stock retained by the then existing public stockholders of the Corporation
in the event of a Business Combination in which the Corporation is the
surviving corporation.
Such 80% and 67% voting requirements shall be applicable notwithstanding the
preceding clause (iii) if following the date the Related Person became such (a)
the Corporation fails to pay regular dividends, or reduces the rate of regular
dividends
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<PAGE>
on Common Stock, if such regular dividends had theretofore been paid by the
Corporation, (b) the Related Person acquires additional shares of the
Corporation's voting securities or (c) the Related Person obtains the benefit of
any loans or other financial credits from the Corporation.
8.2. For the purpose of this Article VIII:
(i) The term "Business Combination" shall mean any transaction or
other arrangement meeting any of the following descriptions: (a) any merger
or consolidation of the Corporation or a Subsidiary of the Corporation with
or into a Related Person or any other entity, which is, of after such
merger or consolidation would be, an Affiliate of a Related Person; (b) any
sale, lease, exchange, transfer or other disposition (including without
limitation the creation of a mortgage or any other security device), in one
transaction or a series of transactions, of any substantial part of the
assets of the Corporation or of a Subsidiary of the Corporation (including
without limitation any voting securities of a Subsidiary of the
Corporation) to a Related Person or an Affiliate of a Related Person; (c)
any sale, lease, exchange, transfer or other disposition of any substantial
part of the assets of a Related Person, or an Affiliate of a Related
Person, to the Corporation or a Subsidiary of the Corporation; (d) the
issuance by the Corporation or any Subsidiary of the Corporation of any
securities of the Corporation or of a Subsidiary of the Corporation to a
Related Person or an Affiliate of a Related Person, other than pursuant to
an employee plan approved by the Continuing Directors; (e) the acquisition
by the Corporation or a Subsidiary of the Corporation of any securities of
a Related Person or of an Affiliate of a Related Person; (f) any
reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation or any other transaction (whether or
not with or into or otherwise involving a Related Person) which has the
effect, directly or indirectly, of increasing the proportionate share of
the outstanding shares of any class of equity or convertible securities of
the Corporation or any Subsidiary of the Corporation which is directly or
indirectly owned by any Related Person or any Affiliate of any Related
Person; (g) any transaction (including a merger or consolidation of the
Corporation with or into a Subsidiary of the Corporation) occurring at a
time when a Related Person exists in which the proportionate interests of
the stockholders of the Corporation in the assets of the Corporation are
unchanged but as a result of which the provisions of this Article VIII or
substantially equivalent provisions would thereafter cease to be in effect;
(h) any liquidation or dissolution of the Corporation at a time when a
Related Person exists; and (i) any written agreement, contract or other
arrangement providing for any of the transaction described in this
definition of Business Combination.
-6-
<PAGE>
(ii) The term "Related Person" shall include (x) any individual,
corporation, partnership or other person or entity (each of the foregoing
constituting a "Person") that together with its Affiliates and Associates
owns in the aggregate ten percent (10%) or more of the outstanding shares
of the Common Stock of the Corporation, and (y) any Affiliate or Associate
of any such Person; provided, however, that the term "Related Person" shall
--------- --------
not include (a) the Corporation or any Subsidiary of the Corporation; (b)
any employee benefit plan of the Corporation or any Subsidiary of the
Corporation, or any Person holding any shares of Common Stock for or
pursuant to the terms of any such employee benefit plan; or (c) any Person
who would be a Related Person (except for the exemption provided by this
clause (c)), if such Person could have effected, as of December 31, 1988, a
Business Combination (as such term is defined in clause (j) of Article
Eight of Certificate of Incorporation of Zayre, as such Certificate of
Incorporation was in effect on December 31, 1988) without complying with
the special voting requirements in such clause (j) and without complying
with either of paragraphs numbered (2) or (3) of such clause (j),
notwithstanding that such Person owned (as such term is defined in such
clause (j)) as of that date 5% or more of Zayre's common stock. Any shares
of Common Stock of the Corporation owned from time to time by any Person,
including a custodian, trustee or legal representative of such Person, who
would constitute a Related Person except for the application of clauses (a)
through (c) of the proviso to the immediately preceding sentence, shall not
at any time during such ownership be attributed to any other Person in
determining whether such other Person is a Related Person.
(iii) The term "substantial part" shall mean assets having an
aggregate fair value in excess of one million dollars.
(iv) A Person shall be deemed to own any Common Stock:
(a) of which such Person would be the beneficial owner, as such
term is defined in Rule 13d-3 promulgated by the Securities
and Exchange Commission (the "Commission") under the
Securities Exchange Act of 1934, as amended (the "Act"), as
such Rule was in effect on December 31. 1988; or
(b) of which such Person would be the beneficial owner, as such
term is defined under Section 16 of the Act and the rules of
the Commission promulgated thereunder, as the same were in
effect on December 31, 1988; or
(c) of which such Person or any of its Affiliates or Associates
has the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to
any agreement,
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<PAGE>
contract, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise; or
(d) of which such Person's relatives of the fourth degree of
consanguinity or closer own or would be deemed to own pursuant
to the forgoing subclauses (a), (b) or (c).
(v) With respect to any proposed Business Combination, the term
"Continuing Director" shall mean (a) any director who is a member of the
Board of Directors of the Corporation on the date shares of Common Stock of
the Corporation are first distributed to stockholders of Zayre (b) any
other director who is a member of the Board of Directors of the Corporation
immediately prior to the time that any Related Person involved in the
proposed Business Combination becomes a Related Person (or, if the
transaction involves more than one Related Person, immediately prior to the
time the first of such Persons to become a Related Person becomes a Related
Person) and (c) any other director who is not a Related Person or an
Affiliate or Associate of a Related Person and is recommended for his or
her initial term of office by either (I) a two-thirds vote of Continuing
Directors then on the Board or (II) the unanimous vote of any nominating
committee of the Corporation's Board of Directors, but only if all the
members of such committee consist of Continuing Directors.
(vi) The term "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 promulgated by the Commission
under the Act, as such Rule was in effect on December 31, 1988.
(vii) The term "Subsidiary" shall mean, with respect to any Person,
any other Person of which a majority of any class of equity security of
such other Person is owned, directly or indirectly, by such Person through
one or more other Subsidiaries of such Person; provided, however, that for
--------- --------
the purposes of (a) and (b) of the proviso to the first sentence of the
foregoing definition of Related Person, the term "Subsidiary" shall mean
only a Person of which a majority of each class of such Person's equity
securities is owned by the Corporation directly or indirectly through other
Subsidiaries of the Corporation (as defined in this proviso).
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
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<PAGE>
number 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 1989 (or any other action of the stockholder(s) in lieu thereof),
another class whose term expires at the annual meeting of stockholders to be
held in calendar 1990, and another class whose term expires at the annual
meeting of stockholders to be held in calendar 1991, 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 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,
-9-
<PAGE>
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 defense of such action, suit, proceeding
or claim; providing, however, that the foregoing shall not require the
---------- --------
Corporation to 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.
-10-
<PAGE>
ARTICLE XIV
In furtherance and not in limitation of the powers conferred by law or in
this 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 (as such term is defined in Article VIII)
to enter into negotiations with the Board of Directors and management of the
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 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 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 Zayre, the
affirmative vote of (i) the holders of 80% or more of the then outstanding
shares of Common Stock of the Corporation and (ii) the holders of 67% of the
then outstanding shares of Common Stock not held by any Related Person (as such
term is defined in Article VIII) shall be required (x) to authorize any
amendment, alteration or repeal of any provision of Article VI, Article VIII,
Article IX, Article XIII, Article XIV or this Article XV, or (y) to adopt any
provision in this Certificate of Incorporation which is inconsistent with said
Articles VI, VIII, IX, XIII or 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, with the approval of a
majority of those directors who would constitute the Continuing Directors (as
such term is defined in Article VIII) with respect to a Business Combination
that has at the time
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<PAGE>
been proposed by a Related Person, 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 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 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 (i) the holders of 80% of the then outstanding shares of Common Stock of the
Corporation and (ii) the holders of 67% of the then outstanding shares of Common
Stock not held by a Related Person (as such term is defined in Article VIII).
In addition, the affirmative 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, HOMECLUB, INC. has caused this Certificate to be signed
on this 18th day of April, 1989 in its name and on its behalf by its President
and attested by its Secretary, pursuant to Section 103(a) of the General
Corporation Law of the State of Delaware.
HOMECLUB, INC.
By:/s/ John F. Levy
---------------------------
President
ATTEST:
/s/ Jay H. Meltzer
- ------------------
Secretary
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<PAGE>
CERTIFICATE OF MERGER
OF
BJ'S WHOLESALE CLUB, INC.
and
WABAN INC.
UNDER SECTION 252 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
Pursuant to Section 252(c) of the General Corporation Law of the State of
Delaware, Waban Inc., a Delaware corporation ("Waban"), and BJ's Wholesale Club,
Inc., a Massachusetts corporation ("BJ's"), hereby certify to the following
information relating to the merger of BJ's with and into Waban (the "Merger").
1. The names and states of incorporation of BJ's and Waban, which are
the constituent corporations in the Merger (the "Constituent Corporations"),
are:
Name State
---- -----
Waban Delaware
BJ's Massachusetts
2. The Agreement of Merger, dated as of April 6, 1989, between BJ's and
Waban (the "Merger Agreement"), setting forth the terms and conditions of the
Merger, has been approved, adopted, certified, executed and acknowledged by each
of the Constituent Corporations in accordance with the provisions of Section
252(c) of the General Corporation Law of the State of Delaware.
3. The name of the surviving corporation is "Waban Inc."
4. The Restated Certificate of Incorporation of Waban, as heretofore in
effect, shall be the Certificate of Incorporation of the surviving corporation.
5. An executed Merger Agreement is on file at the principal place of
business of Waban, the surviving corporation, which is located at One Merger
Road, Natick, Massachusetts 01760.
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<PAGE>
6. A copy of the Merger Agreement will be furnished by Waban, the
surviving corporation, on request and without cost, to any stockholder of either
of the Constituent Corporations.
7. The authorized capital stock of each foreign corporation that is a
party to the Merger is as follows:
<TABLE>
<CAPTION>
Number of Par Value
Corporation Class Shares Per Share
----------- ----- --------- ---------
<S> <C> <C> <C>
BJ's Wholesale Club, Inc. Common 300,000 $1.00
</TABLE>
8. The Merger shall become effective on May 26, 1989.
IN WITNESS WHEREOF, this Certificate of Merger has been executed as of this
19th day of May, 1989.
WABAN INC.
Attest:
By /s/ Arthur F. Loewy By /s/ John F. Levy
---------------------- ----------------------
Arthur F. Loewy John F. Levy
Secretary President
Attest: BJ'S WHOLESALE CLUB, INC.
By /s/ Jay H. Meltzer By /s/ George Freeman
---------------------- ----------------------
Jay H. Meltzer George Freeman
Clerk Vice President
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<PAGE>
CERTIFICATE OF MERGER
OF
MORMAX CORPORATION
and
WABAN INC.
UNDER SECTION 252 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
Pursuant to Section 252(c) of the General Corporation Law of the State of
Delaware, Waban Inc., a Delaware corporation ("Waban"), and Mormax Corporation,
a Illinois corporation ("Mormax"), hereby certify to the following information
relating to the merger of Mormax with and into Waban (the "Merger").
1. The names and states of incorporation of Mormax and Waban, which are
the constituent corporations in the Merger (the "Constituent Corporations"),
are:
Name State
---- -----
Waban Delaware
Mormax Illinois
2. The Agreement of Merger, dated as of April 6, 1989, between Mormax and
Waban (the "Merger Agreement"), setting forth the terms and conditions of the
Merger, has been approved, adopted, certified, executed and acknowledged by each
of the Constituent Corporations in accordance with the provisions of Section
252(c) of the General Corporation Law of the State of Delaware.
3. The name of the surviving corporation is "Waban Inc."
4. The Restated Certificate of Incorporation of Waban, as heretofore in
effect, shall be the Certificate of Incorporation of the surviving corporation.
5. An executed Merger Agreement is on file at the principal place of
business of Waban, the surviving corporation, which is located at One Merger
Road, Natick, Massachusetts 01760.
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<PAGE>
6. A copy of the Merger Agreement will be furnished by Waban, the
surviving corporation, on request and without cost, to any stockholder of either
of the Constituent Corporations.
7. The authorized capital stock of each foreign corporation that is
a party to the merger is as follows:
<TABLE>
<CAPTION>
Corporation Class Shares Per Share
----------- ----- --------- ---------
<S> <C> <C> <C>
Mormax Corporation Common 1,000 No Par
</TABLE>
8. The Merger shall become effective on May 26, 1989.
IN WITNESS WHEREOF, this Certificate of Merger has been executed as of
this 19th day of May, 1989.
WABAN INC.
Attest:
By /s/ Arthur F. Loewy By /s/ John F. Levy
------------------------ ------------------------
Arthur F. Loewy John F. Levy
Secretary President
Attest: MORMAX CORPORATION
By /s/ Charles Whittle By /s/ John F. Levy
------------------------ ------------------------
Charles Whittle John F. Levy
Secretary President
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<PAGE>
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
WABAN INC.
Pursuant to Section 151 of the Delaware
General Corporation Law
We, John F. Levy, President and Chief Executive Officer, and Arthur F.
Loewy, Secretary, of Waban Inc., a corporation organized and existing under the
Delaware General Corporation Law, in accordance with the provisions of Section
151 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Restated Certificate of Incorporation, as amended, of the Corporation, the Board
of Directors on April 6, 1989 adopted the following resolution creating a series
of shares of Preferred Stock, par value $.01 per share, designated as Series A
Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of this Corporation in accordance with the provisions of its Restated
Certificate of Incorporation, as amended, a series of Preferred Stock of the
Corporation be and it hereby is created, and that the designation and amount
thereof and the voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. An aggregate of 1,900,000 shares of
----------------------
Preferred Stock, par value $.01, of the Corporation are hereby constituted as a
series designated as "Series A Junior Participating Preferred Stock" (the
"Series A Preferred Stock"). 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.
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
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<PAGE>
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 legally available for the purpose,
quarterly dividends payable in cash on the first day of March, June,
September and December 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) $1.00 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 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 or
combination or consolidation of the outstanding shares or 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.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph 1 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); 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
$1.00 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
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<PAGE>
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
100 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 or 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 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.
(B) Except as otherwise provided herein, in any other certificate
of Designation creating a series of Preferred Stock or any similar stock,
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) 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
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<PAGE>
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 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
-20-
<PAGE>
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, in any other Certificate of Designation creating a
series of Preferred Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
--------------------------------------
dissolution or winding up of the Corporation, no distribution shall be made (a)
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 $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such 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 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (b) 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. 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 or
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
(a) 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.
Section 7. Consolidation, Merger, etc. 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 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 100 times
-21-
<PAGE>
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 or 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.
Section 8. 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 Corporation's Preferred Stock.
Section 10. Amendment. The Restated Certificate of Incorporation of the
---------
Corporation, as amended, 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 series.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do
affirm the foregoing as true under the penalties of perjury this 1st day of
June, 1989.
By /s/ John F. Levy
----------------------------------
President and Chief Executive Officer
Attest:
By /s/ Arthur F. Loewy
-------------------------
Secretary
[SEAL]
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<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF MIDDLESEX ) SS.
On this 1st day of June, 1989, personally appeared before me John F. Levy
and Arthur F. Loewy, each, to me personally known, who, being duly sworn, did
say that they are the President and Chief Executive Officer, and Secretary,
respectively, of Waban Inc., a Delaware corporation, and that this instrument
was signed and sealed on behalf of said corporation pursuant to duly adopted
resolutions of its Board of Directors and such officers acknowledged the
foregoing to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
[SEAL]
/s/ Deborah Sughrue
-----------------------------------
Notary Public
My commission expires: May 18, 1995
-23-
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
WABAN INC.
WABAN Inc., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify as follows:
1. At a meeting of the Board of Directors of the Corporation on June
4, 1997 a resolution was duly adopted, pursuant to Section 242 of the General
Corporation Law of the State of Delaware (the "Delaware Corporation Law"),
setting forth an amendment to the Certificate of Incorporation of the
Corporation and declaring said amendment to be advisable. Said proposed
amendment was duly approved by the stockholders of the corporation, pursuant to
Section 242 of the Delaware Corporation Law, at the annual meeting of the
stockholders of the Corporation called and held upon notice, in accordance with
Section 222 of the Delaware Corporation Law, on July 10, 1997. The resolution
setting forth the amendment is as follows:
RESOLVED: That effective as of 5:00 p.m., Eastern Time, on July 28, 1997,
- -------- Article FIRST of the Certificate of Incorporation of the
Corporation be amended to read in its entirety as follows:
"FIRST. The name of the Corporation is HomeBase, Inc.".
2. This Certificate of Amendment shall be effective at 5:00 p.m., Eastern
Time, on July 28, 1997.
3. At any time prior to the effectiveness of this Certificate of
Amendment,
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<PAGE>
the Board of Directors may abandon such proposed amendment without
further action by the stockholders.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its Secretary
this 18th day of July, 1997.
WABAN INC.
/s/ Sarah M. Gallivan
----------------------------
By: Sarah M. Gallivan
Its:Secretary
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<PAGE>
EXHIBIT 4.2
BY-LAWS
OF
HOMEBASE, 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
--------------
11.00 a.m. on the third Tuesday in June in each year, unless that day be a legal
holiday at the place where the meeting is to be held, in which case the meeting
shall be held at the same hour on the next succeeding day not a legal holiday,
or at such other date and time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting, at which the
stockholders shall elect a Board of Directors and transact such other business
as may be required by law or these by-laws or as may properly come before the
meeting.
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 at
the principal executive offices of the Corporation not less than 30 days prior
to the annual meeting; provided, however, that in the event that less than 40
--------- -------
days' notice or prior public disclosure of the date of the annual meeting is
given or made to stockholders, notice by the stockholder to be timely must be
received at the principal executive offices of the Corporation not later than
the close of business on the tenth day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure was 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 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
<PAGE>
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 and declare to the annual meeting 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 sixty 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 thirty 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. 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
-2-
<PAGE>
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 proxy shall entitle the holder thereof to
vote at any adjourned session but shall not be valid after the final adjournment
thereof.
-3-
<PAGE>
2.8. Inspectors. The directors or the chairman of the meeting may, but
----------
need not, 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, if any,
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 1989, another class
whose term expires at the annual meeting of stockholders to be held in calendar
1990 and another class whose term expires at the annual meeting of stockholders
to be held in calendar 1991, 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 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
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<PAGE>
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 at the principal executive offices not less than 30 days
prior to the pertinent annual meeting (or, if called for the purpose, the
special meeting at which a vacant newly created directorship is to be filled);
provided, however, that in the event that less than 40 days' notice or prior
- -------- -------
public disclosure of the date of such meeting is given or made to stockholders,
notice by the stockholder to be timely must be received at the principal
executive offices not later than the close of business on the tenth day
following the day on which such notice of the date of such meeting was mailed or
such public disclosure was made. To be in proper written form, a stockholder's
notice shall set forth in writing (i) as to each person whom the stockholder
proposes to nominate for election or election as a director, all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(or any successor provisions of law), including, without limitation, such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected; (ii) as to the stockholder giving the
notice (x) the name and address, as they appear on the Corporation's books, of
such stockholder, (y) the person or persons who are the beneficial owners of
such shares, if different in any respect from the record owner and (z) the class
and number of shares of the Corporation which are beneficially owned by such
stockholder or any other persons referred to in the preceding clause (y). 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. 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.
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
-5-
<PAGE>
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 bylaws. 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 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.
3.6. Committees. The Board of Directors may, by vote of a majority of the
----------
whole board, (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
-6-
<PAGE>
Board or such rules, its business shall be conducted as nearly as may be in the
same manner as is provided by these bylaws 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 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 meeting
of the 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 or by 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 forty-eight hours or by telegram at least
twenty-four hours before the meeting addressed to him at his usual or last known
business or residence address or to give notice to him in person or by telephone
at least twenty-four 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 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
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. 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.
-7-
<PAGE>
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 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 or of such committee. Such
consent shall be treated for all purposes as the act of the Board 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 such Board, may participate
in a meeting of such Board or 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 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.
-8-
<PAGE>
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 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 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.
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 designed 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
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<PAGE>
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
------------------------------------
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. He 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.
4.9. Divisional Officers. The president may appoint such officers of the
-------------------
divisions of the Company as he in his discretion shall determine, the officers
of the divisions not being officers of the Company. Officers of divisions may
also be officers of the Company.
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 or 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
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<PAGE>
of its being accepted unless the resignation shall so state. The 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, president or 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 his successor is chosen and qualified or in each case until he
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)
by the treasurer or an assistant treasurer or by the secretary or an assistant
secretary. Any of or all 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 Certificates. 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.
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
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<PAGE>
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 and Closing Transfer Books. 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 sixty 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 sixty 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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<PAGE>
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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<PAGE>
EXHIBIT 5.1
HALE AND DORR LLP
COUNSELLORS AT LAW
60 STATE STREET, BOSTON, MASSACHUSETTS 02109
617-526-6000 * FAX 617-526-5000
July 30, 1997
HomeBase, Inc.
3345 Michelson Drive
Irvine, California 92715
Re: 1989 Stock Incentive Plan
1997 Stock Incentive 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 3,500,000 shares of Common Stock, $.01 par value per
share (the "Shares"), of HomeBase, Inc., a Delaware corporation (the "Company"),
issuable under the Company's 1989 Stock Incentive Plan and 1997 Stock Incentive
Plan (collectively, the "Plans").
We have examined the Restated Certificate of Incorporation, as amended, 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>
HomeBase, Inc.
July 30, 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,
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 HomeBase, Inc., of our report dated February 25, 1997, except as to
the information presented in Note L, for which the date is April 2, 1997, on our
audits of the combined financial statements of Waban 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 28, 1997
<PAGE>
EXHIBIT 24.2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned directors of
Waban Inc., a Delaware corporation (the "Corporation"), which is to file with
the Securities and Exchange Commission (the "Commission") under the provisions
of the Securities Act of 1933, as amended, one or more Registration Statements
on Form S-8, or other appropriate form, for the registration of (i) up to
1,000,000 shares of Common Stock issuable under the Corporation's 1997 Stock
Incentive Plan, and (ii) up to 2,500,000 shares of Common Stock initially
issuable under the 1989 Stock Incentive Plan and, following expiration of the
1989 Stock Incentive Plan, the unissued balance of which will be issuable under
the 1997 Stock Incentive Plan, hereby constitute and appoint Herbert J. Zarkin,
Edward J. Weisberger, Sarah M. Gallivan and Mark G. Borden, and each of them,
our true and lawful attorneys-in-fact and agents, with full power to them and
each of them singly, to act for us and in our name, place and stead, in any and
all capacities, to sign, or cause to be signed electronically, any and all of
said Registration Statements and any and all amendments to the aforementioned
Registration Statements and to file said Registration Statements and amendments
thereto so signed with all exhibits thereto, and any and all other documents in
connection therewith, with the Commission, hereby granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to do and perform
any and all acts and things requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as we might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, we have executed this Power of Attorney as of the 10th
day of July, 1997.
/s/ Arthur F. Loewy
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Arthur F. Loewy
/s/ Lorne R. Waxlax
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Lorne R. Waxlax
